original contract.]
[Sidenote: That the contract is mutual consent, and binding at all times
upon the parties.]
[Sidenote: The mixed Constitution uniformly preserved for many ages, and
is a proof of the contract.]
"The nature of our Constitution is that of a _limited monarchy_, wherein
the supreme power is communicated and divided between Queen, Lords, and
Commons, though the executive power and administration be wholly in the
crown. The terms of such a Constitution do not only suppose, but
express, an original contract between the crown and the people, by which
that supreme power was (by mutual consent, and not by accident) limited
and lodged in more hands than one. And _the uniform preservation of such
a Constitution for so many ages, without any fundamental change,
demonstrates to your Lordships the continuance of the same contract_.
[Sidenote: Laws the common measure to King and subject.]
[Sidenote: Case of fundamental injury, and breach of original contract.]
"The consequences of such a frame of government are obvious: That the
_laws_ are the rule to both, the common measure of the power of the
crown and of the obedience of the subject; and if the executive part
endeavors the _subversion and total destruction of the government_, the
original contract is thereby broke, and the right of allegiance ceases
that part of the government thus _fundamentally_ injured hath a right to
save or recover _that_ Constitution in which it had an original
interest."
[Sidenote: Words _necessary means_ selected with caution.]
"_The necessary means_ (which is the phrase used by the Commons in their
first article) words made choice of by them _with the greatest caution_.
Those means are described (in the preamble to their charge) to be, that
glorious enterprise which his late Majesty undertook, with an armed
force, to deliver this kingdom from Popery and arbitrary power; the
concurrence of many subjects of the realm, who came over with him in
that enterprise, and of many others, of _all ranks and orders_, who
appeared in arms in many parts of the kingdom in aid of that enterprise.
"These were the _means_ that brought about the Revolution; and which the
act that passed soon after, _declaring the rights and liberties of the
subject, and settling the succession of the crown_, intends, when his
late Majesty is therein called _the glorious instrument of delivering
the kingdom_; and which the Commons, in the last part of their first
article, express by the word _resistance_.
[Sidenote: Regard of the Commons to their allegiance to the crown, and
to the ancient Constitution.]
"But the Commons, who will never be unmindful of the _allegiance_ of the
subjects to the _crown_ of this realm, judged it highly incumbent upon
them, out of regard to the _safety of her Majesty's person and
government, and the ancient and legal Constitution of this kingdom_, to
call that resistance the _necessary_ means; thereby plainly founding
that power, of right and resistance, which was exercised by the people
at the time of the happy Revolution, and which the duties of
_self-preservation_ and religion called them to, _upon the NECESSITY of
the case, and at the same time effectually securing her Majesty's
government, and the due allegiance of all her subjects_."
[Sidenote: All ages have the same interest in preservation of the
contract, and the same Constitution.]
"The nature of such an _original contract_ of government proves that
there is not only a power in the people, who have _inherited its
freedom_, to assert their own title to it, but they are bound in duty to
transmit the _same_ Constitution to their posterity also."
* * * * *
Mr. Lechmere made a second speech. Notwithstanding the clear and
satisfactory manner in which he delivered himself in his first, upon
this arduous question, he thinks himself bound again distinctly to
assert the same foundation, and to justify the Revolution on _the case
of necessity only_, upon principles perfectly coinciding with those laid
down in Mr. Burke's letter on the French affairs.
* * * * *
_Mr. Lechmere._
[Sidenote: The Commons strictly confine their ideas of a revolution to
necessity alone and self-defence.]
[Sidenote A: N.B. The remark implies, that allegiance would be insecure
without this restriction.]
"Your Lordships were acquainted, in opening the charge, with how _great
caution_, and with what unfeigned regard to her Majesty and her
government, and to the _duty and allegiance_ of her subjects, the
Commons made choice of the words _necessary means_ to express the
resistance that was made use of to bring about the Revolution, and with
the condemning of which the Doctor is charged by this article: not
doubting but that the honor and justice of that resistance, _from the
necessity of that case, and to which alone we have strictly confined
ourselves_, when duly considered, would confirm and strengthen[A] and be
understood to be an effectual security of the allegiance of the subject
to the crown of this realm, _in every other case where there is not the
same necessity_; and that the right of the people to _self-defence, and
preservation of their liberties, by resistance as their last remedy, is
the result of a case of such NECESSITY ONLY, and by which the ORIGINAL
CONTRACT between king and people is broke. This was the principle laid
down and carried through all that was said with respect to ALLEGIANCE;
and on WHICH FOUNDATION, in the name and on the behalf of all the
commons of Great Britain, we assert and justify that resistance by which
the late happy Revolution was brought about_."
"It appears to your Lordships and the world, that _breaking the original
contract between king and people_ were the words made choice of by that
House of Commons," (the House of Commons which originated the
Declaration of Right,) "with the _greatest deliberation and judgment_,
and approved of by your Lordships, in that first and fundamental step
made towards the _re-establishment of the government_, which had
received so great a shock from the evil counsels which had been given to
that unfortunate prince."
* * * * *
Sir John Hawles, another of the managers, follows the steps of his
brethren, positively affirming the doctrine of non-resistance to
government to be the general moral, religious, and political rule for
the subject, and justifying the Revolution on the same principle with
Mr. Burke,--that is, as _an exception from necessity_. Indeed, he
carries the doctrine on the general idea of non-resistance much further
than Mr. Burke has done, and full as far as it can perhaps be supported
by any duty of _perfect obligation_, however noble and heroic it may be
in many cases to suffer death rather than disturb the tranquillity of
our country.
* * * * *
_Sir John Hawles._[15]
"Certainly it must be granted, that the doctrine that commands obedience
to the supreme power, _though in things contrary to Nature_, even to
suffer death, which is the highest injustice that can be done a man,
rather than make an opposition to the supreme power [is reasonable[16]],
because the death of one or some few private persons is a less evil than
_disturbing the whole government_; that law must needs be understood to
forbid the doing or saying anything to disturb the government, the
rather because the obeying that law cannot be pretended to be against
Nature: and the Doctor's refusing to obey that implicit law is the
reason for which he is now prosecuted; though he would have it believed
that the reason he is now prosecuted was for the doctrine he asserted of
obedience to the supreme power; which he might have preached as long as
he had pleased, and the Commons would have taken no offence at it, if
he had stopped there, and not have taken upon him, on that pretence or
occasion, to have cast odious colors upon the Revolution."
* * * * *
General Stanhope was among the managers. He begins his speech by a
reference to the opinion of his fellow-managers, which he hoped had put
beyond all doubt the limits and qualifications that the Commons had
placed to their doctrines concerning the Revolution; yet, not satisfied
with this general reference, after condemning the principle of
non-resistance, which is asserted in the sermon _without any exception_,
and stating, that, under the specious pretence of preaching a peaceable
doctrine, Sacheverell and the Jacobites meant, in reality, to excite a
rebellion in favor of the Pretender, he explicitly limits his ideas of
resistance with the boundaries laid down by his colleagues, and by Mr.
Burke.
* * * * *
_General Stanhope._
[Sidenote: Rights of the subject and the crown equally legal.]
"The Constitution of England is founded upon _compact_; and the subjects
of this kingdom have, in their several public and private capacities,
_as_ legal a title to what are their rights by law _as_ a prince to the
possession of his crown.
[Sidenote: Justice of resistance founded on necessity.]
"Your Lordships, and most that hear me, are witnesses, and must remember
the _necessities_ of those times which brought about the Revolution:
that _no other_ remedy was left to preserve our religion and liberties;
_that resistance was_ necessary, _and consequently just_."
"Had the Doctor, in the remaining part of his sermon, preached up peace,
quietness, and the like, and shown how happy we are under her Majesty's
administration, and exhorted obedience to it, he had never been called
to answer a charge at your Lordships' bar. But the tenor of all his
subsequent discourse is one continued invective against the government."
* * * * *
Mr. Walpole (afterwards Sir Robert) was one of the managers on this
occasion. He was an honorable man and a sound Whig. He was not, as the
Jacobites and discontented Whigs of his time have represented him, and
as ill-informed people still represent him, a prodigal and corrupt
minister. They charged him, in their libels and seditious conversations,
as having first reduced corruption to a system. Such was their cant. But
he was far from governing by corruption. He governed by party
attachments. The charge of systematic corruption is less applicable to
him, perhaps, than to any minister who ever served the crown for so
great a length of time. He gained over very few from the opposition.
Without being a genius of the first class, he was an intelligent,
prudent, and safe minister. He loved peace, and he helped to communicate
the same disposition to nations at least as warlike and restless as that
in which he had the chief direction of affairs. Though he served a
master who was fond of martial fame, he kept all the establishments very
low. The land tax continued at two shillings in the pound for the
greater part of his administration. The other impositions were moderate.
The profound repose, the equal liberty, the firm protection of just
laws, during the long period of his power, were the principal causes of
that prosperity which afterwards took such rapid strides towards
perfection, and which furnished to this nation ability to acquire the
military glory which it has since obtained, as well as to bear the
burdens, the cause and consequence of that warlike reputation. With many
virtues, public and private, he had his faults; but his faults were
superficial. A careless, coarse, and over-familiar style of discourse,
without sufficient regard to persons or occasions, and an almost total
want of political decorum, were the errors by which he was most hurt in
the public opinion, and those through which his enemies obtained the
greatest advantage over him. But justice must be done. The prudence,
steadiness, and vigilance of that man, joined to the greatest possible
lenity in his character and his politics, preserved the crown to this
royal family, and, with it, their laws and liberties to this country.
Walpole had no other plan of defence for the Revolution than that of the
other managers, and of Mr. Burke; and he gives full as little
countenance to any arbitrary attempts, on the part of restless and
factious men, for framing new governments according to their fancies.
* * * * *
_Mr. Walpole_.
[Sidenote: Case of resistance out of the law, and the highest offence.]
[Sidenote: Utmost necessity justifies it.]
"Resistance is nowhere enacted to be legal, but subjected, by all the
laws now in being, to the greatest penalties. 'Tis what is not, cannot,
nor ought ever to be described, or affirmed in any positive law, to be
excusable; when, and upon what _never-to-be-expected_ occasions, it may
be exercised, no man can foresee; _and ought never to be thought of, but
when an utter subversion of the laws of the realm threatens the whole
frame of a Constitution, and no redress can otherwise be hoped for_. It
therefore does and _ought forever_ to stand, in the eye and letter of
the law, as the _highest offence_. But because any man, or party of men,
may not, out of folly or wantonness, commit treason, or make their own
discontents, ill principles, or disguised affections to another
interest, a pretence to resist the supreme power, will it follow from
thence that the _utmost necessity_ ought not to engage a nation _in its
own defence for the preservation of the whole_?"
* * * * *
Sir Joseph Jekyl was, as I have always heard and believed, as nearly as
any individual could be, the very standard of Whig principles in his
age. He was a learned and an able man; full of honor, integrity, and
public spirit; no lover of innovation; nor disposed to change his solid
principles for the giddy fashion of the hour. Let us hear this Whig.
* * * * *
_Sir Joseph Jekyl._
[Sidenote: Commons do not state the limits of submission.]
[Sidenote: To secure the laws, the only aim of the Revolution.]
"In clearing up and vindicating the justice of the Revolution, which was
the second thing proposed, it is far from the intent of the Commons to
state the _limits and bounds_ of the subject's submission to the
sovereign. That which the law hath been wisely silent in, the Commons
desire to be silent in too; nor will they put _any_ case of a
justifiable resistance, but that of the Revolution only: and _they
persuade themselves that the doing right to that resistance will be so
far from promoting popular license or confusion, that it will have a
contrary effect, and be a means of settling men's minds in the love of
and veneration for the laws_; to rescue and secure which was the _ONLY
aim and intention of those concerned in that resistance_."
* * * * *
Dr. Sacheverell's counsel defended him on this principle, namely,--that,
whilst he enforced from the pulpit the general doctrine of
non-resistance, he was not obliged to take notice of the theoretic
limits which ought to modify that doctrine. Sir Joseph Jekyl, in his
reply, whilst he controverts its application to the Doctor's defence,
fully admits and even enforces the principle itself, and supports the
Revolution of 1688, as he and all the managers had done before, exactly
upon the same grounds on which Mr. Burke has built, in his Reflections
on the French Revolution.
* * * * *
_Sir Joseph Jekyl._
[Sidenote: Blamable to state the bounds of non-resistance.]
[Sidenote: Resistance lawful only in _case_ of extreme and obvious
necessity.]
"If the Doctor had pretended to have stated the particular bounds and
limits of non-resistance, and told the people in what cases they might
or might not resist, _he would have been much to blame_; nor was one
word said in the articles, or by the managers, as if that was expected
from him; but, _on the contrary, we have insisted that in NO case can
resistance be lawful, but in case of EXTREME NECESSITY, and where the
Constitution can't otherwise be preserved; and such necessity ought to
be plain and obvious to the sense and judgment of the whole nation: and
this was the case at the Revolution_."
* * * * *
The counsel for Doctor Sacheverell, in defending their client, were
driven in reality to abandon the fundamental principles of his doctrine,
and to confess that an exception to the general doctrine of passive
obedience and non-resistance did exist in the case of the Revolution.
This the managers for the Commons considered as having gained their
cause, as their having obtained _the whole_ of what they contended for.
They congratulated themselves and the nation on a civil victory as
glorious and as honorable as any that had obtained in arms during that
reign of triumphs.
Sir Joseph Jekyl, in his reply to Harcourt, and the other great men who
conducted the cause for the Tory side, spoke in the following memorable
terms, distinctly stating the whole of what the Whig House of Commons
contended for, in the name of all their constituents.
* * * * *
_Sir Joseph Jekyl._
[Sidenote: Necessity creates an exception, and the Revolution a case of
necessity, the utmost extent of the demand of the Commons.]
"My Lords, the concessions" (the concessions of Sacheverell's counsel)
"are these: That _necessity_ creates an _exception_ to the general rule
of submission to the prince; that such exception is understood or
implied in the laws that require such submission; and that _the case of
the Revolution was a case of necessity._
"These are concessions _so ample_, and do so _fully_ answer the drift of
the Commons in this article, and are to _the utmost extent of their
meaning in it_, that I can't forbear congratulating them upon this
success of their impeachment,--that in full Parliament, this erroneous
doctrine of _unlimited_ non-resistance is given up and disclaimed. And
may it not, in after ages, be an addition to the glories of this bright
reign, that so many of those who are honored with being in her Majesty's
service have been at your Lordships' bar thus successfully contending
for the _national_ rights of her people, and proving they are not
precarious or remediless?
"But to return to these concessions: I must appeal to your Lordships,
whether they are not a _total departure_ from the Doctor's answer."
* * * * *
I now proceed to show that the Whig managers for the Commons meant to
preserve the government on a firm foundation, by asserting the perpetual
validity of the settlement then made, and its coercive power upon
posterity. I mean to show that they gave no sort of countenance to any
doctrine tending to impress the _people_ (taken separately from the
legislature, which includes the crown) with an idea that _they_ had
acquired a moral or civil competence to alter, without breach of the
original compact on the part of the king, the succession to the crown,
at their pleasure,--much less that they had acquired any right, in the
case of such an event as caused the Revolution, to set up any new form
of government. The author of the Reflections, I believe, thought that no
man of common understanding could oppose to this doctrine the ordinary
sovereign power as declared in the act of Queen Anne: that is, that the
kings or queens of the realm, with the consent of Parliament, are
competent to regulate and to settle the succession of the crown. This
power is and ever was inherent in the supreme sovereignty, and was not,
as the political divines vainly talk, acquired by the Revolution. It is
declared in the old statute of Queen Elizabeth. Such a power must reside
in the complete sovereignty of every kingdom; and it is in fact
exercised in all of them. But this right of _competence_ in the
legislature, not in the people, is by the legislature itself to be
exercised with _sound discretion_: that is to say, it is to be exercised
or not, in conformity to the fundamental principles of this government,
to the rules of moral obligation, and to the faith of pacts, either
contained in the nature of the transaction or entered into by the body
corporate of the kingdom,--which body in juridical construction never
dies, and in fact never loses its members at once by death.
Whether this doctrine is reconcilable to the modern philosophy of
government I believe the author neither knows nor cares, as he has
little respect for any of that sort of philosophy. This may be because
his capacity and knowledge do not reach to it. If such be the case, he
cannot be blamed, if he acts on the sense of that incapacity; he cannot
be blamed, if, in the most arduous and critical questions which can
possibly arise, and which affect to the quick the vital parts of our
Constitution, he takes the side which leans most to safety and
settlement; that he is resolved not "to be wise beyond what is written"
in the legislative record and practice; that, when doubts arise on them,
he endeavors to interpret one statute by another, and to reconcile them
all to established, recognized morals, and to the general, ancient,
known policy of the laws of England. Two things are equally evident: the
first is, that the legislature possesses the power of regulating the
succession of the crown; the second, that in the exercise of that right
it has uniformly acted as if under the _restraints_ which the author has
stated. That author makes what the ancients call _mos majorum_ not
indeed his sole, but certainly his principal rule of policy, to guide
his judgment in whatever regards our laws. Uniformity and analogy can be
preserved in them by this process only. That point being fixed, and
laying fast hold of a strong bottom, our speculations may swing in all
directions without public detriment, because they will ride with sure
anchorage.
In this manner these things have been always considered by our
ancestors. There are some, indeed, who have the art of turning the very
acts of Parliament which were made for securing the hereditary
succession in the present royal family, by rendering it penal to doubt
of the validity of those acts of Parliament, into an instrument for
defeating all their ends and purposes,--but upon grounds so very foolish
that it is not worth while to take further notice of such sophistry.
To prevent any unnecessary subdivision, I shall here put together what
may be necessary to show the perfect agreement of the Whigs with Mr.
Burke in his assertions, that the Revolution made no "essential change
in the constitution of the monarchy, or in any of its ancient, sound,
and legal principles; that the succession was settled in the Hanover
family, upon the idea and in the mode of an hereditary succession
qualified with Protestantism; that it was not settled upon _elective_
principles, in any sense of the word _elective_, or under any
modification or description of _election_ whatsoever; but, on the
contrary, that the nation, after the Revolution, renewed by a fresh
compact the spirit of the original compact of the state, binding itself,
_both in its existing members and all its posterity_, to adhere to the
settlement of an hereditary succession in the Protestant line, drawn
from James the First, as the stock of inheritance."
* * * * *
_Sir John Hawles_.
[Sidenote: Necessity of settling the right of the crown, and submission
to the settlement.]
"If he [Dr. Sacheverell] is of the opinion he pretends, I can't imagine
how it comes to pass that he that pays that deference to the supreme
power has preached so directly contrary to the determinations of the
supreme power in this government, he very well knowing that the
lawfulness of the Revolution, and of the means whereby it was brought
about, has already been determined by the aforesaid acts of
Parliament,--and do it in the worst manner that he could invent. _For
questioning the right to the crown here in England has procured the
shedding of more blood and caused more slaughter than all the other
matters tending to disturbances in the government put together._ If,
therefore, the doctrine which the Apostles had laid down was only to
continue the peace of the world, as thinking the death of some few
particular persons better to be borne with than a civil war, sure it is
the highest breach of that law to question the first principles of this
government."