Lee Stewart

English Legal History

Fall 2007


The Declaration of Rights


The Declaration of Rights encapsulates the political aspirations and ideas of the English Revolution of 1688-89.[1] The Declaration was drafted by the Convention, an assembly created to resolve the crisis created by the flight of James II and the invasion of William of Orange.[2] The Convention met under the leadership of Sir John Somers, a Whig, and was empowered to draw up a declaration offering the crown to William and Mary. The Declaration itself rehashed the long litany of crimes committed by James II in his effort to undermine the liberties of the subject and the religion that was established by law.[3] Additionally it represented the efforts to reaffirm many traditional rights and freedoms that had been ignored or abrogated by various kings as well as establish new rights and freedoms. The Declaration was the final document created from all of the resolutions that were passed by the assembly. It was presented to William and Mary on February 13, 1689, immediately before they were proclaimed king and queen of England. These events were a symbolic end to the most critical phase of the Glorious Revolution.


The most important result of the Declaration of Rights was the subsequent passing of the Bill of Rights, which has been referred to as the epitome of the Glorious Revolution.[4] The Bill of Rights largely mirrored the Declaration of Rights, except for a few amendments. While the Convention that created the Declaration did not have the legal authority to make the articles into law, the Act of Parliament that became known as the Bill of Rights did have that legal authority.[5] Thus were fulfilled the aspirations of the Declaration’s principal opponents, who sought the revolutionary settlement and the claim of rights to be regarded as tantamount to law and had gone to considerable lengths to achieve that mission. The subsequent Bill of Rights is now considered a basic tenet of English Constitutional law, alongside such documents as the Magna Carta, the Act of Settlement, and the Parliament Acts.[6] The Bill of Rights also is part of the laws of some Commonwealth nations such as Canada and New Zealand. Several elements derived from the Declaration of Rights can be found in the Bill of Rights that amended the Constitution of the United States.


The following sections list the articles that made up the Declaration of Rights, explanations of the articles, and where applicable, the relationship between the articles, the actions of previous kings, and the charges against James II.



Article 1


That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal.


Article 2


That the pretended power of dispensing with laws or the execution of laws by regal authority as it has been assumed and exercised of late is illegal.


            Articles 1 and 2 refer to the efforts of Charles II and James II to “obtain toleration for their Catholic and Dissenting subjects by exploiting both the crown’s legal prerogatives to set aside the law and the king’s rightful position as titular head of the Anglican Church.”[7] These efforts threatened the Anglican Church, the universities, and the Tory gentry.


            The suspension of a law meant that the law or statute was temporary nullified or set aside for a time, but was not repealed. The dispensation of a law meant that a designated individual or groups of individuals were allowed to disobey the law. These powers had been used to some degree by English kings since the thirteenth century, apparently in imitation of the Pope. Further authority was given to the powers during the Reformation when English kings assumed the power previously exercised by the pope over ecclesiastical matters.


Early kings did not regularly use the suspending power but did more frequently utilize the dispensing power. The king’s use of both powers became a constitutional issue after the Reformation. In 1672 Charles II issued the Declaration of Indulgence, which suspended the penal legislation. There was fierce parliamentary opposition which led to great debate about the nature and extent of the king’s power to set aside law. While Charles later withdrew the Declaration, the issue of the king’s power to suspend and dispense laws remained.


James II used the dispensing power to give religious toleration to Catholics and Dissenters. In 1685 he set aside the Test Act and the penal laws so that Catholics could serve as officers in the standing army. These actions were received by fierce criticism. For example, “the Tory Seymour charged that to employ Catholics without imposing the Test was dispensing with the all the laws at once.”[8]


The Committee asserted that the suspending power was undoubtedly illegal and that the dispensing power, while largely popular, had been made illegal by its use “of late.” The of late part referred to the use of the dispensing power by Charles II and James II to gain religious toleration for Catholics and Dissenters. The condemnation of the powers was further strengthened by the Bill of Rights and ultimately the powers were outlawed.

Article 3


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.


            Article 3 was intended to limit the monarchy’s control over state-controlled churches and universities. James II created the Ecclesiastical Commission to act on his behalf for visiting and disciplining ecclesiastical bodies. The body was used to supervise and control the Anglican Church of England and the university system of England. The Commission was unpopular, especially among Anglican Tories, because it punished church officials and college faculty who were hostile to Catholicism, while at the same time promoting Catholics to high level positions.[9]  The creation of the Commission was one of the first signals of James’ intention to turn his back on the Anglican Tories who were the traditional supporters of the monarchy. James sought so ally himself with Whigs and Dissenters in his effort to achieve toleration.


            The Ecclesiastical Commission diminished the power of several individuals and institutions. One important individual to be injured by the Commission was Henry Compton, the Bishop of London. Compton was suspended for failing to discipline a rector who preached anti-Catholic sermons. One important institution to be injured by the Commission was Magdalen College at Oxford. At Magdalen, a person whom the college’s fellows disapproved of was installed as president, Catholics were appointed as fellows, and a number of the college’s fellows were severely punished. These actions were serious threats to the Protestant integrity of the institutions. Therefore, the Anglican Tories wanted the Commission to be made illegal in order to diminish the threats.


Article 4


That levying of money for or to the use of the crown by pretense of prerogative without grant of Parliament for longer time or in other manner than the same is or shall be granted in illegal.


            Article 4 iterated the historic claim that it was the right of English subjects to not be taxed by the king without the consent of Parliament. Chapter 12 of the Magna Carta asserted that the monarchy “could not level feudal aids without the assent of his feudal lords.” Later statutes confirmed that there could be no taxation without the consent of Parliament. James II collected collect custom and excise taxes during the first few months of his reign without the consent of Parliament.[10] However, there was some precedent for doing so and it is questionable whether the actions were illegal.[11] While it is unknown whether James II actually violated any laws by levying taxes without parliamentary consent, the commission felt that the issue needed to be addressed and therefore included it as an article in the Declaration of Rights.


Before the Bill of Rights there were exceptions to the age-old principle that people should not be taxed without their consent. For centuries, Parliament, which claimed to be the representative body of the people, officially had the power only over direct taxes such as those on land.[12] Monarchs could tax without Parliament’s permission by levying indirect taxes such as customs duties. They sometimes also engaged in “forced borrowing,” borrowing money from wealthy subjects against their will and, in some instances, refusing to return it.[13] This method of collecting money was also done without the permission of Parliament. Article 4 clearly proclaims that there should be no taxation by the king without Parliament’s consent.


Article 5


That is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.


            Article 5 asserts the right of Englishmen to petition, or formally complain, to the king without fear of prosecution. The right had been claimed since around the time of the Magna Carta but had been challenged by many kings. The article was directly responding to James’ prosecution of the Seven Bishops. James issued the Second Declaration of Indulgence in 1688 and required that it be read in Anglican churches. The Declaration was a statement of religious toleration and was not supported by the Anglican leaders.  The archbishop of Canterbury and six bishops believed that the order should be ignored. The seven Anglican leaders petitioned the king asking him to withdraw the Declaration and challenging the legality of his power to dispense with the penal laws. James then charged the bishops with seditious libel.


The bishops’ defense in the trial rested upon the right of a subject to petition the king without fear of reprisals. One lawyer asserted that it “is the right of the people…to approach His Majesty by petition,” and another declared that “the subjects have a right to petition the king…, so say all our books of law.”[14] The argument succeeded as the bishops were eventually acquitted by the court. Article 5 was written to appeal to Anglican Tories by keeping alive the memory of the trial of the Seven Bishops. This led the Tories to support Article 5 even though they were generally in favor of limiting the right to petition.


Article 6


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.


            Article 6 asserted it was illegal for the king to keep a standing army during peacetime without the consent of Parliament. While it is standard, and often considered essential, that modern countries keep standing armies even during peacetime, the practice was uncommon during the seventeenth century. At that time it was considered a threat to English liberties. The military employed were the “feudal array and the local nonprofessional militia, plus soldiers raised for the occasion and disbanded thereafter.”[15] After a minor uprising in 1661, Charles II established without parliamentary approval a small number of permanent guards answerable to and paid by him. In 1685 James II increased the size of the army following Monmouth’s Rebellion.


The king may have had the legal right to raise and maintain a standing army during peacetime without parliamentary approval due to early customs that placed the ultimate military authority with the king. However, decisions to do so were unpopular. Opposition to the practice was compounded when James violated the Test Act by giving military commands to Catholics and allowing Catholics to serve as officers.[16] This was not popular with the Anglican Tories. Together with the support of the radical Whigs, they wrote Article 6 in an effort to create a new law that made it illegal for the king to establish a standing army during peacetime without the consent of Parliament.


Article 7


That the subjects which are Protestants may have arms for their defense suitable to their condition and as allowed by law.


            Article 7 asserted the right of Protestants to bear arms for their defense. It is a direct response to the charge that James had forced the disarmament of Protestants while at the same time allowed Catholics to be armed and employed contrary to law.[17] The original draft of the article would have allowed all Protestants, regardless of economic and social status, to possess arms. However, the House of Lord insisted it be changed to limit the right to arms possession to the Protestant upper classes according to current laws.[18] Therefore, the terms “suitable to their condition” and “allowed as law” were added to the article.


            Article 7 reflected a general fear of Catholics amongst Anglican Tories. In particular it represented hostility toward the standing armies that had been formed during the reigns of Charles II and James II. These professional standing armies were primarily made up of Catholics and led to a neglect of the militia. The article was enacted in part because of the belief that placing arms in the hands of subjects would help to purify the government of corruption. Ideally protection against Catholic absolution could be achieved through the arming of the Protestant population. The passage of Article 7 allowed such arming to be legal.


Article 8


That elections of members of Parliament ought to be free.


            Article 8 asserted the right to elections free from the influence of the monarchy. The article was derived from clause 8 of the Heads of Grievances which stated that “right and freedom of electing members of the House of Commons, and the rights and privileges of Parliament, and members, as well in the intervals of Parliament as during their sitting, to be preserved.”[19]


            The right to freely elect members of Parliament without the interference of the monarchy was an ancient right. At least two statutes from the fourteenth century confirmed it. However, interference with free election was as old as the right itself. Kings used various methods to influence parliamentary elections. These methods included “appealing to the loyalty of the voters, making particular individuals ineligible for elected office by appointing them to certain government positions such as sheriff, and also by voiding actual election results.”[20]


            The Stuart kings introduced new methods of interfering with free elections that surpassed the efforts of their predecessors. Due to the commanding presence of Dissenters in many cities, Charles introduced quo warranto proceedings in order to dilute their influence. He proposed that all future corporation charters contain a clause reserving the nomination of town officers to the discretion of the king. Quo warrantos were also used to recall borough charters and reissue new ones securing its influence. Charles always worked to destroy Whig strongholds in the boroughs. James sought to continue the influence that Charles had gained for the monarchy. One of his most extreme acts occurred in 1687 when he dissolved Parliament as a part of his strategy to reform corporations. The efforts of the Stuart kings to interfere with elections ultimately led to the drafting of Article 8 which iterated the ancient right that the elections of members of Parliament should be free from influence.


Article 9


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.


            Article 9 asserted the right that there should be free speech within Parliament and that what is said within Parliament should not be used against the members in any subsequent matter, whether in court or not.  To this day the freedom of speech is claimed to be ancient and undoubted by members of Parliament and the freedom is granted by the monarchy.[21] However, prior to the passing of the Bill of Rights, freedom of speech was generally unprotected. Members of Parliament were punished for statements made in Parliament that were unfavorable to the king. Freedom of speech in Parliament was a privilege that the king granted on special occasions or to special individuals, but this was the exception and not the rule.


            There was no direct charge that James violated the right of freedom of speech in Parliament. There is no evidence that James obstructed any Parliament member’s freedoms of speech.[22] Of course James only convened two brief sessions of Parliament during his reign. While James may not have restricted free speech himself, there was evidence that other kings had done so before him. Therefore, the Convention wanted to include the language of Article 9 in order to protect speech in the future. The language of the article did however limit protection to speech made by members within the halls of Parliament. Speech made by members of Parliament while out of session was still unprotected. Additionally, there was no protection for subjects who were not members of Parliament.


 Article 10


That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.


            Article 10 was intended to create fairness in the judicial system. It sought to prohibit judges from abusing their discretionary power by issuing punishments that were outside the bounds of the law or that were disproportionate to the crime. One of the charges against James was that “excessive bail has been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects.”[23] The drafters of the article likely intended it to restrain judges from setting high bail amounts and fines that would financially cripple the subjects. While bail had a long history in England and dated back to ancient Anglo-Saxon times, it was never intended to be set so high as to prevent an individual from paying it.[24]


The clause concerning excessive punishment was likely added due to recent proceedings that resulted in excessive and therefore illegal sentences. In the 1686 trial of Titus Oates who was convicted of two counts of perjury, the punishment consisted of: 1) a fine of 2,000 marks; 2) whipping; 3) life imprisonment, 4) pillorying four times a year for the rest of his life; and 5) defrocking.[25] Similarly the Reverend Samuel Johnson was convicted for publishing two tracts that were judged to be seditious libel. His sentence was: 1) a fine of 500 marks; 2) imprisonment until the fine was paid; 3) pillorying; 4) whipping; and 5) defrocking.[26] The court exceeded its jurisdiction with the sentences of defrocking. Furthermore, the punishment of life imprisonment and whipping for the crime of perjury was without precedent and illegal. The belief that these and other punishments were disproportionate to the severity of the crimes and illegal led to the drafting of the article which reinforced ancient custom and law.

Article 11


That jurors ought to be duly impaneled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.


            Article 11 reflected Whig hostility toward the judiciary during the time of the late Stuart kings. It also represented the struggle between the Whigs and Charles and his Tory allies for control over the borough corporations. One office of particular concern was sheriff because the sheriff was responsible for appointing jurors. At one time the Whigs had considerable power in certain boroughs and could therefore ensure the appointment of favorable jurors who would help protect them against the judicial measures of the king-friendly courts. Charles sought to negate the Whig power by instigating quo warranto proceedings against borough corporations. After the quo warranto proceedings the king could be assured that juries would no longer be Whig-friendly. Therefore, both the courts and the juries would be favorable to the monarchy.


            It was generally accepted that jurors must be freeholders so that poor men would not be influenced or bribed.[27] However, it was uncertain whether jurors in high treason cases tried in cities must be freeholders. The reason for the uncertainty was that there simply were not as many freeholders in cities, especially London, as there were in the country. The issue was raised in the trial of Lord Russell and the initial holding was that “the absence of freehold in a juror could not, according to the law, be the cause of a challenge in a treason trial held in London.”[28] The requirement that jurors be freeholders was disallowed in subsequent treason trials.[29] The persistence of Whig lawyers to require the freeholder status of jurors was one reason that the clause was added to the Declaration in Article 11.

Article 12


That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void.


Article 12 referred to a form of corruption that led to widespread resentment towards the monarchy during the decades leading up to the Glorious Revolution. The corruption dealt with a practice that had developed in relation to treason cases. After a subject was convicted of treason, not only could he be hung, drawn, and quartered, but also his property could be confiscated by the king through “fines and forfeitures.”[30] The kind could then give the property as a gift to one of his courtiers, friends, or allies. It became common for kings to promise these fines and forfeitures to their friends even before the individuals were convicted of treason. The question of corruption arose when the beneficiaries of these promised rewards, who were often powerful people, allegedly tried to influence the cases and press for convictions so that they would be guaranteed to receive the property from the king. It was not disputed that the king had the right to forfeitures and fines. The question was whether he was allowed to give them to his friends and whether he could promise the gifts prior to convictions.[31] The desire to outlaw the practice led to the inclusion of Article 12 within the Declaration of Rights.


Article 13


And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently.


            Article 13 declared there was an absolute right for parliament to be held frequently in order to redress grievances and amend laws. Kings traditionally could summon and dissolve parliaments at will. However, the abuse of this power by Charles I led to the English Civil War and the temporary elimination of the monarchy. After the restoration of the monarchy by Charles II, the Triennial Act was passed requiring Parliament to be summoned at least once every three years.[32] Charles violated the act at the end of his reign when he did not summon Parliament within a three year period. James never violated the Act as he summoned Parliament twice during his reign, albeit for short sessions.


            Article 13 was important to the opposition because it would require the king to summon Parliament more regularly, even at times when he wished not to. The expectation was that Parliament should meet at least once every year. The language of the article gave greater importance to Parliament and was a large step toward the abolition of the absolutist monarchy.[33]



















Bill of Rights 1689, http://en.wikipedia.org/wiki/Bill_of_Rights_1689


Ede, Mary, Arts and Society in England under William and Mary (Stainer and Bell, 1979).


The Glorious Revolution and the English Bill of Rights, http://www.international.ucla.edu/cms/files/Revolution_English%20Bill%20of%20Rights.pdf


Holmes, Geoffery, The Making of a Great Power: Late Stuart and early Georgian Britain 1660-1722 (Pearson Education Limited, 1993).


McElligott, Jason, ed., Fear, Exclusion and Revolution (Ashgate Publishing Limited, 2006).


Pocock, J. G. A., ed., Three British Revolutions: 1641, 1688, 1776 (Princeton University Press, 1980).


Prall, Stuart E., The Bloodless Revolution (University of Wisconsin Press, 1985).


Schwoerer, Lois G., The Declaration of Rights, 1689 (Johns Hopkins University Press, 1981).


Schwoerer, Lois G., ed., The Revolution of 1688-1689: Changing Perspectives (Cambridge University Press, 1992).


Straka, Gerald M., ed., The Revolution of 1688 and the Birth of the English Political Nation (D.C. Heath and Company, 1973).


Trevelyan, G.M., The English Revolution (Oxford University Press, 1938).















Excerpts from the Declaration of Rights




Whereas the lords spiritual and temporal, and commons assembled at Westminster, lawfully, fully, freely representing all the estates of the people of this realm, did upon the thirteenth day of February, in the year of our Lord 1688, 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 II, by the assistance of diverse evil counselors, judges, and ministers employed by him, did endeavor to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom:

1. By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament.

2. By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the same assumed power.

3. 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."

4. By levying money for and to the use of the crown, by pretense of prerogative, for other time and in other manner than the same was granted by Parliament.

5. By raising and keeping a standing army within this kingdom in time of peace, without consent of Parliament, and quartering soldiers contrary to law.

6. By causing several good subjects, being Protestants, to be disarmed, at the same time when papists were both armed and employed contrary to law.

7. By violating the freedom of election of members to serve in Parliament.

8. By prosecutions in the Court of King's Bench, for matters and causes cognizable only in Parliament; and by diverse other arbitrary and illegal courses.

* * * * *

10. And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of laws made for the liberty of the subjects.

11. And excessive fines have been imposed; and illegal and cruel punishments inflicted.

12. 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 II 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 [for choosing representatives to a Parliament which might vindicate and assert the ancient rights and liberties of the nation]. . . .

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 [Parliament] 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 of them; . . . and that the oaths hereafter mentioned be taken by all persons of whom the oaths of allegiance and supremacy might be required by law. . . .

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 has, or ought to have, any jurisdiction, power, superiority, preeminence, 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 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 forever incapable to inherit, possess, or enjoy the crown and government of this realm.



Declaration of Rights




Presentation of the Declaration of Rights






[1] Lois G. Schwoerer, The Declaration of Rights, 1689.

[2] Id.

[3] Stuart E. Prall, The Bloodless Revolution (1985).

[4] Schwoerer, supra.

[5] Id.

[6] Bill of Rights, 1689, http://en.wikipedia.org/wiki/Bill_of_Rights_1689

[7] Schwoerer, supra.

[8] Id.

[9] The Glorious Revolution and the English Bill of Rights, http://www.international.ucla.edu/cms/files/Revolution_English%20Bill%20of%20Rights.pdf

[10] Schwoerer, supra.

[11] Id.

[12] The Glorious Revolution and the English Bill of Rights, http://www.international.ucla.edu/cms/files/Revolution_English%20Bill%20of%20Rights.pdf

[13] Id.

[14] Schwoerer, supra.

[15] Id.

[16] Id.

[17] The Glorious Revolution and the English Bill of Rights, http://www.international.ucla.edu/cms/files/Revolution_English%20Bill%20of%20Rights.pdf

[18] Schwoerer, supra.

[19] Id.

[20] The Glorious Revolution and the English Bill of Rights, http://www.international.ucla.edu/cms/files/Revolution_English%20Bill%20of%20Rights.pdf

[21] Schwoerer, supra.

[22] Id.

[23] Id.

[24] The Glorious Revolution and the English Bill of Rights, http://www.international.ucla.edu/cms/files/Revolution_English%20Bill%20of%20Rights.pdf

[25] Schwoerer, supra.

[26] Id.

[27] The Glorious Revolution and the English Bill of Rights, http://www.international.ucla.edu/cms/files/Revolution_English%20Bill%20of%20Rights.pdf

[28] Schwoerer, supra.

[29] Id.

[30] The Glorious Revolution and the English Bill of Rights, http://www.international.ucla.edu/cms/files/Revolution_English%20Bill%20of%20Rights.pdf

[31] Schwoerer, supra.

[32] Id.

[33] The Glorious Revolution and the English Bill of Rights, http://www.international.ucla.edu/cms/files/Revolution_English%20Bill%20of%20Rights.pdf