agree there is One and no more than one to whom a Right does belong of Succeeding upon failure of King James Has he no Heir known Mr. Serjeant M d. I say No Man can be his Heir while he lives If he has any it is in Nubibus our Law knows none and What shall we do till he be dead It cannot descend till then E. of P e. You agree That notwithstanding King Charles the Second was abroad at his Father's Death and did not actually Exercise the Government yet in Law immediately upon his Father's Decease he was not the less Heir for that nor was the Throne Vacant Mr. Serjeant M d. That is not like this Case neither because the Discent was Legally immediate but here can be no such thing during King James's Life as an Hereditary Discent So that either here must be an everlasting War entail'd upon us his Title continuing and we opposing his return to the Exercise of the Government or we have no Government for want of a Legal Discent and Succession Pray my Lords consider the Condition of the Nation till there be a Government no Law can be executed no Debts can be compelled to be paid no Offences can be punish'd no one can tell what to do to obtain his Right or defend himself from Wrong You still say The Throne is not Void and yet you will not tell us who Fills it If once you will agree That the Throne is Vacant it will then come orderly in debate How it should according to our Law be Filled E. of N m. The Objection as I take it that is made to these Reasons the Lords have sent for their insisting upon the Amendments is That we have not fully answered in them the Reasons given by the Commons for their not agreeing to those Amendments Mr. S l. My Lords we say you have not fully answered the first of our Reasons E. of N m. Gentlemen I intend to state the Objection so That first Reason of yours I take to be this in effect That our word Deserted being apply'd to the Government implies our Agreeing that the King hath Deserted the Throne those two being in true construction the same and then by our own Confession the Throne is Vacant as to him To this you say my Lords have given no Answer Truly I think it is a clear Answer that the word Deserted may have another sence and doth not necessarily imply Renouncing entirely of a Right but a ceasing of the Exercise But then if that does not Vacant the Throne as to him the other Reason comes to be considered How came you to desire the Prince of Orange to take the Administration upon him and to take care of Ireland till the Convention and to write his Letters circulary for this Meeting And to renew your Address to the Prince and to appoint a Day of Publick Thanksgiving In answer to that my Lords say That tho the King 's Deserting the Government as they agree he has done did imply the Throne to be Vacant yet they might justly do all those Acts mentioned in the Commons Reasons because if barely the Exercise of the Government were deserted there must be a supply of that Exercise in some Person 's taking the Administration and as none so fit because of the Prince's relation to the Crown and his presence here to Address unto about it so none so proper to make that Address as the Lords for in the absence of the King they are the King and Kingdoms great Council and might have done it by themselves without the Commons but being met in a full representative Body they joyned with them Mr. P n indeed has said There is no distinction in Law between the Kingship and the Exercise of it And That it is the same Crime in consideration of Law to take away the Exercise as to take away the Kingship I shall not dispute with that learned Gentleman whom I very much honour for his Knowledge in the Profession of the Law what Offence either of them would be now for we are not discoursing concerning a Regency how the Government should be Administred but we are barely upon the Question Whether the Throne be Vacant so that we may have another King But if we should grant a Vacancy as to the King himself we are then told the next in Succession cannot take because no one can be Heir to one that is alive Yet I think the Answer given by my Lords before is a very good one That tho the King be not dead Naturally yet if as they infer he is so Civily the next of course ought to come in as by Hereditary Succession for I know not any distinction between Successors in the case of a Natural Death and those in the case of a Civil one For I would know if the next Heir should be set aside in this case and you put in another whether that King shall be King of England to him and his Heirs and so being once upon the Throne the ancient Lineal Succession be altered If that be so then indeed it is sufficiently an Elective Kingdom by taking it from the right Heir If it be not so then I would ask Whether such King as shall be put in shall be King only during King James's Life That I suppose for many Reasons is not their meaning but at least he must be made King during his own Life and then if there be a Distinction made as to the Succession between a Natural and a Civil Death if King James should dye during the Life of the new King what would become of the Hereditary Monarchy Where must the Succession come in when the next Heir to King James may not be next Heir to the present Successor Therefore we must reduce all to this point which my Lords have hinted at in their Reasons Whether this will not make the Kingdom Elective for if you do once make it Elective I do not say that you are always bound to go to Election but it is enough to make it so if by that President there be a breach in the Hereditary Succession for I will be bold to say you cannot make a stronger Tye to observe that kind of Succession than what lyeth upon you to preserve it in this Case If you are under an Obligation to it it is part of the Constitution I desire any one to tell me what stronger Obligation there can be and that I say is Reason enough for my Lords to disagree to it it bringing in the Danger of a Breach upon the Constitution Next Gentlemen I would know of you if the Throne be Vacant whether we be oblig'd to fill it if we be we must Fill it either by our old Laws or by the Humour of those that are to chuse if we Fill it by our own old Laws they declare That it is an Hereditary Kingdom and we are to take the next to whom the Succession would belong and then there would be no
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 Agreement 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 enough to be said to that and go back to Debate what is not in Difference is to confound our selves 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 fowards when the Vacancy of the Throne is proposed to be the Question to be first Disputed before the Abdication from which it is â—â—â—â—rred 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 â—han the very last Part of the Vote and it is still to lead us yet farther to say any thing about makeing 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 VVe shall therefore keep the Points as they are both in Order of Place in the Vote and of Reason in the thing and as we have done hither to 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 useing the VVord 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 intirely 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 signifie by the Stamp the Law puts upon it any Sence applicable to the Matter in Hand Then if we must not use our VVord 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 VVord 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 doe 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 Sence of the Word Abdicated for it seems to be agreed on all Hands that it is a Renuntiation 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 Fact as well as any other Renuntiation and that as far as I can discern by your Lordships Reasons and this Days Debate hitherto is not intended to be denyed by any Indeed some of my Lords have told us That there 't is 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 it self 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 Char. 5th Earl of P k. That was an express Solemn Renuntiation Sir George T by 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 Resign 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 VVill Then let us now inquire into the Facts as set out in the Vote VVhether this VVill of his be manifest for that you have heard it may be discovered several ways the Discovery may be by VVriting it may be by VVords it may be by Facts Grotius himself and all Authors that treat of this Matter and the Nature of it do agree That if there be any Word or Action that doth suffitiently 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 II. come here into the Assembly of Lords and Commons and expressed himself in VVriting or VVords 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 exprest himself doubtless this had been a plain Renouncing of that Legal Regular Title which came to him by Descent If 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 hath 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 doe 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 aand to Execute his Office according to
difference is plain that where-ever the Monarchy is Hereditary upon the Ceasing of him in possession the Throne is not Vacant where it is Elective 't is Vacant Earl of C n. I would speak one word to that Record which Mr. S s mentioned and which the Lord that spake last hath given a plain Answer unto by making that difference which is the great Hinge of the matter in debate between Hereditary and Elective Kingdoms But I have something else to say to that Record First It is plain in that Case King Richard the Second had absolutely resigned renounced or call it what you please Abdicated in Writing under his own Hand What is done then After that the Parliament being then sitting they did not think it sufficient to go upon because that Writing might be the Effect of Fear And so not voluntary thereupon they proceed to a formal Deposition upon Articles and then comes in the Claim of Hen. IV After all this Was not this an Election He indeed saith That he was not the next Heir and claimed it by Descent from Henry the Third yet he that was really the next Heir did not appear which was the Earl of Maroh so that Henry the Fourth claimed it as his indubitable Right being the next Heir that then appeared But Gentlemen I pray consider what follow'd upon it All the Kings that were thus taken in we say Elected but the Election was not of God's Approbation scarce passed any one Year in any of their Reigns without being disturbed in the possession Yet I say he himself did not care to owe the Crown to the Election but Claimed it as his Right And it was a plausible Pretence and kept him and his Son though not without interruption upon the Throne But in the time of his Grandson Henry the Sixth there was an utter Overthrow of all his Title and Possession too For if you look into the Parliament Roll 1 Edw. 4. the Proceedings against King Richard the Second as well as all the rest of the Acts during the Usurpation as that Record rightly calls it are annul'd repeal'd revok'd revers'd and all the words imaginable used and put in to set those Proceedings aside as illegal unjust and unrighteous And pray what was the Reason That Act deduceth down the Pedigree of the Royal Line from Henry the Third to Richard the Second who dy'd without Issue and then Henry the Fourth saith the Act Usurped but That the Earl of March upon the Death of Richard the Second and consequently Edward the Fourth from him was undoubted King by Conscience by Nature by Custom and by Law The Record is to be seen at length as well as that 1 Hen. 4. and being a later Act is of more Authority And after all this I pray consider it well the Right Line is restored and the Usurpation condemned and repealed Besides Gentlemen I hope you will take into your consideration what will become of the Kingdom of Scotland if they should differ from us in this Point and go another way to work then will that be a divided Kingdom from ours again You cannot but remember how much Trouble it always gave our Ancestors while it continued a divided Kingdom and if we should go out of the Line and invest the Succession in any point at all I fear you will find a Disagreement there and then very dangerous Consequences may ensue Sir R H d. My Lords The Proceedings and Expressions of the House of Commons in this Vote are fully warranted by the President that hath been cited and are such as wherein there has been no interruption of the Government according to the Constitution The late King hath by your Lordships concession done all those things which amount to an Abdication of the Government and the Throne 's being thereby Vacant And had your Lordships concurred with us the Kingdom had long e're this been setled and every body had peaceably followed their own business Nay had your Lordships been pleased to express your selves clearly and not had a mind to speak ambiguously of it we had saved all this Trouble and been at an end of Disputing Truly my Lords this Record that hath been mentioned of Henry the Fourth I will not say is not a President of Election for the Arch-Bishop stood up and looked round on all sides and asked the Lords and Commons Whether they would have him to be King and they asserted as the words of the Roll are That He should Reign over them And so it is done at every Coronation As to his Claim they did not so much mind that for they knew that he Claimed by Descent and Inheritance when there was a known Person that had a Title before him For that which a Noble Lord spoke of touching the Publick Acts that have been done since the King left us I may very well say we think them legally done and we do not doubt but that Power which brought in another Line then upon the Vacancy of the Throne by the Leasion of Richard the Second is still according to the Constitution residing in the Lords and Commons and is legally sufficient to supply the Vacancy that now is That Noble Lord indeed said That your Lordships might not only with the Commons advise the Prince of Orange to take upon him the Administration and joyn with us in the other things but that you might have done it of your selves as being in the absence of the King the Great Council of the Nation My Lords I shall not say much to that point your Lordships Honours Privileges are great and your Councils very worthy of all Reverence and Respect But I would ask this Question of any Noble Lord that is here Whether had there been an Heir to whom the Crown had quietly descended in the Line of Succession and this Heir certainly known your Lordships would have assembl'd without his calling or would have either Administer'd the Government your selves or advised the Prince of Orange to have taken it upon him I doubt you had been pardon me to say it all guilty of High-Treason by the Laws of England if a known Successor were in possession of the Throne as he must be if the Throne were not Vacant From thence my Lords your Lordships see where the Difficulty lyes in this matter and whence it ariseth because you would not agree the Throne to be Vacant when we know of none that possess it We know some such thing hath been pretended to as an Heir Male of which there are different Opinions and in the mean time we are without a Government and Must we stay till the Truth of the matter be found out What shall we do to preserve our Constitution while we are without a safe or legal Authority to act under the same according to that Constitution and in a little time it will perhaps through the distraction of our Constitution be utterly irremediable I do not deny but that your Lordships have very great Hardships
to the Crown that consideration will be next and how to come at them I conceive we are in the same Capacity as our Predecessors were to provide for all Exigencies as shall emerge and for the supplying all Defects in the Government It is true by the Acts of Queen Elizabeth and King James first we have the Oaths of Supremacy and Allegiance that are to be and have been taken by all Persons But my Lords there is an old Oath of Fidelity that useth to be required in Leets and that by the ancient Law of England every man ought to take that is Sixteen Years of Age and this was as much obliging to the King his Heirs and Successors as any of those later Oaths are for they seem only to be made to exclude foreign Authorities and not to infer any new Obedience or Subjection therefore I am only saying we are in as natural a capacity as any of our Predecessors were to provide for a Remedy in such Exigencies as this I do not intend to trouble your Lordships any farther than the words of the Vote lead me If the Throne were Full what do we do here nay how came we hither I would fain know whether all that is mention'd in one of our Reasons of the Administration being committed to the Prince and those other Acts do not all imply at least that we are in such a Case as wherein the Throne is Vacant otherwise if it had been full I appeal to any one whether we could have assembled or acted in any other Name or by an other Authority than his that filled it Then do not all these things declare that there is a Vacancy My Lords I have done having said this That it is a subsequent consideration how the Throne shall be Filled and all the Particulars that relate to it remain entire after this Resolution taken But I think we are at present to go no further No Man I hope thinks there is a just Ground for any Apprehension of an Intention to change the Government I am sure there is no Ground for any such Apprehension So that we have all the reason in the World still to insist That your Lordships should agree with us that the Throne is Vacant or we shall not be able to move one step further towards a settlement Sir T L e. My Lords So much has been said in this matter already that very little is to be added But give me leave to say unto your Lordships That those Amendments your Lordships have made to the Commons Vote are not agreeing with your other Votes nor any of the Acts done since the Abdication Had it been in the common ordinary case of a Vacancy by the King's Death your Lordships in December last would sure have let us know as much But it is plain you were sensible we were without a Government by your desiring the Prince to take the Administration and to issue out his Letters from this Convention But my Lords I would ask this Question whether upon the original Contract there were not a power preserved in the Nation to provide for its self in such Exigencies That contract was to settle the Constitution as to the Legislature which a noble Lord in the beginning spoke of so we take it to be And it is true that it is a part of the Contract the making of the Laws and that those Laws should oblige all sides when made but yet so as not to exclude this original constitution in all Governments that commence by compact that there should be a Power in the States to make provision in all times and upon all occasions for extraordinary Cases and Necessities such as ours now is I say nothing now as to the Hereditary Succession our Government has been always taken to be Hereditary and so declared when there has been occasion to make provision otherwise than in the direct Line But our matter is singly upon a Point of Fact Whether the Throne be Vacant as the Commons say it is by the Abdication of King James the Second This present Vacancy is nearest to that of Richard the Second of any that we meet with in our Records and the Phrase being there used we insist upon it as very proper And when that is agreed unto the House will no doubt declare their Minds in another Consequential Question that shall arise in a Proper way But this is all we can speak to now Sir G T y. To discourse Whether the Crown of England would by this means become Elective is altogether unnecessary and I think your Lordships have given no Reasons that are sufficient to make the Objection out neither any Answers to the Commons Reasons for their Vote It seems to me an odd way of Reasoning first to mistake the meaning and then give Reasons against that mistaken meaning The Question is only here Whether we can make good this Proposition That the Throne is Vacant by the Abdication of tht late King I confess 't is a melancholy thing to discourse of the Miscarriages of Governments but 't is much more afflictive to talk of unhinging all the Monarchy by a breach upon the direct Line of the Succession as if the Crown of England did actually descend to Lewis the Fourteenth it would not be in the power of the States of this Kingdom to divolve it upon another Head A Noble Lord put an Instance of two Men in one Room one of whom was really such a one But though a stander by could not directly tell which was he yet it could not be said by him that such a one was not there But if you please I will put this Case Suppose there were two Men in one Room that no one alive could tell which was which as suppose this to be the Case of the two Children of Edward the Fourth that they had been kept close Prisoner by their Uncle Richard the Third so long that there were no living Witnesses able to tell which was the eldest of the two that would occasion a difficulty much what as intricate as ours here One of them must be Eldest but by reason of the uncertainty must not an Election be made of them And could any thing else do but an Election But I say the proper single Question here is Whether we have well said and well affirmed upon the Premises that are mentioned in the former part of the Vote that he was Abdicated and that the Throne is thereby Vacant Your Lordships in part agree for you say He has Deserted the Government then you say He is not in it And it is as much as to say He has left the Kingdom destitute of a Government Now if there be any sence in which our Proposition is true will you deny the whole Proposition because it may be taken in a sence that is dubious and uncertain as to the Consequences You cannot say the Throne is Full if then there be a Doubt with you to be sure it is not like