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
knit together in their common Head and if one part of the Government be dissolved I see not any Reason but that all must be dissolved Therefore 't is of very great importance that we come to an Explanation how far you mean the Throne to be Vacant and that if it reach to the King and his Heirs notwithstanding all the the Acts of Parliament about the Succession we may consider how the consequences of that will effect the Constitution for I presume to say it may then be in your power as well as to say we shall have no King at all I was mistaken by the Gentlemen who took notice of what I said the Lords might do of themselves in the absence of the King I would not be understood to say the Government devolved upon the Lords but I may say they are the Governments great Council in the interval of Parliaments and may have greater sway by the Privilege of their Birth in the Exigencies of the State As appears in several Instances and particularly the first of Henry the Sixth and during his Infancy There was a Case put by one Gentleman about the two Sons of Edward the Fourth being kept Prisoners so long till it could not be known by any Living Witnesses which was the Eldest I would only ask that Gentleman Whether in that case he would say the Throne were Vacant certainly there would have been One in the Throne But then it followeth that though there should be an Uncertainty of the particular Person yet that would not infer a Necessity that the Throne should be Vacant Upon the whole matter you seem to understand your own words to signifie less than they do really import I do not find that you purpose to make the Kingdom Elective and yet you talk of supplying the Vacancy by the Lords and Commons You do not say That the King has left the Crown for himself and his Heirs and yet your words speak of a Vacancy and nothing of the Succession but you do not tell us what you mean Therefore if this matter were explained that my Lords may know how far the Intention of the Vote reacheth that it may not abroad or hereafter be construed to go beyond such Meaning that is as to the King himself and not to his Heirs perhaps there might quickly be a happier Accommodation than can be expected while things remain thus still in doubt and in the dark Gentlemen If any of you can settle this Matter in its true Light it would do very well and it is You must do it for the Words are Yours and so we must be told your Signification and Intention by your selves If you mean by Abdication and Vacancy only that the King has left the Government and it is Devolved upon the next Successor that may perhaps satisfie my Lords and we may agree upon some Settlement I must confess any Government is better than none but I earnestly desire we may enjoy our Ancient Constitution Therefore I again renew my Request That you would come to such an Explanation as may breed an Union between the two Houses for the strength of your Consultation and Resolutions in this great Emergency If the Kingdom were indeed Elective we were in a Capacity of Electing but pro hac Vice according to the Constitution this Question would be greater than what it was before but then the great Debate in it would only be Who should first have the Honour of Laying the very Foundation of the New Government But as this case stands upon the Foot of our Ancient Laws and Fundamental constitution I humbly beseech you to consider Whether at the same time that in this way you get an Establish'd Government you do not overturn all our Legal Foundations Mr. P F y. I hope my Lords there is no danger of shaking our Fundamentals in this case but we are pursuing those Methods that agree with our Laws and Constitution For though the Monarchy of this Nation be Hereditary in the Ordinary course of Succession yet there may fall out a case wherein that cannot be comply'd with and a plain Vacancy may ensue For put the case the whole Royal Lines should fail as they are all mortal as well as we our selves are should we in that case have no Goveenment at all And who then should we have but the Lords Commons and I think that case comes nearest to the case in question where the Successor is not known for if he had been we should have heard of him before now And what is the reason that it should then in the former case devolve to Lords and Commons but that there is no King And they being the Representative Body of the Kingdom are the only remaining apparent parts of the Government and are only to supply the Defect by providing a Successor And is here not the same Reason here We are without a King I am sure I do not know of any that we have If that fall out to be the case now that will inser a Vacancy with a witness and it will be of necessity that the Lords and Commons take care to supply it Mr. G E e. My Lords We are led and I think out of the Way into a very large Field hunting after the Consequences of a Vote not yet setl'd or agreed unto We have as I conceive nothing but the Vote it self to consider of or debate upon We do not intend to prejudice any Legal Right But what the consequences of this Vote may be before the Vote it self be passed I believe no Man can reasonably pretend to ascertain unless he have the Spirit of Prophecy The Throne may be Vacant as to the Possession without the exclusion of one that has a Right to the Succession or a Dissolution of the Government in the Constitution neither will there be room for the Objection of a King de facto and not de jure which some of the Lords were pleased to express their Fears of This Gentleman that stands by me instanced in a Record and that was mistaken as a President for the proceeding in this Case it was only mention'd by him to shew that by using the word Vacant the Commons did no more than our Ancestors did before us and therefore it was not an unknown word or thing to have the Throne Vacant We do apprehend we have made a right and apt Conclusion from the Premises for otherwise all the Vote is but Historical We declare the Late King hath broke the Original Contract hath violated the Fundamental Laws and hath withdrawn himself out of the Kingdom that he hath Abdicated actually Renounced the Government What occasion was there for such a Declaration as this if nothing were concluded from it That were only to give the Kingdom a compendious History of those Miseries they have too well learnt by feeling them Therefore there was a necessity to make some Conclusion and none so natural as this That we are left without a King in the words of the Vote that the Throne is thereby Vacant which it may be as to the Possession and yet the Right of Succession no way prejudiced But my Lords we come here by the Commands of the House of Commons to debate the Reasons of their Vote and your Lordships Amendments not to dispute what will be the consequences which is not at present our Province And so the Conference ended and the Members of each House returned to their respective Houses Die Jovis 7 mo Feb. 1688. A Message from the Lords by Sir Robert Atkins and Sir Edward Nevill Mr. Speaker The Lords have commanded us to tell you That they have agreed to the Vote sent them up of the 28th of January last touching which there was a free Conference yesterday without any Alterations FINIS
THE DEBATE At Large BETWEEN THE HOUSE of LORDS AND HOUSE of COMMONS AT THE FREE CONFERENCE HELD In the Painted Chamber in the Session of the CONVENTION Anno 1688. Relating to the Word ABDICATED AND THE Vacancy of the THRONE In the COMMON's Vote Printed for J. Wickins And to be Sold by the Booksellers of London and Westminster 1695. The Debate at large c. Martis die 22 Januarij 1688. IN the Convention met upon his Highness the Prince of Orange's Letters this Day in the House of Commons A Motion being made that the House would appoint a Day to take into Consideration the Condition and State of the Nation Resolved Nemine Contradicente That the House on Monday next at Ten of the Clock in the Morning take into Consideration the State and Condition of the Nation Lunae 28 die Januarij 1688. The House then according to the Order of Tuesday last proceeded to take into Consideration the State and Condition of the Nation Resolved That the House do now Resolve it self into a Committee of the whole House to take into Consideration the State and Condition of the Nation Mr. Speaker left the Chair Mr. Hamden took the Chair of the Committee Mr. Speaker Reassumed the Chair Mr. Hamden Reported from the Committee of the whole House that having taken into Consideration the Condition and State of the Nation they had agreed upon a Resolve which he Read in his Place and then delivered the same in at the Clark's Table where the same being Read was as followeth Resolved 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 Person 's having violated the Fundamental Laws and With-drawn himself out of the Kingdom hath Abdicated the Government and that the Throne is thereby Vacant Resolved That this House do agree with the Committee 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 the Jesuits and other wicked Persons having Violated the Fundamental Laws and having Withdrawn himself out of the Kingdom hath Abdicated the Government and that the Throne is thereby Vacant Ordered That Mr. Hamden do carry up the said Resolution to the Lords for their Concurrence And it was carryed up to the the Lords by Mr. Hamden accordingly Sabbath 2 die Feb 1688. A Message from the Lords to the Commons by Sir Miles Cook and Mr. Methwin Two Masters in Chancery attending the House of Lords Mr. SPEAKER The Lords have considered of the Vote of this House of the 28th of January last to which they concur with Amendments unto which Amendments they desire the Concurrence of this House The Amendments made by the Lords to the Votes sent up to them from this House the 28th of January were Read and are as followeth L. 8. Instead of the Word Abdicated Read Deserted L. 9. Leave out these Words And that the Throne is thereby Vacant Lunae 4 die Feb. 1688. To the First Amendment Proposed by the Lords to be made to the Vote of the Commons of the 28th of January instead of the Word Abdicated to insert the Word Deserted the Commons do not agree because the Word Deserted doth not fully express the Conclusion necessarily inferred from the Premises which your Lordships have agreed for your Lordships have agreed That King James the Second hath Endeavoured to Subvert the Constitutions of the Kingdom by breaking the Original Contract between King and People and hath Violated the Fundamental Laws and Withdrawn himself out of the Kingdom Now the Word Deserted respects only the With-drawing but the Word Abdicated respects the whole for which Purpose the Commons made choice of it The Commons do not agree to the Second Amendment to leave out the Words And that the Throne is thereby Vacant 1st Because they conceive that as they may well infer from so much of their own Vote as your Lordships have agreed unto That King James the Second has Abdicated the Government and that the Throne is thereby Vacant so that if they should admit your Lordships Amendment that he hath only Deserted the Government yet even thence it would follow that the Throne is Vacant as to King James the Second Deserting the Government being in true Construction Deserting the Throne 2dly The Commons conceive they need not prove unto your Lordships That as to any other Person the Throne is also Vacant your Lordships as they conceive having already admitted it by your Addressing to the Prince of Orange the 25th of December last To take upon him the Administration of Publick Affairs both Civil and Military and to take into his Care the Kingdom of Ireland till the meeting of this Convention In pursuance of such Letters and by your Lordships renewing the same Address to his Highness as to Publick Affairs and the Kingdom of Ireland since you met and by Appointing Days of Publick Thanksgivings to be Observed throughout the whole Kingdom all which the Commons conceive to apply that it was your Lordships Opinion That the Throne was Vacant and to signify so much to the People of this Kingdom 3dly It is from those who are upon the Throne of England when there are any such from whom the People of England ought to receive Protection and to whom for that cause they owe the Allegiance of Subjects but there being none now from whom they expect Regal Prrotection and to whom for that cause they owe the Allegiance of Subjects the Commons conceive The Throne is Vacant Resolved That the Earl of Wiltshire do go up to the Lords to desire a Conference upon the Subject matter of the Amendments The Earl of Wiltshire Reports That he having attended the Lords to desire a Conference they had given Answer That they did consent to a Conference immediately in the Painted Chamber Resolved That the Comittee to whom it was referred to prepare Heads of Reasons at a Conference with the Lords be the Managers of the said Conference Mr. Hamden Reports from the Committee appointed to Manage the Conference with the Lords That they had Attended the Lords at the Conference and Communicated unto their Lordships the Reasons why this House doth not Concur with their Lordships in the said Amendments Martis 5 die Feb. 1688. Mr. Hamden Reports from the Conference with the Lords that the Earl of Nottingham spoke to this Effect That the Lords had desired this Conference with the Commons that they might be as happily United to the Commons in Opinion as they are inseparable in their Interest and that they are at this time uneasy that they cannot Concur with the Commons in every thing because it is of so great a Concern to the Nation and from so great and Wise a Body That he then delivered what the Lords had done in Reference to the Subject Matter of the last
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
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
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
difference is plain that where-ever the Monarchy is Hereditary upon the Ceasing of him in possession the Throne is not Vacant where it is Elective 't is Vacant Earl of C n. I would speak one word to that Record which Mr. S s mentioned and which the Lord that spake last hath given a plain Answer unto by making that difference which is the great Hinge of the matter in debate between Hereditary and Elective Kingdoms But I have something else to say to that Record First It is plain in that Case King Richard the Second had absolutely resigned renounced or call it what you please Abdicated in Writing under his own Hand What is done then After that the Parliament being then sitting they did not think it sufficient to go upon because that Writing might be the Effect of Fear And so not voluntary thereupon they proceed to a formal Deposition upon Articles and then comes in the Claim of Hen. IV After all this Was not this an Election He indeed saith That he was not the next Heir and claimed it by Descent from Henry the Third yet he that was really the next Heir did not appear which was the Earl of Maroh so that Henry the Fourth claimed it as his indubitable Right being the next Heir that then appeared But Gentlemen I pray consider what follow'd upon it All the Kings that were thus taken in we say Elected but the Election was not of God's Approbation scarce passed any one Year in any of their Reigns without being disturbed in the possession Yet I say he himself did not care to owe the Crown to the Election but Claimed it as his Right And it was a plausible Pretence and kept him and his Son though not without interruption upon the Throne But in the time of his Grandson Henry the Sixth there was an utter Overthrow of all his Title and Possession too For if you look into the Parliament Roll 1 Edw. 4. the Proceedings against King Richard the Second as well as all the rest of the Acts during the Usurpation as that Record rightly calls it are annul'd repeal'd revok'd revers'd and all the words imaginable used and put in to set those Proceedings aside as illegal unjust and unrighteous And pray what was the Reason That Act deduceth down the Pedigree of the Royal Line from Henry the Third to Richard the Second who dy'd without Issue and then Henry the Fourth saith the Act Usurped but That the Earl of March upon the Death of Richard the Second and consequently Edward the Fourth from him was undoubted King by Conscience by Nature by Custom and by Law The Record is to be seen at length as well as that 1 Hen. 4. and being a later Act is of more Authority And after all this I pray consider it well the Right Line is restored and the Usurpation condemned and repealed Besides Gentlemen I hope you will take into your consideration what will become of the Kingdom of Scotland if they should differ from us in this Point and go another way to work then will that be a divided Kingdom from ours again You cannot but remember how much Trouble it always gave our Ancestors while it continued a divided Kingdom and if we should go out of the Line and invest the Succession in any point at all I fear you will find a Disagreement there and then very dangerous Consequences may ensue Sir R H d. My Lords The Proceedings and Expressions of the House of Commons in this Vote are fully warranted by the President that hath been cited and are such as wherein there has been no interruption of the Government according to the Constitution The late King hath by your Lordships concession done all those things which amount to an Abdication of the Government and the Throne 's being thereby Vacant And had your Lordships concurred with us the Kingdom had long e're this been setled and every body had peaceably followed their own business Nay had your Lordships been pleased to express your selves clearly and not had a mind to speak ambiguously of it we had saved all this Trouble and been at an end of Disputing Truly my Lords this Record that hath been mentioned of Henry the Fourth I will not say is not a President of Election for the Arch-Bishop stood up and looked round on all sides and asked the Lords and Commons Whether they would have him to be King and they asserted as the words of the Roll are That He should Reign over them And so it is done at every Coronation As to his Claim they did not so much mind that for they knew that he Claimed by Descent and Inheritance when there was a known Person that had a Title before him For that which a Noble Lord spoke of touching the Publick Acts that have been done since the King left us I may very well say we think them legally done and we do not doubt but that Power which brought in another Line then upon the Vacancy of the Throne by the Leasion of Richard the Second is still according to the Constitution residing in the Lords and Commons and is legally sufficient to supply the Vacancy that now is That Noble Lord indeed said That your Lordships might not only with the Commons advise the Prince of Orange to take upon him the Administration and joyn with us in the other things but that you might have done it of your selves as being in the absence of the King the Great Council of the Nation My Lords I shall not say much to that point your Lordships Honours Privileges are great and your Councils very worthy of all Reverence and Respect But I would ask this Question of any Noble Lord that is here Whether had there been an Heir to whom the Crown had quietly descended in the Line of Succession and this Heir certainly known your Lordships would have assembl'd without his calling or would have either Administer'd the Government your selves or advised the Prince of Orange to have taken it upon him I doubt you had been pardon me to say it all guilty of High-Treason by the Laws of England if a known Successor were in possession of the Throne as he must be if the Throne were not Vacant From thence my Lords your Lordships see where the Difficulty lyes in this matter and whence it ariseth because you would not agree the Throne to be Vacant when we know of none that possess it We know some such thing hath been pretended to as an Heir Male of which there are different Opinions and in the mean time we are without a Government and Must we stay till the Truth of the matter be found out What shall we do to preserve our Constitution while we are without a safe or legal Authority to act under the same according to that Constitution and in a little time it will perhaps through the distraction of our Constitution be utterly irremediable I do not deny but that your Lordships have very great Hardships
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-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
more necessary that there be a Supply when there is a Defect and the Doing of that will be no Alteration of the Monarchy from a Successive One to an Elective Lord Bishop of E ly Gentlemen the Two Amendments made by the Lords to the Vote of the Commons are as to the Word Abdicated and as to the Vacancy of the Throne That Abdicated may be Tacitely by some Overt-Acts that Gentleman I think I may name him without Offence Mr. Sommers very truly did alledge out of Grotius But I desire to know Whether Grotius that great Author in Treating on this Subject doth not interpose this Caution If there be a Yielding to the Times If there be a going away with a Purpose of seeking to Recover what is for the present Left or Forsaken In plain English If there were any thing of Force or just Fear in the Case that doth void the Notion of Abdication I speak not of Male-Administration now of that hereafter Mr. Serjeant M rd But my Lords that is not any Part of the Case declared by the Commons in this Vote when the whole Kingdom and the Protestant Religion our Laws and Liberties have been in Danger of being Subverted an Enquiry must be made into the Authors and Instruments of this Attempt and if he who had the Administration intrusted to him be found the Author and Actor in it What can that be but a Renuntiation of his Trust and consequently his Place thereby Vacant My Lords Abdication under Favour is an English Word and your Lordships have told us the true Signification of it is a Renuntiation We have indeed for your Lordships Satisfaction shewn its meaning in Foreign Authors it is more than a Deserting the Government or Leaving it with a Purpose of Returning But we are not I hope to go to learn English from Foreign Authors we can without their Aid tell the meaning of our own Tongue If Two of us make a mutual Agreement to Help and Defend each other from any one that should Assault us in a Journey and that he that is with me turns upon me and breaks my Head he hath undoubtedly Abdicated my Assistance and Revoked Lord Bishop of E ly The Objection of the Lords against the Word Abdicated is That it is of too large a Signification for the Case in Hand It seems to be acknowledged that it reacheth a great Way and therefore the Lords would have a Word made use of which by the Acknowledgment of that learned Gentleman signifieth only The Ceasure of the Exercise of a Right If there be such a Defect as hath been Spoken of it must be Supplyed there is no Question of that And I think we have by another Vote declared That it is Inconsistent with our Laws Liberties and Religion to have a Papist to Rule over this Kingdom Which I take to be only as to the Actual Exercise and Administration of the Government It is Grotius his Distinction between a Right and the Exercise of that Right and as there is a Natural Incapacity for the Exercise as Sickness Lunacy Infancy Doating Old Age or an Incurable Disease rendring the Party Unfit for Human Society as Leprosie or the like so I take it there is a Moral Incapacity and that I conceive to be a full Irremoveable Perswasion in a false Religion contrary to the Doctrine of Christianity Then there must be a Provision undoubtedly made for Supplying this Defect in the Exercise and an Intermediate Government taken care for because become necessary for the Support of the Government if he to whom the Right of Succession doth belong makes the Exercise of his Government Unpracticable and our Obedience to him Consistently with the Constitution of our Religion Impossible but that I take it doth not alter that Right nor is an Abdication of the Right Abdication no doubt is by Adaption an English Word and well known to English Men conversant in Books Nor is it Objected that it is not a Word as Antient as it may be more Antient than the common Law of England we find it in Cicero and other old Roman Writers But as to Cicero I would observe that there is a double Use of the Word sometimes it is mentioned with a Preposition and then it signifies the Renouncing a Actual Exercise of a Right as Abdicare a Triumpho And sometimes it hath the Accusative Case following it and then it signifies the Renouncing of the very Right as that which was mentioned Abdicare Magistratum so that the Signification as the Lords in their Reason is doubtful And such Words we hope the Commons will not think fit to use in a Case of this Nature and Consequence as ours now in Debate And besides the Lords apprehended that great Inconveniencies will follow upon the Use of this Word if it mean a Renouncing absolutely of the Right It seems the Commons do not draw the Word Abdicated from His Withdrawing himself out of the Kingdom for then Deserted would no Doubt have Answered That Abdication is the same whether a Man go out of the Kingdom or stay in it for it is not to be esteemed according to the Place but the Power If a Man stays in the Kingdom this is Abdicare with a Preposition to Abdicate the Exercise of the Government but not the Right of Governing according to the Constitution and to such an Abdication if it be so declared my Lords I believe may soon agree Then Gentlemen there is another Distinction in those Authors that Writ concerning this Point which are chiefly the Civilians there may be an Abdication that may Forfeit the Power of a King only and there may be One that may Forfeit both that and the Crown too It is a Distinction indeed in other Words but to the same Sence I will tell you presently why I use it Those Abdications that are of Power only are Incapacities whether those I call Natural and Involuntary as Defects of Sence Age or Body or the like or Moral and Voluntary as Contrariety in Religion an Instance whereof there was lately in Portugal which was a Forfeiture only of the Power and not of the Name and Honour of a King for though the Administration was put into the younger Brother's Hand the Pattents and other Publick Instruments ran in the Elder Brothers's Name This not without all Doubt Naturally an Abdication in the full Extent of the Word nor do I here as I said consider whether that the King be gone out of the Kingdom or stay in it but only whether he be fit for the Administration which must be Provided for be he here or gone away But the highest Instance of an Abdication is when a Prince is not only Unable to execute his Power but Acts quite contrary to it which will not be Answered by so bare a Word as Endeavour I take these to be all the Distinctions of Abdications Now if this last Instance of an Abdication of both Power and Right take Place in a Succeeding
which declares The Throne to be Vacant That no Act of the King 's alone can Bar or Destroy the Right of his Heir to the Crown which is Hereditary and not Elective And then if this matter goes no farther than King James the Second in his own Person How comes the Vacancy and the Supply to be Devolved upon the People For if he only be set Aside then it is apparent whether the Crown is to go to the Person that hath the next Right of Succession and consequently there is no Vacancy Earl of N m. Gentlemen I would not Protract Time which is now so necessary to be Husbanded nor perplex Debates about any Affair like that which lies now before us It is not a Question barely about Words but Things which we are now Disputing The Word Abdicated it is agreed by Mr. Sommers is a Word of Art and he hath told us what its Signification is from those that are Skilled in the Art to which it belongs He doth acknowledge that it is no Law-word among English Lawyers nor known to the Common Law But then he saith neither is the Word used by the Lords Deserted I agree to him that neither the One or the Other are Words used in our Law but the Inference I would draw thence is this That we have no words applicable to this Case because we never before had such a Case and we must not draw Inferences of Law in such a Case that are not deducible from Rules well known in our Laws I will not Dispute what the Sence of the word Abdication is in the Civil Law but that it is a Civil Law Word is agreed to by me and if it be for that Reason I am against using of it because I am so much in Love with our own Laws that I would use no VVords in a Case that so much concerns our Legal Constitution but what are fetched from thence I hope I shall never see our old Laws altered or if they be God forbid we should be the Voluntary Agents in such an Alteration But then we are told the Word Deserted doth not reach our Case because the Signification of the Word is but a Temporary Leaveing or Forsaking of his Power which he may Reassume nay which in some Cases there is a Duty upon him to Return unto If that were all Mr. Sommers hath given himself an Answer to that Objection out of what he alledges of the Lords Reasons who have declared that they are willing To secure the Nation against the Return of King James into this Kingdom and will therefore concur with the Commons in any Act that shall be thought necessary to prevent such his Return so that it should seem we were agreed in that Matter and if that were the Point we should find Words proper soon enough to express our meaning by But I find neither of these Words will on the One Side or on the Other be allowed to signify this Meaning therefore we should as I take it come presently to think of some other that would But the Reasons why my Lords did chiefly insist upon the Alteration of the Word Abdicated was Because they did apprehend that it being a Word not known to our Laws there might be other Inferences drawn from it than they do apprehend our Laws will Warrant from the Case as it is stated in the Fact of this Vote and as they conceive is done in the concluding of the Throne 's being Vacant Therefore I think it would shorten the present Debate if we did settle that Point first and as we frequently in Parliamentary Proceedings Postpone this and that Paragraph in a Bill till some others that may be thought fit to be Determined first be agreed to so we should Postpone the Debate about the word Abdicate till the Vacancy of the Throne be Settled for if we were sure that the Throne were or were not Vacant we should easily light upon what Word were Proper to be used in this Case I should therefore Propose that we might Debate that first because if there be an English Word of known Signification in our Law which should signify no more than Renouncing for a Man's self and which would not amount to so much as Setting aside the Right of Others that Word may be used and if no other the Word Renouncing it self may be taken which would be best agreed to Acting against a Man's Trust says Mr. Serjeant Holt Is a Renuntiation of that Trust I agree it is a Violation of his Trust to Act contrary to it and he is accountable for that Violation to Answer what the Trust suffers out of his own Estate But I deny it to be presently a Renuntiation of the Trust and that such a one is no longer a Trustee I beg his Pardon if I differ from him in Opinion whom I acknowledge to have much more Learning in his Profession than I can pretend unto But if the Law be as he says in a private Case then I must beg leave to forbear giving my Opinion in a Case of this publick Nature that is now before us till I know what such a Trust is and what the Law says in such a Case If indeed you do pretend That the Throne is Vacant and Both Houses agree to that Conclusion I think it will be no matter what VVord is used about it But if we do not agree unto that Conclusion I think it will be afterwards easy to shew which is the fittest Word to be stood upon or to agree on some other I Pray therefore to shorten the Debate that you Gentlemen would speak to this Point first and when that is Resolved I hope we shall easily come to an Agreement about the Other Sir George T by I think my Lords that we may not consent to begin at the End and first to enquire of the Conclusion before the Premises are settled For the Vacancy of the Throne follows as an Inference drawn from the Acts of the King 's which are expressed most fully by the Word Abdication and to enquire what the Consequence is when the Fact is doubtful from which the Consequence is to ensue is begining at the wrong End till we state the Fact we can assign no Consequence at all to it Therefore my Lords I think the present Debate is to begin where the Difference between the Two Houses doth begin and that is at the Word Abdicated and when that is over we shall regularly come to the other Point in Difference We are gone back too far when we offer to enquire into the Original Contract Whether any such thing is known or understood in our Law or Constitution or Whether it be new Language among us And I offer this to your Lordships Consideration for Two Reasons First It is a Phrase and Thing used by the Learned Mr. Hooker in his Book of Ecclesiastical Polity whom I mention as a valuable Authority being one of the best Men the best Church Man and the most Learned
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
Government I desire to deliver my self from the Imputation of any such absurd Conceit When a King breaks the Law in some few particular Instances it may be sufficient to take an Account of it from those evil Ministers that were instrumental in it why such a thing was done which was against Laws Why such a Law was not Executed by them whose Duty it was to see it put in Execution You may in ordinary Cases of breaking the Law have Remedy in the ordinary Courts and course of Justice But sure He does not take this to be such a Case or these to be ordinary Violations of the Law and therefore in the extraordinary Cases the extraordinary Remedy's to be recurred unto for the King having a limited Authority by which he was obliged to keep the Laws made as to the executive part of the Government and to observe the Constitution for making such New Laws as the People should find necessary and present him for his Consent when he doth Violate not a particular Law but all the Fundamentals nor Injure a particular Person in Religion Liberty or Property but falls upon the whole Constitution it self what doth all this speak He therein saith I will no more keep within my limited Authority nor hold my Kingly Office upon such Terms This Title I had by the Original Contract between King and People I Renounce that and will assume another Title to my self that is such a Title as by which I may Act as if there were no such Law to Circumscribe my Authority Where shall any Man come to have Redress in such a Case as this when the Malefactor comes to be Party unto whom all Applications for Relief and Redress from Injuries should be made and so he himself shall be a Judge of his own Breaches of Law This most apparently was the Case as to the Quo Warranto's which was a plain Design to subvert the Constitution in the very Foundation of the Legislature It is because the King hath thus violated the Constitution by which the Law stands as the Rule both of the King's Government and the Peoples Obedience that we say He hath Abdicated and Renounced the Government for all other particular Breaches of the Law the Subject may have Remedy in the ordinary Courts of Justice or the extraordinary Court of Parliamentary Proceedings But were such an Attempt as this is made on the Essence of the Constitution it is not We that have brought our selves into this state of Nature but Those who have reduced our legal well-establish'd Frame of Government into such a slate of Confusion as we are now seeking a Redress unto Earl of R er The Lords have given their Reasons why they altered the word Abdicated because it is a word not known to the Common Law and of doubtful Signification Therefore it would be well if the Commons would please to express their own Meaning by it I believe my Lords would be induced to Agree that the King hath Abdicated that is Renounced the Government for himself If you mean no further than that and if You do so Why should You not be pleased to explain your selves that every one may know how the Matter stands and to preserve a good Correspondence between Both Houses in such a Juncture and Conjunction as this But if you do mean any thing more by it than Abdication for Himself only tho' their Lordships should agree to the using of the word Abdicated yet this would prove a greater Argument against their Agreeing in the Other Point about the Vacancy of the Throne Therefore we would be glad to have you explain your selves what you mean by it Then there was a little Pause Mr. H en If the Lords have nothing further to offer upon this Point it will be fit for Us to go on to the other Amendment made by the Lords to Our Vote No Lord offering to speak the Commons proceeded to the Second Amendment Mr. Sach rel My Lords Your Lordships Second Amendment to the Commons Vote to wit To leave our the Words And that the Throne is thereby Vacant the House of Commons cannot agree with Your Lordships to that Amendment and they do conceive they have many and great Reasons why they should not do it But my Lords They very much wonder how it comes here to be laid upon Them as it seems to be by one of your Lordships Reasons That they by using those Words of Abdication and Vacancy signifie an intention of making an Alteration of the Constitution of the Government I would not misrepresent Your Lordships Words or misrepresent Your Meaning But you are pleased to say That you cannot agree to such an Abdication or Vacancy as that the Crown should thereby become Elective As if the Commons had Thoughts of making the Kingdom Elective when no such thing was either meant by Them or can be deducted from their Words But my Lords One Reason why they differ from You is They think upon the nature of your Proceedings they are in the Right to insist upon their Vote as they sent it up to your Lordships And they conceive as to all the Reasons your Lordships have been pleased to give them for your Alterations not One of them hath so much Argument in them as they might well expect The Commons Reason for their Disagreeing to this Amendment was Because they conceive that as they may well infer from so much of their own Vote as your Lordships have agreed unto That King James the Second hath Abdicated the Government and that the Throne is thereby Vacant So if they should admit your Lordships Amendments That he hath only Deserted the Government yet even thence would follow It 's Vacant as to King James the Second Deserting the Government being in true Construction Deserting the Throne Now to this they do desire That your Lordships will consider and see Whether you give any Answer to this Reason or rather Whether you do not leave the Matter still in the dark and in Truth leave the Nation in a perpetual state of War Your Lordships Answer to that Altho ' you have agreed that the King has Deserted the Government and therefore you have made Application to the Prince of Orange To take upon him the Administration of the Government and thereby provide for the Safety and Peace of the Kingdom yet there can be no Inference drawn from thence but only that the Exercise of the Government by King James the Second was 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 Vacancy in the Throne as that the Crown thereby became Elective to which they cannot agree I desire now to know of your Lordships what Part of this Reason hath given an Answer to what the Commons said in their First Reason That they may very well conclude from their own Vote as to what your
is that we do insist upon That if the Right of Kingship be still after all that is agreed on both hands due to him we cannot in Justice agree to keep him from it And if it be not his due Right but by these Acts his subversion of the Constitution his breaking the original Contract and violation of the Fundamental Laws he hath Abdicated it as we say and this Abdication hath put him by his Right and so his Right is gone from him as we conceive it is then I think we may lawfully go on to settle the Peace and Welfare of the Nation But the Right to be still in him to have a Regency upon him without his own Consent or till his Return we take it to be a strange and impracticable thing and would be introductive of a new Principle of Government amongst us It would be setting up a Common-wealth instead of our ancient regulated Government by a limited Monarchy then I am sure we should be justly blamed And therefore we can by no means submit to your Lordships Alterations of our Vote upon any of the Grounds and Reasons that have as yet been offer'd Earl of C n. As to what Mr. P n hath offered I desire to observe a word or two and that is from the Commons second Reason for their disagreeing to their Lordships Amendments You say there That the Commons do conceive they need not prove to your Lordships that as to any other Person besides King James the Throne is also Vacant Doth not this shew that the meaning of the Vacancy is a Vacancy throughout as well as with respect to King James I ask your Pardon if I do not declare my own Opinion about the Vacancy as to him but all that I mention this for is to know your Meaning in this Point how far the Vacancy is to extend You said before That He had Abdicated the Government and thereby the Throne was Vacant How is it Vacant Is it only as to King James or is as to Him and all or any of his Posterity or any of those that are in the remainder in the Royal Line in Succession If it be as to them too then it must necessarily follow that the Kingdom must thereby become Elective still or the Government changed into a Common-wealth neither of which we hope the Commons intend by it And therefore that made me ask before what a grave and learned Gentleman meant when he said it should not be perpetually Elective Mr. Serjeant M d. I am sure if we be left without a Government as we find we are why else have we desir'd the Prince to take upon him the Administration sure we must not be perpetually under Anarchy the word Elective is none of the Commons word neither is the making the Kingdom Elective the thing they had in their Thoughts or Intentions all they mean by this matter is to provide a Supply for this Defect in the Government brought upon it by the late King 's Male Administration And I do say again this Provision must be made and if it be that would not make the Kingdom perpetually Elective I stand not upon any Word but am for the Thing that a Provision be made to supply the Defect Mr. P n. Do your Lordships agree That the Throne is Vacant as to King James the Second If so or if you will say it is full of any body else and will name whom it is full of it will then be time for the Commons to tell what to say to it If your Lordships will please to shew that we shall go on to give it an Answer Earl of C n. Your own words in your Second Reason are That You need not prove to us that it is to any other Person the Throne is also Vacant Then how should we name who it is full of Admit for Discourse sake but we do not grant it for my part I do not I say taking it to be Vacant as to King James the Second then you ask us Who it should be Supply'd by Must it not be Supply'd by those that should have come if he were dead For I pray consider I take this Government by all our Laws to be Hereditary Monarchy and is to go in Succession by Inheritance in the Royal Line if then you say this Government is Vacant that would be to put all those by that should take by Succession and that will make the Kingdom Elective for that time You say The Throne is Vacant then I may very well ask Who hath the Right of filling up that Vacancy We say There is no Vacancy if there is pray is there any body that hath the Right of filling it up Mr. Serjeant M d. That is not the Question before us yet that will come properly in debate when we are agreed upon the Vacancy The Noble Lord says It is by our Law an Hereditary Monarchy I grant it but though it should in an ordinary way descend to the Heir yet as our Case is we have a Maxim in Law as certain as any other which stops the course for no Man can pretend to be King James's Heir while he is living Nemo est haeres viventis Earl of P e. To that Point I think my Lord of C n gave an Answer That it should go to the next in the Line that were to take it if the King were dead for as we should be understood we should make it a Case of Demise of our Kings our Law calls it that is the King is dead in Law by this Abdication or Desertion of the Government and that the next Heir is to take by Descent You Gentlemen ask us who the Throne is full of I think it is sufficient to know that there are Heirs who are to take by Lineal Succession though we do not or cannot positively name the particular Person and therefore we may well conclude there is no Vacancy Suppose I should be told such a Gentleman is in such a Room and there I find him and another man with him and I come out and tell you so and ask Which is he you may be doubtful which of the two is the Man but sure the one of them is he but because you cannot tell which it is shall I conclude no such one is there If there be a doubtful Title that is dubious in whom the Title resides but a certain Title as to some one and I cannot directly name him that hath the immediate Right yet it is sufficient to prevent the Vacancy that there is an Heir or Successor let him be who he will Mr. Serjeant M d. But your Lordships will neither agree it is Vacant nor tell us how it is Full. King James is gone we hear or know of no other What shall the Nation do in this Uncertainty When will you tell us who is King if King James be not Shall we everlastingly be in this doubtful condition Earl of P e. Sure Mr. Serjeant M d you will
need of standing upon a Vacancy If we are to Fill it according to the Humour of the Times and of those that are to make the Choice that diverts the course of Inheritance puts it into another Line And I cannot see by what Authority we can do that or change our Ancient Constitution without committing the same Fault we have laid upon the King These are the Objections against the Vacancy of the Throne which occur to me and We my Lords desire a Satisfaction to them before we agree to the Vacancy And I think the Answering them will lead us unto that which I take to be the main point in question Whether the Vacancy of the Throne and Filling it again will not as my Lords say endanger the turning this Hereditary Monarchy of ours into an Elective one Mr. S l. My Lords it seems very strange to us that this Question should be asked us when we come to shew That your Lordships Reasons for leaving out this part of our Vote are not satisfactory neither do answer the Reasons we gave for our not agreeing to your Lordships Amendmonts And it is much stranger that we should be asked Whether this Vacancy extend to the Heirs when you will not tell us whether it be Vacant as to King James himself You put it upon us to say the Execution or Exercise of the Government is ceased but you will not say the Throne is vacant so much as to him And if it be not what have we to do or consider or debate of any consequence whether it will infer an Election or not We desire of your Lordships that which we think is very proper first to know whether the Throne be vacant at all If it be then our Proposition in the conclusion of our Vote is true That the Throne is thereby vacant My Lords I think we come here very much in vain till this Point be setl'd What Satisfaction can it be to your Lordships or Us or the Nation to know that such things as are mentioned in the Votes have been done by King James and that he has deserted as you say the Government if he still retain a Right to it and your Lordships will not declare he hath no Right but amuse the Kingdom with the doubtful words of the Exercise as to him Ceasiug If that be all you mean what need the Question be asked how far it is vacant for it should seem it is not vacant at all E. of N m. Will you please to suppose it Vacant as to King James that is that he hath no Right Then let us go on to the next step Mr. S l. That my Lords we cannot do for all our business is to maintain our own That the Throne is Vacant Mr. S s. My Lords your Lordships as a Reason against the word Abdicate say It is not a word known in our Common Law But the word Vacant about which we are now disputing cannot have that Objection made to it for we find it in our Records and even apply'd in a parallel Case to this of ours in 1 Hen. IV where it is expresly made use of more than once and there it doth import what I think it doth import in this Vote of the House of Commons now in debate and to require any further or other Explication of it than the Record gives will be very hard and unreasonable for we are here to give the Commons Reasons for maintaining their own Vote and nothing else If your Lordships please to look into the Record in that case there was first a Resignation of the Crown and Government made and subscribed by King Richard the Second and this is brought into the Parliament and there they take notice that the Sedes Regalis those are the words fuit vacua and the Resignation being read both in Latin and in English in the Great Hall at Westminster where the Parliament was then assembled it was accepted by the Lord's and Commons After that it proceeds further and there are Articles exhibited against Richard the Second and upon these Articles they went on to Sentence of Deposition and Deprivation and then followeth the words in the Record Et confessim ut constabat ex proemissis eorum occasione Regnum Angliae cuui pertinentiis suis vacare Then Henry the Fourth riseth up out of his place as Duke of Lancaster where he sate before and standing so high that he might be well enough seen makes this Claim to the Crown The words in the Record are Dictum regnum Angliae sic ut praemitur Vacans una cum Corona vendicat After that the Record goeth on That upon this Claim the Lords and Commons being asked What they thought of it they unanimoufly consented and the Archbishop took him by the Hand and led him ad Sedem Regalem Proedictum c. Nay and after all this it is there taken notice of and particularly observed that prius Vacante sede Regali by the Leasion and Deposition aforesaid all the publick Officers ceased there is care taken for Hen. IV's taking the Royal Oath and granting of new Commissions My Lords the Commons do therefore apprehend that with very good Reason and Authority they did in their Vote declare the Throne to be Vacant But as to the going further to enquire into the Consequences of that or what is to be done afterwards is not our Commission who came here only to maintain their Expressions in their Vote against your Lordships Amendments E. of R r. In a free Conference the Points in question are freely and fully to be debated and my Lords in order to their agreement with the Commons are to be satisfied what is meant and how far it may extend You Gentlemen that are the Managers for the House of Commons it seems come with a limited Commission and will not enter into that Consideration which as our Reasons express hath a great weight with my Lords Whether this Vote of the Commons will not make the Monarchy of England which has always heretofore been Hereditary to become Elective That the Vacancy of the Throne will infer such a Consequence to me appears very plain And I take it from the Argument that that last Gentleman used for the word Vacant out of the Record of Richard the Second's time that is cited for a President for that word But as that is the only President yet it is attended with this very Consequence for it being there declared That the Royal Seat was Vacant immediately did follow an Election of Henry the Fourth who was not next in the Right Line Did not then this Hereditary Monarchy in this Instance become Elective When King Charles the Second died I would fain know whether in our Law the Throne was Vacant No sure the next Heir was immediately in the Throne And so it is in all Hereditary Successive Governments Indeed in Poland when the King dyes there is a Vacancy because there the Law knows no certain Successor So that the