Here is the extract from Maitland that is referred to:
“Now certainly it was very difficult for any lawyer to argue that there had not been a revolution. Those who conducted the revolution sought, and we may well say were wise in seeking, to make the revolution look as small as possible, to make it as like a legal proceeding, as by any stretch of ingenuity it could be made. But to make it out to be a perfectly legal act seems impossible. Had it failed, those who attempted it would have suffered as traitors, and I do not think that any lawyer can maintain that their execution would have been unlawful. The convention hit upon the word * abdicated' as expressing James's action, and, according to the established legal reckoning, he abdicated on the II December, 1688, the day on which he dropped the great seal into the Thames. From that day until the day when William and Mary accepted the crown, 13 February, 1689, there was no king of England. Possibly the convention would better have expressed the truth if, like the parliament of Scotland, it had boldly said that James had forfeited the crown. But put it either way, it is difficult for a lawyer to regard the Convention Parliament as a lawfully constituted assembly. By whom was it summoned ? Not by a king of England, but by a Prince of Orange. Even if we go back three centuries we find no precedent. The parliaments of 1327 and of 1399 were summoned by writs in the king's name under the great seal. Grant that parliament may depose a king, James was not deposed by parliament; grant that parliament may elect a king, William and Mary were not elected by parliament. If when the convention met it was no parliament, its own act could not turn it into a parliament. The act which declares it to be a parliament depends for its validity on the assent of William and Mary. The validity of that assent depends on their being king and queen ; but how do they come to be king and queen t Indeed this statute very forcibly brings out the difficulty—an incurable defect. So again, as to the confirming statute of 1690.
Do not think that I am arguing for the Jacobite cause. I am only endeavouring to show you how much purely legal strength that cause had. It seems to me that we must treat the Revolution as a revolution, a very necessary and wisely conducted revolution, but still a revolution. We cannot work it into our constitutional law…”.
In other words, to overthrow the settlement of 1688 would require the restoration of the Stuart line in defiance of the verdict by “Trial by battle”. When the Stuart line usurped their authority in claiming that the “Divine Right of Kings” allowed them to disarm their opponents they were lawfully overthrown.
These passages from Blackstone confirm that the settlement of The Crown on the present line was lawful and that there is no authority to disregard the common law. They begin with an account of how the peace treaty known as Magna Carta was settled, it being the precedent for events in 1688 and 2001:
“A metrical chronicle (4) records the threat to depose the King, (John) unless he fully amended the law and furnished undoubted guarantees for a lasting peace. On 5th May, the barons went through the ceremony of diffidatio, or formal renunciation of allegiance,(1) a recognised feudal right, and not involving treason if justified by events and properly intimated to the overlord.(2)
(4) Chronica de Mailros, sub anno 1215.
1. Blackstone, Great Charter, p. xiii, citing Annals of Dunstable (p. 43), says they were absolved at Wallingford by a Canon of Durham. 2. Cf. Adams, Origin, 181 n.; 306, 312; cf. also infra under c. 61.
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction,by William Sharp McKechnie (Glasgow: Maclehose, 1914).
Here is Blackstone’s account in his Commentaries on the Laws of England:
“On 5 May, the barons, having chosen as their leader, Robert Fitzwalter, acclaimed by them as “Marshal of the Army of God and Holy Church,” performed the solemn feudal ceremony of diffidatio, or renunciation of their fealty and homage, a formality indispensable before vassals could, without infamy, wage war upon their feudal overlord. Absolved from their allegiance at Wallingford by a Canon of Durham, they marched on London, on the attitude of which all eyes now turned with solicitude. When the great city opened her gates to the insurgents, setting an example to be immediately followed by other towns, she practically made the attainment of the Great Charter secure. The Mayor of London thus takes an honoured place beside the Archbishop of Canterbury among the band of patriots to whose initiative England owes her Charter of Liberties. John, deserted on all sides, and with an Exchequer too empty for the effective employment of mercenary armies, agreed to a conference on the 11th day of June, a date afterwards postponed till the 15th of the same month.
It was on 15 June, then, in the year 1215, that the conference began between John, supported by a slender following of half-hearted magnates, upon the one side, and the mail-clad barons, backed by a multitude of determined and well-armed knights, upon the other. The conference lasted for eight days, from Monday of one week till Tuesday of the next. On Monday the 15th, John set seal to the demands presented to him by the barons, accepting every one of their forty-eight “Articles,” with the additional “Forma Securitatis” or executive clause, vesting in twenty-five of their number full authority to constrain King John by force to observe its provisions...”.
Blackstone, Great Charter, p. Xiii.
Here is confirmation from Blackstone’s Commentaries that “Right of War” sets lawful title to The Crown and the limitations which bind the King:
“THIS conquest then by William of Normandy was, like that of Canute before, a forcible transfer of the crown of England into a new family: but, the crown being so transferred, all the inherent properties of the crown were with it transferred also. For, the victory obtained at Hastings not being a victory over the nation collectively, but only over the person of Harold, the only right that the conqueror could pretend to acquire thereby, was the right to possess the crown of England, not to alter the nature of the government. And therefore, as the English laws still remained in force, he must necessarily take the crown subject to those laws, and with all it's inherent properties; the first and principal of which was it's descendibility. Here then we must drop our race of Saxon kings, at least for a while, and derive our descents from William the conqueror as from a new stock, who acquired by right of war (such as it is, yet still the dernier resort of kings) a strong and undisputed title to the inheritable crown of England...”.