makes the throne vacant, and those with, | Mr. Somers, who spoke to the signification of and in whom the power is invested of making the word abdicated,' did quote Grotius, Callaws, (to wit, the senate) appoint one to fill it: vin's Lexicon, and other civil lawyers, where but that, and whatever other instances of the the express words make it to be a voluntary like kind, these may be all of elective king-act, and so are all the instances that ever I doms; for though some of them are, or read or heard of, that is, there either was some may be in kingdoms now hereditary, yet formal Deed of Renunciation, or Resignation; they were, in these times, elective, and or some voluntary act done of the party's since altered into hereditary successions. own; and such whereby they have shewn they -But here is one thing that is mentioned in did divest themselves of the royalties.-I think this Vote, which I would have well considered, truly, gentlemen, it is very apparent that the for the preservation of the Succession, and that king, in this case, hath done nothing of this is the Original Compact: we must think sure nature it is indeed said by that learned and that meant of the Compact, that was made at ingenious gentleman Mr. Somers, that it may the first time, when the government was first arise from the facts, that in the Vote it has instituted, and the conditions that each part been declared he hath done it, by breaking of the government should observe on their the fundamental laws, and the Original Conpart; of which this was the most fundamental, tract; and endeavouring to subvert the conThat king, lords, and commons, in parliament stitution of the kingdom. I will not discourse assembled, should have the power of making the particulars that have been alleged to make new laws, and altering of old ones. And that out this charge; but I may say this much in being one law which settles the Succession, it general, that this breaking the Original Conis as much a part of the Original Compact as tract is a language that hath not been long any: then if such a case happens, as an Abdi- used in this place; nor known in any of our cation in a successive kingdom, without doubt, law-books, or public records. It is sprung up, the compact being made to the king, his heirs, but as taken from some late authors, and those and successors, the disposition of the crown can none of the best received; and the very phrase not fall to us, till all the heirs do abdicate too. might bear a great debate, if that were now There are indeed many examples, and too many to be spoken to. Mr. Somers did likewise interruptions in the lineal succession of the speak something to the particular case, and crown of England: I think, I can instance in the grounds of the Vote; he said, the king is seven since the Conquest, wherein the right bounded by law, and bound to perform the heir hath been put by: but that doth not foi- laws made, and to be made. That is not delow, that every breach of the first original con- nied; I would take notice, that his obligation tract, gives us power to dispose of the lineal thereunto doth not proceed from his Coronasuccession; especially, I think, since the sta- tion-Oath; for our law saith, He is as much tutes of queen Eliz. and king James 1 that king before he is crowned, as he is afterwards: have established the Oath of Allegiance to and there is a natural allegiance due to him the king, his heirs, and successors, the law from the subjects immediately upon the deis stronger against such a disposition: I grant scent of the crown upon him. And though it that from William 1 to Henry 8 there have is a very requisite ceremony, to put him under been seven interruptions of the legal line a farther obligation by the conscience of his of hereditary succession; but, I say, those sta- oath; yet I think it will not, nor can be detutes are made since that time, and the making nied but that, as king, he was bound to observe of new laws being as much a part of the ori- the laws before; and no body will make that ginal Compact, as the observing old ones, or Oath to be the Original Contract, as I suppose. any thing else, we are obliged to pursue those laws till altered by the legislative power, which singly, or jointly, without the royal assent, I suppose, we do not pretend to; and these laws being made since the last interruption, we are not to go by any precedent that was made before the making those laws. So that all that I conceive ought to be meant by our Vote, is but a setting aside the person that broke the Contract: and, in a successive kingdom, an Abdication can only be a forfeiture as to the person himself.-I hope, and am persuaded, that both lords and commons do agree in this, Not to break the line of Succession, so as to make the crown elective. And if that be declared, that this Abdication' of king James 2 reaches no farther than himself, and that it is to continue in the right line of Succession, that, I hope, will make all of one mind in this important affair. The Earl of Clarendon, As I remember, But, my lords and gentlemen, if you do admit that it was never intended by the house of commons, to relate any farther than to this king himself, I believe my own opinion would concur to secure us against his return to govern us: but then, why is there such a contention about a word? Ďoth all this imply more than desertion?-But it is said, that Abdication' doth imply a perfect Renunciation, which I cannot see how it is in this case, so as to leave us at liberty to supply as we please, and break the line of succession. Mr. Serj. Maynard says, that it is not indeed to make the government perpetually elective. I would know what he means by perpetually: our breaking through the Line now, by a choice out of the lineal course, is an alteration and a precedent: and why may not others take the same liberty we do? And will not that make it perpetually elective? But truly, I think, no act of ours can alter the lineal Succession; for, by all the proper soon enough to express our meaning by. But I find neither of these words will, on the one side or on the other, be allowed to sig laws we have now in being, our government appears to be hereditary in a right line of descent: and upon any descent, when any one ceaseth to be king, allegiance is by law due tonify the meaning; therefore we should (as I his legal heir, as successor, as well before co- take it) come presently to think of some ronation as after. I was in great hopes that other that would. But the Reason why my you would have offered something in answer to lords did chiefly insist upon the alteration of one of my lord's Reasons, against that part of the word abdicated,' was because they did the vote which declares the Throne to be va-apprehend, that it being a word not known to cant;'—That no act of the king's alone can our laws, there might be other inferences bar or destroy the right of his heir to the drawn from it, than they do apprehend our crown, which is hereditary, and not elective. laws will warrant, from the case, as it is stated And then, if this matter goes no farther than in the fact of this Vote; and, as they conceive king James 2 in his own person, how comes is done in the concluding of the throne's being the Vacancy and the Supply to be devolved vacant.-Therefore, I think, it would shorten upon the people? For if he only be set aside, the present debate, if we did settle that point then it is apparent, whither the crown is to first; and as we frequently, in parliamentary go, to the person that hath the next right of proceedings, postpone this and that paragraph succession; and consequently there is no va- in a Bill, till some others that may be thought cancy. fit to be determined first be agreed to; so we The Earl of Nottingham. Gentlemen, I should postpone the debate about the word would not protract time, which is now so ne- 'abdicate,' till the vacancy of the throne be cessary to be husbanded; nor perplex debates settled: for if we were sure that the throne about any affair like that which now lies be- were, or were not vacant, we should easily fore us: it is not a question barely about words, light upon what word were proper to be used but things, which we are now disputing.-The in this case.-I should therefore propose that word abdicated,' it is agreed by Mr. Somers, we might debate that first; because if there be is a word of art; and he hath told us what its an English word of known signification in our signification is, from those that are skilled in law, which should signify no more than rethe art to which it belongs: he doth acknow-nouncing for a man's self; and which would ledge that it is no law-word among English lawyers; nor known to the common law: but then, he saith neither is the word, used by the lords, deserted.'-I agree to him, that neither the one nor the other are words used in our law; but the inference I would draw thence is this, that we have no words applicable to this case; because we never before had such a case; and we must not draw inferences of law in such a case, that are not deducible from rules well known in our laws.-I will not dispute what the sense of the word Abdication' is in the civil law; but that it is a civil law word is agreed to by me; and if it be, for that reason I am against using of it; because I am so much in love with our own laws, that I would use no words in a case that so much concerns our legal constitution, but what are fetched from thence.-I hope I shall never see our old laws altered; or if they be, God forbid we should be the voluntary agents in such an alteration. But then we are told the word ' deserted' doth not reach our case; because the signification of the word is but a temporary leaving or forsaking of his power, which he may re-assume; nay, which in some cases there is a a duty upon him to return unto. If that were all, Mr. Somers bath given himself an Answer to that Objection, out of what he alledges of the lords Reasons, who have declared, that they are willing to secure the nation against the return of king James into this kingdom; and will therefore concur with the commons in any act, that shall be thought necessary to prevent such his return: so that it should seem we were agreed in that matter; and if that were the point, we should find words not amount to so much as setting aside the right of others, that word may be used; and if no other, the word renouncing itself may be taken, which would be best agreed to.-Acting against a man's trust (says Mr. Serjeant Holt) is a renunciation of that trust, I agree it is a violation of his trust to act contrary to it; and he is accountable for that violation, to answer what the trust suffers out of his own estate; but I deny it to be presently a renunciation of the trust, and that such a one is no longer a trustee.-I beg his pardon if I differ from him in opinion, whom I acknowledge to have much more learning in his profession, than I can pretend unto; but if the law be as he says, in a private case, then I must beg leave to forbear giving my opinion, in a case of this public nature that is now before us, till I know what such a trust is, and what the law says in such a case.--If indeed you do pretend that the Throne is vacant,' and both houses agree to that conclusion, I think it will be no matter what word is used about it: but if we do not agree to that conclusion, I think it will be afwards easy to shew which is the fittest word to be stood upon; or to agree upon some other. I pray therefore (to shorten the debate) that you gentlemen would speak to this point first ; and when that is resolved, I hope we shall easily come to an agreement about the other. Sir George Treby. I think, my lords, that we may not consent to begin at the end, and first to enquire of the conclusion, before the premises are settled: for the Vacancy of the Throne' follows, as an inference drawn from the acts of the king, which are expressed most fully by the word Abdication;' and to en quire what the consequence is, when the fact is doubtful, from which the consequence is to ensue, is beginning at the wrong end; till we state the fact, we can assign no consequence at all to it therefore, my lords, I think the present debate is to begin, where the difference between the two houses doth begin, and that is at the word abdicated;' and when that is over, we shall regularly come to the other point in difference. We are gone too far, when we offer to enquire into the Original Coutract, Whether any such thing is known or understood in our law or constitution? or, whether it be new language amongst us? and I offer this to your lordships consideration for two Reasons. First, it is a phrase and thing used by the learned Mr. Hooker, in his book of Ecclesiastical Polity, whom I mention as a valuable authority, being one of the best men, the best churchman, and the most learned of 'our nation in his time, and his works are very worthily recommended by the testimony of king Charles 1. He alloweth, That government did originally begin by Compact and Agreements. But I have yet a greater authority than this to influence this matter, and that is your lordships own, who have agreed to all the Vote but this word, abdicated,' and the Vacancy of the Throne.' And therefore so much is enough to be said to that: and to go back to debate what is not in difference, is to confound ourselves, instead of endeavouring to compose differences.-And truly, my lords, by what is now proposed, I think, we are desired to go as much too far forwards, when the Va'cancy of the Throne' is proposed to be the question to be first disputed before the Abdication,' from which it is inferred.--But sure I am, it is very much beyond what the Vote before us doth lead us unto, to talk of the right of those in the Succession: for that goes farther than the very last part of the Vote; and it is still to lead us yet farther, to say any thing about making the crown elective: for, I hope, when we come to answer your lordships Reasons, we shall easily make it out, that it is not in this case; neither was there any occasion given by this vote to infer any such thing: we shall therefore keep to the points as they are, both in order of place in the vote, and of reason in the thing; and, as we have done hitherto, speak to the words abdicated and deserted,' the words to be disputed about in the first place. Another lord did give one Reason against the using the word abdicated,' Because it is a word belongs to the civil law; and said, He would by no means exchange our own English common law for that. I entirely concur with that noble lord in that point; but he did agree to us also, That there is no such word in our common law as deserted; that is, which should signify, by the stamp the law puts upon it, any sense applicable to the matter in hand. Then if we must not use our word, because unknown to our common law; neither must we use your lordships for the same reason, and so shall be at an entire loss what word to use; and so, indeed, they may well come to consider the conclusion first, who leave us at uncertainties on what terms we are to discourse: and there cannot be a greater confusion in any debate, than to state a conclusion without the premises; which we must do, if we cannot agree how to word the fact we infer from.-My lords, I shall not much differ from what in general has been said concerning the sense of the word abdicated;' for it seems to be agreed on all hands that it is a Renunciation: Neither will I contend for an 'involuntary Abdication; because I think it means a voluntary Act:' but truly what your lordships mean, in your Reason against it, by the word 'express,' I cannot so well understand. That a king may renounce' his kingship, I think, may be made out both in law and fact, as well as any other Renunciation; and that, as far as I can discern by your lordships Reasons, and this day's debate hitherto, is not intended to be denied by any. Indeed, some of my lords have told us, That there it 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 itself (as including a right to govern) may be renounced,' and hath been, it will be no difficulty to make out, by instances in all countries, not only where the crown is, or was, elective, but also where it was hereditary and successive'-If a king will resign' or nounce,' he may do so, as particularly Charles the 5th. That was an ex The Earl of Pembroke. press solenin Renunciation. re Sir George Treby. My lords, the particular manner of doing it, is, I take it, not matter in debate just now before us, till it be settled whether a king can abdicate' at all, or renounce' his kingship at all; this then being granted, That a king may renounce, may resign, may part with his office, as well as the exercise of it, then the question indeed is, Whether this king hath done so or no?—That he may do it, I take it for granted, it being an act of the will: then let us now enquire into the facts, as set out in the Vote, whether this will of his be manifest. For that you have heard it may be discovered several ways; the discovery may be by writing, it may be by words, it may be by facts: Grotius himself, and all the authors that treat of this matter, and the nature of it, do agree, That if there be any word, or action, that doth sufficiently manifest the intention of the mind and will, to part with his office, that will amount to an Abdication, or Renouncing.-Now, my lords, I beg leave to put this case, That had king James 2 come here into the assembly of the lords and commons, and expressed himself in writing, or words, to this purpose; I was born an heir to the crown of England, which is a government limited by laws made in full parliament, by king, nobles, and commonalty; and, upon the death of my last predecessor, I am in pos | gion) govern according to law; and thereupon hath withdrawn himself out of the kingdom: it is a manifest declaration of his express renouncing and parting with his kingly office. And therefore I cannot depart from insisting upon this word abdicated,' which doth so well correspond to the fact of the case, and so well express the true meaning of the commons in their Vote: nor can we consent to the postponing this point, till the other, about the Vacancy of the Throne,' be determined; for this is the very foundation upon which we are to proceed for establishing the superstructure of the other conclusion. The Earl of Nottingham. This learned gentleman that spoke last, says, it is necessary to prefer the premises before the conclusion, as being the foundation to the superstructure. Truly, I apprehend, that this word abdicated' was part of the conclusion, and not of the premises; the Vote runs thus, That by breaking the Original Contract, having endeavoured to subvert the constitution of the kingdom, and having withdrawn himself out of the kingdom, he has abdicated the government, and the throne is thereby vacant.-I take it to be (as session of the throne; and, now I find, I cannot make laws without the consent of the lords and representatives of the commous 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 wili 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 expressed 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 thereby declared his will to renounce the government: he hath, by these acts mentioned, manifestly declared, that he say) part of the conclusion, the other part will not govern according to the laws made; being joined by a copulative; therefore that may, he cannot so do; for he is under a strict which is but the other part of the conclusion, obligation, (yea the strictest) and superior to is not to be inferred from the other part of the that of the original compact between king premises. But take it to be (as you say,) That and people, to act contrary to the laws, or to the Vacancy of the Throne is another distinct suspend them.-By the law, he is to administer conclusion from all that preceded, as the prejustice, and to execute his office according to mises, and therefore it is to be considered fast. the tenour of those laws; and the Coronation I would then beg the favour of you, gentlemen Oath obligeth him likewise to consent to such of the house of commons, to answer me one laws as the people shall chuse but, on the question about this point of Abdication: Whecontrary, by that unfortunate persuasion (in ther you mean by Abdication, a renouncing point of Religion) that he hath embraced, he for himself, or for himself and his heirs?--If is obliged to suspend the laws that defend the you mean only Abdication for himself, it will established religion, and to treat it, as it has have a different influence upon the debate and been (as we well know) called, as the North-resolution of the case, as to the meaning of 'ern Heresy; and, under pain of damnation, that you call the conclusion; for then, How to extirpate it and in order to it, did sap can the Throne be vacant?-But if it be meant and repeal all the legal fences of it, without for himself and his heirs, then I apprehend it consent of parliament. What the endea- is no more than what you say at the end, vours and practices of that kind have beenThat the Throne is indeed vacant;' and then in the last reign, I suppose, we are not now to be told of, or instructed in; and if (as is very plain) this doth amount to a manifest declaration of his will, no longer to retain the exercise of his kingly office, thus limited, thus restrained, then in common sense, as well as legal acceptations he has sufficiently declared his renouncing of the very office. As for his departure out of the kingdom, it is not material, whether it was voluntary or involuntary; but it is sufficient, that his acting declares, quo animo, he went away; he no longer could pursue what he designed; and the contrary of which he was so strongly obliged unto by the duty of his office and relation, and the obligation of the Original Contract, as likewise his own Coronation-Oath; and then he desires no longer to be here.-So that taking both these things together, that he will not; nay, he cannot (as thus persuaded in point of ReliVOL. V. this Abdication cannot be part of the premises, but must be the same thing with, or part of the conclusion. I will not undertake to dispute, Whether a king of England may, or may not renounce his kingdom. For my own part, I think he can, and I may go so far in agreement with those that have spoken to this point, to yield that he may do it by implicit acts, contrary to the kingly office. For a king to say, he will not govern according to law; and for a king to act wholly contrary to law; and do that which would subvert the constitution, is (I think) the same thing.-But then I must say also, That I think there is a difference between saying so, and doing something inconsistent with what the laws require; for every deviation from the law is a kind of breach of the fundamental laws: for I know no law, as laws, but what are fundamental constitutions; as the laws are necessary, so far as to support the G foundation. But if every transgression, or violation, of the law, by the prince's connivance or command, were such a breach of the fundamental laws, as would infer an Abdication, then were it in vain to call any of his ministers or officers to account for any such action. Then the action is the king's, and not theirs; and then adieu to the maxim of a king's not doing wrong and we may have recourse to that other respondent superior, as more effectual satisfaction.-I take this matter to be so plain, as to the distinction that I have mentioned, that nothing can be more and it has been thought so essentially necessary to have it clear and manifest, that those two great instances of Edward 2 and Richard 2 were express solemn renunciations, and those confirmed in parliament by the lords and commons, by the act of deposing them. Therefore I cannot infer from the facts enumerated in the Vote, That this should be an abdication for himself and his heirs.-But therefore, because in this first point it is disputable what is meant by a word not of known signification in the law, it might, I think, do well to consider, what is to be inferred from it: and therefore all I have now said is only to this purpose, that either both make one conclusion, or else the latter cannot be inferred from the former. Sir George Treby. I beg leave to say something to what this noble lord has last spoke unto: when I called this point of the Vacancy of the Throne a conclusion, I did not mean altogether to exclude abdication from being a conclusion from the particulars enumerated before; for, indeed it is in the nature of a double conclusion: one, from the particular facts mentioned, that thereby king James has abdicated the government. The other, from the abdication, that thereby the Throne is vacant:' by the instanced acts, he hath abdicated the government; and by his abdicating the government, the Throne is vacant.' As to the rest of that which his lordship is pleased to say, I perceive he does (as he must) agree with me, that a king may renounce by acts, as well as words, or writings. But then I would add, and agree with his lordship also, That God forbid, every violation of the law, or deviation from it, should be reckoned an abdication of the government. I desire to deliver myself from the imputation of any such absurd conceit. When a king breaks the law in some few particular instances, it may be sufficient to take an account of it from those evil ministers that were instrumental in it, why such a thing was done, which was against the laws? Why such a law was not executed by them, whose duty it was to see it put in execution? You may, in ordinary cases of breaking the law, have remedy in the ordinary courts and course of justice.-But sure! he does not take this to be such a case, or these to be ordinary violations of the law and therefore in extraordinary cases, the extraordinary remedy is to be recurred unto; for the king having a limited authority, by which he was obliged to keep the laws made, as to the exe- The Earl of Rochester. The lords have given their Reasons why they altered the word abdicated;' because it is a word not known to the common law, and of doubtful signification : therefore it would be well if the commons would please to express their own meaning by it. I believe my lords would be induced to agree, that the king hath abdicated, that is, renounced the government for himself, if you mean no farther than that; and if you do so, why should you not be pleased to explain yourselves, that every one may know how the matter stands, and to preserve a good correspondence between both houses, in such a juncture and conjunction as this. But if you do mean any thing more by it than Abdications for himself only, though their lordships should agree to the using of the word abdicated; yet this would prove a greater argument against their agreeing in the other point, about the Vacancy of the Throne: therefore we would be glad to have you explain yourselves what you mean by it. Then there was a little pause. Mr. Hampden. If the lords have nothing further to offer upon this point, it will be fit for |