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

Abstract

Richard S. Kay, a professor of constitutional law at the University of Connecticut Law School, has written a very old-fashioned book. This is not meant as a criticism: indeed, it is a relief to read three hundred pages of text innocent of words such as ‘representation’ and ‘multivalent’, while ‘culture’ receives only a fleeting mention—and a fairly harmless one at that (‘culture of legal propriety’ [p. 20]). Instead, we are provided with ‘a legal history of the Revolution, focusing on how its makers viewed the importance of adherence to law at the very moment they were breaking a governing legal system’s fundamental norms’ (p. ix). Kay’s account begins with a chapter on ‘the contested constitution’, which examines the varied understandings of England’s constitution as it had developed in the seventeenth century. Four core chapters then explore in turn ‘the attempted “legal” arguments on behalf of the decisions of 1689’ (p. 56); the legal authority of the new king and queen; efforts to cope with the ‘breach of law caused by the Revolution’ (p. 181) in the law courts and the Church of England; and how contemporaries sought to deal with the consequences of the novel ‘true interregnum’ (p. 234) that had existed between James’s first effort to flee England on 11 December 1688 and the proclamation of William and Mary on 13 February 1689. Throughout, Kay offers close readings of debates, issues and individual cases, contending that the dominant mentality on display was expressed through ‘the comforting vocabulary of the common law’ (p. 196), and aimed to accommodate the political ruptures as closely as was possible to pre-existing constitutional understandings. On several occasions we are reminded of thoughtful contemporaries’ reluctance to define issues too closely for fear of provoking disagreements. As he drily remarks, the problems faced by statesmen in 1689 were those ‘most suited to natural hypocrites’, whereas, in reality, many of those actually involved tied themselves in knots trying ‘to remain faithful to some preexisting law’ (p. 180). They were then lacerated in print for their trouble by ideologically purer nonjurors and Jacobites.