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 honourable as any that had been obtained in arms during the 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. 'My lords, the concessions [the concessions of Sacheverel'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 honoured with being in her majesty's service have been at your lordship's 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 shew 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 shew 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 reconcileable 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 legisla tive record and practice; that when doubts arise on them, he endeavours to interpret one statute by another; and to reconcile them all to established recognised 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 judg ment 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 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 shew 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. a civil war; sure it is the highest breach of that law to question the first principles of this government.' 'If the doctor had been contented with the. liberty he took of preaching up the duty of passive obedience, in the most extensive manner he had thought fit, and would have stopped there, your lordships would not have had the the trouble, in relation to him, that you now have; but it is plain, that he preached up his absolute and unconditional obedience, not to continue the peace and tranquillity of this nation, but to set the subjects at strife, and to raise a war in the bowels of this nation; and it is for this that he is now prosecuted; though he would fain have it believed that the prosecution was for preaching the peaceable doctrine of absolute obedience.' SIR JOSEPH JEKYL. The whole tenour of the administration, then in being, was agreed by all to be a total departure from the constitution. The nation was at that time united in that opinion, all but the criminal part of it. And as the nation joined in the judgment of their disease, so they did in the remedy. They saw there was no remedy left but the last; and when that remedy took place, the whole frame of government was restored entire and unhurt.* This shewed the excellent temper the nation was in at that time, that, after such provocations from an abuse of the regal power, and such a convu sion, no one part of the constitution was altered, or suffered the least damage: but, on the con trary, the whole received new life and vigour.' * The tory counsel for Dr. Sacheverel having insinuated, that a great and essential alteration in the constitution had been wrought by the revolution, Sir Joseph Jekyl is so strong on this 'If he [Dr. Sacheverel] is of the opinion ne pretends, I cannot 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 'What we did was, in truth and substance, and in a constitutional light, a revolution, not power in this government; he very well knowmade, but prevented. We took solid securities; ing that the lawfulness of the revolution, and we settled doubtful questions; we corrected of the means whereby it was brought about, anomalies in our law. In the stable fundamenhas already been determined by the aforesaid tal parts of our constitution, we made no revo lution; no, nor any alteration at all. We did acts of parliament: and do it in the worst not impair the monarchy. Perhaps it might be manner he could invent. For questioning the shewn that we strengthened it very considerright to the crown here in England, has procured ably. The nation kept the same ranks, the the shedding of more blood, and caused more same orders, the same privileges, the same franchises, the same rules for property, the slaughter, than all the other matters tending to same subordinations, the same order in the law, disturbances in the government, put together. in the revenue, and in the magistracy; the same If, therefore, the doctrine which the apostles lords, the same commons, the same corporahad laid down, was only to continue the tions, the same electors. Mr. Burke's speech peace in the house of commons, 9th February, 1790. of the world, as thinking the death of some few It appears how exactly he coincides in every Darticular better to be borne with than thing with Sir Joseph Jekyl persons point, that he takes fire even at the insinuation volution, in express terms, as an objection; of his being of such an opinion. SIR JOSEPH JEKYL. 'If the Doctor instructed his counsel to insinuate that there was any innovation in the constitution, wrought by the revolution, it is an addition to his crime. The revolution did not introduce any innovation; it was a restoration of the ancient fundamental constitution of the kingdom, and giving it its proper force and energy.' The solicitor general, Sir Robert Eyre, distinguishes expressly the case of the revolution, and its principles, from a proceeding at pleasure, on the part of the people, to change their ancient constitution, and to frame a new government for themselves. He distinguishes it with the same care from the principles of regicide, and republicanism, and the sorts of resistance condemned by the doctrines of the church of England, and which ought to be condemned by the doctrines of all churches professing Christianity. MR. SOLICITOR GENERAL SIR ROBERT 'The resistance at the revolution, which was founded in unavoidable necessity, could be no defence to a man that was attacked for asserting that the people might cancel their allegiance at pleasure, or dethrone and murder their sovereign by a judiciary sentence. For it can never be inferred from the lawfulness of resistance, at a time when a total subversion of the government both in church and state was intended, that a people may take up arms, and call their sovereign to account at pleasure; and, therefore, since the revolution could be of no service in giving the least colour for asserting any such wicked principle, the doctor could never intend to put it into the mouths of those new preachers, and new politicians, for a defence; unless it be his opinion, that the resistance at the revolution can bear any parallel with the execrable murder of the royal martyr, so justly detested by the whole nation. 'It is plain that the doctor is not impeached for preaching a general doctrine, and enforcing the general duty of obedience, but for preaching against an excepted case, after he has stated the exception. He is not impeached for preaching the general doctrine of obedience, and the utter illegality of resistance upon any pretence whatsoever; but because, having first laid down the general doctrine as true, without any exception, he states the excepted case the re and then, assuming the consideration of that "Your lordships take notice on what grounds 'The commons must always resent, with the utmost detestation and abhorrence, every position that may shake the authority of that act of parliament, whereby the crown is settled upon her majesty, and whereby the lords spiritual and temporal and commons do, in the name of all the people of England, most humbly and faithfully submit themselves, their heirs and posterities, to her majesty, which this general principle of absolute non-resistance must certainly shake. See Reflections, p. 121-2-3 'For, if the resistance at the revolution was illega, the revolution settled in usurpation, and this act can have no greater force and authority than an act passed under an usurper. 'And the commons take leave to observe, that the authority of the parliamentary settlement is a matter of the greatest consequence to maintain, in a case where the hereditary right to the crown is contested. It appears by the several instances mentioned in the act declaring the rights and liberties of the subject, and settling the succession of the crown, that at the time of the revolution there was a total subversion of the constitution of government both in church and state, which is a case that the laws of England could never suppose, provide for, or have in view.' Sir Joseph Jekyl, so often quoted, considered the preservation of the monarchy, and of the rights and prerogatives of the crown, as essential objects with all sound whigs; and that they were bound, not only to maintain them when injured or invaded, but to exert themselves as much for their re-establishment, if they should happen to be overthrown by popular fury, as any of their own more immediate and popular rights and privileges, if the latter should be at any time subverted by the crown. For this reason he puts the cases of the revolution and the restoration, exactly upon the same footing. He plainly marks, that it was the object of all honest men not to sacrifice one part of the constitution to another; and much more, not to sacrifice any of them to visionary theories of the rights of man; but to preserve our whole inheritance in the constitution, in all its members and all its relations, entire, and unimpaired, from generation to generation. In this Mr. Burke exactly agrees with him. SIR JOSEPH JEKYL. 'Nothing is plainer than that the people have a right to the laws and the constitution. This right the nation hath asserted, and recovered out of the hands of those who had dispossessed them of it at several times. There are of this two famous instances in the knowledge of the present age; I mean that of the restoration, and that of the revolution; in both of these great events were the regal power, and the rights of the people recovered. And it is hard to say in which the people have the greatest interest; for the commons are sensible that there is not one legal power belonging to the crown, but they have an interest in it; and I doubt not but they will always be as careful to support the rights of the crown as their own privileges.' The other whig managers regarded (as he did) the overturning of the monarchy by a republican faction with the very same horrour and detestation with which they regarded the destruction of the privileges of the people by an arbitrary monarch. MR. LECHMERE, Speaking of our constitution, states it as 'a constitution which happily recovered itself, at the restoration, from the confusions and disorders which the horrid and detestable proceedings of faction and usurpation had thrown it into, and which, after many convulsions and struggles, was providentially saved at the late happy revolution; and, by the many good laws passed since that time, stands now upon a firmer foundation: together with the most comfortable prospect of security to all posterity, by the settlement of the crown in the protestant line.' * I mean now to shew that the whigs, (if Sir Joseph Jekyl was one) and if he spoke in conformity to the sense of the whig house of commons and the whig ministry who employed him, did carefully guard against any presump tion that might arise from the repeal of the non-resistance oath of Charles the Second, as if, at the revolution, the ancient principles of our government were at all changed-or that republican doctrines were countenanced-or any sanction given to seditious proceedings upon general undefined ideas of misconductor for changing the form of government-or for resistance upon any other ground than the necessity so often mentioned, for the purpose of self-preservation. It will shew still more clearly the equal care of the then whigs, to prevent either the regal power from being swallowed up on pretence of popular rights, or the popular rights from being destoyed on pretence of regal prerogatives. SIR JOSEPH JEKYL. 'Further, I desire it may be considered, that these legislators [the legislators who framed the non-resistance oath of Charles the Second] were guarding against the consequences of those pernicious and anti-monarchical principles, which had been broached a little before in this nation; and those large declarations in favour of non-resistance were made to encounter or obviate the mischief of those principles; as appears by the preamble to the fullest of those acts, which is the militia act, in the 13th and 14th of king Charles the Second. The words of that act are these: And, during the late usurped governments, many evil and rebellious principles have been instilled into the minds of the people of this kingdom, which may break forth, unless prevented, to the disturbance of the peace and quiet thereof: Be it therefore enacted, &c. Here your lordships may see the reason that inclined those legislators to express themselves in such a manner against resistance. They had seen the regal rights swallowed up, under the pretence of popular ones; and it is no imputation on them that they did not then foresee a quite different case, as was that of the revolution; where, under the pretence of regal authority, a total subversion of the rights of the subject was advanced, and in a manner effected. And this may serve to shew, that it was not the design of those legislators to condemn resistance, in a case of absolute necessity, for preserving the constitution, when they were guarding against principles which had so lately destroyed it. 'As to the truth of the doctrine in this declaration which was repealed, I will admit it to be as true as the doctor's counsel assert it; that is, with an exception of cases of necessity; and it was not repealed because it was false, understanding it with that restriction; but it was repealed because it might be interpreted in an unconfined sense, and exclusive of that restriction; and being so understood would reflect on the justice of the revolution: and this the legislature had at heart, and were very jealous of; and by this repeal of that declaration, gave a parliamentary or legislative admonition, against asserting this doctrine of nonresistance in an unlimited sense.' 'Though the general doctrine of non-resistance, the doctrine of the church of England, as stated in her homilies, or elsewhere delivered, by which the general duty of subjects to the higher powers is taught, be owned to be, as unquestionably it is, a godly and wholesome doctrine; though this general doctrine has been constantly inculcated by the reverend fathers of the church, dead and living, and preached by them as a preservative against the popish doctrine of deposing princes, and as the ordinary rule of obedience; and though the same doctrine has been preached, maintained, and avowed by our most orthodox and able divines from the time of the reformation; and how innocent a man Dr. Sacheveral had been, if, with an honest and well-meant zeal, he had preached the same doctrine in the same general terms in which he found it delivered by the apostles of Christ, as taught by the homilies, and the reverend fathers of our church, and, in imitation of those great examples, had only pressed the general duty o. obedience, and the illegality of resistance, without taking notice of any exception.' * * Another of the managers for the house of commons, Sir John Holland, was not less careful in guarding against a confusion of the principles of the revolution, with any loose general doctrines of a right in the individual, or even in the people, to undertake for themselves, on any prevalent temporary opinions of convenience or improvement, any fundamental change in the constitution, or to fabricate a new government for themselves, and thereby to disturb the public peace, and to unsettle the ancient constitution of this kingdom. SIR JOHN HOLLAND. 'The commons would not be understood, as if they were pleading for a licentious resistance; as if subjects were left to their good-will and pleasure, when they are to obey, and when to resist. No, my lords, they know they are obliged by all the ties of social creatures and Christians, for wrath and conscience sake, to submit to their sovereign. The commons do not abet humoursome factious arms: they aver them to be rebellious. But yet they maintain, that that resistance at the revolution which was so necessary, was lawful and just from that necessity. 'These general rules of obedience may, upon a real necessity, admit a lawful exception; and such a necessary exception we assert the revolution to be. "Tis with this view of necessity only, absolute necessity of preserving our laws, liberties, and religion; 'tis with this limitation that we desire to be understood, when any one of us speak of resistance in general. The necessity of the resistance at the revolution, was at that time obvious to every man.' * * I shall conclude these extracts with a reference to the Prince of Orange's declaration, in which he gives the nation the fullest assurance that in his enterprise he was far from the intention of introducing any change whatever in the fundamental law and constitution of the state. He considered the object of his enterprise, not to be a precedent for further revolutions, but that it was the great end of his expedition to make such revolutions, so far as human power and wisdom could provide, unnecessary. |