Chapter 10

"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."

"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 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_.

[Sidenote: Whole frame of government restored unhurt, on the Revolution.]

"The whole tenor of the administration then in being was agreed to 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 the government was restored entire and unhurt_.[17] This showed the excellent temper the nation was in at that time, that, after such provocations from an abuse of the regal power, and such a convulsion, _no one part of the Constitution was altered, or suffered the least damage; but, on the contrary, the whole received new life and vigor_."

* * * * *

The Tory counsel for Dr. Sacheverell 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 point, that he takes fire even at the insinuation of his being of such an opinion.

* * * * *

_Sir Joseph Jekyl._

[Sidenote: No innovation at the Revolution.]

"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 Eyre._

[Sidenote: Revolution no precedent for voluntary cancelling allegiance.]

[Sidenote: Revolution not like the case of Charles the First.]

"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 color 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_."

[Sidenote: Sacheverell's doctrine intended to bring an odium on the Revolution.]

[Sidenote: True defence of the Revolution an absolute necessity.]

"'Tis 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 Revolution, in express terms, as an objection, and then assumes the consideration of that excepted case, denies there was any resistance in the Revolution, and asserts that to impute resistance to the Revolution would cast black and odious colors upon it. This, my Lords, is not preaching the doctrine of non-resistance in the _general_ terms used by the Homilies and the fathers of the Church, where cases of necessity may be _understood to be excepted by a tacit implication, as the counsel have allowed_,--but is preaching directly against the resistance at the Revolution, which, in the course of this debate, has been all along admitted to _be necessary and just_, and can have no other meaning than to bring a dishonor upon the Revolution, and an odium upon those great and illustrious persons, _those friends to the monarchy and the Church, that assisted in bringing it about_. For had the Doctor intended anything else, he would have treated the case of the Revolution in a different manner, and have given _it the true and fair answer_: he would have said that the resistance at the Revolution was _of absolute necessity, and the only means left to revive the Constitution, and must be therefore taken as an excepted case_, and could never come within the reach or intention of the general doctrine of the Church."

"Your Lordships take notice on what grounds the Doctor continues to assert the same position in his answer. But is it not most evident that the general exhortations to be met with in the Homilies of the Church of England, and such like declarations in the statutes of the kingdom, are meant only as rules for the civil obedience of the subject to the legal administration of the supreme power in _ordinary cases_? And it is equally absurd to construe any words in a positive law to authorize the destruction of the whole, as to expect that King, Lords, and Commons should, in express terms of law, declare _such an ultimate resort as the right of resistance, at a time when the case supposes that the force of all law is ceased_."[18]

[Sidenote: Commons abhor whatever shakes the submission of posterity to the settlement of the crown.]

"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.

"For, if the resistance at the Revolution was illegal, the Revolution settled in usurpation, and this act can have no greater force and authority than an act passed under a usurper.

"And the Commons take leave to observe, that the authority of this 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 reëstablishment, 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._

[Sidenote: What are the rights of the people.]

[Sidenote: Restoration and Revolution.]

[Sidenote: People have an equal interest in the legal rights of the crown and of their own.]

"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 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 it 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 horror and detestation with which they regarded the destruction of the privileges of the people by an arbitrary monarch.

* * * * *

_Mr. Lechmere_,

[Sidenote: Constitution recovered at the Restoration and Revolution.]

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 show 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 presumption 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 misconduct, or 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 show 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 destroyed on pretence of regal prerogatives.

* * * * *

_Sir Joseph Jekyl_.

[Sidenote: Mischief of broaching antimonarchical principles.]

[Sidenote: Two cases of resistance: one to preserve the crown, the other the rights of the subject.]

"Further, I desire it may be considered, these legislators" (the legislators who framed the non-resistance oath of Charles the Second) "were guarding against the consequences of those _pernicious and antimonarchical principles which had been broached a little before in this nation_, and those large declarations in favor 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 show 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."

[Sidenote: Non-resistance oath not repealed because (with the restriction of necessity) it was false, but to prevent false interpretations.]

"As to the truth of the doctrine in this declaration which was repealed, _I'll 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 non-resistance _in an unlimited sense_."

[Sidenote: General doctrine of non-resistance godly and wholesome; not bound to state _explicitly_ the exceptions.]

"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_ soever Dr. Sacheverell 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 of obedience, and the illegality of resistance, without taking notice of any exception," &c.

* * * * *

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_.

[Sidenote: Submission to the sovereign a conscientious duty, except in cases of necessity.]