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Part II.
Part II.
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 moleculae 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 Protestants was
preferred, the inheritable principle survived with a sort of immortality
through all transmigrations - multosque per annos stat fortuna domus, et avi
numerantur avorum. 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 must 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 law, by which this royal family is specifically destined to the
succession, is the act of the 12th and 13th of King William. The terms of this
act bind "us and our heirs, and our posterity, to them, their heirs, and their
posterity," being Protestants, to the end of time, in the same words as the
Declaration of Right had bound us to the heirs of King William and Queen Mary.
It therefore secures both an hereditary crown and an hereditary allegiance. On
what ground, except the constitutional policy of forming an establishment to
secure that kind of succession which is to preclude a choice of the people for
ever, could the legislature have fastidiously rejected the fair and abundant
choice which our country presented to them, and searched in strange lands for
a foreign princess, from whose womb the line of our future rulers were to
derive their title to govern millions of men through a series of ages?
The Princess Sophia was named in the act of settlement of the 12th and
13th of King William, for a stock and root of inheritance to our kings, and
not for her merits as a temporary administratrix of a power, which she might
not, and in fact did not, herself ever exercise. She was adopted for one
reason, and for one only, because, says the act, "the most excellent Princess
Sophia, Electress and Duchess Dowager of Hanover, is daughter of the most
excellent Princess Elizabeth, late Queen of Bohemia, daughter of our late
sovereign lord King James the First, of happy memory, and is hereby declared
to be the next in succession in the Protestant line," &c., &c.; "and the crown
shall continue to the heirs of her body, being Protestants." This limitation
was made by parliament, that through the Princess Sophia an inheritable line
not only was to be continued in future, but (what they thought very material)
that through her it was to be connected with the old stock of inheritance in
King James the First; in order that the monarchy might preserve an unbroken
unity through all ages, and might be preserved (with safety to our religion)
in the old approved mode by descent, in which, if our liberties had been once
endangered, they had often, through all storms and struggles of prerogative
and privilege, been preserved. They did well. No experience has taught us,
that in any other course or method than that of an hereditary crown our
liberties can be regularly perpetuated and preserved sacred as our hereditary
right. An irregular, convulsive movement may be necessary to throw off an
irregular, convulsive disease. But the course of succession is the healthy
habit of the British constitution. Was it that the legislature wanted, at the
act for the limitation of the crown in the Hanoverian line, drawn through the
female descendants of James the First, a due sense of the inconveniences of
having two or three, or possibly more, foreigners in succession to the British
throne? No! - they had a due sense of the evils which might happen from such
foreign rule, and more than a due sense of them. But a more decisive proof
cannot be given of the full conviction of the British nation, that the
principles of the Revolution did not authorize them to elect kings at their
pleasure, and without any attention to the ancient fundamental principles of
our government, than their continuing to adopt a plan of hereditary Protestant
succession in the old line, with all the dangers and all the inconveniences of
its being a foreign line full before their eyes, and operating with the utmost
force upon their minds.
A few years ago I should be ashamed to overload a matter, so capable of
supporting itself, by the then unnecessary support of any argument; but this
seditious, unconstitutional doctrine is now publicly taught, avowed, and
printed. The dislike I feel to revolutions, the signals for which have so
often been given from pulpits; the spirit of change that is gone abroad; the
total contempt which prevails with you, and may come to prevail with us, of
all ancient institutions, when set in opposition to a present sense of
convenience, or to the bent of a present inclination: all these considerations
make it not unadvisable, in my opinion, to call back our attention to the true
principles of our own domestic laws; that, you, my French friend, should begin
to know, and that we should continue to cherish them. We ought not, on either
side of the water, to suffer ourselves to be imposed upon by the counterfeit
wares which some persons, by a double fraud, export to you in illicit bottoms,
as raw commodities of British growth, though wholly alien to our soil, in
order afterwards to smuggle them back again into this country, manufactured
after the newest Paris fashion of an improved liberty.
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.
I shall beg leave, before I go any further, to take notice of some paltry
artifices, which the abettors of election, as the only lawful title to the
crown, are ready to employ, in order to render the support of the just
principles of our constitution a task somewhat invidious. These sophisters
substitute a fictitious cause, and feigned personages, in whose favour they
suppose you engaged, whenever you defend the inheritable nature of the crown.
It is common with them to dispute as if they were in a conflict with some of
those exploded fanatics of slavery, who formerly maintained, what I believe no
creature now maintains, "that the crown is held by divine hereditary and
indefeasible right." - These old fanatics of single arbitrary power dogmatized
as if hereditary royalty was the only lawful government in the world, just as
our new fanatics of popular arbitrary power maintain that a popular election
is the sole lawful source of authority. The old prerogative enthusiasts, it is
true, did speculate foolishly, and perhaps impiously too, as if monarchy had
more of a divine sanction that any other mode of government; and as if a right
to govern by inheritance were in strictness indefeasible in every person, who
should be found in the succession to a throne, and under every circumstance,
which no civil or political right can be. But an absurd opinion concerning the
king`s hereditary right to the crown does not prejudice one that is rational,
and bottomed upon solid principles of law and policy. If all the absurd
theories of lawyers and divines were to vitiate the objects in which they are
conversant, we should have no law and no religion left in the world. But an
absurd theory on one side of a question forms no justification for alleging a
false fact, or promulgating mischievous maxims, on the other.
The second claim of the Revolution Society is "a right of cashiering
their governors for misconduct." Perhaps the apprehensions our ancestors
entertained of forming such a precedent as that "of cashiering for
misconduct," was the cause that the declaration of the act, which implied the
abdication of King James, was, if it had any fault, rather too guarded, and
too circumstantial. ^6 But all this guard, and all this accumulation of
circumstances, serves to show the spirit of caution which predominated in the
national councils in a situation in which men irritated by oppression, and
elevated by a triumph over it, are art to abandon themselves to violent and
extreme courses: it shows the anxiety of the great men who influenced the
conduct of affairs at that great event to make the Revolution a parent of
settlement, and not a nursery of future revolutions.
[Footnote 6: "That King James the Second, having endeavoured to subvert the
constitution of the kingdom by breaking the original contract between King and
people, and, by the advice of Jesuits, and other wicked persons, having
violated the fundamental laws, and having withdrawn himself out of the
kingdom, hath abdicated the government, and the throne is thereby vacant."]
No government could stand a moment, if it could be blown down with
anything so loose and indefinite as an opinion of "misconduct." They who led
at the Revolution grounded the virtual abdication of King James upon no such
light and uncertain principle. They charged him with nothing less than a
design, confirmed by a multitude of illegal overt acts, to subvert the
Protestant church and state, and their fundamental, unquestionable laws and
liberties: they charged him with having broken the original contract between
king and people. This was more than misconduct. A grave and overruling
necessity obliged them to take the step they took, and took with infinite
reluctance, as under that most rigorous of all laws. Their trust for the
future preservation of the constitution was not in future revolutions. The
grand policy of all their regulations was to render it almost impracticable
for any future sovereign to compel the states of the kingdom to have again
recourse to those violent remedies. They left the crown what, in the eye and
estimation of law, it had never been, perfectly irresponsible. In order to
lighten the crown still further, they aggravated responsibility on ministers
of state. By the statute of the 1st of King William, sess. 2nd, called "the
act for declaring the rights and liberties of the subject, and for settling
the succession to the crown," they enacted, that the ministers should serve
the crown on the terms of that declaration. They secured soon after the
frequent meetings of parliament, by which the whole government would be under
the constant inspection and active control of the popular representative and
of the magnates of the kingdom. In the next great constitutional act, that of
the 12th and 13th of King William, for the further limitation of the crown,
and better securing the rights and liberties of the subject, they provided,
"that no pardon under the great seal of England should be pleadable to an
impeachment by the Commons in parliament." The rule laid down for government
in the Declaration of Right, the constant inspection of parliament, the
practical claim of impeachment, they thought infinitely a better security not
only for their constitutional liberty, but against the vices of
administration, than the reservation of a right so difficult in the practice,
so uncertain in the issue, and often so mischievous in the consequences, as
that of "cashiering their governors."
Dr. Price, in his sermon, ^7 condemns very properly the practice of
gross, adulatory addresses to kings. Instead of this fulsome style, he
proposes that his Majesty should be told, on occasions of congratulation, that
"he is to consider himself as more properly the servant than the sovereign of
his people". For a compliment, this new form of address does not seem to be
very soothing. Those who are servants in name, as well as in effect, do not
like to be told of their situation, their duty, and their obligations. The
slave, in the old play, tells his master, "Haec commemoratio est quasi
exprobatio." It is not pleasant as compliment; it is not wholesome as
instruction. After all, if the king were to bring himself to echo this new
kind of address, to adopt it in terms, and even to take the appellation of
Servant of the People as his royal style, how either he or we should be much
mended by it, I cannot imagine. I have seen very assuming letters, signed,
Your most obedient, humble servant. The proudest denomination that ever was
endured on earth took a title of still greater humility than that which is now
proposed for sovereigns by the Apostle of Liberty. Kings and nations were
trampled upon by the foot of one calling himself "the Servant of Servants;"
and mandates for deposing sovereigns were sealed with the signet of "the
Fisherman."
[Footnote 7: pp. 22-24.]
I should have considered all this as no more than a sort of flippant,
vain discourse, in which, as in an unsavoury fume, several persons suffer the
spirit of liberty to evaporate, if it were not plainly in support of the idea,
and a part of the scheme, of "cashiering kings for misconduct." In that light
it is worth some observation.
Kings, in one sense, are undoubtedly the servants of the people, because
their power has no other rational end than that of the general advantage; but
it is not true that they are, in the ordinary sense, (by our constitution at
least,) anything like servants; the essence of whose situation is to obey the
commands of some other, and to be removable at pleasure. But the king of Great
Britain obeys no other person; all other persons are individually, and
collectively too, under him, and owe to him a legal obedience. The law, which
knows neither to flatter nor to insult, calls this high magistrate, not our
servant, as this humble divine calls him, but "our sovereign Lord the king;"
and we, on our parts, have learned to speak only the primitive language of the
law, and not the confused jargon of their Babylonian pulpits.
As he is not to obey us, but as we are to obey the law in him, our
constitution has made no sort of provision towards rendering him, as a
servant, in any degree responsible. Our constitution knows nothing of a
magistrate like the Justicia of Arragon; nor of any court legally appointed,
nor of any process legally settled, for submitting the king to the
responsibility belonging to all servants. In this he is not distinguished from
the Commons and the Lords; who, in their several public capacities, can never
be called to an account for their conduct; although the Revolution Society
chooses to assert, in direct opposition to one of the wisest and most
beautiful parts of our constitution, that "a king is no more than the first
servant of the public, created by it, and responsible to it."
Ill would our ancestors at the Revolution have deserved their fame for
wisdom, if they had found no security for their freedom, but in rendering
their government feeble in its operations, and precarious in its tenure; if
they had been able to contrive no better remedy against arbitrary power than
civil confusion. Let these gentlemen state who that representative public is
to whom they will affirm the king, as a servant, to be responsible. It will
then be time enough for me to produce to them the positive statute law which
affirms that he is not.
The ceremony of cashiering kings, of which these gentlemen talk so much
at their ease, can rarely, if ever, be performed without force. It then
becomes a case of war, and not of constitution. Laws are commanded to hold
their tongues amongst arms; and tribunals fall to the ground with the peace
they are no longer able to uphold. The Revolution of 1688 was obtained by a
just war, in the only case in which any war, and much more a civil war, can be
just. "Justa bella quibus necessaria." The question of dethroning, or, if
these gentlemen like the phrase better, "cashiering kings," will always be, as
it has always been, an extraordinary question of state, and wholly out of the
law; a question (like all other questions of state) of dispositions, and of
means, and of probable consequences, rather than of positive rights. As it was
not made for common abuses, so it is not to be agitated by common minds. The
speculative line of demarcation, where obedience ought to end, and resistance
must begin, is faint, obscure, and not easily definable. It is not a single
act, or a single event, which determines it. Governments must be abused and
deranged indeed, before it can be thought of; and the prospect of the future
must be as bad as the experience of the past. When things are in that
lamentable condition, the nature of the disease is to indicate the remedy to
those whom nature has qualified to administer in extremities this critical,
ambiguous, bitter potion to a distempered state. Times, and occasions, and
provocations, will teach their own lessons. The wise will determine from the
gravity of the case; the irritable, from sensibility to oppression; the
high-minded, from disdain and indignation at abusive power in unworthy hands;
the brave and bold, from the love of honourable danger in a generous cause:
but, with or without right, a revolution will be the very last resource of the
thinking and the good.
The third head of right, asserted by the pulpit of the Old Jewry, namely,
the "right to form a government for ourselves," has, at least, as little
countenance from anything done at the Revolution, either in precedent or
principle, as the two first of their claims. The Revolution was made to
preserve our ancient, indisputable laws and liberties, and that ancient
constitution of government which is our only security for law and liberty. If
you are desirous of knowing the spirit of our constitution, and the policy
which predominated in that great period which has secured it to this hour,
pray look for both in our histories, in our records, in our acts of
parliament, and journals of parliament, and not in the sermons of the Old
Jewry, and the after-dinner toasts of the Revolution Society. In the former
you will find other ideas and another language. Such a claim is as ill-suited
to our temper and wishes as it is unsupported by any appearance of authority.
The very idea of the fabrication of a new government is enough to fill us with
disgust and horror. We wished at the period of the Revolution, and do now
wish, to derive all we possess as an inheritance from our forefathers. Upon
that body and stock of inheritance we have taken care not to inoculate any
scion alien to the nature of the original plant. All the reformations we have
hitherto made have proceeded upon the principle of reverence to antiquity; and
I hope, nay I am persuaded, that all those which possibly may be made
hereafter, will be carefully formed upon analogical precedent, authority, and
example.
Our oldest reformation is that of Magna Charta. You will see that Sir
Edward Coke, that great oracle of our law, and indeed all the great men who
follow him, to Blackstone, ^8 are industrious to prove the pedigree of our
liberties. They endeavour to prove, that the ancient charter, the Magna Charta
of King John, was connected with another positive charter from Henry I., and
that both the one and the other were nothing more than a re-affirmance of the
still more ancient standing law of the kingdom. In the matter of fact, for the
greater part, these authors appear to be in the right; perhaps not always; but
if the lawyers mistake in some particulars, it proves my position still the
more strongly; because it demonstrates the powerful prepossession towards
antiquity, with which the minds of all our lawyers and legislators, and of all
the people whom they wish to influence, have been always filled; and the
stationary policy of this kingdom in considering their most sacred rights and
franchises as an inheritance.
[Footnote 8: See Blackstone`s Magna Charta, printed at Oxford, 1759.]
In the famous law of the 3rd of Charles I., 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. Selden, and the other profoundly learned men, who drew this
Petition of Right, were as well acquainted, at least, with all the general
theories concerning the "rights of men," as any of the discoursers in our
pulpits, or on your tribune; full as well as Dr. Price, or as the Abbe Sieyes.
But, for reasons worthy of that practical wisdom which superseded their
theoretic science, they preferred this positive, recorded, hereditary title to
all which can be dear to the man and the citizen, to that vague speculative
right, which exposed their sure inheritance to be scrambled for and torn to
pieces by every wild, litigious spirit.
The same policy pervades all the laws which have since been made for the
preservation of our liberties. In the 1st of William and Mary, in the famous
statute, called the Declaration of Right, the two houses utter not a syllable
of "a right to frame a government for themselves." You will see, that their
whole care was to secure the religion, laws, and liberties, that had been long
possessed, and had been lately endangered. "Taking ^9 into their most serious
consideration the best means for making such an establishment, that their
religion, laws, and liberties might not be in danger of being again
subverted," they auspicate all their proceedings, by stating as some of those
best means, "in the first place" to do "as their ancestors in like cases have
usually done for vindicating their ancient rights and liberties, to declare;"
- and then they pray the king and queen, "that it may be declared and enacted,
that all and singular the rights and liberties asserted and declared, are the
true ancient and indubitable rights and liberties of the people of this
kingdom."
[Footnote 9: I W. and M.]
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 a 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.
This policy appears to me to be the result of profound reflection; or
rather the happy effect of following nature, which is wisdom without
reflection, and above it. A spirit of innovation is generally the result of a
selfish temper, and confined views. People will not look forward to posterity,
who never look backward to their ancestors. Besides, the people of England
well know, that the idea of inheritance furnishes a sure principle of
conservation, and a sure principle of transmission; without at all excluding a
principle of improvement. It leaves acquisition free; but it secures what it
acquires. Whatever advantages are obtained by a state proceeding on these
maxims, are locked fast as in a sort of family settlement; grasped as in a
kind of mortmain for ever. By a constitutional policy, working after the
pattern of nature, we receive, we hold, we transmit our government and our
privileges, in the same manner in which we enjoy and transmit our property and
our lives. The institutions of policy, the goods of fortune, the gifts of
providence, are handed down to us, and from us, in the same course and order.
Our political system is placed in a just correspondence and symmetry with the
order of the world, and with the mode of existence decreed to a permanent body
composed of transitory parts; wherein, by the disposition of a stupendous
wisdom, moulding together the great mysterious incorporation of the human
race, the whole, at one time, is never old, or middle-aged, or young, but, in
a condition of unchangeable constancy, moves on through the varied tenor of
perpetual decay, fall, renovation, and progression. Thus, by preserving the
method of nature in the conduct of the state, in what we improve, we are never
wholly new; in what we retain, we are never wholly obsolete. By adhering in
this manner and on those principles to our forefathers, we are guided not by
the superstition of antiquarians, but by the spirit of philosophic analogy. In
this choice of inheritance we have given to our frame of polity the image of a
relation in blood; binding up the constitution of our country with our dearest
domestic ties; adopting our fundamental laws into the bosom of our family
affections; keeping inseparable, and cherishing with the warmth of all their
combined and mutually reflected charities, our state, our hearths, our
sepulchres, and our altars.
Through the same plan of a conformity to nature in our artificial
institutions, and by calling in the aid of her unerring and powerful
instincts, to fortify the fallible and feeble contrivances of our reason, we
have derived several other, and those no small benefits, from considering our
liberties in the light of an inheritance. Always acting as if in the presence
of canonized forefathers, the spirit of freedom, leading in itself to misrule
and excess, is tempered with an awful gravity. This idea of a liberal descent
inspires us with a sense of habitual native dignity, which prevents that
upstart insolence almost inevitably adhering to and disgracing those who are
the first acquirers of any distinction. By this means our liberty becomes a
noble freedom. It carries an imposing and majestic aspect. It has a pedigree
and illustrating ancestors. It has its bearings and its ensigns armorial. It
has its gallery of portraits; its monumental inscriptions; its records,
evidences, and titles. We procure reverence to our civil institutions on the
principle upon which nature teaches us to revere individual men; on account of
their age, and on account of those from whom they are descended. All your
sophisters cannot produce anything better adapted to preserve a rational and
manly freedom than the course that we have pursued, who have chosen our nature
rather than our speculations, our breasts rather than our inventions, for the
great conservatories and magazines of our rights and privileges.
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 for ever 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.
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