William the Third

by H. D. Traill

To both of these doctrines the Whig party were equally opposed. They held in opposition to the former, that James had ceased to reign, and in opposition to the latter, that the crown had been not demised but simply forfeited. The King's destruction of his own right could not have, and had not had, the effect of transmitting them to any one else whomsoever. They resided at that moment, whatever constitutional fictions might aver to the contrary, in no one; and a special expression of the national will, a special exertion of the national power, would be required in favour of some designated successors to these rights before anybody could be regarded, whether in fact or law, as invested with them.

Apart from all political prepossessions there can, I think, be no serious dispute as to which was the most logical and tenable contention of the three; and that this was distinctly that of the Whigs. The Tories who contended that James had lost his right to the personal exercise of the royal authority, while yet retaining so much of that authority that any one who exercised it in his stead must be supposed to do so as his deputy, were involved in a hopeless contradiction. In assuming to appoint such deputy to act for a person whom they still persisted in regarding as king de jure, they were themselves obviously usurping a portion of that very jus which they professed to respect. True, they attempted to get over this objection by urging that James had placed himself under a disability to exercise his royal authority, but they could point to nothing in the facts of the case to support their contention. Disability to exercise royal authority could, in the view of the Constitution, arise from one cause alone, the same cause from which in the view of the common law arises the disability to exercise civil rights. The disabled King, like the disabled subject, must have become mentally incapacitated; and James's incapacitation for the work of government was purely moral. Setting aside the deposition and execution of his father, which even the Whigs did not endeavour to elevate into a regular precedent, there was no constitutional sanction for the withdrawal of the reins of state from the hands of the monarch, on any ground save that of insanity. Once extend this, and admit that a king who is merely bad may be treated as though he were mad, and the Whig doctrine is thereby absolutely conceded. As to the practical inconveniences of a Regency exercised in the name of an actively hostile sovereign—a sovereign who would have been sometimes in arms against his own nominal authority, and always plotting its overthrow—they would of course have been both grave and numerous. But it is less surprising that the Regency party of that day should have ignored them than that they should have been so indifferent to the complete surrender of their political principles which was involved in the proposal to which they committed themselves.

More logical in form, but equally untenable in fact, was the position assumed by the other section of the Tory party. There was perhaps nothing altogether irreconcilable with their principles in the theory that a voluntary abandonment of the throne might operate as a demise of the crown; but coolly to assert a right to pass over the infant Prince of Wales on the strength of the mere idle story that he was a supposititious child[6] was a pretension which, especially as put forward by men who were such sticklers for constitutional fictions as to insist that there must at any given moment be some one person or other entitled to wear the English crown, appears little short of preposterous.

The Whig theory of the situation rejected the fictions of both branches of the Tory party with equal decision. There was no need, according to the Whigs, for the country to bewilder itself in efforts to distinguish between de jure and de facto sovereignty, still less to resort to the far-fetched expedient of assuming a demise of the crown in order to prevent the former kind of sovereignty from undergoing interruption. A king, they held, might lose his title to the crown by a voluntary abandonment of the throne; and he might lose that title without anybody succeeding to it. Indeed, since the English crown devolved according to the ordinary English laws of succession, it was impossible that anybody should succeed to it by mere operation of law during its former wearer's life-time. If it was a principle of constitutional law that at any given moment there must be some lawful king or queen of England in existence, it was no less a principle of the common law that nemo est hæres viventis. James, therefore, had according to the Whig theory ceased to be sovereign, and no one else had become sovereign in his stead: the throne was vacant. Being vacant it was for the Convention to fill it, and the members of that body were both entitled and bound to select the fittest successor to it, unconstrained, though not necessarily uninfluenced, by the claims of successorship which would have vested in this, that, or the other person under an ordinary demise of the crown.

That this was the most logical and self-consistent view of the situation appears to me undeniable; but it is a singular illustration of the manner in which events may transpose the relative proportions of principles that this Whig corollary from the abdication of James appeared to the statesmen of the time, and even it should seem to Macaulay, a century and a half after them, to be a more pregnant assertion of democratic doctrine, and a bolder step in its application, than that expressed in the earlier proposition that James had ceased to reign. Nowadays the difference between the Tories who contended that the crown had been demised, and the Whigs who insisted that the throne was vacant, hardly arrests the student for an instant. He is disposed to brush the Tory fiction aside as alike irrational and unnecessary. The real passage of the Rubicon took place in his view of the matter when it was declared that James had ceased to be de jure king, and no subsequent assertion of popular rights in the choice of a successor could possibly be stronger or more important than that declaration itself. Yet whereas the Convention accepted the first of these propositions nemine contradicente, the second was only adopted after having been once actually rejected, and was in fact the subject of so sharp a conflict of opinion as to threaten irreconcilable deadlock between the two branches of the constituent body.[7]

The Convention met on the 22d of January, when Halifax was chosen president in the Lords; Powle, Speaker of the Commons. A letter from William, read in both Houses, informed their members that he had endeavoured to the best of his power to discharge the trust reposed in him, and that it now rested with the Convention to lay the foundation of a firm security for their religion, laws, and liberties. The Prince then went on to refer to the dangerous condition of the Protestants in Ireland and the present state of things abroad, which obliged him to tell them that next to the danger of unreasonable divisions among themselves, nothing could be so fatal as too great a delay in their consultations. And he further intimated that as England was already bound by treaty to help the Dutch in such exigencies as, deprived of the troops which he had brought over, and threatened with war by Louis XIV., they might easily be reduced to, so he felt confident that the cheerful concurrence of the Dutch in preserving this kingdom would meet with all the returns of friendship from Protestants and Englishmen whenever their own condition should require assistance. To this the two Houses replied with an address thanking the Prince for his great care in the administration of the affairs of the kingdom to this time, and formally continuing to him the same commission,[8] recommending to his particular care the present state of Ireland. William's answer to this address was characteristic both of his temperament and his preoccupation. "My lords and gentlemen," he said, "I am glad that what I have done hath pleased you; and since you desire me to continue the administration of affairs, I am willing to accept it. I must recommend to you the consideration of affairs abroad which makes it fit for you to expedite your business, not only for making a settlement at home on a good foundation, but for the safety of Europe." On the 28th the Commons resolved themselves into a committee of the whole House, and Richard Hampden, son of the great John, was voted into the chair. The honour of having been the first to speak the word which was on everybody's lips belongs to Gilbert Dolben, son of a late Archbishop of York, who "made a long speech tending to prove that the King's deserting his kingdom without appointing any person to administer the government amounted in reason and judgment of law to a demise." Sir Robert Howard, one of the members for Castle Rising, went a step further, and asserted that the throne, was vacant. The extreme Tories made a vain effort to procure an adjournment, but the combination against them of Whigs and their own moderates was too strong for them, and after a long and stormy debate the House resolved "That King James II., having endeavoured to subvert the constitution by breaking the original contract between the King and people, and by the advice of Jesuits and other wicked persons having violated the fundamental laws and withdrawn himself out of the kingdom, has abdicated the government, and that the throne is thereby vacant."

This resolution was at once sent up to the Lords. Before, however, they could proceed to consider it, another message arrived from the Commons to the effect that they had just voted it inconsistent with the safety and welfare of this Protestant nation to be governed by a Popish king. To this resolution the Peers assented with a readiness which showed in advance that James had no party in the Upper House, and that the utmost length to which the Tories in that body were prepared to go was to support the proposal of a Regency. The first resolution of the Commons was then put aside in order that this proposal might be discussed. It was Archbishop Sancroft's plan, who, however, did not make his appearance to advocate it, and in his absence it was supported by Rochester and Nottingham, while Halifax and Danby led the opposition to it. After a day's debate it was lost by the narrow majority of two, forty-nine peers declaring in its favour, and fifty-one against it. The Lords then went into Committee on the Commons' resolution, and at once proceeded, as was natural enough, to dispute the clause in its preamble which referred to the original contract between the King and the people. No Tory of course could really have subscribed to the doctrine implied in these words; but it was doubtless as hard in those days as in these to interest an assembly of English politicians in affirmations of abstract political principle, and some Tories probably thought it not worth while to multiply causes of dissent with the Lower House by attacking a purely academic recital of their resolution. Anyhow, the numbers of the minority slightly fell off, only forty-six peers objecting to the phrase, while fifty-three voted that it should stand. The word "deserted" was then substituted without a division for the word "abdicated," and the hour being late, the Lords adjourned.

The real battle, of course, was now at hand, and to any one who assents to the foregoing criticisms it will be evident that it was far less of a conflict on a point of constitutional principle, and far more of a struggle between the parties of two distinct—one cannot call them rival—claimants to the throne than high-flying Whig writers are accustomed to represent it. It would of course, be too much to say that the Whigs insisted on declaring the vacancy of the throne, only because they wished to place William on it, and that the Tories contended for a demise of the crown, only because they wished an English princess to succeed to the throne rather than a Dutch prince. Still, it is pretty certain that, but for this conflict of preferences, the two political parties, who had made so little difficulty of agreeing in the declaration that James had ceased to reign, would never have found it so hard to concur in its almost necessary sequence that the throne was vacant. The debate on the last clause of the resolution began, and it soon became apparent that the Whigs were outnumbered. The forty-nine peers who had supported the proposal of a Regency, which implied that the royal title was still in James, were bound, of course, to oppose the proposition that the throne was vacant; and they were reinforced by several peers who held that that title had already devolved upon Mary. An attempt to compromise the dispute by omitting the words pronouncing the throne vacant, and inserting words which merely proclaimed the Prince and Princess of Orange King and Queen, was rejected by fifty-two votes to forty-seven[9]; and the original clause was then put and negatived by fifty-five votes to forty-one.

Thus amended by the substitution of "deserted" for "abdicated," and the omission of the words "and that the throne is thereby vacant," the resolution was sent back to the Commons, who instantly and without a division disagreed with the amendments. The situation was now becoming critical. The prospect of a deadlock between the two branches of the Convention threw London into a ferment; crowds assembled in Palace Yard; petitions were presented in that tumultuous fashion which converts supplication into menace. To their common credit, however, both parties united in resistance to these attempts at popular coercion; and William himself interposed to enjoin a stricter police of the capital. On Monday, the 4th of February, the Lords resolved to insist on their amendments; on the following day the Commons reaffirmed their disagreement with them by 282 votes to 151. A free Conference between the two Houses was then arranged, and met on the following day.

But the dispute, like many another in our political history, had meanwhile been settled out of court. Between the date of the Peers' vote and the Conference Mary had communicated to Danby her high displeasure at the conduct of those who were setting up her claims in opposition to those of her husband; and William, who had previously maintained an unbroken silence, now made, unsolicited, a declaration of a most important, and indeed of a conclusive kind. If the Convention, he said, chose to adopt the plan of a Regency, he had nothing to say against it, only they must look out for some other person to fill the office, for he himself would not consent to do so. As to the alternative proposal of putting Mary on the throne and allowing him to reign by her courtesy, "No man," he said, "can esteem a woman more than I do the Princess; but I am so made that I cannot think of holding anything by apron-strings; nor can I think it reasonable to have any share in the government unless it be put in my own person, and that for the term of my life. If you think fit to settle it otherwise I will not oppose you, but will go back to Holland and meddle no more in your affairs." These few sentences of plain speaking swept away the clouds of intrigue and pedantry as by a wholesome gust of wind. Both political parties at once perceived that there was but one possible issue from the situation. The Conference was duly held, and the constitutional question was, with great display of now unnecessary learning, solemnly debated; but the managers for the two Houses met only to register a foregone conclusion. The word "abdicated" was restored; the vacancy of the throne was voted by sixty-two votes to forty-seven; and it was immediately proposed and carried without a division that the Prince and Princess of Orange should be declared King and Queen of England.