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18 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.'

'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 endeavours 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.'

'The necessary means (which is the phrase used by the commons in their first article) are 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,

'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, right, and resist ance, 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,

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'Your lordships were acquainted, in opening the charge, with how great caution, and with what unfeigned regard to her majesty and her government, and the duty and allegiance of her subjects, the commons made use 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 honour 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, and be understood to be an effectual security for an 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 fundamental step towards the re-establishment of the government, which had received so great a

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Sir John Hawles, another of the managers, follows the steps of his brethren, positively affirming the doctrine of non-resistance to the 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.*

'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; 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 any thing 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 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 colours upon the revolution.'

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which is asserted in the sermon without any exception, and stating, that under the specious pretence of preaching a peaceable doctrine, Sacheverel and the jacobites meant in reality to excite a rebellion in favour of the pretender, he explicitly limits his ideas of resistance and the boundaries laid down by his colleagues and by Mr. Burke.

GENERAL STANHOPE.

'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.

"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 shewn 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 tenour of all his subsequent discourse is one continued invective against the government.'

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Mr. Walpole (afterwards Sir Robert) was one of the managers on this occasion. He was an honourable 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 burthens, 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 errours 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.

and

MR. WALPOLE.

'Resistance is no where enacted to be legal, but subjected, by all the laws now in being, to the greatest penalties. It is what is not, cannot, nor ought ever to be described, or affirmed, in any positive law, to be excusable: when, upon what never-to-be-expected occasions, it may be exercised, no man can foresee; and it ought never to be thought of, but when an utter subversion of the laws of the realm threatens the whole frame of our constitution, and no redress can otherwise be hoped for. It therefore does, and ought for ever 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?'

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in his age. He was a learned, and an able man; full of honour, integrity, and public spi- . rit; 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.

'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 licence 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 ir resistance.'

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Dr. Sacheverel's counsel defended him on this principle, namely—that whilst he enforced from the pulpit the general doctrine of nonresistance, 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.

'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 cannot 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.'

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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.'

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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. 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 sei 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 legislative 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 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 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.

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 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 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 breac that law to question the first principles of government.'

'If the doctor had been contented with liberty he took of preaching up the duty of sive obedience, in the most extensive mar he had thought fit, and would have stop there, your lordships would not have had the trouble, in relation to him, that you r have; but it is plain, that he preached up absolute and unconditional obedience, not continue the peace and tranquillity of this tion, but to set the subjects at strife, and raise a war in the bowels of this nation; and is for this that he is now prosecuted; though would fain have it believed that the prosec tion was for preaching the peaceable doctri

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'The whole tenour of the administration then in being, was agreed by all to be a tot departure from the constitution. The natio was at that time united in that opinion, all bu the criminal part of it. And as the natio joined in the judgment of their disease, so the did in the remedy. They saw there was n remedy left but the last; and when that remedy took place, the whole frame of government wa 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 convulsion, no one part of the constitution was altered, or suffered the least damage: but, on the contrary, the whole received new life and vigour.'

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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

*What we did was, in truth and substance, and in a constitutional light, a revolution, not made, but prevented. We took solid securities; we settled doubtful questions; we corrected anomalies in our law. In the stable fundamental parts of our constitution, we made no revolution; no, nor any alteration at all. We did not impair the monarchy. Perhaps it might be shewn that we strengthened it very considerably. The nation kept the same ranks, the same orders, the same privileges, the same franchises, the same rules for property, the same subordinations, the same order in the law, in the revenue, and in the magistracy; the same lords, the same commons, the same corporations, the same electors.' Mr. Burke's speech in the house of commons, 9th February, 1790. It appears how exactly he coincides in every thing with Sir Joseph Jekyl.

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