Billeder på siden
PDF
ePub

Lofit.

abandoned. Events were by no means improba- Mr. Capel ble, in which, by the very act of fucceffion eftablished on the principles which had established the revolution, a new appointment, for which no legiflative provifion had been made, must have taken place; perfons inheritable, if they had not exprefsly been excluded, ftill remaining. And this appointment could have had no constitutional or rational basis, but in an authority derived from the choice of the people.

In reality, the people exercised a right as full as the most abfolute which the poffeffor of a fee can exert in limiting a private inheritance. If he gives this to John, in preference to his elder brother James, he gives it by the fame right, and not by any less than that, which would have authorized him to give it to a ftranger. If he limits the defcent by conditions, he limits it as having the perfect difpofil; the nature and importance of those conditions being in his own breaft. If the legiflature then adverted in the inftance of William to any idea of propinquity to the throne, they did thus, becaufe fuch propinquity was, with more effential confiderations, a motive of choice; as Loftening prejudices, and retaining fo much of ancient ufage as appeared in the circumftances fafe and expedient to be retained. And in the preface to the last edition of the difcourfe of Dr. Price on the love of our country, it is well obferved, that the power of parliament to limit the defcent and inheritance of the crown is folemnly affirmed by a deli

berate

Lofft.

Mr. Capel berate act of the legislature.—I say nothing of the extreme fanction under which the denial of it is prohibited.

The right of the people to form a government for themfelves, is faid to have as little fanction from the revolution as the other two, either in precedent or principle. This may truly and fafely be admitted; fince we have feen that thofe two are most clearly and explicitly recognized, both in principle and practice, by that event: and if a people affert by their conduct their right to remove their governors for mal-adminiftration of their office, their right to choose governors fuperfeding by that choice the course of fucceffion; and if these rights fo afferted refolve themselves into firft principles of focial power and of civil freedom, it would be idle in the extreme to enquire by what means a people who understand these branches of their authority, inherit them as rational and focial beings, united for the common benefits of civil government, and act accordingly, can be made to doubt whether fuch government be not as much theirs to re-model or create, as the perfons by whom it is to be adminiftered are, neceffarily, from the relation in which they ftand, fubject to their appointment and removal.

But if Mr. Burke views the revolution in this country in 1688 rightly, it was an exertion of public authority to establish freedom for the people of that age, in fo far as their leaders thought proper

* 6 Anne, c. 7•

Lofft.

to establish it; but to perpetuate flavery on their Mr. Capel pofterity for ever; fince, if the ftipulations which they chose at that time to make were to be for ever binding on their defcendants by an irrepealable law, whatever defects or mischiefs time and experience might difcover, the law, which derives its force in every free state from being an expreffion of the will of the state, might act in the most perfect contrariety to their will.

Every law, I apprehend, which is not merely declaratory of immutable principles (for these derive their obligation from an independent and fupreme fource). may be repealed by the fame authority by which it is enacted; an ordinary law, by the ordinary power of the legislature under their general truft; a conftitutional law, by the conftitutional power of the people under a special truft, committed to the legislature for that particular purpofe. In any other view of the fubject, I fhould feel little difference between the obsolete notion of a divine hereditary indefeasible right to a perpetual fucceffion of unalterable monarchy, and a parliamentary indefeasible obligation to an unchangeable form of government.

The kings, if there have been fuch of this country fince the Norman William, who did'not owe their throne to choice, direct or remote, of their people, could, I apprehend, be no other than ufurpers. But it would not follow that the acts paffed under their reign would confequently be invalid, any more than the plebifcita proposed by a

tribune

Lofft.

Mr. Capel tribune in the Roman republic, under certain incapacities, by the conftitution, of holding that office. Mr. Burke, on recollection, can hardly, I think, fail to fee the right fide of this queftion; which has not been overlooked by the obfervation and fagacity of Plutarch. Laws would be wretchedly precarious indeed, if they thould be void by the want of tile in the individual exercifing in fact the regal office, though paffed by the advice and concurrence of the reprefentatives of the people, and the other branch of the community, the lords. To fuppofe this, feems to contradict all analogy: and if no temporary and perfonal confiderations had intervened, it feems incredible that the acts of the legiflature during the interregnum could have

been confidered as void.

In the last feven centuries, and what has paffed of the prefent, will one be found in which the courfe of fucceffion has been obferved as an unalterable rule? The general principle of a fucceffive crown, in preference to one elective, at every vacancy, has prevailed; as of convenience, not of perpetual and proper neceffity in a political fenfe. Yet Mr. Burke exprefles himfelf, as if there never had been a king of England who owed his throne to the choice of the people, prior to the revolution; and as if the validity of our most essential laws, fuch as are vital to the conftitution, depended on the refult of researches now to be made respecting the validity of the titles to the crown of the feveral kings in whofe reign they paffed; as if the

two

Lofft.

two houfes acting reprefentatively or immediately Mr. Capel for the whole community, the king excepted, could not give fanction to fuch laws as they fhould think neceffary for the fecurity and welfare of the people; if it should happen that posterity should be convinced by antiquarians, that the duke of York had a better title than the duke of Lancaster, or the contrary: that Richard the third was an ufurper; or, if he were not, that Henry the feventh was: that, to go earlier back, the fecond or the fourth Henry stood upon ground that might not be able to refift the preffure of a fevere difcuffion : that Edward the third had the moft fhocking objections to be opposed to his acceffion : or again, in later times, that of the fifters Mary and Elizabeth, the principles of fucceffion, if tenable as to one, muft fail as to the other; and that of choice, with regard to Mary, would have hiftorical objections to its clearnefs, not eafy to be furmounted. Where I fee the approbation or voluntary acquiefcence of the people, I fee law; although there may be anomalies affecting parts of the legiflature and on any other principle, I should doubt whether we had an exifting ftatute which could be called a law; at least fince the feptennial act, or much farther back, the act of disfranchisement, in the 8th of Henry VI. But for the rule which fupports laws until the public fuffrage of the nation declares their invalidity, notwithstanding defects in fome of the branches of the legiflature, it is unneceffary to quote Coke, Hale, Fofter, Blackstone, and Barring

ton.

« ForrigeFortsæt »