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 favourable 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.
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 for ever. 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 reipublicae, and as such are equally binding on king body politic.
All books are sourced from Project Gutenberg