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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."
Burke refers to the prospect afterwards of a total failure of issue from King William and Queen Anne. The consideration of this settlement of the crown again came before parliament, indicating with more precision the persons who were to inherit in the Protestant line, and they declared that the succession in that Protestant line drawn from James the First was absolutely necessary for the peace, quiet, and security of the realm,” and that it was especially urgent on them “ to maintain a certainty in the succession thereof, to which the subjects may safely have recourse for their protection.” Burke then declares “ both these acts, in which are heard the unerring, unambiguous oracles of revolutionary 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."
Before considering the act of settlement of crown succession, drawn by the penetrating pen of Somers, we might just allude to the act of 1788, defining whether the heir apparent was the legal successor during the insanity of George III., or whether he was to act under a regent. Fox, and the opposition, contended that under the law he must for the time become king; but Pitt, and parliament, held that he could only act under the direction of a Regency established by the legislature, so we have this declaration defining the succession of the crown in such an exigency.
This turning a case of necessity into a rule of law is not maintainable, except when the same necessity sustains the rule in the like case. If the men of 1688 could turn a case of necessity into a rule of law, regulating and liiniting the succession of the crown, a like recurring necessity may also change the succession of the crown. The sole perversion would be to disturb the fixed law of succession when the crown had done nothing to forfeit its hereditary rights. If Burke maintained that under no circuinstances could there be a defeasance of the crown, he contradicted the act of 1688, which declared that “King James the Second having abdicated the government, and the throne being thereby vacant, his Highness, the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power), did cause letters to be issued to the lords, spiritual, temporal, counties, cities, universities, boroughs and cinque-ports for the choosing of such persons to represent them as were of right to be sent to parliament to meet and sit at Westminster, upon the two and twenty-second day of January, in this year 1688, in order to make such an establishment as that their religion, laws and liberties might not again be in danger of being subverted; upon which letters, elections having been accordingly made," etc. Then being in parliament assembled, in full and free representation of the nation after the manner of their ancestors, and taking into consideration the best means for vindicating and asserting their ancient rights and liberties, they did declare: 1. That the pretended power of suspending of laws, or the execntion of laws, by regal authority, as it hath been assumed and exercised of late, is illegal. 4. That levying money for, or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner, than the same is or shall be granted, is illegal, and after thirteen enumerations of rights they do claim and insist that these are the undoubted rights and liberties of the people of England, and that they were not to be hereafter drawn in question, and to which they are par: ticularly encouraged by the declaration of his Highness, the Prince of Orange, as being the only means for obtaining a full redress and remedy therein.
So the Bill of Rights does not admit that the crown was forfeited, or that a breach and violation of this bill would work the forfeiture of the crown. Burke is entirely right as to the act of William and Mary; but it was historically true that the regular succession had been broken by the dereliction of the receding king and his culpable conduct in English opinion. It is also clear that a "new sovereign had been thus raised to the throne for the sake of those liberties by violating which his predecessor had forfeited it.” And thus William III. was an elective king raised by means of a convention of a new parliament of the people of England; and this Bill of Rights was afterwards confirmed by a regular act of the legislature which establishes the limitation of the crown that “all persons who shall hold communication with the church of Rome, or shall marry a papist, shall be excluded and forever incapable to possess, inherit or enjoy the crown and government of this realın; and in all such cases, the people of these realms shall be absolved from their allegiance, and the crown shall descend to the next heir." Hallam says that this was as near an approach to a generalization of a principle of resistance as could be admitted with any security for public order. So this bill forfeited the crown to the next heir when any one should be so rash as to hold communication with Rome, or who should marry a papist; and this result was to secure the
and tranquility of England; and for a like reason the utter disregard of the Bill of Rights in this regard on the part of the crown should work a like forfeiture in the succession. Had that principle been embraced as to the violation of rights declared, no more kings of England would have given occasion to the declaration of parliament in 1788, that the “influence of the crown had been increasing, was increasing, and ought to be diminished.” Burke himself supported this principle, so finely drawn by that great lawyer of the age, Dunning.
But it is not the language of the act which must control when we get at the fact that the king was elected and confirmed in his title by the people and parliament. So, then, we may finally say that the English crown, in its title, still rests on an act of parliament, and though the constitution of England does limit the crown, yet there are no acts that defeat the succession or work a forfeiture because of the violation of the political liberties of England. The English have always avoided abstractions and general principles when they could rest their rights on the historic base. In nothing are they more unlike the French than in this respect. The French follow their principles to a logical conclusion, or at least reduce them to a generalization. With them it is liberty,
equality and fraternity. What a havoc this would make in England, where inequality of law and civil condition still remain in greater force than in any great state, not excepting Germany and Russia. These inequalities in the law hare the force of proscription, but under the wise impulse of the age they are constantly yielding to reform. Englishmen stand by their charters, and find themselves, in the nineteenth century, drifting, in spite of proscription and Tory stagnation.
Burke, in an address to the king, praying him to conciliate the Americans first, and, if need be, to rely upon force afterwards, used this significant language : “Sir, your throne cannot stand secure upon the principles of unconditional submission and passive obedience; on powers exercised without the concurrence of the people to be governed; on acts made in defiance of their prejudices and habits; on acquiescence procured by foreign mercenary troops, and secured by standing armies. These may possibly be the foundation of other thrones; they must be the subversion of yours. It is not to passive principles in our ancestors that we owe the honor of appearing before a sovereign who cannot feel that he is a prince without knowing that we ought to be free. The revolution is a departure from the ancient course of the descent of this monarchy. The people, at that time, re-entered into their original rights; and it was not because a positive law authorized what was then done, but because the freedom and safety of the subject, the origin and cause of all laws, required a proceeding paramount and superior to them. At that ever memorable and instructive period the letter of the law was superseded in favor of the substance of liberty. To the free choice, therefore, of the people, without either king or parliament, we owe that happy establishment out of which both king and parliament were regenerated. From that great principle of liberty have originated the statutes confirming and ratifying the establishinent from which your majesty derives your right to rule over us. Those statutes have not given us our liberty ; our liberties have produced them. Every hour of your majesty's reign your title stands upon the very same foundation on which it was at first laid ; and we do not know a better on which it can possibly be placed.”
Such was the language of the address to George III drawn by Burke, and here we may leave forever the just interpretation of English liberty, and the title on which the crown of England stands and forever depends. And here we may add, if Englishmen could, in 1688, relay and reassert the foundation of their liberty, so had France a similar right, a hundred years later, to consult in what way her peace and tranquility could be subverted. France had thus the right, based on original principles of liberty and society, to cashier her king and choose her own government anew. At least, we think Burke's address sustains all that Englishmen can claim as derivable from the act of settlement of 1688; but there remains the unquestionable right of revolution in every state sustained by Locke and Milton, and the people of England, in many contests for their undoubted rights.
We have shown that the rights of men exist and have force before they become citizens of any state, and which they enter for the purpose of securing these natural rights. In the ramifications of society these rights are modified, refracted; but whenever the state subverts these ends of all just government, then the right of the people to redress and overthrow the government by force exists, and may be resorted to to recover their liberty. Burke says, “as to the share of power, authority and direction which each individual ought to have in the management of the state, that I must deny to be amongst the direct, original rights of man in civil society; for I have in my contemplation the civil social man, and no other. It is a thing to be settled by convention. If civil society be the offspring of convention, the convention must be its law. That convention must limit and modify all the descriptions of constitution which are formed under it. * * * They can have no being in any other state of things; and how can any man claim under the conventions of civil society rights which are absolutely repugnant to it ?"
There is no answer to this, except we assert that society exists for the good of its meinbers, and whenever it subordi