Anno 4 Jac. II. for what we have done, unless the King should die, and that 1688-9. would leave the Succeffion uncertain.

Mr. Pollexfen.

My Lords, I only apply myself, to confider the Reasons of your Lordships, for infifting upon this fecond Amendment; because, I conceive, your Lordships have therein given no answer to the Reason firft given by the Commons, why they cannot agree to your Lordfhips Amendment."

My Lords, your own Reasons (under favour) do fhew, that your Lordships do intend, that the King is ftill in the Government: This, I think, is moft apparent out of your own Reasons.

For, when you have declared, that the King hath deferted the Government, and then fay, no Inference can be drawn thence, but only that the Exercife of the Government by King James the fecond was ceafed; then you do thereby ftill fay, that King James the second is in the Government; for if only the Exercise be ceased, the Right doth still remain: Then I am fure we have no reason to agree with their Lordships in that point.

Next, my Lords, truly we cannot fee 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; fince you do not say that he deferted the Exercife of the Government.

And if your Lordships had any purpose to express your Meaning by a public Vote, that only the Exercife ceased, furely your Lordships would have put in the Word Exercife there: But when in your Vote you fay the Government was deferted, you cannot mean only the Exercife of it.

And that is the firft Reason that the Commons give your Lordships, why we cannot by any means admit of your Lordships Amendment, becaufe Throne and Government are in true Conftruction the fame; but the Exercife of the Government only (as you exprefs it) and the Government itfelf (if your Reafon conclude right) are not the fame : And we are to reafon from the Words expreffed in the Vote.

Next, my Lords, we fay, it cannot be inferred from the Words, as they reft in your Lordships Vote, that only the Exercife of the Government, as to King James the fecond, did cease.

For if we read that Part about deferting the Government, with the reft of the Particulars that go before, his endeavouring to fubvert the Conftitution 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 deferting of the Government can be any thing elfe, but fomewhat that

is agreable to all thofe precedent Acts, which are not a Anno 4 Jac. H. cealing of the Exercife of the Government only, but a Deftruction of the Government itself?

But befides, my Lords, under favour, the Administration or Exercife of the Kingly Government is in Conftruction and Confideration of Law all one and the fame: And,· I think, nobody that would reafon aright from thence can fay there is any Diftinction between Government and the Exercise of the Government; for whofoever takes from the King the Exercife of the Government, takes from the King his Kingfhip; for the Power and the Exercife of the Power are fo joined that they cannot be fever'd.

And the Terms themselves (taking them as the Law of England, which we are to argue from in this cafe, teacheth them) are fo co-incident, that they cannot either fubfift without confifting together: If a Man grant to another the Government of fuch a Place, this imports the Exercise of the Government there, to be granted thereby.

As if the Iflands belonging to this Crown and Dominion of England (as the Plantations abroad) if the King grants to any one the Government of Jamaica, or the like, fure no one will fay, that that is not a Grant of the Exercise of the Government there.

So that wherever a Government is granted, the Exercise of that Government is meant and included, and therefore the fuppofed Diftinction may be fomething indeed, if they be only notionally confidered; but it is a Notion altogether difagreeing to the Laws of England.

When your Lordfhips fay in your Reafons, That the Exercife of the Government as to King James the second is ceased, which is as far as you can go in this point, the Commons can by no means agree to this Reafon; for by the Words foufed (the Exercise ceafed) we apprehend, that you mean the Kingship continueth ftill in him, and that only the Exercife is gone.

And if it be fo, and it be utterly unlawful, and as great a Crime (as what Law faith it is not?) to take away from the King the Exercife of the Government, as to take from him the Government; then it may do well for your Lordflips to confider, whether you are not guilty of the fame Crime and Thing which you would decline by your A. mendment.

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 Government which (we fay) he hath himself given away by Abdication. And if King James be our King ftill, we cannot by any means agree to the keeping of him out of the Kingdom; for f it be his Right to be King ftill, God forbid but that

1688-9.

he

1

Anno 4 Jac. II. he should enjoy it, and be admitted to the Exercise of it 1688-9.

Earl of Clarendon.

again.

Then, my Lords, for the Conclufion that your Lordships have added to your Reafon, (as making it from the very Words of your Vote,) That it would infer fuch a Vacancy in the Throne, as that the Crown should thereby become elective; this, we conceive, is a Conclufion, that hath no Premises either from our Actions, or our Sayings, or our Votes, or any thing else in this cafe; nay, it is quite varying from all the Premifes. But, when fuch a Conclufion can be fhewn 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 infift upon; that if the Right of Kingship be ftill (after all that is agreed on both hands) due to him, we cannot in juftice agree to keep him from it. And if it be not his due Right, but by these Acts, his Subverfion of the Conftitution, his breaking the Original Contract, and Violation of the fundamental Laws, he hath abdicated it (as we fay,) and this Abdication hath put him by his Right, and fo his Right is gone from him (as we conceive it is); then, I think, we may lawfully go on to fettle the Peace and Welfare of the Nation.

But the Right to be ftill in him, to have a Regency upon him without his own Confent, or till his Return, we take it to be a ftrange and unpracticable thing, and would be introductive of a new Principle of Government amongst us. It would be fetting up a Commonwealth inftead of our ancient regulated Government, by a limited Monarchy; then, I am fure, we fhould be justly blamed: And therefore we can by no means fubmit to your Lordships Alterations of our Vote, upon any of the Grounds and Reasons that have as yet been offered.'

'As to what Mr. Pollexfen hath offered, I defire to obferve a Word or two, and that is from the Commons fecond Reason, for their difagreeing to their Lordships Amend

ments.

You fay there, That the Commons do conceive they need not prove to your Lordships, that as to any other Perfon befides King James, the Throne is alfo vacant: Doth not this fhew, 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 faid 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

1688-9.

of his Pofterity, or any of those that are in the Remainder Anno 4 Jac. I. in the Royal Line in Succeffion? if it be as to them too, then it must neceflarily follow, that the Kingdom muft thereby become elective ftill, or the Government be chang ed 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 faid it fhould not be perpetually elective."

'I am fure, if we be left without a Government, as we Mr. Serjeant find we are (why elfe have we defired the Prince to take Maynard. upon him the Adminiftration?) fure 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-Adminiftration. And I do fay again, this Provifion must be made; and if it be, that would not make

the Kingdom perpetually elective. Í ftand not upon any Word, but am for the Thing, that a Provifion be made to fupply the Defect.'

Do that the Throne is vacant as Mr. Pollexfené Lordships agree, your to King James the fecond? If fo, or if you will fay it is full of any body eife, and will name whom it is full of, it will then be time for the Commons to tell what to fay to it. If If your Lordships will pleafe to fhew that, we will go on to give it an Answer.'

Your own Words in your fecond Redfon are, That you Earl of Glas need not prove to us, that as to any other Perfon the Throne rendon, is alfo vacant: Then how fhould we name who it is full of? Admit for Difcourfe fake, but we do not grant it, for my part I do not; I fay, taking it to be vacant as to King James the fecond, then you ask us, who it fhould be fupplied by? Muft it not be fupplied by thofe that should have come if he were dead?

For, I pray confider, I take this Government by all our Laws to be an Hereditary Monarchy, and is to go in succeffion by Inheritance, in the Royal Line; if then you fay this Government is vacant, that would be to put all thofe by that hould take the Succeffion, and that will make the King dom elective for that time.

You fay, the Throne is vacant; then I may very well ask, who hath the Right of filling up thar Vacancy? We fay, there is no Vacancy; if there is, pray is there any body that hath the Righ: of filling it up?"

That is not the Question before us, yet that will come Mr. Serjean properly in Debate when we are agreed upon the Vacancy. May nard

TOME II.

Hh

The

Anno 4 Jac. II. 1688-9.

Earl of Pembroke,

Mr. Serjeant
Maynard.

Earl of PemBroke.

Mr. Serjeant
Maynard.

Earl of Pembroke.

• The noble Lord fays, It is by our Law an Hereditary Monarchy. I grant it; but though it fhould in an ordinary way defcend to the Heir, yet as our cafe is, we have a Maxim in Law, as certain as any other, which stops the courfe; for no Man can pretend to be King James's Heir while he is living: Nemo eft hæres viventis.'

To that point I think my Lord Clarendon gave an Anfwer, That it fhould go to the next in the Line that were to take it, if the King were dead? For as we fhould be understood, we should make it a Cafe of Demife 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 Defcent.

You, Gentlemen, ask us who the Throne is full of? I think it is fufficient to know that there are Heirs who are to take the lineal Succeffion, though we do not, or cannot pofitively name the particular Perfon; and therefore we may well conclude there is no Vacancy.

Suppose I should be told, fuch a Gentleman is in fuch a Room, and there I find him and another Man with him; and I come our and tell you fo, and ask which is he; you may be doubtful which of the two is the Man, but fure the one of them is he: but because you cannot tell which it is, fhall I conclude no fuch one is there? If there be a doubtful Title (that is, dubious in whom the Title refides, but a certain Title as to fome one) and I cannot directly name him that hath the immediate Right, yet it is fufficient to prevent the Vacancy, that there is an Heir or Succeffor, let him be whom he will.'

But your Lordships 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?'

Sure, Mr. Serjeant Maynard, you will agree there is one, and no more than one, to whom a Right does belong of fucceeding, upon Failure of King James. Has he no Heir known?'

I fay, no Man can be his Heir while he lives. If he has any, it is in nubibus, our Law knows none; and what fhall we do till he be dead? It cannot defcend till then.'

• You agree, that notwithstanding King Charles the fecond was abroad at his Father's Death, and did not actually exercife the Government; yet in Law, immediately upon his Father's Deceafe, he was not the lefs Heir for that; nor was the Throne vacant."