Historical Rights Preferred to Abstract Rights

When I see the spirit of liberty in action, I see a strong principle at work; and this, for a while, is all I can possibly know of it. The wild gas, the fixed air, is plainly broke loose: but we ought to suspend our judgment until the first effervescence is a little subsided, till the liquor is cleared, and until we see something deeper than the agitation of a troubled and frothy surface. I must be tolerably sure, before I venture publicly to congratulate men upon a blessing, that they have really received one. Flattery corrupts both the receiver and the giver; and adulation is not of more service to the people than to kings. I should therefore suspend my congratulations on the new liberty of France, until I was informed how it had been combined with government, with public force, with the discipline and obedience of armies, with the collection of an effective and well-​distributed revenue, with morality and religion, with solidity and property, with peace and order, with civil and social manners. All these (in their way) are good things, too; and without them, liberty is not a benefit whilst it lasts, and is not likely to continue long. The effect of liberty to individuals is, that they may do what they please: we ought to see what it will please them to do, before we risk congratulations, which may be soon turned into complaints. Prudence would dictate this in the case of separate, insulated, private men. But liberty, when men act in bodies, is power. Considerate people, before they declare themselves, will observe the use which is made of power,—and particularly of so trying a thing as new power in new persons, of whose principles, tempers, and dispositions they have little or no experience, and in situations where those who appear the most stirring in the scene may possibly not be the real movers…

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,—

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…

The people of England will not ape the fashions they have never tried, nor go back to those which they have found mischievous on trial. They look upon the legal hereditary succession of their crown as among their rights, not as among their wrongs,—as a benefit, not as a grievance,—as a security for their liberty, not as a badge of servitude. They look on the frame of their commonwealth, such as it stands, to be of inestimable value; and they conceive the undisturbed succession of the crown to be a pledge of the stability and perpetuity of all the other members of our Constitution…

In the famous law of the 3rd of Charles the First, called the Petition of Right, the Parliament says to the king, “Your subjects have inherited this freedom”: claiming their franchises, not on abstract principles, “as the rights of men,” but as the rights of Englishmen, and as a patrimony derived from their forefathers…

You will observe, that, from Magna Charta to the Declaration of Right, it has been the uniform policy of our Constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity,—as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. By this means our Constitution preserves an unity in so great a diversity of its parts. We have an inheritable crown, an inheritable peerage, and a House of Commons and a people inheriting privileges, franchises, and liberties from a long line of ancestors…

You might, if you pleased, have profited of our example, and have given to your recovered freedom a correspondent dignity. Your privileges, though discontinued, were not lost to memory. Your Constitution, it is true, whilst you were out of possession, suffered waste and dilapidation; but you possessed in some parts the walls, and in all the foundations, of a noble and venerable castle. You might have repaired those walls; you might have built on those old foundations. Your Constitution was suspended before it was perfected; but you had the elements of a Constitution very nearly as good as could be wished. In your old states you possessed that variety of parts corresponding with the various descriptions of which your community was happily composed; you had all that combination and all that opposition of interests, you had that action and counteraction, which, in the natural and in the political world, from the reciprocal struggle of discordant powers draws out the harmony of the universe. These opposed and conflicting interests, which you considered as so great a blemish in your old and in our present Constitution, interpose a salutary check to all precipitate resolutions. They render deliberation a matter, not of choice, but of necessity; they make all change a subject of compromise, which naturally begets moderation; they produce temperaments, preventing the sore evil of harsh, crude, unqualified reformations, and rendering all the headlong exertions of arbitrary power, in the few or in the many, forever impracticable. Through that diversity of members and interests, general liberty had as many securities as there were separate views in the several orders; whilst by pressing down the whole by the weight of a real monarchy, the separate parts would have been prevented from warping and starting from their allotted places.