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Mr. Seymour. We are in so unfortunate an age, that it has improved precedents especially on mistaken grounds. There never was a Letter sent to the Chancellor for a writ to fill up a vacancy, but by a warrant from the Speaker of the commons of England assembled. You are to take care to chuse, &c.' It must be first made known to you, and it is the easiest way by warrant or order from you, and not to trouble the Prince upon this
Sir Tho. Clarges. A warrant from this house is a warrant for the lord keeper or chancellor, and he has always obeyed it, and thought it sufficient authority to send out a writ. Now you are here as a Convention, which is a resemblance of a parliament. The king, before he calls a parliament, sends his writ to chuse members after you have sat here, then your precept; and now that we are sat here, you may send your warrant or letter to the coroner.
The Speaker. Anciently, you sent to the lord keeper or chancellor to issue out his writ, &c. There was, I remember, a great contro versy [in 1672] about my lord chancellor Shaftsbury sending out Writs to fill Vacancies, on his own motion, before he had notice from this house. There are two ways now proposed; one for a letter from the Prince to the coroner, and the other for the Speaker to send his Letter in your name, &c. I am ready to put the question which way you please.
Resolved, "That where any Vacancies have already happened, or shall hereafter happen, by death or removal of any members, or double returns, Mr. Speaker do, for the future, upon motion to this house, by his Letter, make application to his highness the prince of Orange, desiring him to issue out his Letter, directed to the respective coroner or coroners or chief magistrates, as formerly, for the supplying such Vacancies, by electing other members therein."
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 obliged in conscience to do all he could to open his people's eyes, that they might see the true interest of the nation in this important conjuncture that finding he could no longer stay with safety, nor act with freedom, he had left the Reasons of his withdrawing from chester, under his own hand: that understanding that Letter [here repeated at length] was not taken to be his, but was maliciously suppressed 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
*See vol. iv. p. 507.
arts were used to hinder them from knowing his sentiments: that he was resolved that nothing should 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 called, freely elected, and beld without constraint: and that none might despair of his mercy, he declared on the word of a king, that his pardon should be extended even to those that betrayed 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, did not think fit to take any notice of it, and so rejected it unopened.
Debate on the State of the Nation.] Jan. 28. Col. Birch. It has been moved, by one or two, That the Speaker leave the chair.' I have known it moved, in granting Money; and all ordinary business; but to leave it now, in a great business, you will make it twice as long. I move you to consider, that, as it will hinder the work, so it will lower the greatness of it, and make it less than it is.
Serjeant Maynard. It is a great affair now upon you. It is never done till debated first in the house. How many propositions will happen at a grand committee, without your directions first! You must, at a committee, know whereupon to go. First consider of the business, and then refer it as occasion requires.
Sir Edw. Seymour. What resolution soever you take, I would not have you go out of the method of usual proceedings. I know how strait-laced, in such a great matter, men will be in the house, where they can speak but once. It will look as if you were not willing it should take effect, as if ill done. But that it may freely be done, pray leave the Chair, to debate freely the Establishment of the nation.
The Speaker then left the Chair, and the house went into a Grand Committee.
Mr. Dolben. I take leave to remind you of the order of the house on Monday, to consider of the State of the Nation ;' but not at the same time to debate the Remedies for the misfortunes we are fallen under. First, consider the condition of the nation, as to that which concerns the Vacancy of the governRo-ment, by the absence of the king. I tell you freely my opinion, that the king is demised, and that James 2. is not king of England. For I lay it down as an undoubted proposition, that, when the king does withdraw himself from the administration of the government, without any provision to support the commonwealth; when, on the contrary, he stops the use of the great seal, by taking it away with him, this amounts to what the law calls demise,
* Son to the late archbishop of York.
Mr. Arnold seconded the motion.
id est, a cession; and demised' is deserted | king does voluntarily abandon the government, the government.' This is evident in law, as it it is a demise, and cessation of the governis evident in reason and authority. ment, according to Grotius, and other learned meaning of the word demise is demisio, laying writers, by many arguments from the law of down; whether actually relinquishing the go- God. Grotius lays down some: 'Si princeps vernment, or passively by death; in either of habet imperium pro direlicto,' &c. he is but a which cases, it is a demise. In the necessity private man then, he certainly ceases to be a of government, all these cases have the same prince. Not that he was negligent in the adconsequences. When the interruption is in ministration of government, but did direlict; the administration, or it is demised; where and we argue well, that a direliction is a dethere is the same mischief, there must be the sertion of the government. Hoffman, the same remedy. It is the same thing for the civilian, says, 'If a prince relinquishes the king to withdraw his person, which makes a government, he ceases to be a king.' Regu parenthesis in the government. By with-larly, I must end with a motion; which is, drawing the seal, the chancery ceases, and no that you will pass a vote, that it is the opinion justice can be obtained. The Common Pleas of the committee, "That king James 2. havcannot be possessed of any cause without an ing voluntarily forsaken the Government, and original writ out of Chancery; and when these abandoned and forsaken the kingdom, it is a fail, the law fails; and, by consequence, it is voluntary demise in him." a demise, for want of the administrators of the government; which the law cannot suffer. Sir Rd. Temple. This learned gentleman Qui cessat regnare cessat judicare.' There has said enough to convince us, that the grais one authority in the Rolls, instar omnium, in vity of this committee is great, and that we the case of Ed. 4. There was a rumour that have liberty to deliver the thoughts in every the earl of Warwick advanced towards him; man's breast. I shall farther declare, that the he fled from Nottingham beyond sea; which king has endeavoured to destroy the governwas a clear demise, and all proceedings in ment of the nation in parliaments, by practisWestminster-Hall ceased, and it was judged a ing to get votes before they meet, and to turn demise. In 14 Hen. 6. there are many re- all out of the government, who would not comsolutions of causes discontinued, by that de- ply with him in corporations to deliver up their mise; remansit sine die,' because le roi se charters. This has been so notorious, that I demise,' in effect felo de se. Writs of attach- shall not mention where; though it has been ment were discontinued, because justices came the rights and privileges of the people, yet they not into the country, and the king went be-shall not be chosen till they declare they will yond sea, without leaving a lieutenant. The destroy the government. How has Westmingreat oracle of the law, judge Littleton, pro- ster-hall been tutored, judges packed for purnounced this departure of Edw. 4. a demise. poses, and turned out, unless they assert power Perhaps it may be objected, that Edw. 4. in kings to dispense with the laws, so that did return again to the administration of the Westminster-hall was become an instrument government, and resumed the government by of slavery and popery, ordinary justice destroyconquest, not in a legal way, but by the sword.ed, and extraordinary ways promoted, in that There are two other authorities that carry little and short time of the late king James's force in them. Edw. 2. resigned the crown, reign! When a king attempts to destroy the but by duresse; yet he made the resignation roots of government, he differs in nothing from the 25th of Jan, and immediately it was judged a tyrant. All he has done may be reduced to a demise. Rd. 2.'s Resignation was per mi- that head of the destruction of the Church, by nas, yet that was judged a demise (as in Ras- suspending the ecclesiastical laws, to destroy tall) Quod recordatum de regimine regni sui all that will not comply with Popery. The se demisit R. 2. &c.' These precedents seem mischiefs are so recent and conspicuous, that, stronger in our case, which is a voluntary de- when you come to give reasons, you will satisfy parture, without duresse. But, that our king the nation that king James has rendered himwas frighted or forced away, others can better self inconsistent with government. If there tell; but, by what is notorious to the world, be not a Vacancy, and he has left the governthere is a sufficient conviction that it was not ment, what do we do here? He has quitted force; but that he did abandon his palace by the government, without assurance of any night, and did go to sea, and was taken and thing: he has suppressed the parliament writs: returned again to his own guards, that papists he has taken away the great seal; and here is might not raise any disturbance in the appre- an apparent end of the government. The hension of his being detained prisoner. But king is fallen from the crown, and may think this weighs most with me; that it was not he is under an obligation of conscience to probable that he was driven away by force, break the laws against Popery. He may say, when he stole away from his guards, and re- I will never live in that torture: and if he peated the attempt to be gone. There is the has said so, would any man doubt but that this king's Letter to lord Feversham, wherein he is is a renunciation of the government? All his obliged to follow the queen. We have not actions have tended this way. If he be reonly our law in the case, but the authority of called, he will do the same thing again, and foreign writers. By the civil law, when the tell the world, This is not from the lords,
here, that he should come again. Abdication and direliction are hard words to me, but I would have no loop-hole to let in the king; for I believe not myself nor any Protestant in England safe, if you admit him.
but a company of miserable men of the house of commons, and they may go home again; for the king can do no wrong, nor can forfeit his crown by male administration.' But, suppose the case were of an infant, or lunatic, the nation may, in that case, provide for the government; and, were the king a person that took care of the government, he would never have left the nation thus. He has taken none, and therefore it is our duty to do it.
Sir Christ. Musgrave. I believe we are in great danger, should the king return again; but I would willingly know the opinion of the long robe; and I hope they have that candour and tenderness, that they will clearly give their thoughts in this great and extraordinary affair.
Sir Tho. Lee. When you have put the question, That there is an avoidance in the government,' then your second part is, how to provide for it.
Mr. Finch. The question now is of Vacancy in the government: that of the right and title to fill it up comes too late after the other question. Your question is, Whether the right itself is gone?
Sir Christ. Musgrave. As to the matter of deposing kings, I shall leave that to the long robe, to exercise their abilities upon. I live near a kingdom (Scotland) where I know not how ill neighbours they will be, if they concur with your sense. I would be clear, whether the intention is to depose the king; and, if he has forfeited his inheritance to the crown, I would know from the long robe, whether you can depose the king, or no.
Serj. Maynard. I know not the meaning of this, but I am afraid of a meaning. The question is not, whether we can depose the king; but, whether the king has not deposed himself. It is no new project; our government is mixed, not monarchical and tyrannous, but has had its beginning from the people. There may be such a transgression in the prince, that the people will be no more governe by him. All governments, both military and civil, he disposes of, and because he asked a million for life, and we asked, the last parliament, but that some officers, not qualified by law, might be removed from their places, the parliament was dissolved. It is a mistake, that Ireland was conquered; it was yielded to Hen. 2. by calling him to take possession of it; and for 500 years it was part of the monarchy of England. The last Rebellion was by the influence of the Priests and Jesuits, and in 1641, the Protestants were all massacred. They slew 200,000 Protestants; and all that has been done in Ireland, would have been done in England. All authority, civil and military, was in Irish bands. Was this done like a king of England? What shall we think of this? Ireland to be in Popish hands! Can the king give away that kingdom? This has been long creeping upon us. There is no Popish prince in Europe but would destroy all Protestants; as in Spain, France, and Hungary; and in Spain they destroyed a gallant young prince (don Carlos) whom they suspected to incline to the Protestants; and now they would make Magdalen College a new St. Omers.
Mr. Harbord. If the question be, whether
Mr. Comptroller Wharton. I am glad gentlemen have explained themselves. The gentleman makes a question, whether the king, may be deposed? but, whether he may be deposed, or deposes himself, he is not our king. It is not for mine, nor the interest of most
"A gentleman of a noble family in Cumberland, whose life had been regular, and his deportment grave. He had lost a place in king James's time; for though he was always a high Tory, yet he would not comply with his designs. He bad, indeed, contributed much to increase his revenue, and to offer him more than he asked; yet he would not go into the taking off the Tests. Upon the Revolution, the place out of which he had been turned was given to a man that had a good share of merit in it. This alienated him from the king; and he, being a man of good judg-you have power to depose the king, that may ment, came to be considered as the head of tend to calling him back again, and then we the party; in which he found his account so are all ruined. well, that no offers that were made him could ever bring him over to the king's interests. Upon many critical occasions, he gave up some important points, for which the king found it necessary to pay him very liberally." Burnet.
Eldest son of lord Wharton, to which title he succeeded on his father's death. He was one of the first of rank who joined the prince of Orange on his landing, and, upon his advancement to the throne, had considerable places under him, as he had also in the reign of queen Anne, being appointed lord lieutenant of Ireland, and created earl of Wharton, &c. In 1714, he was appointed by king George I. lord privy seal, and soon after was created a marquis. He died in 1715.
Mr. Howe. Some of the counsel talk as if they were instructing juries. I wish they would come plainly to the point.
Sir George Treby. I am sorry for this heat in a matter that requires our utmost deliberation. It is no less a question than, whether we shall be governed by Popery and arbitrary government, or whether we shall be rid of both. One gentleman would have the long robe declare, whether we have power to depose the king; though he speaks pertinent, yet it is not proper now; for we have found the crown vacant, and are to supply that defect. We found it so, we have not made it so. Mr. Finch would have it, the king going out of his wits, not out of the government. He
only; but it is impossible in the rest of the
knows the case; we are fallen out of the
Sir Tho. Clarges. To say that the crown is void,' is a consequence of an extraordinary nature. The consequence must be, we have power to fill it, and make it from a successive monarchy an elective; and whether a commonwealth, or alter the descent, is yet ambiguous. How came we hither the 22d of Dec. but to confer with the members of former parliaments? I told them then, It was to consider how to pursue the ends of the prince of Orange's Declaration, according to his Letter.' And the advice ended, to call a Convention by the Prince's Letter; that so a full and free representation of the people might advise to prosecute the ends of the Declaration, which would be tantamount to a legal parliament.
Sir Wm. Williams. Should you go to the beginning of government, we should be much in the dark: every man in town and country can agree in the fact of the state of things. It is plain that king James 2. is gone out of England into France; that is a plain fact. It is a wilful, voluntary, or mixed action. I hear of no direction for administration of the government, when the king left the kingdom; how he has disposed either of courts of justice, or of the parliament. If this fact be true, he is become useless, and has left no reme to preserve the peace of the kingdom. This is partly the State of the Nation; and in that kingdom where we had always disrelished him in several parliaments, he has left several places void in the government; then what is to be done in this case? I propose it to be the first step, to declare, That James 2. by withdrawing himself from England, has deprived the kingdom of England of the exercise of kingly dignity.' Can any man deny all this? Then the consequence is, we are deprived of a king.
Mr. Somers. What you do in this case will
Afterwards the great lord Somers. "He was born at Worcester in 1652. He was educated at a private school in Staffordshire, and then entered at Trinity College, Oxford, from which he removed to the Middle Temple. He afterwards highly distinguished himself as an able and eloquent pleader, and was in 1683, one of the counsel for Pilkington, lord Grey, and others who had caused a riot in London, and in 1688, for the seven Bishops. In the
satisfy the world abroad, if it be like other cases. Sigismund king of Sweden's case is parallel to ours. King James 1. (upon an occasion most have heard of) protested, That if his posterity were not Protestants, he prayed to God to take them from the throne.' Sigismund made the like imprecation. He was so considerable as to be chosen king of Poland. After the crown of Sweden descended to him, he sent to take the government upon him: he returned, when he had changed his religion, and brought Jesuits along with him, who were resty, and would disturb the government, and invade the laws, as they have ever done. The king prepared to force his way to the crown;
but before they came to a battle, they entered into treaty, and the king promised to call a parliament, and that religion should be settled; but before they met, he withdrew to the kingdom of Poland: so they settled Charles 8. upon that throne. First and last, the matter was jesuited, to change religion, subvert the government, and to withdraw from the kingdom. That withdrawing of Sigismund was much less than ours. He went to the kingdom he came from; ours has withdrawn to another kingdom, which has always been against the interest of England, and he cannot come out of the French king's power without his consent, and all to his advantage. Some have taken notice of things before, and some since, his desertion but the king's going to a foreign power, and casting himself into his hands, absolves the people from their allegiance. He sent an ambassador to Rome, received a nuncio from thence, received a foreign jurisdiction, and set up Romish bishops in England, that the Popish religion might intervene with the government, thereby to subject the nation to the Pope, as much as to a foreign prince. Ireland, which has cost England so much treasure to reduce, and now to deliver it up to the Irish, to subject it to a foreign power! And to do things by such hands, as, by the constitution of the kingdom, are incapable! The hands were as much out of the way as the design-just like Sigismund, after he had left the kingdom, to send away the seal, call a parliament, and then desert the nation! My motion is, That you will appoint a committee to draw a Vote upon the debate.'
Convention Parliament of 1638-9, he was member for Worcester, and was one of the managers of the Commons, at a Conference with the Lords about the word 'Abdicated.' | He was soon after made Solicitor-General and knighted, and in 1692 appointed Attorney General. In 1697, he was raised to the peerage, and made lord chancellor, but in 1700, he was removed from his high situation, and accused by the commons of high crimes and misdemeanors, of which, upon trial before his peers, he was acquitted. He now abandoned the struggles of political life for studious retireinent, and was soon after chosen president of the Royal Society. He, however, occasionally laboured for the prosperity of his country in the house of lords, and projected the Union between Scotland and England. In 1708, he was president of the Council, but was removed by the change of ministry two years after. He grew so infirm, that he held no office under George 1. He died of an apoplectic fit, 26th April 1716, after surviving for some time the powers of his mind. He was never married. He wrote various pieces, and translated Plu-ings by his life, and planned them for posterity. tarch's Life of Alcibiades, in the Lives by se- He was at once the model of Addison, and the veral hands,' and also Dido's Letter to Æneas touchstone of Swift: the one wrote for him, from Ovid, &c."" Lempriere. the other from him. The former, however, has drawn a laboured, but diffuse and feeble character of him in the Freeholder, neither worthy of the author nor his subject." Walpole's Royal and Noble Authors.
as a master orator, a genius of the finest taste, and as a patriot of the noblest and most extensive views; as a man, who dispensed bless
"He held the seals seven years, with a high reputation for capacity, integrity, and diligence, and was in all respects the greatest man I had ever known in that post. He was very learned in his own profession, with a great deal more learning in other professions, in divinity, philosophy, and history. He had a great capacity for business, with an extraordinary temper; for he was fair and gentle, perhaps to a fault, considering his post; so that he had all the patience and softness, as well as the justice and equity, becoming a great magistrate. He had always agreed in his notions with the Whigs, and had studied to bring them to better thoughts of the king (William) and to a greater confidence in him." Burnet.
"John, lord Somers, was one of those divine men, who, like a chapel in a palace, remain unprofaned, while all the rest is tyranny, corruption, and folly. All the traditional accounts of him, the historians of the last age, and its best authors, represent him as the most incorrupt lawyer, and the honestest stateman,
Mr. Seward, in the second volume of his Anecdotes, p. 273, has produced the following notitia of lord Somers from a MS. in the possession of the late Dr. Birch: "April 26, 1716, died John lord Somers. Burnet hath done him justice in several places, and Addison has given his character in colours so strong, that little remaineth to be added. His application and capacity were equally great and uncommon. At his first going to school he never gave himself any of the diversions of children of his age, for at noon the book was never out of hand. To the last years of his life a few hours of sleep sufficed: at waking, a reader attended, and entertained him with the most valuable authors. Such management raised him to the highest eminency in his own profession, and gave him a superiority in all kinds of useful knowledge and learning."