us to go on to the other Amendment made by the lords to our Vote.

No lord offering to speak, the commons proceeded to the second Amendment.

given an answer to what the commons said in their first Reason; that they may very well conclude from their own Vote, as to what your lordships have therein agreed to, that the Mr. Sacheverel My lords; your lordships Throne is vacant, as to king James 2; desecond Amendment to the commons Vote, (to serting the government, and deserting the wit, to leave out the words, and that the throne, being, in true construction, the same. Throne is thereby vacant,') the house of com- Instead of answering this Reason, your lordships mons cannot agree with your lordships to that come and apply it here, only to a bare giving Amendment; and they do conceive they have over the exercise of the government by king many and great reasons why they should not James: and pray, my lords, let us consider where do it. But, my lords, they very much wonder we are. If the case be so, then king James 2, how it comes here to be laid upon them (as it who has only left the exercise, continues in the seems to be, by one of your lordships Reasons) office, and is king still; and then all the acts that they, by using those words of Abdication that we have done in this Coavention, are and Vacancy, signify an intention of making wholly (as we conceive) not justifiable; you an alteration of the constitution of the govern-are in no place or station to relieve yourselves, ment. I would not misrepresent your lordships words, or misrepresent your meaning: but you are pleased to say, that you cannot agree to such an Abdication or Vacancy, as that the crown should thereby become elective: as if the commons had thoughts of making the kingdom elective, when no such thing was either meant by them, or can be deducted from their words. But, my lords, one Reason why they differ from you is, they think (upon the nature of your proceedings) they are in the right, to insist upon their Vote, as they sent it up to your lordships: and they conceive, as to all the Reasons your lordships have been pleased to give them for your Alterations, not one of them hath so much argument in them, as they might well expect. The commons Reason for their disagreeing to this Amendment was, because they conceive (that, as they may well infer) from so much of their own Vote, as your lordships have agreed unto, That king James 2 hath abdicated' the government; and that the Throne is thereby vacant: so if they should admit your lordships Amendments, that he hath only deserted the government, yet, even thence would follow, 'It is vacant as to king James 2 deserting the government, being, in true construction, deserting the throne.'-Now, to this they do desire, that your lordships will consider and see, whether you give any answer to this reason, or rather, whether you do not leave the matter still in the dark; and (in truth) leave the nation in a perpetual state of war. Your lordships answer to that, that although you have agreed, that the king has deserted the government, and therefore you have made application to the prince of Orange, to take upon him the administration of the government, and thereby provide for the safety and peace of the kingdom; yet there can be no inference drawn from thence, but only that the exercise of the government by king James 2 was ceased: so, as that 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 Vacancy in the Throne, as that the crown thereby became elective; to which they cannot agree. I desire now to know of your lordships, what part of this Reason hath

or nation, in this exigence; unless you will think of setting up another Regency by your own authority, without his consent; which, I conceive, by the laws of England, you cannot do.-What then follows upon all we have done? We have drawn the nation into a snare, by the steps we have taken; and leave all in such an intricacy, as we have no power by law, to deliver them out of; nor can we answer for what we have done, unless the king should die, and that would leave the Succession uncertain. My lords, I only apply myself, to consider the Reasons of your lordships, for insisting upon this second Amendment; because, I conceive, your lordships have therein given no answer to the Reason first given by the commons, why they cannot agree to your lordships Amendment.

Mr. Pollerfen. My lords; your own Reasons (under favour) do shew, that your lordships do intend, that the king is still in the government: this, I think, is most apparent out of your own Reasons. For, when you have declared, that the king hath deserted' the government, and then say, no inference can be drawn thence, but only that the exercise of the government by king James 2 was ceased; then you do thereby still say, that king James 2 is in the government; for if only the exercise be ceased, the right doth still remain : then I am sure we have no reason to agree with their lordships in that point.-Next, my lords, truly we cannot see how this thing that you would have can be inferred from your own Vote, that only the exercise of the government by king James is ceased; since you do not say that he deserted the exercise of the government. And if your lordships had any purpose to express your meaning by a public Vote, that only the exercise ceased, surely your lordships would have put in the word Exercise' there: but when in your Vote you say the government was deserted,' you cannot mean only the exercise of it.-And that is the first Reason that the commons give your lordships, why we cannot by any means admit of your lordships Amendment, because Throne and Government are in true construction the same; but the Exercise of the Government only (as you express it) and the Government itself (if your

government which (we say) he hath himself given away by Abdication.' And if king James be our king still, we cannot by any means agree to the keeping of him out of the kingdom; for if it be his right to be king still, God forbid but that he should enjoy it, and be admitted to the exercise of it again.-Then, my lords, for the Conclusion that your lordships have added to your Reason, (as making it from the very words of your Vote,) That it would infer such a vacancy in the throne, as that the crown should thereby become elective; this, we conceive, is a conclusion, that bath no premises cither from our actions, or our sayings, or our votes, or any thing else in this case; nay, it is quite varying from all the premises. But, when such a conclusion can be shewn to follow from them, then it will be time enough for us to give our Answer to it.-But, my lords, this is that we do insist upon; that if the right of kingship be still (after all that is agreed on both hands) due to him, we cannot in justice agree to keep him from it.

And if

Reason conclude right) are not the same: and we are to reason from the words expressed in the Vote. Next, my lords, we say, it cannot be inferred from the words, as they rest in your lordships Vote, that only the exercise of the government, as to king James II. did cease. For if we read that part about deserting the government, with the rest of the particulars that go before, his endeavouring to subvert the constitution of the kingdom, breaking the Original Contract, violating the fundamental laws, and withdrawing himself out of the kingdom; then can any man of understanding think that this deserting of the government can be any thing else, but somewhat that is agreeable to all those precedent acts, which are not a ceasing of the exercise of the government only, but a destruction of the government itself? But besides, my lords, under favour, the administration or exercise of the kingly government is in construction and consideration of law all one and the same: and, I think, nobody that would reason aright from thence can say there is any distinction between go-it be not his due right, but by these acts, his vernment and the exercise of the government; subversion of the constitution, his breaking the for whosoever takes from the king the exercise Original Contract, and violation of the funof the government, takes from the king his damental laws, he hath abdicated it (as we say,) kingship; for the power and the exercise of and this Abdication hath put him by his right, the power are so joined that they cannot be and so his right is gone from him (as we consevered. And the terms themselves (taking ceive it is); then, I think, we may lawfully go them as the law of England, which we are to on to settle the peace and welfare of the argue from in this case, teacheth them) are so nation.-But the right to be still in him, to co-incident, that they cannot either subsist have a regency upon him without his own without consisting together: if a man grant to consent, or till his return, we take it to be a another the government of such a place, this strange and unpracticable thing, and would imports the exercise of the government there, be introductive of a new principle of governto be granted thereby. As if the Islands be- ment amongst us. It would be setting up a longing to this crown and dominion of England, Commonwealth instead of our ancient regulated (as the Plantations abroad) if the king grants government, by a limited monarchy; then, I to any one the government of Jamaica, or the am sure, we should be justly blamed: and like, sure no one will say, that that is not a therefore we can by no means submit to your grant of the exercise of the government there. lordships Alterations of our Vote, upon any of So that wherever a government is granted, the the grounds and reasons that have as yet been exercise of that government is meant and in- offered. cluded, and therefore the supposed distinction The Earl of Clarendon. As to what Mr. may be something indeed, if they be only no- Pollexfen hath offered, I desire to observe a tionally considered; but it is a notion alto-word or two, and that is from the commons gether disagreeing to the laws of England. When your lordships say in your Reasons, That the exercise of the government as to King James 2 is ceased, which is as far as you can go in this point, the commons can by no means agree to this Reason; for by the words so used (the exercise ceased) we apprehend, that you mean the kingship continueth still in him, and that only the exercise is gone.-And if it be so, and it be utterly unlawful, and as great a crime (as what law saith it is not?) to take away from the king the exercise of the government, as to take from him the government; then it may do well for your lordships to consider, whether you are not guilty of the same crime and thing which you would decline by your Amendment.-The commons therefore cannot admit, that there should be a taking away of the exercise of the government from the king, any more than the taking away the

second Reason, for their disagreeing to their lordships Amendments. You say there, That the commons do conceive they need not prove to your lordships, that as to any other person besides king James, the throne is also vacant : doth not this shew, that the meaning of the vacancy is a vacancy throughout, as well as with respect to king James? I ask your pardon if I do not declare my own opinion about the vacancy as to him; but all that I mention this for, is to know your meaning in this point, how far the vacancy is to extend. You said before, That he had abdicated the government, and thereby the throne was vacant. How is it vacant? Is it only as to king James, or is it as to him and all or any of his posterity, or any of those that are in 'the remainder in the royal line in succession? If it be as to them too, then it must necessarily follow, that the kingdom must thereby become elective still, or the go

vernment be changed into a Commonwealth; neither of which, we hope, the commons intend by it. And therefore that made me ask before, what a grave and learned gentleman meant, when he said it should not be perpetually elective.

Mr. Serj. Maynard. I am sure, if we be left without a government, as we find we are, (why else bave we desired the Prince to take upon him the administration?) sure we must not be perpetually under anarchy: the word 'elective' is none of the Commons word; neither is the making the kingdom elective the thing they had in their thoughts or intentions: all they mean by this matter, is to provide a Supply for this defect in the government brought upon it by the late king's male-administration. And I do say again, this provision must be made; and if it be, that would not make the kingdom perpetually elective. I stand not upon any word, but am for the thing, that a provision be made to supply the defect.

Mr. Pollexfen. Do your lordships agree, that the Throne is vacant as to king James II. ? If so, or if you will say it is full of any body else, and will name whom it is full of, it will then be time for the commons to tell what to say to it. If your lordships will please to shew that, we will go on to give it an Answer.

The Earl of Clarendon. Your own words in your second Reason are, That you need not prove to us, that as to any other person the throne is also vacant: then how should we name who it is full of? Admit for discourse sake, but we do not grant it, for my part I do not; I say, taking it to be vacant as to king James 2, then you ask us, who it should be supplied by? Must it not be supplied by those that should have come if he were dead?-For, I pray consider, I take this government by all our laws to be an hereditary monarchy, and is to go in succession by inheritance, in the royal line; if then you say this government is vacant, that would be be to put all those by that should take the succession, and that will make the kingdom elective for that time. You say, the throne is vacant; then I may very well ask, who hath the right of filling up that vacancy? We say, there is no vacancy; if there is, pray is there any body that hath the right of filling it up?

Mr. Serj. Maynard. That is not the question before us, yet that will come properly in debate when we are agreed upon the Vacancy. -The noble lord says, It is by our law an hereditary monarchy. I grant it; but though it should in an ordinary way to descend to the heir, yet as our case is, we have a maxim in law, as certain as any other, which stops the course; for no man can pretend to be king James's heir while he is living: Nemo est hæres viventis.'

The Earl of Pembroke. To that point I think my lord Clarendon gave an answer, That it should go to the next in the line that were to take it, if the king were dead?. For as we should be understood, we should make it a case

of demise of our kings, as our law calls it; that is, the king is dead in law by this Abdication or Desertion of the government, and that the next heir is to take by descent.-You, gentlemen, ask us who the throne is full of? I think it is sufficient to know that there are heirs who are to take the lineal succession, though we do not, or cannot positively name the particular person; and therefore we may well conclude there is no vacancy.-Suppose I should be told, such a gentleman is in such a room, and there I find him and another man with him; and I come out and tell you so, and ask which is he; you may be doubtful which of the two is the man, but sure the one of them is he: but because you cannot tell which it is, shall I conclude no such one is there? If there be a doubtful title (that is, dubious in whom the title resides, but a certain title as to some one) and I cannot directly name him that hath the immediate right, yet it is sufficient to prevent thh vacancy, that there is an heir or successor, let him be whom he will.

Mr. Serj. Maynard. But your lordship will neither agree it is vacant, nor tell us how it is full. King James is gone, we hear or know of no other; what shall the nation do in this uncertainty? When will you tell us who is king, if king James be not? Shall we everlastingly be in this doubtful condition?

The Earl of Pembroke. Sure, Mr. Serj. Maynard, you will agree there is one, and no more than one, to whom a right does belong of succeeding, upon failure of king Jams. Has he no heir known?

Mr. Serj. Maynard. I say, no man can be his heir while he lives. If he has any, it is in nubibus, our law knows none; and what shall we do till he be dead? It cannot descend till then.

The Earl of Pembroke. You agree, that notwithstanding king Charles II. was abroad at his father's death, and did not actually exercise the government; yet in law, immediately upon his father's decease, he was not the less heir for that; nor was the throne vacant.

Mr. Serj. Maynard. That is not like this case, because the descent was legally immediate; but there can be no such thing during king James's life, as an hereditary descent: so that either here must be an everlasting war entailed upon us, his title continuing, and we opposing his return to the exercise of the government; or we have no government for want of a legal descent and succession.-Pray, my lords, consider the condition of the nation till there be a government; no law can be executed, no debts can be compelled to be paid, no offences can be punished, no one can tell what to do to obtain his right, or defend himself from wrong.-You still say, the throne is not void, and yet you will not tell us who fills it. If once you will agree, that the throne is vacant, it will then come orderly in debate, how it should, according to our law," be filled.

The Earl of Nottingham. The objection

(as I take it) that is made to these Reasons the lords have given for their insisting upon the amendments is, That we have not fully answered in them the Reasons given by the commons for their not agreeing to those Amend

ments.

Mr. Sacheverel. My lords, we say you have not fully answered the first of our Reasons.

tion between successors in the case of a natural death, and those in the case of a civil one.For I would know if the next heir should be set aside in this case, and you put in another, whether that king shall be king of England to him and his heirs, and so being once upon the throne, the ancient lincal succession be altered? If that be so, then indeed it is sufficiently an elective kingdom, by taking from it the right heir.-If it be not so, then I would ask, whether such king as shall be put in, shall be king only during king James's life; that, I suppose, for many reasons is not your meaning; but, at least he must be made king during his own life; and then if there be a distinction made as to the succession between a natural and a civil death, if king James should die during the life of the new king, what would become of the hereditary monarchy? Where must the succession come in, when the next heir to king James may not be next heir to the present successor?-Therefore we must reduce all to this point, which my lords have hinted at in their Reasons, whether this will not make the kingdom elective? For if you do once make it elective, I do not say that you are always bound to go to election, but it is enough to make it so, if by that precedent there be a

The Earl of Nottingham, Gentlemen, I intend to state the objection so: That first Reason of yours I take to be this in effect, that our word deserted' being applied to the government, implies our agreeing that the king hath deserted the throne, those two being in true construction the same; and then, by our own confession, the throne is vacant as to him.-To this you say, my lords have given no answer: truly, I think it is a clear answer, that the word 'deserted' may have another sense, and doth not necessarily imply renouncing entirely of a right, but a ceasing of the exercise. But then, if that does not vacate the throne as to him, the other Reason comes to be considered, how came you to desire the Prince of Orange to take the administration upon him, and to take care of Ireland till the Convention, and to write his Letters circularly for this meeting? And to renew your Address to the Prince, and to appoint a Day of public Thanksgiving?-breach in the hereditary succession; for I will In answer to that, my lords say, that though the king's deserting the government (as they agree he has done) did imply the throne to be vacant, yet they might justly do all those acts mentioned in the commons Reasons; because, if barely the exercise of the government were 'deserted,' there must be a supply of that exercise in some persons taking the administration; and as none so fit, because of the Prince's relation to the crown (and his presence here) to address unto about it, so none so proper to make that Address as the lords: for in the absence of the king, they are the king and kingdom's Great Council, and might have done it by themselves without the commons; but being met in a full representative body, they joined with them.-Mr. Pollexfen indeed has said, There is no distinction in law between the kingship and the exercise of it: and, That it is the same crime, in consideration of law, to take away the exercise, as to take away the kingship. I shall not dispute with that learned gentleman (whom I very much honour for his knowledge in the profession of the law) what offence either of them would be now; for we are not discoursing concerning a Regency, how the government should be administred, but we are barely upon the question, whether the throne be vacant, so that we may have another king? But if we should grant a vacancy, as to the king himself, we are then told, the next in succession cannot take, because no one can be heir to one that is alive. Yet, I think, the answer given by my lords before is a very good one, That though the king be not dead naturally, yet if (as they infer) he is so civilly, the next of course ought to come in as by hereditary succession; for I know not any distinc

be bold to say, you cannot make a stronger tie to observe that kind of succession, than what lieth upon you to preserve it in this case.If you are under an obligation to it, it is part of the constitution. I desire any one to tell me what stronger obligation there can be? and that, I say, is reason enough for my lords to disagree to it, it bringing in the danger of a breach upon the constitution.-Next, gentleinen, I would know of you, if the throne be vacant, whether we be obliged to fill it? If we be, we must fill it either by our old laws, or by the humour of those that are to chuse; if we fill it by our own old laws, they declare, that it is an hereditary kingdom, and we are to take the next to whom the succession would belong, and then there would be no need of standing upon a vacancy.-If we are to fill it according to the humour of the times, and of those that are to make the choice, that diverts the course of inheritance, and puts it into another line: and I cannot see by what authority we can do that, or change our ancient constitution, without committing the same fault we have laid upon the king. These are the Objections against the Vacancy of the Throne, which occur to me; and we, gentlemen, desire a satisfaction to them before we agree to the Vacancy.-And, I think, the answering them will lead us unto that which I take to be the main point in question, whether the Vacancy of the Throne, and filling it again, will not, as my lords say, endanger the turning this hereditary monarchy of ours into an elective one?

Mr. Sacheverel. My lords, it seems very strange to us, that this question should be asked us, when we come to shew, that your lordships Reasons for leaving out this part of our Vote

are not satisfactory, neither do answer the Rea- | Depostion and Deprivation, and then follow the sons we gave for our not agreeing to your lordships Amendments: and it is much stranger that we should be asked, whether this Vacancy extends to the heirs, when you will not tell us, whether it be vacant as to king James himself. -You put it upon us to say, the execution or exercise of the government is ceased; but you will not say the throne is vacant, so much as to him and if it be not, what have we to do, to consider, or debate, of any consequence, whether it will infer an election or not?-We desire of your lordships that which we think is very proper; first, to know whether the throne be vacant at all? If it be, then our proposition in the conclusion of our vote is true, That the Throne is thereby vacant.?-My lords, I think we come here very much in vain till this point be settled; what satisfaction can it be to your lordships, or us, or the nation, to know that such things as are mentioned in the Votes had been done by king James, and that he has deserted (as you say) the government, if he still retain a right to it; and your lordships will not declare he hath no right, but amuse the kingdom with the doubtful words of the exercise (as to him) ceasing. If that be all you mean, what need the question be asked, how far it is vacant, for it should seem it is not

words in the record; Et confessim ut constabat ex præmissis & eorum occasione regnum Angliæ cum pertinentiis suis vacare.' Then Henry 4 riseth up out of his place as duke of Lancaster, where he sat before, and standing so high that he might be well enough seen, makes this claim to the crown: the words in the Record are, 'Dictum regnum Angliæ sicut præmittitur vacans una cum corona vendicat.' -After that, the Record goeth on, That upon this Claim the lords and commons being asked, what they thought of it? they unanimously consented, and the archbishop took him by the hand, and led him ad sedem regalem prædictam,' &c-Nay, after all this, it is there taken notice of, and particularly observed, that' prius vacante sede regali,' by the lesion and deposition aforesaid, all the public officers ceased; there is care taken for Henry 4's taking the Royal Oath, and granting of new commissions.

vacant at all.

The Earl of Nottingham. Will you please to suppose it vacant as to king James, that is, that he hath no Right? Then let us go on to the next step.

Mr. Sacheverel. That, my lords, we cannot do, for all our business is to maintain our own, that the Throne is vacant.'

Mr. Somers. My lords, your lordships, as a Reason against the word abdicate,' say it is not a word known in our common law. But the word 'vacant,'about which we are now disputing, cannot have that objection made to it; for we find it in our Records, and even applied in a parallel case to this of ours, in 1 Hen. 4 where it is expressly made use of more than once, and there it doth import what I think it doth import in this Vote of the house of commons, now in debate; and to require any farther or other explication of it than the Record gives, will be very hard and unreasonable; for we are here to give the commons Reasons for maintaining their own Vote, and nothing else. If your lordships please to look into the Record in that case, there was first a Resignation of the crown and government made and subscribed by king Rd. 2, and this is brought into the parliament, and there they take notice, that the Sedes Regalis' (those are the words) fuit vacua; and the Resignation being read both in Latin and English, in the great hall at Westminster, where the parliament was then assemhled, it was accepted by the lords and commons.-After that, it proceeds farther; and there are Articles exhibited against Rd. 2, and upon these Articles they went on to Sentence of

See vol. i. p. 251.

My lords; the commons do therefore apprehend, that with very good reason and authority they did in their Vote declare the throne to be vacant. But as to the going farther to enquire into the consequences of that, or what is to be done afterwards, is not our commission, who came here only to maintain their expressions in their Vote against your lordships amendments.

The Earl of Rochester. In a free Conference the points in question are freely and fully to be debated; and my lords, in order to their Agreement with the commons, are to be satisfied what is meant, and how far it may extend. You gentlemen, that are managers for the house of commons, it seems, come with a limited commission, and will not enter into that consideration which (as our Reasons express) hath a great weight with my lords, whether this Vote of the commons will not make the monarchy of England, which has always heretofore been hereditary, to become elective? That the Vacancy of the Throne will infer such a consequence, to me appears very plain : and I take it from the argument that last gentleman used for the word vacant,' out of the record of Rd. 2's time, that is cited for a precedent for that word. But as that is the only precedent, yet it is attended with this very consequence; for it being there declared, that the royal seat was vacant, immediately did follow an election of Henry 4th, who was not next in the right line; did not then this hereditary monarchy in this instance become elective? When king Charles 2 died, I world fain know, whether in our law the throne was

vacant? No sure, the next heir was immediately in the throne. And so it is in all hereditary successive governments.-Indeed, in Poland when the king dies there is a vacancy, because there the law knows no certain successor: so that the difference is plain, that wherever the monarchy is hereditary, upon the ceasing of him in possession, the throne is not vacant; where it is elective, it is vacant.

The Earl of Clarendon. I would speak one