Thomas v. Sorrel, in the Exchequer-chamber, upon the validity of a dispensation of the statute of Edward VI. touching the selling of wine.* Here the Judges laid it down as a settled position, that there never can be an abrogation, or a suspension (which is a temporary abrogation,) of an act of parliament but by the legislative power. He thus concluded:-"My lord, by the law of all civilized nations, if the Prince does require something to be done which the person who is to do it considers unlawful, it is his duty rescribere Principi. This is all that was done here, and in the most humble manner that could be thought. of. Your Lordships will please to observe how careful the defendants were that they might not any way justly offend the King; they did not voluntarily interpose, as they might have done, by giving their advice as peers; they never stirred till a command which they deemed unlawful was laid upon themselves. When they made their Petition, they only went so far as to ask that they might not be compelled to read the Declaration-without even praying that it might be revoked. My Lord, as to all the matters of fact alleged in the Petition,-that they are perfectly true we have shown by the Journals of both Houses. In every instance which the petitioners mention, this power of dispensation was considered in Parliament, and, on debate, declared to be contrary to law. They could have no design to diminish the prerogative, because the King hath no such prerogative. Seditious, my lord, the Petition could not be, nor could it possibly stir up sedition in the minds of the people, because it was presented to the King in private and alone. False it could not be, for the matter of it must be seen to be strictly There could be nothing of malice, for the occasion, instead of being sought, was forced upon them. A libel it could not be, for the intent of the defendants was innocent, and they kept strictly within the bounds set by the law, which gives the subject leave to apply to his Prince by petition when he is aggrieved."+

true.

The acquittal which followed was mainly ascribed to this speech of Somers, the effect of which upon the jury was great[JUNE 30, 1688.] ly heightened by the modesty and grace with which it was delivered. He now and ever merited the praise that "his pleading at the bar was masculine and persuasive-free from every thing trivial or affected."

The Revolution immediately followed.

CHAPTER CVII.

CONTINUATION OF THE LIFE OF LORD SOMERS TILL HE RECEIVES THE

GREAT SEAL.

FROM the unostentatious character of Lord Somers, there is much difficulty in ascertaining the exact share which he had in originating

*

Vaughan, 330.

† 12 St. Tr. 396.

the bold scheme to expel from the throne, for misrule, him who was the right heir of William the Conqueror and [A. D. 1688.] of the Saxon Kings; but there can be no doubt that the Whig leaders, who were now driven to resort to the sacred right of resistance, and who thought there was a sufficient chance of rescuing the nation from tyranny to justify the attempt, in conducting the enterprise were mainly guided by his advice. From this time he was From this time he was "the life, the soul, the spirit of his party."* Tindal says that "he was admitted into the most secret councils of the Prince of Orange, and was one of those who concocted the measure of bringing him over." :"+

On the very day of the acquittal of the Bishops, and probably by the hand of their junior counsel, was drawn the "Association," a paper enumerating the various acts of James's [JUNE 30.] tyrannical government, and inviting William to rescue the nation from Popery and arbitrary power. Somers did not put his own name to it, but, along with the Earl of Devonshire, the Earl of Danby, Lord Lumley, the Bishop of London, Admiral Russell, and other men in high station, it was signed by his bosom friend the Earl of Shrewsbury, with whom he had always continued to live in the closest intimacy. This nobleman soon after secretly left England, and joined the Prince of Orange at the Hague, bringing with him a supply of 40,000l., a considerable part of which he was said to have borrowed from Father Petre, and other Catholics,-" holding it no sin to impoverish and spoil the enemy."‡

The Prince's "Declaration," which came out soon after, and in which he announced his design to proceed to England "to have a free and lawful parliament assembled for the preservation of the Protestant religion, and for securing to the whole nation the free enjoyment of their laws and liberties;"-if not framed by Somers, certainly had his previous approbation.

When William had landed in England, Somers still avoided making himself conspicuous, but he attended all the meetings of the Whig leaders, prompted their measures, and, on the flight of James, he concurred in the advice that a Convention should be assembled to guard against the notion of a change of dynasty by conquest, and to lay the foundations of a free monarchy on the constitutional basis of the national will. He had declined the overtures made to him to be returned to the House of Commons in the last two parliaments held in the reign of Charles II., and in the parliament summoned by James II.; but he was now prevailed upon openly to adventure on the stormy sea of public life. In his thirty-seventh year he was elected to the Convention Parliament, as representative for his native city of Wor

cester.

From the first meeting of the two Houses a difference of sentiment appeared between them. The Commons were almost unanimously for dethroning James, and disregarding the claims of his son; while a * Letter of Lord Sunderland to King William. Continuation of Rapin, vol. ii. 770.

VOL. IV.

7

‡ Ib.

majority of the Lords, with a strong feeling in favour of the divine right of kings, were desirous of some expedient whereby immediate danger to religion and liberty might be warded off, without violating the order of succession to the crown.

Somers from the first led the deliberations of the lower House. In a maiden speech he laid down the true principles of. [JAN. 28, 1689.] limited monarchy; he showed that James had forfeited his right to allegiance, and he pointed out a parallel case which had occurred in the history of Sweden, when King Sigismund, having attempted to subvert the laws and religion of his native country, and having fled to a foreign state, was set aside, and Charles VIII. was set upon the throne. He concluded by moving a committee of the whole House" on the state of the nation."* The debate terminated in the memorable Resolution which he drew-not in the language which he himself would have selected, but in such as might be suited to the opinions and prejudices of others: "That King James II., 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 become vacant."+

The following day Somers gained a signal triumph in the agreement. of the House of Commons, by acclamation, to the principle on which the "Exclusion Bill" had been framed, and their vote, without a dissentient voice, that it hath been found by experience inconsistent with the safety and welfare of this Protestant kingdom that it should be governed by a Popish Prince." There is evidently a broad distinction between the Crown and any subordinate political office; nor can it be considered at all inconsistent with the doctrine of toleration to require for the public security that the Chief Magistrate shall be of the religion of the majority of the nation, leaving him of course full liberty of conscience, and of worship in a private station. In Saxony and other states a different rule has been observed, and some confidence might be placed in a well-defined prerogative, and in the forbearance of modern times; but there is an evident advantage in the Sovereign being of the national religion:-which may fairly be secured by the penalty of loss of power for dissent. This restraint of course never can be complained of by the present royal family of England, as it was the condition on which they accepted the throne; and if it be unjust, we should transfer our allegiance to the Duke of Modena, who is sprung from Charles I., and is the lineal heir of the monarchy.

The two resolutions being sent up to the Lords for their concurrence, the latter was carried unanimously, but the former, guarded and qualified as it was, raised among their Lordships great alarm and opposition.

† Parl. Hist. 50.

* 5 Parl. Hist. 42. Somers's Tract on the Exclusion Bill, entitled "A History of the Succession, &c.," was republished soon after William landed, and had a considerable effect upon the public mind.

In order to save a nominal allegiance to the late King, it was first proposed that there should be a Regency-"with the administration of regal power under his name, as the best and safest way to preserve the Protestant religion and the laws of this kingdom." This was supported by all sections of the Tories-as well by those who really meant to exclude James from the enjoyment of power, such as the Earl of Nottingham, its great promoter, as by those who, like the Earl of Clarendon, were anxious for his return upon terms of security for their religion and liberty. The motion was negatived only by a majority of two,--the numbers being 51 to 49. Next came a close division of 55 to 46 on the abstract resolution, "that there is an original contract between King and people," which perhaps was necessary by way of negativing the doctrine of the divine origin of kingship-opposed to any human legislation in regulating the descent of the crown. But in coming to the "abdication," and the "vacancy of the throne,” the tide turned, and, by a majority of 55 to 41, it was resolved to substitute the word “deserted" for "abdicated," and entirely to omit the clause declaring "the throne to be vacant;" Lord Danby and his friends considering the young Prince as spurious, and wishing that the Princess of Orange should be declared successor by hereditary right.*

The amendments were reported to the Commons-with the request of a Conference. This was carried on by written reasons, and at the end of it the Commons determined, by 282 to 151, to adhere to the words of their resolution.

Then followed the celebrated "Free Conference" between the two Houses which was conducted by vivâ voce debate. [FEBRUARY, 1689.] Somers was one of the managers for the Commons, and he being pitted against the Earl of Nottingham, the cause of "abdication and the vacancy of the throne" rested chiefly on his shoulders. It must be confessed that the speeches on this occasion are by no means what might have been expected from enlightened statesmen settling the constitution of a great nation, and rather remind us of the quibbling argumentations of pleaders in a court of law on a special demurrer to a declaration or plea for want of form. Somers defends the word "abdicate" by quotations from Grotius, Calvin's Lexicon Juridicum, Bressonius de Verborum Significatione, Budæus, Pralejus, and Spicilegius; and then he falls foul of the word " desert," which, from its etymology and its use, he contends is wholly inapplicable to a permanent renunciation, and means only a voluntary relinquishment-with the power of resumption.† "The vacancy of the throne" he chiefly

* The credit pretended be given to the story of "the warming-pan" is the great blot on the Revolution, and is discreditable to all parties; but it was most eagerly caught at by the Tories, that they might reconcile their transference of allegiance to their doctrine of indefeasible right. There are very few persons now alive who could so satisfactorily be shown to be sprung from their lawful parents as the infant Prince, by evidence then before the world, was demonstrated to be the son of James II. and Mary of Modena, his queen.

† Burton in his work on "Melancholy," first published in 1621, uses the word "abdicated" in the same sense as Mr. Somers. So Molineus, in his "Treatise on Fiefs," says—" Sequitur quod non protest alienari, abdicari nec præscribi.”

defends from the record in 1 Hen. IV., where it is said that upon the deposition of Richard II. "Sedes regalis fuit vacua, et confestim, ut constabat ex præmissis, regnum Angliæ vacare, then Henry riseth up out of his place as Duke of Lancaster, and claims the Crown,-dictum regnum Angliæ sicut præmittitur vacans.una cum corona vendicat." Yet it is to Mr. Somers's reasons, such as they are, that Nottingham and the other managers for the Lords chiefly apply themselves in supporting their word "desert," and insisting that, by the constitution of England, the throne never can by possibility be in contemplation of law one moment vacant. Amidst these technicalities, the real struggle was, whether there should be a change of dynasty, or the experiment should be made of Protestant Regents governing in the name of Popish Sovereigns. Somers and the Whigs were not only afraid of the public confusion which might follow from such an anomalous administration of the government, but were strongly convinced that there could be no permanent reformation of abuses till, by a break in the succession, the doctrine of "divine right" should be necessarily renounced and discountenanced by the family on the throne.

;

The conference closed without any convert being made; but, the Commons remaining firm, and William threatening to return to Holland, the Lords, by a majority of sixty-two to forty-seven, resolved not to insist on their amendments to the original vote; and they precipitately followed this up by a resolution "that the Prince and Princess of Orange shall be declared King and Queen of England, and the dominions thereunto belonging." The object now probably was to avoid any recognition of the Whig notion of a contract between the governors and the governed. "But the Commons with a noble patriotism delayed to concur in this hasty settlement of the crown, till they should have completed the declaration of those fundamental rights and liberties, for the sake of which alone they had gone forward with this great revolution."+ A committee had been appointed, of which Somers was the leading member, "to bring in general heads of such things as were absolutely necessary to be considered for the better securing our religion, law, and liberties." The Committee made their Report the day after the last vote of the Lords; and though it is little noticed by historians who have looked only to the "Declaration of Rights," and the Bill of Rights,' which sprang from it, it is a most interesting document, and reflects immortal honour on the name of Somers. The careful reader will perceive that he here suggests some few grievances and remedies which were omitted by the two Houses in their ensuing vindication of public liberty; but the discrimination, the moderation, and the firmness dis

.

* 5 Parl. Hist. 68. "The dispute about the words 'abdicate' or 'desert,' says Bolingbroke, "might have been expected in some assembly of pedants, where young students exercised themselves in disputation, but not in such an august assembly of the Lords and Commons in solemn conference upon the most impor

tant occasion."

† Parl. Hist. 93; Lords' Journ. Feb. 6. The Scottish Parliament proceeded in a more manly manner, by a direct vote that James had forefaulted the crown. Hall. Const. Hist. iii. 134.