The Abuses of Power
King James II Replaced by the Prince of Orange
Assertion of Ancient Rights and Liberties
John Locke was a major contributor to the English Bill of Rights, passed in a Parliamentary Act of 1689. Other contributors in the period leading up to the Act were Henry Neville, George Savile, Algernon Sidney, and the Marquis of Halifax. The Act described the abuses of power of King James II that led to his departure, and defined the agreement between Parliament and William of Orange if he was to be king. When William and his wife Mary were crowned in 1689, they took an oath to rule according to the "statutes in Parliament agreed upon, and the laws and customs of the same." Previous coronation oaths had merely said that the new king would adhere to the laws and customs of earlier kings.
The Act containing the Bill of Rights declared that King James II by illegal actions had attempted to overturn the laws and customs of the country and to destroy the Protestant religion. For this reason, the Bill of Rights declares explicitly that specific activities are illegal, and makes clear that the king is subject to the law, and that laws are instituted by Parliament.
The Roman Catholic king had illegally set up a court of Ecclesiastical Commission with powers over the English clergy. The first exercise of that power was the suspension of Henry Compton, Bishop of London. Colleges at Oxford University were placed under Roman Catholics. College faculty were expelled because they would not elect the Roman Catholic candidate of the king for president. This was illegal without due process, and demonstrated that clergy in general were subject to summary loss of their living. The king removed Protestants from civil and military positions of power and replaced them with Catholics, packed Parliament with Catholics, and sent to trial the Protestant archbishop and six bishops for sedition. With the departure of the king, Parliament ruled that no Roman Catholic could succeed to the throne of England. Future kings would have to subscribe to the Test Act, which forbade anyone from holding office under the crown until he had accepted the Anglican sacrament and rejected the concept of transubstantiation.
Thus Locke's concept of separation of church and state did not hold at this time, although there was greater freedom of religion for non-Catholics. James II certainly convinced many of the advisability of separating church and state, but produced a backlash against his own church.
An Act Declaring the Rights and Liberties of the Subject
and Settling the Succession of the Crown
1 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 [old style date] 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.:
2 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;
3 By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;
4 By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;
5 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;
6 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;
7 By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;
8 By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;
9 By violating the freedom of election of members to serve in Parliament;
10 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;
11 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;
12 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;
13 And excessive fines have been imposed;
14 And illegal and cruel punishments inflicted;
15 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;
16 All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;
17 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 [old style date], 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;
18 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
19 That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
20 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;
21 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;
22 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;
23 That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
24 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;
25 That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
26 That election of members of Parliament ought to be free;
27 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;
28 That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
29 That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
30 That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;
31 And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.
The Avalon Project, Yale Law School, New Haven, Connecticut.