BILL OF RIGHTS (ENGLISH) (December 16, 1689)

During the controversy with Great Britain, from 1763 to 1776, American editors frequently reprinted the EnglishBill of Rights, and American leaders hailed it as "the second magna carta." After the declaration of independence, Americans framing their first state constitutions drew upon the Bill of Rights; certain clauses of the national Constitution and our own bill of rights, the first ten amendments, can also be traced to the English statute of 1689. Its formal title was, "An act for declaring the rights and liberties of the subject, and settling the succession of the crown." Like Magna Carta, the petition of right, and other constitutional documents safeguarding "liberties of the subject," the Bill of Rights imposed limitations on the crown only. Indeed, the document capped the Glorious Revolution of 1688–1689 by which England hamstrung the royal prerogative and made the crown subservient to Parliament, which remained unrestrained by any constitutional document. In effect the Bill of Rights ratified parliamentary supremacy, which is the antithesis of the American concept of a bill of rights as a bill of restraints upon the government generally. Notwithstanding its inflated reputation as a precursor of the American Bill of Rights, the English bill was quite narrow in the range of its protections even against the crown. In fact it established no new principles, except, perhaps, for the provision against standing armies in time of peace without parliamentary approval. Sir William S. Holdsworth, the great historian of English law, declared, "We look in vain for any statement of constitutional principle in the Bill of Rights," a judgment that is too severe.

The Bill of Rights confirmed several old principles of major significance. No taxation without representation, which became the American formulation, here was limited to the assertion that levying money by royal prerogative "without grant of parliament" was illegal. The freedom of petition, protected by our first amendment, and indirectly the freedom of assembly go back to time immemorial, as the British say, but were here enshrined as part of the fundamental law. Article I, section 6, of the Constitution, protecting freedom of speech for members of Congress, derives from a clause in the Bill of Rights confirming a principle fought for by Parliament for a century and a half. Our Eighth Amendment follows closely the language of another provision of the Bill of Rights, which declares, "That excessive bail ought not to be required, no excessive fines imposed, nor cruel and unusual punishments inflicted." The guarantee against excessive bail made the writ of habeas corpus effective by plugging the one loophole in the habeas corpus act of 1679; the crown's judges had defeated that act's purpose by fixing steep bail that prisoners could not afford. The act of toleration of 1689 preceded the Bill of Rights by a few months and is equally part of the constitutional inheritance of the Glorious Revolution.

The foremost significance of the English Bill of Rights, so called because it began as a declaration and ended as a bill enacted into law, probably lies in the symbolism of the name, conveying far more than the document itself actually protects. As an antecedent of the American Bill of Rights of 1791, the act of 1689 is a frail affair, though it achieved its purpose of cataloguing most of the rights that the Stuarts had breached. As a symbol of fundamental law and the rule of law it was a mighty precursor of the fuller catalogues of rights developed by the American states and in the Constitution.

Leonard W. Levy
(1986)

Bibliography

Schwoerer, Lois G. 1981 The Declaration of Rights, 1689. Baltimore: Johns Hopkins University Press.