succession; a right which, we have seen, was before exercised and asserted in the reigns of Henry IV., Henry VII., Henry VIII., queen Mary, and queen Elizabeth.

THE first instance, in point of time, is the famous bill of exclusion, which raised such a ferment in the latter end of the reign of king Charles the second. It is well known that the purport of this bill was to have set aside the king's brother [211] and presumptive heir, the duke of York, from the succession,

on the score of his being a papist; that it passed the house of commons, but was rejected by the lords; the king having also declared beforehand, that he never would be brought to consent to it. And from this transaction we may collect two things: 1. That the crown was universally acknowledged to be hereditary; and the inheritance indefeasible unless by parliament: else it had been needless to prefer such a bill. (11) 2. That the parliament had a power to have defeated the inheritance: else such a bill had been ineffectual. The commons acknowledged the hereditary right then subsisting; and the lords did not dispute the power, but merely the propriety of an exclusion. However, as the bill took no effect, king James the second succeeded to the throne of his ancestors: and might have enjoyed it during the remainder of his life, but for his own infatuated conduct, which (with other concurring circumstances) brought on the revolution in 1688. (12)

THE true ground and principle upon which that memorable event proceeded, was an entirely new case in politics, which had never before happened in our history; the abdication of the reigning monarch, and the vacancy of the throne thereupon. It was not a defeazance of the right of succession, and a new limitation of the crown, by the king and both houses of parliament; it was the act of the nation alone, upon

(11) The latter part of this conclusion does not seem just; supposing the king alone, and the king with the two houses to have both possessed the power of defeating the inheritance; the bill would have been clearly necessary in a case in which it was known that the king would not exert his power.

(12) See in Burnet's History of his own Times, vol. ii. 200. and 244. Ed. Oxon. 1823, an account of the exclusion bills, and the principal arguments used for and against the measure.

a conviction that there was no king in being. For in a full assembly of the lords and commons, met in a convention upon the supposition of this vacancy, both houses came to this resolution: “that king James the second, having endeavoured "to subvert the constitution of the kingdom, by breaking the "original contract between king and people; and, by the "advice of jesuits and other wicked persons, having violated "the fundamental laws; and having withdrawn himself out "of this kingdom; has abdicated the government, and that "the throne is thereby vacant." Thus ended at once, by this sudden and unexpected vacancy of the throne, the old line of [212] succession; which from the conquest had lasted above six hundred years, and from the union of the heptarchy in king Egbert almost nine hundred. The facts themselves thus appealed to, the king's endeavour to subvert the constitution by breaking the original contract, his violation of the fundamental laws, and his withdrawing himself out of the kingdom, were evident and notorious; and the consequences drawn from these facts (namely, that they amounted to an abdication of the government; which abdication did not affect only the person of the king himself, but also all his heirs, and rendered the throne absolutely and completely vacant) it belonged to our ancestors to determine. For whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to. And that these consequences were fairly deduced from these facts, our ancestors have solemnly determined, in a full parliamentary convention representing the whole society. The reasons upon which they decided may be found at large in the parliamentary proceedings of the times; and may be matter of instructive amusement for us to contemplate, as a speculative point of history. But care must be taken not to carry this inquiry farther, than merely for instruction or amusement. The idea, that the consciences of posterity were concerned in the rectitude of their ancestors' decisions, gave birth to those dangerous political heresies, which so long distracted the state, but at length are all happily extinguished. I there

F

y Com. Journ. 7 Feb. 1688.

fore rather chuse to consider this great political measure upon the solid footing of authority, than to reason in it's favour from it's justice, moderation, or expedience: because that might imply a right of dissenting or revolting from it, in case we should think it to have been unjust, oppressive, or inexpedient. Whereas, our ancestors having most indisputably a competent jurisdiction to decide this great and important question, and having in fact decided it, it is now become our [213] duty at this distance of time to acquiesce in their determination, being born under that establishment which was built upon this foundation, and obliged by every tie, religious as well as civil, to maintain it.

BUT, while we rest this fundamental transaction, in point of authority, upon grounds the least liable to cavil, we are bound both in justice and gratitude to add, that it was conducted with a temper and moderation which naturally arose from it's equity; that, however it might in some respects go beyond the letter of our antient laws, (the reason of which will more fully appear hereafter',) it was agreeable to the spirit of our constitution, and the rights of human nature; and that though in other points (owing to the peculiar circumstances of things and persons) it was not altogether so perfect as might have been wished, yet from thence a new æra commenced, in which the bounds of prerogative and liberty have been better defined, the principles of government more thoroughly examined and understood, and the rights of the subject more explicitly guarded by legal provisions, than in any other period of the English history. In particular it is worthy observation that the convention, in this their judgment, avoided with great wisdom the wild extremes into which the visionary theories of some zealous republicans would have led them. They held that this misconduct of king James amounted to an endeavour to subvert the constitution; and not to an actual subversion, or total dissolution, of the government, according to the principles of Mr. Lockea: which would have reduced the society almost to a state of nature; would have levelled all distinctions of honour, rank, offices, and property; would have annihilated the sovereign power,

z See chap.7.

a On Gov. p. 2. c.19.

and in consequence have repealed all positive laws; and would have left the people at liberty to have erected a new system of state upon a new foundation of polity. They therefore very prudently voted it to amount to no more than an abdication of the government, and a consequent vacancy of the throne; whereby the government was allowed to subsist, though the [ 214 ] executive magistrate was gone, and the kingly office to remain, though king James was no longer king. And thus the constitution was kept entire; which upon every sound principle of government must otherwise have fallen to pieces, had so principal and constituent a part as the royal authority been abolished, or even suspended. (13)

THIS single postulatum, the vacancy of the throne, being once established, the rest that was then done followed almost of course. For, if the throne be at any time vacant; (which may happen by other means besides that of abdication; as if all the blood royal should fail, without any successor appointed by parliament;) if, I say, a vacancy by any means whatsoever should happen, the right of disposing of this vacancy seems naturally to result to the lords and commons, the trustees and representatives of the nation. For there are no other hands in which it can so properly be entrusted; and there is a necessity of it's being intrusted somewhere, else the whole frame of government must be dissolved and perish. The

Law of forfeit. 118, 119.

(13) In Mr. Amos's new edition of Fortescue are printed from a MS. in the Pepysian library belonging to Magdalen library, the grounds which Lord Nottingham had prepared for the protest in the Lords against a concurrence with the vote of the Commons that the throne was vacant. They embrace the sum of the arguments on that side, and do not admit in mere reasoning of an easy answer. They are the following: 1st, Because though the king can resign his crown by consent of parliament, yet neither the parliament nor the whole people of England have authority to depose him without his own consent; the king being supreme, and therefore there can be no superior to him. 2d, Or if the parliament could depose him, yet the monarchy of England is hereditary by the fundamental constitution of this government, and has been often declared by parliament to be so. 3d, No act of the king alone can abrogate the right of his heirs without act of parliament, and therefore the throne cannot be now vacant. 4th, The consequence of this vote is, that the monarchy is elective; which is contrary to the original constitution of the government, and destructive of it, and the peace and welfare of the nation.

VOL. I.

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lords and commons having therefore determined this main fundamental article, that there was a vacancy of the throne, they proceeded to fill up that vacancy in such manner as they judged the most proper. And this was done by their declaration of 12 February 1688°, in the following manner: "that "William and Mary, prince and princess of Orange, be, " and be declared king and queen, to hold the crown and "royal dignity during their lives, and the life of the survivor "of them; and that the sole and full exercise of the regal "power be only in, and executed by, the said prince of Orange, in the names of the said prince and princess, during their joint lives: and after their deceases the said "crown and royal dignity to be to the heirs of the body of "the said princess; and for default of such issue to the "princess Anne of Denmark and the heirs of her body; and "for default of such issue to the heirs of the body of the said prince of Orange.”

66

66

66

PERHAPS, upon the principles before established, the convention might (if they pleased) have vested the regal dignity in a family entirely new, and strangers to the royal blood; but they were too well acquainted with the benefits of hereditary succession, and the influence which it has by custom over the minds of the people, to depart any farther from the antient line than temporary necessity and self-preservation required. They therefore settled the crown, first on king William and queen Mary, king James's eldest daughter, for their joint lives: then on the survivor of them; and then on the issue of queen Mary: upon failure of such issue, it was limited to the princess Anne, king James's second daughter, and her issue; and, lastly, on failure of that to the issue of king William, who was the grandson of Charles the first, and nephew as well as son-in-law of king James the second, being the son of Mary his eldest sister. This settlement included all the protestant posterity of king Charles I. except such other issue as king James might at any time have, which was totally omitted, through fear of a popish succession. And this order of succession took effect accordingly.

THESE three princes therefore, king William, queen Mary, and queen Anne, did not take the crown by hereditary right

c Com. Journ. 12 Feb. 1688.