Richard S. Kay. The Glorious Revolution and the Continuity of Law

According to Richard S. Kay, the Glorious Revolution of 1688–1689 featured an important paradox. The revolution was occasioned to a large extent by James II’s threat to the law and the constitution regarding church and state, and its makers were steeped in the conservative culture of the common law and the ancient constitution. But by supporting the exclusion of James from the throne with military force and constituting a “Convention,” which replaced him with William of Orange and Princess Mary, they departed from the rule of law and risked a lapse in government by king and parliament. Kay attempts to show how the “revolutionaries” of 1688–1689 negotiated these problems and managed to establish a new and enduring constitutional regime that expressly sought to limit the power of the crown and entrench that of parliament and the law. The first substantive chapter covers familiar ground: the constitutional travails of the early seventeenth century, including the origins of the Civil War, the “unsettled” Restoration of the monarchy in 1660, and the continuing constitutional disputes around the limits of royal prerogative under the law during the reigns of Charles II and his successor James, culminating in the crisis of 1688, which was provoked by the dismal prospect of a compliant parliament and a male Catholic heir. This scene-setting for the analysis that follows is competently done for the most part; although the statement that there were “two inconsistent constitutional understandings” (32) in the lead-up to the Civil War seems overly simplistic and the neo-Marxist theoretical account of constitutional change (18–19) appears old-fashioned. The heart of the book is the second and third chapters, which fruitfully examine the deposition of James II and the accession of William and Mary according to Kay’s “paradox” scheme, thereby highlighting the common approach of attempting to camouflage revolutionary and extra-legal acts with the “color” of legal forms and customs (111). Chapter 2 discusses famous parliamentary debates in the Convention, revisiting information presented in the preexisting work of Henry Horwitz, W. A. Speck, and Lois G. Schwoerer. Chapter 3, however, makes a valuable contribution because it considers the Revolution in terms of the practical problems of preserving the color of legality in the post-1689 period: i.e., accommodating the radical idea of dual monarchy in William and Mary while denying James II in public prayers; providing for the further succession without admitting the obvious departures from law; arranging for oaths of allegiance and abjuration and accommodating those who saw William and Mary as only de facto monarchs. The discussion of the de facto doctrine (by which allegiance to and acts by the new monarch were rendered lawful) is especially impressive because of its depth of learning and clarity. Important points made here include the awkward realization by some contemporaries that despite the need for legitimization after the fact, law was ultimately irrelevant to the immediate outcome of revolutions; and that even radical Whigs were uncomfortable with de facto title to the throne because it denied popular sovereignty. This chapter also has a fine account of the “hypertechnical” debates by which the Convention was legitimized as a parliament with quasi-legal authority (178).

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