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Sir Robert Howard. My lords; the proceeding and expressions of the house of commons in this Vote are fully warranted by the precedent that hath been cited, and are such as wherein there has been no interruption of the government according to the constitution.The late king hath by your lordships concession," done all those things, which amount to an 'abdication' of the government, and the throne's being thereby vacant': and had your lordships concurred with us, the kingdom had long ere this been settled, and every body had peaceably followed their own business. Nay, had your lordships been pleased to express yourselves clearly, and not had a mind to speak ambiguously of it, we had saved all this trouble and been at an end of disputing. Truly, my lords, this Record that hath been mentioned of Henry 4 I will not say is not a precedent of election, for the archbishop stood up and looked round on all sides, and asked the lords and commons, whether they would have him to be king; and they asserted, (as the words of the Roll are) that he should reign over them. And so it is done at every coronation.-As to his Claim, they did not so much mind that, for they knew that he claimed by descent and inheritance, when there was a known person that had a title before him.-For, that which a noble lord spoke of touching the public Acts that have been done since the king left us, I may very well say, we think them legally done; and we do not doubt but that power which brought in another Line then, upon the vacancy of the throne by the lesion of Rd. 2, is still, according to the constitution, residing in the lords and commons, and is legally sufficient to supply the vacancy that now is.-That noble lord indeed said, that your lordships might not only, with the commons, advise the Prince of Orange to take upon him the administration, and join with us in the other things; but that you might have done it of yourselves, as being, in the absence of the king, the great council of the nation. My lords, I shall not say much to that point, your lordships honours and privileges are great, and your councils very worthy of all reverence and respect. But I would ask this question of any noble lord that is here, Whether had there been an heir, to whom the crown had quietly descended in the line of succession, and this heir certainly known, your lordships would have assembled without his calling, or would have either administred the government yourselves, or advised the Prince of Orange to have taken it upon him? I doubt you have been (pardon me for saying it) all guilty of high treason, by the laws of England, if a known successor were in possession of the throne, as he must be if the throne were not vacant.'-From thence, my lords, your lordships see where the difficulty lies in this matter and whence it ariseth, because you would not agree the throne to be vacant,' when we know of none that possess it.We know some such thing hath been pretended to as an heir male, of which there are different opinions, and in

word to that Record which Mr. Somers mentioned, and which the lord that spoke last hath given a plain answer unto, by making that difference (which is the great hinge of the matter in debate) between hereditary and elective kingdoms. But I have something else to say to that Record. First, It is plain in that case king Rd. 2 had absolutely resigned, renounced, or (call it what you please) abdicated' in writing under his own hand. What is done then? After that, the parliament being then sitting, they did not think it sufficient to go upon, because that Writing might be the effect of fear, and so, not voluntary; thereupon they proceed to a formal deposition upon Articles, and then comes in the claim of Hen. 4. After all this, was not this an election? He indeed saith, that he was the next heir, and claimed it by descent from Henry 3; yet he that was really the next heir did not appear, which was the earl of March; so that Henry 4 claimed it as his indubitable right, being the next heir that then appeared.-But, gentlemen, I pray consider what followed upon it; all the kings that were thus taken in (we say elected, but the election was not of God's approbation) scarce passed any one year in any of their reigns, without being disturbed in the possession. Yet, I say, he himself did not care to owe the crown to the election, but claimed it as his right. And it was a plausible pretence, and kept him and his son (though not without interruption) upon the throne. But in the time of his grandson Henry 6 there was an utter overthrow of all his title and possession too: for if you look into the Parliament Roll. 1 Edward 4, the proceedings against king Rd. 2, as well as the rest of the acts during the Usurpation (as that Record rightly calls it) are annulled, repealed, revoked, reversed, and all the words imaginable used and put in, to set those proceedings aside as illegal, unjust and unrighteous. And, pray what was the reason? That Act deduceth down the pedigree of the royal line, from Henry 3 to Rd. 2, who died without issue, and then Henry 4, (saith the Act) usurped; but that the earl of March, upon the death of Rd. 2, and consequently Edward 4 from him, was undoubted king by conscience, by nature, by custom, and by law. The Record is to be seen at length, as well as that 1 Hen. 4; and being a latter act, is of more authority. And after all this, (I pray Consider it well) the right Line is restored, and the Usurpation condemned and repealed. Besides, gentlemen, I hope you will take into your consideration, what will become of the Kingdom of Scotland if they should differ from us in this point, and go another way to work; then will that be a divided kingdom from ours again. You cannot but remember how much trouble it always gave our ancestors, while it continued a divided kingdom; and if we should go out of the Line, and invert the Succession in any point at all, I fear you will find a disagreement there, and then very dangerous consequences may ensue.

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the mean time we are without a government; I point of the Succession will, without all question, in the same method, and at the same time, he surely provided for.-But, my lords, you will do well to consider: have not you yourselves already limited the very Succession, and cut off some that might have a lineal right? Have you not concurred with us in our Vote, That it is inconsistent with our religion and our laws to have a Papist to reign over us? Must we not come then to an election, if the next heir be a Papist? Nay, suppose there were no Protestant heir at all to be found, would not your lordships then break the line?—But your lordships Vote is inconsistent; you do suppose a case of the greatest consequence that can be, may happen; and if that should happen to be our case, that the whole Protestant line should fail, would not that necessitate an election, or else we must submit to that which were inconsistent with our Religion and our Laws?—If your lordships then, in such a case, must break through the Succession, I think the nation has reason to expect you should take care to supply the present defect, where the Succession is uncertain.—My lords, if this should not be agreed unto, what will be the consequence? We that used, and justly, to boast of living under the best of governments, must be left without any one; for, your lordships, it seems, cannot agree with us to supply and fill up this gap in it, or tell us who is the Successor and we must not do it ourselves by election; which is the only way left us to provide for our settlement.-Truly, my lords, upon the whole, I cannot tell what condition we shall be in, or what we can do farther; but we must even part, and break up in confusion, and so leave the nation to extricate itself, as well as it can, out of this distraction. But then, at whose door that will lie, I must leave to your lordships own thoughts.

and must we stay till the truth of the matter be found out? What shall we do to preserve our constitution, while we are without a safe or legal Authority to act under the same, according to that constitution; and in a little time it will, perhaps, through the distraction of our constitution, be utterly irremediable? -I do not deny, but that your lordships have very great hardships to conflict with in such a case; but who is the occasion of them?-We all do know the monarchy is hereditary; but how, or what shall we do to find out the successor in the right line?--You think it will be a difficult thing to go upon the examination who is heir; perhaps it will be more difficult to resolve in this case, than it might be in another: For, though heretofore there have been 'abdications' and ' vacancies,' it has been where the king has been of the same Religion of the established worship of the nation; and amongst those that pretended to the succession, the several Claimers have been persons born and bred up in that Religion that was established by law; or it may be there hath been a child in the womb, at the time of the vacancy.-But then, my lords, there would not be much difficulty to examine, who should inherit, or what were fit to be done. I confess, I say, there are difficulties of all sides, or else your lordships sure would have spoke out before now: and if you had been clear in it yourselves, you would have let the commons and the world have known it. But it not being clear, must we always remain thus? Use what words you will, fill up, nominate,' or 6 elect,' it is the thing we are to take care of, and it is high time it were done.—My lords, there is no such consequence to be drawn from this vote, as an intention or a likelihood of altering the course of the government, so as to make it elective; the throne hath all along descended, in an hereditary succession; the main constitution hath been preserved. The precedent of Henry iv. is not like that of elections in other countries; and I am sorry there should be any occasion for what is necessary to be done now. But when such difficulties are upon the nation, that we cannot extricate ourselves out of, by fixing who is the lineal successor, your lordships, I hope, will give us leave to remember salus populi est suprema lex.'-And if neither you nor we can do any thing in this case, then we, who are met under the notion of an assembly or convention of the states, have met to no purpose; for after we have voted ourselves to be without a government, (which looks as if something were really intended as to a Settlement) all presently sinks, and we are as much in the dark as we were before.—And, my lords, I pray give me leave to say one thing more: your lordships say, you will never make a precedent of Election, or take upon you to alter the Succession.-With your lordships favour, the settlement of the constitution is the main thing we are to look after. If you provide for the supply of the defect there, that VUL. V.



The Earl of Pembroke. We have indeed passed such a Vote, as that gentlemen says, against a Popish prince's reigning over us; but I should think that amounts to no more than a resolution, that by a law to be made we will take care of it in parliament: therefore I think that which we aim at, and that which the constitution of our government does require, is, to put things in a legal method : and, in order to it, I would have the legal Successor declared and proclaimed, and then a parliament summoned in that prince's name; and the whole matter settled there.-An act made by a king de facto, is void as to a king de jure; therefore I would have the constitu tion preserved, and would desire, that all that is done in this matter may be again done in parliament.

The Earl of Clarendon. Sir Robert Howard

was pleased to say, That by the same method that the throne now should be filled, by the same the successor should be declared, and the right line settled.' Is not that declaring the crown to be elective? Suppose you say nothing but fill the throne, is it not to take away the right line of inheritance? And will not such a H

world to insist, that your lordships should agree with us, that the throne is vacant, or we shall not be able to move one step farther towards a settlement.

Successor claim it for his posterity? Truly, I think, if the right line be declared in the same way that the Successor is, then we take upon us to dispose of the inheritance of the crown absolutely; which, I think, by all the law I ever read or could hear of among us, is out of our power; and, that neither house, nor both houses together, have power to do any thing relating to the Succession, but by act of parliament; which the two houses by themselves cannot make.

Sir Thomas Lee. My lords; so much has been said in this matter already, that very little is to be added. But give me leave to say unto your lordships, That those amendments your lordships have made to the commons Vote are not agreeing with your other Votes, nor any of the acts done since the Abdication. Had it been in the common, ordinary case of a vacancy by the king's death, your lordships in December last would sure have let us known as much but it is plain you were sensible we were without a government, by your desiring the prince to take the administration, and to issue out his letters for this convention.--But, my lords, I would ask this question, Whether upon the Original Contract there were not a power preserved in the nation, to provide for itself in such exigencies?—That contract was to settle the constitution as to the legislature, which a noble lord in the beginning spoke of; so we take it to be: and it is true, that it is a part of the contract, the making of laws, and that those laws should oblige all sides when made; but yet so as not to exclude this ori ginal constitution in all governments that commence by compact, that there should be a power in the states to make provision in all times, and upon all occasions, for extraordinary cases and necessities, such as ours now is.I say nothing now as to the hereditary succes sion; our government has been always taken to be hereditary, and so declared when there has been occasion to make provision otherwise than in the direct line.-But our matter is singly upon a point of fact, Whether the throne be vacant (as the commons say it is) by the Abdication of king James -The present vacancy is nearest that of Richard ii. of any that we meet with in our records; and the phrase being there used, we insist upon it as very proper. And when that is agreed unto, the house will, no doubt, declare their minds in another consequential question that shall arise in a proper way. But this is all we can speak to now.

Sir R. Temple. I think we are now going too far in this matter; the question before us is only, Whether there be a vacancy in the throne? After we have done with that, I do not see how this will preclude the consideration of any claim to the succesion.-Your lordships say, You are under great difficulties upon this subject. But, my lords, till you have declared the throne vacant, I must presume to say, I do not see how it is possible for any of us to make one step towards a Settlement.If there be any claims to the crown, that consideration will be next, and how to determine them: I conceive we are in the same capacity as our predecessors were, to provide for all exigencies as shall emerge, and for the supplying all defects in the government.-It is true, by the acts of queen Elizabeth and king James i. we have the Oaths of Supremacy and Allegiance that are to be, and have been taken by all persons. But, my lords, there is an old Oath of Fidelity, that useth to be required in Lects, and that by the ancient law of England every man ought to take who is sixteen years of age; and this was as much obliging to the king, his heirs and successors, as any of those later Oaths are; for they seem only to be made to exclude foreign authorities, and not to infer any new obedience or subjection: therefore I am only saying, we are in as natural a capacity as any of our predecessors were, to provide for a remedy in such exigencies as this.-I do not intend to trouble your lordships any farther than the words of the Vote lead me. If the throne were full, what do we here; nay, how came we hither? I would fain know, Whether all that is mentioned in one of our reasons of the Administration being committed to the prince, and those other Sir George Treby. To discourse, whether acts, do not all imply, at least, that we are in the crown of England would by this means such a case as wherein the Throne is vacant? become elective, is altogether unnecessary; otherwise, if it had been full, I appeal to any and, I think, your lordships have given no reaone, Whether we could have assembled or sons that are sufficient to make the objection acted in any other name, or by any other au- out, neither any answers to the commons reathority, than his that filled it? Then do not sons for their vote. It seems to me an odd all these things declare, that there is a va- way of reasoning, first to mistake the meaning, cancy?-My lords, I have done, having said and then give reasons against that mistaken this, that it is a subsequent consideration, how meaning. The question is only here, Whether the throne shall be filled, and all the particu- we can make good this Proposition, That the Jars that relate to it remain entire, after this throne is vacant by the Abdication of the late resolution takeu.-But, I think, we are at pre-king?--I confess, it is a melancholy thing to sent to go no farther. No man, I hope, thinks discourse of the miscarriages of governments, there is a just ground for any apprehension of but it is much more afflictive to talk of unan intention to change the government; I am hinging all the monarchy, by a breach upon sure there is no ground for any such apprehen- the direct line of the Succession; as, if the sion: so that we have all the reason in the crown of England did actually descend to


Lewis the fourteenth, it would not be in the power of the states of this kingdom to devolve it upon another head.-A noble lord put an instance of two men in one room, one of whom was really such a one: but though a stander-by could not directly tell which was he, yet it could not be said by him, that such a one was not there. But, if you please, I will put this case-Suppose there were two men in one room, that no one alive could tell which was which; as suppose this to be the case of the two children of Edward 2, that they had been kept close prisoners by their uncle Richard 3, so long, that there were no living witnesses able to tell which was the eldest of the two, that would occasion a difficulty much as intricate as ours here. One of them must be eldest, but by reason of the uncertainty, must not an election be made of them? And could any thing else do but an election? But, I say, the proper single question here is, Whether we have well affirmed upon the premises that are mentioned in the former part of the vote, that he has abdicated, and that the throne is thereby vacant.-Your lordships in part agree; for you say, he has deserted the government; then you say, he is not in it.' And it is as much as to say, he has left the kingdom destitute of a government ? Now if there be any sense in which our proposition is true, will you deny the whole proposition, because it may be taken in a sense that is dubious and uncertain, as to the consequences? You cannot say the throne is full: if then there be a doubt with you, to be sure it is not like to be evident to us, especially in this case, considering who your lordships are. You are the persons that usually are, or ought to be present at the delivery of our queens, and the proper witnesses to the birth of our princes. If then your lordships had known who was on the throne, we should certainly have heard his name from you, and that had been the best reason against the vacancy that could have been given. My lords, we say no more than our ancestors have said before us, as you see by the Parliament-Roll, 1 Hen. 4, and I must maintain the record to this purpose, that the government is vacant, and it is there declared, as it is expressed in our vote: so that we have not invented or coined a word for our turn, neither is the notion new, it is a word that has been used before in a case as near this as any can be. But it is objected, That that should be no precedent, because of what followed upon that vacancy of the throne. I desire that your lordships would read the Record. The next thing there, is, Hen. 4 cometh himself, and says, he claimed the crown as descended from Hen. 3, and the lords and commons assented. It is true, the archbishop did propose him (as was usual at coronations) and he did there actually ask them, Whether they did chuse him for their king? They agreed to it, and the archbishop makes a discourse upon the virtues of a man to govern the nation better than a child; and then he is

placed on the throne. And this I take to be a proper, plain, applicable precedent in our case. -But that noble lord's objection strikes at the very heart of it, if the objection be rightly made, that all these proceedings, and so consequently the words and phrases there used, are all repealed, 1 Edw. 4. My lords, it is very well known, and readily agreed by us, that Edw. 4 came in, in disaffirmance of the title of the house of Lancaster-As those times went, whenever there was any turn in government, (as there were several) there were new and contrary declarations about the title to the crown made constantly in parliament; and what one parliament had settled, another undid. But then this advantage we have on our side, that as we have this first precedent for us, so we have the last; for I need go no farther, than the Parliament-roll of 1 Hen. 7 12. 16. where the Record is set right again.The act for deposing Richard 2 is indeed by 1 Edw. 4 repealed, and saith, that Henry 4 usurped the crown, and murdered Richard 2; and thereupon it proceeds to attaint Henry 6. But then comes in Henry 7; and 1 Henry 7 there is an act made, that sets aside all the acts and attainders made against his line, and consequently repealed 1 Edw. 4 which repealed 1 Hen. 4-And I would observe one thing, by the way, concerning Henry 7. He was of the line of Lancaster, and when he came to the crown, would not endure to have his crown reckoned only matrimonial, or suffer the stile to go in the names of Henry and Elizabeth, as he must have done if he had stuck to the title of the right line of succession; no, he always stood up for his own title, though he had the heiress of the house of York in his bosom.-Therefore, my lords, his act for restoring the Record of 1 Henry 4 again, is as good an authority as it was before, and somewhat better; for it hath the last act on its side, which is unrepealed to this day. Henry 7 had a good right and title by marriage to the crown, in re uxoris. No one can question but his own title, as descended from Henry 4 was an usurpation; and he would not suffer any one to prescribe which title was best, as long as it was acknowledged he had one good one. That this kingdom is hereditary, we are not to prove by precedent in the list of our kings and queens; for we shall scarce find above three in any direct line, without some interruption: and therefore we are not to fetch our precedents or proofs, so far as those days. And this I speak for the reason which was hinted before. The laws made are certainly part of the Original Contract; and by the laws made, which establish the oath of allegiance and supremacy, we are tied up to keep in the hereditary line, being sworn to be true and faithful to the king, his heirs and successors; whereas the old oath was, only to bear true allegiance to the king. There (I take it) lies the reason why we cannot (of ourselves) without breaking that contract, break the succession, which is settled by law, and cannot be

altered but by another, which we ourselves cannot make.

Sir George Treby. Your lordship is pleased to say, Hen. 7's title by descent was an usurpation. I think it is pretty hard to determine what title he did govern by, since, though his wife was the lineal heir, yet she had no part, or so much as a name in the administration. And if it were too great an issue to be tried then, it will be harder to do it now. And it has been said, it was his mother's council to him, not to declare particularly upon what foot his title stood.-But, my lords, if we should allow none for acts of parliament but those that were made in the reigns of hereditary kings, and in the right line, I doubt we should want the greatest part of those laws that compose the volume of Statute Books, and the Records by which we enjoy a great part of our inheritances and possessions.

Mr. Serj. Maynard. If we look but into the law of nature (that is above all human laws) we have enough to justify us in what we are now a doing, to provide for ourselves and the public weal in such an exigency as this.

Sir Rd. Temple. If laws made about the succession be so obliging, what then shall we say to the succession of queen Elizabeth, who had an act of parliament (to the keeping of which an oath was required) against both her and her sister.

The Earl of Pembroke. But to shew what opinion she herself and the wise men of her times had, and were of, in this point, there is an act made in her reign, and yet in being, which declares it to be a præmunire to affirm, the parliament cannot settle the succession of the crown, or alter it. Entails in parliament have been of the crown, both ancient and modern, yet the authority of another subsequent act has prevailed against such an entail so that it should be done, I say, in parliament.

Sir Rd. Temple. I think we are in as full a capacity to take care of the government as any of our predecessors, in such an exigence; and if we do as they have done before us, that is not to be called a changing of the monarchy from an hereditary to an elective.

The Earl of Nottingham. After this long debate, pray let us endeavour to come as near as we can to an agreement: we have proposed some questions about which my lords desired to be satisfied: you, gentlemen, have not been pleased to give an answer to them, and we have no great hopes of getting one from you, as this debate seems to be managed.-On your part you have declared, that you do acknowJedge the monarchy is hereditary and successive in the right line; then I cannot see how such an acknowledgment consists with the reasons you give for your vacancy; for I cannot imagine how a kingdom can be an hereditary kingdom, and that king who hath children now in being (at the time of his forsaking the government) can have the throne vacant both of him and his children.-The course of inhe


ritance, as to the crown of England, is, by our law, a great deal better provided for, and runs stronger in the right line of birth than of any other inheritance. No attainder of the heir of the crown will bar the succession to the throne, as it doth the descent to any common person. The very descent, by order of birth, will take away any such defect.-And so was the opinion of the great lawyers of England, in the case of Hen. 7th. Then cannot I apprehend how any act of the father's can bar the right of the child; (I do not mean that an act of parliament cannot do it) I never said so, nor thought so; but, I say, no act of the father's alone can do it, since even the act of the son, which may endanger an attainder in him, cannot do it, so careful is the law of the royal line of succession. This is declared by many acts of parliament, and very fully and particularly by that statute 25th Henry 8. cap. 22. entitled, An Act concerning the King's Succession;' where the succession of the crown is limited to the king's issue male first, then female, and the heirs of their bodies one after another, by course of inheritance, according to their ages, as the crown of England hath been accustomed and ought to go in such cases.If then the king hath done any thing to divest himself of his own right, it doth not follow thence, that that shall exclude the right of his issue; and then the throne is not vacant, as long as there are any such issue; for no act of the father can vacate for himself and children. Therefore if you mean no more than only the divesting his own right, I desire you would declare so: and then suppose the right gone as to him, yet if it descend to his lineal successor, it is not vacant. And I told you, one reason my lords did stand upon, against agreeing to the vacancy, was, because they thought your vote might extend a great deal farther than the king's own person.-But your all owning it to be a lineal inheritance, and this vacancy, methinks, do not by any means consist. You declare, you never meant to alter the constitution; then you must preserve the succession in its ancient course: so I did hear a worthy gentleman conclude it to be your intention to do. But by what methods can it be done in this case by us? I desire to be satisfied in a few things about this very matter.-I desire first to know, whether the lords and commons have power by themselves to make a binding act or law? and then I desire to know, whether, according to our ancient legal constitution, every king of England, by being seated on the throne, and possessed of the crown, is not thereby king, to him and his heirs? And without an act of parliament, (which we alone cannot make) I know not what determination we can make of his estate.-It has been urged, indeed, that we have in effect already agreed to what is contained in this vote, by voting, that it is inconsistent with our religion and laws, to have a Popish prince to rule over us. But I would fain know, whether they that urge this, think that the crown of Spain is legally and actually

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