the Tenour of those Laws and the Coronation Oath obligeth him likewise to consent to such Laws as the People shall choose But on the contrary by that unfortunate Perswasion in Point of Religion that he hath Embraced he is Obliged to Suspend the Laws that defend the Established Religion and to Treat it as it has been as we well know called as the Northern Heresy and under Pain of Damnation to Extirpate it And in order to it did set aside and Repeal all the legal Fences of it without Consent of Parliament What the Endeavours and Practices of that kind have been in the last Reign I suppose we are not now to be told of or Instructed in and if as is very Plain this doth amount to a manifest Declaration of his Will no longer to Retain the Exercise of his Kingly Office thus Limitted thus Restrained then in common Sence as well as legal Acceptation he has suffitiently declared his Renouncing of the very Office As for his Departure out of the Kingdom 't is not material whether it was Voluntary or Involuntary but it is suffitient that his Actings declare quo Animo he went away he no longer would pursue what he designed and was so strongly Obliged unto the contrary by the Duty of his Office and Relation and the Obligation of the Original Contract as likewise his own Coronation Oath and then he desires no longer to be here So that taking both these things together that he will not nay he cannot as thus perswaded in Point of Religion Govern according to Law and thereupon hath withdrawn himself out of the Kingdom It is a manifest Declaration of his Express Renouncing and Parting with his Kingly Office And therefore I cannot depart from insisting upon this word Abdicated which doth so well correspond to the Fact of the Case and so well express the true Meaning of the Commons in their Vote Nor can we Consent to the Postponeing this Point till the other about The Vacancy of the Throne be determined for this is the very Foundation upon which we are to to proceed for Establishing the Superstructure of the other Conclusion Earl of N m. This Learned Gentleman that spoke last says It is necessary to prefer the Premises before the Conclusion as being the Foundation of the Superstructure Truly I apprehend that this word Abdicated was part of the Conclusion and not of the Premises The Vote runs thus That by Breaking the Original Contract having endeavoured to subvert the Constitution of the Kingdom and having withdrawn himself out of the Kingdom he has Abdicated the Government and the Throne is thereby Vacant I take it to be as I say part of the Conclusion the other part being joyned by a Copulative therefore that which is but the other part of the Conclusion is not to be inferred from the other part of the Premises But take it to be as you say that The Vacancy of the Throne is another Distinct Conclusion from all that preceded as the Premises and therefore it is to be considered last I would then beg the Favour of You Gentlemen of the House of Commons to answer me one Question about this Point of Abdication Whether you mean by Abdication a Renouncing for Himself or for himself and his Heirs If You mean only Abdication for Himself it will have a different Influence upon the Debate and Resolution of the Case as to the meaning of that You call the Conclusion for then How can the Throne be Vacant But if it be meant for himself and his Heirs then I apprehend it is no more than what you say at the end That the Throne is indeed Vacant and then this Abdication cannot be Part of the Premises but must be the same Thing with or Part of the Conclusion I will not undertake to dispute Whether a King of England may or may not Renounce his Kingdom For my own Part I think he can and I may go so far in Agreement with those that have spoken to this Point To yield that he may do it by implicit Acts contrary to the Kingly Office For a King to say He will not govern according to Law and for a King to act wholly contrary to Law and do that which would Subvert the Constitution is I think the same thing But then I must say also That I think there is a Difference between Saying so and Doing something inconsistent with what the Laws require for every Deviation from the Law is a kind of Breach of the fundamental Laws for I know no Law as Laws but what are Fundamental Constitutions as the Laws are necessary so far as to support the Foundation But if every Transgression or Violation of the Law by the Prince's Connivance or Command were such a Breach of the Fundamental Laws as would infer an Abdication then were it in vain to call any of his Ministers or Officers to Account for any such Action Then the Action is the King 's and not Theirs and then adieu to the Maxim of A King 's not doing Wrong And we may have Recourse to that other Respondent Superior as more effectual Satisfaction I take this Matter to be so plain as to the Distinction that I have mentioned that nothing can be more and it has been thought so essentially necessary to have it clear and manifest That those two great Instances of Edward the Second and Richard the Second were express solemn Renunciations and those confirm'd in Parliament by the Lords and Commons by the Act of Deposing them Therefore I cannot infer from the Facts enumerated in the Vote That this should be an Abdication for himself and his Heirs But therefore because in this first Point it is disputable what is meant by a Word not known of Signification in the Law it might I think do well to consider what is to be inferred from it And therefore all I have now said is only to this purpose That either Both make One Conclusion or else the Latter cannot be inferred from the Former Sir George T y. I beg Leave to say something to what this Noble Lord has last spoke unto When I call this Point of the Vacancy of the Throne a Conclusion I did not mean altogether to exclude Abdication from being a Conclusion from the Particulars enumerated before for indeed it is the nature of a double Conclusion One from the particular Facts mentioned That thereby King James has Abdicated the Government The Other from the Abdication That thereby the Throne is Vacant By the instanced Acts he hath Abdicated the Government and by his Abdicating the Government the Throne is vacant As to the rest of that which his Lordship is pleased to say I perceive he does as he must agree to me That a King may Renounce by Acts as well as Words or Writings But then I would add and agree with his Lordship also That God forbid every Violation of the Law or Deviation from it should be reckon'd an Abdication of the
agree there is One and no more than one to whom a Right does belong of Succeeding upon failure of King James Has he no Heir known Mr. Serjeant M d. I say No Man can be his Heir while he lives If he has any it is in Nubibus our Law knows none and What shall we do till he be dead It cannot descend till then E. of P e. You agree That notwithstanding King Charles the Second was abroad at his Father's Death and did not actually Exercise the Government yet in Law immediately upon his Father's Decease he was not the less Heir for that nor was the Throne Vacant Mr. Serjeant M d. That is not like this Case neither because the Discent was Legally immediate but here can be no such thing during King James's Life as an Hereditary Discent So that either here must be an everlasting War entail'd upon us his Title continuing and we opposing his return to the Exercise of the Government or we have no Government for want of a Legal Discent and Succession Pray my Lords consider the Condition of the Nation till there be a Government no Law can be executed no Debts can be compelled to be paid no Offences can be punish'd no one can tell what to do to obtain his Right or defend himself from Wrong You still say The Throne is not Void and yet you will not tell us who Fills it If once you will agree That the Throne is Vacant it will then come orderly in debate How it should according to our Law be Filled E. of N m. The Objection as I take it that is made to these Reasons the Lords have sent for their insisting upon the Amendments is That we have not fully answered in them the Reasons given by the Commons for their not agreeing to those Amendments Mr. S l. My Lords we say you have not fully answered the first of our Reasons E. of N m. Gentlemen I intend to state the Objection so That first Reason of yours I take to be this in effect That our word Deserted being apply'd to the Government implies our Agreeing that the King hath Deserted the Throne those two being in true construction the same and then by our own Confession the Throne is Vacant as to him To this you say my Lords have given no Answer Truly I think it is a clear Answer that the word Deserted may have another sence and doth not necessarily imply Renouncing entirely of a Right but a ceasing of the Exercise But then if that does not Vacant the Throne as to him the other Reason comes to be considered How came you to desire the Prince of Orange to take the Administration upon him and to take care of Ireland till the Convention and to write his Letters circulary for this Meeting And to renew your Address to the Prince and to appoint a Day of Publick Thanksgiving In answer to that my Lords say That tho the King 's Deserting the Government as they agree he has done did imply the Throne to be Vacant yet they might justly do all those Acts mentioned in the Commons Reasons because if barely the Exercise of the Government were deserted there must be a supply of that Exercise in some Person 's taking the Administration and as none so fit because of the Prince's relation to the Crown and his presence here to Address unto about it so none so proper to make that Address as the Lords for in the absence of the King they are the King and Kingdoms great Council and might have done it by themselves without the Commons but being met in a full representative Body they joyned with them Mr. P n indeed has said There is no distinction in Law between the Kingship and the Exercise of it And That it is the same Crime in consideration of Law to take away the Exercise as to take away the Kingship I shall not dispute with that learned Gentleman whom I very much honour for his Knowledge in the Profession of the Law what Offence either of them would be now for we are not discoursing concerning a Regency how the Government should be Administred but we are barely upon the Question Whether the Throne be Vacant so that we may have another King But if we should grant a Vacancy as to the King himself we are then told the next in Succession cannot take because no one can be Heir to one that is alive Yet I think the Answer given by my Lords before is a very good one That tho the King be not dead Naturally yet if as they infer he is so Civily the next of course ought to come in as by Hereditary Succession for I know not any distinction between Successors in the case of a Natural Death and those in the case of a Civil one For I would know if the next Heir should be set aside in this case and you put in another whether that King shall be King of England to him and his Heirs and so being once upon the Throne the ancient Lineal Succession be altered If that be so then indeed it is sufficiently an Elective Kingdom by taking it from the right Heir If it be not so then I would ask Whether such King as shall be put in shall be King only during King James's Life That I suppose for many Reasons is not their meaning but at least he must be made King during his own Life and then if there be a Distinction made as to the Succession between a Natural and a Civil Death if King James should dye during the Life of the new King what would become of the Hereditary Monarchy Where must the Succession come in when the next Heir to King James may not be next Heir to the present Successor Therefore we must reduce all to this point which my Lords have hinted at in their Reasons Whether this will not make the Kingdom Elective for if you do once make it Elective I do not say that you are always bound to go to Election but it is enough to make it so if by that President there be a breach in the Hereditary Succession for I will be bold to say you cannot make a stronger Tye to observe that kind of Succession than what lyeth upon you to preserve it in this Case If you are under an Obligation to it it is part of the Constitution I desire any one to tell me what stronger Obligation there can be and that I say is Reason enough for my Lords to disagree to it it bringing in the Danger of a Breach upon the Constitution Next Gentlemen I would know of you if the Throne be Vacant whether we be oblig'd to fill it if we be we must Fill it either by our old Laws or by the Humour of those that are to chuse if we Fill it by our own old Laws they declare That it is an Hereditary Kingdom and we are to take the next to whom the Succession would belong and then there would be no
changing of the Monarchy from an Hereditary to an Elective E. of N m. After this long Debate pray let us endeavour to come as near as we can to an Agreement We have proposed some Questions about which my Lords desired to be satisfied You Gentlemen have not been pleased to give an Answer to them and we have no great Hopes of getting one from you as this Debate seems to be managed On your part you have declared That you do acknowledge the Monarchy is Hereditary and Successive in the Right Line then I cannot see how such an Acknowledgment consists with the Reasons you give for your Vacancy for I cannot imagine how a Kingdom can be an Hereditary Kingdom and that King who hath Children now in being at the time of his forsaking the Government can have the Throne Vacant both of him and his Children The Course of Inheritance as to the Crown of England is by our Law a great deal better provided for and runs stronger in the right Line of Birth than of any other Inheritance No Attainder of the Heir of the Crown will bar the Succession to the Throne as it doth the Descent to any common person The very Descent by Order of Birth will take away any such Defect And so was the Opinion of the great Lawyers of England in the Case of Henry the seventh Then cannot I apprehend how any Act of the Father's can bar the Right of the Child I do not mean that an Act of Parliament cannot do it I never said so nor thought so but I say no Act of the Father's alone can do it since even the Act of the Son which may endanger an Attainder in him cannot do it so careful is the Law of the Royal Line of Succession This is declar'd by many Acts of Parliament and very fully and particularly by that Statute 25 Henry the Eighth Cap. 22 entituled An Act concerning the King's Succession where the Succession of the Crown is limited to the King's Issue-Male first then Female and the Heirs of their Bodies one after another by course of Inheritance according to their Ages as the Crown of England hath been accustomed and ought to go in such Cases If then the King hath done any thing to divest himself of his own Right it doth not follow thence that That shall exclude the Right of his Issue and then the Throne is not Vacant as long as there are any such Issue for no Act of the Father can Vacant for himself and Children Therefore if you mean no more than but the divesting his own Right I desired you would declare so And then suppose the Right gone as to him yet if it descend to his Lineal Successor it is not Vacant And I told you One Reason my Lord 's did stand upon against agreeing to the Vacancy was Because they thought your Vote might extend a great deal further than the King 's own Person But your all owning it to be a Lineal Inheritance and this Vacancy methinks do not by any means consist You declare you never meant to alter the Constitution then you must preserve the Succession in its ancient course So I did hear a worthy Gentleman conclude it to be your Intention to do But by what methods can it be done in this Case by us I desire to be satisfied in a few things about this very matter I desire first to know Whether the Lords and Commons have Power by themselves to make a binding Act or Law And then I desire to know Whether according to our ancient Legal Constitution every King of England by being seated on the Throne and possessed of the Crown is not thereby King to him and his Heirs And without an Act of Parliament which we alone cannot make I know not what Determination we can make of his Estate It has been urged indeed That we have in Effect already agreed to what is contain'd in this Vote by Voting That it is inconsistent with our Religion and Laws to have a Popish Prince to Rule over us But I would fain know Whether they that urge this think that the Crown of Spain is Legally and Actually excluded from the Succession by this Vote No Man sure will undertake to tell me That Vote of either House or both Houses together can Alter the Law in this or any other point But because I am very desirous that this Vote should have its Effect I desire that every thing of this Nature should be done in the antient usual Method by Act of Parliament GOD forbid that since we are happily deliver'd from the Fears of Popery and Arbitrary Power we should assume any such Power to our selves What Advantage should we then give to those who would quarrel with our Settlement for the Illegality of it Would not this which we thus endeavour to crush break forth into a Viper For that Record of 1. Henry the Fourth I acknowledge the words of the Royal Seat being Vacant are us'd But since you your selves tell us of it That Henry the Fourth did claim by Inheritance from his Grandfather that methinks may come up to what I would have the declared sence of both Houses upon this Question to wit The Throne might be Vacant of Richard the Second but not so Vacant but the claim of the immediate Successor was to take place and not be excluded but entirely preserved And Richard the Second seems to have had the same Opinion by delivering over his Signet to them Our Laws know no Inter regnum but upon the Death of the Predecessor the next Heir is in uno eodem instanti It was so Resolv'd even in Richard the Second's own Case for at his Grandfather's Death it was a Question Whether King Richard the Second or the Eldest Son of his Grandfather then living should succeed and it was Resolved That he ought to have it because of his Right of Inheritance which is the more remarkable because of the contest And when Richard the Third usurped his Crown to make his Claim good to the Right of Inheritance he Bastardized his own Nephews And so it was in all the Instances of the Breaches that were made upon the Line of Succession which were some Seven but all illegal for such was the Force of the Laws that the Usurpers would not take the Crown upon them unless they had some specious pretence of an Hereditary Title to it That which I would have Avoided by all means is the Mischievous Consequences that I fear will ensue upon this Vacancy of the Throne to wit the utter Overthrow of the whole Costitution of our Government For if it be so and the Lords and Commons only remain as parts of it Will not this make the King one of the Three Estates Then is he the Head of the Commonwealth all united in one Body under him And if the Head be taken away and the Throne Vacant by what Laws or Constitutions is it that we retain Lords and Commons For they are
to the Crown that consideration will be next and how to come at them I conceive we are in the same Capacity as our Predecessors were to provide for all Exigencies as shall emerge and for the supplying all Defects in the Government It is true by the Acts of Queen Elizabeth and King James first we have the Oaths of Supremacy and Allegiance that are to be and have been taken by all Persons But my Lords there is an old Oath of Fidelity that useth to be required in Leets and that by the ancient Law of England every man ought to take that is Sixteen Years of Age and this was as much obliging to the King his Heirs and Successors as any of those later Oaths are for they seem only to be made to exclude foreign Authorities and not to infer any new Obedience or Subjection therefore I am only saying we are in as natural a capacity as any of our Predecessors were to provide for a Remedy in such Exigencies as this I do not intend to trouble your Lordships any farther than the words of the Vote lead me If the Throne were Full what do we do here nay how came we hither I would fain know whether all that is mention'd in one of our Reasons of the Administration being committed to the Prince and those other Acts do not all imply at least that we are in such a Case as wherein the Throne is Vacant otherwise if it had been full I appeal to any one whether we could have assembled or acted in any other Name or by an other Authority than his that filled it Then do not all these things declare that there is a Vacancy My Lords I have done having said this That it is a subsequent consideration how the Throne shall be Filled and all the Particulars that relate to it remain entire after this Resolution taken But I think we are at present to go no further No Man I hope thinks there is a just Ground for any Apprehension of an Intention to change the Government I am sure there is no Ground for any such Apprehension So that we have all the reason in the World still to insist That your Lordships should agree with us that the Throne is Vacant or we shall not be able to move one step further towards a settlement Sir T L e. My Lords So much has been said in this matter already that very little is to be added But give me leave to say unto your Lordships That those Amendments your Lordships have made to the Commons Vote are not agreeing with your other Votes nor any of the Acts done since the Abdication Had it been in the common ordinary case of a Vacancy by the King's Death your Lordships in December last would sure have let us know as much But it is plain you were sensible we were without a Government by your desiring the Prince to take the Administration and to issue out his Letters from this Convention But my Lords I would ask this Question whether upon the original Contract there were not a power preserved in the Nation to provide for its self in such Exigencies That contract was to settle the Constitution as to the Legislature which a noble Lord in the beginning spoke of so we take it to be And it is true that it is a part of the Contract the making of the Laws and that those Laws should oblige all sides when made but yet so as not to exclude this original constitution in all Governments that commence by compact that there should be a Power in the States to make provision in all times and upon all occasions for extraordinary Cases and Necessities such as ours now is I say nothing now as to the Hereditary Succession our Government has been always taken to be Hereditary and so declared when there has been occasion to make provision otherwise than in the direct Line But our matter is singly upon a Point of Fact Whether the Throne be Vacant as the Commons say it is by the Abdication of King James the Second This present Vacancy is nearest to that of Richard the Second of any that we meet with in our Records and the Phrase being there used we insist upon it as very proper And when that is agreed unto the House will no doubt declare their Minds in another Consequential Question that shall arise in a Proper way But this is all we can speak to now Sir G T y. To discourse Whether the Crown of England would by this means become Elective is altogether unnecessary and I think your Lordships have given no Reasons that are sufficient to make the Objection out neither any Answers to the Commons Reasons for their Vote It seems to me an odd way of Reasoning first to mistake the meaning and then give Reasons against that mistaken meaning The Question is only here Whether we can make good this Proposition That the Throne is Vacant by the Abdication of tht late King I confess 't is a melancholy thing to discourse of the Miscarriages of Governments but 't is much more afflictive to talk of unhinging all the Monarchy by a breach upon the direct Line of the Succession as if the Crown of England did actually descend to Lewis the Fourteenth it would not be in the power of the States of this Kingdom to divolve it upon another Head A Noble Lord put an Instance of two Men in one Room one of whom was really such a one But though a stander by could not directly tell which was he yet it could not be said by him that such a one was not there But if you please I will put this Case Suppose there were two Men in one Room that no one alive could tell which was which as suppose this to be the Case of the two Children of Edward the Fourth that they had been kept close Prisoner by their Uncle Richard the Third so long that there were no living Witnesses able to tell which was the eldest of the two that would occasion a difficulty much what as intricate as ours here One of them must be Eldest but by reason of the uncertainty must not an Election be made of them And could any thing else do but an Election But I say the proper single Question here is Whether we have well said and well affirmed upon the Premises that are mentioned in the former part of the Vote that he was Abdicated and that the Throne is thereby Vacant Your Lordships in part agree for you say He has Deserted the Government then you say He is not in it And it is as much as to say He has left the Kingdom destitute of a Government Now if there be any sence in which our Proposition is true will you deny the whole Proposition because it may be taken in a sence that is dubious and uncertain as to the Consequences You cannot say the Throne is Full if then there be a Doubt with you to be sure it is not like