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Bill of Rights Act, 1689 – The Glorious Revolution
This Article is two parts the first is a mini study guide setting the Act in a historical context and highlighting some of the issues raised by the Act, the second being the full text of the Act.
Study Guide
An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown
The first line of the Act.
The Bill of Rights Act, 1689 is considered by many to be the third greatest charter of English liberties after the Magna Carta, 1215 and the Petition of Right, 1628. Rather than deal with protecting the rights of individuals and civil rights as we know them today the Bill of Rights Act, 1689 mainly set out strict limits on the use of Royal prerogatives by the sovereign.
James
James II survived attempts to exclude him from the throne in the years before the death of his brother Charles II to become King; he was a man with much military experience serving in the army of Louis XIV, he also participated in several bloody encounters while commanding the Royal Navy (1660-1673). He converted to Roman Catholicism in 1669.
In June 1685 he successfully put down a rebellion by the Duke of Monmouth1 who believed himself to be the rightful heir but was defeated at the Battle of Sedgemore, where he was captured, this revolt was supported by the Earl of Argyle who launched an attack in Scotland but was defeated & executed. Around the same time James Prorogued2 Parliament. During September the Bloody Assizes occurred. The Bloody Assizes were court sessions held after the defeat of Monmouth's Rebellion; Chief Justice George Jeffreys guaranteed that these would be forever known as "Bloody." Many of the leaders of the rebellion were able to escape punishment through bribery or favoritism but upto 320 were executed, most of those executed had pled guilty believing they would be shown mercy. James II went on to suspended laws and the execution of laws without consent of Parliament where they discriminated against Roman Catholics and to appoint Roman Catholics to senior position in the Army, Navy, government, the legal system and the Universities in breach of Acts of Parliament.
In 1688 seven Bishops presented their petition to James against a Declaration of Indulgence3. They were charged with seditious libel but were acquitted on June 30th, the day after the Lords Shewsbury, Devonshire, Danby, Crompton, Lumley and Edward Russell and Henry Sidney sent an appeal to William of Orange to intervene in order to protect English liberties assuring him that he would be welcomed by 19 out of 20 Englishmen.
William and Mary
On November 15 William's fleet arrived at Torbay and his army disembarked it was upto ten days before most his supporters arrived to join his standard. James was quickly notified of Wiliams landing, but he was slow to respond unaware that many of his Protestant Army commanders4 were planning to go over to William. When James realized the support that William had he fled to France.
The laws of succession were met by the assumption that by his flight James II had abdicated.
William of Orange and his wife Mary were jointly crowned King and Queen of England (Mary being the daughter of the James II) in Westminster Abbey on April 11, 1689 and as part of their oaths, they had to swear that they would obey the laws of Parliament, the Bill of Rights was read to both William III and Mary II5 on hearing it William is said to of replied "We thankfully accept what you have offered us".
The Succession in Scotland and Ireland
There were three separate kingdoms at this point in history, England (& Wales), Scotland and Ireland that shared the same sovereign. They would not be united politically until the Act of Union, 17076 & the Act of Union, 18017. The details of the resistance to the moves towards union are beyond the scope of this article but a brief summary of the events that led to William and Mary succeeding James in Scotland and Ireland follows;
The Kingdom of Scotland
There was a brief Rebellion against William and Mary by Viscount Dundee who rallied the Clans and inflicted a defeat upon forces loyal to William and Mary at Killiecrankie in July 1689 but Viscount Dundee was killed while attaining victory and nobody else could hold the clans together. The Scottish throne was offered jointly to William and Mary on the condition they did away with Episcopacy in Scotland and the institution of a Presbyterian Church order.
The Kingdom of Ireland
After James had been in France for a few weeks it came to his attention that there was one kingdom that was still loyal to him, Ireland. The majority of the population was Roman Catholic as was its governor the Earl of Tyrconnel, Richard Talbot.
James left France for Ireland in March 1689 accompanied by French military advisors and weapons. The Army that Tyrconnel assembled for James though large was poorly equipped, it also lacked both discipline and equipment. James and his advisors spent the summer training the Army. At an Irish Parliament in May the authority of the English Parliament was denied and over 2000 Protestants named in an Act of Attainder8, at around the same time the siege of Protestant Derry by forces loyal to James failed9.
In August forces loyal to William under General Schomberg landed in Ulster they were joined by William at the beginning of the following summer. July 1st 1690 was a very hot day and on that day forces of James and William met in battle at Boyne 30 miles north of Dublin, William took direct command of his troops and led them to an impressive victory10. James fell back to Duncannon and boarded a ship for France where he lived the rest of his life in exile dying in 170111.
The Bill of Rights Act
The Bill of Rights Act, 1689 passed through Parliament after the coronation and on December 16, 1689, the King and Queen gave it Royal Assent passing it in to English law. Never again would English monarchs claim their power came from God as The Bill of Rights Act, 1689 represented the end of the concept of divine right of kings, which was one of the issues over which the English Civil War had been fought. It also made kings and queens subject to laws passed by Parliament, this has been called the "Glorious Revolution".
The Bill of Rights Act, 1689 was part of a package of laws that reformed the English constitution at this time with the other two being the Toleration Act, 1689 which promoted limited religious toleration and the Triennial Act, 1694 which prevented the King from dissolving Parliament at will and placed a legal requirement that general elections had to be held every three years12.
Key Points
In addition to listing the transgressions James II the Bill of Rights Act, 1689 legislated on some very important issues;
•"It hath been found by experience that it is inconsistent with the safety and welfare of this protestant kingdom to be governed by a popish prince."
Roman Catholics were barred from the throne by this Act.
•"That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal"
The right of free petitioning was reinstated by the Act.
•"That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;"
The Act places a prohibition against arbitrary suspension of Parliament's laws by the soveriegn.
•"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 Act limits the soveriegns right to raise money through taxation, with the consent of Parliament being needed.
•"That election of members of Parliament ought to be free"
The Act guarantees the sovereign will not interfere in the free & fair elections of Members of Parliament.
•"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"
The Act guarantees the freedom of speech of Members of Parliament within parliamentary debates or proceedings – This means that MP’s are free to say things that could be considered libellous or otherwise illegal while participating in parliamentary debates without fear of prosecution in the civil or criminal courts.
•"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"
The Act makes it illegal for the sovereign to keep military forces within the kingdom in time of peace without consent of Parliament, which is one of the reasons the military is funded on an annual basis by parliament.
•"That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"
The act makes the imposition of excessive fines or cruel punishments illegal.
It should be noted that this Act is considered by many scholars to be the inspiration behind the United States of America’s Bill of Rights13
The Bill of Rights Act, 1689
An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown
Whereas the Lords Spiritual and Temporal and Commons assembled at Westminster, lawfully, fully and freely representing all the estates of the people of this realm, did upon the thirteenth day of February in the year of our Lord one thousand six hundred eighty-eight present unto their Majesties, then called and known by the names and style of William and Mary, prince and princess of Orange, being present in their proper persons, a certain declaration in writing made by the said Lords and Commons in the words following,
viz.:
Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;
•By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;
•By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;
•By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;
•By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament;
•By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;
•By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;
•By violating the freedom of election of members to serve in Parliament;
•By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;
•And whereas of late years partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders;
•And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;
•And excessive fines have been imposed;
•And illegal and cruel punishments inflicted;
•And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;
•All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;
And whereas the said late King James the Second having abdicated the government and the throne being thereby vacant, his Highness the prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal and divers principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal being Protestants, and other letters to the several counties, cities, universities, boroughs and cinque ports, for the choosing of such persons to represent them as were of right to be sent to Parliament, to meet and sit at Westminster upon the two and twentieth day of January in this year one thousand six hundred eighty and eight, in order to such an establishment as that their religion, laws and liberties might not again be in danger of being subverted, upon which letters elections having been accordingly made;
And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare:
•That the pretended power of suspending the 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 execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
•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;
•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;
•That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
•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;
•That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
•That election of members of Parliament ought to be free;
•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;
•That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
•That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
•That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;
•And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.
And they do claim, demand and insist upon all and singular the premises as their undoubted rights and liberties, and that no declarations, judgments, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example; to which demand of their rights they are particularly encouraged by the declaration of his Highness the prince of Orange as being the only means for obtaining a full redress and remedy therein.
Having therefore an entire confidence that his said Highness the prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights which they have here asserted, and from all other attempts upon their religion, rights and liberties, the said Lords Spiritual and Temporal and Commons assembled at Westminster do resolve that William and Mary, prince and princess of Orange, be and be declared king and queen of England, France and Ireland and the dominions thereunto belonging, to hold the crown and royal dignity of the said kingdoms and dominions to them, the said prince and princess, during their lives and the life of the survivor to them, and that the sole and full exercise of the regal power be only in and executed by the said prince of Orange in the names of the said prince and princess during their joint lives, and after their deceases the said crown and royal dignity of the same kingdoms and dominions to be to the heirs of the body of the said princess, and for default of such issue to the Princess Anne of Denmark and the heirs of her body, and for default of such issue to the heirs of the body of the said prince of Orange. And the Lords Spiritual and Temporal and Commons do pray the said prince and princess to accept the same accordingly.
And that the oaths hereafter mentioned be taken by all persons of whom the oaths have allegiance and supremacy might be required by law, instead of them; and that the said oaths of allegiance and supremacy be abrogated.
I, A.B., do sincerely promise and swear that I will be faithful and bear true allegiance to their Majesties King William and Queen Mary. So help me God.
I, A.B., do swear that I do from my heart abhor, detest and abjure as impious and heretical this damnable doctrine and position, that princes excommunicated or deprived by the Pope or any authority of the see of Rome may be deposed or murdered by their subjects or any other whatsoever. And I do declare that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm. So help me God.
Upon which their said Majesties did accept the crown and royal dignity of the kingdoms of England, France and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration. And thereupon their Majesties were pleased that the said Lords Spiritual and Temporal and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties' royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly.
Now in pursuance of the premises the said Lords Spiritual and Temporal and Commons in Parliament assembled, for the ratifying, confirming and establishing the said declaration and the articles, clauses, matters and things therein contained by the force of law made in due form by authority of Parliament, do pray that it may be declared and enacted that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed and taken to be; and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said declaration, and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all time to come.
And the said Lords Spiritual and Temporal and Commons, seriously considering how it hath pleased Almighty God in his marvellous providence and merciful goodness to this nation to provide and preserve their said Majesties' royal persons most happily to reign over us upon the throne of their ancestors, for which they render unto him from the bottom of their hearts their humblest thanks and praises, do truly, firmly, assuredly and in the sincerity of their hearts think, and do hereby recognize, acknowledge and declare, that King James the Second having abdicated the government, and their Majesties having accepted the crown and royal dignity as aforesaid, their said Majesties did become, were, are and of right ought to be by the laws of this realm our sovereign liege lord and lady, king and queen of England, France and Ireland and the dominions thereunto belonging, in and to whose princely persons the royal state, crown and dignity of the said realms with all honours, styles, titles, regalities, prerogatives, powers, jurisdictions and authorities to the same belonging and appertaining are most fully, rightfully and entirely invested and incorporated, united and annexed.
And for preventing all questions and divisions in this realm by reason of any pretended titles to the crown, and for preserving a certainty in the succession thereof, in and upon which the unity, peace, tranquility and safety of this nation doth under God wholly consist and depend, the said Lords Spiritual and Temporal and Commons do beseech their Majesties that it may be enacted, established and declared, that the crown and regal government of the said kingdoms and dominions, with all and singular the premises thereunto belonging and appertaining, shall be and continue to their said Majesties and the survivor of them during their lives and the life of the survivor of them, and that the entire, perfect and full exercise of the regal power and government be only in and executed by his Majesty in the names of both their Majesties during their joint lives; and after their deceases the said crown and premises shall be and remain to the heirs of the body of her Majesty, and for default of such issue to her Royal Highness the Princess Anne of Denmark and the heirs of the body of his said Majesty; and thereunto the said Lords Spiritual and Temporal and Commons do in the name of all the people aforesaid most humbly and faithfully submit themselves, their heirs and posterities for ever, and do faithfully promise that they will stand to, maintain and defend their said Majesties, and also the limitation and succession of the crown herein specified and contained, to the utmost of their powers with their lives and estates against all persons whatsoever that shall attempt anything to the contrary.
And whereas it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a popish prince, or by any king or queen marrying a papist, the said Lords Spiritual and Temporal and Commons do further pray that it may be enacted, that all and every person and persons that is, are or shall be reconciled to or shall hold communion with the see or Church of Rome, or shall profess the popish religion, or shall marry a papist, shall be excluded and be for ever incapable to inherit, possess or enjoy the crown and government of this realm and Ireland and the dominions thereunto belonging or any part of the same, or to have, use or exercise any regal power, authority or jurisdiction within the same; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance; and the said crown and government shall from time to time descend to and be enjoyed by such person or persons being Protestants as should have inherited and enjoyed the same in case the said person or persons so reconciled, holding communion or professing or marrying as aforesaid were naturally dead; and that every king and queen of this realm who at any time hereafter shall come to and succeed in the imperial crown of this kingdom shall on the first day of the meeting of the first Parliament next after his or her coming to the crown, sitting in his or her throne in the House of Peers in the presence of the Lords and Commons therein assembled, or at his or her coronation before such person or persons who shall administer the coronation oath to him or her at the time of his or her taking the said oath (which shall first happen), make, subscribe and audibly repeat the declaration mentioned in the statute made in the thirtieth year of the reign of King Charles the Second entitled, "An Act for the more effectual preserving the king's person and government by disabling papists from sitting in either House of Parliament."
But if it shall happen that such king or queen upon his or her succession to the crown of this realm shall be under the age of twelve years, then every such king or queen shall make, subscribe and audibly repeat the same declaration at his or her coronation or the first day of the meeting of the first Parliament as aforesaid which shall first happen after such king or queen shall have attained the said age of twelve years. All which their Majesties are contented and pleased shall be declared, enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever; and the same are by their said Majesties, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in Parliament assembled and by the authority of the same, declared, enacted and established accordingly.
II. And be it further declared and enacted by the authority aforesaid, that from and after this present session of Parliament no dispensation by "non obstante" of or to any statute or any part thereof shall be allowed, but that the same shall be held void and of no effect, except a dispensation be allowed of in such statute, and except in such cases as shall be specially provided for by one or more bill or bills to be passed during this present session of Parliament.
III. Provided that no charter or grant or pardon granted before the three and twentieth day of October in the year of our Lord one thousand six hundred eighty-nine shall be any ways impeached or invalidated by this Act, but that the same shall be and remain of the same force and effect in law and no other than as if this Act had never been made.
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1 The Duke of Monmouth (James Scott) born in 1649 was the illegitimate child of Charles II and mistress Lucy Walter he was beheaded in 1685.
2 Suspended.
3 A proclamation by James II repealing all religious tests and penal laws that discriminated against Roman Catholics which had to be read in churches.
4 Including John Churchill second in command of the Army and who was later made 1st Duke of Marlborough by Queen Anne.
5 Uniquely in the history of the English monarchy William & Mary were jointly crowned & ruled together as joint monarchs.
6 England (& Wales) and Scotland.
7 England (& Wales), Scotland and Ireland.
8 An Act of Attainder is a law that removes rank, privilege and property from those listed in it.
9 Protestant Apprentice Boys still march in Londonderry each August to commemorate the Siege of Derry when local apprentice boys closed the city's gates against King James' army.
10 Protestant Orangemen still commemorate Williams’s victory at the Battle of the Boyne each June with marches.
11 James II is one of the few monarchs since the norman conquest where the location of the body is not known, though James was buried in the church of the English Benedictines in Paris it disappeared during the French Revolution.
12 This was later amended to five years by the Septennial Act, 1716.
13 Although the United States of America’s Bill of Rights deals more with the rights of the individule.
Wednesday, April 27, 2011
The Bill of Rights 1689
The Bill of Rights 1689
1 Introduction
2 The ‘Glorious’ Revolution
3 The provisions of the Bill of Rights
4 The Constitutional Status of the Bill of Rights
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our general terms and conditions which are available 1 Introduction
The 1689 Bill of Rights does not constitute what is generally understood as a modern “bill of rights”, if by that term one means a document which defines and guarantees the basic human rights of individual citizens. Nor is it, on its own, the equivalent of a written constitution, although it can be viewed as a watershed in the development of the British constitution and especially with regard to the role of parliament. It is one of the four great historic documents which regulate the relations between the Crown and the people, the others being: the Magna Carta (as confirmed by Edward I, 1297), the Petition of Right (1627) and the Act of Settlement (1700). To this list of fundamental constitutional documents should be added the recent
The Bill of Rights was an historic statute that emerged from the “Glorious Revolution” of 1688-89, which culminated in the exile of King James II and the accession to the throne of William of Orange and Mary. Its intentions were: to depose James II for misgovernment; to determine the succession to the Throne; to curb future arbitrary behaviour of the monarch; and to guarantee parliament’s powers
Human Rights Act 1998.vis a vis the Crown, thereby establishing a constitutional monarchy. 2 The ‘Glorious’ Revolution
In 1685, following the death of Charles II, James II (of England, VII of Scotland) acceded to the throne. James II was a Roman Catholic and during his short reign, in a period in which there was widespread fear of Catholicism, he set about trying to repeal the penal laws against Catholics. This, and his requests for more money for the maintenance of his standing army, brought him into conflict with Parliament, culminating in James proroguing Parliament on 20 November 1685.
For the next two years James II pursued the appointment of Roman Catholics to various public offices amid growing unease. He also attempted to secure a Roman Catholic House of Commons. On 5 April 1687 he published a Declaration of Indulgence, which suspended all the religious penal laws and included the sentiment - “We cannot but heartily wish, as it will easily be believed, that all the people of our Dominions, were members of the Catholic Church …”. The heavy-handed use of the Royal Prerogative without parliamentary approval fuelled the growing fear among the majority of his subjects. This was brought to a head with the re-issue of the Declaration of Indulgence the following year accompanied by an instruction to Anglican clergy that it be read out to their congregations. This led to the petition from the “Seven Bishops” requesting that the order be withdrawn on the grounds that the declaration was illegal. While the bishops awaited trial in the Tower of London, a son was born to the Queen, thereby seemingly securing the Roman Catholic succession. At this point, a group of noblemen wrote to Prince William of Orange, Protestant son-in-law of James, inviting him to intervene. William landed in November 1688 and James, seeing the effect on his own standing army, was allowed to escape to France.
After the flight of James II, all those who had been members of the Parliaments of Charles II, together with the Court of Aldermen and members of the Common Council of the City of London, assembled on 26 December 1688 in the presence of Prince William. The assembly requested of William that he take charge of the administration of government and that he 2
summon a Convention Parliament
1, which met on 21 January 1688 (or 16892), was therefore irregularly convened. The Commons resolved - "That King James II having endeavoured to subvert the constitution of the kingdom by breaking the original contract between the King and people and by the advice of Jesuits and other wicked persons having violated the fundamental laws; and having withdrawn himself out of this kingdom; has abdicated the government; and that the throne is thereby vacant."
3 On 12 February a declaration was drawn up affirming the rights and liberties of the people and conferring the crown upon William and Mary, then Mary's children, and failing any heirs Princess Anne and her heirs; and failing also that, William’s heirs. Once the declaration had been accepted by William and Mary, it was published as a proclamation. The declaration was subsequently enacted with some additions in the form of the Bill of Rights 1688, and the Acts of the Convention Parliament were subsequently ratified and confirmed by the Crown and Parliament Recognition Act 1689 which also acknowledged the King and Queen. In this way the Bill of Rights was confirmed by a Parliament summoned in a constitutional manner and thereby acquired the force of a legal statute and appears as such on the statute book.
This note confines consideration to the position of the Bill of Rights in England and Wales. The Bill was passed before the Act of Union with Scotland, and Scotland has its own corresponding legislation – the Claim of Right Act 1689. As regards Northern Ireland, there are doubts on whether, or to what extent, the Bill applies there. Geoffrey Lock, in an article on the significance and application of the Bill of Rights, looks briefly at its relevance in Scotland and Northern Ireland.
4 3 The provisions of the Bill of Rights
The Bill of Rights incorporated the Declaration of Rights and consisted of:
•
a declaration by the Commons and the Lords commencing with a list of the misdeeds of James II
•
13 “articles” defining the limitations of the Crown and confirming the rights of Parliament and the individual
•
a lengthy passage confirming the accession of William and Mary to the Throne and providing for the succession on their decease
•
a short section on
non-obstante dispensations5 There is some difference of opinion as to how revolutionary the events of 1688-89 actually were and several commentators make the point that the provisions of the Bill of Rights did not represent new laws, but rather stated existing rights. Thompson wrote that, apart from determining the succession, the Bill of Rights did “little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already
1
Commons Journal 26 December 1688 2
a note on dates following the change of calendar from the old style (Julian calendar) to the new style appears in Halsbury’s Laws of England Vol 8(2) Constitutional law and human rights, 4th ed reissue, para 35, note 3 3
Commons Journal 28 January 1688 (or 1689) 4
Geoffrey Lock, “The 1688 Bill of Rights”, Political Studies XXXVII (4), Dec 1989, p 541 5
“notwithstanding” – Crown licences to do something non obstante any law to the contrary. See Jowitt’s dictionary of English Law, 2nd ed, 1977, vol 2, p 12446 posessed”
6. Geoffrey Lock, in an article on the significance of the Bill of Rights, states that the articles of the Bill of Rights were, in effect, a programme for future legislation. “It was never intended that the Articles should stand on their own as substantive law but rather that Parliament should return to these topics, elaborate on the summary texts and work them up into full-scale statutes”7. This view is based on an entry in the Commons Journal: And towards the making a more firm and perfect Settlement of the said Religion, Laws and Liberties; and for Remedy of several Defect and Inconveniences; it is proposed and advised by the said Commons, that there be provision, by new Laws, made in such manner and with such Limitations as, by the wisdom and Justice of Parliament, shall be considered and ordained in the Particulars, and to the Purposes, following …
8 Whatever the intention at the time, some of the main articles are still regarded as of considerable relevance today, particularly those affecting parliament which required that:
•
Parliament should be frequently summoned and that there should be free elections (articles 13 and 8);
•
Members and Peers should be able to speak and act freely in Parliament (article 9);
•
No armies should be raised in peacetime and no taxes levied, without the authority of parliament (articles 4 and 6);
•
Laws should not be dispensed with or suspended without the consent of parliament (articles 1 and 2).
One further article is also considered as having modern significance:
•
That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (article 10)
4 The Constitutional Status of the Bill of Rights
Because there is no single document comprising the rules of constitutional practice in the United Kingdom, it is sometimes said that the UK has an “unwritten” constitution. In fact, in the UK the fundamental rules of constitutional practice are enshrined in many individual documents: in various acts of parliament, in the common law, in judicial decisions, in parliamentary law and customs and in constitutional conventions. It is therefore more correct to say that the constitution is “uncodified”, rather than “unwritten”. One implication of the absence of a single codified constitutional document is that there are no unambiguously constitutional “higher” laws. With a written constitution it is generally easier to distinguish constitutional laws from the rest of the law, while in the UK there is no strict distinction. However, there are certain laws which are generally regarded as being “core” constitutional laws that deserve and receive particular respect and special consideration, and the 1689 Bill of Rights falls into this category. For example, the courts would generally be unwilling to accept that the provisions of such legislation have been overridden by later statutes except in very clear language.
6
Mark Thompson Constitutional History of England 1938 7
Geoffrey Lock, op cit, p 541 8
Commons Journal 7 February 1688[1689] The Bill of Rights contains an interesting sentence apparently attempting to entrench its provisions and make them immune from subsequent amendment or repeal:
All which their Majestyes are contented and pleased shall be declared enacted and established by authoritie of this present parliament and shall stand remaine and be the law of this realme forever
Consequently it is sometimes mistakenly believed that the Bill of Rights cannot be amended. This is not the case. It is a fundamental principle of British constitutional law that no parliament can bind its successors and that any statute can be repealed; this doctrine was already established by the late 17
The statement in the Bill of Rights that it shall remain the law forever cannot, then, be taken at face value. Lock expresses the view that the sentence was included “to add solemnity and weight”.
th century. The principle of parliamentary sovereignty means that the UK Parliament can enact any law whatsoever on any subject whatsoever, (although there are now considerations of compatibility with European Union law, and it is arguable that the European Communities Act of 1972 is “semi-entrenched”. For as long as the UK remains a member of European Union that Act cannot be repealed.) Furthermore, changes in rules of UK constitutional law can be effected by ordinary legislation, (unlike the situation, for example, in the United States of America, where changes can only be made by a complicated process of constitutional amendment).9 Although the greater part of the historic Bill of Rights remains on the statute book unchanged, a few sections have, in fact, been repealed or amended, as set out in Halsbury’s Laws10, eg – •
the declaration against transubstantiation, by the
Juries Act 1825 •
the declaration on accession to the throne, by the
Accession Declaration Act 1910 •
various other sections by the Statute Law Revision Acts of 1888, 1948, 1950
It is also worth noting that the line of succession laid out in the Bill of Rights was, in fact, altered just over a decade later by the Act of Settlement 1700.
The Bill of Rights is still in operation today, as recent debate on parliamentary privilege for example, has demonstrated. Article 9 protects Members’ rights of free speech in Parliament.
The text of the Bill of Rights as it now stands, bearing in mind the points above, is set out in
11 However, many of the Bill’s original articles, while never formally repealed, are generally regarded as having been superseded by subsequent legislation. Laws may be obsolete but still unrepealed. For example, the article covering the right of protestant subjects to bear arms is generally considered to fall into this category, although there have been attempts to challenge this from time to time (most recently during the passage of the Firearms (Amendment) Bill of 1996-97.12) The Bill of Rights was essentially a political settlement concerned with resolving the particular political issues of the day. The relevance of some of its provisions to the political life of today is questionable. It is generally thought that, in relation to the provisions in the Bill of Rights on the bearing of arms, for example, and to other unrepealed articles, the courts would have difficulty in trying to apply some the provisions to modern conditions, particularly given the brief and often imprecise wording used in the Bill.Halsbury’s Statutes.13. 13
Halsbury’s Statutes, 4th ed, 1995 reissue, Vol 10: Constitutional Law, pp 32-38 Author:
Lucinda Maer and Oonagh Gay
This Note sets out the historical background to the Bill of Rights 1688-89 and examines how its provisions have altered in the intervening centuries. Its role as part of the uncodified constitution of the United Kingdom is also discussed.
Contents
The 1688 Revolution
The 1688 Revolution, often referred to as the ‘Glorious Revolution of 1688’, ended the reign of James II and ushered in the reign of William III and Mary II. The 1688 Revolution came at the end of a reign when James II had made it all too clear that he wanted Roman Catholicism reinstalled as the country’s religion. The chronic dislocation of the English Civil War was remembered by many people as was the relative stability of the reign of Charles II. No one was willing to tolerate more years of uncertainty or the possibility of the country being pushed once more into military conflict.
The policies of James II had caused much discontent in both Whig and Tory parties. As a result, leading politicians took it upon themselves to send an ‘Invitation’ to William of Orange inviting the Protestant William to take the throne of the country – along with his wife Mary who was the daughter of James II and granddaughter of Charles I.
William landed at Torbay in Devon in November 1688. James fled to France
The December 1688 Bill of Rights declared that James had abdicated and that the Crown had legally passed to William and Mary and their heirs. The political unity shown in the removal of James from the throne did not last long. Dissention regarding the modus operandi of the new monarch split the previously united group.
There were those who viewed Mary alone as the legal heir to the throne as she was from Stuart blood – the daughter of James II and the granddaughter of Charles I. Despite the number of years that had passed, there were still those who held Charles in high regard as a monarch (though not as an individual). The strict legitimists wanted William named as a regent only.
William, a respected Protestant leader from Holland , would not accept this and stated bluntly that he would return to Holland
There were some Whigs, though few in number, who believed that the people of the country should have the final say in who should be monarch.
The Bill of Rights was blunt in one thing – it forbade the monarch from being a Catholic and from marrying a Catholic.
The Bill of Rights also had a major political bent to it that handed a great deal of power to Parliament. Some historians view it as the start of constitutional monarchy.
Prerogative courts such as the Ecclesiastical Commission were banned; taxation raised through anything else other than Parliament was banned; a standing army raised without Parliament’s consent was banned; the prosecution of anyone petitioning the Crown was also banned. The Bill of Rights also stated that calls for a Parliament should be frequent and that there should be Parliamentary debates free from outside interference
The March 1689 Mutiny Act gave the monarch the legal means to maintain army discipline but Parliament had to support this every six months at a time – though this was later increased to a year.
The Toleration Act (May 1689) did not introduce classic religious toleration but it did exempt Dissenters (except Catholics and Unitarians) from certain laws. To all intents the act allowed freedom of worship but not full citizenship as the Test and Corporation acts were still in force.
In December 1694, the Triennial Act ordered that no Parliament should exceed three years and that no dissolution of Parliament should be longer than three years.
In December 1698, the Civil List was introduced. This provided the Crown with money to pay for its existence - as well as financing extraordinary expenditure such as wars. As war became more and more expensive as time progressed, the Crown came to rely more and more on Parliament for its financial survival.
In June 1701, the Act of Settlement was introduced. The Bill of Rights had ensured that Anne would be the rightful heir after William and Mary – along with her heirs. The Act of Settlement wanted to clarify what would happen if Anne left no heirs, as was the case. The act stated that the Sophia of Hanover and her heirs would succeed Anne. The House of Hanover was Protestant and the act ensured that the Protestant faith would continue after Anne died.
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