Sunday, 20 November 2011

Maitland on the monarchy and the Glorious Revolution

From F.W.Maitland, The Constitutional History of England:

And first of the king. His title is now a statutory title if it be a title at all.... Not to go back to the Middle Ages, to the parliamentary right of the House of Lancaster, the hereditary right of the House of York, we remember that Henry VIII came more than once to parliament for an act regulating the succession to the throne, even obtained an act enabling him in default of issue to leave the crown to whom he would. In Elizabeth's reign it was treason to affirm that the succession could not be settled by act of parliament. We have seen, however, that James, by the quiet consent of the nation, succeeded to the crown, though, if statutes on such a matter had any validity, the succession was probably illegal; probably Henry VIII, in exercise of a statutory power, had preferred the issue of his younger to those of his elder sister. There was much therefore in his own case to set James on thinking that the inheritance of the crown was divinely appointed and was not to be meddled with by act of parliament. He was succeeded by his son Charles I, and when Charles I was murdered he was immediately succeeded by his son Charles II....

Passing to the events of 1688 we see that it was extremely difficult for any lawyer to make out that what had then been done was lawful. What had happened was briefly this. In July, 1688, James had dissolved parliament, so that at the critical moment there was no parliament in existence. On 5 November William landed; on 11 December James fled from London and dropped the great seal into the Thames; on the 22nd he left the kingdom. William, Prince of Orange, invited an assembly. It was rapidly got together. He summoned the peers and such of the members of the parliaments of Charles II's reign (not James II) as were in London; the aldermen of London also were summoned. This, of course, the lawyer cannot but regard as a quite irregular assembly, called by one who is not, who does not profess to be king. The assembly met on 26 December, 1688, and it advised the Prince to summon a 'convention' of the estates of the realm. In accordance with this advice he invited the lords to come, and the counties and boroughs to send representatives to a convention on 22 January, 1689. The convention met. On 25 January the commons resolved that King James II having endeavoured to subvert the constitution of the kingdom by breaking the original contract between king and people, and by the advice of Jesuits and other wicked persons having violated the fundamental laws and having withdrawn himself out of the kingdom, has abdicated the government, and that the throne has thereby become vacant. After some hesitation, on 12 February the lords agreed to this resolution, and it was resolved that William and Mary should be proclaimed king and queen. On 13 February the Houses waited on William and Mary and tendered them the crown, accompanied by the Declaration of Rights. The crown was accepted. The convention, thereupon following the precedent of 1660, passed an act declaring itself to be the parliament of England, notwithstanding the want of proper writs of summons. This Convention Parliament was not dissolved until early in 1690, and passed many important acts, including the Bill of Rights, which incorporated the Declaration of Rights. A new parliament met on 22 March, 1690, and this of course was duly summoned by writs of the king and queen. It proceeded to declare by statute that the king and queen were king and queen, and that the statutes made by the convention were and are laws and statutes of the kingdom.

Now certainly it was very difficult for any lawyer to argue that there had not been a revolution. Those who conducted the revolution sought, and we may well say were wise in seeking, to make the revolution look as small as possible, to make it as like a legal proceeding, as by any stretch of ingenuity it could be made. But to make it out to be a perfectly legal act seems impossible. Had it failed, those who attempted it would have suffered as traitors, and I do not think that any lawyer can maintain that their execution would have been unlawful. The convention hit upon the word 'abdicated' as expressing James's action, and, according to the established legal reckoning, he abdicated on the 11 December, 1688, the day on which he dropped the great seal into the Thames. From that day until the day when William and Mary accepted the crown, 13 February, 1689, there was no king of England. Possibly the convention would better have expressed the truth if, like the parliament of Scotland, it had boldly said that James had forfeited the crown. But put it either way, it is difficult for a lawyer to regard the Convention Parliament as a lawfully constituted assembly. By whom was it summoned? Not by a king of England, but by a Prince of Orange. Even if we go back three centuries we find no precedent. The parliaments of 1327 and of 1399 were summoned by writs in the king's name under the great seal. Grant that parliament may depose a king, James was not deposed by parliament; grant that parliament may elect a king, William and Mary were not elected by parliament. If when the convention met it was no parliament, its own act could not turn it into a parliament. The act which declares it to be a parliament depends for its validity on the assent of William and Mary. The validity of that assent depends on their being king and queen; but how do they come to be king and queen? Indeed this statute very forcibly brings out the difficulty — an incurable defect. So again as to the confirming statute of 1690.

Do not think that I am arguing for the Jacobite cause. I am only endeavouring to show you how much purely legal strength that cause had. It seems to me that we must treat the Revolution as a revolution, a very necessary and wisely conducted revolution, but still a revolution. We cannot work it into our constitutional law.