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the utmost horror for that ignominious murder. But whether his removal were caused by his own fears, or other men's artifices, it is manifest to me, that, supposing the throne to be vacant, which was the foot the nation went upon, the body of the people was thereupon left at liberty to chuse what form of government they pleased, by themselves, or their representatives.
The only difficulty of any weight against the proceedings at the revolution, is an obvious objection, to which the writers upon that subject have not yet given a direct or sufficient answer; as if they were in pain at some consequences, which they apprehend those of the contrary opinion might draw from it. I will repeat this objection as it was offered me some time ago ; with all its advantages, by a very pious, learned, and worthy gentleman of the nonjuring party: * The force of his argument turned upon this, that the laws made
supreme power cannot otherwise than by the supreme pow. er be annulled ; that this consisting in England of a king, lords, and commons, whereof each have a negative voice, no two of them can repeal or enact a law, without consent of the third; much less may any one of them be entirely excluded from its part of the legislature by a vote of the other two: that all these maxims were openly violated at the revolution ; where an assembly of the nobles and people, not summoned by the king's writ, (which was an essential part of the constitution,) and consequently no lawful meeting, did, merely upon their own authority, declare the king to have abdicated the throne vacant; and gave the crown by vote to a nephew, when there were three children to inherit; though by the fundamental laws of the realm the next heir is immediately to succeed. Neither doth it appear, how a prince's abdication can make any other sort of vacancy in the throne, than would be caused by his death ; since he cannot abdicate for his children, (who claim their right of succession by act of par. liament), otherwise than by his own consent, in form, to a bill from the two houses.
And this is the difficulty that seems chiefly to stick with the most reasonable of those, who, from a mere scruple of conscience, refuse to join with us upon the revolution-principle; but for the rest are, I believe, as far from loving arbitrary government as any others can be, who are born under a free constitution, and are allowed to have the least share of common good sense.
In this objection there are two questions included, First, Whether, upon the foot of our constitution, as it stood in the reign of the late king James, a king of England may be deposed? The second is, Whether the people of England, convened by
* Mr. Nelson, author of the Feasts and Fasts of the Church of England.
their own authority, after the king had withdrawn himself in the manner he did, had power to alter the succession ?
As for the first, it is a point I shall not presume to determine ; and shall therefore only say, that to any man who holds the negative, I would demand the liberty of putting the case as strongly as I pleased. I will suppose a prince limited by laws like ours, yet, running into a thousand caprices of cruelty, like Nero or Calligula ; I will suppose him to murder his mother and his wife; to commit incest, to ravish matrons, to blow up the senate, and burn his metropolis ; openly to renounce God and Christ, and worship the Devil; these, and the like exorbitancies, are in the power of a single person to commit without the advice of a ministry, or assistance of an army. And if such a king as I have described, cannot be deposed but by his own consent in parliament, I do not well see how he can be resisted; or what can be meant by a limited monarchy; or what signifies the people's consent in making and repealing laws, if the person who administers hath no tie but conscience, and is answerable to none but God. I desire no stronger proof that an opinion must be false, than to find very great absurdities annexed to it; and there cannot be greater than in the present case ; for it is not a bare speculation, that kings may run into such enormities as are above mentioned; the practice may be proved by examples, not only drawn from the first Cæsars, or latter emperors, but many modern princes of Europe: such as Peter the Cruel, Philip II. of Spain, John Basilovits of Muscovy: and, in our own nation, King John, Richard III. and Henry VIII. But there cannot be equal absurdities supposed in maintaining the contrary opinion ; because it is certain, that princes have it in their power to keep a majority on their side by any tolerable administration, till provoked by continual oppressions ; no man indeed can then answer where the madness of the people will stop.
As to the second part of the objection, Whether the people of England convened by their own authority, upon King James's precipitate departure, had power to alter the succession.
In answer to this, I think it is manifest from the practice of the wisest nations, and who seem to have had the truest notions of freedom, that when a prince was laid aside for mal-administration, the nobles and people, if they thought it necessary for the public weal, did resume the administration of the supreme power, (the power itself having been always in them), and did not only alter the succession, but often the very form of government too : because they believed there was no natural right in one man to govern another, but that all was by institution, force, or consent. Thus, the cities of Greece, when they drove out their tyrannical kings, either chose others from a new family, or abolished the
kingly government, and became free states. Thus the Romans, upon the expulsion of Tarquin, found it inconvenient for them to be subject any longer to the pride, the lust, the cruelty and arbitrary will of single persons; and therefore, by general consent, entirely altered the whole frame of their government. Nor do I find the proceedings of either, in this point, to have been condemned by any historian of the succeeding ages.
But a great deal hath been already said by other writers upoz this invidious and beaten subject; therefore I shall let it fall; though the point is commonly mistaken, especially by the lawyers ; who of all others seem least to understand the nature of government in general; like under-workmen, who are expert enough at making a single wheel in a clock, but are utterly ignorant how to adjust the several parts, or regulate the movements.
To return, therefore, from this digression : It is a church-ofEngland-man's opinion, that the freedom of a nation consists in an absolute unlimited legislative power wherein the whole body of the people are fairly represented, and in an executive duly limited, because on this side likewise there may be dangerous degrees, and a very ill extreme. For when two parties in a state are pretty equal in power, pretentions, merit, and virtue, (for these two last are, with relation to parties and a court, quite different things), it hath been the opinion of the best writers upon government, that a prince ought not in any sort to be under the guidance or influence of either; because he declines by this means, from his office of presiding over the whole, to be the head of a party: which, besides the indignity, renders him answerable for all public mismanagements, and the consequences of them; and in what. ever state this happens, there must either be a weakness in the prince or ministry, or else the former is too much restrained by the nobles, or those who represent the people.
To conclude: A church-of-England-man may, with prudence and a good conscience, approve the professed principles of one party more than the other, according as he thinks they best promote the good of church and state ; but he will never be swayed by passion or interest to advance an opinion, merely because it is that of the party he most approves ; which one single principle he looks upon as the root of all our civil animosities.
To enter into a party, as into an order of Friars, with so resigned an obedience to su. periors, is very unsuitable both with the civil and religious liber. ties we so zealously assert. Thus the understandings of a whole senate are often inslaved by three or four leaders on each side ; who, instead of intending the public weal, have their hearts wholly set upon ways and means how to get or to keep employments. But, to speak more at large, how has this spirit of fact mingled itself with the mass of the people, changed their nature and manners, and the very genius of the nation ? broke all the laws of charity, neighbourhood, alliance, and hospitality, destroyed all ties of friendship, and divided families against themselves > And no wonder it should be so, when, in order to find out the character of a person, instead of enquiring whether he be a man of virtue, honour, piety, wit, good sense, or learning; the modern question is only, Whether he be a Whig or a Tory? under which terms all good and ill qualities are included.
Now, because it is a point of difficulty to chuse an exact middle between two ill extremes, it may be worth enquiring, in the present case, which of these a wise and good man would rather seem to avoid. Taking therefore their own good and ill charac. ters, with due abatements and allowances for partiality and pas. sion, I should think, that, in order to preserve the constitution entire in church and state, whoever hath true value for both would be sure to avoid the extremes of Whig for the sake of the former, and the extremes of Tory on account of the latter.
I have now said all that I could think convenient upon so nice a subject, and find I have the ambition with other common reasoners, to wish at least that both parties may think me in the right; which would be of some use to those who have any virtue left, but are blindly drawn into the extravagancies of either, upon false representations, to serve the ambition or malice of designing men, without
any prospect of their own. But if that is not to be hoped for, my next wish should be, that both might think me in the wrong: which I would understand as an ample justification of myself, and a sure ground to believe, that I have proceeded at least with impartiality, and perhaps with truth.
THE LATE DUKE OF LEEDS'S REASONS FOR PROTESTING AGAINST
A VOTE OF THE HOUSE OF LORDS IN ENGLAND, WHICH DECLARED A TRIAL BEFORE THE HOUSE OF LORDS IN IRELAND TO BE CORAM NON JUDICE.....PAGE 216.
I. BECAUSE upon the conquest of Ireland by Henry the Second, he introduced the laws of England into that kingdom, and sent them over the modus tenendi parliamenta, in terminis, the same with that of England : in which record it is said, that such things may be examined and corrected in pleno parliamento et non alibi.
II. Because in the 30th year of King Henry the Third it was provided, that all the laws and customs which are enjoyed in
England shall be in Ireland, and the said lands shall be subject thereto, and governed thereby, sicut Dominus yohannes cum ultimo esset in Hibernia statuit et fieri mandavit; et quod omnia brevia de communi jure quæ currunt in Anglia similiter currant in Hiber. nia.
III. Because it appears by other antient records, Quod terra Hiberniæ, intra se habet omnes et omnimodas curias prout in Anglia.
It Because King Edward the Third, in the 29th year of his reign, ordained, for the quiet and good government of the people of Ireland, that all cases whatsoever, errors in judgments, records, and process in the courts of Ireland, shall be corrected and amended in the parliament of Ireland.
V. Because a conqueror, by the laws of England, and of nations, having power to introduce what laws he will in the conquered country: And Henry the Second, pursuant to that power, having introduced the laws of England, and particularly that of holding parliaments in Ireland, the House of Lords in parliament in Ireland, may proceed to hear and determine judiciously such matters, which shall be brought before them, in the same manner as the lords in parliament in England.
VI. Because, pursuant to many concessions made by King Henry the Second, King John, King Henry the Third, and other kings of England, the lords of parliament of Ireland have proceeded to correct and amend errors in judgment, and decrees in the courts of Ireland; as appears by the several precedents certified over to your lordships, and their judgments never before calle:l in question : many of them being irregular, and therefore presumed to have been by a good and lawful jurisdiction; other. wise they would have been, by our ancestors, who were zealous asserters of their rights, long before this, called in question.
VII. The order declaring, that the appeal was, coram non jua dice, and null and void, will call all other judgments and decrees in question, under which many estates have been purchased, settled, and enjoyed, which will be of fatal consequences to many families, and create discontent and dissatisfaction in that kingdom.
VIII. Because the declaring the said appeal to be coram non judice, and null and void, strikes at and tends to the destruction of this house : for Ireland having omnes et omnimodas curias prout in Anglia, must include the high court of parliament; and being an exact picture of the high court of parliament in England, if they cannot judicially hear and determine appeals, writs of error, and impeachments, it may be from thence alledged we cannot here.
IX. Because the peers of Ireland had little else left them but their judicature, which, if taken away, will be of little esteem there, many of the peers of England having some of their titles of honor from that kingdom,