While loyalist peers picked apart the Commons resolution of 28 January, the lower house began discussing on what grounds the monarchy would be settled, whoever the crown should fall to. The debate was initiated by the Tory Lord Falkland, spurred into action by the motion of Thomas Wharton that William and Mary should immediately be offered the crown. Falkland said that the House should ‘take such care, that, as the Prince of Orange has secured us from Popery, we may secure ourselves from Arbitrary Government. The Prince’s Declaration is for a lasting foundation of the Government. I would know what our foundation is. Before the question be put, who shall be set upon the Throne, I would consider what powers we ought to give the Crown, to satisfy them that sent us hither.’ The fact that the discussion of a declaration of rights was instigated by a Tory has led some historians to suggest that it was simply a delaying tactic, designed to prevent attempts by Wharton and others to have the crown speedily offered to the Prince and Princess of Orange. However, Falkland’s intervention was quickly followed up by the Williamite Whig William Garroway, who agreed that as there had been ‘such a violation of Liberties in the last reigns’ the Prince of Orange could not object ‘if we make conditions, to secure ourselves for the future’.26 William himself had suggested the idea of a declaration of the subject’s rights in his second declaration, issued on 14 October 1688. It is also worth remembering that Tories had supported placing limitations on the royal prerogative as means to secure the Church and State against the actions of a popish successor during the Exclusion Crisis.
Arguably it was Anglican-Tory interests that were hardest hit by James’s perceived invasions of the law: displacing the Fellows of Magdalen College; suspending clergy via the Commission for Ecclesiastical Causes and purging Tory corporations and county benches through the issuing of quo warranto writs. There were certainly some supporters of William’s claim, such as Wharton and Colonel John Birch, who wanted the issue of a declaration of rights put aside until after the succession had been settled. Despite their opposition, a Commons committee was set up on 30 January to deal with the matter. This committee may have had a predominately Whig membership, and certainly in its original form, as the heads of grievances, the draft document contained some radical proposals, including some for preventing the Crown from curtailing or perpetuating sessions of Parliament, for religious toleration and for appointing judges on good behaviour rather than at the King’s pleasure. This draft document was presented to the Commons on 2 February.27
The following day, however, William decided that he could endure no further delay from loyalists and Maryites in the Lords. France had since declared war on the United Provinces, and William and Bentinck had already put in place plans to deploy the English army and navy to help protect the Dutch Republic from the anticipated French invasion.28 The Prince summoned six or seven peers, including Halifax, Shrewsbury, Mordaunt, Winchester and Danby, and informed them that he would not act as regent or as consort to Mary. He did not, he said, wish to hold ‘any thing by apron strings’. Finally, he said, he did not think ‘it reasonable to have any share’ in government, ‘unless it was put in person, and that for a term of life’.29 If they would not do this he would return to Holland, taking his army with him. Aside from this blunt ultimatum, William offered Parliament two (minor) concessions: Mary would be admitted to share the title (but not the exercise) of sovereignty with him, and Anne’s children would be next in line to succeed, irrespective of whether he had children by another marriage in the event of Mary’s death. (The concessions regarding Anne involved little sacrifice, given William’s relative lack of interest in women – compared with his Stuart predecessors – and Anne’s own medical history.)
The meeting revealed the fundamental weakness of the position that English politicians, both Whig and Tory, were in. As Halifax remarked, ‘as nobody knew what to do with him [the Prince of Orange], so nobody knew what to do without him’.30 If William and his Dutch troops departed, they had no protection from the revenge of their former king, should James return with French military help. A traitor’s fate might befall even some of those now branded loyalists. Even if James did not return immediately, they would be left again in the situation the country found itself in on the night of 11 December, descending into anarchy, yet this time there would be far less prospect of bringing the mob under control. The absence of William might also encourage the hopes of those who favoured far more radical political solutions, in the shape of a republic. It was also soon made clear that neither William’s wife nor his sister-in-law Anne would consider breaking ranks with the Prince of Orange. In a letter to Danby, Mary had severely reprimanded him for presuming to advance her as her husband’s competitor for the throne. She was, she said, the Prince’s wife, and she had no other wish than to be subject to him. After initial intransigence Anne, sweetened by the overtures of John Tillotson, Dean of Canterbury, and Lady Rachel Russell, widow of the executed Rye House plotter, contented herself with the belief that a child of hers might succeed to the throne, given the unlikelihood now of William and Mary ever having offspring of their own. The offer of a generous state pension by William further softened any blow Anne’s own ambitions had taken. On 6 February she sent a message to the Lords via Churchill in which she urged the peers to concur with the Commons in settling the crown on William and Mary.
Far more than any of the half-baked arguments advanced in the Convention, the unified front presented by the Protestant wing of the Stuart family served to break the loyalist party in the Lords. On 4 February they managed to sustain opposition to the Commons vote of ‘abdication’ instead of ‘desertion’ but by only two votes. The majority for rejecting the vacancy of the throne fell even further, from fourteen votes to one. After Anne’s letter had been received, the Lords voted to accept the abdication and the vacancy of the throne. Winchester then moved that William and Mary should be offered the throne, to which there was no opposition, despite an attempt by Clarendon to stage a walkout of loyalist peers. The Earl of Thanet condemned this suggestion as highly dangerous in the current climate, warning, ‘we must not leave ourselves to the rabble’.31
The question of how to square the circle of giving obedience to William and Mary with oaths of allegiance already taken to James was resolved by the formulation of new oaths of loyalty to the joint monarchs. The new oath of allegiance to William and Mary passed in 1689, unlike those to previous monarchs, made no reference to their being ‘rightful and lawful’ sovereigns. Instead, subscribers were asked to swear that they would ‘be faithful and bear true allegiance to their Majesties, King William and Queen Mary’. The oath was drawn up by Bishop White of Peterborough at the behest of the Earl of Nottingham. Ironically, White would be one of the first to refuse the new pledge of loyalty and was apparently so displeased with his handiwork that he had thrown the draft of it out of his window.32 Framed in this way, the oath was supposed to provide a salve to the consciences of Tories who continued to view James as the king de jure (by right) but who acknowledged that William and Mary were the monarchs de facto (in fact). As we will see, it was only partially successful in this regard.
It was now clear that the crown would pass to William and Mary jointly, but with William as effective head of state. There remained one obstacle in the path of his assuming power: the list of grievances and constitutional reforms that the Commons were preparing. It was now time for William’s anger to be turned from loyalist Tories to revolutionary Whigs, who, it was alleged, wished to clip the wings of their new monarch. It has been argued that the Declaration of Rights was connected to the offer of the crown, effectively making William’s accession to the throne conditional on his acceptance of limitations to his power. Sir Richard Temple had stated that the Commons were not to ‘go up with your vote to the Lords, to declare the Prince and Princess King and Queen, and nothing with it. If you will give the committee leave, they will connect it all at once.’33 Certainly some of the Tories attempted to brief against the Whigs, by suggesting to Wil
liam at a meeting held on 7 February that they were planning to place ‘fetters’ upon the crown. However, it had already been decided three days earlier, in the committee drafting the Declaration of Rights, that those elements of it which were deemed to involve making new law should be separated from the main document. Instead the Declaration of Rights should be only a statement of the law as it was deemed it already stood, a reaffirmation of existing rights, not an attempt to acquire new ones. The model here that many MPs had in mind was the Petition of Right tendered to Charles I in 1629, which, as John Wildman stated, did not claim ‘new Laws, but claimed what they demanded ab origine’.34 It should be added that Temple also stated that the ‘Throne must be actually filled before you deliver that Petition’.35
The framers of the declaration averted a collision course with the Prince by assuring him that the document was only declarative of old laws and did not constitute conditions placed upon the throne. They made a further concession to William by amending the text so that the Prince was described as having the ‘sole and full exercise of the regal power’ rather than merely the ‘administration of the Government’, making a clear distinction between his status as King and his previous role as custos regni. Any final doubt as to whether the Declaration of Rights amounted to a condition of accepting the throne was dispelled by William’s speech on 13 February. Here he made clear that he and Mary accepted the crown first and then promised to preserve the people’s religion, laws and liberties.
Much of the Declaration of Rights was, in any case, retrospective, denouncing the perceived excess of James II’s rule. In its final form it affirmed the illegality of the independent exercise of the royal suspending and dispensing power, the Court of High Commission, the levying of money without parliamentary consent and the keeping of a standing army without parliamentary consent. It asserted the right of petitioning, the need for the free election of MPs, the privileges of freedom of speech and debate in Parliament and the need for frequent Parliaments. There were specific criticisms of the judiciary under James, against the imposition of excessive bail, the infliction of cruel and unusual punishments (with the aftermath of the Monmouth rebellion and the punishments handed out to Johnson and Oates in mind), against jurors who were not freeholders serving in trials for high treason (a specific criticism of the conduct of the trial of the Rye House plotters) and against all ‘grants and promises of fines and forfeitures of particular persons before conviction’ (here again referring to the Bloody Assizes and the sale of rebels as indentured servants before trial and sentencing).36
Edmund Burke described the Declaration of Rights as the cornerstone of the English constitution. For Burke, writing at the end of the eighteenth century, the fact that the Revolution settlement purported to do no more than reaffirm existing law was one of its greatest strengths, particularly when compared with the bloody social and political upheaval of the French Revolution. However, it is precisely these qualities which make the Declaration appear such an irrelevancy now. It is not a part of the historical record, like the Putney Debates or the American Declaration of Independence, which appears to speak to posterity. To be sure, making these demands explicit in 1689 had some importance. However much the members of the Convention might stress that they were only making old laws explicit, they were in fact making clear pronouncements on matters which were either legal grey areas (such as the suspending or dispensing powers) or which were not really illegal at all (James’s attempt to ‘pack’ Parliament). Overall, they expressed a bipartisan agreement that English monarchs were obliged to act within the rule of law and reign in cooperation with Parliament. Yet there were no safeguards, even after the Declaration had been enshrined in law as the Bill of Rights, to ensure that its demands would be observed. For example, there were no mechanisms in place to ensure regular Parliaments until the passage of the Triennial Act in 1694.
This is not to say that the Declaration did not have a lasting influence. Strong echoes of its assertions can be found in the Constitution of the United States, particularly in the second and eighth amendments, affirming the right to bear arms, and freedom from cruel and unusual punishment.37 However, we can draw a comparison between the Declaration and the new coronation oath taken by William and Mary. Whereas previous monarchs had sworn only to observe ‘such laws as the commonalty have’, indicating an endorsement of laws already passed, William and Mary were required to promise to govern ‘according to the statutes in parliament agreed on, and the laws and customs of the same’. The notion that the coronation oath formed an original contract between monarch and people had been a staple of parliamentarian thought in the Civil War and was revived by Whigs during the debates in the Convention. John Somers argued that James had broken the original contract by failing to be ‘such a king as he swore to be at his coronation, such a king to whom the allegiance of an English subject is due’.38 But the changes in the coronation ceremony did not change it from an acclamation of the monarch to an election, nor were there procedures of impeachment established whereby monarchs could be brought to account for infracting their oaths. Both the Declaration and the new coronation oaths were symbolically important statements that lacked any legal machinery to back them up.
By 1689, then, the only thing that had been established with any sort of permanency was the Protestant succession. The changes that had been enacted could not even reliably be described as a parliamentary revolution, given the uncertain legal status of the Convention itself (for instance, it was objected that it had not been summoned by royal writ). It was only after considerable debate and, again, pressure from William, that the members resolved to agree that the Convention did constitute a Parliament and could continue to sit after the settlement of the crown.39 All along, the key driver of events was William, backed by Mary and Anne. However, to concede that the Revolution was effected by only a very small number of political actors (plus, of course, the very important supporting cast of the Dutch army), and focus only on their activities, is to leave a great deal out of the picture. As William had recognised even before his armada had landed in England, it was of vital importance, both domestically and internationally, that the Revolution be seen as being at the invitation of the English people and consented to by them. More than this, the crowd, particularly in London, played a very significant role in encouraging both James to leave his kingdom and the Convention to seek a speedy political solution to his departure. By requiring oaths of allegiance of office holders and clergy, and appointing loyal prayers and days of thanksgiving, the new monarchs required frequent and widespread public testimonies of loyalty. The responses William and Mary received to these demands are revealing of the extent to which the English people supported the Revolution settlement.
As we have already seen, the Convention attempted to frame oaths of allegiance to William and Mary which would ease their taking by those who continued to feel bound by their previous oath of loyalty to James. The tendering of the new oaths nonetheless sparked a considerable controversy which was largely dominated by arguments about giving allegiance to the king in possession of the throne.40 Apologists for the government tended to use a hotchpotch of arguments based on the various claims of divine providence, possession, conquest and a historically located ‘original contract’ to justify giving allegiance to the new regime. John Locke’s Two Treatises of Government (1689) is the most famous work of political thought to emerge during the debate over giving allegiance to the new monarchs. Yet the book, with its naturalrights-based contract theory, and its justification of popular rights of resistance against tyranny, was an anomaly in this pamphlet discussion. Indeed it has been suggested that the publication of the tract, originally written during the Exclusion Crisis, may have been a vain attempt to turn the tide of arguments based on expediency, necessity and divine intervention.
Over four hundred clergy, the so-called ‘non-jurors’, and an indeterminate number of lay office holders refused to take the oaths. Originally it had been intended that the oath w
ould be imposed only on new incumbents among the lower clergy and members of Parliament, but the matter of the oaths became a bargaining counter in the debate over the religious settlement. The unwillingness of Tory lords to agree to removing the sacramental test, designed to bar dissenters from taking public office, led the Commons to withdraw the proposal that the oath would only be tendered to new clergy. Under the final provisions of the oath bill, all clergy, academics and schoolmasters were to take the oaths before 1 August 1689 on pain of suspension from office. If they did not take the oaths by 1 February 1690 they would be deprived of their posts. Many others, however, chose to swear allegiance to William and Mary in a ‘reserved’ sense, amounting only to a promise of obedience under de facto rulers, rather than lose their offices. Leading ministers, including the Earl of Nottingham, were known to have made only a limited promise of allegiance.41 Petitions were sent to Parliament requesting confirmation of whether such subscriptions were permissible.42 No reply was forthcoming but this did not prevent many who took the oaths from using declared reservations. The author of the pamphlet Melius inquirendum (1689) offered: ‘that which … I am to Swear in taking this Oath’. He took it that he was not being required to deny or assert William and Mary’s or James’s legal right to the crown, nor was he required to declare that he would never bear allegiance to James II though he might legally recover his crown. The author would instead promise only that he would obey the new monarchs in ‘all things lawful and honest’.43 Others who subscribed in a limited sense ‘informed by discourses with severall of the members of both Houses of Parliament’ swore only to offer ‘such a peaceable acquiesance and submission to the p[re]sent Governm[en]t as the law requires.’44
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