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Friday, 4 August 2017

Maitland: The Bill of Rights 1688/9.

The Bill of Rights 1688/9. Maitland on the Revolution of 1688. The Constitutional History of England. Cambridge University Press 1909. “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 IPs 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 I 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king and people, and by the advice of Jesuits and other wicked persons having violated the fundamental laws and having withdrawn himself out of the kingdom, has abdicated the government, and that the throne has thereby become vacant.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 II 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 t 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. Passing from this point, we notice that the tender of the crown was made to William and Mary jointly; but William had refused to reign merely in his wife's right—such as it was —and the declaration of the convention was that William and Mary were to hold the crown during their joint lives and the life of the survivor of them, that, however, the sole and full exercise of the regal power was to be in William during their joint lives, but was to be exercised in the names of William and Mary, and that after their deceases the crown should go to the issue of Mary, and in default of her issue to the Princess Anne and the heirs of her body, and for default of such issue to the heirs of the body of William. The Bill of Rights, passed in 1689, confirmed this settlement, adding a clause to the effect that any person who should hold communion with the See or Church of Rome or profess the Popish religion or marry a Papist should be incapable to inherit, possess or enjoy the crown and government of the realm, and that the crown should pass to the person next entitled. In 1700, after the death of Mary, William being childless, and Anne's son the Duke of Gloucester being dead, it became necessary to make a further settlement, and by the Act of Settlement (12 and 13 Will. Ill, c. 2) it was ordained that in default of issue of Mary, Anne, and William the crown should go to the Princess Sophia of Hanover and the heirs of her body being Protestants. She, a daughter of Elizabeth Queen of Bohemia, a daughter of James I, was the nearest heir according to the ordinary rules of inheritance, if Roman Catholics were excluded. A new form of coronation oath has been provided. About the coronation oath there has been controversy. In the reign of Charles I it became known that the king had taken an oath which differed in some respects from the ancient form. That ancient form has come before us already. In it the king promised to hold and keep the laws and righteous customs which the community of the realm shall have chosen— qiias vtilgus elegerit, les quels la commimaiite de vostre roiau^ne aura esleii. Now at Charles's coronation the last question put to him had been this: * Will you grant to hold and keep the laws and rightful customs which the community of this your kingdom have, and will you defend and uphold them to the honour of God as much as in you lieth } ' This form, you will observe, does not assert the right of the people, the community of the realm, to choose its own laws: the king is to hold and keep the laws which the community has. Archbishop Laud was accused of having tampered with the oath. His defence seems on this point to have been quite sound. He had administered the oath in the terms in which it had come to him, the terms to which James I had sworn, the terms to which Elizabeth had sworn. As to Mary's oath I know nothing; but a change had been made on the occasion of Edward VFs accession. He had sworn to make no new laws but such as should be to the honour and glory of God and to the good of the commonwealth, and that the same should be made by consent of his people as hath been accustomed. But a change seems to have been made yet earlier. There is extant a copy of the coronation oath in which alterations have been made in the handwriting of Henry III. The last clause reads thus—I will note the changes made by.the king's ♦ own hand—' And that he shall graunte to hold the laws and [approvyd] customes of the realm [lawful! and nott prejudicial to his Crowne or Imperiall duty], and to his power kepe them and affirm them which the [nobles and] people have made and chosen [with his consent].' The interpolations are very remarkable: they seem to point to the notion of an indefeasible royal power which laws cannot restrain ; the king will not bind himself to maintain laws prejudicial to his crown. Thus since the accession of Edward VI the terms of the oath seem to have varied—and Laud, I believe, successfully showed that he could not be charged with any insidious alterations^ But the meaning of the more ancient form, the form of Edward II's oath, now became a subject of bitter controversy; it was maintained that the elegerit — ' qtcas vulgus elegeriV — could not refer to the future: the kings are to uphold the old law, the law which the people had chosen, not the laws which the people should choose. On the other hand, it was even urged that the terms of the oath excluded the king from all share in legislation—that without perjury he could reject no bill passed by two Houses. Neither contention would harmonize with past history; on the one hand the old oath was a not indistinct declaration that there were to be no laws save those chosen by the community of the realm ; on the other hand the contention that the king was no part of the community was wild. However, when such opposite views were taken of the king's obligation, the time for war had come. The oaths of Charles II and James II seem to have been just those which Charles I had taken. Immediately after the Revolution a new oath was provided by a statute (i William and Mary, c. 6) which recites that the old oath was framed in doubtful words and expressions with relation to ancient laws and constitutions at this time unknown. The most important phrase is this—the king promises to govern the people of England and the dominions thereto belonging according to the statutes in parliament agreed on, and the laws and customs 1 The question is discussed by J. Wickham-Legg, The Coronation Order of King James /, London, 1902, pp. xcvi—cii. of the same; thus ' the statutes in parliament agreed on' take the place of leges qiias vulgus elegerit. By another clause in the oath the king has to swear that he will maintain to the utmost of his power the true profession of the gospel and the protestant reformed religion established by law, and preserve unto the bishops and clergy of the realm and the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them. Another obligation is laid upon the king by the Bill of Rights and by the Act of Settlement: on the first day of his first parliament he must make the declaration against transubstantiation, the invocation of the saints and the sacrifice of the mass. The clauses which deprive him of his crown in case he holds communion with the Church of Rome or marries a Papist, have already come before us…”. Note: Page numbers are not included because they vary according to the programme that it being used to view the text. The reader before relying on this information should take steps to verify it by cross checking with other sources.


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