The History and Proceedings of the House of Commons: Volume 3, 1695-1706. Originally published by Chandler, London, 1742.
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The third Session of Queen Anne's first Parliament.
Her Majesty's Speech to the Parliament.
'I Have called you together as soon as I thought you could conveniently come out of your Countries, that no Time might be lost in making our Preparations for carrying on the present War, in which I do not doubt of your chearful Concurrence; since we cannot but be sensible, that on the Success of it depends our own Safety and Happiness, and that of all Europe.
'I hope I have improved the Confidence you reposed in me last Year, to your Satisfaction and the Advantage of us, and our Allies, by the Treaty with the King of Portugal, and the Declaration of the Duke of Savoy, which in a great measure may be imputed to the Chearfulness with which you supported me in this War, and the Assurance with which you trusted me in the Conduct of it: And we cannot sufficiently acknowledge the Goodness of Almighty God, who is pleased to afford us so fair a Prospect as we have now, of bringing it to a glorious and speedy Conclusion.
'I must therefore desire you, Gentlemen of the House of Commons, to grant me such Supplies as shall be requisite to defray the Charge of the War in the next Year, with regard not only to all our former Engagements, but particularly to our Alliance lately made with the King of Portugal, for recovering the Monarchy of Spain from the House of Bourbon, and restoring it to the House of Austria: Which Treaty being in itself of the highest Importance imaginable, and requiring all possible Dispatch in the Execution of it, has necessarily occasion'd a great Expence even in this present Year, tho' not so much as it will require, and for which, I hope, we shall be amply recompensed in the next.
'I must take notice to you, That tho' no particular Provision was made in the last Session, either for the Charge of our present Expedition to Portugal, or for that of the Augmentation-Troops desired by the States-General, yet the Funds given by Parliament, have held out so well, and the Produce of the Prizes has prov'd so considerable, that you will find the Public will not be in debt by reason of either of these additional Services.
'I may further observe to you, That tho' the Funds for Civil Government are diminish'd by the War, I have, in conjunction with the States-General, contributed out of my own Revenue towards some Public Services, and particularly the Support of the Circle of Swabia, whose firm Adherence to the Interest of the Allies, under the greatest Pressures, did very well deserve our seasonable Assistance: And I shall still be careful not to engage myself in any unnecessary Expence of my own, that I may have the more to spare towards the Ease of my Subjects.
'I must also recommend to you, to make some Regulation for preventing the excessive Price of Coals. I have examin'd this Matter, and taken particular Care to appoint, Convoys for that Service; but the Price has not been in the least abated, notwithstanding a very considerable Quantity has been imported since that Time. This gives great Ground of Suspicion there may be a Combination of some Persons to enrich themselves by a general Oppression of others, and particularly the Poor. I will deserve your Consideration how to remedy this great Inconvenience.
'And in all your Affairs I must recommend to you as much Dispatch as the Nature of them will admit: This is necessary to make our Preparations early, on which in great measure depends the good Success of all our Enterprizes.
'I want Words to express to you my earnest Desire of seeing all my Subjects in perfect Peace and Union among themselves; I have nothing so much at heart as their Welfare and Happiness: Let me therefore desire you all, That you would carefully avoid any Heats or Divisions that may disappoint me of that Satisfaction, and give Encouragement to the common Enemies of our Church and State.'
Commons Address to the Queen.
'Most gracious Sovereign, We your Majesty's most dutiful and loyal Subjects, the Commons in Parliament assembled, do humbly return your Majesty our most hearty Thanks for your Majesty's most gracious Speech from the Throne.
'We are truly sensible of your Majesty's earnest Endeavours to bring the War to a glorious and speedy Conclusion, of which your Majesty has given us so fair a Prospect by your great Wisdom and Conduct, in engaging the King of Portugal and Duke of Savoy in your Alliance, for recovering the Monarchy of Spain from the House of Bourbon, and restoring it to the House of Austria.
'We do most gratefully acknowledge your Majesty's singular Care in the good Management and Application of the public Money, whereby your Majesty's Exchequer hath greater Credit in this so expensive a War than was ever known in the most flourishing Times of Peace; and your most signal and unparallell'd Grace and Goodness to your People, in contributing out of your own Revenue towards the public Service, particularly Your Majesty's most seasonable Assistance to the Circle of Swabia.
'The many Blessings we enjoy under your Majesty's most auspicious Reign, and your tender Regard to the general Welfare and Happiness of your Subjects, justly require our utmost Returns of Duty and Gratitude. And your Majesty may be assured, that your faithful Commons will support your Majesty in your Alliances, and effectually enable your Majesty to carry on the War with Vigour, to which nothing can more contribute than a firm Union among ourselves: We therefore crave Leave further to assure your Majesty, That we will, according to your Majesty's Desire, carefully avoid any Heats or Divisions that may give Encouragement to the common Enemies of the Church and State.
Proceedings on the Bill against Occasional Conformity.
On the 25th of November, a Motion was made in the House of Commons, for bringing in the Bill against Occasional Conformity: Great Opposition was made to it; the Court was against it, but it was carried by a great Majority, that such a Bill should be brought in. So a new Draught was formed. In it, the Preamble, that was in the former Bill, was left out. The Number, besides the Family, that made a Conventicle, was enlarged from five to twelve: And the Fine set on those who went to Conventicles, after they had received the Sacrament, besides the Loss of their Employment, was brought down to fifty Pound. The following Speech was made by Sir John Packington on that Occasion, and seems to contain the Sense of the Majority of that House.
Sir John Packington's Speech thereon.
'Mr. Speaker, Her Majesty has been pleased in all her Speeches, to give us so many Assurances of supporting the Church of England as by Law established; and also such Instances of being punctual to her Promise in this Particular, that I think she very justly deserves the Title of Defender of the Faith. Her desire to see this Bill succeed the last Sessions of Parliament, was sufficiently shewn by the Prince of Denmark's constant Attendance upon it; and I believe the Reason why some Persons opposed it, was because the Queen seemed to espouse it.
'But pray, Gentlemen, let us consider, how this Bill came to be lost? Why, two or three noble Lords were by turns to be absent? The Miscarriage of the Bill was imputed to their want of Attendance, when at the same time they were desired to be out of the way. And is it not a shame, that we, who have given fourscore Millions of Money for the Preservation of the Protestant Religion, should have trimming at last in a Bill to prevent Hypocrisy?
* Designed against such as withdrew into the Speaker's Chamber, when the Question was put for passing the Bill.
'It was a Law among the Athenians, that when any Mutiny or Difference arose in the City of Athens, the Inhabitants should take one side or other, or else they banish'd them the City: And truly, Sir, when Members of Parliament, and Ministers of State stand neuter in matters that nearly concern the Interest of the Church of England, and have not Courage to own their Opinion, I think they very well deserve to be turned out. Every * Gentleman here is sent up to give his Vote, and when he declines that, he cannot be properly said to serve the Place he represents. This I take to be the worst sort of Cowardise.
'But pray, Sir, let us enquire into the meaning of all this trimming. Are we afraid to disoblige a Party of Men, that are against the Church and Government? Whose Principle of hatred and malice to the Family of the Stuarts descends to them by Inheritance? Men, Sir, that offer'd open Violence to her Majesty's Royal Grandfather; Men that have not only the Impudence at this time to justify that Fact, but to turn the day of his Murder into Ridicule, and keep a Calf'sHead-Feast in the City. And can we imagine that those who are Enemies to her Majesty's Person and Office, and that were for hindering her from coming to the Throne, would not be glad of any Opportunity to shove her out of it?
'Are these the Men to be countenanced and encouraged? This, in plain English, makes me believe this Ministry has too great a Resemblance of the last; that my Lord S—d is risen from the Dead, and now become Prime Minister of State.
'And now I am upon this Subject, give me leave to tell some Gentlemen here, who have been bellowing and roaring against Persons for taking Places in the late Reign, that it is a Reflection upon them to hold and continue their Places, in the Company of those that they have been exclaiming against.
'They may remember, if they please to recollect the Language in the late Reign—Sir, you must turn this Gentleman out, or else I cannot serve you. — —And if any Gentleman was in the Interest of the Church of England, 'twas a sufficient Exception against his being employed. No Gentleman of that Principle was then thought fit to be a DeputyLieutenant, or a Justice of the Peace. If we would take the same Resolution, and the same Spirit, things might be better managed than they are.
'I did wonder to hear so many B—ps against this Bill, but that wonder ceased, when I considered whom they owed their Preferment to. The A. B—p of C—y, I think, was promoted to that See by my Lord S—d's Interest; and being asked what Reasons he had against this Bill, replied, he had not well consider'd the Bill, but that my Lord S—d told him it ought not to pass. —This was a very weighty Reason for the Head of our Ch—h to give; and yet, I dare say, none of the rest of them could give a better. One would be provoked, by the late Behaviour of the B—ps, to move for leave to bring in a Bill for the Toleration of Ep—cy; for, since they are of the same Principles with the Dissenters, it is but just, I think, that they should stand on the same foot.
'Now, Sir, give me leave to answer some Objections made against this Bill. The first is, that it is unseasonable at this time. Why unseasonable? Is it not as seasonable for us to pass a Law, for the further Defence of the Church of England here, as it was for Scotland to pass an Act last Sessions for the Security of the Kirk there? Why unseasonable? Does the Success of our Arms abroad, or the levying Money at home depend upon it? No Gentleman can say, that either of them do; and since there can be no Objection made against the Goodness of the Bill, why should we defer the putting it in execution?
'Another Argument against this Bill, is, that it will create Divisions. Are we to allow a Schism to avoid Division? The Dissenters hold it lawful to communicate sometimes, and if so, why unlawful to communicate at other times? But oh! the fear of offending Dissenters is to be urged as an Argument, and not provoking the Church of England: Either the Ministry must think we are so good-natur'd, as not to be displeased at any thing they do, or else that our Number is so inconsiderable, that they do not value it if we are displeased.
'Another Argument against this Bill proceeds from the Number and Strength of the Dissenters. This I take to be an excellent Argument for the Bill; for, if they are so strong and numerous, it is high time for us to guard ourselves against them, and I appeal to every Gentleman here, whether one Dissenter in Place, is not capable of doing more mischief to the Church of England, than ten out of it? Suppose, Mr. Speaker, the Dissenters had the power in their own hands (as they will certainly in a short time, if not restrained) would they admit the Church of England into Places of Trust, and into the Legislature, upon Occasional Conformity?
'Her Majesty has been so generous as to offer what further Security they think fit for the Religion in Scotland; how comes it, that some Gentlemen should represent her Majesty so much concerned to preserve a Religion she is not of, and so unwilling to grant a Security for the Church in which she expects to be saved? According to this Method, one might expect the Scotch Covenant to be brought again into England, and that the Presbyterian-Party of that Kingdom, should remonstrate (as they did to her Royal Grandfather) the necessity of having one Religion, and one Worship in both Kingdoms.
'We have been under great Expences in keeping these Gentlemen out, and have been traduced as Persons designing a French Government; and all the Return we are like to have for our Services and Sufferings, in our Purses and Reputations, is, that these Persons are like at last to become our Masters, which is a very great Discouragement.
'Mr. Speaker, I take this Practice of Occasional Conformity, to elude the Force of one of the best Laws made in the Church of England's Defence, that it is scandalous and knavish in itself, and I will pretend to foretel this; that, by the Benefit of this Occasional Conformity, the Dissenters will come to be the Majority of this House; and then I will venture to pronounce the days of the Church of England few. That I may not see such dismal effects of our pretended Moderation, I heartily wish Success to this Bill.'
On the 27th the Commons voted 40,000 Men to act in conjunction with the Allies, 10,000 Augmentation-Troops for the next Year's Service, 1704; and 7000 Foot, and 1000 Horse and Dragoons for Portugal: And that 1,801,000 l. be granted for these Forces, Guards and Garisons, and Payments to the Allies. Two Days after, they voted 40,000 Seamen, including 5000 Marines, for the Sea Service, 1704. Mr. Secretary Hedges acquainted the House, the 30th, that her Majesty had been pleas'd to give this Answer to their Address about stopping all Correspondence with France, 'That she thought the Continuance of the stop of all Post Letters, Trade, and all other Correspondence with the Enemies, so necessary for the public Good, that she would forthwith give Orders to her Minister at the Hague, to insist upon it with the States-General, as the Commons desir'd.' The same Day the House voted an Address to her Majesty, assuring her, they would provide for the making good such Alliances as her Majesty had made, or should make, with the Duke of Savoy.
Vote occasion'd by the great Storm.
Several Men of War having been lost in the great Storm which happen'd about this Time, they unanimously resolved, 'That an Address be presented to her Majesty, expressing the great Sense the House had of the Calamity fallen upon the Kingdom by the late violent Storm, and that they could not see any Diminution of her Majesty's Navy, without making Provision to repair the same: Wherefore they besought her Majesty, that she would immediately give Directions for repairing this Loss, and for building such Capital Ships as her Majesty should think fit; and to assure her Majesty, that at their next Meeting the House would effectually make good that Expence; and would give Dispatch in raising the Supplies already voted, for making good her Majesty's Treaties with the King of Portugal, and all her Majesty's other Allies, and would consider of effectual Ways for promoting of Trade, for managing her Majesty's Navy Royal, and for encouraging the Seamen.'
Land-Tax Bill pass'd.
December. 17. Mr. Speaker with the House went up to attend her Majesty, at the House of Lords; and being returned, reported, that her Majesty had been pleased to give the Royal Assent to An Act, for granting an Aid to her Majesty, by a Land-Tax: and afterwards to make a most gracious Speech to both Houses, of which he had desired and obtained a Copy, which he read to the House, and is as follows, viz.
Queen's Speech concerning a Conspiracy in Scotland.
'I Think it proper, upon this Occasion, to acquaint you, that I have had unquestionable Informations, of very ill Practices and Designs carried on in Scotland by Emissaries from France, which might have proved extremely dangerous to the Peace of these Kingdoms; as you will see by the Particulars, which shall be laid before you, as soon as the several Examinations, relating to this Matter, can be fully perfected, and made public without Prejudice. In the mean time, I make no doubt, but, by this seasonable Discovery, I shall be able to give such directions for our Security, as will effectually prevent any ill Consequences from these pernicious Designs.
'I am very sensible of your great Readiness and Affection for the public Service, by presenting me so early in the Sessions with a considerable part of your Supplies: I depend entirely upon your continuing with the same Zeal to dispatch the remainder of them; that so we may be prepared to give the speediest Assistance to our Allies, and to defeat the malicious Designs of our Enemies; who cannot be more industrious to contrive the Ruin of this Kingdom, and of the Protestant Religion, than I shall always be vigilant and careful both of their present Preservation, and for their future Security.'
Resolved, Nemine Contradicente, That an humble Address be presented to her Majesty, returning the Thanks of this House, for her most gracious Speech from the Throne, and for the communicating the Discovery her Majesty hath made of the wicked Designs against her Government; with assurance, that this House will stand by, and support her Majesty, and her Government, against all Pretenders, and all her Enemies whatsoever: Which Address was as follows.
'Most gracious Sovereign, We your Majesty's most dutiful and loyal Subjects, the Commons, in Parliament assembled, do return your Majesty our most humble and hearty Thanks, for your most gracious Speech from the Throne.
'We are truly sensible of your Majesty's great Goodness, and of the Confidence you repose in us, by communicating the Discovery of the ill Practices and Designs that have been carried on in Scotland, by Emissaries from France; whereby we have an Opportunity to repeat our unanimous Resolutions to stand by, and support your Majesty, and the Succession in the Protestant Line, as limited by Law, against all Pretenders, and all your Majesty's Enemies whatsoever.
'We want words to express to your Majesty, the detestation we have of any Conspiracies and Attempts, to disturb the Peace and Prosperity of your happy Government; under which, we must think our Security sufficiently provided for, since your Majesty has been pleased to give such directions, as may prevent all ill Consequences from them.
'It is a great Satisfaction to us, to find, that the Supplies we have already given, are so acceptable to your Majesty: We shall go on with the same Readiness and Zeal to dispatch the remainder of them, that we may enable your Majesty to give the speedier Assistance to your Allies, and to defeat the malicious Designs of your Enemies.
'Your faithful Commons can never have the least distrust of your Majesty's Vigilance and Care, for the Preservation of the Protestant Interest in general, of the Monarchy, and the Church of England, as by Law established: And we humbly beg leave to assure your Majesty, that we will never be discouraged, but will continue incessant in our Endeavours, by all proper Methods, to transmit them securely settled to Posterity.'
The 20th, Mr. St. John reported, that the Members appointed to search the Lords Journals, as to their Proceedings in relation to the Examination of any Persons, who are discovered to have a Design against her Majesty's Government, had searched the Lords Journals accordingly; and he read in his Place what they had found therein, and delivered the same in at the Table; where the same was again read.
A Motion being made, and the Question being proposed, That an humble Address be presented to her Majesty, setting forth the great Concern this House hath for her Majesty's Royal Prerogative, and the Resolution of this House to support the same; and that no Persons accused for Crimes, who are her Majesty's Prisoners, ought to be taken out of the Custody of the Crown, without her Majesty's leave; and a Debate arising in the House thereupon;
Then the main Question being put; Resolved, that an humble Address be presented to her Majesty, setting forth the great Concern this House hath for her Majesty's Royal Prerogative, and the Resolution of this House to support the same; and that no Persons accused for Crimes, who are her Majesty's Prisoners, ought to be taken out of the Custody of the Crown, without her Majesty's leave.
The 21st, Mr. Speaker reported, that the House did yesterday attend her Majesty at St. James's, and presented to her their Address; and that her Majesty was pleased to give a most gracious Answer, as followeth.
Her Majesty's Answer.
'Gentlemen, I am very well pleased with your Assurances of dispatching the Supplies, and with the other parts of this Address, in which you express so much Duty and Readiness to support, and to trust me.
Mr. St. John reported, from the Committee to whom it was referred to draw up an Address upon the Resolutions of yesterday, that they had drawn up an Address accordingly, which they had directed him to report to the House; which he read in his Place, and afterwards delivered in at the Table, where the same was read, and (with an Amendment) agreed unto by the House, as follows.
'Most gracious Sovereign, We your Majesty's most dutiful and loyal Subjects, the Commons of England, in Parliament assembled, beg leave humbly to lay before your Majesty the great and just Concern we are under, to see any Violation of your Royal Prerogative.
'Your faithful Commons believe the Administration of the Government best secured, when it is left to your Majesty, with whom the Law has entrusted it; and have so firm a dependance upon your Majesty's Affection to your People, and your great Wisdom, that they can never apprehend so little danger from any Conspiracy, as when the Examination thereof is under your Majesty's directions.
'We are therefore surprized to find, that when several Persons, suspected of treasonable Practices against your Majesty, were taken into Custody by your Messengers, in order to be examined; the Lords, in Violation of the known Laws of the Land, have wrested them out of your Majesty's hands, and without your Majesty's Leave or Knowledge, in a most extraordinary manner, taken the Examination of them solely to themselves; whereby a due Enquiry into the evil Practices and Designs against your Majesty's Person and Government, may, in a great measure, be obstructed.
'Your loyal Commons do therefore most earnestly desire your Majesty, to suffer no Diminution of that Prerogative, which, during your Majesty's Reign, they are confident will always be exerted for the Good of your People.
'And we humbly beg leave to assure your Majesty, that as we are resolved, by timely and effectual Supplies, to en able your Majesty to carry on the War, which you hav so gloriously begun; so we will, to the utmost of our power, support your Majesty in the Exercise of your just Prerogative at home, and the asserting of it against all Invasions whatsoever.'
January 3. Mr. Speaker reported, that he, with the House, did, before the Recess, present to her Majesty their humble Address of the twenty third of December last; and that her Majesty was pleased thereupon to give this most gracious Answer.
'I return you many Thanks for the Concern you express for my Prerogative; and for your repeated assurances of making the Supplies effectual, which will be greatly for the Honour and Advantage of the Kingdom.
Representation of the Lords to the Queen.
'May it please your most excellent Majesty, We your Majesty's most dutiful and loyal Subjects, the Lords Spiritual and Temporal in Parliament assembled, find ourselves under an unhappy necessity of making this our humble Application to the Throne, upon Occasion of an Address presented to your Majesty by the House of Commons, the 23d day of December last, and since that time published to the whole Nation in Print; by which the House of Lords is charged with the Violation of your Royal Prerogative, and of the known Laws of the Land; with wresting Persons suspected of treasonable Practices, and taken into Custody by Messengers, out of your Majesty's hands without your Leave or Knowledge, and in a most extraordinary manner taking the Examination of them solely to themselves; whereby a due Enquiry into the evil Practices and Designs against your Majesty's Person and Government, might in great measure be obstructed. And they conclude their Address, by most earnestly desiring your Majesty to suffer no diminution of your Prerogative, and promise to support you in the asserting it against all Invasions whatsoever. It is not possible for us to remain silent under this heavy Charge, so unjustly, and, without the least ground or colour, endeavoured to be fixed upon the whole Body of the Peers; which tending directly to create an ill Opinion of us in your Majesty, puts us under an inevitable necessity, of vindicating both the Legality and dutiful Manner of our Proceeding.
'The Expressions in the Address of the House of Commons are so very harsh and indecent, that we may truly affirm the like were never used of the House of Peers, in any Age, not even by that Assembly, which, under the name of the House of Commons, took upon them not only to abolish the House of Lords, but to destroy the Monarchy We shall carefully avoid making returns of that kind: We consider too much what we owe to ourselves; and we know too well the profound Respect due to your Royal Person, to let any Provocation transport us so, as to use Words unfit to be offered by us to our Sovereign.
'The Matter of this Address is no less injurious to us than the Terms. There was not the least Occasion for a just Objection to any Part of our Conduct in that Business to which the Address relates; the Proceeding was strictly justisiable by the known Laws and Customs of Parliament, it was carried on with the utmost Respect to your Majesty, and with true Zeal for the Safety of your Person and Government; all that was done was agreed to by the concurrent Opinion of the House, without the least Objection from any of our Members, who have the Honour of serving your Majesty in your great Offices and Employments.
'We humbly represent to your Majesty, that, by the known Laws and Custom of Parliaments, the House of Peers has an undoubted Right, in Cases where they conceive it to be for the Good and Safety of your Majesty and the Kingdom, to take Examinations of Persons charged with criminal Matters, whether such Persons be then in Custody or not, and also to order the Persons so to be examined, to be taken into Custody of your Majesty's sworn Officers attending the House, during such Examination, or to commit them to any other safe Custody that they shall think proper; and to restrain others, if they see cause, from having Access to, or Communication with them: The House of Lords has exercised this Right from time to time, as Occasions have required, without Objection. Our Records are filled with Precedents which warrant our Claim in every Part of it, and we presume to affirm to your Majesty, that the drawing this Right into question at any time, cannot but be of dangerous Consequence to the Liberties and Safety of the People, and to the Constitution of the Government, as tending to avoid, or render in great measure ineffectual the Enquiries of Parliaments, which are so absolutely necessary, especially where many and great Persons are engaged in dangerous Designs against the Government; or where ill Ministers abuse their Favour towards the oppressing or enslaving of the People. Your Majesty's Wisdom and Goodness make us secure at present against all Influences of that kind, and we unanimously and heartily pray we may long enjoy the Blessing of your Reign. But if it happens in future times, that ill Men should gain too great a degree of Favour with our Princes; how easy will it be for them to stifle or defeat all parliamentary Enquiries into their Crimes? For if the being in Prison, or in the hands of a Messenger, will protect Men from being examined in the House of Lords, or from being put into the Custody of the proper Officers of the House, during the Examination, and debarred from conversing with others; it will certainly be always in the Power of Favourites to cause those who can be Witnesses against them, as well as the Accomplices of their Designs, to be taken into Custody. And if Persons in Custody are out of the reach of the House of Lords, who are the hereditary Counsellors of the Crown, and in whom a judicial Power is lodged by the Constitution, it is not to be imagined that the Commons can pretend to a greater Power of Examining, Committing, or Restraining them.
'No House of Commons till now has given countenance to this dangerous Opinion, which does so directly tend to the rendring ill Ministers safe from the Examination of Parliaments: And we are persuaded no House of Commons hereafter will assert such a Notion, because they are not wont easily to part with a Power they have assumed; and it is certain, that they have several times taken upon them to exercise an Authority like that which they have so severely reflected on in their Address.
'This Consideration gave us the greater Astonishment, to find our Proceeding represented in the strange Terms of wresting Prisoners out of your Majesty's hands, and taking the Examination of them solely to ourselves. We believe the ordering Persons to be examined in that High-Court, where your Majesty is always present in Consideration of Law, and in that great Council where you may be present in your Royal Person, as often as you please, will never be thought an Exclusion of your Majesty from the Examinations, if that was intended to be insinuated by saying, we had taken the Examinations solely to ourselves. Having thus laid before your Majesty what it is we claim, and must insist on, as the indisputable Right of the House of Peers, which was never thought, in the time of your royal Ancestors, to be prejudicial to the just Prerogatives of the Crown, and which is manifestly necessary for the securing the Liberties of your People, whereof we are assured your Majesty will have an equal Care, We humbly beg leave to lay before you a short State of the particular Matter of Fact relating to these Prisoners; not doubting, but when the whole Proceeding is known to your Majesty, it will be approved not only as lawful, but every way respectful to your Majesty.'
'On Tuesday the 14th of December, the House of Lords was informed, that several Persons had been seized by the Custom-House Officers on the Coast of Sussex, as they came from France; and that amongst them there was one Boncher, who was capable of making considerable Discoveries, having been in Arms in the French Service for many Years, and Gentleman of the Horse, and Aid de Camp to the late Duke of Berwick, who stands attainted of High-Treason, and who had been secretly in England several times before; that it was probable, if he was strictly examined, he might be brought to confess, since he saw his Life in apparent danger; but that he was a bold Man, and likely to attempt an Escape on that very account, if he was not carefully looked after: And the House was also told, that there was a general Remissness both in the taking, searching, and looking to such Prisoners, which did afterwards appear very evidently in the Examinations that were taken. Upon this Information the Earl of Nottingham, your Majesty's principal Secretary of State, acquainted the House that he had not heard of Boucher's Name particularly, but had sent Messengers to bring one Ogilby, and the other Prisoners who had been apprehended by the Custom-house Officers, to Town; and that he believed the Messengers would do their Duty, but he would not be answerable for them.
'After this Account of the Prisoners, and of what had been done in order to secure them, the House thought themselves obliged in Duty to your Majesty, and for the Public Safety, at a Time when the Kingdom is engaged in an open War with France, and that there are too just Grounds to apprehend the dangerous Practices of French Emissaries, to make an humble Address to your Majesty, that particular Care might be taken for securing the Person of Boucher, and of those who were taken with him, and that none might be suffered to speak with them till they were examined.
'The next day your Majesty's gracious Answer to this Address was reported to the House, that Care had been taken to secure the Prisoners, and that your Majesty would give Orders that no body should speak with them till they were examined. Thereupon the Lords entred into a farther Consideration of the Importance of this Matter, and, conceiving nothing to be more likely to bring Prisoners, who had forfeited their Lives, to a full Discovery of the Truth, than to find themselves under the Enquiry of a Parliament, they thought it would be of public Service, for them to take Examinations of these Persons; and accordingly an Order was made, that no Persons should speak with the Prisoners, till they had appeared at the Bar of the House.
'On the 16th day, the Earl of Nottingham informing the House of Lords, that the Prisoners were brought to Town; the Usher of the Black-Rod was ordered to take them into his Custody, in order to their Examination, and to keep them separate, and in close Custody, (as your Majesty had before directed) and it being thought most proper, from the nature of the thing, that the Examination should be by a Committee of Lords, rather than by the whole House, it was resolved accordingly.
'We beg leave to mention to your Majesty a Matter of Fact which satisfied the Lords, that their Resolution to take the Examinations of Boucher, and the Persons apprehended with him, was neither unknown nor disagreeable to your Majesty; on the same day when that was ordered, being the 15th of December, the Lords resolved to examine Sir John Maclean, a very dangerous Person, as was represented to the House, who then stood committed in the hands of a Messenger; and for that purpose ordered him to be brought to the House the next day, having, as they then thought, very good Grounds to believe it might prove of great Service to your Majesty. Sir John Maclean was brought to the House according to the Order, but your Majesty being pleased so far to take notice of this Order, as to signify to the House by the Lord-Steward, that Sir John Maclean had been in part examined already, and that your Majesty thought it not proper, to have that Business taken out of the way of Examination it was then in, but that your Majesty would in a short time communicate it to the House; the Lords immediately acquiesced in your Majesty's Opinion, and sent back Sir John Maclean to the Place from whence he was brought. It was with this Disposition of Mind the Lords acted in the whole Matter; and if your Majesty, who no doubt had the same notice of both Orders, had thought any other Method of the Examination of Boucher, and the Persons taken with him, more proper than of the Lords; they had reason to conclude your Majesty would have intimated it at the same time, and most certainly, the House would have had a like Deference for your royal Judgment in that Instance also.
'The Lords Committees appointed to examine the Prisoners proceeded with all possible Dispatch, and made their Report to the House on the 21st of December. Upon Consideration of the Report, the House found it requisite to commit Boucher to the Prison of Newgate for High-Treason, and the Lords Committees having submitted to the Judgment of the House, whether several Parts of the Examinations referred to in their Report, should be laid open to the House, or put into any other Way of being farther enquired into, or prosecuted; the House, out of a full Assurance they had, that when the Matter of Fact should be laid before your Majesty, you would certainly give such Orders thereupon as were every way suitable to your royal Prudence, and tender Care of the Public Safety, did unanimously resolve, without so much as suffering those Parts of the Report to be laid open to the House, that an humble Address should be made from the House to your Majesty, by the Lord-Steward, and the Duke of Somerset, (two of the Lords Committees to whom the Examination had been referred) laying before your Majesty the whole Report, with all Matters relating thereto, and humbly desiring your Majesty to give Order, that Boucher should be prosecuted by Mr. Attorney-General for HighTreason, and that as to the Commitment, Prosecution or Discharge of the other Prisoners mentioned in the Report, you would be pleased to give such Directions as should seem most proper to your royal Wisdom. Thus, that as the whole Affair was entred upon out of Zeal for your Majesty's Prefervation, and the Safety of the Kingdom, and was carried on and concluded with all possible Respect to you; so we had the Comfort to rest assured, that our Behaviour was no less graciously accepted by your Majesty, from the Answer you were pleased to make, the same Day, to our last Address on this Subject, and which was reported to us on the 22d of December, by the Duke of Somerset, whereby your Majesty was pleased to signify to the House, with your accustomed Goodness, that you would give order for every thing as the Lords had desired.
'Madam, this is a true and just Account of our Proceedings, which have been so strangely misrepresented, and to which no Exception can possibly be taken, by any Persons rightly informed. For, as we had your royal Approbation of all that was done; so the House of Commons could have had no Pretence of Objection, if they had taken the usual Parliamentary Methods of desiring to be informed of what we had done, and of the Grounds of our Proceedings, before they had approached your Majesty with such a Representation of them.
'The ancient, known, and indeed only effectual Method of preserving a good Correspondence between the two Houses of Parliament, has been by Conferences. If, at any time, either House conceived they had a reasonable Ground to object against the Proceedings of the other, Conferences have been desired, and the Matter in debate between them fairly discussed; and thereby, Mistakes have been declared for the most part, and a good Understanding cultivated, and a mutual Respect preserved, which is always highly requisite, in the Nature of our Constitution, but more especially necessary in this time of War and Danger.
'Had the House of Commons thought fit to have pursued this Method upon this Occasion, we should have been able to have given them entire Satisfaction, not only of the Lawfulness of all we had done, but of the just and weighty Ground upon which we took the Examinations of these Persons into our own hands: or at least, if they could have convinced us of any Mistake, we should have given them any reasonable Satisfaction.
'But, without making any such previous Step, the House of Commons have made an Appeal directly to the Throne, against the House of Lords, and charged them, tho' most unjustly, with Attempts of the highest Nature. Nothing like this was ever done before, and out of our hearty Concern for the Preservation of our happy Constitution, we hope the same thing will never be done again. We know your royal Heart is unmoveably fixed on the preserving the Liberties of your People, and transmitting them entire to Posterity; but if, in after times, the Houses of Parliament should be appealing against one another to the Crown, (for, if such a Course be justifiable in the House of Commons, the same Method may be taken by the Lords) as your Majesty is now sensible how great Difficulties it necessarily brings upon a good Prince; so it is easy to foresee (and we cannot think of it without terror) how fatal the Consequences may be, in the Reign of an ill-designing Prince, and what Advantages may be taken from it, for utterly subverting the best-ordered Form of Government in the World. There are Examples abroad, where Proceedings of this kind have ended in the Overthrow of the Liberties of the People, which makes us the more apprehend the Beginning of them among our ourselves. Your Majesty's great Judgment cannot but readily discern, whither it does naturally tend, for one House of Parliament to be exciting, and earnestly desiring the Sovereigns to exert a real or supposed Prerogative against the other House. It is not easy to imagine what the Commons could expect of your Majesty from such an Application: The Lords have never entertained a Thought of using this dangerous Method, whatever Occasions may have been given within the compass of late Years; and we promise your Majesty, we will always endeavour to preserve a good Understanding with the House of Commons, and shall never think it too dear to procure that Union at any rate, unless that of delivering up those Rights and Powers which are lodged in us by the Law, and without which, the Constitution cannot subsist.
'We shall never be guilty of the Presumption of prescribing to your Majesty, when, or against whom you should exert your Prerogative; but we will be always ready to assist you in the Support of all the just Rights of the Crown, as well as in the maintaining the Liberties of the Subject, which we know are no less dear to your Majesty.
'It may, with Modesty and Truth, be affirmed that the Lords have, in all times, been the surest and most natural Bulwark of the Prerogatives of the Crown, they being (as your royal Grandfather, of ever-blessed Memory, was pleased to express it) an excellent Screen and Bank between the Prince and the People, to assist each against any Encroachment of the other.
'We will never contribute, by any Act of ours, to the Diminution of the Rights of the Crown, nor, as far as we are able, will suffer it in others.' We cannot act otherwise without hurting ourselves in the highest degree, being throughly convinced, that the Preservation of the legal Prerogative, is not only the surest way to secure our own Privileges, but of absolute Necessity for the happy and rightful Administration of the Government. And we hope the House of Commons will, in all times to come, speak and act with that regard to the Prerogative which they seem to have taken up lately.
'There remains one Particular more, which we will only name to your Majesty, because we rest satisfied it cannot have Weight any where; that is, the Insinuation in the Address, as if the Examination of these Prisoners, by the Lords, was in order to obstruct the Enquiry into the Designs against your Majesty's Person and Government; or at least, that it was likely to produce such an Effect. Our dutiful Zeal for your Majesty's Government, and our warm Concern to discover all Designs and oppose all Practices against it, are too well known to the World, that any Suggestions of that sort should make the least Impression to our Disadvantage; and we are very sure, it was no Suspicion of that Nature which gave the true Rise to this very sharp Address. It is easy to determine, whether a hearty and forward Undertaking to search into the Designs of your Enemies, or the seeking Occasions to object to, and interrupt such Endeavours, be most likely to obstruct the Discovery of the pernicious Practices of Traytors.
'Most gracious Sovereign, We most humbly ask pardon for presuming to give your Majesty the trouble of this long Representation, which has proceeded from the passionate Concern we have to stand, not only acquitted, but entirely approved in the Judgment of so excellent a Queen, and so justly beloved of all her Subjects.
'We depend upon your Justice, as well as your Goodness, that nothing can do us Prejudice, (from whatsoever Hands it comes) in your royal Opinion, while we continue to act in that Station where we are placed by the Form of the English Government, according to the Laws and Customs of Parliament, with all imaginable Respect and Duty to your self, and all possible Zeal for the Safety and Happiness of your Kingdom.
'Give us leave to conclude this our humble Address with this firm Promise, That no Danger, no Reproaches, nor any Artifices whatsoever, shall deter or divert us from using our utmost Endeavours, from time to time, in discovering and opposing all Contrivances and Attempts against your royal Person and Government, and the Protestant Succession, as by Law established.'
Her Majesty's Answer.
'I am very sorry for any Misunderstandings that happen between the two Houses of Parliament, which are so inconvenient for the public Service, and so uneasy to me, that I cannot but take notice, with Satisfaction, of the Assurances you give me, that you will carefully avoid all Occasions of them.
'I thank you for the Concern you express for the Rights of the Crown, and for my Prerogative; which I shall never exert so willingly as for the Good of my Subjects, and the Protection of their Liberties.'
Jan. 22. The Commons ordered, that some of their Members be appointed to search the Journals of the House of Lords, touching their Proceedings upon the late Address of this House to her Majesty, and their Representation thereupon; and also to search Precedents concerning Commitments by the House of Lords, in Cases where the Person has been in the Custody of the Crown, and report the same to the House: and several Members were appointed accordingly.
Resolved, That an humble Address be presented to her Majesty, to clear this House from the Misrepresentation of the House of Lords, in their Representation presented to her Majesty; which said Address was conceiv'd in the following Terms:
The Commons Address.
'Most gracious Sovereign, your Majesty having, with great Goodness, declared from the Throne to your Parliament, that divers ill Practices and Designs had been carried on in Scotland, by Emissaries from France, which might have proved extremely dangerous to the Peace of these Kingdoms; and that you would lay the Particulars before your Parliament, as soon as the several Examinations could be fully perfected, and made public, without prejudice; we, your Majesty's most dutiful and loyal Commons, resting secure and satisfied in your Majesty's great Wisdom and Care, most thankfully acknowledge the Confidence you have been pleased to repose in us.
'But finding, upon the Lords Journals, that their Lordships, the very same Day, made two Orders, one to remove your Majesty's Prisoners out of your Custody into their own, and the other to commit their Examination solely to a Committee of seven Lords, chosen and appointed by themselves; by which your Majesty seemed excluded from any Power over the said Prisoners:
'Your loyal Commons, justly sensible of the dangerous Consequences of such Proceedings, thought themselves obliged to declare their Concern at this Violation of your royal Prerogative, and the known Laws of the Land, in an humble Address presented to your Majesty.
'Your faithful Commons are well assured, when this Matter comes to be rightly stated and understood, a Zeal so well intended, and so well grounded, will rather be imputed to them as meritorious, than liable to exception; and therefore, since their humble Address has been so artfully misrepresented by the Lords in their late Representation, presented to your Majesty on Tuesday, the 18th of January, and published and spread with unusual Industry through all Parts of the Kingdom, they look upon themselves under an indispensible Necessity of appearing before your Majesty in their own Justification.
'Their Lordships think fit to take offence at the Manner and Words of our Address, and accompany this Exception with Reflexions and Insinuations, more harsh and more odious than the most opprobrious Language: But, as we made use of no Terms but what were suitable to the Occasion, so it will appear by Precedents, that the same have been frequently and reciprocally used by both Houses to each other; nor could the Commons, in respect to your Majesty, assert your royal Prerogative, in Words of less Force than those in which they have vindicated their own Privileges.
'Whatever Expressions our Zeal for your Majesty, and the Public, might have inspired, we could never have offered to our Sovereign so ungrateful a Remembrance as the Destruction of the Monarchy, by a detestable Assembly, composed of Members of both Houses, who being alike Partakers in the Guilt, ought equally to share the Reproach.
'With much more Reason might we observe, both on behalf of your Majesty and the Commons, that their Lordships, not contented with preferring their own Examinations to yours, not contented with excluding your Majesty and the Commons, to whom Parliamentary Enquiries most properly belong, do appropriate to their House only, even in their Application to their Sovereign, the Name of a Parliament; an Instance not to be parallelled, unless by that very Assembly that subverted the Monarchy.
'It is not the Question at present, as stated by the Lords, whether their Lordships have a Power of taking into Custody, while under Examination, Persons accused of criminal Matters, cognizable in Parliament? But, that their Lordships have a right to take the Prisoners of the Crown, and the Examination of them, solely into their own hands, without your Majesty's Consent, and in such a Manner as must necessarily prove an Exclusion to your Majesty, and this House, is the Proposition your Commons deny, and for which their Lordships have produced no Precedent.
'This unhappy Occasion has been, at the same time, aecompanied with the most surprizing Instances of Contradiction and Counter-Orders to your Majesty, both preceding and subsequent to it, but especially on the 29th of January last, when your Majesty, with your accustomed Goodness, communicated to the Lords the Papers relating to the Scotch Conspiracy, with an Exception only of some Matters not yet proper to be made public, without preventing a further Discovery of Secrets of greater Importance, with which your Majesty assured their Lordships they should also be acquainted, as soon as it could be done without Prejudice. However their Lordships, upon what Provocation, or for what Reason no where appears, immediately addressed your Majesty, pressing you to lay before them the whole Matter, with all Papers relating thereunto; by which your Majesty was put under a necessity, either to give their Lordships a Refusal, or to comply with their unexpected Importunity, to the endangering the public Service. These Proceedings, so extraordinary in their Nature and in their Manner, could not but sensibly affect your faithful Commons, whose earnest Desire it is to see both your Houses of Parliament, and the whole Body of your People, entirely agreed to pay the deference due to your Majesty's Wisdom, to confide in your Care, and to promote and maintain your Honour and Dignity.
'Their Lordships, not satisfied with assuming this unprecedented Power, have endeavoured, with a great deal of Art, to persuade your Majesty of the Necessity of it, to prevent the Designs of ill Princes and their Favourites: But as it may seem unreasonable for their Lordships to begin to practise upon a good Prince, such Methods as are pretended only to be needful against an ill one, so it is our humble Opinion, that the Dangers might be much greater, admitting this Precedent; should the Lords combine to defend one another from Enquiries and Prosecutions, all parliamentary Impeachments might be eluded, secret Designs carried on, the Innocent aspersed without Reparation, and the Guilty acquitted without Trial. Nor is that Instance mentioned by the Lords an unreasonable Caution, since that Revolution in a neighbouring Kingdom, alluded to by their Lordships, was occasioned by the Incroachments of a prevailing Cabal of Lords, who endeavouring to enslave the People, and to betray their King and their Country to a foreign Power, obliged the Church and the Commons to unite in the public Defence.
'Your faithful Commons have found themselves so happy under your Majesty's Administration, that they please themselves with more agreeable Prospects, and, renouncing such Examples of unseasonable Jealousies and Fears, most thankfully receive the Blessing of your Reign: Nor could they have made a more grateful return for your Majesty's generous Protection to their Liberties, than by a suitable Concern for your Prerogative.
'If their Lordships had consulted their own Journals, with the same Care that we always take to be rightly informed, they would hardly have affirmed, that a direct Appeal to the Throne, without any previous desire of Conference, had been an unprecedented Practice. Their Books are filled with variety of Instances to the contrary; but, without examining their Books, it seems very surprizing, that their Lordships could so soon forget their Address presented to your Majesty the last Session on behalf of the Lord Bishop of Worcester, and their Address to the late King on behalf of William Earl of Portland, Edward Earl of Orford, John Lord Somers, and Charles Lord Hallifax, impeached by the Commons of high Crimes and Misdemeanors; and when this House formerly expostulated with the House of Lords, for Proceedings in the very same Method of which they now complain, their Lordships made a most solemn Declaration in these words;
'Your loyal Commons sincerely concur with their Lordships in declaring, that we will never contribute by any Act of ours to the diminution of the Rights of the Crown, and that we will not suffer it in others: Your Majesty, their Lordships, and the whole World, may judge from the Example we have now given, if their Lordships do truly wish the House of Commons may, in all times to come, speak and act with that Regard to the Prerogative, which they allow us the Honour to have now taken up; we shall be very unfortunate to continue under their displeasure, at the same time when they seem to hope, that those who succeed us will take pattern by us.
'We wish their Lordships also on their part may continue, in all times to come, to speak with that Regard to parliamentary Impeachments, which they seem so lately to have taken up; since we have reason to apprehend, that the Misunderstandings which have of late Years arisen between the two Houses, have been principally owing to the Artifices of some particular Persons among themselves, whom the Commons thought it their Duty, for the public Safety, to bring to Justice. How much more difficult will all such Endeavours be rendred, should their Lordships be once admitted sole Examiners of Accusations against each other, as they are already sole Judges?
'We are accused, but most unjustly, of exciting and earnestly desiring your Majesty to exert your Prerogative against the House of Lords: We appeal to the words of our Address, if it is possible naturally to impose any such sense upon any Expression that is there: We are sorry their Lordships should descend so low as to the straining and wresting of words, by which they rather discover an unfortunate Inclination, to make us seem culpable upon any terms, than that they in truth believe us so. We know how vain and how fruitless an Application it would be to excite your Majesty to any Abuse of your Power, which we are convinced you will always exercise for the general Good; and so far are your Commons from entertaining any such desire, that we heartily wish to see a good Correspondence preserved between the two Houses; nor would forbear to purchase it at any rate, except giving up the Rights of your Majesty, by whom we are protected, and the Liberties and Properties of the People, by whom we are entrusted.
'These few Instances, so plain and so uncontestable, we presume will be sufficient, without trespassing much longer upon your Majesty's time, to discredit whatever else has been alledged, to create in your Majesty, and those we represent, an ill Opinion of us: We have been careful and industrious to avoid, as far as was consistent with our necessary Justification, all Occasion of reviving Animosities, and, how great soever the Provocation has been, your Majesty having declared how uneasy you are under such Misunderstandings, we shall make no difficulty to lay aside our Resentments, who shall always be ready to sacrifice our Lives and Fortunes to your Quiet and Service: Nor can we doubt but we must stand fully acquitted to the whole World, and especially to your Majesty, since the Zeal that we have shewn, and the Reproaches that we have borne, have been owing to no other Cause but the Defence of an excellent Queen, in whose hands God Almighty hath placed the executive Authority over these Nations; which Authority it has been the only Endeavour of your faithful Commons to preserve as entire as our Laws and Constitution allow.
'May it please your Majesty, It is with the deepest Concern, and a Grief not to be expressed, that your dutiful and loyal Commons have found themselves engaged in disputes of this nature, by which they have been so unseasonably interrupted in finishing the Supplies, and other matters of the highest Importance How zealously they have applied themselves to the Discharge of their Duty, appears from their having already presented your Majesty with the greatest part of their Aids, with a Dispatch and Unanimity beyond Example: Nor could the few Bills yet depending have met the least Objection or Delay, but from the indispensible Necessity of vindicating your Majesty's Royal Prerogative, the Privileges of our own House, and the Rights and Liberties of all the Commons of England, in several Instances invaded almost at the same time; we wish there may have been more of Mistake than Design in those who have created those unhappy Differences: However, we desire the Remembrance may be henceforth blotted out, and that there may remain no other Impression in the Hearts both of Lords and Commons, than a sincere and passionate Concern for your Majesty's Welfare and Glory: Nor any other Contention hereafter arise, but by whom the public Good shall be best advanced, the Protestant Succession; and the Church of England best secured, and the just Rights and Prerogatives of the Crown best supported.
'Gentlemen, I return you many Thanks for the great Concern which you express for me and my just Rights. Your Dispatch of the Supplies is a great Advantage to the public Service. And I am very well pleased with the Assurances you give me of your Care to avoid any Occasion of difference between the Houses, especially at this time, when there is so apparent a Necessity of strengthening ourselves against the malicious Designs of our Enemies.'
Feb. 24. Ordered, That some Members be appointed to search the Journals of the House of Lords, as to what Proceedings have been since the last Report to this House, upon the Papers communicated to the Lords by her Majesty, relating to the Conspiracy; and several Members were appointed accordingly.
The 28th, Sir Humphry Mackworth reported, that the Members appointed had been to inspect the Journals of the House of Lords, what Proceedings had been since the last Report to this House, upon the Papers communicated to the Lords by her Majesty, relating to the Conspiracy; but that they did not find any Proceedings as yet entered into their Journals; But that out of the Papers for making up the same, they had taken Copies of the Proceedings they found therein, which he read in his place, and afterwards delivered in at the Table, where the same was read.
Ordered, That the Consideration of the said Report be referred to the Committee of the whole House, who are to consider of the Papers communicated by her Majesty to this House, relating to the treasonable Correspondence carried on with St. Germains and the Court of France.
The 29th, Mr. Freeman. (according to Order) reported from the Committee of the whole House, to whom it was referred to consider of the Papers communicated by her Majesty to this House, relating to the treasonable Correspondence carried on with St. Germains and the Court of France, the Resolution which they had directed him to report to the House, which he read in his place, and afterwards delivered in at the Table, where the same was read, and is as followeth:
Resolved, That it is the Opinion of this Committee, that the House be moved, that an humble Address be presented to her Majesty, that she will be pleased to re-assume the just Exercise of her Prerogative, and take to her self the Examination of the Matters relating to the Conspiracy, communicated to this House by her Majesty; and to give assurance, that they will defend her Majesty's sacred Person and Government against all Persons concern'd in the said Conspiracy, and all other Conspirators whatsoever: And to declare, that the establishing of a Committee of seven Lords, for the sole Examination of the said Conspiracy, is of dangerous Consequence, and may tend to the Subversion of the Government.
Resolved, That the House doth agree with the Committee, that an humble Address be presented to her Majesty, that she will be pleased to re-assume the just Exercise of her Prerogative, and take to her self the Examination of the Matters relating to the Conspiracy, communicated to this House by her Majesty, and to give assurance, that they will defend her Majesty's sacred Person and Government, against all Persons concerned in the said Conspiracy, and all other Conspirators whatsoever; and to declare, that the establishing of a Committee of seven Lords, for the sole Examination of the said Conspiracy, is of dangerous Consequence, and may tend to the Subversion of the Government.
The House having order'd all these Particulars to be collected, and publish'd together, we have done the same; and must, therefore, return now to such other Transactions as took place in the Interval: Among which, the following, for the sake of the Resolutions taken by both Houses thereon, deserves a Place.
Jan. 20. A Petition of Charles Bathurst Esq; was presented to the House of Commons, and read, touching an Order made by the House of Peers, the twelfth of February, 1702, with relation to an Order made by the Court of Exchequer, the fifteenth of July, Decimo tertio regni Regis Gulielmi Tertii, concerning an Inquisition and Survey of the Boundaries of the Honour of Richmond, and Lordship of Middleham; and of many other Honours, Manors, and Lordships, bounding thereupon; and praying such Relief on the Subject-Matter of the said Petition, as shall be thought fit.
Nov. 9, 1702. The Lord Wharton, finding that the said Record was made use of as Evidence against him, in a Trial at the Queen's-Bench-Bar of an Issue directed out of Chancery, wherein the said Lord Wharton was Plaintiff, and the said Petitioner Mr. Bathurst, the said Mr. Squire, and others, were Defendants, concerning some Lead-Mines, did, on the 19th of December, 1702, petition the House of Lords (by way of Appeal) from the said Order of the Court of Exchequer, and prayed to have that Order discharged, and the Record taken off the File.
In which Petition the Lord Wharton complained, that the said Record was imposed on the Court (by contrivance between the said Mr. Squire and Mr. Thompson, a sworn Clerk in the Court of Exchequer) and therefore prayed, that the said Mr. Squire and Mr. Thompson might answer the said Petition, (which he call'd an Appeal;) and accordingly they were ordered to answer the same.
Jan. 7, 1702. Mr. Squire and Mr. Thompson petitioned the House of Lords, setting forth, that no Suit was ever depending in the Court of Exchequer between the Lord Wharton, and the said Mr. Squire and Mr. Thompson; and that therefore the Lord Wharton's said Petition was not an Appeal, but an original Complaint against them for a Crime of a high nature, for which they ought to be left to be tried by the usual Course of the Laws of the Land; and prayed their Lordships to dismiss the Lord Wharton's Petition, and to discharge their Order, by which they the said Mr. Squire and Mr. Thompson were obliged to answer the same.
Jan. 21, 1702. The Lord Wharton put in his Answer to their Petition, insisting on his Appeal as regular, and alledging that there was a Suit in Chancery, wherein the said Mr. Squire was a Defendant (among others) concerning the LeadMines in question, and that the Order made in this Case (tho' in the Court of Exchequer) affected the Suit in Chancery; and he then obtained an Order to hear one Council on each side the very next day.
Jan. 22, 1702. Council were heard, and their Lordships were pleased (on debate) to dismiss the Petition of the said Mr. Squire and Mr. Thompson, and to order them to answer the Lord Wharton's Petition (or Appeal) on Monday then next following. Against which Proceedings several of the Lords entered their Dissent (or Protest) and gave Reasons for their so doing in the words following, viz.
Secondly, 'Because no Court can take any Cognizance of a Cause in which that Court cannot make an Order; but in this Case, the House of Lords cannot make an Order (because very many are concerned in this Record, who are not before this House) therefore this House cannot take any Cognizance of it.'
Feb. 2. Mr. Squire put in his Answer, still insisting, as he had done in his said Petition, that it was on original Complaint against him, and could not be called an Appeal, there being no Suit depending in the Court of Exchequer, between the Lord Wharton and him, and that the Record, (fn. 1) (which the Lord Wharton would have suppressed) not only greatly concerned her Majesty, but the Inheritances of several thousands of Persons, who are equally concerned, (if not more than he) in the Preservation thereof; and that it was more immediately incumbent on the Barons of the Court of Exchequer, to justify their own Order; and therefore prayed their Lordships would not proceed further against him, 'till all Parties concerned might be duly heard.
Feb. 8. The City of London, who are Grantees from the Crown of the whole Honour of Richmond, and Lordship of Middleham, finding themselves interested in the Preservation of the said Record, petitioned the Lords to be heard by their Council against the Petition of the Lord Wharton; and their Lordships accordingly ordered Council to be heard for the City, on the twelfth of February, being the same day that the Council for the said Mr. Squire were to be heard.
Feb. 12. Their Lordships heard Council for the Lord Wharton and Mr. Squire, (but refused to hear Council for the City, notwithstanding their said Order) and thereupon were pleased to order a Trial at Bar in the Court of Common-Pleas, the next Easter-Term, by a Jury of Middlesex, wherein this was to be the feigned Issue, viz.
'Whether the Skins of Parchment directed by Order of the Court of Exchequer, of the fifteenth of July 1702, to be filed, are the perfect, unaltered, exact, and entire Commission and Return, first filed in the Court of Exchequer in the sixteenth Year of King James the first.'
And ordered, that in the said Action the said Robert Squire should be Plaintiff, and take the Proof of the said Issue upon himself, and the said Lord Wharton Defendant: and that the Skins of Parchment, or any Copy thereof, should not be given in Evidence in any Court whatsoever, until the said Trial was over: And that the said Skins of Parchment (being upon the File, by virtue of the said Order of the fifteenth of July) should not be allowed as any Evidence on the said Trial for the Plaintiff, and that after the said Trial, the Verdict given therein should be certify'd and returned by the Court of Common-Pleas into the House of Peers.
'Mr. Squire did not decline the Trial of the Issue abovedirected, as being conscious of any ill Practices by himself, or any others, or for that he was not able to produce sufficient Evidence, to prove that the said Record is perfect, unaltered, exact, and entire, as at first filed in the Court of Exchequer, in the sixteenth Year of King James the First, (tho' Mr. Squire could not but think that it was a great Hardship to make him Plaintiff in the said Action, to put the Validity of the whole Record upon the said Issue, and to oblige him to take the Proof thereof upon himself, and all this without his Consent, or the Consent of others, who are more immediately concerned in the Preservation of the said Record) there being better Proofs, in order to find the said Issue truly in the Affirmative, to be given for the said Record, than for any one of the most authentic Records in any of the Courts of Westminster, (as is verily believed:) for,
'II. The said Record is entered and enrolled verbatim, in the Book of Enrolments of Surveys, &c. kept in a public Office at Westminster belonging to the Auditor for Yorkshire, and the said Entry is near as old as the said Record.
'III. The said Record, and particularly the Boundaries of the Honour of Richmond, and Lordship of Middleham, (about which only the Disputes are between the Lord Wharton, and the said Mr. Bathurst, and the other Defendants) are fairly entered, and remain on record, in an old Book, kept amongst the Records of the City of London, and the same Entry there appears to be made in the Year 1628.
'IV. Divers ancient Office-Copies (and other Copies) of the said Record, and particularly the Boundaries of the said Honour of Richmond, and Lordship of Middleham, have been taken, and the same were examined with the said Record, when on its proper File in the Court of Exchequer; and certify'd to be true Copies. All which said Entries and Copies do exactly agree with the said Record, now on its proper File. And moreover, there are many other Instances, Evidences, and Proofs of the Truth, Validity, and Entireness of the said Record.
'But Mr. Squire being apprehensive that the House of Peers, in making the said Order of the twelfth of February 1702, had assumed a Jurisdiction in an original Cause, could not (as he believed) comply with that Order, without doing Injury to the Rights and Privileges of the Commons of England; and, for that Reason, did not think fit to try the Issue as directed.
'Nov. 9. [Note, that at the first Trial at the Queen's-Bench Bar of the Issue directed of Chancery, (when the said Record was given in Evidence) the Verdict, upon full Evidence, was given and found for the said Mr. Bathurst, Mr. Squire, and the other Defendants; yet the Court of Chancery, (as is usual where a Right of Inheritance is to be bound) afterwards directed a second Trial to the same end as the former, which came on at the Queen's-Bench Bar, in Michaelmas-Term last Nov 23. 1703.]
'That at the last mentioned Trial, the Council for the Plaintiff, the Lord Wharton, insisted, that the said Mr. Bathurst, and the other Defendants, could not give in Evidence the said Inquisition and Survey, (tho' on record in the Court of Exchequer) nor any Copy thereof, by reason the said Mr. Squire had not tried the Issue directed by the House of Peers, the said twelfth of February 1702.
'That, by reason of the Premisses, the said Mr. Bathurst, and the other Defendants, were deprived of that so necessary Part of their Evidence, for the support of their Title to the Matters in question, at the said last mentioned Trial, and so (and for that reason alone) lost their Cause, which otherwise they could not have done; for that the said Record (backed with the concurring Testimonies of so many ancient and credible Witnesses, produced on the said Defendants Behalf) must necessarily have convinced the Jury (as some of them have since owned and declared) that the Boundaries of the Manors of Helaugh in Swaledale, and of Arklegarthdale, are as the said Record mentions them to be; and consequently, the Issue and Verdict must have been found for the said Mr. Bathurst, and the other Defendants.'
In consequence of this Petition, &c. the House appointed Committees to inspect the Lords Journals, as likewise the Proceedings of the Chancery and Exchequer Court, with relation to the said Case: And upon the whole, came to the following Resolutions:
Resolutions of the Commons on the said Case.
'Resolved, That the House of Lords taking cognizance of, and proceeding upon, the Petition of Thomas Lord Wharton, complaining of an Order of the Court of Exchequer, bearing Date the fifteenth Day of July, one thousand seven hundred and one, for Filing the Record of a Survey of the Honour of Richmond, and Lordship of Middleham, in the County of York, is without Precedent, and unwarrantable, and tends to the subjecting the Rights and Properties of all the Commons of England, to an illegal and arbitrary Power.
Vote of the Lords thereon.
March 27. It is resolved and declared by the Lords spiritual and temporal, in Parliament assembled, That the House of Commons taking upon them by their Votes, to condemn a Judgment of the House of Lords, given in a Cause depending before this House in the last Session of Parliament, upon the Petition of Thomas Lord Wharton, and to declare what the Law is, in contradiction to the Proceedings of the House of Lords, is without Precedent, unwarrantable, and an Usurpation of a Judicature, to which they have no fort of Pretence. (fn. 2)
'The Misfortune of the King of (fn. 3) Spain's being forc'd back upon our Coast by contrary Winds, which I hope will lose but very little Time, does yet make it so reasonable to hasten our Preparations for this Year's Service, that, tho' I am very sensible of your Zeal in forwarding all Things relating to mine and the Public Service, yet I cannot but take this Occasion to desire you with all Earnestness, that you would give the greatest Dispatch to the Business of this Sessions still depending, which is so necessary for the Good of the Common Interest.'