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pally of those instances, wherein the parliament has afferted or exercised this right of altering and limiting the succession: a right which, we have feen, was before exercifed and afferted in the reigns of Henry IV, Henry VII, Henry VIII, queen Mary, and queen Elizabeth,
THE first inftance, in point of time, is the famous bill of exclufion, which raised such a ferment in the latter end of the reign of king Charles the fecond. It is well known, that the purport of this bill was to have set aside the king's brother and prefumptive heir, the duke of York, from the fucceffion, on the fcore of his being a papist; that it paffed the house of commons, but was rejected by the lords; the king having alfo declared beforehand that he never would be brought to confent to it. And from this tranfaction we may collect two things: 1. That the crown was univerfally acknowleged to be hereditary; and the inheritance indefeasible unless by parliament; elfe it had been needlefs to prefer fuch a bill. 2. That the parliament had a power to have defeated the inheritance: elfe fuch a bill had been ineffectual. The commons acknowleged the hereditary right then fubfifting; and the lords did not difpute the power, but merely the propriety, of an exclufion. However, as the bill took no effect, king James the fecond fucceeded 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 circumftances) brought on the revolution in 1688.
THE true ground and principle, upon which that memorable event proceeded, was an entirely new cafe 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 fucceffion, and a new limitation of the crown, by the king and both houses of parliament: it was the act of the nation alone, upon a conviction that there was no king in being. For in a full assembly of the lords and commons, met in convention upon the fuppofition of this vacancy, both
houfes came to this refolution; "that king James the fecond, "having endeavoured to fubvert the conftitution of the kingdom by breaking the original contract between king and people; "and, by the advice of jefuits and other wicked perfons, having "violated the fundamental laws; and having withdrawn himself "out of this kingdom; has abdicated the government,and that the "throne is thereby vacant."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 fucceffion; which from the conquest had lasted above fix hundred years, and from the union of the heptarchy in king Egbert almoft nine hundred. The facts themselves thus appealed to, the king's endeavours to fubvert the conftitution by breaking the original contract, his violation of the fundamental laws, and his withdrawing himfelf out of the kingdom, were evident and notorious: and the confèquences drawn from these facts (namely, that they amounted to an abdication of the government; which abdication did not affect only the perfon of the king himself, but also all his heirs, and rendered the throne abfolutely and completely vacant) it belonged to our ancestors to determine. For whenever a queftion arifes between the fociety at large and any magistrate vested with powers originally delegated by that fociety, it must be decided by the voice of the fociety itself: there is not upon carth any other tribunal to refort to. And that these confequences were fairly deduced from these facts, our ancestors have folemnly determined, in a full parliamentary convention reprefenting the whole fociety. The reafon upon which they decided may be found at large in the parliamentary proceedings of the times; and may be matter of inftructive amusement for us to contemplate, as a fpeculative point of hiftory. But care must be taken not to carry this enquiry farther, than merely for inftruction or aufement. The idea, that the confciences of pofterity were concerned in the rectitude of their ancestors' decifions, gave birth to thofe dangerous political herefics, which fo long distracted the fiate, but at length are all happily extinguished. I therefore rather chufe to confider this great political measure, upon the folid
y Com. Jan. Feb. 1699.
lid footing of authority, than to reason in it's favour from it's juftice, moderation, and expedience: because that might imply a right of diffenting or revolting from it, in cafe we thould think it to have been unjuft, oppreffive, or inexpedient. Whereas our ancestors having moft indifputably a competent jurifdiction to decide this great and important question, and having in fact decided it, it is now become our duty at this diftance 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 reft this fundamental tranfaction, in point of authority, upon grounds the leaft liable to cavil, we are bound both in justice and gratitude to add, that it was conducted with a temper and moderation which naturally arofe from it's equity; that, however it might in fome refpects go beyond the letter of our antient laws, (the reafon of which will more fully appear hereafter) it was agreeable to the fpirit of our conftitution, and the rights of humaħ nature; and that though in other points (owing to the peculiar circumftances of things and perfons) it was not altogether fo 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 hiftory. In particular, it is worthy obfervation that the convention, in this their judgment, avoided with great wisdom the wild extremes into which the vifionary theories of fome zealous republicans would have led them. They held that this misconduct of king James amounted to an endeavour to fubvert the conftitution, and not to an actual fubverfion, or total diffolution of the government, according to the principles of Mr Locke': which would have reduced the fociety almost to a state of nature; would have levelled all diftinctions of honour, rank, offices, and property; would have annihilated
z Sec chap. 7.
a on Gov. p. 2. c. 19.
the fovereign power, and in confequence have repealed all pofitive laws; and would have left the people at liberty to have erected a new system of ftate 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 confequent vacancy of the throne; whereby the government was allowed to fubfift, though the executive magiftrate was gone, and the kingly office to remain, though king James was no longer king. And thus the constitution was kept intire; which upon every found principle of government muft otherwise have fallen to pieces, had fo principal and constituent a part as the royal authority been abolished, or even fufpended.
THIS fingle poftulatum, the vacancy of the throne, being once established, the reft that was then done followed almoft of courfe. 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 fucceffor appointed by parliament;) if, I fay, a vacancy by any means whatsoever fhould happen, the right of difpofing this vacancy feems naturally to refult to the lords and commons, the trustees and representatives of, the nation. For there are no other hands in which it can fo properly be intrufted; and there is a neceffity of it's being intrusted, fomewhere, else the whole frame of government must be diffolved and perish. The 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 fuch manner, as they judged the moft proper. And this was done by their declaration of 12 February 1688, in the following manner: "that "William and Mary, prince and princefs of Orange, be, and be "declared king and queen, to hold the crown and royal dignity.
during their lives, and the life of the furvivor of them; and "that the fole and full exercife of the regal power be only in, "and executed by, the faid prince of Orange, in the "the faid prince and princefs, during their joint lives
names of and after "their
b Law of forf eit. 118, 119.
c Com. Journ. 12 Feb. 168S.
"their deceases the faid crown and royal dignity to be to the heirs "of the body of the said princefs; and for default of such iffue "to the princefs Anne of Denmark and the heirs of her body; "and for default of fuch iffuc to the heirs of the body of the faid "prince of Orange."
PERHAPS, upon the principles before established, the convention might (if they pleased) have vefted the regal dignity in a family intirely new, and firangers to the royal blood: but they were too well acquainted with the benefits of hereditary fucceffion, and the influence which it has by cuftom over the minds of the people, to depart any farther from the antient line than temporary neceffity and felf-preservation required. They therefore fettled the crown, firft on king William and queen Mary, king James's eldest daughter, for their joint lives; then on the furvivor of them; and then on the iffue of queen Mary: upon failure of fuch iffue, it was limited to the princess Anne, king James's fecond daughter, and her iffue; and laftly, on failure of that, to the iffue of king William, who was the grandfon of Charles the firft, and nephew as well as fon in law of king James the fecond, being the fon of Mary his eldest fifter. This fettlement included all the proteítant pofterity of king Charles I, except fuch other iffue as king James might at any time have, which was totally omitted through fear of a popish succesfion. And this order of fucceffion took effect accordingly.
THESE. three princes therefore, king William, queen Mary, and queen Anne, did not take the crown by hereditary right or defcent, but by way of donation or purchase, as the lawyers call it; by which they mean any method of acquiring an eftate otherwife than by defcent. The new fettlement did not merely confift in excluding king James, and the perfon pretended to be prince of Wales, and then fuffering the crown to defcend in the old hereditary channel: for the ufual course of descent was in some instances broken through; and yet the convention ftill kept it in their eye, and paid a great, though not total, regard to it. Let us fee how the fucceffion would have ftocd, if no abdication had