Smuggled in a Warming Pan

In​ 1944, as Richard Kay records, an optimistic litigant challenged the validity of a Victorian statute under which he was being sued, on the ground that Queen Victoria, like all her predecessors since 1689, had had no title to the throne. The argument, which would have wiped the statute book almost clean, was dismissed without much ceremony; but in 1688 and 1689 it occupied the centre of the political and constitutional stage. Could a hereditary monarch, either by violating the constitutional laws of his own realm or by physically abandoning his throne and his country, forfeit the crown? If he could, did the throne pass to his heir? If not, who had power to appoint his replacement? If it was parliament, could it also set conditions of tenure?

When Charles II died in 1685 without legitimate offspring, the throne passed to his brother James, Duke of York, who had been brought up in exile in France as a Catholic and who now began publicly attending mass. Within a few months the Duke of Monmouth’s abortive rebellion and Baron Jeffreys’s judicial revenge, the Bloody Assizes, spread fear that a new Catholic reign of terror was on the way, a fear enhanced by James’s use of his powers as ex officio head of the Church of England to romanise the liturgy. The following year he packed the high court bench to ensure a favourable decision in a collusive lawsuit, Godden v. Hales, designed to validate his repeated waiver of the statutory requirement that all MPs, peers and public officials must formally abjure Catholic doctrine. James then asked parliament for funds to create a standing army, commanded by men whose oath of allegiance he had waived. Parliament offered a compromise, but James prorogued and then dissolved it, creating a void in political authority which was to bedevil the tricky business of replacing him.

Before that point was reached, James had issued two Declarations of Indulgence, authorising public worship by both Protestant and Catholic dissenters. Seven bishops who petitioned for the withdrawal of the second declaration were prosecuted for seditious libel. Their acquittal by a jury in June 1688 coincided with the birth of a male heir to the throne, James Edward Stuart. To the Protestant establishment this was the last straw. While gossip ran around that the child was not the royal couple’s and had been smuggled into the palace in a warming pan, ambitious politicians were converting to Catholicism. The Vicar of Bray, too, had a finger in the wind. In the words of the song:

When royal James possessed the crown
And Popery grew in fashion
The penal laws I hooted down
And read the Declaration.
The Church of Rome I found would fit
Full well my constitution
And I had been a Jesuit
But for the Revolution.

The Dutch ambassador in London had been in contact with leading English politicians, a group of whom, on the day the bishops were acquitted, invited William of Orange, the king’s Protestant son-in-law, to invade. James panicked and tried to reverse some of his reforms; but William, alarmed at the possibility that Louis XIV of France would soon have a militant ally in Britain, crossed to Torbay in November 1688 with a force of 4000 horse and 11,000 foot and marched on London – the last successful invasion of England. James, deserted by his generals at Salisbury, fled the country.

Pretty much as had happened in 1660 before the reinstatement of Charles II, a parliament convened without a royal summons – though William purported to convene it – and asserted its own authority to govern. The difference was that, while the 1660 Convention took itself to be simply restoring the legitimate succession, the 1689 Convention was tacking between hereditary entitlement and powerful political and religious imperatives. Could a legally non-existent parliament clothe itself with the authority to break the genetic line of succession and enthrone a monarch of its own choosing? The short answer is that, lawfully or not, that is what happened. The Convention declared itself a parliament and resolved ‘That King James the Second … by breaking the original contract between king and people, and … having withdrawn himself out of this kingdom, hath abdicated the government, and that the throne is thereby vacant.’ It offered the vacant throne to William and Mary.

What if James returned? Isaac Newton consulted Robert Sawyer, the distinguished lawyer who, with him, represented Cambridge University in the Convention, and received the reassuring advice that to oppose a de facto king, even if on behalf of a lawful king, was treason. But James’s attempt to regain his throne by invading England through Ireland met its end at the Battle of the Boyne.

The fact that the incoming king, William III, was a foreigner played little part in the debates: the Stuarts, as Scots, had also been foreigners. In any case William was of Stuart descent and his wife, Mary, was a Stuart. The overarching problem was that a Protestant succession to the throne was assumed – how else could effect be given to the English monarch’s status as head of the established church? – but not demanded by positive law. Kay also argues (though I’m not sure he’s right) that the judgment James II secured in Godden v. Hales, upholding the royal power of dispensation, was perfectly orthodox: as the chief justice had put it, ‘there is no law whatsoever but may be dispensed with by the supreme lawgiver,’ and the laws were constitutionally the king’s laws. Although the Convention Parliament’s Declaration of Rights denounced the dispensing power as unlawful, the real objection was to the use James had made of it. As Kay notes, the Bill of Rights which was extracted from the Declaration of Rights purported to set out only pre-existing rights, not the numerous new rights that the Declaration also contained. Its outlawing of the regal dispensing power was accordingly presented as a restoration of legality – a revolution in the 17th-century sense of a return to a starting point – rather than as the corralling of the crown which in reality it was.

Although the events of 1688-89 are often characterised as a coup d’état, Kay intelligibly contends that they amounted, as many of the protagonists claimed they did, to a revolution in its modern sense – an oversetting of the political and legal order. The epithet ‘Glorious’ is not a later historian’s conceit. It appears to have been coined by the Whig MP John Hampden, grandson of the hero of resistance to Charles I’s ship money, in testimony to a committee of the House of Lords in the autumn of 1689. Hampden was exulting that, in contrast to the Cromwellian revolution of the 1640s and 1650s which his ancestor had helped to bring about but which had culminated ingloriously in regicide, the ousting of James II and the enthronement of William and Mary had been a noble revolution. It was in nobody’s interests to admit that there had been usurpation by military conquest abetted by a fifth column powerful enough to call most of the subsequent shots.

For all its meticulous scholarship, there are two principal puzzles about Kay’s book. One is the thesis, reflected in its title, that the continuity of law was preserved, when the very reason the events of 1688-89 were revolutionary was that they involved a rupture of legality. The other is his concern to dissociate the Glorious Revolution from the Cromwellian revolution, rather than to appraise the long-term continuities of which both revolutions formed a part. There were undoubted parallels between 1649 and 1689: in each case an unpopular monarch was militarily ousted and the space filled by a self-authorised parliament. But, unlike the court that in 1649 had sentenced James’s father to death for treason against his own people, the politicians of 1689 were nervous about regarding their acts as lawful simply because it was they who were now in charge. It was still possible that James would regain the throne, and it had not been forgotten that only a generation before the protagonists of a republican revolution had been hunted down by a returning monarchy.

Kay’s central subject is the consequent resort to legal reasoning either to justify or to oppose the transfer of sovereign power in England, Wales and Ireland from one monarch to another. Noting the legal flaws in the mooted justifications, he tracks and analyses the arguments. Could a king be lawfully deposed by a parliament? Was there a higher law forbidding a Catholic to wear the crown? Was there a contract between king and people? If so, what constituted a breach sufficiently grave to terminate it? Had there been an abandonment of the throne amounting to abdication? Could either a breach of contract or an abdication be acted on by a parliament that had not been duly summoned? If so, could that parliament alter the line of succession and lay down terms of tenure of the throne?

None of these was capable of being resolved in terms of existing law. A social contract between king and people was at best political theory. A constructive abdication might well pass the throne to the male heir. Parliament, even if lawfully convened, had no known power to depose a king or set conditions for his successor. A new legal order was needed to authorise and consolidate the transfer of sovereignty from monarch to parliament.

In the background stood the longstanding assumption that no English monarch, as head of the Church of England, would be, or could be, a Roman Catholic. But no statute spelled it out. In consequence the single most potent factor in the events of 1688-89, the perceived threat to the nation’s safety and religion presented by a Catholic monarch, played little part in the legal arguments; but the institutionalising of a Protestant succession, first in the new coronation oath and then in the 1701 Act of Settlement, was one of the revolution’s most fundamental achievements. The undertaking to defend ‘the Holy Church’ was replaced by the (still requisite) promise to maintain ‘the Protestant reformed religion established by law’. And, confirming the surrender of autocratic power, the ancient formula that the incoming king or queen would ‘confirm to the people of England the laws and customs to them granted’ by their predecessors was replaced by an oath to govern ‘according to the statutes in parliament agreed on, and the laws and customs of the same’.

It is a feature of constitutions, and not only unwritten ones, that facts can become law: witness the US presidential practice of suspending congressional legislation, which is nowhere permitted by the constitution but which the Supreme Court has more than once legitimated. In 1688 the factual and constitutional reality was that the throne was vacant and an acceptable and co-operative candidate, a monarch whose wife was the ex-king’s daughter, was willing that the two of them should assume the throne. The consequent offer to William and Mary of the crown on terms set out by the Convention Parliament was a defining moment in Britain’s constitutional history because it placed the authority of the crown in the gift of parliament and thereby decisively shifted the location of sovereign power from monarchy to legislature. Even abdication was no longer to lie in the monarch’s own hands. When Edward VIII gave up the crown in 1936, both his declaration of abdication and the succession to the crown were given effect by an act of parliament which also barred him and any of his progeny from resuming the throne. The throne was now in parliament’s unquestioned gift, and the debates of 1688-89 were in every sense history.

What then of the English republic? Although he is content to characterise it as revolutionary, Kay elects to treat the Commonwealth and Protectorate of 1649-60 as a legal non-event, with the result, or so he contends, that there was no true interregnum until James II vacated the throne in 1688:

The [Glorious] Revolution created a true interregnum for the first time in English legal history. The period from the execution of Charles I to the Restoration of Charles II was a more obvious practical interruption in the political life of the kingdom. But in retrospect and as a matter of legal theory, it was not an interregnum. Charles II was king from the moment of his father’s death.

This doesn’t add up. If the absence of a monarch created an interregnum between November 1688 and February 1689, how can there not also have been one starting from 1642, when the Long Parliament began to legislate without royal assent, or at the latest from 1649, when the king was executed for treason, the House of Lords abolished as ‘dangerous and useless’, and state sovereignty became vested, in practice and in law, in the Commons? Kay’s answer is to adopt the blank refusal of conservative historiography to acknowledge that sovereignty in the British Isles was exercised without royal authority for almost two decades, and for more than a decade of that time resided in a republican government. ‘If in time as in place there were degrees of high and low,’ Hobbes wrote, ‘I verily believe the highest of time would be that which passed betwixt 1640 and 1660.’ Kay, however, adopts Macaulay’s calumny that for the Civil War radicals ‘it was necessary that they should first break in pieces every part of the machinery of government; and this necessity was rather agreeable than painful to them.’ The reality, carefully traced in G.E. Aylmer’s The State’s Servants: The Civil Service of the English Republic 1649-60 (1973), was pretty much the reverse.

Kay’s expressed purpose in locating the sole genuine interregnum between November 1688, when James II fled, and February 1689, when William and Mary accepted the throne, is to suggest that ‘recognition of a period in which there was no king or queen was built into the revolution settlement.’ But if constitutional legitimacy depended on heredity in 1649, the same had to be true of the succession in 1688: as Jacobites have always contended, the succession passed, either on James II’s abdication or on his death, to James Edward Stuart, the Old Pretender, making William and Mary usurpers and leaving no space between reigns.

The argument​ about what constitutes an interregnum would be unimportant if it did not form part of a much larger issue. The official whiteout of the English republic can be seen in the Statutes at Large, which to this day break off in 1641 and continue on the next page with the first act of the Restoration Convention Parliament in 1660, ‘the twelfth year of the reign of our most gracious sovereign lord Charles the Second’. It was not until 1911 that the Acts and Ordinances of the Interregnum were published, relying in part on copies which survived the bonfire of republican legislation lit in Westminster Hall at the Restoration by order of the Convention Parliament. Edited by two good scholars, C.H. Firth and R.S. Rait, they make interesting reading. The republican Parliament abolished the use of law French and Latin in the courts, instituted civil marriage, stopped the use of prison for debt, set up a national postal service, and reformed jury trial in the interests of the accused. It continued the security of tenure which, subject to proper conduct, the Long Parliament (anticipating the Act of Settlement) had granted judges, but stopped them pocketing court fees and put them on fixed salaries. It tried, but failed, to abolish the corrupt Court of Chancery. And it established, under Sir Matthew Hale, the first ever law commission, which set about systematising and codifying large areas of the law and planning a legal system in which lawyers’ fees were regulated, poor litigants were given access to justice, MPs were forbidden to moonlight as lawyers and criminal procedure was improved.

Beyond this, the Interregnum saw the enactment, in 1653, of Britain’s first and only written constitution, the Instrument of Government. If he were not treating it as a nullity, Kay would have found much in the Instrument of Government that anticipated (and may possibly have been a template for) the Bill of Rights. The instrument vested sovereignty in a single person, the Lord Protector, but made all his acts subject to the will of parliament. It then provided ‘That the laws shall not be altered, suspended, abrogated or repealed, nor any tax, charge or imposition laid upon the people, but by common consent in Parliament.’ Whether or not the framers of the Bill of Rights 35 years later were drawing directly on this, the parallelism is striking: ‘The pretended power of suspending of laws … without consent of Parliament is illegall,’ the Bill of Rights said, going on to say the same of ‘the pretended power of dispensing with laws or the execution of laws by regal authority as it hath been assumed and exercised of late’ and of ‘levying money for or to the use of the Crown … without grant of Parliament’. Both statutes unblinkingly barred Catholics from public office, but the Protectorate’s model of a presidential republic can be discerned in, for example, the United States constitution.

In spite of the restored regime’s (and Kay’s) corresponding treatment of all laws made from 1642 to 1660 as void, the reforms of the republican years returned like a slow tide. At the Restoration the postal service had to be re-established and the civil marriages and judgments of the interregnum validated. In 1700 – not earlier – judicial independence was again secured by law. In 1731 English finally became the language of the law. Civil marriage was reintroduced in 1836. The predatory Six Clerks of Chancery were finally got rid of in 1842. A national land register was set up in 1875, though it did not become public until 1990. And 313 years after the setting up of the Hale commission, the modern standing law commission was established.

These are significant historical continuities in the law. The Glorious Revolution, provoked by a monarch who had apparently learned nothing from his father’s obduracy, consolidated the transfer of power which had been first achieved and then forfeited between 1642 and 1660. Both events necessarily involved a series of ruptures, making it all the odder that Kay should say of the Cromwellian republic that ‘the rhetorical resources available to that earlier generation … were insufficient to maintain the pretence of uninterrupted law.’ The court that in 1649 tried the king and the parliament that abolished the monarchy and the House of Lords made no attempt to pretend there was no interruption of the law. It was the revolutionaries of 1689 who, as Kay himself shows, were trying, and failing, to maintain such a pretence. But the negotiated offer of the crown by a sitting parliament on the basis that ultimate state power was to vest in itself, not the monarch, were fundamental innovations. In these respects the story is not the continuity but the discontinuity of Britain’s constitutional law. It is in the long march of political events which produced these sudden shocks that continuities are to be found.

A fitful history was to follow the Glorious Revolution: both monarchs and ministers went on purporting to suspend legislation; kings and queens interfered in government; parliament remained unrepresentative and corrupt; ministers abused their powers in order to silence opposition; and unchecked prerogative powers survive to this day. But the corner that was turned in 1689 was one the polity had been negotiating throughout the 17th century: the supplanting of the authority of a hereditary autocracy by that of an at least partly representative legislature. If it was finally achieved under the flag of monarchist legitimacy, that would not have worried Don Fabrizio, who, contemplating the advance of Garibaldi’s republicanism, reflects in the closing pages of The Leopard: ‘If we want things to stay as they are, things will have to change.’