The Convention meets. ; Earl of Wiltshire proposes Mr. Powle to be Speaker. ; Who is plac'd in the Chair.
January the 22d, the Commons being conven'd, agreeable to the Letters issued by the Prince of Orange, at the
Desire of the Lords, Commons, and Citizens of London,
the Earl of Wiltshire put the House in mind that the first
Business to be done was to chuse a Speaker, and that there
was an Honourable Person in his Eye, whom he conceiv'd
very well experienc'd in Methods of Parliament, and every
way qualify'd for that Place. He then proposed the Right
Honourable Henry Powle Esq; who being approv'd by a
general Call, to the Chair! was conducted to and placed in
the same by the Earl of Wiltshire, and Sir Vere Fane Knight
of the Bath; where being seated, he spake to the following
'Gentlemen, I know very well that Excuses from this
Place, are look'd upon only as Formalities: But I am so
sensible of my own Defects, and so desirous that this House
may not receive any Prejudice by them, that I most earnestly intreat you, that, among so many honourable and experienced Members as are here met this Day, you would
make choice of one that is better able to perform the Duty
of this Place.'
But his Excuse not being allow'd, the Mace was call'd
for and placed upon the Table; after which, the House proceeded to the Choice of their Officers. And then Mr. Jephson, Secretary to the Prince of Orange, presented to the
Speaker a Letter from his Highness, which the Speaker read
to the House as follows:
The Prince of Orange's Letter to both Houses.
'My Lords and Gentlemen, I have endeavour'd to the
utmost of my Power to perform what was desired from
Me in order to the public Peace and Safety; and I do
not know that any Thing hath been omitted which might
tend to the Preservation of them, since the Administration of Affairs was put into my hands. It now lieth upon
you to lay the Foundation of a firm Security for your
Religion, your Laws and your Liberties. I do not doubt,
but that by such a full and free Representative of the
Nation, as is now met, the Ends of my Declaration will
be attained: And since it hath pleas'd God hitherto to
bless my good Intentions with so great Success, I trust in
him, that he will complete his own Work, by sending a
Spirit of Peace and Union to influence your Counsels, that
no Interruption may be given to a happy and lasting
'The dangerous Condition of the Protestants in Ireland
requiring a large and speedy Succour, and the present
State of Things abroad, oblige me to tell you, that next
to the Danger of unreasonable Divisions among ourselves,
nothing can be so fatal as too great a Delay in your Consultations. The States, by whom I have been enabled to
rescue this Nation, may suddenly feel the ill Effects of it,
both by being too long depriv'd of the Service of their
Troops, which are now here, and of your early Assistance
against a powerful Enemy, who hath declared a War
against them. And as England is by Treaty already engag'd to help them upon such Exigencies, so I am confident, that their chearful Concurrence to preserve this
Kingdom with so much Hazard to themselves, will meet
with all the Returns of Friendship and Assistance, which
may be expected from you as Protestants and Englishmen,
whenever their Condition will require it. Given at St.
James's the 22d Day of January, 1688-9.'
The Speaker's Speech thereupon.
After the reading of this Letter, the Speaker represented
to that Assembly, 'The dangerous State of the Nation,
and the fatal Consequences of Anarchy; the deplorable Condition of the Protestants in Ireland, and how much England might be affected by the Loss of that Kingdom; and
more particularly the Growth of the exorbitant Power of
France, and the vast Designs of that turbulent and aspiring
Monarch, not only the Persecutor of the Protestant Religion,
but likewise the sworn Enemy of England; exciting the
Assembly to put the Nation into a Posture, not only to secure themselves against all his Attempts, but also to make
such a powerful Diversion in the very Bowels of his Dominions, as that they might recover their first Conquest of
France, or re-unite the Provinces of Normandy and Aquitain to the Imperial Crown of England, which, by an
indisputable Right, appertain to it.' This Speech was receiv'd with universal Applause, and was seconded by several
Members; who, at the same Time, under a deep Sense of
their past Dangers, and present Deliverance, and excited by
a Message from the Lords, mov'd that a Day of public
Thanksgiving to the Almighty should be appointed throughout the Kingdom; which was accordingly done, as will be
farther remember'd. Then to his Highness they voted the
following Address, to which the Lords gave their unanimous Concurrence, and which was presented to him that
very Day in a full Body.'
The Address of both Houses to the Prince.
'We the Lords Spiritual and Temporal, and Commons
assembled at Westminster, being highly sensible of the
great Deliverance of this Kingdom, from Popery and Arbitrary Power; and that our Preservation is, next under God,
owing to your Highness, do return our most humble Thanks
and Acknowledgment to your Highness, as the glorious Instrument of so great a Blessing. We do farther acknowledge
the great Care your Highness has been pleas'd to take, in
the Administration of the public Affairs of the Kingdom, to
this Time: And we do most humbly beseech your Highness,
that you will take upon you the Administration of public
Affairs, both Civil and Military, and the Disposal of the
public Revenue, for the Preservation of our Religion,
Rights, Laws, Liberties, and Properties, and of the Peace
of the Nation. And that your Highness will take into your
particular Care the present State of Ireland, and endeavour,
by the most speedy and effectual Means, to prevent the
Dangers that threaten that Kingdom. All which we make
our Request to your Highness to undertake and execute, till
farther Application shall be made by Us, which shall be expedited with all convenient Speed: And we shall also use
our utmost Endeavours to give Dispatch to the Matters recommended to us by your Highness's Letter.'
The Prince's Answer was as follows:
'My Lords and Gentlemen, I am glad, that what I have
done has pleas'd you; and since you desire me to continue the Administration of Affairs, I am willing to accept
it. I must recommend to you the Consideration of Affairs
abroad, which makes it fit for you to expedite your Business; not only for making a Settlement at home, upon a
good Foundation, but for the Safety of all Europe.'
The same Day, a Motion was made for printing the Votes;
which, after some Debate, pass'd in the Negative.
The King's Letter to the Lords and Commons.
About this time, the King, now at St. Germains, directed
the following Letter to both Houses; in which, with great
Concern, he told them, 'That he thought himself oblig'd
in Conscience to do all he cou'd to open his People's Eyes,
that they might see the true Interest of the Nation in this
important Conjuncture: That finding he cou'd no longer
stay with Safety, nor act with Freedom, he had left the
Reasons of his withdrawing from Rochester, under his
own Hand: That understanding that Letter [here repeated at length] was not taken to be his, but was maliciously suppress'd by the Prince of Orange, he wrote to several of his Privy-Council, and directed Copies thereof to
divers of them, the Peers of the Realm, believing none
durst intercept or open any of his Letters: That of all
these he had no Account, nor did he wonder that all Arts
were used to hinder them from knowing his Sentiments:
That he was resolv'd nothing shou'd be omitted on his
Part, that could contribute towards the Redress of all former Errors, or present Disorders, or add to the securing
of the Protestant Religion, or the Property of the Subject;
intending to refer the whole to a Parliament legally
call'd, freely elected, and held without constraint: And
that none might despair of his Mercy, he declared on the
Word of a King, that his Pardon shou'd be extended
even to those that betray'd him, (some few excepted) resolving in that Parliament, by an Act of Oblivion, to cover all Faults.'
This Letter was sent by the Lord Preston to the House of
Commons, and directed to their Speaker: But the House
understanding that it came from King James, they did not
think fit to take any notice of it, and so rejected it unopened.
The State of the Nation debated.
On the 28th, The House being full, they proceeded to
the great Consideration of the State and Condition of the
Nation; whereupon they resolv'd themselves into a Committee
of the whole House, and Mr. Hampden was put into the
Chair. The first that stood up was Mr. Dolben, Son to the
late Archbishop of York, who made a long Speech, to
prove 'That King James's deserting the Kingdom, and
his not appointing any Person to administer the Government in his Absence, amounted in Reason and Judgment
of Law to a Demise of that Prince:' And he concluded
with a Motion to the same Effect; which was seconded by
Sir Richard Temple, and supported by Sir Robert Sawyer.
After whom, first Sir Robert Howard asserted the Vacancy
of the Throne, and the Breach of the Original Contract
by a continu'd Series of illegal Acts, (many of which he
enlarg'd upon) throughout the whole Course of King
James's Reign. His Allegations were maintain'd by Mr.
Garraway, Sir Thomas Lee; Mr. Sacheverell, Mr. Pollexfen, Sir George Treby, and Mr. Sommers. Several of them
objected against Mr. Dolben's Motion of a Demise, as
not taking in King James's Male-administration; and because a Demise infers a Descent of the Crown to the next
Hereditary Successor; whereas in this Case the Throne
was not descended, but (as they insisted) Vacant.' Mr.
Finch contradicted the Doctrine of the Vacancy:
'He extoll'd the Courage, Conduct and Magnanimity
of the Prince of Orange, who was to be compared to
those ancient Heroes that were contented with the Glory
of freeing Nations, and destroying Tyrants, without any
particular Design upon their Crowns.' He urg'd farther;
'That the most advisable Course would be, to come to
such a Resolution as should meet with a most general Concurrence; and that, in his Opinion, the Establishing a Regency during the Life of King James, would give much
greater Satisfaction to the Kingdom; than the Declaring
the Throne to be Vacant.' Sir Christopher Musgrave insisted, 'That, to vote the Throne, is Vacant, would be
actually to depose the King; and he desired to know from
the Gentlemen of the long Robe, whether that could be
legally done.' And Sir Edward Seymour spoke with great
Warmth to the same Effect.
Lord Fanshaw. ; Their grand Vote of the Vacancy of the Throne.
Towards the Close of this grand Debate, the Lord Fanshaw mov'd 'that it might be adjourn'd to another Day, in
regard of its very great Importance, and of the Mischief that
might be occasion'd by taking too hasty Steps in a Matter
of so much Weight.' This not being seconded, the Committee, without dividing, came to the following complicated
Resolution, which, when ratify'd by both Houses, was perhaps one of the most memorable in all the English Records: 'Resolved, That King. James the Second, having endeayour'd to subvert the Constitution of the Kingdom, by
breaking the Original Contract between King and People;
and by the Advice of Jesuits, and other wicked Persons,
having violated the Fundamental Laws; and withdrawn
himself out of the Kingdom, hath Abdicated the Government, and that the Throne is thereby become Vacant.'
This Resolution was the next day reported to the House,
and being agreed to, it was sent up to the Lords for their
Concurrence. And having thus got over their grand Point,
they found others more easy; and the next Day they 'Resolv'd, That it hath been found by Experience, to be inconsistent with this Protestant Kingdom to be govern'd by
a Popish Prince;' which Resolution was likewise sent up to
the Lords for their Concurrence. At the same time they
presented an Address to the Prince of Orange, For the immediate Stopping of all Ships that were going to France.
Two days after, Feb. 2. they voted, 'That the Thanks
of the House be given to the Clergy of the Church of England, who had preach'd and written against Popery, and
had refus'd to read in the Churches the King's Declaration for Toleration, in opposition to the pretended Dispensing Power claim'd in the late Reign of King James
the Second, and had oppos'd the illegal Ecclesiastical Commission.' They farther Voted, on the same day, 'That the
Thanks of the House be given to the Officers, Soldiers and
Mariners of the Army and Fleet, for having testify'd their
ready Adherence to the Protestant Religion, and being instrumental in delivering this Kingdom from Popery and
Slavery; and to all such who had appear'd in Arms to that
Purpose.' These two last Votes pass'd nemine contradicente,
and without the least Opposition.
A Message from the Lords to the Commons, by Sir Miles
Cook and Mr. Methuin, 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; and 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;
Debate on the Word abdicate begun.
L. 8. Instead of the Word abdicated, read deserted.
L. 9. Leave out these Words, And that the Throne is thereby vacant.
Feb. 4. 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 premisses, to which your Lordships have
agreed; for your Lordships have agreed, That King James
the second hath endeavoured to subvert the Constitution 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 withdrawing, 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.
First, 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.
Secondly, 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) have already admitted it, by your addressing to the Prince of Orange
the 25th of December last, to take upon him the Administration of public 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
public Affairs, and the Kingdom of Ireland) since you met,
and by appointing Days of public Thanksgivings to be observed throughout the whole Kingdom, all which the Commons
conceive do imply that it was your Lordships Opinion, that
the Throne was vacant, and to signify so much to the People
of this Kingdom.
Thirdly, 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 Protection,
and to whom, for that Cause, they owe the Allegiance of
Subjects, the Commons conceive, the Throne is vacant.
A Conference with the Lords desir'd and granted.
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
Resolved, That the Committee, to whom it was referred
to prepare Heads of Reasons at a Conference with the Lords,
be the Managers of the said Conference.
Mr. Hampden 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.
Mr. Hampden's Report thereon.
Feb. 5. Mr. Hampden 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 Conference, and
said, 'That the Lords did insist upon the first Amendment
of the Vote of the House of Commons of the 28th of January last, instead of the Word abdicated to have the Word
'First, 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.
'Secondly, Because in the most common acceptation of
the civil Law, Abdication is a voluntary express Act of
Renunclation; which is not in this Case, and doth not follow
from the Premisses, That King James the Second, by having withdrawn 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
'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, to 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 bar, or destroy, the Right of his Heirs to the Crown; and therefore
in answer to the third Reason alledged 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.
A free Conference resolv'd.
Resolved, That a free Conference be desired with the Lords
upon the subject matter of the last Conference.
Ordered, That it be referred unto
Sir Robert Howard, Mr. Polexfen, Mr. Paul Foley, Mr.
Serjeant Maynard, Mr. Serjeant Holt, Lord Falkland, Sir
George Treby, Mr. Sommers, Mr. Garraway, Mr. Boscawen,
Sir Thomas Littleton, Mr. Palmer, Mr. Hampden; Sir Henry
Capel, Sir Thomas Lee, Mr. Sacheverel, Major Wildeman,
Colonel Birch, Mr. Ayres, Sir Richard Temple, Sir Henry
Goodrick, Mr. Waller, Sir John Guyse,
To manage the Conference.
Ordered, That Mr. Dolben 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 the free Conference in the Painted
Chamber.' Which was thus open'd by Mr. Hampden.
'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 sufficient 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 as speedy a 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 said after all our late Convulsions,
and discourage our Enemies from attempting to undermine
'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 applied, that in so weighty a Matter as that now in Debate, 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 applied to all
the Recitals in the Beginning of the Commons Vote, to
which they meant it should be applied. 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 this 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 Consequence 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 public Royal Act, which
might notify to the People in whom the Kingly Government resided; neither of which hath been done; and yet
your Lordships will not allow the Throne to be vacant.
'My Lords, I am unwilling to detain your Lordships
longer, from what may be better said for your Lordships
Satisfaction in these Matters, by those whose Province it is:
I am to acquaint your Lordships, that the Commons do agree, it is an Affair of very great Importance. Here are
other Gentlemen that are appointed to manage this Conference, and will give their Assistance to bring it, we hope,
to a happy Conclusion, in the Agreement of both Houses, in
this so very considerable a point.'
'My Lords, what is appointed me to speak to, is your
Lordships first Amendment, by which the Word abdicated,
in the Commons Vote, is changed into the Word deserted;
and I am to acquaint your Lordships what some of the
grounds are that induced the Commons to insist upon the
Word abdicated, and not to agree to your Lordships Amendment.
'1st, The first Reason your Lordships are pleased to deliver, as for your changing the Word is, that the Word
abdicated your Lordships do not find, is a Word known
to the common Law of England; and therefore ought not
to be used: And the next is, that the common Application
of the Word amounts to a voluntary express Act of Renunciation, which (your Lordships say) is not in this case, nor
what will follow from the Premisses.
'My Lords, as to the first of these Reasons, if it be an
Objection, that the Word abdicated hath not a known
sense in the common Law of England, there is the same
Objection against the Word deserted; for there can be no
Authority, or Book of Law produced, wherein any determined Sense is given to the Word deserted: So that your
Lordships first Reason hath the same force against your
own Amendment, as it hath against the Term used by the
'The Words are both Latin Words, and used in the
best Authors, and both of a known Signification; their
Meaning is very well understood, tho' it be true, their Meaning be not the same: The Word abdicate doth naturally
and properly signify entirely to renounce, throw off, disown,
relinquish any Thing or Person, so as to have no farther
to do with it; and that whether it be done by express Words
or in Writing, (which is the sense your Lordships put upon
it, and which is properly called Resignation or Cession) or,
by doing such Acts as are inconsistent with the holding or
retaining of the thing; which the Commons take to be the
present case, and therefore made choice of the Word abdicate, as that which they thought did, above all others,
most properly express that Meaning: And in this latter
sense it is taken by others, and that it is the true Signification of the Word, I shall shew your Lordships out of the
'The first I shall mention is Grotius, de Jure Belli & Pacis, L. 2. c. 4. §. 4. Venit enim hoc non ex jure civili, sed ex
jure neturali, quo quisque suum potest abdicare, & ex naturali
prasumptione que voluisses, qui creditur, quod sufficienter significavit. And then he goes on, recusari hæreditas non tentum
verbis, sed etiam re patest, & quovis indicio voluntatis.
'Another Instance, which I shall mention, to shew that
for the abdicating a thing, it is sufficient to do an Act which
is inconsistent with the retaining it, tho' there be nothing of
an express Renunciation, is out of Calvin's Lexicon Juridicum,
where he says, generum abdicat, qui sponsam repudiat: He
that divorceth his Wife, abdicates his Son-in-Law. Here is
an Abdication without express Words; but is by doing such
an Act as doth sufficiently signify his purpose.
'The next Author, that I shall quote, is Brissonius de verborum significatione, who hath this Passage, Homo liber qui seipsum vendit, abdicat se statu suo; that is, He who sells himself, hath thereby done such an Act as cannot consist with
his former Estate of Freedom: and is therefore properly said,
se abdicasse statu suo.
'Budæus in his Commentaries ad legem secundam de origine juris, expounds the Words in the same sense, abdicare
se magistratu, est idem quod abire penitus magistratu: He that
goes out of his Office of Magistracy, let it be in what manner he will, has abdicated the Magistracy.
'And Grotius in his Book de jure belli & pacis, L. 1.
c. 4. §. 9. seems to expound the Word abdicare, by manifeste
babere pro derelicto: that is, That he who hath abdicated any
thing, hath so far relinquished it, that he hath no right of
Return to it. And that is the Sense the Commons put upon
the Word. It is an entire Alienation of the thing; and so
stands in opposition to dicare: Dicat qui proprium aliquod facit;
abdicat qui alienat, so says Pralejus in his Lexicon Juris. It
is therefore insisted upon as the proper Word by the Commons.
'But the Word deserted (which is the Word used in the
Amendment made by your Lordships) hath not only a very
doubtful Signification; but in the common Acceptance both
of the civil and canon Law, doth signify only a bare
withdrawing, a temporary quitting of a thing, and Neglect
only, which leaveth the Party at liberty of returning to it
again. Desertum pro neglecto, says Spigelius in his Lexicon:
But the Difference between deserere and derelinquere, is expresly laid down by Bartolus, upon the 8th Law of the 58th
Title of the 11th Book of the Code; and his Words are
these, nota diligenter, ex hac lege, quod aliud est agrum deserere,
aliud derelinquere; qui enim derelinquet, ipsum ex pænitentia non
revocat: sed qui deseret, intra biennium potest.
'Whereby it appears, my Lords, that that is called Desertion, which is temporary and relievable: That is called
Dereliction, where there is no power or right to return.
'So in the best Latin Authors, and in the civil Law, Deserere exercitum is used to signify Soldiers leaving their Colours; Cod. Lib. 12. §. 1.
'And in the Canon Law to desert a Benefice, signifies no
more than to be non-resident; so is Calvin's Lexicon, Verb.
Desert. secund. Canones.
'In both cases, the Party hath, not only a right of returning, but is bound to return again: Which, my Lords, as the
Commons do not take to be the present case, so they cannot
think that your Lordships do: because it is expresly said,
in one of your Reasons given in defence of the last Amendment, That your Lordships have been, and are willing to
secure the Nation against the Return of King James; which
your Lordships would not in Justice do, if you did look
upon it to be no more than a negligent withdrawing, which
leaveth a liberty to the Party to return.
'For which Reasons, my Lords, the Commons cannot
agree to the first Amendment, to insert the Word deserted,
instead of abdicated; because it doth not, in any sort, come
up to their sense 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 withdrawing himself out of the Kingdom,
hath thereby renounced to be a King according to the
Constitution, by avowing to govern by a despotic 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 his Coronation, such a King to
whom the Allegiance of an English Subject is due; and
hath set up another 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
Mr. Serj. Holt.
'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 sufficient 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 ancient as
the common Law, (though it may be too) for that will be
no Objection against the using 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 ancient 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 ancient 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 Minshew, who hath the Word
abdicare 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 using a Word that is so ancient in itself, 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 Renunciation. 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 Renunciation: 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 Renunciation 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 Renunciation
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 Abdication and formal Renunciation
of that thing.'
Earl of Nottingham.
'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, and 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
much better be able to settle the difference about the two
Mr. Serjeant Maynard.
'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 Subversion 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
'It is not that, the Commons do say, the Crown of England is always and perpetually elective; but it is more necessary that there be a Supply where 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 Ely.
'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 tacitly by some Overt-Acts, that Gentleman, (I think I
may name him without Offence) Mr. Somers, 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 Maynard.
'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 Renunciation
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 Renunciation. 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 he that is with me turns upon me and breaks
my Head, he hath, undoubtedly, abdicated my Assistance
and revoked the said Agreement.'
Lord Bishop of Ely.
'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 supplied; 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
'It is Grotius's 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, rendering the Party unfit
for human Society, as Leprosy, or the like; so I take it,
there is a moral Incapacity: and that I conceive to be a full
irremoveable persuasion 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 impracticable, 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
'Abdication, no doubt, is by adoption an English Word;
and well known to English Men conversant in Books: Nor
is it objected, that it is not a Word as ancient, and it may
be more ancient 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 an actual Exercise
of Right, as abdicare a Triumphe: 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
say 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 apprehend, 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 write 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 sense: 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 Sense, 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 Patents and other public Instruments ran in the
elder Brother's Name.
'This is, 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
'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 successive 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 fill 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 these 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 a 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 VIIIth,
there have been seven 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 jointly, 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 Precedent 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, persuaded, 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 Clarendon
'As I remember, Mr. Somers, who spoke to the Signification of the Word abdicated, did quote Grotius, Calvin'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 Renunciation, or Resignation; or some voluntary Act done of the Party's own; and such whereby
they have shewn they did divest 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 learned and ingenious Gentleman Mr.
Somers, that it may arise from the Facts, that in the Vote
it has been declared he hath done it, by 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 LawBooks, or public 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. Somers 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 denied; 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 denied 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
farther 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 Renunciation, 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 Precedent: And why may not others take the same
Liberty we do? 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 Heir, as
Successor, as well before Coronation as after.
'I was in great hopes that you would have offered something in answer to one of my Lord's Reasons, against that
part of the Vote 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, whither the
Crown is to go, to the Person that hath the next Right of
Succession; and consequently there is no Vacancy.'
Earl of Nottingham.
'Gentlemen, I would not protract Time, which is now so
necessary to be husbanded; nor perplex Debates about any
affair like that which now lies 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. Somers, 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 nor 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 Sense 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 Words 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
'But then we ate told the Word deserted doth not reach
our Case; because the signification of the Word is but a temporary leaving 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. Somers 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 the Meaning;
therefore we should (as I take it) come presently to think of
some other that would. But the Reason 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
'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 itself may be taken,
which would be best agreed to.
'Acting against a Man's Trust (says Mr. Serjeant Holt)
is a renunciation 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 renunciation of the Trust,
and that such a one is no longer a Trustee.
'I beg his pardon if I dister 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 public 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 Word is used about it.: But if we do not agree
to that Conclusion, I think it will be afterwards easy to shew
which is the fittest Word to be stood upon; or to agree upon
'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
Sir George Treby.
'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, 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 beginning
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 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 amongst 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 Churchman, and the most learned of our Nation in his
Time, and his Works are very worthily recommended by
the Testimony of King Charles the First; he alloweth, That
Government did originally begin by Compact and Agreements.
'But I have yet a greater Authority than this to influence
this matter, and that is your Lordships own, who have
agreed to all the Vote but this Word, abdicated, and the
Vacancy of the Throne. And therefore so much is enough to
be said to that: And to go back to debate what is not in
Difference, is to confound ourselves, instead of endeavouring to compose Differences.
'And truly, my Lords, by what is now proposed, I think,
we are desired to go as much too far forwards, when the
Vacancy of the Throne is proposed to be the Question to be
first disputed before the Abdication, from which it is inferred.
'But sure I am, it is very much beyond what the Vote
before us doth lead us unto, to talk of the Right of those
in the Succession: For that goes farther than the very last
Part of the Vote; and it is still to lead us yet farther, to
say any thing about making the Crown elective: For, I
hope, when we come to answer your Lordships Reasons,
we shall easily make it out, that it is not in this Case; neither was there any Occasion given by this Vote to infer any
such Thing: We shall therefore keep to the Points as they
are, both in Order of Place in the Vote, and of Reason in
the Thing; and, as we have done hitherto, speak to the
Words abdicated and deserted, the Words to be disputed
about in the first place. Another Lord did give one Reason
against the using the Word abdicated, Because it is a Word
belongs to the Civil Law; and said, He would by no
means exchange our own English Common Law for that.
I entirely concur with that noble Lord in that Point; but
he did agree to us also, That there is no such Word in
our Common Law as deserted; that is, which should signify,
by the Stamp the Law puts upon it, any Sense applicable to
the Matter in hand.
'Then if we must not use our Word, because unknown
to our Common Law; neither must we use your Lordships
for the same Reason, and so shall be at an entire Loss what
Word to use; and so, indeed, they may well come to consider the Conclusion first, who leave us at Uncertainties on
what Terms we are to discourse: and there cannot be a
greater Confusion in any Debate, than to state a Conclusion
without the Premises; which we must do, if we cannot agree
how to word the Fact we infer from.
'My Lords, I shall not much differ from what in general
has been said concerning the Sense of the Word abdicated; for
it seems to be agreed on all Hands that it is a Renunciation:
Neither will I contend for an involuntary Abdication; because
I think it means a voluntary Act: But truly what your Lordships mean, in your Reason against it, by the Word express,
I cannot so well understand.
'That a King may renounce his Kingship, I think, may
be made out both in Law and Fact, as well as any other
Renunciation; and that, as far as I can discern by your
Lordships Reasons, and this day's Debate hitherto, is not
intended to be denied by any. Indeed, some of my Lords
have told us, That there 'tis meant of the Exercise of a
Right which may be renounced, without Renouncing that
Right. Whether that be a true Distinction or no, is not
very material; but if it be, that the very Kingship itself
(as including a Right to govern) may be renounced, and hath
been, it will be no Difficulty to make out, by Instances in
all Countries, not only where the Crown is, or was, elective,
but also where it was hereditary and successive.
'If a King will resign or renounce, he may do so, as particularly Charles the Fifth.
Earl of Pembroke.
'That was an express solemn Renunciation.
Sir George Treby.
'My Lords, the particular Manner of doing it, is (I take
it) not Matter in Debate just now before us, till it be settled
whether a King can abdicate at all, or renounce his Kingship
at all; this then being granted, That a King may renounce,
may resign, may part with his Office, as well as the Exercise
of it, then the question indeed is, Whether this King hath
done so or no?
'That he may do it, I take it for granted, it being an
Act of the Will: Then let us now enquire into the Facts,
as set out in the Vote, whether this Will of his be manifest.
For that you have heard it may be discovered several Ways;
the Discovery may be by Writing, it may be by Words, it
may be by Facts: Grotius himself, and all the Authors that
treat of this Matter, and the Nature of it, do agree, That
if there be any Word, or Action, that doth sufficiently
manifest the Intention of the Mind and Will, to part with
his Office, that will amount to an Abdication, or Renouncing.
'Now, my Lords, I beg leave to put this Case, That
had King James the IId, come here into the Assembly of
the Lords and Commons, and expressed himself in Writing,
or Words, to this purpose; I was born an Heir to the
Crown of England, which is a Government limited by Laws
made in full Parliament, by King, Nobles, and Commonalty; and, upon the Death of my last Predecessor, I am in
possession of the Throne; and, now I find, I cannot make
Laws without the Consent of the Lords and Representatives of the Commons in Parliament; I cannot suspend Laws
that have been so made, without the Consent of my People,
this indeed is the Title of Kingship I hold by Original
Contract, and the fundamental Constitutions of the Government, and my Succession to, and Possession of the Crown, on
these Terms is part of that Contract. This Part of the Contract I am weary of, I do renounce it, I will not be obliged
to observe it; nay, I am under an invincible Obligation
not to comply with it; I will not execute the Laws that
have been made; nor suffer others to be made, as my People
shall desire, for their Security in Religion, Liberty, and
Property, which are the two main Parts of the Kingly
Office in this Nation. I say, suppose he had so express'd
himself, doubtless this had been a plain Renouncing of that
legal, regular Title which came to him by Descent: It then
he by particular Acts, such as are enumerated in the Vote,
has declared as much, or more than these Words can amount
to, then he thereby declared his Will to renounce the Government: He hath, by these Acts mentioned, manifestly
declared, that he will not govern according to the Laws
made; nay, he cannot so do; for he is under a strict Obligation, (yea the strictest) and superior to that of the Original Compact between King and People, to act contrary
to the Laws, or to suspend them.
'By the Law, he is to administer Justice, and to execute
his Office according to the Tonour of those Laws; and the
Coronation-Oath obligeth him likewise to consent to such
Laws as the People shall chuse: But, on the contrary, by
that unfortunate Persuasion (in point of Religion) that he
hath embraced, he is obliged to suspend the Laws that desend 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
sap 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 limited, thus restrained, then in common Sense, as well as
legal Acceptation, he has sufficiently declared his Renouncing
of the very Office. As for his Departure out of the Kingdom, 'tis not material, whether it was voluntary or involuntary; but it is sufficient, that his acting declares, quo animo, he went away; he no longer could pursue what he designed; and the contrary of which he was so strongly obliged unto 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
'So that taking both these Things together, that he will
not; nay, he cannot (as thus persuaded 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
postponing this Point, till the other, about the Vacancy of the
Throne, be determined; for this is the very Foundation upon
which we are to proceed, for establishing the Superstructure
of the other Conclusion.'
Earl of Nottingham.
'This learned Gentleman that spoke last, says, it is necessary to prefer the Premises before the Conclusion, as being the Foundation to 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 joined 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
'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 confirmed 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
'But therefore, because in this first point it is disputable
what is meant by a Word not of known 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 Treby.
'I beg leave to say something to what this noble Lord
has last spoke unto: When I call'd 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 in 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
with me, that a King may renounce by Acts, as well as Words,
'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 myself 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 the 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 extraordinary Cases, the extraordinary Remedy is 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; not injure a particular Person in Religion, Liberty
or Property, but falls upon the whole Constitution itself,
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 myself: that is, such a Title, as by which I may
act as if there were no such Law to circumseribe 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 People's 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 where such an Attempt as this is made on the Essence of the Constitution, it is
not we that have brought ourselves into this State of Nature,
but those who have reduced our legal well-establish'd Frame
of Government into such a State of Confusion, as we are
now seeking a Redress unto.'
Earl of Rochester.
'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 farther than that; and if you do so, why should you not be
pleased to explain yourselves, that every one may know how
the Matter stands, and to preserve a good Correspondence
between both Houses, in such a Juncture and Conjunction
'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 yourselves what you mean by it.'
Then there was a little pause.
'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
'My Lords, your Lordships second Amendment to the
Commons Vote, (to wit, to leave out 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, signify 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, 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 that 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 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 yourselves, or 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
'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 die, 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.'
'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
'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 is
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 public 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 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 true Construction the same; but the Exercise of the
Government only (as you express it) and the Government
itself (if your Reason conclude right) are not the same:
And we are to reason from the Words expressed in the
'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 agreable to all those precedent Acts, which are not a
ceasing of the Exercise of the Government only, but a Destruction of the Government itself?
'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, nobody 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 joined that they cannot be sever'd.
'And the Terms themselves (taking them as the Law of
England, which we are to argue from in 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
'So that wherever 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 is 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 faith it is not?) to take 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 King 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
'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 would infer such a Vacancy in the Throne, as that the Crown should thereby become elective; this, we conceive, is a Conclusion, that hath
no Premises 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 Premises. 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 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 unpracticable thing, and would
be introductive of a new Principle of Government amongst
us. It would be setting up a Commonwealth 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 offered.'
Earl of Clarendon.
'As to what Mr. Pollexfen 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
'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 it 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 be changed into a Commonwealth; 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 Maynard.
'I am sure, if we be left without a Government, as we
find we are (why else have we desired 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.'
'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 will go
on to give it an Answer.'
Earl of Clarendon.
'Your own Words in your second Reason are, That you
need not prove to us, that as 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 supplied by?
Must it not be supplied by those that should have come if
he were dead?
'For, I pray consider, I take this Government by all our
Laws to be an 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 the 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, Maynard.
'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 hares viventis.'
Earl of Pembroke.
'To that point I think my Lord Clarendon 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,
as 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 the 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 whom he will.'
Mr. Serjeant Maynard.
'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
Earl of Pembroke.
'Sure, Mr. Serjeant Maynard, you will 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
Mr. Serjeant Maynard.
'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.'
Earl of Pembroke.
'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 Maynard.
'That is not like this case, because the Descent was legally immediate; but there can be no such thing during
King James's Life, as an hereditary Descent: So that either
here must be an everlasting War entailed 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 Descent 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 punished, 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.'
Earl of Nottingham.
'The Objection (as I take it) that is made to these Reasons the Lords have given 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.'
'My Lords, we say you have not fully answered the first
of our Reasons.'
Earl of Nottingham.
'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 applied 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 Sense, and doth not necessarily imply renouncing entirely of a Right, but a ceasing of the Exercise.
But then, if that does not vacate 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 circularly for this meeting? And to renew your Address to the Prince, and to appoint a Day of
'In answer to that, my Lords say, that though 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 Kingdom's Great Council, and might have done
it by themselves without the Commons; but being met in a
full representative Body, they joined with them.
'Mr. Pollexsen 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 Sucession
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 it (as they infer) he is so civilly, 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 from it 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 your 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 die 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 Precedent
there be a Brench in the Hereditary Succession; for I will
be bold to say, you cannot make a stronger tie to observe
that kind of Succession, than what lieth 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 obliged 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 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, and 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, Gentlemen, 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 Momarchy of ours into an Elective one?'
'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 Amendments: And it is
much stranger that we should be asked, whether this Vacancy
extends 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, to 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 settled; what Satisfaction can it be to your
Lordships, or us, or the Nation, to know that such things
as are mentioned in the Votes had 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) ceasing. It
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.
Earl of Nottingham.
'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
'That, my Lords, we cannot do, for all our Business is
to maintain our own, that the Throne is vacant.'
'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 applied in a parallel Case to
this of ours, in 1 Henry 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 farther 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 English, in the Great Hall at Westminster, where the
Parliament was then assembled, it was accepted by the Lords
'After that, it proceeds farther; and there are Articles
exhibited against Richard the Second, and upon these Articles they went on to Sentence of Deposition and Deprivation,
and then follow the words in the Record; Et confessim ut
constabat ex premissis & eorum occasione regnum Angliæ cum pertinentiis suis vacare. Then Henry the Fourth riseth up out
of his Place as Duke of Lancaster, where he sat 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 Angliæ sicut præmittitur vacans una cum corona
'After that, the Record goeth on, That upon this Claim
the Lords and Commons being asked, what they thought of
it? they unanimously consented, and the Arch-Bishop took
him by the Hand, and led him ad Sedem Regalem prædictam,
'Nay, and after all this, it is there taken notice of, and
particularly observed, that prius vacante sede Regali, by the
lesion and deposition aforesaid, all the public Officers ceased;
there is care taken for Henry 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 farther 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
Earl of Rochester.
'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 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 last Gentleman used for the Word vacant,
out of the Record of Richard the Second's time, that is
cited for a Precedent for that word. But as that is the only
Precedent, 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 dies there is a Vacancy, because there the Law knows no certain Successor:
So that the différence is plain, that wherever the Monarchy
is hereditary, upon the ceasing of him in Possession, the
Throne is not vacant; where it is elective, 'tis vacant.'
Earl of Clarendon.
'I would speak one word to that Record which Mr. Somers mentioned, and which the Lord that spoke 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 Henry IV.
'After all this, was not this an Election? He indeed
saith, that he was 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 March; so that Henry
the Fourth claimed it as his indabitable Right, being the
next Heir that then appeared.
'But, Gentlemen, I pray consider what followed 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
'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 Edward the Fourth, the Proceedings
against King Richard the Second, as well as the rest of the
Acts during the Usurpation (as that Record rightly calls it)
are annulled, repealed, revoked, reversed, 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 died 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 Henry IV; and being a latter 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 invert
the Successio in any point at all, I fear you will find a Disagreement there, and then very dangerous Consequences
Sir Robert Howard.
'My Lords, the Proceeding and Expressions of the
House of Commons in this Vote are fully warranted by the
Precedent 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 ere this been settled, 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 IVth, I will not say is not a Precedent 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
'For, that which a noble Lord spoke of touching the
public 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 Lesion 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 join with
us in the other things; but that you might have done it of
yourselves, 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 and 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 assembled without his calling, or would have either administred
the Government yourselves, or advised the Prince of Orange
to have taken it upon him? I doubt you have been (pardon
me for saying 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 lies 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 to conflict with in such a case; but who is the
occasion of them?
'We all do know the Monarchy is hereditary; but how,
or what shall we do to find out the Successor in the right
'You think it will be a difficult thing to go upon the
Examination who is Heir; perhaps it will be more difficult
to resolve in this case, than it might be in another: For
though heretofore there have been Abdications and Vacancies,
it has been where the King has been of the same Religion
of the established Worship of the Nation; and amongst
those that pretended to the Succession, the several Claimers
have been Persons born and bred up in that Religion that
was established by Law; or it may be there hath been a Child
in the Womb, at the time of the Vacancy.
'But then, my Lords, there would not be much difficulty to examine, who should inherit, or what were fit to be
done. I confess, I say, there are difficulties of all sides,
or else your Lordships sure would have spoke out before
now: And if you had been clear in it yourselves, you
would have let the Commons and the World have known
it. But it not being clear, must we always remain thus?
Use what words you will, fill up, nominate, or elect, it is
the thing we are to take care of, and it is high time it were
'My Lords, there is no such Consequence to be drawn
from this Vote, as an Intention or a Likelihood of altering
the course of the Government, so as to make it elective;
the Throne hath all along descended, in an hereditary Succession; the main Constitution hath been preserved.
'The Precedent of Henry the Fourth is not like that of
Elections in other Countries; and I am sorry there should
be any occasion for what is necessary to be done now.
'But when such Difficulties are upon the Nation, that
we cannot extricate our selves out of, by fixing who is the
lineal Successor, your Lordships, I hope, will give us leave
to remember Salus populi est suprema Lex.
'And if neither you nor we can do any thing in this
Case, then we, who are met under the notion of an Assembly or Convention of the States, have met to no purpose;
for after we have voted our selves to be without a Government, (which looks as if something were really intended as
to a Settlement) all presently sinks, and we are as much in
the dark as we were before.
'And, my Lords, I pray give me leave to say one thing
more: Your Lordships say, you will never make a Precedent of Election, or take upon you to alter the Succession.
'With your Lordships favour, the Settlement of the
Constitution is the main thing we are to look after. If you
provide for the Supply of the defect there, that point of
the Succession will, without all question, in the same Method, and at the same Time, be surely provided for.
'But, my Lords, you will do well to consider: Have
not you your selves already limited the very Succession, and
cut off some that might have a lineal Right? Have you
not concurred with us in our Vote, That it is inconsistent
with our Religion and our Laws to have a Papist to reign
over us? Must we not come then to an Election, if the next
Heir be a Papist? Nay suppose there were no Protestant
Heir at all to be found; would not your Lordships then
break the Line?
'But your Lordships Vote is inconsistent; you do suppose
a Case of the greatest Consequence that can be, may happen; and if that should happen to be our Case, that the
whole Protestant Line should fail, would not that necessitate
an Election, or else we must submit to that which were inconsistent with our Religion and our Laws?
'If your Lordships then, in such a case, must break
through the Succession, I think the Nation has reason to
expect you should take care to supply the present Defect,
where the Succession is uncertain.
'My Lords, if this should not be agreed unto, what
will be the Consequence? We that used, and justly, to boast
of living under the best of Governments, must be left without any one; for, your Lordships, it seems, cannot agree
with us to supply and fill up this Gap in it, or tell us who
is the Successor: And we must not do it ourselves by Election; which is the only way left us to provide for our Settlement.
'Truly, my Lords, upon the whole, I cannot tell what
Condition we shall be in, or what we can do farther; but
we must even part, and break up in Confusion, and so leave
the Nation to extricate itself, as well as it can, out of this
Distraction. But then, at whose Door that will lie, I must
leave to your Lordships own Thoughts.'
Earl of Pembroke.
'We have indeed passed such a Vote, as that Gentleman
says, against a Popish Prince's reigning over us; but I
should think that amounts to no more than a Resolution,
that by a Law to be made we will take care of it in Parliament: Therefore I think that which we aim at, and that
which the Constitution of our Government does require, is,
to put things in a legal Method: And, in order to it, I
would have the legal Successor declared and proclaimed,
and then a Parliament summoned in that Prince's Name,
and the whole Matter settled there.
'An Act made by a King de facto, is void as to a King
de jure; therefore I would have the Constitution preserved;
and would desire, that all that is done in this Matter may
be again done in Parliament.'
Earl of Clarendon.
'Sir Robert Howard was pleased to say, That 'By the
same Method that the Throne now should be filled, by the
same the Successor should be declared, and the right Line
settled.' Is not that declaring the Crown to be elective?
'Suppose you say nothing but fill the Throne, is it not
to take away the right Line of Inheritance? And, will not
such a Successor claim it for his Posterity?
'Truly, I think, if the right Line be declared in the
same Way that the Successor is, then we take upon us to
dispose of the Inheritance of the Crown absolutely; which,
I think, by all the Law I ever read or could hear of among
us, is out of our Power; and, that neither House, nor both
Houses together, have Power to do any thing relating to
the Succession, but by Act of Parliament; which the two
Houses by themselves cannot make.'
Sir Richard Temple.
'I think we are now going too far in this Matter; the
question before us is only, Whether there be a Vacancy in the
Throne? After we have done with that, I do not see how this
will preclude the Consideration of any Claim to the Succession.
'Your Lordships say, You are under great Difficulties upon this
Subject. But, my Lords, till you have declared the Throne
vacant, I must presume to say, I do not see how it is possible
for any of us to make one Step towards a Settlement.
'If there be any Claims to the Crown, that Consideration will be next, and how to determine them: I conceive
we are in the same Capacity as our Predecessors were, to
provide for all Exigencies as shall emerge, and for the
supplying all Defects in the Government.
'It is true, by the Acts of Queen Elizabeth and King
James I. we have the Oaths of Supremacy and Allegiance
that are to be, and have been taken by all Persons.
'But, my Lords, there is an old Oath of Fidelity, that
useth to be required in Leets, and that by the ancient Law
of England every Man ought to take who is sixteen Years
of Age; and this was as much obliging to the King, his
Heirs and Successors, as any of those later Oaths are; for
they seem only to be made to exclude foreign Authorities,
and not to infer any new Obedience or Subjection: Therefore I am only saying, we are in as natural a Capacity as
any of our Predecessors were, to provide for a Remedy in
such Exigencies as this.
'I do not intend to trouble your Lordships any farther
than the Words of the Vote lead me.
'If the Throne were full, what do we do here; nay,
how came we hither? I would fain know, Whether all that
is mentioned in one of our Reasons of the Administration
being committed to the Prince, and those other Acts, do
not all imply, at least, that we are in such a Case as wherein
the Throne is vacant? otherwise, if it had been full, I appeal
to any one, Whether we could have assembled or acted in
any other Name, or by any other Authority, than his that
filled it? Then do not all these Things declare, that there
is a Vacancy?
'My Lords, I have done, having said this, that it is a
subsequent Consideration, how the Throne shall be filled,
and all the Particulars that relate to it remain entire, after
this Resolution taken.
'But, I think, we are at present to go no farther. No Man,
I hope, thinks there is a just Ground for any Apprehension
of an Intention to change the Government; I am sure there
is no Ground for any such Apprehension: So that we have
all the Reason in the World to insist, that your Lordships
should agree with us, that the Throne is vacant, or we shall
not be able to move one Step farther towards a Settlement.'
Sir Thomas Lee.
'My Lords, so much has been said in this Matter already,
that very little is to be added.
'But give me leave to say unto your Lordships, That
those Amendments your Lordships have made to the Commons Vote are not agreeing with your other Votes, nor any
of the Acts done since the Abdication Had it been in the
common, ordinary Case of a Vacancy by the King's Death,
your Lordships in December last would sure have let us
known as much: But it is plain you were sensible we were
without a Government, by your desiring the Prince to take
the Administration, and to issue out his Letters for this
'But, my Lords, I would ask this question, Whether
upon the Original Contract there were not a Power preserved
in the Nation, to provide for itself in such Exigencies?
'That Contract was to settle the Constitution as to the
Legislature, which a noble Lord in the beginning spoke of;
so we take it to be: And it is true, that it is a Part of the
Contract, the making of Laws, and that those Laws should
oblige all sides when made; but yet so as not to exclude
this Original Constitution in all Governments that commence
by Compact, that there should be a Power in the States to
make Provision in all Times, and upon all Occasions, for
extraordinary Cases and Necessaries, such as ours now is.
'I say nothing now as to the hereditary Succession; our
Government has been always taken to be hereditary, and so
declared when there has been occasion to make Provision
otherwise than in the direct Line.
'But our Matter is singly upon a Point of Fact, Whether the Throne be vacant (as the Commons say it is) by the
Abdication of King James the Second.
'The present Vacancy is nearest that of Richard the
Second, of any that we meet with in our Records; and the
Phrase being there used, we insist upon it as very proper.
And when that is agreed unto, the House will, no doubt,
declare their Minds in another consequential question that
shall arise in a proper Way. But this is all we can speak
Sir George Treby.
'To discourse, whether the Crown of England, would
by this means become elective, is altogether unnecessary;
and, I think, your Lordships have given no Reasons that
are sufficient to make the Objection out, neither any Answers to the Commons Reasons for their Vote.
'It seems to me an odd Way of reasoning, first to
mistake the Meaning, and then give Reasons against that
'The question is only here, Whether we can make good
this Proposition, That the Throne is vacant by the Abdication of
the late King
'I contess, it is a melancholy Thing to discourse of the
Mistarriages of Governments, but it is much more afflictive to
talk of unhinging all the Monarchy, by a breach upon the
direct Line of the Succession; as, if the Crown of England
did actually descend to Lewis the fourteenth, if would not
be in the Power of the States of this Kingdom to devolve
it upon another Head.
'A noble Lord put an Instance of two Men in one Room,
one of whom was really such a one: But though a Standerby could not directly tell which was he, yet it could not be
said by him, that such a one was not there. But, if you
please, I will put this Case:
'Suppose there were two Men in one Room, that no one
alive could tell which was which; as suppose this to be the
Case of the two Children of Edward the Fourth, that they
had been kept close Prisoners by their Uncle Richard the
third so long, that there were no living Witnesses able to
tell which was the eldest of the two, that would occasion
a Difficulty much as intricate as ours here. One of them
must be eldest, but by reason of the Uncertainty, must not
an Election be made of them? And could any thing else do
but an Election? But, I say, the proper single question here
is, Whether we have well affirmed upon the Premises that
are mentioned in the former Part of the Vote, that he has
abdicated, and that the Throne is thereby vacant.
'Your Lordships in part agree; for you say, 'he has deserted the Government; then you say, be is not in it And it
is as much as to say, he has left the Kingdom destitute of a
'Now if there be any Sense in which our Proposition is
true, will you deny the whole Proposition, because it may
be taken in a Sense that is dubious and uncertain, as to the
'You cannot say the Throne is full: If then there be a
Doubt with you, to be sure it is not like to be evident to us,
especially in this Case, considering who your Lordships are.
'You are the Persons that usually are, or ought to be
present at the Delivery of our Queens, and the proper
Witnesses to the Birth of our Princes. If then your Lordships had known who was on the Throne, we should certainly have heard his Name from you, and that had been
the best Reason against the Vacancy that could have been
'My Lords, we say no more than our Ancestors have
said before us, as you see by the Parliament-Roll, 1 Henry IV; and I must: maintain the Record to this purpose,
that the Government is vacant, and it is there declared, as
it is expressed in our Vote: So that we have not invented
or coined a Word for our Turn, neither is the Notion
new, it is a Word that has been used before in a Case as
near this as any can be.
'But it is objected, That that should be no Precedent,
because of what followed upon that Vacancy of the Throne.
I desire that your Lordships would read the Record.
'The next Thing there, is, Henry the Fourth cometh
himself, and says, He claimed the Crown as descended from
Henry the Third, and the Lords and Commons assented.
It is true, the Archbishop did propose him (as was usual at
Coronations) and he did there actually ask them, Whether
they did cluse him for their King? They agreed to it, and the
Archbishop makes a Discourse upon the Virtues of a Man
to govern the Nation better than a Child; and then he is
placed on the Throne. And this I take to be a proper,
plain, applicable Precedent in our Case.
'But that noble Lord's Objection strikes at the very Heart
of it, if the Objection be rightly made, That all these Proceedings, and so consequently the Words and Phrases there
used, are all repealed, 1 Edward IV.
'My Lords, it is very well known, and readily agreed
by us, that Edward the Fourth came in, in disaffirmance of
the Title of the House of Lancaster.
'As those Times went, whenever there was any Turn in
Government, (as there were several) there were new and
contrary Declarations about the Title to the Crown made
constantly in Parliament; and what one Parliament had settled, another undid.
'But then this Advantage we have on our side, that as
we have this first Precedent for us, so we have the last; for
I need go no farther, than the Parliament-Roll of 1 Henry VII, 12. 16. where the Record is set right again.
'The Act for deposing Richard the Second is indeed by
1 Edw. IV. repealed, and saith, that Henry the Fourth usurped
the Crown, and murdered Richard the Second; and thereupon it proceeds to attaint. Henry VI. But then comes in
Henry the Seventh, and 1 Henry VII. there is an Act
made, that sets aside all the Acts and Attainders made against
his Line, and consequently repealed 1 Edw. IV. which repealed 1 Henry IV.
'And I would observe one thing, by the way, concerning
Henry the Seventh: He was of the Line of Lancaster, and
when he came to the Crown, would not endure to have his
Crown reckoned only matrimonial, or suffer the Stile to go
in the Names of Henry and Elizabeth, as he must have
done if he had stuck to the Title of the right Line of Succession; no, he always stood up for his own Title, though
he had the Heiress of the House of York in his Bosom.
'Therefore, my Lords, his Act for restoring the Record of 1 Henry IV. again, is as good an Authority as it
was before, and somewhat better; for it hath the last Act on
its side, which is unrepeal'd to this Day.'
Earl of Pembroke.
'Henry the Seventh had a good Right and Title by
Marriage to the Crown, in re Uxoris. No one can question
but his own Title, as descended from Henry the Fourth, was
an Usurpation; and he would not suffer any one to prescribe
which Title was best, as long as it was acknowledged he
had one good one.
'That this Kingdom is hereditary, we are not to prove
by Precedent in the List of our Kings and Queens; for we
shall scarce find above three in any direct Line, without
some Interruption: and therefore we are not to fetch our
Precedents or Proofs, so far as those Days. And this I speak
for the Reason which was hinted before.
'The Laws made are certainly Part of the Original Contract; and by the Laws made, which establish the Oath of
Allegiance and Supremacy, we are tied up to keep in the
hereditary Line, being sworn to be true and faithful to the
King, his Heirs and Successors; whereas the old Oath was,
only to bear true Allegiance to the King. There (I take it)
lies the Reason why we cannot (of ourselves) without breaking that Contract, break the Succession, which is settled by
Law, and cannot be altered but by another, which we
ourselves cannot make.'
Sir George Treby.
'Your Lordship is pleased to say, Henry the Seventh's
Title by Descent was an Usurpation. I think it is pretty hard
to determine what Title he did govern by, since, though
his Wife was the lineal Heir, yet she had no part, or so
much as a Name in the Administration. And if it were too
great an Issue to be tried then, it will be harder to do it now.
And it has been said, it was his Mother's Council to him,
not to declare particularly upon what foot his Title stood.
'But, my Lords, if we should allow none for Acts of Parliament but those that were made in the Reigns of Hereditary Kings, and in the right Line, I doubt we should want
the greatest part of those Laws that compose the Volume of
Statute Books, and the Records by which we enjoy a great
part of our Inheritances and Possessions.'
Mr. Serjeant Maynard.
'If we look but into the Law of Nature (that is above
all human Laws) we have enough to justify us in what we
are now a doing, to provide for ourselves and the public
Weal in such an exigency as this'
Sir Richard Temple.
'If Laws made about the Succession be so obliging, what
then shall we say to the Succession of Queen Elizabeth,
who had an Act of Parliament (to the keeping of which an
Oath was required) against both her and her Sister.'
Earl of Pembroke.
'But to shew what Opinion she herself and the wise Men
of her Times had, and were of, in this point, there is an
Act made in her Reign, and yet in being, which declares it
to be a Præmunire to affirm, the Parliament cannot settle the
Succession of the Crown, or alter it. Entails in Parliament
have been of the Crown, both Ancient and Modern, yet
the Authority of another subsequent Act has prevailed against
such an Entail: So that it should be done, I say, in Parliament.'
Sir Richard Temple.
'I think we are in as full a Capacity to take care of the
Government as any of our Predecessors, in such an exigence;
and if we do as they have done before us, that is not to be
called a changing of the Monarchy from an hereditary to an
Earl of Nottingham.
'After this long Debate, pray let us endeavour to come
as near as we can to an Agreement: We have proposed some
Questions about which my Lords desired to be satisfied: you,
Gentlemen, have not been pleased to give an Answer to them,
and we have no great hopes of getting one from you, as this
Debate seems to be managed.
'On your part you have declared, That you do acknowledge the Monarchy is Hereditary and Successive in the right
Line; then I cannot see how such an Acknowledgment consists with the Reasons you give for your Vacancy; for I cannot imagine how a Kingdom can be an Hereditary Kingdom,
and that King who hath Children now in being (at the time
of his forsaking the Government) can have the Throne Vacant both of him and his Children.
'The Course of Inheritance, as to the Crown of England,
is, by our Law, a great deal better provided for, and runs
stronger in the right Line of Birth than of any other Inheritance. No Attainder of the Heir of the Crown will bar the
Succession to the Throne, as it doth the Descent to any common Person. The very Descent, by Order of Birth, will
take away any such Defect.
'And so was the Opinion of the great Lawyers of England, in the Case of Henry the Seventh. Then cannot I
apprehend how any Act of the Father's can bar the Right of
the Child; (I do not mean that an Act of Parliament cannot
do it) I never said so, nor thought so; but, I say, no Act
of the Father's alone can do it, since even the Act of the
Son, which may endanger an Attainder in him, cannot do it,
so careful is the Law of the Royal Line of Succession. This
is declared by many Acts of Parliament, and very fully and
particularly by that Statute 25 Henry the Eighth, cap. 22.
entitled, An Act concerning the King's Succession; where the Succession of the Crown is limited to the King's Issue Male first,
then Female, and the Heirs of their Bodies one after another,
by Course of Inheritance, according to their Ages, as the
Crown of England hath been accustomed and ought to go
in such Cases.
'If then the King hath done any thing to divest himself of his own Right, it doth not follow thence, that, that
shall exclude the Right of his Issue; and then the Throne
is not vacant, as long as there are any such Issue; for no
Act of the Father can vacate for himself and Children.
'Therefore if you mean no more than only the divesting his own Right, I desire you would declare so; And
then suppose the Right gone as to him, yet if it descend to
his lineal Successor, it is not vacant.
'And I told you, one Reason my Lords did stand upon,
against agreeing to the Vacancy, was, because they thought
your Vote might extend a great deal farther than the King's
'But your all owning it to be a lineal Inheritance, and
this Vacancy, methinks, do not by any means consist.
'You declare, you never meant to alter the Constitution; then you must preserve the Succession in its ancient
Course: So I did hear a worthy Gentleman conclude it to
be your Intention to do. But by what methods can it be
done in this Case by us? I desire to be satisfied in a few
things about this very matter.
'I desire first to know, whether the Lords and Commons
have Power by themselves to make a binding Act or Law?
And then I desire to know, whether, according to our ancient
legal Constitution, every King of England, by being seated
on the Throne, and possessed of the Crown, is not thereby
King, to him and his Heirs? And without an Act of Parliament, (which we alone cannot make) I know not what Determination we can make of his Estate.
'It has been urged indeed, that we have in effect already
agreed to what is contained in this Vote, by Voting, that it
is inconsistent with our Religion and Laws, to have a Popish
Prince to rule over us.
'But I would fain know, whether they that urge this,
think that the Crown of Spain is legally and actually excluded from the Succession by this Vote?
'No Man sure will undertake to tell me, that a Vote of
either House, or both Houses together, can alter the Law
in this or any other point.
'But because I am very desirous that this Vote should
have its effect, I desire that every thing of this nature should
be done in the ancient usual Method, by Act of Parliament.
'God forbid that since we are happily delivered from the
Fears of Popery and arbitrary Power, we should assume any
such Power to ourselves; what advantage should we then
give to those, who would quarrel with our Settlement for the
Illegality of it? Would not this, which we thus endeavour
to crush, break forth into a Viper?
'For the Record of 1 Henry IV. I acknowledge
the Words of the Royal Seat being vacant are used. But
since you yourselves tell us of it, that Henry the Fourth did
claim by Inheritance from his Grandfather, that methinks
may come up to what I would have the declared Sense
of both Houses upon this question; (to wit) the Throne
might be vacant of Richard the Second, but not so vacant
but the Claim of the immediate Successor was to take place,
and not to be excluded, but entirely preserved.
'And Richard the Second seems to have had the same
Opinion, by delivering over his Signet to them.
'Our Laws know no inter-regnum; but upon the Death of
the Predecessor the next Heir is King in uno & eadem instante.
'It was so resolved even in Richard the Second's own
Case; for at his Grandfather's Death it was a question, whether King Richard the Second, or the eldest Son of his
Grandfather then living, should succeed; and it was resolved,
that he ought to have it, because of his Right of Inheritance:
Which is the more remarkable, because of the Contest.
'And when Richard the Third usurped his Crown, to
make his Claim good to the Right of Inheritance, he bastardized his own Nephews.
'And so it was in all the Instances of the Breaches that
were made upon the Line of Succession, which were some
seven (but all illegal) for such was the Force of the Laws,
that the Usurpers would not take the Crown upon them, unless
they had some specious pretence of an Hereditary Title to it.
'That which I would have avoided by all means, is, the
mischievous Consequences that I fear will ensue upon this
Vacancy of the Throne, (to wit) the utter overthrow of the
whole Constitution of our Government. For if it be so, and
the Lords and Commons only remain as part of it, will not
this make the King one of the three Estates? Then is he the
Head of the Commonwealth, all united in one Body under
him. And if the Head be taken away, and the Throne
vacant, by what Laws or Constitution is it that we retain
Lords and Commons? For they are knit together in their
common Head; and if one part of the Government be dissolved, I see not any reason but all must be dissolved.
'Therefore 'tis 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 Acts of Parliament about the Succession) we may consider how the Consequences of that
will affect the Constitution; for I presume to say, it may
then be in your power as well to say, we shall have no King
'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 would be devolved upon the Lords; but I may say they
are the Government's 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 signify 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 yourselves.
'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 satisfy 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 established Government, you do not overturn all our
Mr. Paul Foley.
'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 complied with, and a plain Vacancy
may ensue. For, put the case the whole Royal Line should
fail, (as they are all mortal, as well as we ourselves are)
should we in that case have no Government at all? And
who then should we have but the Lords and 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 there 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 infer a Vacancy with a
witness, and it will be of necessity that the Lords and Commons take care to supply it.'
Mr. G. Eyre.
'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 settled or agreed unto: We have, as I conceive, nothing but the Vote itself 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 itself be passed, I believe no Man can reasonably pretend to ascertain, unless we 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
fa.to, 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 Precedent for the Proceeding in this case; it was only mentioned 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 Premisses, for otherwise all the Vote is but
'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,
and 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 Command 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 septimo Feb. 1688. A Message from the Lords
by Sir Robert Atkins and Sir Edward Nevil.
'Mr. Speaker, the Lords have commanded us to tell you,
that they have agreed to the Vote sont them up of the 28th
of January last, (touching which there was a free Conference Yesterday) without any Alterations.'