Grey's Debates of the House of Commons: Volume 9. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Friday, February 1.
Mr Hampden, jun.] I hear Orders are contested. If you, Mr Speaker, mistake Orders, you are not the first in that Chair that has done so, nor will be the last. The Gentleman has began not upon mistake of argument, but is mistaken in fact, and you may rectify him; as in any fact as to Order, a man may be mistaken, and you may rectify him. Pray let us not dispute lesser things, but think of greater matters, and put this off our hands.
Sir Joseph Tredenham.] I would not have new Orders put upon us. I appeal, whether the Chair did ever judge matter of fact? If it be so, because we are told so, there's an end of all. A Member may be mistaken, but before you judge him, give him leave to justify himself.
The Speaker.] I think Tredenham totally mistaken. If a Gentleman runs into discourse unnecessarily, and not to the purpose, I am to rectify him.
Sir Richard Temple.] 'Tis not judging matter of fact; but when a man goes on with a mistake of the fact, you may rectify him. And so why should you spend time to rectify a discourse?
The Speaker.] I cannot judge a mistake, but I may rectify it.
Sir Jonathan Jennings.] I sat near the pulpit: The Reader prayed the whole prayers through, upon which I took particular notice of the pulpit. I hope I am rather mistaken than to say you are. Under favour, without giving you contradiction, the Doctor prayed "for the King's Majesty, and all the Royal Family."
Thanks were voted to Dr Sharp, and Dr Burnet, and they were desired to print their Sermons.
Mr Leveson Gower.] I move, that you will give the Thanks of this House to the Clergy; that great body that opposed Popery by their preaching and writing, and have been instrumental in bringing us hither. I move, that you will thank them "for what they have done for defence of the Protestant Religion in King James II's reign."
Mr Finch.] I move, to thank them for refusing to read the Declaration, in opposition to the pretended Dispensing Power.
Mr Dolben.] Likewise, I would have them thanked that opposed the jurisdiction of the Ecclesiastical Commission.
Col. Birch.] I would have the addition of one word, to make the thing true; make it, "Such of the Church of England as refused to read the Declaration."
Resolved, Nem. con. That the Thanks of this House be given to the Clergy of the Church of England, who have preached and written against Popery, and refused to read, in their Churches, the late King's Declaration for Toleration, in opposition to the pretended Dispensing Power, claimed in the reign of the late King James the Second (fn. 1), and have opposed the late illegal Ecclesiastical Commission.
Mr Finch.] If the word "late King" be necessary in the Vote, I am not against it; but, whether is it material to the end of your Vote? If it be immaterial, there is no reason why you should use it.
Sir John Thompson.] You have said, that the Throne is vacant; and will not now the thing moved, to leave out the word "late King," overthrow the consequence of your Vote, being infinitely material?
Sir Robert Sawyer.] I move, that your Vote may be sent to the two Archbishops, to be communicated to the Clergy.
[Which was ordered.]
Mr Wharton.] I am extremely pleased with your Vote of Thanks to the Clergy, &c. who have behaved themselves gallantly in opposition to Popery: This leads me to a Motion for the Thanks of this House to such of the Army who have behaved themselves so bravely in opposition to Popery and Slavery. Comparisons are odious; but I think it more extraordinary in men of their education. Churchmen are paid for it, but the Army was for another purpose. This was from God's hand; and I desire they may have the Thanks of the House.
Mr Palmes.] I desire likewise, that the Officers of the Fleet may have the Thanks of the House.
Mr Wharton.] I would not have the Thanks of the House, as is moved, be given to the Army by the Prince of Orange. Is he your servant? Let it be by the General Officers of the Army.
Resolved, Nem. con. That the Thanks of this House be given to the Officers, Soldiers, and Mariners, in the Army and Fleet, for having testified their steady adherence to the Protestant Religion, and being instrumental in delivering this Kingdom from Popery and Slavery; and also to all such who have appeared in arms for that purpose.
The Speaker.] (Upon a Motion sor gratifying the Army, &c.) I think this Motion is unseasonable, and more proper for another time; it implying Money.
Mr Garroway.] I would go no farther in this Motion; for by retaliating upon the Papists here what they do upon the Protestants in Ireland, you will make a Massacre in England; several of the Romish Religion have joined with the Protestants in Ireland for suppressing France, &c. I would have Jennings, who made the Motion, carry it to the Prince of Orange to consider of it; but I would leave nothing upon your books of it. (The Gentleman moved only upon bearsay.)
The Lords sent down the Vote, &c. and agreed to it all, except "the Vacancy of the Throne."
Saturday, February 2.
Sir George Treby reports the Heads of the Articles of Government; (which see in the Journal.)
Serjeant Maynard.] Informations in the King'sBench are of several sorts; I would not have, the Question upon them general (fn. 2), but say what Informations are a Grievance, and what not; else I know not whither they may go. Suggestions are Informations, for the benefit of the Court; therefore consider what.
Sir George Treby.] I may make a long discourse of Informations in the King's-Bench, not long practised, nor much to be commended. This is grown to a mighty vexation (unless in popular actions in Middlesex.) If a man does not appear, he is outlawed. Sometimes, for a foul fact, the Court orders an Information. But, though some Informations be thought mischievous, yet the Committee rather chose to leave it to the penning of a Law to provide an Act, than to make a Report in particular.
Mr Pollexfen.] These are but Heads, and no Law. The taking away Informations in the King's-Bench may be very mischievous. If you take them away in general, there may be a thousand cases wherein there can be no remedy. The matter is only for a defence from oppressions of Informations in the King's-Bench.
Mr Hampden.] All Informations in the King's-Bench are taken away for the present, for want of a Great Seal. But taking away the abuses of them is the intent. I hope you intend not to take all away, but intend this memorandum as a claim, and the abuses to be redressed.
Sir George Treby.] If Informations be indifferently taken away, though the title be general, you may make restrictions. This is not confined to the Court of King's-Bench, but in the Exchequer there are vexatious Informations that may be taken away.
Mr Finch.] I would have it run thus: "Abuses in Law by Informations to be remedied."
Mr Garroway.] Several words have been offered, as "Abuses, Vexations, &c." but who shall judge it? Put it, to have a mark of infamy upon it in general, and then you may qualify it in a Bill.
Col. Birch.] If this takes so much time here, what will it do in the House of Lords? Therefore pen it clearly.
Mr Sacheverell.] Informations are not useful at all, where the matter may be tried by Indictment, by a Jury, and the party may know the matter he is accused of. This is in the nature of a declaratory Petition of Right, and must go to the Lords; but these Proposals do not. 'Tis a strange tenderness of some Gentlemen, when things are laid down as Heads only, and I wonder this should have such countenance here.
Mr Hampden.] Retarding of Justice, exacting exorbitant Fees upon Informations, &c. and a word called "Dispatch," comes to more than the Fees themselves.
Serjeant Biggland.] I would have notice taken of buying and selling judicial Offices, to keep honest men out, and put others in; and the Sheriff's Office to be considered, which influences the whole Government. Bailiffs and Sheriffs must gain, when they buy their places; and if no care be taken of buying Offices, you will never have good Administration of Justice.
Mr Sacheverell.] I would have the Law against buying and selling Offices made more effectual, by another Law; and I desire it may be general to all Offices.
Sir George Treby.] Some Provisos, in the Statute of Edward VI. against it, are ineffectual. I move, that buying and selling Offices may be effectually provided against.
The Speaker.] Some Offices are as lawful to sell as a man's private inheritance. When you come to draw the Bill, you may provide as you please.
Serjeant Maynard.] I would have the Act of Habeas Corpus considered. If a Jailor be false, the prisoner may lie for ever by commitment of the Council-board.
Sir William Williams.] I have known Returns as false as possible. When a man is innocent, there must he lie, be the accusation ever so false. I move, that the person may take issue upon it, that the Return is not true, and that the person may traverse the legality of the Return.
Mr Paul Foley.] Not only upon Habeas Corpuses, but upon Mandamuses, and the same liberty to traverse as upon a Habeas Corpus.
Mr Hampden.] Nothing has been more practised, nor more have suffered under, than when upon an Indictment the Fine is begged. He that begs it turns Prosecutor presently; this makes way for a great deal of mischief. A great man of the Law would never sign any such Grant, as a most mischievous thing. Ordinarily, on a bare accusation, the Fine would be begged. I would have it declared, that, before conviction, there shall be no begging of the Fines.
Mr Boscawen.] This is grown a general practice; when the Fine is begged, it encourages perjury, and instructing of witnesses. I would not only have it declared against Law, but some new penalty, that whoever begs such a Grant be fined.
Sir William Williams.] I would go farther; that all Grants of Fines for Misdemeanor shall be void.
The Speaker.] Many of these things are against Law, but in these Heads you only renew your Claim.
Resolved, That begging of Fines, &c. is illegal and void, &c. and such as beg them shall be punished; and that the abuse of collecting the Hearth-Money be redressed.
The Speaker communicated to the House, "That he had received a Letter from Lord Preston, and desired to know what he should do with it. It was directed "To the Speaker of the Honourable House of Commons, assembled in Parliament at Westminster."
Sir Henry Capel.] I would have the Letter laid aside.
Sir Thomas Lee.] This Letter, coming thus to you, gives you a good occasion to go on with your other proceedings. You know the person from whom you received it, and you may lay it aside.
[The Letter was from King James, inclosed in Lord Preston's Letter.]
Mr Rowe.] I have a Petition from great numbers of persons, for crowning the Prince and Princess of Orange King and Queen. I desire that it may be read.
Serjeant Maynard.] Here's a Petition proffered you from you know not whom, nor for what; if you read it, the Parliament is without doors, and not here.
Sir Edward Seymour. (fn. 3) ] This Petition is of an extraordinary nature: You are now on as great a Debate as ever Parliament was. (It was upon the word "Abdicate, &c. and the Throne thereby become vacant;" which the Lords left out of the Vote from the Commons.) The Lords were threatened yesterday by the Mob, and they are not yet dispersed. They are for a King—but make use of miserable people. If your Debates are not free, there is an end of all your proceedings. You are to sit sure here, else there is no other way than to go home into the country. What comes from you is the result of reason, and no other cause. As your Debates must be free, so must your Resolutions upon them; which cannot be, unless some care be taken to preserve you from the Mob.
Lord Fanshaw.] You have had a Letter from Lord Preston: I would send to him to know the contents of it.
The thing passed off without farther Debate.
On the Lords Amendment to the Commons Vote, viz. instead of "abdicated," "deserted;" and leaving out "the Throne thereby become vacant."
Sir Richard Temple.] You have considered the word "abdicated" as the only proper word. As for "deserted," I appeal whether 'tis a proper conclusion to the premises. The Lords have left out the whole conclusion in the matter. They have agreed "that King James has subverted the Constitution of the Government, has violated the original contract, and has withdrawn himself, &c." Consider whether this be a proper conclusion. By doing these acts, he has most plainly "abdicated the Government;" by the premises plainly, by subverting the Constitution, he will govern by an Arbitrary Power, though sworn to rule according to original contract. The hour he does it, 'tis a renunciation of the Government. Hottoman, and all approved authors, call this "Abdicating the Government." Henry VI. upon fear of the Earl of Warwick, went out of the Kingdom, and left it; and that, by all the Judges, was judged "a Demise." I desire you will not agree with the Lords.
Mr Hampden.] The dispute with the Lords is about a word changed. 'Tis your word now, the word of the House, and I was ever of opinion the most proper word. "Forsaken, forfeited," and other words, were mentioned here; but, I think, "abdicating" was in request among the Romans. When a parent "abdicated" his child, he gave him no maintenance: Though the child never forsook the father, yet if he deserved it, he was "abdicated." If you say such things have been done as violating the original Contract, &c. is not "Self-Abdication" more than Desertion? If it comes to be disputed, you will then see the value of the word. Should you say, King James has deserted, is gone from Rochester, and may come again, for doing a thing, justly to be abdicated, the Question is, whether you will retain or change your word; agree or not agree with the Lords.
Sir Thomas Clarges.] This is a great business before you; all tends to the settlement of the Nation. Union is so necessary at this time, that I hope we shall agree with the Lords in the Amendments. "Desertion" seems more proper than "Abdication," which is not so needful nor proper. As for precedents, it must be voluntary. That of Charles V. and the Queen of Sweden, tant amount to that of Alphonso King of Portugal; his Government was destructive to his people. Edward II. committed all manner of irregularities and oppressions, by the advice of wicked counsellors, to subvert all the Laws of the Nation. In Riley's Collections of Records, the Parliament at Bristol, upon report that the King had forsaken the Kingdom, (decessit regno, as the words of the Record are, had left the Kingdom,) by unanimous consent, elected the Duke of Aquitain Custos regni. Therefore I move to agree with the Lords in the word "Desertion."
Mr Finch.] I would agree with the Lords, &c. for those very reasons offered against it. The departure of Edward IV. out of the Kingdom was judged "a Demise;" (and so repeats the Vote.) If you say King James deserted the Kingdom, the Question is still entire; whether he did. "abdicate" or "desert," is not material. There is good reason why you should agree with the Lords; and I take "desert" to be the more proper word: I am sure 'tis most proper to agree with the Lords. But whether "deserted" or "abdicated," I would not differ with the Lords; for the consequence is entire to you, and you may agree.
Sir Richard Temple.] I am mis-recited, and therefore desire to be rectified. I did not say "that King James deserted the Kingdom," but "the Government." His renunciation is by something done by fact, not by solemn instrument.
Lord Falkland.] If this Vote be grounded merely upon the King's leaving the Kingdom, he may come again, and resume the Government. But "Abdication" relates to breaking your Laws; and though the Lords stand by the Premises, yet they desert the Conclusion, in leaving out "the Throne vacant." I would therefore not agree with the Lords.
Mr Dolben.] The Precedent I cited the other day, and inferred my opinion upon was, that Ed. IV's withdrawing himself from the Kingdom and the Government, was a Demise, and it was so judged by the opinion of all the Judges; and from all considerations together, you pronounced it an "Abdication" in King James. But barely "a Demise," and "a withdrawing," without the consideration of all the breaches he had made in the Government, the House did not call it, but the word "Abdication." I would agree with the Lords if I could agree with ourselves, and our own senses, first. The Lords have so far concurred with your Vote, "That King James has broken the original Contract betwixt the King and People." The Premises must agree with the Conclusion; ours is the more proper inference, and we must stand by it.
Sir Robert Sawyer.] Authors that write of "Abdication" say, "to desert" is "to abdicate." All that the Lords mean by "Abdication," you mean by "Desertion."
Sir Robert Howard.] "Desertion" is a Latin word, and "Abdication" is another. If there be no more intended by the Lords than the word, then the King has only deserted the Government, and the Throne is not vacant; and the King may have the help of a Regency. They are both Latin words alike, and both English: "Abdication" arises from "vacated." If it be not so, the Lords have made room for their last Amendment, "That the Throne is not vacated."
Mr Tipping.] The Lords are of opinion that the Throne is full, but they tell you not who is in the Throne. I am sorry to hear of a great number that would bring the King back again; how pernicious that would be to all good Protestants, you may easily judge. I am sure 'twill be of ill consequence to join the Prince of Orange with him in the Throne, But I believe the true reason of this disagreeing with your Vote is the delay that the House has made, that they proceeded not to fill the Vacancy of the Throne. If you had proceeded speedily to fill the Throne, possibly you would have had another Answer. Put the Question of disagreeing with the Lords, and then declare, "that you will supply the Vacancy of the Throne."
Sir Thomas Littleton.] The Lords cannot expect that we, who have said the Throne is vacant, should not intend to fill it up: The best way is, to go on and fill it up, and put all out of doubt.
The Question being put, That the House do agree with the Lords in these two Amendments, it passed severally in the Negative, Nem. con.
Sir Richard Temple.] No doubt but you can maintain your Reasons for your Vote, at a Conference. If the Throne be full, what do we here? I move you to prepare Reasons, &c. for the Lords at a Conference.
A Committee was appointed accordingly.
Monday, February 4.
Mr Hampden reported the following Reasons, from the Committee, why the Commons cannot agree with the Lords Amendments of their Vote of the 28th of January.
"1st, Because the word "deserted" does not express their meaning so fully, it importing no more than a "removing," which is expressed by the word "withdrawing" in the sentence before; therefore they conceive the word "abdicated" a more proper word, importing "a renouncing of the Crown, &c."
" 2dly, They think they need not alter the word "vacant," because their Lordships addressed the Prince of Orange to take upon him the administration of affairs, and to send Circular Letters for this Convention to meet; and their Lordships appointing a day of Thanksgiving, and concurring that a Popish Prince is incapable to govern, &c. justifies the Commons herein."
"3dly, Because there is no person on the Throne, from whom the subject can have regal protection, therefore they owe no Allegiance to any; and consequently the Throne is vacant (fn. 4)."
Sir Joseph Tredenham.] I agree "that the Throne is vacant," but I cannot agree it to be "entirely vacant;" we have no such thing in our Government as an interregnum, and so no entire Vacancy.
Sir Thomas Lee.] I appeal to the Chair. Consider the Orders of the House; now that the House has resolved that the Throne is vacant, no man can speak against the foundation of your Vote.
Sir Joseph Tredenham.] Since the Speaker says, 'tis Order, I must acquiesce.
Sir Robert Howard.] I hear that the Viceroy of the Corporations, Mr Brent, is bailed; and, upon his bailing, is fled. Upon this, the Sollicitor General (Burton (fn. 5) ) is fled, after he had brought in a bill of 1700l. for murdering of Cornish at his Tryal (fn. 6). I move you to send for Sir James Smith, who bailed Brent, to give you an account of it.
Sir William Cowper.] I have heard of 3000l. bail given in the King's-Bench: 'Twas my own case, for no offence but only for being for the Bill of Exclusion in this House.
Sir George Treby.] Sir James Smith is an Alderman of London, and, I believe, will give you some account of himself. If you please to signify your pleasure, I shall give him notice.
Ordered, That Sir James Smith be sent for.
Col. Birch.] If any Gentleman had spoken my sense, I would not have troubled him. On Saturday you agreed on Articles to be sent to the King, &c. things of vast consequence; and, if made public, they are like to have another manner of effect. We have been scrambling a long time for our Religion and Properties; and shall these things lie there, and no more? Put some Title to them, and send them to the Lords immediately.
Major Wildman.] Consider not to make a separation of your Votes, before you send them to the Lords. Distinguish these as new Laws, and those as ancient. Things of Right and of Grace will have no effect, without distinction. In the Petition of Right, the Commons refused to have new Laws, but claimed what they demanded ab origine. Therefore I move that they may be separated.
Mr Hampden.] The Lords used to take Notes at a Conference; of late years they have desired your Paper; but our Paper was privately delivered to the Clerk, not to the Lords; and the House approved it. I desire your direction, whether I shall deliver the Paper to the Lords, but not to be entered upon your Book as Order.
Sir Thomas Lee.] I move you to put some Title to the Heads you agreed the other day, to be of some use to you. You are moved to draw them into the form of the Petition of Right. Some of the Heads are not to be remedied, but by new Laws; and you cannot send them to the Lords till put into a new method; but as for those things wherein the ancient Rights are infringed, those require no new Laws. New claims of Laws already made, they'll not have the credit till taken up by both Houses. Things laid asleep, or ill exercised by the late Government, we lay claim to.
Sir Henry Capel.] I desire to revive that Motion. We have been branded often with Alteration of the Government. 'Tis our right to assert our Freedom. 'Tis likely, whoever you shall inthrone will thank you for giving light into the miscarriages of the last Government. And we only assert our Rights and Liberties, pursuant to the Prince's Declaration.
Sir Richard Temple.] Those things will go with your Instrument of Government. The Throne must be actually filled before you deliver that Petition; and you are well moved to make a separation in the Heads.
It was ordered accordingly.
Tuesday, February 5.
Sir James Smith at the Bar.
The Speaker.] The House is informed, that you have bailed Mr Brent, a Papist, and a busy one. They would know on what terms you bailed him.
Sir James Smith.] I bailed him, because there was not any Information against him, but that he was a Papist. He pressed hard upon me to bail him, which I could not refuse. He was taken in a private lodging, near Old Fish-street, concealed. I committed him as a Roman Catholic: I kept him in my house till Sir William Waller had acquainted the Prince of Orange that he was taken. He brought me word, that the Prince would not meddle in it: Then I committed him to the Compter, till Sir William Waller had brought a Charge against him, which he brought not; and then I thought I might bail him. I consulted the Recorder, and acquainted him with what I had done, and he advised me to bail him. There was no body joined with me in bailing him, having nothing farther against him, till Sir William Waller charged him with endeavouring to alter the Government. It was a general Charge, and Sir William undertook Witnesses to prove it. I bailed him in 1000l. and 500l. the sureties 250l. a-piece, to appear at the next Sessions of the Peace. I have sent to his bail for his appearance, and they doubt not but he will appear.
Sir John Hanmer.] I am informed that there is such matter expressed in the Commitment, that he could not bail him.
Sir John Guise.] There is one Rogers, who is called the Post-Boy (fn. 7) of Magdalen College, was brought before Sir George Treby, and he let him go without bail.
Ordered, That Sir James Smith do attend this House again to-morrow, with a copy of the Warrant of Commitment of Mr Brent, and a copy of the bail, &c. and that the Keeper of the Compter do also attend with the original Warrant of Commitment.
Mr Hampden reports the Conference.
Earl of Nottingham, who managed.] The Lords have desired this Conference with the House of Commons, to declare they desire to be united to the Commons in affection, and to be as inseparable in opinion as they are in interest. The House of Commons are a wise body, &c. and I hope they will agree with the Lords in this great conjuncture of affairs.
Mr Hampden.] I hope I shall be excused, if I report it not to Lord Nottingham's advantage. "The Lords agree not to the word "abdicated;" they do not find it to be a word in our known Law of England; therefore they would use such words as are understood according to the Law, to avoid doubtful interpretation; the word "abdicate" being a Civil Law word, instead of "violated," "deserted," &c. which does express the consequence of withdrawing. To the second Amendment, "and that the Throne is thereby vacant;" though the Lords have declared that the King has deserted the Government, yet with no other inference, than that the exercise of Government ceased; and the Lords would secure the Nation against King James's return, and no such Abdication; though King James II. ceased to be King, yet there could be no Vacancy in the Throne, the Monarchy being hereditary, and not elective. No act of the King can destroy the succession of his Heirs, and such persons to whom of right the succession of the Crown belongs (fn. 8)."
Sir Thomas Clarges.] These Reasons of the Lords seem to me to be so cogent, that they deserve to be seriously weighed. I take the Crown to be hereditary, and that King James has "abdicated" the Crown, and the pretended Prince of Wales being in the power of the French King, and the Throne vacant, the Crown ought to proceed to the next Protestant successor.
Serjeant Maynard.] Enter the Paper, and then you may dispute the matter farther. In the mean time, 'tis a sad thing, that the whole welfare of the Nation must depend upon a word of a grammatical construction.
Mr Harbord.] The Dutch have sent their best troops to our assistance; and the King of France is to rendezvouz his Army the 10th of March, and we are under unfortunate delays here of settling the Government. I can expect no other, when a sort of men are amongst us, that have been guilty of blood and our misfortunes, &c.
Sir Thomas Clarges.] I concur with Harbord, to give things fair expedition. I hope we are not in so great danger, the Government being settled in the Prince of Orange, and he being trusted with the Treasure of the Nation. I hope to-day we shall make some Settlement, and nothing can be of greater use than unity, else all will crumble to nothing. The eyes of the whole Kingdom are upon us; and since the Clerk is possessed of the Lords Reasons for not concurring in your Vote, I would read them, &c. I hope we shall come to a happy conclusion.
On the first Amendment, "deserted" for "abdicated," &c.
Mr Ettrick.] Though King James has "deserted" the Government, and the Prince of Orange has taken the Administration of the Government for the present, yet it can have no other inference, than that the exercise of the Government is ceased; and no act of King James can destroy the succession of his Heirs. If the Throne be vacant, the Allegiance is due of right where the succession belongs.
Sir Thomas Clarges.] I agree with the Lords Amendment. I take the Crown to be hereditary, and not elective, as appears in all our Law-books. By this Vacancy, I understand only that the King has abdicated from himself, and divested himself of the right of Government, and that the Government comes to the next Protestant Heir in succession; (I explain myself) to the Princess of Orange—I will speak freely. If the Throne be vacant, strictly taken, the Kingdom is elective, and we depart from the succession. The King has not only divested himself of the Government, by breaking the original Contract, and by his excesses in the Government, but has taken away the child, if it be his, into another Kingdom: And if the Crown be descended to him, there may be great advantages to the French King, who may act for him in Scotland. We are not debating for ourselves, but for all the King's dominions. I am glad the Lords have explained our Vote, and I would proceed with all speed to a settlement of the Kingdom. We are not now making successors, though a Parliament has power to do it; which we have not, being but a Convention.
Sir Joseph Tredenham.] "That the Throne is vacated," is no longer the Question, but "whether a succession of the Crown, or that the Crown is elective," was the Question offered yesterday; and any body then might have offered objections to your Reasons: But the natural Question now is, whether agree, or not agree with the Lords? The Crown was always successive, never elective. There have been several Demises of the Crown, as in Edw. II. and Rich. II. yet always the next Heir to the Crown has succeeded. —I will not say any thing of the miscarriages of the King, but we have a proper cure for them. I thank God, we have a Protestant Heir to the Crown. Of the Prince of Wales I shall say the less, because much has been said by Clarges; and 'tis the opinion of the House, that there is a legal incapacity, as well as a natural. In the Princess of Orange there is no incapacity; she is a Protestant; and as for her being a woman, Queen Elizabeth was so, and reigned gloriously. I would be grateful to the Prince of Orange, for the great things he has done for the Nation; but is this the way, to erect a Throne to the ruin of his Princess? To abdicate his Title, and make a perpetual difference betwixt them, will be no compliment to him. His matrimonial right was the argument that brought him over; and therefore, whilst we compliment him, I would not put a disreputation upon what he has so generously done, to put the Crown singly upon this noble Prince's head! No man can be grateful that is not just. This Prince is too generous not to be just. Scotland must have a share of this Election; and as long as we stand firm to the Succession, there is no reason to doubt but Scotland will close with us. But we have much reason to doubt their concurrence, when our own Constitutions do not justify what we do. If the head be dead, what is the body? If not dead, a monster. "Making a breach upon the fundamental Laws, by being seduced by the Jesuits, &c." If the Government be subverted, the whole mob may have some more right than we—When there is such a fermentation in the Nation, our proceedings should not countenance such a disorderly proceeding. Alphonso, King of Portugal, was deposed for Lunacy, &c. and his brother succeeded him in the Throne. But when you eradicate the Succession, all the Crowns in Christendom will concern themselves. It will make such an earthquake, that all the Protestants in the World will fare the worse for it. The Prince will lose all the glory his generous conduct has obtained. There is no other way to have peace and quiet, but by recognizing the Princess, who has no legal nor natural impediment.
Serjeant Maynard.] This Gentleman has spoken very well, but not to the point in question. This may be well prepared, against that comes to be the Question of filling the Throne, being vacant. Here is a great mistake on all sides—Who can think the Crown is elective, when eight or nine hundred years ago, the Crown was seized to the King, his Heirs, and Successors?—"That the King has abdicated the Crown" is passed, (the Lords have agreed it.) The Question is now, "Whether the Throne be vacant?" And the Question, Whether vacant to King James cannot be, Whether vacant to perpetuity. "Vacant" is as if he now was dead, but not perpetually vacant. Will you have the former King come again? Then he must do as he did—Therefore there was a necessity to supply the Government for the time. When you come to speak to the point, how can the Crown descend when the father is living? The Lords are clearly mistaken in our Vote: We mean not that the Monarchy is elective—But thus far we must fill up the Throne, or have no Government. If the Throne be not fallen vacant, in the present tense, utterly now, how will you fill it up? But how must be the next Question. 'Tis not filled, therefore vacant.
Sir Robert Sawyer.] Though the Throne be vacant, yet that the succession is not void, the Lords have given such forcible Reasons, that we must fight against Law and Conscience, if they be laid aside. The Lords think the word "abdicate" to be otherwise understood. Consider the legal effect of the Throne vacant. Upon the surrender of the Crown by Richard II, Henry IV was declared King—(and reads the words of the Record) The Throne was vacant by his surrender, and Henry IV claimed the Crown as his inheritance, and the Lords and Commons asserted his Title, and consented that he should reign. Suppose the King had entered into a Monastery, this is a civil death; when he renounces the civil administration of the Government, there is a civil death, as well as a natural; though living, yet in effect dead: The vacant possession filled with a successor, who claimed not by conquest but descent. You must explain yourselves in your Vote, whether the Throne be vacant as to a person, or the whole succession gone; and that lets you into an Election. This the Lords think. We fight but with words. If we mean no more by "the Throne being vacant," than that the last King has renounced the Government; if we mean that the Succession is good, the Lords Reasons cannot be opposed. No man can question, that the Kingdom of England is successive. Soon after the Conquest, the Kingdom was unsteady: There was a potent faction in the Church at that time; but, in all times in History, you found the Succession did prevail. In Henry VII's time, and Henry VIII's, the Right of the Crown was declared hereditary. Can the King alter that Right? Can either, or both the Houses, without the King, alter the fundamental Constitution of the Kingdom? It will be a great injury to the successor to give away the Crown from her; you'll sully all the Prince of Orange's glory. He came not hither to break through all your Constitutions; he deserves all you can possibly do for him, but to give him what we cannot do—! A Title he must defend as well as he can: And for all he has done to give him nothing! If by "the Throne being vacant" you mean that the Succession is out of doors, I desire you would express your meaning plainly.
Serjeant Maynard.] In Queen Elizabeth's time, an Act passed, "That it was a crime to maintain, that the Parliament could not dispose of the Crown," in the Queen of Scots case. In Edward II's last Parliament, (when the Spencers governed) the Lords sent to him to know "whether he would renounce the Crown? If he would not, he shall take it to whom the lot shall be." (The rest the Compiler could not hear.)
Col. Birch.] Some are not of education answerable to speak amongst these learned Gentlemen. I must confess I am one of those; yet I shall speak according to the reason I have. I am glad Gentlemen have spoken so plainly of the succession of this noble Lady, and to have it there settled, though the consequence is endless; it first puts us by all our hopes, what God has put into our hands will be taken away all at once. Say Gentlemen, "This is a sacred Succession, and must not be altered." I heard a Question the other day, whether the Government was not jure divino, and that was over-ruled; and if you have not more room than you had, nothing can over-rule you. But I hold, that, jure divino, the Lords and Commons cannot do an unjust thing. We have taken from one brother to give to another, and it has not been questioned to this hour. The Lords have not agreed the Throne to be vacant; and, if so, where is the Government? Had you spoken plain English t'other day, that the disposal of the Crown was in the Lords and Commons, there had been no room for this Debate; and you, by that authority, had instances in all times (and 'tis Præmunire to hold the contrary) and then you might have talked of the Succession. I will never move you to an unjust or irrational thing: You are bringing upon you that which is fled; and there's a Prince of Wales talked of; and if he be not so, you will never want a Prince of Wales. God has brought us from Popery and Tyranny; and, at this rate, nothing will content us but to go into it again. You have Heirs in Spain, in Savoy, and all up and down, and where more I know not; and poor England, for want of speaking one plain word, will be ruined, you and your posterity. Say but where your power is, and the Debate is at an end. There may be claims to the Crown, but their claims will signify nothing; for the Lords and Commons have other thoughts. "O! but you take away Heirs and Successors!" I never knew that a man yet living had Heirs. I have none, and am living. If this be thus, what can you say? You stop all claims to the Crown; for 'tis vacant, and fallen to the Lords and Commons, and no Title can fall to any body. By the Statute of Queen Elizabeth, and Acts of Parliament in all times, it lies here. And take it into your hands, where God, in his Providence, has given it you. I will conclude, that the power of disposing of the Crown is in the Lords and Commons; and by virtue of that power fill the Vacancy, And I would not agree with the Lords in leaving out "The Throne is vacant."
Mr Finch.] The words of your Vote must be, "agree or not agree with the Lords, that the Throne is vacant." The precedent words, "That King James has abdicated, &c." whether you will agree to the Lords Conclusion, adhere or not. Whatever is said, whether the Kingdom be elective or not, if you adhere to this Conclusion, you conclude that the Government is an elective Monarchy. One of our Reasons to induce the Lords to concur to our Vote is, that they have already affirmed as much; and whether the Throne be "abdicated" or "deserted," in both these cases the Throne is vacant. By "abdicated," we intend no other construction but that the Throne is vacant. By breaking the original Contract with the People, he has made the Throne void as to himself. Either you mean the same thing, or something more; and I would have it spoken in plain English. And though no one reason has been offered against the Monarchy being hereditary, yet it infers more power devolved on the Lords and Commons. What is this but to make the Monarchy elective? It has been said, "who ought to have this Allegiance paid, will in due time be considered;" but 'tis most proper to consider it, when the consequences do appear. 'Tis a doubt that your Vote may mean that the Throne is vacant for ever; therefore clear that Question, whether the Monarchy be hereditary or elective: I fear our Reasons have gone somewhat that way. Whoever is against agreeing with the Lords, concludes that the Throne is vacant, not only to King James the Second, but to every body else. I will not trouble you with arguments, whether the Crown is elective or hereditary; for 'tis beyond all question, our books are so full of it, acknowleging the succession of the right heirs. The Statute of Ed. III. declares, "the King's children ought to inherit the Crown, though born ultra mare," and so is a Law for ever. I hear it said "Nemo est hæres viventis." There are civil deaths as well as natural. If the Throne be vacant as to King James II, then he is civilly dead, or else 'tis in the power of any King of England, by his Abdication, to destroy the Succession. For the King, Lords, and Commons to limit the Succession! 'I is an act of Supreme Power unbounded, and I cannot say what they cannot do. But for us to limit the Succession, is plainly to say we may chuse a King: And is this called that prudence we ought to act with, to destroy that Constitution of the Government, which we came here to maintain?
Sir Richard Temple.] I have great disadvantage to speak after so learned a Gentleman; but I observe he has used more learning to draw you from the Question than to bring you to it. But we are determining the consequences of the Lords Amendments, before we agree that the Throne is vacant. You are told, "you cannot declare the Throne vacant, without hazard to the Monarchy, which has been transferred from one branch to another." No man goes about to change the Monarchy; but there have not been seven Kings but where the right line has been removed; so that there is no dispute nor ground whether the Monarchy be hereditary. Though the Crown should be vacant to the King and all his heirs, yet 'tis no more than transferring the Crown from one family to another. The Kingdom of France had three races, which succeeded in the Monarchy. These Gentlemen would anticipate the day to you of naming a Successor. The learned Gentleman that spoke last would have no farther Vacancy in the Throne but to King James II. If by your Reasons to the Lords for retaining the word "vacant" in your Vote, the Throne be full to the immediate Heirs, there is an end of your Debate, and your being here. Is it full? Then the Lords would have seen it, and not put the Government into other hands. If Gentlemen aim at what they say, for a Protestant line, how will you come at it? And you have a pretended Brat beyond sea, whom you cannot set aside; and the King may have more children legitimate, and how will you set them aside? But some say, "Set all but Protestants aside"—But if the Parliament have no authority to make it otherwise, you have no way to prevent falling under a Popish successor. If the Throne be full, we have no authority to sit here; all we have done is to arraign the Lords and ourselves. Therefore I would not agree with the Lords, but declare the Vacancy.
Sir Robert Howard.] If we neglect this opportunity, now put into our hands, of settling the Nation, 'tis probable we may be no more a people; and 'tis pretty nigh, whether these learned Gentlemen, that speak against Elections of our Monarchs, have not been the most violent Electors of all: They throw upon us a difficulty how we come by that Constitution. Is it not elective, to take one, and leave another? Election limited with such narrow notions is a poor support. As for those arguments, I hope we shall preserve the Monarchy by filling the Vacancy, and not say, who must succeed—Are we not thrown upon this?—Can a child make Abdication, or a child in the belly of the mother?—They would chuse like the Day of Judgment, one shall be taken, and the other left—The Lords are bold with the succession of a Papist, that none shall sncceed to the Crown. Under the nice notion of the Princess, if there should be occasion for defence of the Nation, upon a silent steerage you are drawn upon rocks—If you use the hand that delivered you thus, you invite him to be gone; and by his compliment to us, he may lose all here, and hazard the Protestant interest abroad. These arguments are good in quiet times; but where a divided inheritance is the case—Instance in one thing from Kings descents—All things are not so clear as we could wish; but let us preserve ourselves, which must be our supreme Law. If we part with "the Crown not being vacant," you part with all; and then you may hope hereafter, that your Constitutions will not be violated.
Mr Boscawen.] No man says, 'tis my right to the Succession. The Commons only say, "the Throne is vacant." We do not impose any sense upon the Lords. We say not 'tis vacant to the Prince of Wales, or others, but vacant. The arguments that are used, 'tis said, are dangerous as to Scotland; but this objection was made in the Exclusion-Bill. Upon the whole, you are masters of your Vote, and no man does say the Crown is elective; but, in an intricate case, the Parliament must say, where is the most Right; and the Parliament that is to nominate the right Heir is tantamount to Election. Consider what is least exceptionable; we impose not upon the Lords; you say, 'tis vacant, without distinguishing, and nothing less than to say the Kingdom is elective. Public security ought to be considered, and in that we all agree.
Mr Pollexfen.] If this discourse had been made sooner, perhaps we had been much forwarder. If the Question had been, whether you will stick to your former Vote, the time had been better spent than in Speeches. When you were then upon the Debate, if any man had said the Crown was full, you would have had both Law, and Administration of Justice; but 'tis now reserved till the Throne be full. And then we are all subverted, and return to King James, and so to Popery, if we fill not the Throne. To talk of Regencies, is to say, then sure there is no Vacancy. Letters, Papers, and the Pulpit, beats a pace confusion of your principal end, which the three Kingdoms, the Protestant part of the World, are interested in. But lest what has been said should make impression, I shall answer, first, 'tis pretended that this Vote does make ours an elective Kingdom. All men love their Monarchy, and if you make men believe that it is elective, you will catch a great many. No man ever dreamed of this; but if the case happen by extraordinary disorder in the Government, that the King is driven out of the Nation, say what you will that the King is driven out, yet to suppose a descent, by what Law is there any that this does?—This makes Kings fasten themselves, and will soon make way for James to come in. If there be any such Law, what an unreasonable thing it is! If the King, by mis-government, is driven out of his Kingdom, some body shall succeed; put me such a case—'Twill be a discouragement to any to defend his country from Slavery and Tyranny, if this be the consequence. If he takes arms to deliver his country, and he prevail, he is hanged—All our Lives, Fortunes, and Religion, are at the King's pleasure, as his Council have told him; and his subjects drive him out. I have as much inclination to the Princess of Orange as any body, but you do not really mind the good of your Country, and the Protestant Religion. If she be now proclaimed Queen, can any thing be more desirable than that her husband be joined with her in the Government?—Now, if you settle the Crown on her, and we are to secure a Title we cannot make, if any transient issue should arise, she is gone, and he will be in War with her Father to defend her Title— And does any think the Prince of Orange will come in to be a subject to his own wife in England? This is not possible, nor ought to be in nature. If you stay till the Princess please to give the Government to the Prince, you gratify the Prince, by taking away his wife from him, and giving her the Kingdom. If we are for unity and the Protestant Interest, I hope this marriage was made in heaven, and I hope good effects of it. That marriage, thus made, shall never be separated by my consent.
Mr Wharton.] I speak for myself; let every one do so too: I own driving King James out, and I would do it again. Let every one make his best of it.
Mr Williams.] I take this Question to be for the unity of the Lords and Commons in this great conjuncture. Let the power be where it will, I speak for all England. All agree, that the late King James II. has departed from the Throne, and that his reign over us ceases. If the Lords are of opinion that the reign of King James is ceased, we are all agreed. The Lords say, he shall never return again; they are not for his returning again to his Government: I am not for the Monarchy of a Child; I am not for one to subvert the Laws of the Government. If this may be done by the Lords and the Commons, I would agree.
The Question being put, That this House do agree with the Lords in the second Amendment, it passed in the Negative, 282 to 151.
[A free Conference was desired.]