English Tradition of Civil Liberties
The Bill of Rights in the U.S. Constitution, which has been critical in defining the civil liberties enjoyed by Americans, reflects the influence of political struggles that occurred in seventeenth-century England. Indeed, the roots of American liberty lie in the constitutional conflicts that pitted Parliament against the English monarch and defenders of England’s ‘‘ancient liberties’’ against attempts by the Stuart kings to exercise unlimited executive power. The gradual resolution of this conflict, often referred to as the English Revolution, established a tradition of constitutionally limited government based on custom, the common law, and a series of momentous written declarations, including the Petition of Right (1628), the Agreement of the People (1647), and the Bill of Rights (1689), each of which will be discussed below.
In the Middle Ages, liberty was understood to consist of exclusive privileges and immunities claimed by corporate bodies such as guilds or the clergy, rather than rights that were universal because they belonged to all members of society. Such liberty could be claimed by individuals only as members of those organizations. Thus, freedom was more a matter of social status than a quality inherent in individuals per se, and was exclusive rather than inclusive because it depended on the possession of property or special status in society. However, the events of the English Revolution—which began to germinate early in the reign of Charles I (1625–1649), deepened during the period of the personal rule (when Charles ruled for eleven years without calling a single Parliament), exploded into Civil War during the 1640s, and was finally concluded in the Glorious Rebellion of 1689— led the English to rethink and expand their understanding of the meaning of liberty. Although these struggles produced a less expansive understanding of civil liberties than Americans were to embrace at the writing of their constitution a century later, they did lay a foundation on which the American understanding of civil liberty could evolve.
Freedom in the English Revolution
As the term is being used in this article, the English Revolution was a long, drawn-out affair, provoked by the efforts of the Stuart monarchs to impose absolute rule. Based on their belief that all political authority flowed from the Crown, the Stuarts conducted themselves in ways that deeply offended members of Parliament. The Stuart doctrine of ‘‘royal absolutism,’’ which was defended in well-known works of the period, such as Sir Robert Filmer’s Patriarcha, theorized that all privileges enjoyed by Parliament were grants from the king rather than inherent rights. Armed with this theory, the early Stuart monarchs, James I (1603– 1625) and his son, Charles I, frequently exercised governing powers without the cooperation or consent of Parliament. This assertion of royal power led Parliament to engage in an equally vigorous search to define its own privileges. What was Parliament’s legitimate role in government? In the search for answers to this question, Parliament pushed forward a discussion not only of its own liberties but indeed a nearly century-long debate over the rights of the English people. In their absolutist zeal, the Stuarts tried to restrict Parliament’s role when it was sitting and often resorted to ruling without Parliament altogether. This policy reached its zenith in 1629 when Charles I initiated eleven years of rule without calling Parliament into session. This period, known as the ‘‘personal rule’’ period, led to civil war in the 1640s. The Civil War (1642–1649), which ended with the execution of Charles I, brought into focus the civil liberty issues that would be a continuing source of tension until they were resolved in the Glorious Rebellion (1689).
What were those issues? Perhaps the most fundamental issue dividing king and Parliament was the issue of taxation. The Stuarts sought to use the prerogative power to impose taxes without parliamentary approval. This policy led to notoriously unpopular forms of royal revenue such as ‘‘forced loans,’’ which were based on a theory of the king’s right to seize his subjects’ property for public purposes at his discretion. Members of Parliament spoke out strongly against this breach of their property rights. To blunt such criticism, the Stuarts resorted to arresting individual members of Parliament (MPs), which was seen as an attack on the MPs’ right of free speech. They also utilized the Star Chamber, a juryless court whose members served at the pleasure of the king, to send offending MPs to prison or impose severe penalties on them for acts of political opposition. To quell spreading protests against this abuse of power, the monarchy imposed heavy censorship on an emerging opposition press. All published materials were subject to strict censorship by the Archbishop of Canterbury, and severe punishments, including mutilations and death sentences, could be imposed for violators.
Direct censorship of the press was reinforced by the doctrine of seditious libel, which treated criticisms of the government or individual office holders as a crime because it was thought to undermine respect for public authority. The Star Chamber helped to establish this doctrine in the 1606 case De Libellis Famosis, but it was subsequently incorporated into the common law and the English government continued to draw upon it to punish dissent long after abolition of the Star Chamber in 1641. Following the Glorious Rebellion, Parliament would finally end formal press censorship in 1695, but the law of seditious libel persisted and served as a tool to restrain criticism of the government. Libel cases were to be heard by juries after adoption of Fox’s Libel Act of 1692, but in eighteenth-century England and colonial America alike, juries typically upheld government prosecutions for seditious libel.
In sum, during the reign of the early Stuart monarchs a momentous struggle developed over the competing claims of royal prerogative and parliamentary privilege. This struggle put issues of basic rights of property, free speech and press, and trial by jury on the agenda of English national politics.
Seventeenth-Century Milestones in the Development of English Liberties
One of the most important milestones in the evolution of English liberty was the Petition of Right put forward by Parliament and signed in 1628 by King Charles I. The petition sought to formalize Parliament’s claim that the king could not impose taxes without its consent. Under the leadership of Sir Edward Coke, the era’s most distinguished jurist and defender of the common law, Parliament asserted that its role in raising taxes could be traced back to the Magna Carta and was an inviolable element of the ‘‘ancient constitution.’’ The first step toward the petition was a ‘‘protestation’’ by Parliament in 1621, which asserted MPs’ right of free speech. King James famously repudiated this claim by tearing out the page where it appeared in the Commons Journal, and Sir Edward Coke was sent to prison for eight months for his advocacy of the right. Because both James and Charles ignored the protestation, Parliament resorted to the Petition of Right. The petition asserted that citizens could not be forced to loan money to the king or be imprisoned for not doing so, thereby highlighting the importance of the right of habeas corpus as an essential protection of the individual against the arbitrary exercise of power. Parliament enacted the Petition of Right as a statute in order that it would be treated as law by the king, but to no avail. When Charles I dismissed the 1628 Parliament and entered on the personal rule period, he proceeded to violate freely the principles articulated in the petition. Even though the Petition of Right did not succeed in limiting absolutist power in the short run, however, it affirmed principles of constitutional liberty that would remain on the political agenda until they eventually were enshrined in law and practice.
The personal rule foundered in the late 1630s due to the king’s inability to raise sufficient revenue without Parliament’s collaboration. Charles’s need for money led to the famous Long Parliament, which convened in November 1640. Determined to restore constitutional rule and protect parliamentary liberties, MPs passed the Triennial Act, which called for regular sittings of Parliament. They abolished the Star Chamber and other prerogative courts, thereby laying a foundation for a more independent judiciary. In declaring forced loans illegal, they affirmed the sanctity of property rights. But the Long Parliament was unable to reconcile with King Charles, and England plunged into civil war in 1642, a war that finally ended with the king’s execution for treason in January 1649. During the Civil War, the discussion of English liberties spread beyond the traditional political elite and produced a second milestone in English thinking about civil liberty.
The decisive factor in Parliament’s victory in the Civil War, Oliver Cromwell’s New Model Army, facilitated the rise of the Levellers, a popular movement for the extension of civil liberties. The Levellers put forward ideas that became staples of the written constitutions and bills of rights that were adopted in America. Reformers who lacked the status of gentlemen, the Levellers professed to speak for the common people of England. They opposed not only the tyranny of the king but also the potential for tyranny by Parliament. The Levellers made common cause with the Agitators (regimental leaders in the New Model Army who shared their views) to put forward claims for the individual rights that belonged equally to all Englishmen. These ideas were innovative and anticipated the modern conception of rights because they were based on the presumption of human rationality rather than on precedent. In this respect, they anticipated the famous doctrines of John Locke’s Two Treatises of Government, which was published four decades later.
Leveller ideas were advanced in an Agreement of the People, which has been regarded as the first written constitution in modern history. It proposed limiting both royal and parliamentary power through a written charter that would derive its authority directly from the people. The Levellers contended that Parliament should not exercise a judicial function, thereby contributing to the notion of separation of powers that subsequently figured so prominently in the American conception of limited government. They attacked the use of bills of attainder, which were used by Parliament as well as the king to punish individuals legislatively. They expressed a demand for freedom of speech, not just for MPs but for all Englishmen. In an age when persons were drawn and quartered or even hanged for dissident religious views, they advocated freedom of conscience in matters of religion and for general suffrage of all men, a goal that was not to be fulfilled in English history for two more centuries. In essence, the Levellers contended that Parliament was the trustee of the people, which implied that its authority was limited by inherent rights that were beyond the reach of government. Although Leveller aspirations were far ahead of their times, some of their goals were achieved in a more modest, but nonetheless decisive fashion during the Glorious Rebellion in 1689, which produced the historic Bill of Rights.
Although Charles I was executed in 1649 and the monarchy abolished temporarily, experiments with republican government during the 1650s failed, and when the English monarchy was restored in 1660 the limits of royal power were still unresolved. During the reign of Charles II, this question again became politically explosive over the prospect that his successor, James II (1685–1688), might restore a Catholic dynasty to the English throne. To enforce his pro-Catholic policies, James (a professing Catholic) turned to the prerogative power just as his father, Charles I, had done. He dissolved Parliament and threatened his dissenting subjects with a standing army. This turn back toward absolutism led a rebellious Parliament to invite the Protestant Dutch prince, William of Orange, and his wife Mary (daughter of James II) to accept the Crown of England under conditions specified by Parliament. When Prince William’s army forced James’s abdication, the Glorious Rebellion finally defeated the absolutist tendencies of the English monarchs and brought the king under the law. The Rebellion’s most famous achievement, the Bill of Rights adopted in December 1689, was a third milestone in the development of English liberty.
The English Bill of Rights does not contain guarantees of free speech rights for individuals. Such guarantees first appeared a century later in the setting of the American and French revolutions. It did, however, guarantee the right of free speech to MPs during parliamentary debates. What had been considered at the beginning of the century a privilege granted by the king now became a right that the king could not deny. In this sense, the Bill of Rights vindicated the claim made by Sir Edward Coke some sixty years earlier that the liberty of the English people depended on the liberty of Parliament. On that basis, the high priority given to parliamentary rights made sense. Leaders of the Glorious Rebellion did not consider that Parliament itself could threaten the civil liberties of the citizens. Later generations seem to have agreed. The English people accepted the doctrine of parliamentary sovereignty established by the Glorious Rebellion, and Britain did not develop a system of separate powers with checks and balances, or a system of judicial review. In this latter regard, however, the Glorious Rebellion did open the way to a more independent judiciary by limiting the Crown’s power to appoint and dismiss judges at will. The 1701 Act of Settlement consolidated the principle of judicial independence by providing for lifetime appointment of judges. The Bill of Rights also stipulated that any attempt to impose taxes without the authorization of Parliament was illegal. Subsequently, no English monarch has attempted to override this provision, and in the eighteenth century legislative supremacy in this matter became accepted practice in the colonial assemblies in America.
During the Civil War, English parliamentarians had come to appreciate the importance of a right to bear arms and the danger of standing armies, a danger that the excesses of James II had reinforced. Hence, the Bill of Rights specifies that all Protestant Englishmen could retain arms for their own defense, as provided by law. However, we should note that the Bill of Rights actually preserved discrimination against Roman Catholics and it explicitly prohibited any Roman Catholic from occupying the English throne. In this respect it fell well short of the aspirations for religious freedom and tolerance advocated by the Levellers forty years earlier. Englishmen had also developed a strong aversion to the forced quartering of soldiers, which they saw as an invasion of their liberty. Thus, the Bill of Rights includes a prohibition against a standing army in peacetime, except by consent of Parliament.
Finally, although the Bill of Rights was not written from the point of view of individual rights of citizens, it did provide certain critical legal protections to persons accused of crimes. Let us bear in mind that it was a common practice of Stuart monarchs to imprison their subjects without trial or Bail and to use courts such as the Star Chamber to inflict cruel punishments on political adversaries. With these abuses in mind, the authors of the English Bill of Rights included provisions that anticipated the concern in the American Bill of Rights with due process of law. These provisions included a prohibition against excessive Bail, the repudiation of cruel and unusual punishment, and the right to a jury trial.
Civil Liberties in Colonial America
It is somewhat paradoxical that, despite their attacks on civil liberties in England, the Stuart monarchs adopted more forward-looking policies in the American colonies, especially with regard to religious freedom. Because most Colonial Charters were nondiscriminatory, religious freedom was encouraged in early seventeenth-century America, even as religious conflict was tearing England apart. Maryland’s Toleration Act of 1649 was more generous with religious liberty than England’s Bill of Rights. Meanwhile, during the reign of Charles II, the grant of religious freedom was written into the charters of Rhode Island, the Carolinas, and Pennsylvania.
More generally, the American colonists were strongly influenced by the English Bill of Rights to regard themselves as living under a constitutional system that limited government’s power over the individual. American lawyers were familiar with Edward Coke’s Commentaries on the Common Law, from which they derived the notion that Parliament itself was under the law. The colonists strongly believed that they enjoyed the rights granted to all English citizens. Consider the following illustrations. The Massachusetts Body of Liberties (1641) included the right of free speech and assembly, the right to Bail, legal counsel, and trial by jury, and prohibited excessive Bail and cruel punishment. In Pennsylvania, the Frame of Government (1682) enshrined these same rights and offered detailed procedural guarantees for the criminally accused. On the eve of the American Revolution, the Virginia Constitution of 1776 opened with a declaration of rights that presaged the national bill of rights and anticipated the famous due process rights contained in the Fourth through Eighth Amendments to the U.S. Constitution. In short, the Americans, more vigorously than their English brethren, embraced the Leveller legacy that civil liberty depends on restraining the power of government and enshrining the protection of individual rights in a written constitution.
References and Further Reading
- Barth, Alan. ‘‘The Heritage of Civil Liberties.’’ In The Rights of Free Men, edited by James E. Clayton, 110– 24. New York: Alfred E. Knopf, 1984.
- Davies, Stevie. A Century of Troubles: England 1600–1700. London: Pan Macmillan, 2001.
- Hexter, J.H., ed. Parliament and Liberty: From the Reign of Elizabeth to the English Civil War. Stanford, CA: Stanford University Press, 1992.
- Jones, James R., ed. Liberty Secured? British Freedom Before and After 1689. Stanford, CA: Stanford University Press, 1992.
- Kelly, Alfred H., ed. Foundations of Freedom in the American Constitution. New York: Harper and Brothers, Publishers, 1954.
- Levy, Leonard W. Origins of the Bill of Rights. New Haven, CT: Yale University Press, 1999.
- Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights. New York: Oxford University Press, 1977.
- Schwoerer, Lois G. ‘‘The English Bill of Rights, 1689: A Perspective on Liberty.’’ In Three Beginnings: Revolution, Rights and the Liberal State, edited by Stephen F. Englehart and John Allphin Moore Jr., 93–114. New York: Peter Lang, 1994.
- Smith, David L. The Stuart Parliaments, 1603–1689. London: Arnold, 1999.
- Wolfe, Don M. Leveller Manifestoes in the Puritan Revolution. New York: Humanities Press, 1967.
- Wormuth, Francis D. The Origins of Modern Constitutionalism. New York: Harper and Brothers, 1949.
- Zaret, David. ‘‘Tradition, Human Rights, and the English Revolution.’’ In Human Rights and Revolutions, edited by Jeffrey N. Wasserstrom, Lynn Hunt, and Marilyn B. Young, 43–58. Lanham, MD: Rowman and Littlefield Publishers, Inc., 2000.