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 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: 6 6 "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 concar 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 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 by having withdrawn bimself, after having endeavoured to subvert the constitution of the government,by breaking the Original Contract between king and people, and having violated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. 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."] 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. Pollexfen, Mr. Paul Foley, Mr. serj. Maynard, Mr. serj. Holt, lord Falkland, sir George Treby, Mr. Somers, Mr. Garroway, Mr. Boscawen, sir Tho. Littleton, Mr. Palmer, Mr. Hampden, sir Henry Capel, sir Tho. Lee, Mr. Sacheverel, major Wildman, col. Birch, Mr. Ayres, sir Rd. 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 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. But there were good authorities brought, by which F 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 ldp.'s for the same reasons. -My lords; the commons do very readily agree with your lordships, That it is a matter of the greatest concerniment 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 commous 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 Mr. Somers. My lords, what is appointed me strength to the foundation that shall be laid to speak to, is your lordships first Amendment, after all our late convulsions, and discourage by which the word ' abdicated,' in the commons our enemies from attempting to undermine it. vote, is changed into the word deserted ;' -It is true, my lords, the present difference and I am to acquaint your lordships what some between your lordships and the commons is of the grounds are that induced the cominons only about a few words; but the commons to insist upon the word 'abdicated,' and not think their words so significant to the purpose to agree to your lordships Amendment.-1st, for which they are used, and so proper to the The first Reason your lordships are pleased to case unto which they are applied, that in so deliver, as for your changing the word, is, that weighty a matter as that now in debate, they the word abdicated' your lordships do not are by no means to be parted with.-The word find is a word known to the common law of abdicated,' the commons conceive, is of larger England; and therefore ought not to be used: signification than the word your lordships are and the next is, that the common application pleased to use desert,' but not too large to of the word amounts to a voluntary express act be applied to all the recitals in the beginning of renunciation, which (your lordships say) is of the commons Vote, to which they meant it not in this case, nor what will follow from the should be applied. Nor ought it to be res- premises.-My lords, as to the first of these trained to a voluntary express resignation, only Reasons, if it be an objection, that the word in word or writing, overt-acts there are that abdicated' hath not a known sense in the will be significant enough to amount to it.— common law of England, there is the same My lords; that the common law of England is objection against the word deserted ;' for not acquainted with the word, it is from the there can be no authority, or book of law promodesty of our law, that it is not willing to sup-duced, wherein any determined sense is given pose there should be any unfortunate occasion to the word deserted;' so that your lordships of making use of it: and we would have been first Reason hath the same force against your willing, that we should never have had such an own Amendments, as it hath against the term occasion as we have, to have recourse to it. used by the commons.-The words are both Your lordships next Amendment is, That your Latin words, and used in the best authors, and lordships have left out the last words in the both of a known signification; their meaning is commons vote,And that the Throne is very well understood, though it be true, their thereby vacant.'-My lords; the commons meaning be not the same: the word abdicated' conceive it is a true proposition, and that the doth naturally and properly signify entirely to Throne is vacant;' and they think, they make renounce, throw off, disown, relinquish any it appear that this is no new phrase; neither 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 commóns take to be the present case, and there | " it appeared, that when a person did a thing upon which his leaving any office ought to follow, he was said to abdicate.' But this was a critical dispute; and it scarce became the greatness of that assembly, or the importance of the matter." Burnet. is it 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; nei ther of which had 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. · 6 6 " fore 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 best authors. The first I shall mention is Grotius, "de Jure Belli & Pacis," 1. 2. c. 4. §. 4. Venit enim hoc non ex jure civili, sed ex jure naturali, quo quisque suum potest abdicare, & ex naturali præsumptione qua voluisses, qui creditur, quod sufficienter significavit.' And then he goes on, ' recusari hæreditas non tantum verbis, sed etiam re potest, & 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 of it, though 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, 1. i. c. 4. § 9. seems to expound the word abdicare,' by manifeste habere 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 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 6 " 6 test.' 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 expressly 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 be no more than a negligent withdrawing, which leaveth a liberty to the party to return. For which Reason, 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 II. 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 deserted.' 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 C • too) for that will be no objection against the | but quite the contrary, that shall be construed thing. The Earl of Nottingham. Gentlemen, you ditary line, and so all the heirs to be cut off? Mı. 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 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 Mr. Serj. Maynard. But, my lords, that is not any part of the case declared by the com mons 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. The 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 government.-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 the right.-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 " 6 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 triumpho:" 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 esteemned 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 away.-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 endea vour. 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 com mons: 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 |
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