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

1 © Andrew Munchmore 2008 No part of this

work may be used for commercial purposes but may be used for non-profit educational

purposes only.

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. It is one of the fundamental documents of English

constitutional law, and marks a fundamental milestone in the progression of English

society from a nation of subjects under the plenary authority of a monarch to a nation of

free citizens with inalienable rights. This process was a gradual evolution beginning with

the Magna Charta in 1215 and advancing intermittently as subsequent monarchs were

compelled to recognize limitations on their power.

The establishment of the English Bill of Rights was precipitated by repeated

abuses of power by King James II during his reign from 1685 to 1689. Among these

abuses, he suspended acts of Parliament, collected taxes not authorized by law, and

undermined the independence of the judiciary and the universities. He interfered in the

outcome of elections and trials and refused to be bound by duly enacted laws.

Furthermore, he attempted to impose Catholicism on a staunchly Protestant nation

through the persecution of Protestant dissenters and the replacement of Anglican officials

who refused to acquiesce in his illegal acts.

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. 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



purposes only.

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 and the Writ of Habeas Corpus.

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.



purposes only.

Items 1 and 2 under the enumeration of rights provide that no king may suspend

or dispense with laws or the execution of laws by regal authority without the consent of

Parliament. This was a response to King James’ efforts to suspend Habeas Corpus and

the Test Act.

These items are mirrored in the U.S. Constitution’s clause requiring the president

to faithfully execute the laws. The president’s duty to faithfully execute the laws under

the U.S. Constitution is effectively equivalent to the prohibition against suspension of the

laws under the English Bill of Rights. The president is not permitted to refrain from

executing the laws as duly enacted by congress and interpreted by the judiciary. This

duty was recently used to compel the Environmental Protection Agency to regulate

greenhouse gas emissions as required by the Clean Air Act. It has also led to recent

controversy surrounding President Bush’s extensive use of signing statements, which

purport to interpret acts which he is signing into law and potentially limit their

application.

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, 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.



purposes only.

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. This injunction was not always observed in the following centuries, but by the

time of the Tudor monarchs Parliament had begun to approach its modern form, and it

was customary to seek their approval before raising new taxes.

Similarly, the power of the purse is relegated to Congress under the U.S.

Constitution. Article I, which establishes the powers of Congress, provides that “All bills

for raising revenue shall originate in the House of Representatives; but the Senate may

propose or concur with amendments as on other Bills.” No taxes may be effected by

executive decree, and the spending power can frequently be leveraged with reference to

other policy decisions. For instance, although the president is commander in chief of the

military, he must rely on Congress to fund military expeditions.

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.

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



purposes only.

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. 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. 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. 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, 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



purposes only.

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.

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, 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.

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



purposes only.

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. Furthermore, James II had used

unspeakable horrors to frighten his subjects into blind obedience to his commands. The

most famous example of this was the Bloody Assizes following the rebellion of Lord

Monmouth in 1685, in which hundreds of British subjects were tried and put to death for

treason in a matter of days. The trials were summary and the punishments cruel, with

many of the victims hung, drawn and quartered or subjected to other unspeakable

cruelties.

The equivalent provision in the United States Bill of Rights provides that copies

the wording from the English Bill of Rights verbatim. Although it does not require bail

to be set for all crimes, when it is it must excessive in light of the perceived evil. The

Supreme Court has declared many methods of capital punishment to constitute cruel an

unusual punishment including drawing and quartering, burning alive, and disemboweling,

and may soon review the constitutionality of the most common form of lethal injection.

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.

The closest corollaries to this article in the U.S. Constitution are the 5th

Amendment and the 6th

Amendment. The 6th

Amendment in particular spells with



purposes only.

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



purposes only.

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



purposes only.

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 Will. & Mar. sess. 2 c. 2

Kind Henry I had previously recognized legal limitations on regal power in 1100

with the Charter of Liberties, but this document primarily concerned the

prerogatives of the nobility and church officials.

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

Clause 39 of the 1215 version of the Magna Charta reads, “No freeman shall be taken, or imprisoned, or

disseized, or outlawed, or exiled, or in any way harmed--nor will we go upon or send upon him--save by

the lawful judgment of his peers or by the law of the land.”



purposes only.

The Writ of Habeas Corpus traces back at least as far as the Magna Charta and was ultimately codified in

the Habeas Corpus act of 1679. Although it is not directly mentioned in the Magna Charta, it is deemed to

be incorporated through more oblique references.

Art. II Sec. 3 of the U.S. Constitution provides that the president “shall take care

that the laws be faithfully executed”

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

Massachusetts v. E.P.A., 127 S.Ct. 1438

Charles de Secondat, baron de Montesquieu, De l'esprit des lois (The Spirit of

the Laws), 1748

Clause 12 of the 1215 version of the Magna Charta

U.S. Constitution Art. I Sec. 7

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

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

Amendment III to the U.S. Constitution provides: “No Soldier shall, in time of

peace be quartered in any house, without the consent of the Owner, nor in time

of war, but in a manner to be prescribed by law.”

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

1320

18 U.S.C. § 921

2 U.S.C § 1431 et seq.

Amendment I to the United States Constitution: “Congress shall make no law…

abridging the freedom of speech.”

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

Id at 144.

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

U.S. Constitution Amend. VIII

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

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

See James Bent, The Bloody Assizes, (1890)



purposes only.

Which states in part: “No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a grand jury”

Which provides: “In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the state and district wherein the

crime shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the assistance of

counsel for his defense.”

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

Documents

Transcript of The English Bill of Rights and Its Influence on the United States Constitution by Andrew Muchmore