The Judges admitted that this would have been a good defence if the prisoners had acted under the authority of an usurper who, like Henry the Fourth and Richard the Third, bore the regal title, but declared that such a defence could not avail men who had indicted, sentenced, and executed one who, in the indictment, in the sentence, and in the death warrant, was designated as King.

It followed, therefore, that whoever should support a Regent in opposition to James would run great risk of being hanged, drawn, and quartered, if ever James should recover supreme power; but that no person could, without such a violation of law as Jeffreys himself would hardly venture to commit, be punished for siding with a King who was reigning, though wrongfully, at Whitehall, against a rightful King who was in exile at Saint Germains.

[648] It should seem that these arguments admit of no reply; and they were doubtless urged with force by Danby, who had a wonderful power of making every subject which he treated clear to the dullest mind, and by Halifax, who, in fertility of thought and brilliancy of diction, had no rival among the orators of that age.

Yet so numerous and powerful were the Tories in the Upper House that, notwithstanding the weakness of their case, the defection of their leader, and the ability of their opponents, they very nearly carried the day.

A hundred Lords divided.
Forty-nine voted for a Regency, fifty-one against it.