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1. The first reason your lordships are pleased to deliver, as for your changing the word is, that the word ab. dicated your lordships do not find is a word known to the common law of England, and therefore ought not to be used; and the next is, that the common application of the word amounts to a voluntary express act of renun. ciation, which (your lordships say) is not in this case, nor what will follow from the premises.
My lords, as to the first of these reasons, if it be an objection that the word abdicuted hath not a known sense in the common law of England, there is the same objection against the word deserted; for there can be no authority or book of law produced wherein any determined sense is given to the word deserted ; so that your lordships' first reason hath the same force against your own amendent as it hath against the term used by the commons.
The words are both Latin words, and used in the best authors, and both of a known signification ; their meaning is very well understood, though it be true their meaning be not the same. The word abdicate doth naturally and properly signify entirely to renounce, throw off, disown, relinquish any thing or person, so as to have no farther to do with it, and that whether it be done by express words or in writing, (which is the sense your lord- . ships put upon it, and which is properly called resignation or cession,) or by doing such acts as are inconsistent with the holding or retaining of the thing, which the commons take to be the present case, and therefore make choice of the word abdicate, as that which they thought did, above all others, most properly express that meaning. And in this latter sense it is taken by others; and that this is the true signification of the word I shall shew your lordships out of the best authors.
The first I shall mention is Grotius, De Jure Belli et Pucis, l. 2. c. 4. l. 4. Venit enim hoc non ex jure civili, sed ex jure naturali quo quisque suum potest abdicare et ex naturali præsumptione qua voluisses qui creditur quod sufficienter significavit. And then he
Recusari hæreditas, non tantum verbis sed etiam repotest et quovis indicio voluntatis.
Another instance which I shall mention to shew that for the abdicating a thing, it is sufficient to do an act which is inconsistent with the retaining it, though there be nothing of an express renunciation, is out of Calvin's Lexicon Juridicum, where he says, Generum abdicat qui sponsam repudiat. He that divorceth his wife abdicates his son-in-law. Here is an abdication without express words, but is by doing such an act as doth sufficiently signify his purpose.
The next autlior that I shall quote is Brissonius de Verborum Significatione, who hath this passage : Homo liber qui seipsum vendit, abdicat se statu suo: that is, He who sells himself hath thereby done such an act as cannot consist with his former estate of freedom, and is therefore properly said, se abdicasse statu suo.
Budæus, in his Commentaries, Ad Legem secundam de Origine, Juris, expounds the words in the same sense. Kbdicure se magistratu est idem quod abire penitus magistratu. He that goes out of his office of magis. tracy, let it be in what manner he will, has abdicated the magistracy,
And Grotius, in his book De Jure Belli et Pacis, l. 1. c. 4. s. 9. seems to expound the word abdicare by mani. feste habere pro derelicto : that is, that he who hath abdicated any thing, hath so far relinquished it, that he hath no right of return to it; and that is the sense the com. mons put upon the word. It is an entire alienation of the thing, and so stands in opposition to dicare. Dicat qui proprium aliquod facit, abdicat qui alienat. So says Pralejus in his Lericon Turis. It is therefore insisted npon as the proper word by the commons.
But the word deserted, (which is the word used in the amendment made by your lordships,) hath not only in very doubtful signification, but in the common acceptance both of the civil and canon law, doth signily only a bare withdrawing, a temporary quitting of a thing, and neglect
only ; which leaveth the party at liberty of returning to it again Desertum pro neglecto, says Spigelius in his
. Lexicon. But the difference between deserere and derelinquere, is expressly laid down by Bartolus upon the 8th law of the 58th title of the 11th book of the Code; and his words are these ; Nota diligenter ex hac lege, quod aliud est agrum deserere, aliud derelinquere, qui enim derelinquit, ipsum ex penitentia non revocat, sed qui deserit, intra biennium potest.
Whereby it appears, my lords, that that is called de. sertion which is temporary and relievable; that is called dereliction where there is no power or right to return.
So in the best Latin authors, and in the civil law, deserere excertitum is used to signify soldiers leaving their colours, Cod. lib. 12. s. 1,
And in the canon law to desert a benefice, signifies no more than to be non-resident; so in Calvin's Lexicon Verb. Desert. secund. Canones.
In both cases, the party hath not only a right of re. turning, but is bound to return again ; which, my lords, as the commons do not take to be the present case, so they cannot think that your lordships do, because it is expressly said, in one of your reasons given in defence of the last amendment, that your lordships have been, and are willing to secure the nation against the return of king James; which your lordships would not in justice do, if you did look upon it to be no more than a negligent withdrawing, which leaveth a liberty to the party to return.
For which reasons, my lords, the commons cannot agree to the first amendment, to insert the word deserted, instead of abdicated, because it doth not in any sort come up to their sense of the thing. So they do appre. hend it doth not reach your lordships' meaning as it is expressed in your reasons; whereas they look upon the word abdicated to express properly what is to be inferred from that part of the vote to which your lordships have agreed :--That king James II. by going about to subvert
the constitution, and by breaking the original contract between king and people, and by violating the fundamental laws, and withdrawing himself out of the kingdom, hath thereby renounced to be a king' according to the constitution. By avowing to govern by a despotic power, unknown to the constitution, and inconsistent with it, he hath renounced to be a king according to the law ; such a king as he swore to be at his coronation ; such a king to whom the allegiance of an English subject is due ; and hath set up another kind of dominion, which is to all intents an abdication, or abandoning of his legal title, as fully as if it had been done by express words.
And, my lords, for these reasons the commons do insist upon the word abdicated, and cannot agree to the word deserted.
( Second Earl of Nottingham,)
Was born 1647, and died 1730. He was all his life an' active poli.. tician. without being devoted to any party. He seems to have
gone just as far his principles would carry him, and no farther ; and therefore often stood still in his political career.
Earl of Nottingham's Answer.
Gentlemen, I would not protract time which is now so necessary to be husbanded, nor perplex debates about any affair like that which now lies before us. It is not a question barely about words, but things, which we are now disputing
The word abdicated, it is agreed by Mr. Somers, is a word of art, and he hath told us what its signification is,
from those that are skilled in the art to which it belongs He doth acknowledge that it is no law wold among English: lawyers, nor known to the common law ; but then he saith, neither is the word used by the lords, deserted.
Pirtill 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 cases and we must not draw inferences of law in such a case that are not deducible from rules well known in our law.
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 sce 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 reassume ; nay, which in some cases there is a duty upon him to return unto. If that were all, Mr. Somers hath given himself an answer to that objection, out of what he alledges of the lords' reasons, who have declared, that they are willing to sccure the nation against the return of king James into this kingdom, and will there. fore 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 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 signify the meaning, therefore we should (as I take it) come presently to think of some other that would. But