When James Met Channel – It Happened Today, February 12, 2017

Perhaps only the sort of person who would make a documentary on Magna Carta would care that on February 12 of 1689 the "Convention Parliament" declared that in fleeing the country, crossing the English Channel to France, King James II had abdicated. Or perhaps not, if you’re still reading this second sentence. In which case I hope you’ll agree that it shows a remarkable devotion both to the practical reality of self-government and to the legal formalities that give effective and lasting shape to the passion for liberty.

We are of course in Glorious Revolution territory here. And getting rid of yet another would-be tyrant Stuart had created significant problems of the sort discussed by Jean-Louis de Lolme in his neglected masterpiece The Constitution of England, in that the entire British system was focused on the monarch not as anything remotely approaching an absolute ruler but as the formal locus of the powers of government. And therefore the refusal of the monarch to play his appointed role made a mess of the formal machinery of state.

James was of course wrong to believe that, given his technical powers and duties, he could stop the government from operating by taking his football and going straight home or, to be precise, throwing the Great Seal used to summon Parliament into the Thames river. Parliament could and did meet anyway. But he did create for them a rather complicated question as to why exactly, and how exactly, they could act outside precedent without themselves creating a precedent of arbitrary rule.

In this crisis the Parliamentarians did two important things. First, they decided that given the extraordinary circumstances they were not merely an ordinary parliament but, for the purposes of straightening out the Constitutional mess, a "convention," that is, a meeting of the English nation with the power to make fundamental arrangements on behalf of we the people. Second, they debated at length whether the throne was in fact vacant.

William of Orange, who had helped chase James away by landing in some force at the invitation of leading Englishmen (who rallied larger armies to his side) and who was married to James’s responsible Protestant daughter Mary, played an important and responsible role here by refusing simply to seize the throne even though everyone who mattered understood that he was to be king. But how and why?

Some Whigs argued that by his "social contract" with the English people William was now king by popular consent. (Others wanted a "republic" in the sense of a government with no monarch rather than its proper meaning of a government of laws not men. But they were few and far between.) Meanwhile some Tories held that the departure of Mary’s wretched father had not left the throne vacant but rather immediately and automatically made her Queen, leaving her husband beside the throne not on it. Still others maintained that James had left the country without leaving the throne so what was needed was a Protectorate and maybe at some point restoration of a (har har) repentant James.

Parliament began to hack through this tangle by declaring in January that England was a Protestant kingdom and only a Protestant could be king, disposing of James and his new son. And while this resolve sounds bigoted to modern ears, like the protection of the right to arms in the 1689 Bill of Rights only for Protestants, a long association of Catholicism with disregard for Parliament gave it some plausibility at the time. But while it determined who was not king, it left the question of who was king or queen suspended in mid-air.

In February the Commons said the king had abdicated. But the Lords said there was no such thing as abdication in common law and that if James was no longer king Mary automatically was. However they soon folded, mostly because it was clear that Mary would not rule without William and Mary’s also Protestant sister Anne would not accept the throne in place of either or both. They proposed that William and Mary should both reign, which the Commons accepted on condition that William alone should rule.

On that basis, and on their acceptance of the Bill of Rights and the rule of law, William and Mary were proclaimed King and Queen of England, Scotland and Ireland. William then dissolved the Convention Parliament and summoned a new one, which turned the acts of the former into proper law by passing Acts then signed by a monarch.

It might all seem like jiggery-pokery or theatre. But it mattered enormously to be sure that the rule of law was somehow being upheld even under circumstances where procedure could not run through normal channels, and not simply to accept things because everybody agreed they should happen or nobody dared speak up. Including, it turned out, this precedent of a legislature or specially elected assembly becoming a convention representing the people if the executive put itself outside the law.

For instance in Britain’s 13 colonies in the 1770s. And while it might seem the Convention Parliamentarians would have cause to regret their precedent given its used in the American Revolution, the fact is that George III was behaving toward his North American subjects very much as James II had toward his British ones. And in creating a robust extraordinary precedent for dealing with a rogue executive they helped the Anglosphere preserve self-government and liberty under law in the 1680s and the 1770s.