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bishop Stillingfleet, late bishop of Worcester, the present bishops of Rochester, Salisbury, Worcester, Ely, Bath and Wells,5 Lincoln, Exeter, St. Asaph, Carlisle, and Chichester.10 If I am able to show your lordships that all these right reverend fathers of our Church have preached the same doctrine the Doctor has, 11 are the same words coming out of their mouths to be received as oracles of truth, but spoke by the Doctor, fit for articles of impeachment? I am sure it is impossible to enter into the heart of man to conceive, that what these reverend prelates have asserted, that any general position they have laid down concerning Non-Resistance, is an affirmance that necessary means used to bring about the Revolution were odious and unjustifiable: why then is Doctor Sacheverell, by having taught the same doctrine, in the same manner as they did, to be charged for having suggested or maintained any such thing?

My lords, I dare not suppose this doctrine, thus established by so many reverend fathers of our Church to be erroneous. If an intemperate expression of one single archbishop above a hundred years since dead, is fit to be inserted in an Article of Impeachment of High Crimes and Misdemeanours, what punishment should I deserve, could I suppose the doctrine, taught by so many archbishops and bishops, to be erroneous? But if I might hope to be excused, if I made the supposition, that the homilies of the Church contain false doctrine, and that so many of the right reverend fathers of our Church are capable of erring, or being ignorant in the doctrine of their Church, I humbly propose it to your lordships, whether a clergyman who errs after such great examples, might not reasonably have hoped for a more moderate correction, than an impeachment! Had this slavish doctrine of Non-Resistance been first branded with its indelible mark of infamy, and the right and indispensable duty of Resistance to princes plainly shewn; had all the slavish notions of the common law which we find dispersed throughout our law-books, which give

Sprat. See his case, vol. 12, p. 1051.

2 Burnet. See his case, vol. 11, p. 1103.

3 Lloyd, one of the seven. See their case, vol. 12, p. 183; see also Proceedings against Lloyd, vol. 14, p. 545.

4 Moore. 5 Hooper. 6 Wake.

7 Blackhall, an antagonist of Hoadley, ridiculed in Powell's letter, Tatler, No. 50.

8 Fleetwood. • Nicholson. 10 Manningham.

11 In the case of Daniel Holt, November 23, 1793, it was decided that a defendant charged with having published a libel shall not be permitted to prove, that a paper similar to that for the publication of which he is prosecuted was published on a former occasion, by other persons who have never been prosecuted for it. 5 Term Rep. 436.

countenance to this doctrine of Non-Resistance, been first weeded out of them, and some few acts of parliament, entirely agreeable with this slavish doctrine, been first repealed; had the people been set right in the notions of their obedience, and the ministers of the Gospel been instructed by act of parliament what doctrine they ought to preach, and what not; had all these things been first done, and the Doctor had afterwards erred, your lordships might have then looked upon him as an obstinate offender. . . .

...

The next thing I beg leave to consider is, the law of England; whether the Doctor's assertion of the utter illegality of Resistance to the supreme power on any pretence whatsoever, in general terms, is agreeable to the law of England. . . . I mean, that as the general rule is always taught and inculcated by the Church, so it has always been declared by the legislature, without making any particular exception....

(Sir Simon Harcourt then discusses 15 Edw. II. (the Act banishing the Dispensers), 25 Edw. III. c. 2 (the Treason Statute), 3 Ja. I. c. 4 (prescribing an oath of obedience), 12 Car. II. c. 30 (the Act against the Regicides), 13 and 14 Car. II. c. 3 (the Militia Act), 13 Car. II. Sess. 2, c. 1 (the Corporation Act), 13 and 14 Car. II. c. 4 (the Act of Uniformity as exemplifying the doctrine of Non-Resistance)).

My lords, I have gone through the several laws I shall lay before your lordships on this occasion; and let me once more humbly beg your lordships, that you will be pleased to compare the Doctor's assertion in his Sermon, concerning the illegality of Resistance, with them; whether it be stronger than the declaration of the undoubted and fundamental law of the kingdom, in the act against the regicides; than the declaration in the Militia Act; than the oath required to be taken by so many acts of parliament; than the declaration in the 25th of Edw. 3. All the Doctor has said is, that Resistance to the supreme power is illegal, on any pretence whatsoever. All the peers and commons of England, under the characters and employments I have mentioned, have sworn to the truth of it; the 25th of Edw. 3, declares it to be high treason; and your lordships have heard what St. Paul says.

My lords, I began this discourse, relating to the doctrine of the Church and the laws of the land, with the most sincere protestation, that it was far from my intention to offer anything inconsistent with the justice of the Revolution: I think the justice of it consistent with our laws, the exception to be made to be always implied. And surely none can shew themselves truer friends to the Revolution, than those who prove that the Revolution may stand without impeaching the doctrines of our Church, or any fundamental law of the kingdom. . . .

...

Mr. Lechmere (in reply). And what light doth it give to the question now before your lordships, when at your bar, in defence of a person accused by the Commons, for condemning the necessary means which brought about the Revolution, you have heard that original contract, at that time so solemnly declared to be a fundamental principle, publicly denied, ridiculed, and endeavoured (in what manner it is easy to judge) to have been exploded?

us.

My lords, the truth of that position has its foundation in the nature and essence of the constitution of our government, and it will stand so long as this remains; and the sanction it has received from your lordships, and from that House of Commons, who had with so much wisdom and bravery asserted the rights of the kingdom in that extraordinary juncture, and who, pursuant to that Resolution, settled the crown upon her sacred majesty, ought to render it indisputable, so long at least as that establishment is preserved to But yet, could I think it seasonable to enter into it, to consider more particularly the nature of our government, to draw together some of the many incontestable evidences of its original freedom, to consider the nature, antiquity and history of the Coronation Oath, and the Oath of Allegiance, and the mutual obligations and consequences arising from them to the prince and people: Was I to go over the several branches that make up the ancient frame of our government, and which speak and express a consent and compact between the prince and people in their institution; and was I to observe that inseparable relation and equal security which they import between the crown and the subject, and which are so many infallible tokens of original consent stamped upon them; the truth and certainty of that position of an original contract between the king and people, might be laid down to your lordships in demonstrative terms. The gentleman that raised this observation, soon afterwards, in the same discourse, supposed, that by the original contract, the original constitution was meant; how strictly proper that manner of speaking might be found to be, I will not now determine; yet thus much may with certainty be concluded, that the denying the original contract, is not only to disavow the whole proceeding at the time of the Revolution, but to renounce the constitution itself, to disclaim those many and undeniable proofs and testimonies of it, which almost every part of our history, our records, and memorials of antiquity, will furnish: To deny the original contract of government, is to contradict and condemn the voice and tenor of all our laws, of every act of the supreme legislative power, the force and efficacy of which exists upon the consent of the Crown,

Lords and Commons, and are therefore so many lasting and unerring proofs of that, as the original foundation of that supreme power; it is not only to oppose the constant judgment of all learned men, who have understood and wrote impartially of our government, but even the sense of many of those writings which have been produced and read to you in the Doctor's defence, and more particularly that of the judicious Mr. Hooker: To deny and condemn the original contract between king and people, what other consequences could it produce, than to unhinge the government, and to destroy that excellent balance of power, which is secured by it, and by which it has been so long preserved? It must weaken the ancient and just prerogatives of the crown, subvert the foundations of your lordships' legislative and judicial powers, render the parliamentary rights of the Commons precarious and uncertain, and terminate at length, in that absurd, yet dangerous opinion, of the patriarchal right, which, when together joined with the doctrines of absolute and unlimited Non-Resistance, and unconditional obedience of the subject to their prince, completes that fatal system, which has been of late so much contended for towards the enslaving mankind.

(S.T. xv. 1-522.)

XIII

THE CASE OF DAMMAREE

9 Anne, April 19, 1710.

[Daniel Dammaree was a waterman who during the tumults and riots at the time of Sacheverell's trial put himself at the head of a party which destroyed a meeting-house of Dissenters in Drury Lane. He was indicted for High Treason, on the ground that an avowed intention to destroy all the meeting-houses of Presbyterians (which by the Toleration Act were under the protection of the law) was constructively an attempt to levy and raise war, rebellion, and insurrection against the Queen within the kingdom, and therefore brought the offence within the Treason Statute of Edward III. Dammaree was found guilty and sentenced to death; he was subsequently reprieved and finally pardoned. The case (with the similar one of Purchase), "the most severe ever decided upon this point," has a great historical and legal interest, and the excerpt is intended to illustrate this from Chief Justice Parker's summing up. See S.T. xv. 522 et seq. (the notes are very helpful); Hallam, C.H. iii. 150 et seq.; Stephen, H.C.L. ii. 241-298. Wyon, Reign of Queen Anne, ii.]

L. C. J. Parker. Give me leave to take notice what the law is in this case. For it has been insisted on by the counsel for the prisoner (and I must do them right, they have taken into consideration all the cases that relate to this matter)-They insist that this is not levying

war; and on this ground, that he was not proved to be at the meetinghouse in Drury-lane, but only at the fire at Dr. Burgess's; and if he was only at one place, one instance would not make it levying war. If, say they, there had been a general intention, it would have gone. hard with him there was an intention the night before, and Mr. Burgess's was only mentioned; and it was not certain that there was a general design to pull down the rest. Nay, he was not there, and it was by accident he came to Lincoln's-inn-fields, and he was but at that one place; and they take notice of some cases, especially that about the bawdy-houses, and that the lord-chief-justice Hale differed from the rest of the judges.

This is a matter that has been often under consideration: the act of the 25th Edward the 3rd, which is the great law for declarations of treason, declares what shall be adjudged treason: compassing or imagining the death of the king, and levying war against the king, are two distinct species of treason. Now they say, that nothing was designed against the queen. If the levying war against the queen, was there meant only of a war against the queen's person, it would have been idle to mention it in that act, because they had before made the compassing her death to be treason.

Now he that levies war, does more than compass or imagine the king's death therefore it has been always ruled, that where there is an actual levying of war, which concerns the person of the king, they lay the treason to be the compassing the death of the king, and give a proof of it by levying war. But there is another levying of war, which is not immediately against the person of the king, but only between some particular persons. There is a vast difference between a man's going to remove an annoyance to himself, and going to remove a public nuisance, as the case of the bawdy-houses: and the general intention to pull them down all is the treason: for if those that were concerned for them would defend them, and the others would pull them down, there would be a war immediately.

In the case of inclosures, where the people of a town have had a part of their common inclosed, though they have come with a great force to throw down that inclosure, yet that is not levying of war; but if any will go to pull down all inclosures, and make it a general thing to reform that which they think a nuisance, that necessarily makes it a war between all the lords and the tenants. A bawdyhouse is a nuisance, and may be punished as such; and if it be a particular prejudice to any one, if he himself should go in an unlawful manner to redress that prejudice; it might be only a riot; but if he will set up to pull them all down in general, he has taken the queen's right out of her hand: he has made it a general thing, and when they