Smuggled in a Warming Pan

Stephen Sedley

  • The Glorious Revolution and the Continuity of Law by Richard Kay
    Catholic University of America, 277 pp, £45.00, December 2014, ISBN 978 0 8132 2687 3

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.

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