The Glorious Revolution and the Continuity of Law

The Glorious Revolution and the Continuity of Law

RICHARD S. KAY
Copyright Date: 2014
Pages: 312
https://www.jstor.org/stable/j.ctt13wztrp
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    The Glorious Revolution and the Continuity of Law
    Book Description:

    The Glorious Revolution and the Continuity of Law explores the relationship between law and revolution. Revolt - armed or not - is often viewed as the overthrow of legitimate rulers. Historical experience, however, shows that revolutions are frequently accompanied by the invocation rather than the repudiation of law. No example is clearer than that of the Glorious Revolution of 1688-89. At that time the unpopular but lawful Catholic king, James II, lost his throne and was replaced by his Protestant son-in-law and daughter, William of Orange and Mary, with James's attempt to recapture the throne thwarted at the Battle of the Boyne in Ireland. The revolutionaries had to negotiate two contradictory but intensely held convictions. The first was that the essential role of law in defining and regulating the activity of the state must be maintained. The second was that constitutional arrangements to limit the unilateral authority of the monarch and preserve an indispensable role for the houses of parliament in public decision-making had to be established. In the circumstances of 1688-89, the revolutionaries could not be faithful to the second without betraying the first. Their attempts to reconcile these conflicting objectives involved the frequent employment of legal rhetoric to justify their actions. In so doing, they necessarily used the word "law" in different ways. It could denote the specific rules of positive law; it could simply express devotion to the large political and social values that underlay the legal system; or it could do something in between. In 1688-89 it meant all those things to different participants at different times. This study adds a new dimension to the literature of the Glorious Revolution by describing, analyzing and elaborating this central paradox: the revolutionaries tried to break the rules of the constitution and, at the same time, be true to them.

    eISBN: 978-0-8132-2688-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-xiv)
    R.S.K.
  4. INTRODUCTION
    (pp. 1-12)

    This is a legal history of the English Revolution of 1688–89. At its core is the central problem of revolutionary jurisprudence. Revolutionaries must look forward and backward in time. They need to repudiate a prior state of affairs and to provide a foundation for a stable future. The former necessity requires a breach of law, the latter the imposition of effective law. Revolutionary actors must find a way to negotiate these conflicting obligations.

    Few events exemplify the inevitable tension better than the Revolution of 1688–89. Its makers were, to the core, men of the law. Their objections to...

  5. 1 THE CONTESTED CONSTITUTION
    (pp. 13-54)

    On December 18, 1688, Prince William of Orange entered London to the sounds of bell-ringing and cheering crowds. Six weeks before he had landed at Torbay with a fleet of almost 500 ships and an army of more than 15,000 men.¹ He had made his way slowly to London, attracting English adherents and turning back the army of King James II. On the day of the prince’s arrival, the king had left the capital for Rochester and, within days, had fled to France, never to return to England. The next day the triumphant prince held court at St. James’s palace....

  6. 2 MAKING THE REVOLUTION
    (pp. 55-123)

    At the beginning of 1689, the Prince of Orange and the English revolutionaries who had aided him faced a quandary. They were eager to reestablish a lawful government but by removing the legal king, they had deprived themselves of the means to do so. Like Maynard’s man in the wilderness, they wanted to find a lawful path out of an unlawful situation.

    These men were quite different from the radicals of the civil wars of whom Macaulay said “it was necessary that they should first break in pieces every part of the machinery of the government; and this necessity was...

  7. 3 THE KING AND QUEEN IN PARLIAMENT
    (pp. 124-180)

    In 1944 a claim was brought in Hereford County Court for possession of a house and garden at Little Dewchurch. The property had been owned by a Mrs. Hall who had died in 1941, and was now occupied by her son. The plaintiff was Mrs. Hall’s daughter, the executrix of her estate. As such, she presented a fairly clear-cut case for possession under the Probate Act of 1857. Her brother argued, however, that that act was invalid because it had not received the royal assent. It had been assented to by Queen Victoria but in law, she was no Queen....

  8. 4 LEGAL FIDELITY IN THE COURTS AND THE CHURCH
    (pp. 181-233)

    The difficulties of coping with the breach of law caused by the Revolution might have been expected to be particularly acute in two institutions. The first was the courts. The very identity of the judge was bound up with law. Judges would have to deal with the legal issues thrown up by the Revolution and they would have to be especially ingenious or especially bold to maintain the pretense of legal continuity. As the material examined in this chapter shows, the men selected by the new government for judicial office were not lacking in either quality. A second predictable source...

  9. 5 THE LAW OF THE INTERREGNUM
    (pp. 234-271)

    The 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. Every purported exercise of official power by the parliamentary and protectorate governments was subsequently treated as without legal effect by the Restoration regime.

    The situation in 1689 was very different. Recognition of a...

  10. Afterword
    (pp. 272-282)

    The problem this book illustrates is perfectly general. By definition, every legal system originates in events that are not, themselves, authorized by law. All law, that is, starts with revolution. It follows that, to the extent that a society values the rule of law, the illegal origin of every legal system subverts its own legitimacy. The fact that we have working systems of law that are generally valued and respected, notwithstanding their revolutionary beginnings, demonstrates that this difficulty is not insurmountable. Time recasts the relevant events. At some point the revolution ceases to be seen as a rupture in the...

  11. BIBLIOGRAPHY
    (pp. 283-296)
  12. INDEX
    (pp. 297-304)
  13. Back Matter
    (pp. 305-305)