English Bill of Rights

Explanation and Analysis of the Document

The Bill of Rights can be broken into two distinct parts. The first part contains a list of “abuses” committed by James II, which are then followed by articles that restate the substance of each of these abuses in the negative and declare each of them either “illegal,” “pernicious,” “against law,” or “void.” The second part comprises thirteen articles designed to safeguard the Protestant succession to the throne, to establish that both Houses of Parliament give their assent to the succession and bill, and, finally, to secure the permanence of the document.

First Part: Abuses and Restatements

James's twelve abuses are restated as thirteen articles declaring what are more accurately described as wrongs rather than rights. This was a rhetorical ploy by the framers of the bill to secure its passage in Parliament. By reviewing and assenting to the criminality of James II's actions, it was difficult to deny the correctness of the subsequent generalized restatements, which were more controversial. For example, the second abuse, regarding the prosecution of “worthy prelates” for petitioning the king, is restated as “it is the right of the subjects to petition the king.” The preamble is important in determining the bill's legality and emphasizes the lawful, full, and free nature of the Convention Parliament and the circumstances under which the Declaration of Rights, on which the Bill of Rights was based, was read aloud.

The twelve abuses of James II and the articles restating them are separated by an important passage that is a de facto declaration that James II had abdicated and placed himself in exile in France. By contrast, in the same paragraph, William of Orange is praised as “the glorious instrument of delivering this kingdom from popery and arbitrary power.” It is made clear that a Convention Parliament was lawfully convened upon the advice and consent of “the Lords Spiritual and Temporal” and leaders in the House of Commons and that it was entrusted with the task of ensuring that “laws and liberties might not again be in danger of being subverted.”

The first and second articles, which refer to the first abuse of James II, deal with the king's power to suspend or temporarily dispense with the law, or the execution of the law, without prior approval of Parliament. In reality, kings had seldom invoked the so-called suspending power. The first article, therefore, found broad agreement within the Convention Parliament. The second article, relating to the dispensing power of the Crown, was far more controversial. This concerned the monarch's ability to exempt people or groups from laws under certain conditions. Both Charles II and James II had regularly invoked the dispensing power to give greater freedom to Catholics and Protestant dissenters. The phrase “of late” makes explicit reference to the actions of James II; it was designed to circumvent claims of historical precedent for monarchs using the dispensing power. Historical precedent, however, was perhaps not so easily dismissed. The concept of dispensing power had existed since the thirteenth century, when Henry II had used it in imitation of papal dispensations. Elizabeth I also widely used the dispensing power, though seldom controversially. Many Tories argued that the monarch's dispensing power was necessary because laws were seldom revised and often became outdated. Therefore, it was right that the king could, as one member of Parliament put it, “Supply [the law's] defects, pardoning a condemned Innocent” (qtd. in Edie, p. 435). The clause was left in the bill because the majority of Convention Parliament members felt that the dispensing power was a major hurdle to the establishment of a constitutional monarchy.

The second and third abuses also had direct relevance to the events preceding the Glorious Revolution. The second abuse, corresponding to the fifth restatement, mentions “worthy prelates” who had petitioned the king. These were the “Seven Bishops” who had been prosecuted for having petitioned James II, after they had refused to read the Declaration of Indulgence aloud in their churches. The right to petition the king originated in Saxon times and has since been considered one of the ancient rights of English subjects. The third abuse corresponds to the third restatement, which outlaws the Court of Commissioners for Ecclesiastical Causes. James II had established this court in 1686 to assist Catholics and to monitor universities and the Anglican Church. The measure was deeply unpopular, especially because such commissions had been outlawed in 1661.

Rising levels of taxation, which also related to control over revenue, had long created conflict between Parliament and the monarchy. According to the fourth charge of abuse, James II had levied money for use by the Crown in ways other than those stipulated by Parliament. Charles I had also antagonized Parliament with his unsanctioned revival of the ship tax and other ancient laws. Revenue was important for the monarch for three main reasons: first, for maintaining the Civil List and his own court; second, to pay for a standing army and defense of the realm; and third, to bribe secret service agents, influence elections, and secure loyalty. The bill covers all three of these reasons and limits the monarch's power to raise revenue.

The Civil List was of great importance, since it funded officials working for the royal family, offices known as sinecures (which required little or no real work but which were often accompanied by titles and salaries and were designed as a way of distributing royal patronage), and the pensions of courtiers and servants of the Crown upon retirement from active service. All were skillfully distributed to ensure support for the king. If Parliament could not control the revenue used for these purposes, then it would be ineffective and cede more power to the king. The fourth article states that revenue may not be collected for use of the Crown “without grant of Parliament.” However, control over revenue would remain a source of contention during William III's rule. In the early years of his reign, William frequently tussled with Parliament over revenue for the Civil List and payment for the war with France. Gradually, later Parliaments took greater control over revenue.

The sixth article, corresponding to the fifth abuse of James II, bans the king from keeping a standing army without the support of Parliament. James's decision to maintain a standing army in times of peace without the consent of Parliament not only had drained revenue but also had been extremely menacing and against English tradition. Furthermore, the armies of Charles II and James II were composed mainly of Catholics, and many leading generals were Catholic. Debates about a standing army would resurface in the late eighteenth century during the American Revolution. In James's time, it is unlikely that Parliament would have endorsed the creation of a standing army. The Catholic threat is also reflected in the seventh article (corresponding to the sixth abuse), which states that Protestants are allowed to bear arms. This article has relevance to the Second Amendment to the U.S. Constitution, where the right to bear arms is guaranteed in the context of maintaining the security of the state. Significantly, however, the English Bill of Rights does not justify this right.

The eighth, ninth, and thirteenth articles concern elections and parliamentary procedure. The eighth article, corresponding to the seventh abuse, declares that elections should be free. This was a direct attack on royal interference in elections in ways that had included designating candidates, excluding people from office, and voiding election results. It is important to note, however, that this provision focuses on the candidates, not the voters. The ninth article (corresponding to the eighth abuse) requires that speech in Parliament be free and that verbal exchanges between members of Parliament shall not be subject to court proceedings. This basic tenet of parliamentary privilege is still practiced today. The thirteenth and final article, without a directly corresponding abuse, maintains that Parliament shall be convened frequently. In the seventeenth century, the king's prerogative to govern without Parliament sitting—a prorogued Parliament—had been invoked several times, most notably by Charles I in 1629 in what became known as the Eleven Years' Tyranny. The frequency of parliamentary gathering was also related to counteracting a strong argument in favor of the monarch's dispensing power: the need to amend and update legislation.

The tenth, eleventh, and twelfth articles (corresponding to the ninth through twelfth abuses) all focus on judicial procedure and the rights of individuals. The tenth clause has perhaps the most contemporary significance, since it limits excessive bail, fines, and “cruel and unusual punishments.” Judicial discretion was considerable during this period, and this article sought to prevent arbitrary abuse by judges. While judges rarely issued punishments outside the bounds of the law, they often set disproportionate and prohibitive bail, an amount of money paid as a guarantee of returning to court for judgment. This article was designed to ensure that all subjects had the same standing before the court. The words “cruel and unusual punishments” have a somewhat different meaning than what normally would be assumed today. In Restoration England, cruelty was defined not in terms of suffering but whether the punishment was commensurate with the crime. The eleventh article describes the process for selecting jury panels and specifies that a jury for a treason trial must be composed of “freeholders,” subjects who owned land or property. This meant that juries were composed of wealthier members of society and excluded leaseholders or people who rented land and dwellings. The twelfth article, corresponding to the twelfth abuse of James II, prohibits the practice of promising to others the fines and lands of defendants prior to trial, which blatantly presupposed guilt and was contrary to the basic tenets of jurisprudence.

Second Part: Safeguarding the Succession and the Bill of Rights

The second part of the Bill of Rights is more typical of a seventeenth-century legal document, both in style and language. The three most important features include a precise description of the royal succession (covered by articles II, VIII, IX, and X), a determination that there shall not be a Catholic monarch or a monarch married to a Catholic (article IX), and a provision that safeguarded the bill and subsequent acts passed by the Convention Parliament from being dispensed non obstante—dispensed by the monarch, that is—unless a particular act itself would allow dispensation (the substance of articles XI and XII). The bill further emphasizes that the enthronement of William and Mary has the authority and support of both Houses of Parliament (articles I, II, VI, and VIII), that James II abdicated his throne (article VII), and that with their majesties' consent, Parliament participates in the governance of the realm (article V). Article IV is a statement of William and Mary's acceptance of the crown, while article III contains oaths of allegiance to the crown.

Guaranteeing the royal succession is a problem for all monarchies. Indeed, the establishment of the Church of England had stemmed from Henry VIII's desire for a male heir. The unexpected birth of a male heir to James II and Mary of Modena had triggered the Glorious Revolution. The Bill of Rights established the following succession: William III and Mary II were to continue as lawful king and queen during their lifetimes. Upon the death of either one, the other would become sole ruler. After the deaths of both monarchs, the rightful line of kingship would pass to the “heirs of the body” of Mary II. If for any reason there was no royal issue, the throne would revert to Queen Anne of Denmark, Mary II's sister, and in the event of her death to her progeny. If none of these successions were possible, then the heirs of William III would have the royal title. The framers of the bill were anxious to settle the succession quickly, although further stipulations would have to be made in the Act of Settlement of 1701. In the end, Queen Anne outlived her only progeny, Prince William, Duke of Gloucester, who died of smallpox in July 1700 at the age of eleven. This tested the new rules of succession and reset the line to the Hanoverian descendants of King James I, the heirs of Sophia, the duchess of Hanover. Sophia was the daughter of the German elector Palatine Frederick V and Princess Elizabeth, who was the daughter of King James I. Her son was the first Hanoverian English king, George I.

The succession was drawn up to ensure a Protestant successor. The bill states that henceforth there shall be no Catholic monarch of England nor any monarch married to a Catholic. This law is still in force today, and the rationale behind this determination is obvious. A Catholic monarch such as James II could have sought rapprochement with the pontiff in Rome, interfered with the Anglican Church, or otherwise compromised the “safety and welfare” of Protestant England.