Bill of Rights (1689)
United Kingdom [gb]
- Bill of Rights (1689) — Equality regardless of country of origin — Equality regardless of nationality — Status
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. The Bill of Rights of 1689 is widely regarded as the epitome of the ‘Glorious Revolution’ (Schwoerer 267) which constituted a decisive stage in the constitutional struggles concerning the respective roles and powers of the monarch and of Parliament in seventeenth century England. These struggles were driven by competing views on the nature and the locus of legitimate governmental authority, with royalists defending the concept of divine right of kings, which claimed that God had conferred governmental powers directly on the king alone; while parliamentarians adhered to the view that powers were conferred on the community as a whole, which was then represented by the king, House of Lords (‘Lords’), and House of Commons (‘Commons’) working together (Goldsworthy 78; Dickinson 191). These differing theories provided the background for the constitutional crisis which unfolded in seventeenth-century England and which ushered in a period of unprecedented military conflict and constitutional experimentation, leading to the (temporary) abolition of monarchy with the execution of Charles I and the establishment of England’s first—and only—written constitution, Cromwell’s ‘Instrument of Government’ of 1653 (codified / uncodified constitutions). While the restoration of the monarchy in 1660 seemed to mark the return to political and constitutional stability, the perceived absolutist tendencies of King James II after his accession to the throne in 1685 met with growing resistance in Parliament, the Anglican Church, and the population at large (Pincus 181). In response to this opposition, James II in December 1688 fled to France and was replaced by his daughter Mary and her husband, William of Orange. These events, which became known as the ‘Glorious Revolution’, effectively put an end to all attempts to reframe monarchical government in England in line with the absolutist model practised in continental Europe, above all in France, and lastingly transformed the kingdom into a parliamentary monarchy based on the principle of sovereignty of Parliament (parliamentary sovereignty).
B. Drafting of the Declaration and the Bill of Rights
2. Following the departure of James, a meeting of peers agreed to ask William of Orange to take over the provisional government of the kingdom and make arrangements to hold parliamentary elections which took place in early 1689. As only the king could lawfully call a parliament, the new revolutionary assembly was called ‘Convention’. Its main task was to settle the crisis caused by the flight of King James II and the invasion of Prince William of Orange. The key issue facing the Convention of Lords and Commons which met on 22 January 1689 to determine the future of the Crown was whether the throne was ‘vacant’. A split soon emerged, between the Commons, dominated by Whigs who regarded the throne as vacant and therefore in the gift of the Convention Parliament, and the Lords, with their Tory majority who were reluctant to accept the vacancy of the throne because such vacancy was in serious contravention of the principle of hereditary right which they wished to preserve. However, as William made it clear that he would rule neither as a regent nor as a consort of his wife Mary, James’ daughter, the Lords eventually voted with the Commons that the throne was vacant and agreed to offer it jointly to William and Mary.
3. But the Convention did not limit its deliberations to the issue of future possession of the Crown. Remembering the failure of the 1660 Convention to secure constitutional guarantees for English liberties, the Commons on 29 January decided to act on a motion to resolve, before filling the throne, what powers to give to the king, and set up a committee to formulate a list of the rights of Parliament and of the subjects which William and Mary were to agree to before they accepted the throne (Frankle 266). The list, reported to the whole House of Commons on 2 February, contained 23 ‘heads of grievances’, to which five more were added by members in debate. The draft embodied a comprehensive programme of reform, providing among other things for a removal of the king’s power to call and dissolve Parliament at will, the tenure of judges ‘during good behavio[u]r’ (instead of ‘at the pleasure of the king’), the payment of a salary out of public revenue to judges (instead of fees), the abolition of the king’s power to suspend and dispense the laws, reform of the militia laws, and reform of abuses in the appointment of sheriffs and in the execution of their office.
4. This reform programme was approved by the full House of Commons on 2 February but only two days later, the Commons instructed the committee to divide the list into two parts, one part containing articles re-affirming allegedly ancient rights and the other comprising articles that required new legislation (Schwoerer 23). This move seems to have been motivated by the Whigs’ concern that the undefined mixture of old liberties and new laws in the first draft might cast doubt on the validity of those rights which for the past ten years they had been claiming were legally theirs (Frankle 269). The committee prepared the new draft on 7 February. It concentrated on reorganizing the document into the provisions asserting undoubted rights and privileges, and those which proposed new laws for the remedy of several defects and inconveniences. But both sections were still joined together in one single document, to which the Commons added a further provision designed to bar any Roman Catholic from occupying the throne (Frankle 269).
5. However, in the meantime the Commons had appointed a committee to draw up amendments to the Lords’ vote naming William and Mary king and queen. Among the amendments, the Commons was to consider was one incorporating the heads of grievances into the Lords’ resolution. The committee recommended that only the part of the document dealing with the already existing rights be incorporated into the resolution, while the entire section calling for new legislation be discarded (Frankle 269). Despite some acid criticism in the full House of Commons, the recommendation was adopted on 8 February. The resulting third draft was sent to the Lords and amended there and in conference meetings with the Commons. From the original 28 heads of grievances only eleven clauses, some in amended form, survived in the 13 articles of the Declaration of Rights (‘Declaration’) which was presented to William and Mary when they were crowned king and queen on 13 February (Schwoerer 24).
6. Scholarly opinion is divided on the issue whether the Declaration was presented to them as a condition which they had to accept before receiving the Crown, or whether it was merely read to them as a reminder of the limitations of their newly acquired powers (Schwoerer 6). No formal assent to the Declaration’s provision was either requested or received (Frankle 270), but William did deliver an acceptance speech in which he declared his willingness to abide by the arrangements set out in the Declaration (Schwoerer 282).
7. The campaign to vest the Declaration with unquestionable legal authority through its legislative enactment started almost immediately. On 5 March it was resolved in the Commons that a bill should be prepared to enact the Declaration and prevent a Roman Catholic from succeeding to the throne. By then, the authority of the Convention Parliament to make law had been settled, since the Convention had regularized its status by declaring itself a legal parliament in a bill signed by William two weeks earlier (Schwoerer 267). The Bill of Rights, as the legislation would become known, did not enjoy a rapid and smooth passage, as many pressing foreign and domestic problems called for the attention of the Convention Parliament, the rivalry between Tories and Whigs intensified, and William started to have second thoughts on the enactment of the Declaration. Despite these obstacles, the Declaration was finally given statutory form as the Bill of Rights and signed into law by King William III on 16 December 1689 with only three major changes. These changes consisted in the addition of a preamble and other connecting material, provisions designed to secure the Crown to a Protestant line, and an amendment on the royal dispensing power.
C. Contents of the Bill of Rights
8. The wording of the preamble of the Bill of Rights asserts the legality of the Convention and suggests that the two Houses of Parliament, without the king, fully represented the entirety of the English people: ‘[w]hereas the [L]ords spirituall and temporall and [C]ommons assembled at Westminster lawfully fully and freely representing all estates of the people’. It implied the view that at the moment of the revolutionary settlement the sovereign power rested with the Convention Parliament (Schwoerer 28).
9. The following section sets out the case against ‘the late King James the Second’ who is accused, in 13 particulars, to have endeavoured ‘to subvert and extirpate the Protestant religion and the laws and liberties of this [k]ingdom’. By using the term ‘endeavour’ the text suggests that James’ blatantly unlawful actions (‘all which are utterly and directly contrary to the knowne laws and statutes and freedom of the realme’) had not succeeded in dissolving the government of the kingdom and returning the nation to a state of nature. Instead, as the Convention Parliament saw it, James had ‘abdicated the government’ of the kingdom by his flight abroad, creating a vacancy in the throne which could be filled by ‘his Hignesse Prince of Orange’, who ‘by the advice of the [L]ords spiritual and temporall and diverse principall persons of the [C]ommons’ set in motion the process of selecting the members of the Convention so that they could provide for ‘such an establishment as that their religion lawes and liberties might not again be in danger of being subverted’.
10. This Parliamentarian interpretation of the events surrounding William’s invasion and James’ flight to the continent is then followed by an assertion, in 13 particulars, of what were said to be ‘auntient rights and liberties’ of the nation that have to be respected in order to restore lawful government. A closer look at this section shows that the 13 grievances levelled at James II were turned around and claimed as the rights of the nation, with the addition of two rights which did not feature in the list of grievances: the claim of freedom of speech in Parliament, and the request that Parliament ought to meet frequently. The ‘auntient rights and liberties’ include rights of Parliament as well as rights of the individual. The former essentially deny the king the power to act unilaterally, ie without the consent of Parliament, in the key areas of legislation (by suspending of or dispensing with laws), external and domestic security (by raising or keeping a standing army), and finance (by levying money by virtue of the royal prerogative without grant of Parliament). The key guarantee of freedom of speech is also limited to the members of Parliament and secures the special status of Parliament as sovereign body by providing in unambiguous terms that such speech ‘ought not be impeached or questioned in any court or place out of Parlyament’. The same observation applies to the guarantee that Parliaments ought to be held frequently. Rights of the individual, on the other hand, are to be found in the provisions on free parliamentary elections (‘[t]hat election of members of Parlyament ought to be free’), the qualified right of Protestant subjects to bear arms (‘suitable to their conditions and as allowed by law’), and the guarantees concerning the different aspects of a right to a fair trial (prohibition of excessive bail or fines and of ‘cruell and unusuall’ punishment, impartiality of juries, ban on promises of fines[,] and forfeitures before conviction).
11. The Bill of Rights gives particular emphasis to these rights by adding that the Lords and Commons ‘doe claime demand and insist upon all and singular the premises as their undoubted rights and liberties’. It notes the encouragement they have received in doing so ‘by declaration of his Highnesse the Prince of Orange as being the only meanes for obtaining a full redresse and remedy therein’. It is on the basis of this encouragement that the Lords and Commons have ‘intire confidence’ that the Prince of Orange will ‘preserve them from the violation of their rights which they have here asserted and from all other attempts on their religion rights and liberties’ and therefore resolve to declare William and Mary Prince and Princess of Orange ‘King and Queene of England France and Ireland and the dominions thereunto belonging’. It also states that only William shall effectively exercise the royal power in the name both of himself and his royal consort, and attempts to secure a Protestant succession by stipulating that the Crown after their death shall pass to the progeny of Mary and, in case she dies childless, to her sister Princess Anne of Denmark and her children; in the absence of such progeny, the heirs of William shall inherit the Crown. In this respect, however, the Bill of Rights did not succeed. The crucial issue of succession was only settled permanently in the Act of Settlement eleven years later, which provided that in case both William and Anne died childless (Mary already having died in the meantime) the Crown would pass to the progeny of James I’s daughter, Elizabeth, namely the electress Sophia of Hannover and her heirs, who would however be disqualified from the succession if they converted to Catholicism or married a Catholic.
D. Evolution and Impact
12. If the significance of the Bill of Rights is measured in terms of endurance and resilience of the constitutional settlement it embodies, then the Bill of Rights 1689 is without equal in modern history. Caught between more radical demands for popular sovereignty and the threat of the restoration of Stuart absolutism, Whigs and Tories settled for a compromise that maintained overall stability while safeguarding their essential interests: sovereignty became the ‘king-in-Parliament’ (Teschke 252). The constitutional settlement established in the Glorious Revolution proved flexible enough to accommodate the huge economic, social, and political change which has taken place since the eighteenth century, and to sustain the vast democratic superstructure which the nineteenth and twentieth centuries have raised upon its foundations (Trevelyan 9), thus avoiding the need for any radical break or revolutionary constitutional change which almost all other countries experienced, sometimes repeatedly, in the modern era:
with the Declaration of Rights and Bill of Rights at the cent[re] of the constitutional and legal settlement, the [Glorious] Revolution of 1688–89 is properly viewed as a real revolution that restored certain rights that had been assaulted by the Stuarts and, in resolving certain long-term controversies, created a new kingship. The events of the revolution and the terms of the Bill of Rights destroyed the essential ingredients of the ancient regime: the theory of divine-right monarchy, the idea of direct hereditary succession, the prerogatives of the [k]ing over law, the military, taxation, and judicial procedures that were to the detriment of the individual. Seen in a broad perspective, then, the [Glorious] Revolution of 1688–89 and the Bill of Rights mark a watershed in the political and constitutional history of England and West Europe. It is the greatest, in the sense of being the most effective, of the revolutions that occurred in early modern European history (Schwoerer 291).
13. To this day, the Bill of Rights constitutes one, and quite arguably the central part of Britain’s patchwork constitution (see eg R (on the application of HS2 Action Alliance Limited) v Secretary of State for Transport (2014) (UK)). Article 9 which prohibits the impeachment or questioning of parliamentary debates and proceedings in any court or place outside of Parliament has frequently arisen in important constitutional litigation in modern times (Pepper v Hart (1992) (UK)), not only in the UK, but also in countries which have inherited the ‘Westminster system’ (Prebble v Television New Zealand Ltd (1994) (Privy Council)) (see also immunity of legislative body members). As the first constitutional document defining basic features of parliamentary government, the Bill of Rights also had an impact on those constitutional systems which, at some point or another in the nineteenth or twentieth century, introduced their own version of parliamentary monarchy. Finally, the Bill of Rights has been of relevance to the evolution of fundamental rights doctrine, especially with regard to fair trial rights (see right to a fair trial in civil law cases; right to a fair trial in criminal law cases; right to a fair trial in administrative law cases). Article 8 of the Bill of Rights in the Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992) (US) (‘[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted’) was drawn directly from Article 10 of the 1689 Bill of Rights (Schwoerer 290), and a similar observation can be made with regard to fair trial rights in other common law jurisdictions, and beyond.
14. Outside the Anglo-American world, the Bill of Rights as a constitutional document has had much less of a direct impact. Drafted in the technical and pedantic language of English common law, it held little appeal to lawyers outside this tradition. As a source of inspiration, it exercised greater influence, starting with Montesquieu’s famous treatise ‘[d]e l’esprit des lois’ which interpreted the English constitution as the contemporary model of a mixed constitution, combining a hereditary monarchy with elements of aristocratic and republican government, incorporating the virtues of all of these forms but at the same time neutralizing their respective vices through mutual control. The principle derived from the whole of the Bill of Rights, that in England sovereignty is vested not in the king alone, but in the king in Parliament—which represents the nobility as well as commoners—could be seen as a shorthand for this ideal of a ‘mixed’ constitution. When in the nineteenth century European countries started to move towards the establishment of constitutional monarchies, the English constitution as reflected partially in the Bill of Rights, was often seen as a model to be emulated as far as possible by means of a written constitution (eg Norway in 1814, Belgium in 1831, Piedmont-Sardinia in 1848).
15. By contrast, the Bill of Rights offered little to the growing number of constitutional theorists and politicians who saw in the principle of popular sovereignty, as expounded by Rousseau and others, the only acceptable basis for a legitimate government. They looked instead to the US Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen (1789), couched in a language—the universalist language of the Age of Enlightenment—which seemed to make its principles applicable and relevant to all peoples of all ages, regardless of national frontiers, contexts, and traditions. At the same time, the conservative Whig interpretation of the Glorious Revolution—and by implication of the Bill of Rights—had, in response to the perceived excesses of the French Revolution, started to downplay the ‘revolutionary’ aspects of what had happened in England one century earlier, and to emphasize that the events of 1688–89, although important, had by no means constituted a watershed in English constitutional history, which was on the contrary characterized by organic evolution and growth rather than by revolutionary transformation. This interpretation also influenced the view of the results of the Glorious Revolution as fixed by the Bill of Rights and the Act of Settlement, which from this perspective appeared as peculiar to the conservative English spirit—as a document, in short, which had dropped any notion of comprehensive constitutional reform, let alone radical or revolutionary change, for the sake of political compromise in order to restore political stability and end the interregnum which had opened following James’ flight to the continent (Frankle 266). In particular, the supporters of a conservative reading of the Bill of Rights pointed out that the Declaration and the Bill of Rights had left untouched most of the personal powers of the monarchy, being far less radical than the measures which had been taken four decades earlier following the execution of Charles I, with the abolition of the monarchy and the House of Lords, and the establishment of the Commonwealth under the Lord Protector Oliver Cromwell (Stone 64). Their interpretation was bound to further reduce the appeal of the constitutional model embodied in the 1688 settlement to all those who—inside and outside Britain, then and later on—favoured a form of government based unambiguously on popular, not monarchical, sovereignty. In Britain itself, it is only with the Brexit debate that constitutional practice has fully caught up with the secular movement towards undivided popular sovereignty as the basis of democratic government, with members of both Houses of Parliament acting on their openly expressed understanding that they should use their legislative powers in a way so as not to obstruct, but to give effect to, the preference expressed by the people in a legally non-binding referendum (direct democracy), even if they personally believe this course to be detrimental to British interests. With this development, the essence of the Bill of Rights concerning the role of Parliament as the ultimate decision-maker, notwithstanding its reaffirmation by the courts as the paramount constitutional principle in Brexit litigation (see eg R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) (2017) (UK)), may finally have ceased, in Bagehot’s famous distinction, to function as a fully efficient part of the British Constitution and have become one of its dignified parts instead.
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