Part 19

This doctrine, as applied to the prince now on the British throne, either is nonsense, and therefore neither true nor false, or it affirms a most unfounded, dangerous, illegal, and unconstitutional position. According to this spiritual doctor of politics, if his Majesty does not owe his crown to the choice of his people, he is no _lawful_ king. Now nothing can be more untrue than that the crown of this kingdom is so held by his Majesty. Therefore, if you follow their rule, the king of Great Britain, who most certainly does not owe his high office to any form of popular election, is in no respect better than the rest of the gang of usurpers, who reign, or rather rob, all over the face of this our miserable world, without any sort of right or title to the allegiance of their people. The policy of this general doctrine, so qualified, is evident enough. The propagators of this political gospel are in hopes their abstract principle (their principle that a popular choice is necessary to the legal existence of the sovereign magistracy) would be overlooked, whilst the king of Great Britain was not affected by it. In the mean time the ears of their congregations would be gradually habituated to it, as if it were a first principle admitted without dispute. For the present it would only operate as a theory, pickled in the preserving juices of pulpit eloquence, and laid by for future use. _Condo et compono quæ mox depromere passim_. By this policy, whilst our government is soothed with a reservation in its favor, to which it has no claim, the security which it has in common with all governments, so far as opinion is security, is taken away.

Thus these politicians proceed, whilst little notice is taken of their doctrines; but when they come to be examined upon the plain meaning of their words and the direct tendency of their doctrines, then equivocations and slippery constructions come into play. When they say the king owes his crown to the choice of his people, and is therefore the only lawful sovereign in the world, they will perhaps tell us they mean to say no more than that some of the king's predecessors have been called to the throne by some sort of choice, and therefore he owes his crown to the choice of his people. Thus, by a miserable subterfuge, they hope to render their proposition safe by rendering it nugatory. They are welcome to the asylum they seek for their offence, since they take refuge in their folly. For, if you admit this interpretation, how does their idea of election differ from our idea of inheritance? And how does the settlement of the crown in the Brunswick line, derived from James the First, come to legalize our monarchy rather than that of any of the neighboring countries? At some time or other, to be sure, all the beginners of dynasties were chosen by those who called them to govern. There is ground enough for the opinion that all the kingdoms of Europe were at a remote period elective, with more or fewer limitations in the objects of choice. But whatever kings might have been here or elsewhere a thousand years ago, or in whatever manner the ruling dynasties of England or France may have begun, the king of Great Britain is at this day king by a fixed rule of succession, according to the laws of his country; and whilst the legal conditions of the compact of sovereignty are performed by him, (as they are performed,) he holds his crown in contempt of the choice of the Revolution Society, who have not a single vote for a king amongst them, either individually or collectively: though I make no doubt they would soon erect themselves into an electoral college, if things were ripe to give effect to their claim. His Majesty's heirs and successors, each in his time and order, will come to the crown with the same contempt of their choice with which his Majesty has succeeded to that he wears.

Whatever may be the success of evasion in explaining away the gross error _fact_, which supposes that his Majesty (though he holds it in concurrence with the wishes) owes his crown to the choice of his people, yet nothing can evade their full, explicit declaration concerning the principle of a right in the people to choose,--which right is directly maintained, and tenaciously adhered to. All the oblique insinuations concerning election bottom in this proposition, and are referable to it. Lest the foundation of the king's exclusive legal title should pass for a mere rant of adulatory freedom, the political divine proceeds dogmatically to assert,[80] that, by the principles of the Revolution, the people of England have acquired three fundamental rights, all of which, with him, compose one system, and lie together in one short sentence: namely, that we have acquired a right

1. "To choose our own governors."

2. "To cashier them for misconduct."

3. "To frame a government for ourselves."

This new, and hitherto unheard-of bill of rights, though made in the name of the whole people, belongs to those gentlemen and their faction only. The body of the people of England have no share in it. They utterly disclaim it. They will resist the practical assertion of it with their lives and fortunes. They are bound to do so by the laws of their country, made at the time of that very Revolution which is appealed to in favor of the fictitious rights claimed by the society which abuses its name.

These gentlemen of the Old Jewry, in all their reasonings on the Revolution of 1688, have a revolution which happened in England about forty years before, and the late French Revolution, so much before their eyes and in their hearts, that they are constantly confounding all the three together. It is necessary that we should separate what they confound. We must recall their erring fancies to the _acts_ of the Revolution which we revere, for the discovery of its true _principles_. If the _principles_ of the Revolution of 1688 are anywhere to be found, it is in the statute called the _Declaration of Right_. In that most wise, sober, and considerate declaration, drawn up by great lawyers and great statesmen, and not by warm and inexperienced enthusiasts, not one word is said, nor one suggestion made, of a general right "to choose our own _governors_, to cashier them for misconduct, and to _form_ a government for _ourselves_."

This Declaration of Right (the act of the 1st of William and Mary, sess. 2, ch. 2) is the corner-stone of our Constitution, as reinforced, explained, improved, and in its fundamental principles forever settled. It is called "An act for declaring the rights and liberties of the subject, and for _settling_ the _succession_ of the crown." You will observe that these rights and this succession are declared in one body, and bound indissolubly together.

A few years after this period, a second opportunity offered for asserting a right of election to the crown. On the prospect of a total failure of issue from King William, and from the princess, afterwards Queen Anne, the consideration of the settlement of the Crown, and of a further security for the liberties of the people, again came before the legislature. Did they this second time make any provision for legalizing the crown on the spurious Revolution principles of the Old Jewry? No. They followed the principles which prevailed in the Declaration of Right; indicating with more precision the persons who were to inherit in the Protestant line. This act also incorporated, by the same policy, our liberties and an hereditary succession in the same act. Instead of a right to choose our own governors, they declared that the _succession_ in that line (the Protestant line drawn from James the First) was absolutely necessary "for the peace, quiet, and security of the realm," and that it was equally urgent on them "to maintain a _certainty in the succession_ thereof, to which the subjects may safely have recourse for their protection." Both these acts, in which are heard the unerring, unambiguous oracles of Revolution policy, instead of countenancing the delusive gypsy predictions of a "right to choose our governors," prove to a demonstration how totally adverse the wisdom of the nation was from turning a case of necessity into a rule of law.

Unquestionably there was at the Revolution, in the person of King William, a small and a temporary deviation from the strict order of a regular hereditary succession; but it is against all genuine principles of jurisprudence to draw a principle from a law made in a special case and regarding an individual person. _Privilegium non transit in exemplum_. If ever there was a time favorable for establishing the principle that a king of popular choice was the only legal king, without all doubt it was at the Revolution. Its not being done at that time is a proof that the nation was of opinion it ought not to be done at any time. There is no person so completely ignorant of our history as not to know that the majority in Parliament, of both parties, were so little disposed to anything resembling that principle, that at first they were determined to place the vacant crown, not on the head of the Prince of Orange, but on that of his wife, Mary, daughter of King James, the eldest born of the issue of that king, which they acknowledged as undoubtedly his. It would be to repeat a very trite story, to recall to your memory all those circumstances which demonstrated that their accepting King William was not properly a _choice_; but to all those who did not wish in effect to recall King James, or to deluge their country in blood, and again to bring their religion, laws, and liberties into the peril they had just escaped, it was an act of _necessity_, in the strictest moral sense in which necessity can be taken.

In the very act in which, for a time, and in a single case, Parliament departed from the strict order of inheritance, in favor of a prince who, though not next, was, however, very near in the line of succession, it is curious to observe how Lord Somers, who drew the bill called the Declaration of Right, has comported himself on that delicate occasion. It is curious to observe with what address this temporary solution of continuity is kept from the eye; whilst all that could be found in this act of necessity to countenance the idea of an hereditary succession is brought forward, and fostered, and made the most of, by this great man, and by the legislature who followed him. Quitting the dry, imperative style of an act of Parliament, he makes the Lords and Commons fall to a pious legislative ejaculation, and declare that they consider it "as a marvellous providence, and merciful goodness of God to this nation, to preserve their said Majesties' _royal_ persons most happily to reign over us _on the throne of their ancestors_, for which, from the bottom of their hearts, they return their humblest thanks and praises." The legislature plainly had in view the Act of Recognition of the first of Queen Elizabeth, chap. 3rd, and of that of James the First, chap. 1st, both acts strongly declaratory of the inheritable nature of the crown; and in many parts they follow, with a nearly literal precision, the words, and even the form of thanksgiving which is found in these old declaratory statutes.

The two Houses, in the act of King William, did not thank God that they had found a fair opportunity to assert a right to choose their own governors, much less to make an election the _only lawful_ title to the crown. Their having been in a condition to avoid the very appearance of it, as much as possible, was by them considered as a providential escape. They threw a politic, well-wrought veil over every circumstance tending to weaken the rights which in the meliorated order of succession they meant to perpetuate, or which might furnish a precedent for any future departure from what they had then settled forever. Accordingly, that they might not relax the nerves of their monarchy, and that they might preserve a close conformity to the practice of their ancestors, as it appeared in the declaratory statutes of Queen Mary[81] and Queen Elizabeth, in the next clause they vest, by recognition, in their Majesties _all_ the legal prerogatives of the crown, declaring "that in them they are most _fully_, rightfully, and _entirely_ invested, incorporated, united, and annexed." In the clause which follows, for preventing questions, by reason of any pretended titles to the crown, they declare (observing also in this the traditionary language, along with the traditionary policy of the nation, and repeating as from a rubric the language of the preceding acts of Elizabeth and James) that on the preserving "a _certainty_ in the SUCCESSION thereof the unity, peace, and tranquillity of this nation doth, under God, wholly depend."

They knew that a doubtful title of succession would but too much resemble an election, and that an election would be utterly destructive of the "unity, peace, and tranquillity of this nation," which they thought to be considerations of some moment. To provide for these objects, and therefore to exclude forever the Old Jewry doctrine of "a right to choose our own governors," they follow with a clause containing a most solemn pledge, taken from the preceding act of Queen Elizabeth,--as solemn a pledge as ever was or can be given in favor of an hereditary succession, and as solemn a renunciation as could be made of the principles by this society imputed to them:--"The Lords Spiritual and Temporal, and Commons, do, in the name of all the people aforesaid, most humbly and faithfully submit _themselves, their heirs, and posterities forever_; and do faithfully promise that they will stand to, maintain, and defend their said Majesties, and also the _limitation of the crown_, herein specified and contained, to the utmost of their powers," &c., &c.

So far is it from being true that we acquired a right by the Revolution to elect our kings, that, if we had possessed it before, the English nation did at that time most solemnly renounce and abdicate it, for themselves, and for all their posterity forever. These gentlemen may value themselves as much as they please on their Whig principles; but I never desire to be thought a better Whig than Lord Somers, or to understand the principles of the Revolution better than those by whom it was brought about, or to read in the Declaration of Right any mysteries unknown to those whose penetrating style has engraved in our ordinances, and in our hearts, the words and spirit of that immortal law.

It is true, that, aided with the powers derived from force and opportunity, the nation was at that time, in some sense, free to take what course it pleased for filling the throne,--but only free to do so upon the same grounds on which they might have wholly abolished their monarchy, and every other part of their Constitution. However, they did not think such bold changes within their commission. It is, indeed, difficult, perhaps impossible, to give limits to the mere _abstract_ competence of the supreme power, such as was exercised by Parliament at that time; but the limits of a _moral_ competence, subjecting, even in powers more indisputably sovereign, occasional will to permanent reason, and to the steady maxims of faith, justice, and fixed fundamental policy, are perfectly intelligible, and perfectly binding upon those who exercise any authority, under any name, or under any title, in the state. The House of Lords, for instance, is not morally competent to dissolve the House of Commons,--no, nor even to dissolve itself, nor to abdicate, if it would, its portion in the legislature of the kingdom. Though a king may abdicate for his own person, he cannot abdicate for the monarchy. By as strong, or by a stronger reason, the House of Commons cannot renounce its share of authority. The engagement and pact of society, which generally goes by the name of the Constitution, forbids such invasion and such surrender. The constituent parts of a state are obliged to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with separate communities: otherwise, competence and power would soon be confounded, and no law be left but the will of a prevailing force. On this principle, the succession of the crown has always been what it now is, an hereditary succession by law: in the old line it was a succession by the Common Law; in the new by the statute law, operating on the principles of the Common Law, not changing the substance, but regulating the mode and describing the persons. Both these descriptions of law are of the same force, and are derived from an equal authority, emanating from the common agreement and original compact of the state, _communi sponsione reipublicæ_, and as such are equally binding on king, and people too, as long as the terms are observed, and they continue the same body politic.

It is far from impossible to reconcile, if we do not suffer ourselves to be entangled in the mazes of metaphysic sophistry, the use both of a fixed rule and an occasional deviation,--the sacredness of an hereditary principle of succession in our government with a power of change in its application in cases of extreme emergency. Even in that extremity, (if we take the measure of our rights by our exercise of them at the Revolution,) the change is to be confined to the peccant part only,--to the part which produced the necessary deviation; and even then it is to be effected without a decomposition of the whole civil and political mass, for the purpose of originating a new civil order out of the first elements of society.

A state without the means of some change is without the means of its conservation. Without such means it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve. The two principles of conservation and correction operated strongly at the two critical periods of the Restoration and Revolution, when England found itself without a king. At both those periods the nation had lost the bond of union in their ancient edifice: they did not, however, dissolve the whole fabric. On the contrary, in both cases they regenerated the deficient part of the old Constitution through the parts which were not impaired. They kept these old parts exactly as they were, that the part recovered might be suited to them. They acted by the ancient organized states in the shape of their old organization, and not by the organic _moleculæ_ of a disbanded people. At no time, perhaps, did the sovereign legislature manifest a more tender regard to that fundamental principle of British constitutional policy than at the time of the Revolution, when it deviated from the direct line of hereditary succession. The crown was carried somewhat out of the line in which it had before moved; but the new line was derived from the same stock. It was still a line of hereditary descent; still an hereditary descent in the same blood, though an hereditary descent qualified with Protestantism. When the legislature altered the direction, but kept the principle, they showed that they held it inviolable.

On this principle, the law of inheritance had admitted some amendment in the old time, and long before the era of the Revolution. Some time after the Conquest great questions arose upon the legal principles of hereditary descent. It became a matter of doubt whether the heir _per capita_ or the heir _per stirpes_ was to succeed; but whether the heir _per capita_ gave way when the heirdom _per stirpes_ took place, or the Catholic heir when the Protestant was preferred, the inheritable principle survived with a sort of immortality through all transmigrations,--

Multosque per annos Stat fortuna domûs, et avi numerantur avorum.

This is the spirit of our Constitution, not only in its settled course, but in all its revolutions. Whoever came in, or however he came in, whether he obtained the crown by law or by force, the hereditary succession was either continued or adopted.

The gentlemen of the Society for Revolutions see nothing in that of 1688 but the deviation from the Constitution; and they take the deviation from the principle for the principle. They have little regard to the obvious consequences of their doctrine, though they may see that it leaves positive authority in very few of the positive institutions of this country. When such an unwarrantable maxim is once established, that no throne is lawful but the elective, no one act of the princes who preceded this era of fictitious election can be valid. Do these theorists mean to imitate some of their predecessors, who dragged the bodies of our ancient sovereigns out of the quiet of their tombs? Do they mean to attaint and disable backwards all the kings that have reigned before the Revolution, and consequently to stain the throne of England with the blot of a continual usurpation? Do they mean to invalidate, annul, or to call into question, together with the titles of the whole line of our kings, that great body of our statute law which passed under those whom they treat as usurpers? to annul laws of inestimable value to our liberties,--of as great value at least as any which have passed at or since the period of the Revolution? If kings who did not owe their crown to the choice of their people had no title to make laws, what will become of the statute _De tallagio non concedendo?_ of the _Petition of Right?_ of the act of _Habeas Corpus?_ Do these new doctors of the rights of men presume to assert that King James the Second, who came to the crown as next of blood, according to the rules of a then unqualified succession, was not to all intents and purposes a lawful king of England, before he had done any of those acts which were justly construed into an abdication of his crown? If he was not, much trouble in Parliament might have been saved at the period these gentlemen commemorate. But King James was a bad king with a good title, and not an usurper. The princes who succeeded according to the act of Parliament which settled the crown on the Electress Sophia and on her descendants, being Protestants, came in as much by a title of inheritance as King James did. He came in according to the law, as it stood at his accession to the crown; and the princes of the House of Brunswick came to the inheritance of the crown, not by election, but by the law, as it stood at their several accessions, of Protestant descent and inheritance, as I hope I have shown sufficiently.