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The Formulation of the Declaration of Rights

Published online by Cambridge University Press:  11 February 2009

Robert J. Frankle
Affiliation:
Memphis State University

Extract

After a period of comparative neglect, historians are re-examining the English Revolution of 1688 with revived interest and revised interpretation. In the past few decades numerous works have carefully re-investigated and often reinterpreted the roles played by such disparate groups as the Whigs, die nobility, the common people, and die urban mob, as well as by such leading individuals as die Earl of Sunderland, James II, and William of Orange. They have broadened our perspective of the Revolution by placing it in die wider context of European affairs and have persuasively demonstrated that die replacement of James II by William and Mary was justified most frequently and effectively not by John Locke's Two Treatises of Government, which was indeed composed prior to 1688, but by mat old relic from James I's reign, divine right of kings.

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Articles
Copyright
Copyright © Cambridge University Press 1974

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References

1 See, for example, Plumb, J. H., ‘ The Elections to the Convention Parliament ’, Cambridge Historical Journal, v (1937), 235—54.CrossRefGoogle ScholarKenyon, J. P., The Nobility in the Revolution of 1688 (Hull, 1968).Google ScholarBeddard, Robert, ‘ The Guildhall Declaration of 11 December 1688 and the Counter-Revolution of the Loyalists ’, Historical Journal, xi (1968), 403–20.CrossRefGoogle ScholarMclnnes, Angus, ‘ The Revolution and the People ’, Britain After the Glorious Revolution 1689–1714, ed. by Holmes, Geoffrey, pp. 8093.Google ScholarSachse, William L., ‘ The Mob and the Revolution of 1688 ’, Journal of British Studies, iv (11 1964), 2140.Google ScholarKenyon, J. P., ‘ The Earl of Sunderland and the Revolution of 1688 ’, Cambridge Historical Journal, xi (1955), 272–96.CrossRefGoogle ScholarAshley, Maurice, ‘ King James II and the Revolution of 1688: Some Reflections on the Historiography ’, Historical Essays Presented to David Ogg, ed. by Bell, H. E. and Ollard, R. L. (London, 1963), pp. 185203.Google ScholarPinkham, Lucille, William III and the Respectable Revolution (Cambridge, Massachusetts, 1954).CrossRefGoogle Scholar

2 See Pinkham, op. cit. Carswell, John P., The Descent on England (London, 1969).Google ScholarLaslett, Peter, ‘ The English Revolution and Locke's “ Two Treaties of Government ” ’, Cambridge Historical Journal, XII (1950), 4055.Google ScholarStraka, Gerald, ‘ The Final Phase of Divine Right Theory in England, 1688–1702 ’, English Historical Review, LXXVII (10 1962), 638–58.CrossRefGoogle Scholar

3 E.g. Ogg, David, England in the Reigns of James II and William III (Oxford, 1955), p. 226Google Scholar. Ashley, Maurice, The Glorious Revolution of 1688 (London, 1966), p. 184.Google Scholar

4 The Memoirs of Edmund Ludlow, ed. by Firth, C. H. (Oxford, 1894), 510–11.Google Scholar

5 The Entering Book of Roger Morrice (hereafter referred to as Morrice MS), Dr Williams Library, 11, f. 449. The pamphlet itself can be found in The Somers Collection of Tracts, ed. by Scott, Sir Walter (London, 1813), x, 197Google Scholar.

6 Good Advice Before it be too Late, Somers Tracts, x, 198.

7 Grey, Anchitell, Debates of the House of Commons, 1667–1694 (London, 1763), ix, 30.Google Scholar In support of his suggestion, he later insisted, ‘ We must not only change hands, but things … ’

8 Ibid. p. 30. Somers's, John notes on the Convention, Hardwicke Miscellaneous State Papers (London, 1778), 11, 415–6.Google Scholar

9 Grey, , IX, 3032. Hardwicke Papers, II, 414–16.Google Scholar Temple's speech can be found amongst his papers in the Huntington Library, ff. 228–9.

10 Morrice MS, f. 447. Grey, ix, 32–6. Hardwicke Papers, 11, 416–22.

11 Hardwicke Papers, II, 417.

12 Grey, IX, 33.

13 Hardwicke Papers, 11, 416, 421.

14 Grey, Ix, 33.

15 Ibid. 35.

16 Hardwicke Papers, 11, 420.

17 Anonymous Letter to Robert Harley, Jan. 29, 1688/9, Historical Manuscripts Commission, Portland MSS, Part II, p. 425. Anonymous Account of the Convention Proceedings, Bodleian Library Rawlinson Manuscript D.1079, f. 6.

18 Bodl. Rawl. MS D.1079, f. 7. Morrice MS, f. 453. Journals of the House of Commons, x, 15.Google Scholar

19 Morrice MS, f. 448. See also to — Robert Harley, 29 Jan., 1688/9, Portland MSS, 11, 425 for a similar estimate.

20 —to Robert Harley, 31 Jan. 1688/9, Portland MSS, 11, 427.

21 The Heads of Grievances can be found in the Commons Journal, x, 17.

22 Grey, ix, 51.

25 This was not the only occasion upon which this Whig sensitivity was manifested. In 1690, a group of Whig peers strongly urged that the restoration of the municipal charters be ‘ declared ’ rather than ‘ enacted ’. Historical Manuscripts Commission, House of Lords MSS, 1688–9, PP. 422–32.

26 Commons Journal, x, 19. Grey, ix, 51. Bodl. Rawl. MSS D.1079, f. 10.

27 The prohibition against royal pardons for parliamentary impeachments was deleted, while a clause upholding free speech in Parliament was added. Commons Journals, x, 22.Google Scholar

28 Commons Journals, x, 22.Google Scholar

30 Grey, ix, 80.

31 Commons Journals, x, 23.Google Scholar

32 The Lords amended the total abolition of the dispensing power as provided for by the Commons and eliminated the clause which insisted that Parliaments, when summoned, be ‘suffered to sit’. Commons Journals, x, 25.Google Scholar

33 See, for example, Trevelyan, G. M., The English Revolution, 1688–9 (London, 1938), p. 140. Jennifer Carter, ‘The Revolution and the Constitution’, Britain After the Glorious Revolution 1689–1714, ed. by Geoffrey Holmes, p. 42.Google Scholar

34 Commons Journals, x, 30Google Scholar. Journals of the House of Lords, xv, 147.Google Scholar

35 Memoirs of Sir John Reresby, ed. by Andrew Browning (Glasgow, 1936), p. 546. Morrice MS, f. 447. Note also that two other contemporary observers believed that the Heads of Grievances was to be ‘subscribed to by the Prince or Princess that shall ascend the throne’. See above, p. 268.Google Scholar

36 The Diary of John Evelyn, ed. by DeBeer, E. S. (Oxford, 1955), iv, 622.Google Scholar

37 Roger Flemming to Sir Daniel Flemming, 7 Feb., 1688/9, Westmorland and Cumberland Record Office, WD/Ry, # 3442. Terriesi despatches, British Museum Additional Manuscripts 25, 377, ff. 324–5. Although Terriesi's despatch is dated 11/21 Feb., it actually contains a resume of the entire Convention proceedings and the above notation explicitly refers to debate of 7 Feb.

38 Leicestershire Record Office, Finch Manuscripts, Political Papers, Box 4958, f. 82.

39 Burnet, Gilbert, The History of My Own Times (London, 1734), 11, 822–3Google Scholar. Macaulay, Thomas Babington, The History of England From the Accession of James II, Everyman edition (London, 1906), 11, 368–71Google Scholar. For twentieth-century endorsements of this theory see Lodge, Richard, The History of England from the Restoration to the Death of William III (London, 1912), pp. 305–6Google Scholar; Clark, G. N., The Later Stuarts (Oxford, 1955), pp. 145–6Google Scholar; Robb, Nesca, William of Orange (London, 1966), 11, 279.Google Scholar

40 There is no reason why such a package could not have been submitted to William and Mary by 13 Feb., the date on which they formally received the crown. The Scottish Parliament, after all, managed to attach a list of grievances needing remedy to its Claim of Right without encountering any serious difficulty or significant delay.

41 Grey, ix, 33.

42 Nine provisions of the Heads of Grievances were incorporated in meaningful form into che Bill of Rights. They were the abolition of the suspending and dispensing powers, the abolition of prerogative courts, the reaffirmation of the illegality of extra-Parliamentary taxation, the reaffirmation of the right to petition, the abolition of a peacetime standing army unless it receives Parliamentary approval, the affirmation of the right of Protestants to bear arms, a modification of the prohibition against any member of the royal family marrying a Catholic, the abolition of grants of fines and for feitures prior to conviction, and the exclusion of Roman Catholics from the English throne.

43 The only affirmative actions taken on implementing the various articles of the Heads of Grievances within five years of the Revolution were the abolition of the hearth tax in 1689, the Toleration Act of 1689, the drafting of a coronation oath containing a pledge to uphold ‘the Protestant reform religion established by law’, the reversal of the quo warranto proceedings against London (but not the rest of the corporations) in 1690, and the Malicious Information Act of 1692. It is significant that short Parliaments were not achieved until 1694, treason trial reform until 1696, and the independence of judges until 1701.

44 At least eight provisions of the Heads of Grievances (those condemning early prorogations of Parliament, regulating Chancery, dealing with the appointment and duties of sheriffs, attacking the buying and selling of judicial offices, reforming the method by which juries were selected, advocating the comprehension of Protestant dissenters within the Church of England, establishing the right to traverse returns of habeas corpus and mandamus, and reforming the collection of the excise) received no favourable Parliamentary action during the reign of William III.

45 No less than eight separate bills were introduced in William's reign for the regulation of Chancery, while the purchase and sale of judicial offices and the appointment and functions of sheriffs were each the subject of five distinct pieces of legislation. Commons Journals, x, 590, 681; xi, 42, 377, 391, 582, 704; xii, 103, 184, 205, 351.Google ScholarLords Journals, xiv, 448, 529, 643; xv, 117, 235; xvi, 225. It is also interesting to note that even some of the reform measures which were passed by Williamite Parliaments had been defeated in previous attempts in these Parliaments. The Malicious Informations Bill of 1692, the Triennial Bill of 1694, and the Trials for Treason Bill of 1696 are all cases in point.Google Scholar

46 Among the proposals included in the Heads of Grievances but not approved by the Convention Parliament, the following dealt with issues which were considered in Parliament during the twenty years prior to the Revolution: militia reform, establishment of ‘free elections’, frequent Parliaments, short Parliaments, pardons for Parliamentary impeachments, ecclesiastical comprehension, treason trial reform, the independence of judges, shrieval reform, the regulation of juries, chancery reform, habeas corpus, and the collection of the excise.

47 Commons Journals, x, 730Google Scholar, 746; xi, 13, 40. Lords Journals, xv, 92, 288, 379.Google Scholar

48 SirDalrymple, John, Memoirs of Great Britain and Ireland (London, 1771), II, 289.Google Scholar

49 Keir, David Lindsay, The Constitutional History of Great Britain and Ireland From 1485 (Oxford, 1956), p. 269Google Scholar. Hill, Christopher, The Century of Revolution (Edinburgh, 1961), p. 253.CrossRefGoogle Scholar

50 In determining partisan affiliations I have followed the generally accepted practice of identifying the supporters of the Sacheverell clause as Whigs and those who voted against making William and Mary king and queen as Tories. These lists can be found in Browning, Andrew, Thomas Osborne, Earl of Danby and Duke of Leeds (Glasgow, 1951), III, 164–72.Google Scholar

51 In passing, it might be well to ask whether the Convention division over the issue of constitutional reform might not be viewed more profitably in terms of Court and Country rather than Whig and Tory. Such a question might be particularly fruitful in light of the recent emphasis by historians such as Dennis Rubini and Angus Mclnnes on the prevalence of the Court/Country polarization during at least the early years of William's reign. While Rubini scarcely touches On the Convention and Mclnnes explicitly refuses to push the Court/Country dichotomy back to 1689, the division over the Heads of Grievances bears a certain resemblance to the Court/Country fissure which they depict for the 1690s. Opponents of major constitutional reform such as Somers and Treby were to become prominent Courtiers, while men like Clarges and Musgrave would be leaders of the Country opposition. The possibility that the Convention split over constitutional reform was an embryonic forerunner of the division between Court and Country is enhanced when it is recognized that some of the major issues which produced the Court/Country alignment – treason trial reform, the Triennial Bill, and, later, the standing army controversy — represent attempts to implement the programmes proposed by the Heads of Grievances. In other words, it is natural that similar issues produced similar divisions. Rubini, Dennis, Court and Country 1688—19702 (London, 1968)Google Scholar. Mclnnes, Angus, Robert Harley, Puritan Politician (London, 1970), esp. pp. 2932.Google Scholar

52 I am aware of only one prominent historian who has given any credence to this thesis and even he seems to regard fear of the Lords' reaction as a distinctly secondary reason for the limitation of the Declaration of Rights. Ranke, Leopold von, A History of England Principally in the Seventeenth Century (Oxford, 1875), iv, 514.Google Scholar

53 Hardwicke Papers, 1, 418. Grey, ix, 79. Commons Journals, x, 23.

54 Grey, ix, 80.

55 In 1693 a Triennial Bill passed by the Lords was defeated in the Commons. Lords Journals, xv, 317. Commons Journals, xi, 40.Google Scholar In 1691 a Lords' bill for Chancery reform died in the Commons, while a similar bill passed by the Upper Chamber in 1698 was defeated by the Lower House. Lords Journals, xiv, 685; xvi, 260Google Scholar. Commons Journals, XII, 281.Google Scholar

56 SirMontgomery, James, Great Britain's Just Complaint, Somers Collection of Tracts (London, 1813), x, 440.Google Scholar

57 For Montgomery's penchant for reform, see Halliday, James, ‘ The Club and the Revolution in Scotland, 1689–90 ’, Scottish Historical Review, XLV (10, 1966), esp. pp. 155–6.Google Scholar

58 Ibid. p. 156.

59 Echard, Laurence, The History of tie Revolution and the Establishment of England in the Year 1688 (London, 1725), p. 261.Google Scholar

60 A noted exception was the mid-eighteenth century historian James Ralph, who repeated Montgomery's account almost verbatim. Ralph, James, The History of England During the Reigns of King William, Queen Anne, and King George I (London, 1746), 1, 52.Google Scholar

61 Curiously, the small amount of support which this interpretation has managed to attract has come mainly from historians who were not themselves British. See, for example, Ranke, iv, 514; Japikse, N., Print Willem De Stadhouder Koning (Amsterdam, 1933), 1, 276–7;Google ScholarPinkham, Lucille, William 111 and the Respectable Revolution (Cambridge, Massachusetts, 1954), p. 235.CrossRefGoogle Scholar This view point is also hinted at, barely, by Carswell, John P., The Descent on England (London, 1969), p. 226.Google Scholar

62 Ronquillo to el Marques de Cogolludo, 1/11 Feb. 1688/9, Correspondent Entre Dos Embajadores Don Pedro Ronquillo y el Marques de Cogolludo 1689–1691, ed. by el de Maura, Duque (Madrid, 1951), 1, 86.Google Scholar

63 Ronquillo to Cogolludo, 7/17 Feb., ibid. p. 95.

64 Terriesi dispatch, 11/21 Feb. BM. Add. MSS 25, 377, f. 321.

65 For an accounr of Witsen's mission, see Clark, G. N., ‘ The Dutch Missions to England in 1689 ’, English Historical Review, xxxv (10 1920), esp. 536–7.CrossRefGoogle Scholar

66 Uittreksels uit het Byzonder Verbaal Nópens de Deputatie en Ambassade Daarop Gevolgd in England, 1689, Gehouden Door MrWitsen, Nicolaas, Geschied en Leeterkundig Mengelwerk van Mr Jacobus Schcltema, ed. by van Terveen, J. G. (Utrecht, 1823), 11, Part II, p. 141.Google ScholarWagenaar, Jan, Vaderlandsche Historie (Amsterdam, 1744), xv, 507.Google Scholar

67 Clark, EHR, 536. Robb, p. 277. Geyl, Piecer, The Netherlands in the Seventeenth Century (London, 1964), Part II, p. 206.Google Scholar

68 Edward Harley to Robert Harley, 9 Feb. 1688/9, BM. Add. MSS 40, 621, f. 464.

69 Morrice MS, f. 464.

70 Indeed, such a compromise solution was hinted at as early as 29 fan. by Henry Pollexfen when he told his fellow Commoners, ‘ Besides your terms may be such, at least, that when you come to offer the crown with more limitations, not known bejore, it may be rejected ’. John Somers's notes of the Convention, New York Public Library, Hardwicke MSS, Box 33. Italics supplied.

71 Morrice MS, f. 464.

72 ‘ Journaal of Constantyn Huygens ’, Werken Uitgegeven door het Historisch Genootschap (Utrecht, 1876), XXIII, 81.Google Scholar

73 Witsen reported that some members of Parliament asked him to persuade William to accept the Declaration, which indicates how seriously news of the prince's displeasure with the document was taken by men who mattered. Witsen, incidentally, refused to intervene, ‘ weetend hoe pointelleus hij [William] is ’. Witsen, p. 141. Wagenaar, p. 507.

74 According to Halifax, William ‘ had no mind to confirm them [the thirteen articles of the Declaration of Rights], but the conditions of his affairs overruled his inclinations in it‘. Spencer House Journals, ed. by Foxcroft, Helen C., The Life and Letters of Sir George Savile, Bart. (Oxford, 1898), II, 203.Google Scholar

75 The two vetoes were applied to the Independent Judges Bill of 1691 and the Triennial Bill of 1693. Lords Journals, xv, 92, 288.

76 This contention is perhaps fractionally strengthened by evidence gained from the Scottish constitutional settlement. While it is admittedly dangerous to place much weight upon events surrounding a parallel but yet distinct document, it is nonetheless interesting that William's chief adviser, the Earl of Melville, anticipated his sovereign's hostile reaction to the list of grievances which the Scottish Parliament had appended to the Claim of Right. It is just possible that Melville might have based his opinion, at least partly, on information he learned concerning the prince's unhappiness over the English Heads of Grievances. For Melville's attitude, see Halliday, p. 144.

77 ‘ The Prince carries all things in secrecy that few know his mind ’, wrote Edward Harley to his brother Robert on 7 Feb. BM. Add. MSS 40,621, f. 18.