nify so much to the people of this kingdom. 3. 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 thereon.] Resolved, "That the earl of Wiltshire do go up to the Lords, to desire a Conference upon the subject matter of the Amendments."-The earl of Wiltshire reports, "That he having attended the lords, to desire a Conference, they had given Answer, That they did consent to a Conference immediately in the Painted Chamber."

Resolved, "That the 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. Feb. 5. Mr. Hampden reports from the Conference with the lords, that the earl of Nottingham spoke to this effect:

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 2. 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: 1. Because, by the constitution of the government, the monarchy is hereditary, and not elective. 2. 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 Commons, if the Throne be vacant of king James 2. 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. Yeas 151. Noes 282. And so it was resolved in the negative. DEBATE AT A FREE CONFERENCE RELATING

ΤΟ THE WORD "ABDICATED."] Reso ved, "That the lords had desired this Conference" That a Free Conference be desired with the with the commons, that they might be as hap- lords upon the subject matter of the last Conpily united to the commons in opinion, as they ference." Ordered, "That it be referred unto are inseparable in their interest; and that they sir Robert Howard, Mr. Pollexfen, Mr. Paul are, at this time, uneasy that they cannot con- Foley, Mr. serj. Maynard, Mr. serj. Holt, lord cur with the commons in every thing; because Falkland, sir George Treby, Mr. Somers, Mr. it is of so great a concern to the nation, and Garroway, Mr. Boscawen, sir Tho. Littleton, from so great and wise a body." That he then Mr. Palmer, Mr. Hampden, sir Henry Capel, delivered what the lords had done in reference sir Tho. Lee, Mr. Sacheverel, major Wildman, to the subject matter of the last Conference, col. Birch, Mr. Ayres, sir Rd. Temple, sir and said, That the lords did insist upon the Henry Goodrick, Mr. Waller, sir John Guyse, first Amendment of the Vote of the house of to manage the Conference." commons of the 28th of Jan. last, instead of the word abdicated' to have the word 'deserted.' 1. 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. 2. Because in the most common acceptation of the civil law, abdication is a voluntary express act of renunciation, which is not in this case, and doth not follow from the premises, that king James 2. by having withdrawn bimself, after having endeavoured to subvert the constitution of the government,by breaking the Original Contract between king and people, and having violated the fundamental laws, may be more properly said to have abdicated than deserted. He said, the lords did insist on the second Amendment, to leave out the words, And that the Throne is vacant, for this Reason: "For that although the lords VOL. V.

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 opened by Mr. Hampden.

"In this Conference, according to the sense of the whole nation, the commons had clearly the advantage on their side. The lords had some more colour for opposing the word abdicate,' since that was often taken in a sense that imported the full purpose and consent of him that abdicated; which could not be pretended in this case. there were good authorities brought, by which

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But

fore made choice of the word 'abdicate,' as test.' Whereby it appears, my lords, that that which they thought did, above all others, that is called desertion, which is temporary most properly express that meaning and in and relievable: that is called dereliction, this latter sense it is taken by others, and that where there is no power or right to return. it is the true signification of the word, I shall So in the best Latin authors, and in the shew your lordships out of the best authors.- civil law, Deserere exercitum' is used to The first I shall mention is Grotius," de Jure signify soldiers leaving their colours; cod. lib. Belli & Pacis," 1. 2. c. 4. §. 4. Venit enim hoc 12. §. 1. And in the Canon Law to desert a non ex jure civili, sed ex jure naturali, quo benefice, signifies no more than to be non-requisque suum potest abdicare, & ex naturali sident; so is Calvin's Lexicon, Verb. Desert. præsumptione qua voluisses, qui creditur, quod secund. Canones.-In both cases, the party hath sufficienter significavit.' And then he goes on, not only a right of returning, but is bound to re' recusari hæreditas non tantum verbis, sed turn again which, my lords, as the commons etiam re potest, & quovis indicio voluntatis.'- do not take to be the present case, so they Another instance, which I shall mention, to cannot think that your lordships do: beshew that for the abdicating a thing, it is suffi- cause it is expressly said, in one of your Reacient to do an act which is inconsistent with sons given in defence of the last Amendment, the retaining of it, though there be nothing of That your lordships have been, and are willing an express renunciation, is out of Calvin's to secure the nation against the return of king Lexicon Juridicum, where he says, 'generum James; which your lordships would not in jusabdicat, qui sponsam repudiat: He that di- tice do, if you did look upon it to be no more vorceth his wife, abdicates his son-in-law. Here than a negligent withdrawing, which leaveth a is an abdication without express words; but liberty to the party to return.-For which Reais by doing such an act as doth sufficiently sig- son, my lords, the commons cannot agree to nify his purpose.-The next author, that I the first Amendment, to insert the word, deshall quote, is Brissonius de Verborum signi- serted,' instead of abdicated;' because it doth ficatione,' who hath this passage, Homo liber not, in any sort, come up to their sense of the qui seipsum vendit, abdicat se statu suo;' that thing: so, they do apprehend, it doth not reach is, He who sells himself, hath thereby done your lordships meaning, as it is expressed in such an act as cannot consist with his former your Reasons; whereas they look upon the estate of freedom: and is therefore properly word abdicated,' to express properly what is said, se abdicasse statu suo.'-Budæus in his to be inferred, from that part of the Vote to Commentaries" ad legem secundam de ori- which your lordships have agreed, That king gine juris," expounds the words in the same James II. by going about to subvert the consense, abdicare se magistratu, est idem quod stitution, and by breaking the original conabire penitus magistratu: He that goes out of tract between king and people, and by violathis office of magistracy, let it be in what man- ing the fundamental laws, and withdrawing ner he will, has abdicated the magistracy. himself out of the kingdom, hath thereby reAnd Grotius in his book De Jure Belli & Pacis, nounced to be a king according to the consti1. i. c. 4. § 9. seems to expound the word ab- tution, by avowing to govern by a despotic dicare,' by manifeste habere pro derelicto:' power, unknown to the constitution, and that is, That he who hath abdicated' any inconsistent with it; he hath renounced to be thing hath so far relinquished it, that he hath a king according to the law, such a king as he no right of return to it. And that is the sense swore to be at his curonation, such a king to the commons put upon the word. It is an en-whom the allegiance of an English subject is tire alienation of the thing, and so stands in due; and hath set up another kind of domiopposition to dicare: Dicat qui proprium nion, which is to all intents an abdication, aliquod facit; abdicat qui alienat,' so says Pra- or abandoning of his legal title, as fully as if lejus in his Lexicon Juris. It is therefore in- it had been done by express words.-And, my sisted upon as the proper word by the com- lords, for these Reasons the commons do insist mons. But the word deserted' (which is the upon the word abdicated,' and cannot agree word used in the Amendment made by your to the word' deserted." 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 expressly 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 po

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

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The 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 here

ditary 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 words.

too) for that will be no objection against the | but quite the contrary, that shall be construed using it, if it be a word of a known and certain an Abdication and formal Renunciation of that signification; because that, we think, will jus- thing. tify 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 is 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 nounce,' 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,' 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 declara-going away, with a purpose of seeking to retions of his actions to be quite contrary to cover what is, for the present, left or forsaken : that trust? This, my lords, is so plain, both in plain English, if there were any thing of in understanding and practice, that I need do force or just fear in the case, that doth void no more but repeat it again, and leave it with the notion of abdication: I speak not of maleyour lordships, That the doing an act incon-administration now, of that hereafter. sistent with the being and end of a thing, or that shall not answer the end of that thing,

:

Mi. Serj. 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 vacancy. 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.

The 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

Mr. Serj. Maynard. But, my lords, that is not any part of the case declared by the com