Lordships have therein agreed to That the Throne is Vacant as to King James the Second Deserting the Government and Deserting the Throne being in true Construction the same Instead of answering this Reason your Lordships come and apply it here only to a bare Giving over the Exercise of the Government by King James And pray my Lords let us consider where we are If the Case be so then King James the Second who has only left the Exercise continues in the Office and is King still and then all the Acts that we have done in this Convention are wholly as we conceive not Justifiable You are in no Place or Station to Relieve your selves or the Nation in this Exigence unless you will think of setting up another Regency by your own Authority without his Consent which I conceive by the Laws of England you cannot do What then follows upon all we have done We have drawn the Nation into a Snare by the Steps we have taken and leave all in such an Intricacy as we have no Power by Law to deliver them out of nor can we answer for what we have done unless the King should dye and that would leave the Succession uncertain My Lords I only apply myself to consider the Reasons of your Lordships for insisting upon this Second Amendment because I conceive your Lordships have therein given no Answer to the Reason first given by the Commons why they cannot agree to your Lordships Amendment Mr. Poll en My Lords your own Reasons under Favour do shew That your Lordships do intend that the King is still in the Government This I think is most apparent out of your own Reasons For when you have declared That the King hath Deserted the Government and then say No Inference can be drawn thence but only That the Exercise of the Government by King James the Second was Ceased then you do thereby still say That King James the Second is in the Government for if only the Exercise be Ceased the Right doth still remain Then I am sure we have no reason to Agree with their Lordships in that Point Next my Lords truly we cannot see how this thing that you would have can be inferred from your own Vote That only the Exercise of the Government by King James ceased since you do not say that he deserted the Exercise of the Government And if your Lordships had any purpose to express your Meaning by a publick Vote That only the Exercise ceased surely your Lordships would have put in the word Exercise there But when in your Vote you say The Government was deserted you cannot mean only the Exercise of it And that it is the first Reason that the Commons give your Lordships why we cannot by any means admit of your Lordships Amendment because Throne and Government are in the true construction the same but the Exercise of the Government only as you express it and the Government it self if your Reason conclude right are not the same And we are to reason from the words expressed in the Vote Next my Lords we say It cannot be inferred from the words as they rest in your Lordships Vote that only the Exercise of the Government as to King James the Second did cease For if we read that part about Deserting the Government with the rest of the Particulars that go before his endeavouring to Subvert the Constitution of the Kingdom breaking the Original Contract violating the Fundamental Laws and withdrawing himself out of the Kingdom then can any Man of Understanding think that this deserting of the Government can be any thing else but somewhat that is agreeable to all those precedent Acts which are not a ceasing of the Exercise of the Government only but a destruction of the Government it self But besides my Lords under Favour the Administration or Exercise of the Kingly Government is in construction and consideration of Law all one and the same And I think no body that would reason aright from thence can say there is any distinction between Government and the Exercise of the Government for whosoever takes from the King the Exercise of the Government takes from the King his Kingship for the Power and the Exercise of the Power are so joyned that they cannot be severed And the Terms themselves taking them as the Law of England which we are to argue from this Case teacheth them are so co-incident that they cannot either subsist without consisting together If a Man grant to another the Government of such a Place this imports the Exercise of the Government there to be granted thereby As if the Islands belonging to this Crown and Dominion of England as the Plantations abroad if the King grants to any one the Government of Jamaica or the like sure no one will say that That is not a Grant of the Exercise of the Government there So that where-ever a Government is granted the Exercise of that Government is meant and included and therefore the supposed Distinction may be something indeed if they be only notionally considered but it is a Notion altogether disagreeing to the Laws of England When your Lordships say in your Reasons That the Exercise of the Government as to King James the Second is ceased which as far as you can go in this Point the Commons can by no means agree to this Reason for by the words so used the Exercise ceased we apprehend that you mean the Kingship continueth still in him and that only the Exercise is gone And if it be so and it be utterly unlawful and as great a Crime as what Law saith it is not to make away from the King the Exercise of the Government as to take from him the Government then it may do well for your Lordships to consider whether you are not Guilty of the same Crime and Thing which you would decline by your Amendment The Commons therefore cannot admit That there should be a taking away of the Exercise of the Government from the King any more than the taking away the Government which we say he hath himself given away by Abdication And if K. James be our King still we cannot by any means agree to the keeping of him out of the Kingdom for if it be his Right to be King still God forbid but that he should enjoy it and be admitted to the Exercise of it again Then my Lords for the Conclusion that your Lordships have added to your Reason as making it from the very Words of your Vote that it is That it would infer such a Vacancy in the Throne as that the Crown should thereby become Elective This we conceive is a conclusion That he hath no Premisses either from our Actions or our Sayings or our Votes or any thing else in this Case nay it is quite varying from all the Premisses But when such a Conclusion can be shewn to follow from them then it will be time enough for us to give our Answer to it But my Lords this
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
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
Monarchy the Consequence will be That there is a Forfeiture of the whole Right and then that Hereditary Succession is cut off which I believe is not intended by the Commons There is indeed one Instance of the Use of such an Abdication in Monarchy and that is that of Poland and such an Abdication there makes the Throne Vacant and those with and in whom the Power is Invested of making Laws to wit the Senate appoint one to Fit it But that and whatever other Instances of the like kind these may be all of Elective Kingdoms for though some of them are or may be in Kingdoms now Hereditary yet they were in those times Elective and since altered into Hereditary Successions But here is One thing that is mentioned in this Vote which I would have well considered for the Preservation of the Succession and that is the Original Compact We must think sure that meant of the Compact that was made at the first Time when the Government was first Instituted and the Conditions that each Part of the Government should observe on their Part of which this was the most Fundamental That King Lords and Commons in Parliament Assembled should have the Power of making New Laws and altering of Old Ones And that being one Law which settles the Succession It is as much Part of the Original Compact as any Then if such a Case happens as an Abdication in a Successive Kingdom without Doubt the Compact being made to the King his Heirs and Successors the Disposition of the Crown cannot fall to us till all the Heirs do Abdicate too There are indeed many Examples and too many Interruptions in the Lineal Succession of the Crown of England I think I can instance in Seven since the Conquest wherein the Right Heir hath been put by But that doth not follow that every Breach of the First Original Contract gives us Power to Dispose of the Lineal Succession especially I think since the Statutes of Queen Elizabeth and King James the first that have Established the Oath of Allegiance to the King his Heirs and Successors the Law is stronger against such a Disposition I grant that from King William the First to King Henry the Eighth there has been Seaven Interruptions of the Legal Line of Hereditary Succession but I say those Statutes are made since that time and the making of New Laws being as much a Part of the Original Compact as the Observing Old Ones or any thing else we are Obliged to pursue those Laws till altered by the Legislative Power which singly or joyntly without the Royal Assent I suppose we do not pretend to and these Laws being made since the last Interruption we are not to go by any President that was made before the making those Laws So that all that I conceive ought to be meant by our Vote is But a Setting aside the Person that Broke the Contract And in a Successive Kingdom an Abdication can only be a Forfeiture as to the Person himself I hope and am perswaded that both Lords and Commons do agree in this Not to break the Line of Succession so as to make the Crown Elective And if that be declared that this Abdication of King James the Second reacheth no farther than himself and that it is to continue in the Right Line of Succession that I hope will make all of One Mind in this important Affair Earl of C n. As I remember Mr. Sommers who spoke to the signification of the Word Abdicated did Quote Grotius Galvin's Lexicon and other Civil Lawyers where the Express Words make it to be a Voluntary Act and so are all the Instances that ever I Read or Heard of that is there either was some Formal Deed of Renuntiation or Resignation or some Voluntary Act done of the Party 's own and such whereby they have shewn they did Devest themselves of the Royalties I think truly Gentlemen it is very apparent that the King in this Case hath done nothing of this Nature It is indeed said by that learn'd and ingenious Gentleman Mr. Sommers That it may arise from the Facts that in the Vote it has been declar'd he hath done breaking the Fundamental Laws and the Original Contract and endeavouring to Subvert the Constitution of the Kingdom I will not discourse the Particulars that have been alledged to make out this Charge But I may say this much in General That this Breaking the Original Contract is a Language that hath not been long used in this Place nor known in any of our Law-Books or Publick Records It is sprung up but as taken from some late Authors and those none of the best received and the very Phrase might bear a great Debate if that were now to be spoken to Mr. Sommers did likewise speak something to the particular Case and the Grounds of the Vote he said The King is Bounded by Law and bound to perform the Laws made and to be made That is not denyed I would take Notice that his Obligation thereunto doth not proceed from his Coronation Oath for our Law saith He is as much King before he is Crowned as he is afterwards And there is a Natural Allegiance due to him from the Subjects immediately upon the Descent of the Crown upon him And though it is a very requisite Ceremony to put him under a farther Obligation by the Conscience of his Oath yet I think it will not nor can be denyed but that as King he was bound to Observe the Laws before and no Body will make that Oath to be the Original Contract as I suppose But my Lords and Gentlemen if you do admit that it was never intended by the House of Commons to relate any further than to this King himself I believe my own Opinion would concur to secure us against his Return to Govern us But then Why is there such a Contention about a Word Doth all this imply more than Desertion But it is said that Abdication doth imply a perfect Renuntiation which I cannot see how it is in this Case so as to leave us at Liberty to supply as we please and break the Line of Succession Mr. Serjeant Maynard says That it is not indeed to make the Government perpetually Elective I would know what he means by Perpetually Our Breaking through the Line now by a Choice out of the Lineal Course is an Alteration and a President And why may not others take the same Liberty we doe And Will not that make it Perpetually Elective But truly I think no Act of ours can alter the Lineal Succession for by all the Laws we have now in Being our Government appears to be Hereditary in a Right Line of Descent And upon any Descent when any one ceaseth to be King Allegiance is by Law due to his Legal Heirs as Successor before Coronation as after I was in great Hopes that you would have offer'd something in Answer to One of my Lord's Reasons against that part of the Vote
Conference and said That the Lords did insist upon the First Amendment of the Vote of the House of Commons of the 25th of January last instead of the Word Abdicated to have the Word Deserted 1st Because the Lords do not find that the Word Abdicated is a Word known to the Common Law of England and the Lords hope the Commons will agree to make use of such Words only whereof the Meaning may be understood according to Law and not of such as will be liable to doubtful Interpretations 2dly Because in the most common Acceptation of the Civil Law Abdication is a Voluntary Express Act of Renuntiation which is not in this Case and doth not follow from the Premises That King James the Second by having With-drawn himself after having endeavoured to Subvert the Constitution of the Government by Breaking the Original Contract between King and People and having Violated the Fundamental Laws may be more properly said to have Abdicated than Deserted He said the Lords did Insist on the Second Amendment to leave out the Words And that the Throne is Vacant for this Reason For that although the Lords have agreed that the King has Deserted the Government and therefore have made Application to the Prince of Orange To take upon him the Administration of the Government and thereby to Provide for the Peace and Safety of the Kingdom yet there can be no other Inference drawn from thence but only that the Exercise of the Government by King James the Second is Ceased so as the Lords were and are willing to secure the Nation against the Return of the said King into this Kingdom but not that there was either such an Abdication by him or such a Vacancy in the Throne as that the Crown was thereby become Elective which they cannot agree I. Because by the Constitution of the Government the Monarchy is Hereditary and not Elective II. Because no Act of the King alone can Barr or Destroy the Right of his Heirs to the Crown and therefore in Answer to the Third Reason alledg'd by the House of Commons If the Throne be Vacant of King James the Second Allegiance is due to such Person as the Right of Succession doth belong to The Question being put that this House do agree with the Lords in the said First Amendment It passed in the Negative The Question being put that this House do agree with the Lords in the said Second Amendment The House divided The Yea's go forth The Tellers for the Yea's Sir Joseph Tredenham and Mr. Gwyn 151. The Tellers for the No's Mr. Colt and Mr. Herbert 282. And so it was Resolved in the Negative Resolved That a free Conference be desired with the Lords upon the Subject Matter of the last Conference Ordered That it be Referred unto Sr. Robert Howard Mr. Polexfyn Mr. Paul Foley Mr. Serj. Maynard Mr. Serjeant Holt. Lord Faukland Sr. George Treby Mr. Sommers Mr. Garraway Mr. Buscowen Sr. Tho. Littleton Mr. Palmer Mr. Hamden Sr. Henry Capel Sr. Thomas Lee. Mr. Secheveril Major Wildman Collonel Birch Mr. Ayres Sr. Richard Temple Sr. Henry Goodrick Mr. Waller Sr. John Guyes To manage the Conference Ordered That Mr. Dolbin do go up to the Lords and desire a free Conference with the Lords upon the Subject Matter of the last Conference Mr. Dolben Reported That he having according to the Order of this House attended the Lords to desire a Free Conference with their Lordships upon the Subject Matter of the last Conference they had agreed to a Free Conference presently in the Painted Chamber And the Managers went to a Free Conference at the Free Conference in the Painted Chamber Mr. H den MY Lords the Commons have desired this Free Conference from your Lordships upon the Subject Matter of the last Conference that they may make appear unto your Lordships that it is not without suffitient Reason that they are Induced to Maintain their own Vote to which your Lordships have made some Amendments and that they cannot agree to those Amendments made by your Lordships for the same Reasons My Lords the Commons do very readily agree with your Lordships That it is a Matter of the greatest Concernment to the Kingdom in general its future Peace and happy Government and the Protestant Interest both at Home and Abroad that there be a good Issue and Determination of the Business now in Debate between Both Houses and a speedy one as can consist with the Doing of it in the best manner This way of Intercourse between Both Houses by Free Conference where there is full Liberty of Objecting Answering and Replying the Commons think the best Means to attain this End and to Maintain a good Correspondence between Both Houses which is so necessary at all Times but more especially in the present Conjuncture this my Lords will bring Honour and Strength to the Foundation that shall be laid after our late Convulsions and discourage our Enemies from Attempting to Undermyne it It is true my Lords the present Difference between your Lordships and the Commons is only about a few Words but the Commons think their Words so Significant to the Purpose for which they are used and so Proper to the Case unto which they are applyed that in so Weighty a Matter as that now in Debate that they are by no means to be parted with The Word Abdicated the Commons conceive is of larger Signification than the Word your Lordships are pleased to use Desert but not too large to be applyed to all the Recitals in the Begining of the Commons Vote to which they meant it should be applyed Nor ought it to be Restrained to a Voluntary Express Resignation only in Word or Writing overt-Overt-Acts there are that will be significant enough to amount to it My Lords that the Common Law of England is not acquainted with the Word it is from the Modesty of our Law that it is not willing to suppose there should be any Unfortunate Occasion of making use of it And we would have been willing that we should never have had such an Occasion as we have to have Recourse to it Your Lordships next Amendment is that your Lordships have left out the last Words in the Commons Vote And that the Throne is thereby Vacant My Lords the Commons conceive it is a true Proposition and That the Throne is Vacant and they think they make it appear that that is no new Phrase neither is it a Phrase that perhaps some of the old Records may be Strangers to or not well acquainted with But they think it not chargeable with the Consequences that your Lordships have been pleased to draw from it That it will make the Crown of England become Elective If the Throne had been full we know your LordShips would have assigned that as a Reason of your Disagreement by telling us who filled it and it would be known by some Publick Royal Act which might notify to the People in whom the Kingly Government resided
neither of which has been done and yet your Londships will not allow the Throne to be Vacant My Lords I am unwilling to detain your Lordships longer from what may be better said for your Lordships Satisfaction in these Matters by those whose Province it is I am to acquaint your Lordships that the Commons do agree it is an Affair of very great Importance Here are other Gentlemen that are appointed to manage this Conference and will give their Assistance to bring it we hope to a happy Conclusion in the Agreement of Both Houses in this so very a Considerable Point Mr. S rs My Lords what is appointed me to Speak to is your Lordships First Amendment by which the Word Abdicated in the Commons Vote is changed into the Word Deserted and I am to acquaint your Lordships what some of the Grounds are that induced the Commons to insist upon the Word Abdicated and not to agree to your Lordships Amendment 1st The First Reason your Lordships are pleased to deliver as for your Changing the Word is That the Word Abdicated your Lordships do not find is a Word known to the Common Law of England and therefore ought not to be Used And the next is That the common Acceptation of the Word amounts to a Voluntary express Act of Renuntiation which your Lordships say is not in this Case nor will follow from the Premises My Lords as to the First of these Reasons if it be an Objection that the Word Abdicated hath not a known Sence in the Common Law of England there is the same Objection against the Word Deserted for there can be no Authority or Book of Law produced wherein any determined Sence is given to the Word Deserted So that your Lordships first Reason hath the same Force against your own Amendment as it hath against the Term used by the Commons The Words are both Latin Words and used in the best Authors and both of a known Signification their Meaning is very well understood though it be true their Meaning be not the same The Word Abdicate doth naturally and properly signify Entirely to Renounce Throw off Disown Relinquish any thing or Person so as to have no further to do with it and that whether it be done by Express Words or in Writing which is the Sence your Lordships put upon it and which is properly called Resignation or Ceasion or by Doing such Acts as are Inconsistent with the Holding or Retaining of the Thing which the Commons take to be the present Case and therefore made Choice of the Word Abdicate as that which they thought did above all others most properly express that meaning And in this latter Sence it is taken by Others and that it is the true Signification of the Word I shall shew your Lordships out of the best Authors The First I shall mention is Grotius de Jure Belli Pacis L. 2. C. 4. S. 4. Venit enim hoc non ex jure civili ex jure naturali quo quisque suum potest abdicare ex naturali Praesumptione qua voluisse quis creditur quod sufficienter significavit And then he goes on Recusari Haereditas non tantum verbis sed etiam re potest quovis indicio voluntatis Another Instance which I shall mention to shew that for the Abdicateing a thing it is suffitient to do an Act which is inconsistent with the Retaining it though there be nothing of an Express Renuntiation is out of Calvin's Lexicon Juridicum where he says Generum abdicat qui sponsam repudiat He that Divorceth his Wife Abdicates his Son in Law Here is an Abdication without Express Words but is by doing such an Act as doth suffitiently signify his Purpose The next Author that I shall Quote is Brisonius de Verborum significatione who hath this Passage Homo liber qui seipsum vendit abdicat se statu suo that is He who sells himself hath thereby done such an Act as cannot consist with his former Estate of Freedom and is therefore properly said se abdicasse statu suo Budaeus in his Commentaries ad Legem secundam de Origine Juris Expounds the Words in the same Sence Abdicare se Magistratu est idem quod abire poenitus Magistratu He that goes out of his Office of Magistracy let it be in what manner he will has Abdicated the Magistracy And Grotius in his Book de Jure Belli Pacis L. 1. C. 4. S. 9. seems to expound the Word Abdicare by manifeste habere pro derelicto That is That he who hath Abdicated any thing hath so far Relinquished it that he hath no Right of Return to it And that is the Sence the Commons put upon the Word It is an Entire Alienation of the Thing and so stands in Opposition to Dicate Di cat qui proprium aliquod facit abdicat qui alienat so says Pralejus in his Lexicon Juris It is therefore insisted upon as the Proper Word by the Commons But the Word Deserted which is the Word used in the Amendment made by your Lordships hath not only a very doubtful Signification but in the common Acceptance both of the Civil and Cannon Law doth signify only a Bare With-drawing a Temporary Quitting of a Thing and Neglect only which leaveth the Party at Liberty of Returning to it again Desertum pro Neglecto says Spigelius in his Lexicon But the Difference between Disserere and Derelinquire is expresly layd down by Bartolus upon the 8th Law of 58th Title of the 11th Book of the Code and his Words are these Nota diligenter ex hac Lege quod aliud est Agrum disserere aliud derelinquire qui enim derelinquit ipsum ex poenitentia non revocat sed qui deseret intra biennium potest Whereby it appears my Lords that that is called Desertion which is Temporary and Relieveable That is called Dereliction where there is no Power of Right to Return So in the best Latin Authors and in the Civil Law Deserere Exercitum is used to signify Soldiers leaveing their Colours Cod. Lib. 12. S. 1. And in the Cannon Law to Desert a Benefice signifies no more than to be Non-Resident so is Calvin's Lexicon Verb. Desert secund Canones In both Cases the Party hath not only a Right of Returning but is bound to Return again Which my Lords as the Commons do not take to be the present Case so they cannot think that your Lordships do because it is expresly said in One of your Reasons given in Defence of the last Amendment That your Lordships have been and are willing to secure the Nation against the Return of King James which your Lordships would not in Justice do if you did look upon it no more than a Negligent With-drawing which leaveth a Liberty to the Party to Return For which Reasons my Lords the Commons cannot agree to the First Amendment to insert the word Deserted instead of Abdicated because it doth not in any sort come up to
their Sence of the thing So they do apprehend it doth not reach your Lordships meaning as it is expressed in your Reasons whereas they look upon the Word Abdicated to express properly what is to be inferred from that Part of the Vote to which your Lordships have agreed That King James the Second by going about to Subvert the Constitution and by Breaking the Original Contract between King and People and by Violating the Fundamental Laws and With-drawing himself out of the Kingdom hath thereby Renounced to be a King according to the Constitution by avowing to Govern by a Despotick Power unknown to the Constitution and Inconsistent with it he hath Renounced to be a King according to the Law such a King as he Swore to be at the Coronation such a King to whom the Allegiance of an English Subject is due and hath set up anōther kind of Dominion which is to all Intents an Abdication or Abandoning of his Legal Title as fully as if it had been done by express Words And my Lords for these Reasons the Commons do insist upon the Word Abdicated and cannot agree to the Word Deserted Mr. Serjeant H lt My Lords I am commanded by the Commons to assist in the Management of this Conference and am to speak to the same Point that the Gentleman did who spoke last to your Lordships First Amendment As to the First of your Lordships Reasons for that Amendment with Submission to your Lordships I do conceive it not Suffitient to alter the Minds of the Commons or to induce them to change the Word Abdicated for your Lordships Word Deserted Your Lordships Reason is That it is not a Word that is known to the Common Law of England But my Lords the Question is not so much Whether it be a Word as Antient as the Common Law though it may be too for that will be no Objection against the Useing it if it be a Word of a known and certain Signification because that we think will Justify the Commons making use of it according to your Lordships own Expression That it is an Antient Word appears by the Authors that have been Quoted and it s frequently met with in the best of Roman Writers as Cicero c. And by the Derivation from Dico an Antient Latin Word That now it is a known English Word and of a known and certain Signification with us I will Quote to your Lordships an English Authority and that is the Dictionary set forth by our Countryman Minshaw who hath the Word Abdicate as an English Word and says that it signifies to Renounce which is the Signification the Commons would have of it So that I hope your Lordships will not find Fault with their useing a Word that is so Antient in it self and that hath such certain Signification in our own Language Then my Lords for that Part of your Lordships Objection That it is not a Word known to the Common Law of England that cannot prevail for your Lordships very well know we have very few Words in our Tongue that are of equal Antiquity with the common Law your Lordships know the Language of England is altered greatly in the several Successions of Time and the Intermixture of other Nations and if we should be Obliged to make use only of Words then known and in use what we should deliver in such a Dialect would be very Difficult to be Understood Your Lordships Second Reason for your First Amendment in changing the Word Abdicated for the Word Deserted is Because in the most common Acceptation of the Civil Law Abdication is a Voluntary Express Act of Renuntiation That is the general Acceptation of the Word and I think the Commons do so use the Word in this Case because it hath that Signification But I do not know whether your Lordships mean a Voluntary express Act or formal Deed of Renuntiation If you do so I confess I know of none in this Case But my Lords both in the Common Law of England and the Civil Law and in common Understanding there are Express Acts of Renuntiation that are not by Deed for if your Lordships please to observe the Government and Magistracy is under a Trust and any Acting contrary to that Trust is a Renouncing of the Trust though it be not a Renouncing by formal Deed For it is a plain Declaration by Act and Deed though not in Writing that he who hath the Trust Acting contrary is a Disclaimer of the Trust especially my Lords if the Actings be such as are Inconsistent with and Subversive of this Trust For how can a Man in Reason or Sense express a greater Renuntiation of a Trust than by the Constant Declarations of his Actions to be quite contrary to that Trust This my Lords is so plain both in Understanding and Practice that I need do no more but Repeat it again and leave it with your Lordships That the doing an Act inconsistent with the Being and End of a Thing or that shall not Answer the End of that Thing but quite the contrary that shall be Construed an Abbication and Formal Renuntiation of that Thing Earl of N m. Gentlemen you of the Committee of the Commons we differ from you indeed about the Words Abdicated and Deserted but the main Reason of the Change of the Word and Difference is upon the Account of the Consequence drawn in the Conclusion of your Vote That the Throne is thereby Vacant that is What the Commons mean by that Expression whether you mean it is so Vacant as to null the Succession in the Hereditary Line so all the Heirs to be cut off which we say will make the Crown Elective And it may be fit for us to settle that matter first and when we know what the Consequence of The Throne being Vacant means in the Vote as you understand it I believe we shall be much better able to settle the Difference about the Two Words Mr. Serjeant M d. My Lords when there is a present Defect of One to exercise the Administration of the Government I conceive the Declaring a Vacancy and Provision of a Supply for it can never make the Crown Elective The Commons apprehend there is such a Defect now and by consequence a present Necessity for the Supply of the Government and that will be next for your Lordships Consideration and theirs afterwards If the attempting the utter Destruction of the Subject and Subvertion of the Constitution be not as much an Abdication as the attempting of a Father to Cut his Son's Throat I know not what is My Lords the Constitution notwithstanding the Vacancy is the same the Laws that are the Foundations and Rules of that Constitution are the same But if there be in any particular Instance a Breach of that Constitution that will be an Abdication and that Abdication will infer a Vacancy It is not that the Commons do say the Crown of England is alway and perpetually Elective but it is