od Gentleman) fignifieth only, The ceafure of the Exercife Arno 4 Jac. II

of a Right.

'If there be fuch a Defect as hath been spoken of, it must be fupplied; there is no queftion of that.

And I think we have, by another Vote, declared, That it is inconfiftent with our Laws, Liberties, and Religion, to have a Papift to rule over this Kingdom. Which I take to be only as to the actual Exercise and Adminiftration of the Government.

"It is Grotius's Diftinction between a Right, and the Exercife of that Right; and, as there is a natural Incapacity for the Exercise, as Sicknefs, Lunacy, Infancy, doating old Age, or an incurable Difeafe, rendering the Party unfit for human Society, as Leprofy, or the like; fo I take it, there is a moral Incapacity: and that I conceive to be a fulĺ irremoveable perfuafion in a falfe Religion, contrary to the Doctrine of Christianity.

Then there must be a provifion, undoubtedly, made for fupplying this defect in the Exercise, and an intermediate Government taken care for; because become neceffary for the Support of the Government, if he to whom the Right of Succeffion doth belong makes the exercife of his Government impracticable, and our Obedience to him, confiftently with the Conftitution of our Religion, impoffible: 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 converfant 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 obferve that there is a double ufe of the word, fometimes it is mentioned with a Prepofition, and then it fignifies the renouncing an actual Exercise of Right, as abdicare a Triumphe: And fometimes it hath the Accufative Cafe following it, and then it fignifies the renouncing of the very Right, as that which was mentioned, abdicare Magiftratum; fo that the fignification (as the Lords fay in their Reafon) is doubtful: And fuch words, we hope, the Commons will not think fit to ufe in a Cafe of this Nature and Confequence, as ours now in Debate.

And befides the Lords apprehend, that great Inconveniencies will follow upon the ufe of this word, if it mean a renouncing abfolutely of the Right.

'It feems the Commons do not draw the word abdicated from his withdrawing himself out of the Kingdom; for then deferted would (no doubt) have answered. That Ab dication is the fame whether a Man go out of the Kingdom

or

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Anno 4 Jac. II. or ftay in it; for it is not to be efteemed according to the Place, but the Power.

1688-9.

If a Man ftays in the Kingdom, this is abdicare with a Prepofition, to abdicate the Exercife of the Government, but not the Right of governing, according to the Conftitution; and to fuch an Abdication (if it be fo declared) my Lords, I believe, may foon agree.

Then, Gentlemen, there is another diftinction in thofe 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 diftinction indeed in other words, but to the fame fense: I will tell you presently why I ufe it.

Thofe Abdications that are of Power only, are Incapacities; whether thofe I call natural and involuntary, as defects of Senfe, Age, or Body, or the like; or moral and voluntary, as Contrariety in Religion; an inftance 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 pu into the younger Brother's Hand, the Patents and other public Inftruments 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 faid) confider, whether that the King be gone out of the Kingdom, or ftay in it; but only, whether he be fit for the Adminiftration, which must be provided for, be he here, or gone

away.

But the higheft inftance 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 fo bare a word as endeavour.

'I take these to be all the diftinctions of Abdications.

'Now if this laft inftance of an Abdication of both Power and Right, take place in a fucceffive Monarchy, the Confequence will be, that there is a forfeiture of the whole Right; and then that Hereditary Succeffion is cut off; which I believe is not intended by the Commons: There is indeed one Inftance of the ufe of fuch an Abdication in Monarchy, and that is, that of Poland; and fuch an Abdication there makes the Throne vacant, and those with, and in whom the Power is invefted of making Laws, (to wit the Senate) appoint one to fill it: But that, and whatever other Inftances of the like kind, thefe may be all of elective Kingdoms; for though fome of them are, or may be in Kingdoms now hereditary, yet they were, in thefe times, elective, and fince altered into hereditary Succeffions.

• But

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But here is one thing that is mentioned in this Vote, Anno 4 Jać. II. which I would have well confidered, for the preservation of the Succeffion, and that is the Original Compact: We must think fure that meant of the Compact, that was made at the first time, when the Government was firft inftituted, and the Conditions that each part of the Government fhould obferve on their part; of which this was the most fundamental, That King, Lords, and Commons, in Parliament affembled, fhould have the Power of making new Laws, and altering of old ones. And that being one Law which fettles the Succeffion, it is as much a part of the Original Compact as any: Then if fuch a Cafe happens, as an Abdication in a fucceffive Kingdom, without doubt, the Compact being made to the King, his Heirs, and Succeffors, the Difpofition of the Crown cannot fall to us, till all the Heirs do abdicate too. There are indeed many Examples, and too many Interruptions in the lineal Succeffion of the Crown of England: I think, I can inftance in feven fince the Conqueft, wherein the right Heir hath been put by: But that doth not follow, that every Breach of the firft Original Contract, gives us Power to difpofe of the lineal Succeffion; efpecially, I think, fince the Statutes of Queen Elizabeth, and King James the firft, that have eftablifhed the Oath of Allegiance to the King, his Heirs, and Succeffors, the Law is ftronger againft fuch a Difpofition: I grant that from King William the firft, to King Henry the VIIIth, there have been feven Interruptions of the legal Line of Hereditary Succeffion; but, I fay, thofe Statutes are made fince that Time, and the making of new Laws being as much a part of the Original Compact, as the obferving old ones, or any thing elfe, we are obliged to purfue_thofe Laws, till altered by the Legiflative Power, which fingly, or jointly, without the royal Affent, I fuppofe, we do not pretend to; and thefe Laws being made fince the last Interruption, we are not to go by any Precedent that was made before the making thofe Laws.

So that all that I conceive ought to be meant by our Vote, is but a fetting afide the Person that broke the Contract: And, in a fucceffive Kingdom, an Abdication can only be a Forfeiture, as to the Perfon himself."

I hope, and am perfuaded, that both Lords and Commons do agree in this, Not to break the Line of Succeffion, fo as to make the Crown elective. And if that be declared, that this Abdication of King James the fecond reacheth no farther than himself, and that it is to continue in the right Line of Succeffion, that, I hope, will make all of one Mind in this important Affair.'

As I remember, Mr. Somers, who spoke to the Signif cation of the Word abdicated, did quote Grotius, Calvin's Lexicon, and other civil Lawyers, where the exprefs Words make it to be a voluntary Act, and, fo are all the Inftances that ever I read or heard of, that is, there either was some formal Deed of Renunciation, or Refignation; or fome voluntary Act done of the Party's own; and fuch whereby they have fhewn they did diveft themselves of the Royal

ties.

I think truly, Gentlemen, it is very apparent that the King, in this Cafe, hath done nothing of this Nature: It is indeed faid by that learned and ingenious Gentleman Mr. Somers, that it may arife from the Facts, that in the Vote it has been declared he hath done it, by breaking the fundamental Laws, and the Original Contract; and endeavouring to fubvert the Conftitution of the Kingdom. I will not dif courfe the Particulars that have been alledged to make out this Charge; but I may fay this much in general, that this breaking the Original Contract is a Language that hath not been long used in this Place; nor known in any of our LawBooks, or public Records. It is fprung up, but as taken from fome late Authors, and thofe none of the best received; and the very Phrafe might bear a great Debate, if that were now to be fpoken to. Mr. Somers did likewife fpeak fomething to the particular Cafe, and the Grounds of the Vote; he faid, the King is bounded by Law, and bound to perform the Laws made, and to be made. That is not denied; I would take notice, that his Obligation thereunto doth not proceed from his Coronation-Oath; for our Law faith, He is as much King before he is crowned, as he is afterwards: And there is a natural Allegiance due to_him from the Subjects immediately upon the Defcent of the Crown upon him. And though it is a very requifite Ceremony, to put him under a farther Obligation by the Confcience of his Oath; yet I think it will not, nor can be denied but that, as King, he was bound to obferve the Laws before; and no body will make that Oath to be the Original Contract, as I fuppofe.

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 himfelf, I believe my own Opinion would concur to fecure us against his return to govern us: But then, why is there fuch a Contention about a Word? Doth all this imply more than Desertion?

But it is faid, that Abdication doth imply a perfect Renunciation, which I cannot fee how it is in this Cafe, fo as to leave us at liberty to fupply as we please, and break the Line of Succeffion.

Mr

Mr. Serjeant Maynard fays, that it is not indeed to make Anno4 Jac. II, the Government perpetually elective. I would know what 1688-9. he means by perpetually: Our breaking through the Line now, by a Choice out of the lineal Courfe, is an Alteration and a Precedent: And why may not others take the fame Liberty we do? And will not that make it perpetually elective?

But truly, I think, no Act of ours can alter the lineal Succeffion; for, by all the Laws we have now in being, our Government appears to be Hereditary in a right Line of Defcent: And upon any Defcent, when any one ceafeth to be King, Allegiance is by Law due to his legal Heir, as Succeffor, as well before Coronation as after.

I was in great hopes that you would have offered fomething in anfwer to one of my Lord's Reasons, against that part of the Vote which declares the Throne to be vacant;

That no Act of the King's alone can bar or deftroy the Right of his Heir to the Crown, which is Hereditary, and not elective. And then, if this matter goes no farther than King James the Second in his own Perfon, how comes the Vacancy and the Supply to be devolved upon the People? For if he only be fet afide, then it is apparent, whither the Crown is to go, to the Perfon that hath the next Right of Succeffion; and confequently there is no Vacancy."

* Gentlemen, I would not protract Time, which is now fo Earl of Nottingneceffary to be husbanded; nor perplex Debates about any ham.

affair like that which now lies before us: It is not a queftion barely about Words, but Things, which we are now dif puting.

The Word abdicated, it is agreed by Mr. Somers, is a Word of Art; and he hath told us what its fignification is, from those that are skilled in the art to which it belongs: He doth acknowledge that it is no Law-word among English Lawyers; nor known to the common Law: But then, he faith, neither is the Word, ufed by the Lords, deferted.

I agree to him, that neither the one nor the other are Words ufed in our Law; but the Inference I would draw thence is this, that we have no Words applicable to this Cafe; because we never before had fuch a Cafe; and we must not draw Inferences of Law in fuch a Cafe, that are not deducible from Rules well known in our Laws.

I will not difpute what the Senfe 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 Reafon I am against_ufing of it; because I am fo much in love with our own Laws, that I would ufe no Words in a Cafe that fo much concerns our legal Constitution, but what are fetched from thence.