The History and Proceedings of the House of Commons: Volume 3, 1695-1706. Originally published by Chandler, London, 1742.
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Third Session of Q. Anne's first Parliament.
'The great and remarkable Success with which God hath blessed our Arms in this Summer, has stir'd up our good Subjects in all Parts of the Kingdom, to express their unanimous Joy and Satisfaction: And I assure myself you are all come dispos'd to do every thing that is necessary for the effectual Prosecution of the War; nothing being more obvious, than that a timely Improvement of our present Advantages will enable us to procure a lasting Foundation of Security for England, and a firm Support for the Liberty of Europe: This is my Aim. I have no Interest, nor ever will have, but to promote the Good and Happiness of all my Subjects.
'I must desire such Supplies of you, as may be requisite for carrying on the next Year's Service, both by Sea and Land, and for punctually performing our Treaties with all our Allies; the rather, for that some of them have just Pretensions depending ever since the last War: And I need not put you in mind of what Importance it is to preserve the Public Credit, both abroad and at home.
'I assure you, that all the Supplies you give, with what I am able to spare from my own Expences, shall be carefully applied to the best Advantage for the Public Service: And I earnestly recommend to you a speedy Dispatch, as that which, under the good Providence of God, we must chiefly depend upon, to disappoint the earliest Designs of our Enemies.
'My Inclinations are to be kind and indulgent to you all: I hope you will do nothing to endanger the Loss of this Opportunity, which God has put into our Hands, of securing ourselves and all Europe; and that there will be no Contention among you, but who shall most promote the public Welfare.
Commons Address to the Queen.
'We your Majesty's most dutiful and loyal Subjects, the Knights, Citizens and Burgesses in Parliament assembled, do beg leave to return to your Majesty our most humble and hearty Thanks for your Majesty's most gracious Speech from the Throne; and to congratulate your Majesty upon the great and glorious Success, with which it has pleased God to bless your Majesty, in the entire Defeat of the united Force of France and Bavaria, (at Blenheim) by the Arms of your Majesty, and your Allies, under the Command, and by the Courage and Conduct of the Duke of Marlborough; and in the Victory obtain'd by your Majesty's Fleet, (off Malaga) under the Command, and by the Courage and Conduct of Sir George Rooke.
'Your Majesty can never be disappointed in your Expectation from us, your faithful Commons, who all come disposed to do every thing necessary for the effectual Prosecution of the War: and therefore your Majesty may depend upon our providing such Supplies, and giving such speedy Dispatch to the Public Business, as may enable your Majesty to pursue these Advantages so happily obtained over the Common Enemy; which we can never doubt but your Majesty's Wisdom will improve, to the procuring of a lasting Security for England, and a firm Support for the Liberty of Europe
'We are truly sensible, that nothing can be more essential for the attaining those great Ends, than to be entirely united at home; we shall therefore use our utmost Endeavours, by all proper Methods, to prevent all Divisions among us; and will have no Contention, but who shall most promote and establish the Public Welfare both in Church and State. Thus your Majesty's Reign will be made happy, and your Memory blessed to all Posterity.'
'Gentlemen, I return you my hearty Thanks for this Address, and the Assurances you give me of dispatching the Supplies, and avoiding all Divisions; both which, as they are extremely acceptable to me; so they will be advantageous to yourselves, and beneficial to the Public.'
Queen's Answer to the Commons Address about rewarding Soldiers, &c.
One of the first things we find the Commons go upon at home (to say nothing of the usual Methods of Supplies) was an unanimous Resolution to address her Majesty, 'That she would be pleased to bestow her Bounty upon the Seamen and Land-Forces who had behaved themselves so gallantly in the late Action both by Sea and Land.' And the Address being ordered to be presented by those of that House who were of her Privy-Council, her Majesty return'd Answer, 'That she was always so desirous to give Encouragement to those who did great Services to the Public, that she could not but be well-pleased with the notice they had taken of them in their Address, and that she would take care to give Directions accordingly.'
Lord Hallifax's Case.
We are here to observe, that the Right Honourable Charles Lord Hallifax having, by Order of the Commons last Session, been prosecuted for some Defects in passing Accounts as Auditor of the Exchequer, it was done accordingly at the Exchequer-Bar, in Trinity-Term: when the Cause, upon a full Hearing, seem'd to turn in favour of his Lordship. But before the Verdict could be given, a Noli Prosequi was produced, and the Matter rested there. But the Commons, Nov. 3. having ordered the Queen's Serjeant and Sollicitor-General, and others her Majesty's Council concern'd in his Prosecution, to lay before them an Account in Writing of what Proceedings had been against him, and the State of that Matter, the same was done on the 7th and the Consideration thereof being referr'd to the 14th, they then ordered the Exception taken by my Lord's Council to the Information exhibited against him, and allow'd by the Court of the Exchequer, to be laid before them. After which, they referr'd the Matter to the 18th, when the Information and Proceedings, with the Certificate of the Attorney-General, being read, upon a Motion made, it was carried for Adjourning till the 20th, and the Matter afterwards lay dormant.
Divisions on the Occasional-Conformity Bill.
We are likewise to take notice, that, though the Lords had rejected the Occasional-Conformity Bill the two last Sessions, another was notwithstanding brought in, and read the first time on Novemb. 23. and carried, not without warm Debates, to be read a second time on the 28th; at which time it was debated, with more Vigour than before: but the Question being put, that it should be committed to the Committee of the whole House, to whom the Bill for granting an Aid to her Majesty by a Land-Tax and otherwise, was committed, the House divided: And it pass'd in the Negative. Yeas 134. Noes 251.
The Report of the Bill was made on Decemb. 5. and a Debate arising, Whether it should be engross'd or not, it was carried in the Affirmative, Yeas 145, Noes 118. The Bill was read a third time, and pass'd on the 14th, Yeas 179, Noes 131.
Farther Proceedings in the Case of Ashby and White.
During this Interval, a Complaint being made to the House, that Robert Mead, an Attorney-at-Law, had proceeded in the Cause of Ashby and White, and others, since the last Session of Parliament, and taken the Defendants in Execution, in Breach of the Privilege of this House:
And likewise, that, since the Resolutions of this House the last Session, upon the Case of Ash by and White, there had been several new Actions brought by John Paty, John Oviat, John Paton junior, and Henry Basse, and prosecuted by the said Robert Mead, against the Constables of Aylesbury, in Breach of the Privilege of this House:
Ordered, That the Matter of the said Complaint be heard at the Bar of this House upon Tuesday sevennight. Accordingly all the said Persons having been then examin'd at the Bar of the House, it was Resolved, That it appears to this House, that John Paty, J Oviat, J. Paton jun. Henry Basse and D. Horne, of Aylesbury, have been guilty of commencing and prosecuting an Action at Common-Law, against William White, and others, late Constables of Aylesbury, for not allowing their Votes in the Election of Members to serve in Parliament, contrary to the Declaration, in high Contempt of the Jurisdiction, and in Breach of the known Privileges of this House.
And that it appears to this House, that Robert Mead has been guilty of solliciting and prosecuting (as Attorney at Law) divers Actions at Common-Law, against William White and others, late Constables of Aylesbury, for not allowing divers Votes in the Election of Members to serve in Parliament, contrary to the Declaration, in high Contempt of the Jurisdiction, and in Breach of the known Privileges of this House.
Feb. 24. The House being informed, that there have been Endeavours to bring a Writ of Error on the Proceedings in the Court of Queen's-Bench, upon a Habeas Corpus granted there, for the Persons committed by this House to Newgate, for Breach of their Privilege, and thereby to bring the Commitments of this House under the Examination of the House of Peers. (fn. 1)
Resolved, That an humble Address be presented to her Majesty, humbly to lay before her Majesty the undoubted Right and Privilege of the Commons of England, in Parliament assembled, to commit for Breach of Privilege; and that the Commitments of this House are not examinable in any other Court whatsoever: And that no such Writ of Error was ever brought, nor doth any Writ of Error lie in this Case. And that, as this House hath expressed their Duty to her Majesty, in giving dispatch to all the Supplies, so they have an entire Confidence in her Majesty's Goodness and Justice, that as will not give leave for the bringing any Writ of Error in this Case; which will tend to the overthrowing the undoubted Rights and Privileges of the Commons of England.
Resolved, That whoever has abetted, promoted, countenanced or assisted the Prosecution of the several Writs of Habeas Corpus, brought for the Prisoners committed by this House, and since their being remanded, have endeavoured the procuring Writs of Error, are guilty of conspiring to make a difference between the Lords and Commons in Parliament assembled, are Disturbers of the Peace of the Kingdom, and have endeavoured, as far as in them lay, to overthrow the Rights and Privileges of the Commons of England in Parliament assembled.
Ordered, That a Committee be appointed to examine what Persons have been concerned in solliciting, prosecuting, or pleading, upon the Writs of Habeas Corpus, or Writs of Error, on the Behalf of the Persons committed to Newgate for Breach of the Privilege of this House; or what other Persons have promoted or abetted the same. And a Committee was accordingly appointed.
The 26th, Mr. Secretary Hedges acquainted the House, that their Address of Saturday last, in relation to the Writs of Error therein mentioned, having been presented to her Majesty, according to the Order, her Majesty was pleased to give this gracious Answer, viz.
'Her Majesty is much troubled to find the House of Commons of Opinion that her granting the Writs of Error mentioned in their Address, is against their Privileges; of which her Majesty will always be as tender as of her own Prerogative; and therefore the House of Commons may depend, her Majesty will not do any thing to give them any just Occasion of Complaint: But this Matter, relating to the Course of judicial Proceedings, being of the highest Importance, her Majesty thinks it necessary, to weigh and consider very carefully what may be proper for her to do, in a thing of so great a concern.'
The Earl of Dysert reported, from the Committee appointed to examine what Persons have been concerned in solliciting, prosecuting, or pleading upon the Writs of Habeas Corpus, or Writs of Error, on the behalf of the Persons committed to Newgate for Breach of the Privileges of this House, or what other Persons have promoted or abetted the same, the matter as it appeared to them; which they had directed him to report to the House, which he read in his Place, and afterwards delivered in at the Clerk's Table, where the same was read: Upon which it was ordered, that all the said Persons so concerned should be taken into Custody for Breach of Privilege.
And tho' the Commons had resolved before to take her Majesty's Answer into Consideration, yet being apprehensive lest her Majesty should grant the Writs of Error, whereby the five Aylesbury-Men might be discharged from their Imprisonment, they ordered them to be removed from Newgate, and taken into the Custody of the Serjeant at Arms; which Order was executed at midnight, with such Circumstances of Severity and Terror, as have been seldom exercised towards the greatest Offenders.
The 28th, Mr. Bromley reported, That the Members appointed to search the Journals of the House of Lords, what Proceedings have been in that House, in relation to the five Persons committed to Newgate for Breach of the Privilege of this House, had searched the same accordingly, and had taken thereout what they found relating to the same; and also Copies of two Petitions of the said Persons; which he read in his Place, and afterwards delivered in at the Table, where the same were read, and are as follow, viz.
Feb. 26. Upon reading the Petition of Daniel Horne, Henry Basse, and John Paton in as also the Petition of John Paty, and John Oviat, Prisoners in Newgate, in relation to some Proceedings for obtaining the Writs of Error, and praying (amongst other things) the Protection of this House for their Counsel and Agents:
It is ordered by the Lords Spiritual and Temporal in Parliament assembled, That the said Petitions shall be taken into Consideration to-morrow at twelve o'clock, and all the Lords summoned to attend; as also the Judges in Town, who are to come prepared to speak to the point, whether a Writ of Error be a Writ of Right or a Writ of Grace? And that the Petitioners have notice, that when they send to this House the names of their Council and Agents they desire to be protected, they shall have the Protection of this House for them.
James Mountague Esq;
Counsellors at Law.
Attorneys at Law.
Whereupon, it is ordered by the Lords Spiritual and Temporal in Parliament assembled, that James Mountague, Esq; Nicholas Lechmere, Alexander Denton, and Francis Page, Counsellors at Law, and William Lee, and John Harris, Attorneys at Law, shall, and they have hereby the Protection and Privilege of this House, in the advising, applying for, and prosecuting the said Writs of Error; and that all Keepers of Prisons, and Jaylors, and all Serjeants at Arms, and other Persons whatsoever, be, and they are hereby (for, or in respect of any of the Cases aforesaid) strictly prohibited from arresting, imprisoning, or otherwise detaining or molesting, or charging the said James Mountague Esq; Nicholas Lechmere, Alexander Denton, Francis Page, William Lee, and John Harris, or any or either of them, as they and every of them will answer the contrary to this House.
Conference between the two Houses.
'Mr. Speaker, The Lords desire a present Conference with this House in the painted Chamber, about some antient fundamental Liberties of the Kingdom.' Which was agreed to, and the Managers being return'd, the Lord Marquis of Hartington reported the Conference, and that it was managed by the Earl of Sunderland, who expressed himself as followeth:
'That the Lords have desired this Conference with the House of Commons, in order to a good Correspondence between the two Houses, which they will always endeavour to preserve. When either House of Parliament have apprehended the Proceedings of the other to be liable to exception, the ancient parliamentary Method has been to ask a Conference; it being ever supposed, that when the Matters are fairly laid open, and debated, that which may have been amiss will be rectified, or else the House that made the Objections will be satisfied, that their Complaint was not well grounded.
'Such Hopes as these have induced the Lords to command us in acquaint you, that, upon the Consideration of the Petition of Daniel Horne, Henry Basse, and John Paton junior, and also of the Petition of John Paty, and John Oviat, complaining to the House of Lords, that they have been Prisoners in Newgate for about twelve Weeks, upon several Warrants, signed by the Speaker of the House of Commons, bearing date the 5th of December last, for their having commenced and prosecuted Actions at Common-Law, against the late Constables of Aylesbury, for not allowing their Votes, at an Election of Members to serve in Parliament; which Actions, they alledged, they were encouraged to bring, by reason of a Judgment given in Parliament upon a Writ of Error, brought in the last Session by one Ashby against White, and others; and also representing by the same Petitions, what had been done by them respectively since their said Commitment, in order to obtain their Liberty, and praying the Consideration of the House of Peers upon the whole Matter; and also upon Consideration of a printed Paper, entitled, The Votes of the House of Commons, signed with the Speaker's Name, and dated the 24th of this Instant February; the House of Lords found themselves obliged to several Resolutions, which they have commanded as to communicate to you at this Conference; and are as follow:
'1. It is Resolved by the Lords Spiritual and Temporal in Parliament assembled, That neither House of Parliament hath any Power, by any Vote, or Declaration, to create to themselves any new Privilege, that is not warranted by the known Laws and Customs of Parliament.
'2. Resolved, That every Freeman of England, who apprehends himself to be injured, has a Right to seek Redress by Action at Law; and that the commencing and prosecuting an Action at Common-Law, against any Person (not entitled to Privilege of Parliament,) is no Breach of the Privilege of Parliament.
'3. Resolved, That the House of Commons, in committing to Newgate, Daniel Horne, Henry Basse, and John Paton junior, John Paty and John Oviat, for commencing and prosecuting an Action at Common-Law, against the late Constables of Aylesbury, for not allowing their Votes in Election of Members to serve in Parliament, upon pretence that their so doing was contrary to a Declaration, a Contempt of the Jurisdiction, and a Breach of the Privilege of that House, have assumed to themselves alone a legislative Power, by pretending to attribute the Force of a Law to their Declaration, have claimed a Jurisdiction, not warranted by the Constitution, and have assumed a new Privilege, to which they can shew no title by the Law and Custom of Parliament: and have thereby, as far as in them lies, subjected the Rights of Englishmen, and the Freedom of their Persons, to the Arbitrary Votes of the House of Commons.
'4. Resolved, That every Englishman, who is imprisoned by any Authority whatsoever, has an undoubted Right, by his Agents, or Friends, to apply for, and obtain a Writ of Habeas Corpus, in order to procure his Liberty by the due Course of Law.
'5. Resolved, That for the House of Commons to censure, or punish any Person, for assisting a Prisoner to procure a Writ of Habeas Corpus, or by Vote, or otherwise, to deter Men from soliciting, prosecuting, and pleading upon such Writ of Habeas Corpus, in behalf of such Prisoner, is an Attempt of dangerous Consequence, a Breach of the many good Statutes provided for the Liberty of the Subject, and of pernicious Example, by denying the necessary Assistance to the Prisoner, upon a Commitment of the House of Commons, which has ever been allowed upon all Commitments by any Authority whatsoever.
'6. Resolved, That a Writ of Error is not a Writ of Grace, but of Right, and ought not to be denied to the Subject, when duly applyed for, (tho' at the Request of either House of Parliament,) the Denial thereof being an Obstruction of Justice, contrary to Magna Charta.'
'In these Resolutions, the House of Lords have expressed that Regard and Tenderness which they have always had, and will ever maintain for the Rights of the People of England, and for the Liberties of their Persons; and also their Zeal against all Innovations to the Prejudice of the known Course of Law, whereupon the Happiness of our Constitution depends; and they hope that, upon Recollection, the House of Commons will be of the same Opinion in all the Particulars resolved by the Lords, and agree with their Lordships therein.'
March 6. The Serjeant at Arms attending this House, acquainted the House, that a Person had this Morning brought him a Writ of Habeas Corpus, under the the great Seal, for Mr. Mountague (in his Custody by order of this House) to be brought (as he was informed) before the Lord-Keeper of the great Seal of England: And he delivered the Writ (under Seal) in at the Table. And it appearing by the Label to be returnable immediatè, but not before whom he was to be brought, nor any Officer's name thereto, the Writ was opened by the Clerk, and read, and is as followeth.
Anna dei gratia Ang' Sco' Franc' & Hibern' Regina, fidei defensor, &c. Samueli Powel Ar' serv' ad arma attenden' Honor ab' Doni commun' ejus deputata & deputatis salutem. Precipimus vobis & cuilibet vestrum quod corpus Jacobi Mountague Ar' nupen capt' & in custod' ve stra vel alicujus vel unius vestrum ut dicitur detent' sub salvo & securo conduct una cum die & causa captionis & detentionis pred' Jacobi Mountague quocunque nomine idem Jacob' Mountague censeatur in eadem habeatis seu aliquis vel unns vestrum habeat cor' predilecto & fidel' nostro prehonorab' Nathan Wright Mil' Dom' custod' Mag' sigil' nostri Angl' apud Dom' Mansional' suam in parochia sancti Egidii in campis, in com' Mid' immediatè post reception' hujus brevis ad faciend subjiciend' & recipiend' ea omnia & singula que dictus dominus custos magni sigil' nostri Angl' de eo ad tunc ibidem cons' in hac parte & habeatis seu aliquis vel unus vestrum habeat ibi hoc breve. Teste meipsa apud Westm' sexto die Martii Anno regni nostri tertio.
While the matter (upon Occasion of the said forementioned Writ) was debating, the Serjeant acquainted the House, that the other Writ of Habeas Corpus, was just served upon his Deputy, who had Mr. Denton in his Custody: And he also delivered the same in at the Clerk's Table, where it was read and was the same, mutatis mutandis, with the former.
And the Precedents of what was done in the Year 1675 were (by order) read: And several Members mentioned, upon their Memory, what was done in the Year 1680, in the (fn. 2)Case of one Mr. Sheridon.
The same day Mr. Bromley reported, from the Committee appointed to draw up what is proper to be offered to the Lords at the next Conference, that they had drawn up the same accordingly, which they had directed him to report to the House; which he read in his Place, and afterwards delivered in at the Clerk's Table, where the same was read, and (with some Amendments) agreed unto by the House And the same is as follows, viz.
Reasons of the Commons to be offered at a second Conference.
'The Commons have desired this Conference with your Lordships, in order to preserve that good Correspondence between the two Houses, which the House of Commons shall always sincerely endeavour to maintain, and which is so particularly necessary at this time of common Danger, that the Commons would not engage in any thing that looks like a Dispute with your Lordships, were it not for the necessity of vindicating, from a manifest Invasion, the Privileges of all the Commons of England, (with which the House of Commons is entrusted) even those Privileges which are essential not only to the well being, but to the very being of an House of Commons, and the preventing of the ill Consequences of those misunderstandings, which, if they are not speedily removed, must otherwise interrupt the happy Conclusion of this Session, and the Proceedings of all future Parliaments.
It was this Consideration alone has so long prevailed with the House of Commons, not to insist on due Reparation for those violent and unparliamentary Attempts, made by your Lordships upon their Rights and Privileges, at the end of the last Session of Parliament, but to apply themselves to the giving the speediest Dispatch, to those Supplies which her Majesty so earnestly recommended from the Throne, which are so necessary to enable her Majesty to pursue the Advantages that have been obtained against the common Enemy, by the great and glorious Success of her Majesty's Arms: And which are now delayed in your Lordships House, in so unusual a manner.
'The Commons do agree to your Lordships, that when either House of Parliament have apprehended the Proceedings of the other to be liable to Exception, the ancient parliamentary Method has often been to ask a Conference; because it ought to be supposed, that when the Matters are fairly laid open and debated, that which may have been amiss will be rectified, or else the House that made Objections will be satisfied that their Complaints was not well grounded. But your Lordships seem so little to desire to have Matters fairly laid open and debated, that, to the great Surprise of the Commons, when your Lordships have invited them to a Conference, about some antient fundamental Liberties of the Kingdom, they found only the antient and fundamental Rights of the House of Commons, and their Proceedings, censured, and treated in a manner unknown to former Parliaments; and that your Lordships had anticipated all Debates, by delivering positive Resolutions; and these Proceedings of your Lordships, grounded only upon the Petitions of Criminals, that had fallen under the just Censure and Displeasure of the Commons, and upon a printed Paper, which was not regularly before your Lordships.
Tho' this manner of Proceeding, as well as the Matters of your Lordships Resolutions, might have justified the House of Commons in refusing to continue Conferences with your Lordships, as their Predecessors have done upon less Occasions; and tho' the Commons cannot submit their Privileges to be determined or examined by your Lordships, upon any Pretence whatsoever; yet, that nothing may be wanting on their Part to induce your Lordships to retract these Resolutions, they proceed to take them into their Consideration.
'Your Lordships first Resolution is, viz. That neither House of Parliament hath any Power, by any Vote or Declaration, to create to themselves any new Privilege that is not warranted by the known Laws and Customs of Parliament.
'As the Commons have guided themselves by this Rule, in asserting their Privileges, so they wish your Lordships had observed it in all your Proceedings. This had entirely taken away all Colour for Disputes between her Majesty's two Houses of Parliament, and many just Occasions of Complaint from those the Commons represent. This would effectually put an end to that Encroachment in Judicature, so lately assumed by your Lordships, and so often complained of by the Commons; we mean the hearing of Appeals from Courts of Equity, in your Lordships House. This would have hindred the bringing of original Causes before your Lordships, and your (fn. 3) unwarrantable Proceedings upon the Petition of Thomas Lord Wharton, complaining of an Order of the Court of Exchequer, bearing date the 15th of July, 1701. for filling the Record of a Survey of the Honour of Richmond and Lordship of Middleham in the County of York; an Attempt which (contrary to the antient, legal Judicature of Parliament heretofore exercised, for the Relief of the Subject oppressed by the Power of the great Men of the Realm) was, in favour of one of your own Body, to suppress a public Record, which all her Majesty's Subjects had an undoubted Right to make use of; an Attempt that tends to render all Fines and Recoveries, and other Records (upon which Estates and Titles depend) precarious; and consequently subjects the Rights and Properties of all the Commons of England to an illegal and arbitrary Power.
'That the Lords having given Judgment in the Case of Ashby and White, viz. That, by the known Laws of this Kingdom, every Freeholder, or other Person, having a Right to give his Vote at the Electors of Members to serve in Parliament, and being wilfully denied or hindered so to do, by the Officer who ought to receive the same, may maintain an Action in the Queen's Courts, against such Officer, to assert his Right and recover Damages for the Injury: The Petitioners thereupon brought the like Actions in their own Cases.
'Whereby an extrajudicial Vote of your Lordships is stated as a Judgment of Parliament, and standing Law in that Case, your Lordships having no Foundation for the entertaining such Petitions, unless, that, after having assumed to yourselves the hearing of Appeals from Courts of Equity, you would now bring Appeals to your Lordships from the Proceedings of the Commons, who are not accountable to your Lordships for them.
'Your Lordships second Resolution is, That every Freeman of England, who apprehends himself to be injured, has a Right to seek Redress by Action at Law: And that the commencing and prosecuting an Action at Common-Law, against any Person (not entitled to Privilege of Parliament) is no Breach of the Privilege of Parliament.
'To which the Commons say that every Freeman, and every Subject of England, has a Right to seek Redress for an Injury; but then such Person must apply for that Redress to the proper Court, which hath, by antient Laws and Usage, the Cognizance of such Matters: For, should your Lordships Resolution be taken as an universal Proposition, all Distinction of the several Courts, viz. Common-Law, Equity, Ecclesiastical, Admiralty, and other Courts, will be destroyed; and, in this Confusion of Jurisdiction, the high Court of Parliament is involved in your Lordships Resolution.
'However, the Commons conceive it no wonder your Lordships should favour the universal Proposition, that all Rights whatsoever are to be redressed by Actions at Law, when your Lordships pretend to have the last Resort in Cases of Judicature by Writs of Error; so that your Lordships are, in this, only extending your own Judicature, under the Colour of a Regard and Tenderness for the Rights of the People, and Liberties of their Persons.
'The Commons are surprized to find your Lordships assert, that the commencing and prosecuting an Action against a Person, not entitled to Privilege of Parliament, is no Breach of the Privilege of Parliament, since it is most certain, that to commence and prosecute an Action which would bring any Matter or Cause solely cognizable in Parliament, to the Examination and Determination of any other Court, is more destructive to the Privileges of Parliament, than to commence and prosecute an Action against a Person only who is entitled to such Privilege.
'That some Matters and Causes are solely cognizable in Parliament, hath ever been allowed by the sage Judges of Law, and is evident from many Precedents; and to bring such Causes to the Determination of other Courts, strikes at the very Foundation of all Parliamentary Jurisdiction, which is the only Basis and Support, even of that personal Privilege to which the Members of either House of Parliament are entitled; and consequently to commence and prosecute any Action, whereby to draw such Causes to the Examination of any other Courts, is equally a Breach of the Privilege of Parliament, whether the Defendant, against whom such Action is brought, is entitled to the Privilege of Parliament, or not, which, besides the Nature and Reason of the thing, is fully evident from the constant Usage of each House of Parliament, in committing for Contempts only against their respective Bodies, as appears from many Precedents upon the Journals of both Houses.
'Your Lordships third Resolution is this, viz. That the House of Commons, in committing to Newgate, Daniel Horne, Henry Basse, and John Paton, junior, John Paty, and John Oviat, for commencing and prosecuting an Action at Common-Law against the Constables of Aylesbury, for not allowing their Votes in Election of Members to serve in Parliament, upon Pretence, that their so doing was contrary to a Declaration, a Contempt of the Jurisdiction, and a Breach of the Privilege of that House, have assumed to themselves alone a legislative Authority, by pretending to attribute the Force of a Law to their Declaration: have claimed a Jurisdiction not warranted by the Constitution, and have assumed a new Privilege, to which they can new no Title, by the Laws and Customs of Parliament; and have thereby, as far as in them lies, subjected the Rights of Englishmen. and the Freedom of their Persons, to the arbitrary Votes of the House of Commons.
'In answer to which, the Commons affirm, that the said Commitment is justified by ancient Precedents, and by the Usage and Customs of Parliament, which is the Law of Parliament, and the Rule by which either House ought to govern their Proceedings; and that the terms of assuming to themselves alone a legislative Authority, of attributing the Force of Law to their Declaration, of claiming a Jurisdiction not warranted by the Constitution, of assuming a new Privilege, to which they can shew no Title by the Law and Custom of Parliament; and of arbitrary Votes; are more applicable to this Resolution of your Lordships, which hath no one Precedent to justify it.
'According to the known Laws and Usage of Parliament, it is the sole Right of the Commons of England, in Parliament assembled, (except in cases otherwise provided for by Act of Parliament,) to examine and determine all Matters relating to the Right of Election of their own Members.
'And, according to the known Laws and Usage of Parliament, neither the Qualification of any Elector, nor the Right of any Person elected, is cognizable, or determinable clsewhere, than before the Commons of England in Parliament assembled, excepting such cases as are especially provided for by Act of Parliament.
'And were it otherwise, the Mayors, Bailiffs, and other Officers, who are obliged to take the Poll at Elections, and make a Return thereupon, would be exposed to multiplicity of Actions, vexatious Suits, and unsupportable Expences; and such Officers would be subjected to different and independant Jurisdictions, and inconsistent Determinations, in the same Case, without Relief.
'And the Exercise of this Power by the House of Commons, is warranted by a long, uncontested Possession, and confirmed by the Act that passed 7 & 8 Guil. III. cap. 7. and the House of Commons must be owned to be the only Jurisdiction that can allow the Elector his Vote, and settle and establish the Right of it; the last Determination in that House being, by the Act of Parliament, declared to be the standing Rule for the Right of Election in each respective Place. Nor can any Elector suffer either Injury, or Damage, by the Officers denying his Vote; for when the Elector hath named the Person he would have to represent him, his Vote is effectually given, both as to his own Right and Privilege, and as it avails the Candidate in his Election; and is ever allowed, when it comes in question in the House of Commons, whether the Officer had any regard to it or no.
In the Beginning of the Parliament held 28 Eliz. Mr. Speaker acquaints the House, that he had received, by the Lord Chancellor, her Majesty's Pleasure; that she was sorry the House was troubled with the Matter of determining the chusing and returning of Knights for the County of Norfolk; that it was improper for the House to meddle in it, which was proper for the Lord Chancellor, whence the Writs issued out, and whither they were returnable: That her Majesty had appointed the Lord Chancellor to confer therein with the Judges; and upon examining the same, to set down such Course as to Justice and Right should appertain.'
5. That it should be enter'd in the Journal-Book of the House, that the first Election is good; and that the Knights then chosen were received and allowed as Members of the House; not out of any respect the House had, or gave to the Lord Chancellor's Judgment therein passed, but merely by reason of the Resolution of the House itself, by which the said Election had been approved.
It also appears, that Sir Edmund Anderson, Lord Chief Justice of the Common-Pleas, was acquainted, that the Explanation and ordering of the Cause appertained only to the Censure of the House of Commons, not the Lord Chancellor and the Judges; and that they should take no notice of their having done any thing in it.
Accordingly Mr. Farmer and Mr. Gresham were received into the House, and took the Oaths; being admitted only upon the Censure of the House, not as allowed by the Lord Chancellor, or the Judges; and so ordered to be set down and entered by the Clerk.
And this Right of the Commons to determine their own Elections, has never been disputed since the Case of Sir Francis Goodwin, 1 Jac. I. when the Lords would have enquired into the Proceedings of the House of Commons upon his Election; but the Commons then told their Lordships, it did not stand with the Honour of the House to give account to their Lordships of any of their Proceedings or Doings.
And in the Reasons of their Proceedings in that Case, which they laid by Petition before the King, among other things, they say, they are a Part of the Body to make new Laws; yet, for any Matter or Privileges of their House, they are and ever have been a Court of themselves, of sufficient Power to discern and determine without the Lords, as the Lords have always used to do theirs without them.
In which Reasons, as well as in their Apology afterwards to that Prince, the House of Commons did, above a hundred Years since, so clearly, and with so much Strength of Reason, assert their Right in the Matter of the Election of their Members. The Commons think it their Duty to resist all Attempts whatsoever to invade them.
And upon this Occasion, it may not be improper to cite the Opinion the House of Commons had of the Judges intermeddling in Matters of their Elections, as they have delivered it in the aforesaid Apology, in these Words, viz.
Neither thought we that the Judges Opinions, (which yet, in due place, we greatly reverence, being delivered with the Commmon Law,) which extend only to inferior and standing Courts, ought to bring any Prejudice to this high Court of Parliament; whose Power, being above the Law, is not founded on the Common Laws, but they have their Rights and Privileges peculiar to themselves.
When the Earl of Shaftsbury was Lord Chancellor, Writs were issued, during a Prorogation of Parliament, for electing Members in the room of those that were dead: The King himself was so cautions, as to the Regularity of this Proceeding, and had so much Regard to the Privileges of the House of Commons, that at the next Session of Parliament, Feb. 5, 1672, he spoke to the Commons, from the Throne, in these Words.
'One thing I forgot to mention, which happened during this Prorogation; I did give orders for the issuing some Writs, for the Election of Members instead of those that are dead, that the House might be full at their Meeting: And I in mistaken, if this be not according to former Precedents. But I desire you will not fall to other Business 'till you have examined that Particular; and I doubt not but Precedents will justify what is done; I am as careful of all your Privileges as of my own Prerogative.'
Feb. 6, 1672. The House of Commons took that Matter into Consideration; and several Precedents being cited, and the Matter at large debated, and the general Sense and Opinion of the House being, 'That, during the Continuance of the High Court of Parliament, the Right and Power of issuing Writs for electing Members to serve in this House, in such Places as are vacant, is in this House, who are the proper Judges also of Elections, and Returns of their Members.
Thereupon it was Resolved, That all Elections upon the Writs issued since the last Session are void, and that Mr. Speaker do issue out his Warrant to the Clerk of the Crown, to make out new Writs for those Places. Which was done accordingly.
No other Court than the House of Commons, hath ever had the Determination of the Elections, or any Cognizance of such Causes, except where by Acts of Parliament directed: and such an Action as that against the late Constables of Aylesbury, to bring the Right of voting in an Election, in question in the Courts of Law, is a new Invention never heard of before; which (as new Devices in the Law are generally attended with Inconveniences and Absurdities) was plainly to subject the Elections of all the Members of the House of Commons to the Determination of other Courts.
This undoubted Privilege and Jurisdiction, the Commons think will warrant these Commitments, if the late Declaration, (which is agreeable to, and cannot lessen their antient Right,) had never been made.
For it is the antient and undoubted Right of the House of Commons to commit for Breach of Privilege: And Instances of their committing Persons, not Members of the House, for Breach of Privilege, and that to any of her Majesty's Prisons; are antient, so many and so well known to your Lordships, that the Commons think it needless to produce them.
It follows, that any Attempt to draw any such Causes to the Determination of any other Court, is a Breach of the Privilege of the House of Commons; for which the Person offending may be committed by the Commons.
And here we cannot but take notice of that unreasonable, as well as unnatural Insinuation, whereby your Lordships endeavour to separate the Interest of the People from their Representatives in Parliament, who pretend to no Privileges, but upon their Account, and for their Benefit; and are sorry to say, they are thus severely reflected on by your Lordships, for no other reason, but for their interposing to preserve the Rights of the People, and their Liberties, from your Lordships arbitrary Determinations.
Your Lordships fourth Resolution is, 'That every Englishman, who is imprisoned by any Authority whatsoever, has an undoubted Right, by his Agents, or Friends, to apply for, and obtain a Writ of Habeas Corpus, in order to procure his Liberty by due course of Law.'
The Commons do not deny that every Englishman, who is imprisoned, by any Authority whatsoever, has an undoubted Right to apply, by his Agents, or Friends, in order to procure his Liberty by due course of Law, provided such Application be made to the proper Place, and in a proper Manner; as, upon the Commitments of the House of Commons, (which sometimes are not, as other Commitments, in order to, bring to Trial; but are, in Cases of Breach of Privilege and Contempt, the proper Punishment of the House of Commons,) the Application ought to be to that House.
The Commons are so willing to allow and encourage every Englishman to apply, by his Friends, or Agents, to obtain a Writ of Habeas Corpus, in order to procure his Liberty by due course of Law, that they have not censured any Person merely for applying for such Writ of Habeas Corpus, even in Cases where by due Process of Law the Prisoners cannot be discharged. For the Commons must observe, that, in many Cases, a Prisoner cannot, upon a Writ of Habeas Corpus, obtain his Liberty; as in Cases of Commitment in Execution, or for Contempt to any Court of Record, or by virtue of mesne Process, or the like: And in the Act of Habeas Corpus, several Cases are expresly excepted; and that no Person, committed for any Contempt, or Breach of the Privilege, by the House of Commons, can be discharged upon a Writ of Habeas Corpus, or by any other Authority, than that of the House, during that Session of Parliament, is plain from the following Precedents.
In May 1675, the House of Commons having resolved, That there lay no Appeal to the Judicature of the Lords, from Courts of Equity; and that no Member of the House should prosecute any Appeal from any Court of Equity, before the House of Lords; (fn. 4) Serjeant Pemberton, Serjeant Peck, Sir John Churchill, and Charles Porter, Esq; were committed to the Custody of the Serjeant of the House, for a Breach of Privilege, in having been of Council at the Bar of the House of Lords, in the Prosecution of a Cause depending upon an Appeal, wherein Mr. Dalmahoy, a Member of the House of Commons, was concerned.
We are further commanded to acquaint you, that the Enlargement of the Persons imprisoned by Order of the House of Commons, by the Gentleman Usher of the Black-Rod; and the Prohibition, with Threats, to all Officers, and other Persons whatsoever, not to receive or detain them, is an apparent Breach of the Rights and Privileges of the House of Commons. And they have therefore caused them to be retaken into the Custody of the Serjeant at Arms, and have committed them to the Tower.
The said Council were afterwards committed to the Tower for a Breach of Privilege, and Contempt of the Authority of the House: And the House being informed, that the Lords had ordered Writs of Habeas Corpus for bringing the Council to the Bar of their House.
June 7. Resolved, Nemine Contradicente, That no Person, committed for Breach of Privilege by Order of this House, ought to be discharged, during the Session of Parliament, but by Order, or Warrant of this House.
Resolved, Nemine Contradicente, That the Lieutenant of the Tower, in receiving and detaining in Custody Sir John Churchill, Serjeant Peck, Serjeant Pemberton, and Mr. Porter, performed his Duty according to Law; and, for so doing, he shall have the Assistance and Protection of this House.
Resolved, Nemine Contradicente, That the Lieutenant of the Tower, in case he hath received, or shall receive any Writ, Warrant, Order, or Commandment, to remove or deliver any Person or Persons committed for Breach of Privilege, by any Order or Warrant of this House, shall not make any Return thereof, or yield any Obedience thereunto, before he hath first acquainted this House, and received their Order and Directions how to proceed therein.
Afterwards the Lieutenant of the Tower gave the House an Account, that he had refused to deliver the Council, upon the Lords Order, signified to him by the Black-Rod, because they were committed by this House; and that after he had received the Votes of this House, he had Writs of Habeas Corpus brought him, to bring the Council to the House of Lords at Ten o'Clock the next Morning, and humbly craved the Direction of the House what to do.
June 9. Resolved, Nemine Contradicente, That no Commoner of England, committed by Order or Warrant of the House of Commons, for Breach of Privilege, or Contempt of that House, ought, without Order of that House, to be, by any Writ of Habeas Corpus, or other Authority whatsoever, made to appear, and answer, and do, and receive a Determination in the House of Peers, during the Session of Parliament wherein such Person was committed.
Resolved, Nemine Contradiceate, That the Order of the House of Peers, for the issuing out of Writs of Habeas Corpus concerning Serjeant Peck, Sir John Churchill, Serjeant Pemberton, and Mr. Charles Porter, is insufficient and illegal; for that it is general, and expresses no particular Cause of Privilege, and commands the King's Great Seal to be put to Writs not returnable before the said House of Peers.
Resolved, Nemine Contradicente, That the Lord-keeper be acquainted with these Resolutions, to the end that the said Writ of Habeas Corpus, may be superseded, as contrary to the Law and the Privileges of this House.
Resolved, Nemine Contradicente, That a Message be sent to the Lords, to acquaint them, that Serjeant Peck, Sir John Churchill, Serjeant Pemberton, and Mr. Charles Porter, were committed by Order and Warrant of this House, for Breach of the Privilege, and Contempt of the Authority of this House.
These are some Instances, among many others, that might be produced upon this Occasion; and the last cannot but be particularly remembered by some noble Lords that then sate in the House of Commons, and strenuously asserted this Privilege of the Commons.
Your Lordships fifth Resolution, viz. Resolved, 'That for the House of Commons to censure or punish any Person for assisting a Prisoner to procure a Writ of Habeas Corpus, or by Vote, or otherwise, to deter Men from solliciting, prosecuting, and pleading upon such Writ of Habeas Corpus, in behalf of such Prisoner, is an Attempt of dangerous Consequence, a Breach of the many good ratutes provided for the Liberty of the Subject, and of pernicious Example, by denying the necessary Assistance to the Prisoner, upon a Commitment of the House of Commons, which has ever been allowed upon all Commitments by any Authority whatsoever.'
The Commons take this to be another Instance of your Lordships Breach of your own Rule, your Lordships being no Judges of their Privileges; tho' by this Resolution you seem to make a Judgment without having heard, and knowing what the Commons have to alledge for them.
This Attempt, therefore of your Lordships is of dangerous Consequence, tending to a Breach of the good Understanding between the two Houses, and of most pernicious Example. The Commons late Proceeding, in censuring and punishing the Council that have pleaded upon the Return of the Writs of Habeas Corpus, in behalf of the Prisoners, if duly consider'd, is a great Instance of the Temper of the House of Commons: For this House did not interpose when the Prisoners applied to the Lord-keeper, and the Judges to be bailed; and, had the Lawyers shewn so much Modesty, as to have acquiesced in the Opinion of the Lord-keeper, and all the Judges, that these Prisoners were not bailable by the Statute of Habeas Corpus, the Commons had never taken any notice of it: But they would not rest satisfied without bringing on again this Case; and the Privileges of the Commons were, with great Licentiousness of Speech, denied, and insulted in public Court; not with any hope or prospect of Relief of the Prisoners, (who in this whole Proceeding have apparently been only the Tools of some ill-designing Persons, that are contriving every way to disturb the Freedom of the Commons Elections) but in order to vent these new Doctrines against the Commons of England, and with a Design to overthrow their fundamental Right. And, after so much Inveteracy shewn to the Commons, they could do no less than declare the Abettors, Promoters, Countenancers, or Assisters, of a Prosecution so carried on, to be guilty of conspiring to make a Diffenence between the two Houses of Parliament, to be Disturbers of the Peace of the Kingdom; and to have endeavoured, as far as in them lay, to overthrow the Rights and Privileges of the Commons of England in Parliament assembled.
And the Commons, in committing the Lawyers, have only done that Right to their Body which your Lordships have frequently practised, in Cases of personal Privilege, where any single Member of your Lordships House is concerned.
Your Lordships last Resolution, viz. 'That a Writ of Error is not a Writ of Grace, but of Right, and ought not to be denied to the Subject, when duly applied for; (tho' at the Request of either House of Parliament) the Denial thereof being an Obstruction of Justice, contrary to Magna Charta.
The Commons shall not enter into any Consideration, whether a Writ of Error is of Right, or of Grace; they conceiving it not material in this Cate, in which no Writ of Error lies, nor was ever any Writ of Error brought or attempted in the like Case before; and the allowing it in such Cases would not only subject all the Privileges of the House of Commons, but the Liberties of all the People of England, to the Will and Pleasure of the House of Lords.
And, when your Lordships' Exercise of Judicature upon Writs of Error is considered, how unaccountable is it in its Foundation; how inconsistent is it with our Constitution, which, in all other Respects, is the wisest and happiest in the World, to suppose the last Resort in Judicature, and the Legislative to be differently placed?
And, when it is considered how that Usurpation, in hearing of Appeals from Courts of Equity, so easily traced, tho often denied and protested against, is still exercised, and almost every Session of Parliament extended, it is not to be wondered, that, after the Success your Lordships have had in those great Advances upon our Constitution, you should now at once make an Attempt upon the whole Frame of it, by drawing the Choice of the Commons Representatives to your Determination; for that is a necessary Consequence, from your Lordships encouraging the late Actions, and your countenancing a Writ of Error; which, if allowed upon such a Proceeding, might as well be introduced upon all Acts and Proceedings of Courts or Magistrates of Justice: And, tho' the present Instance has been brought on under the specious Pretence of preserving Liberty, it is obvious the same will as well hold to controul the bailing and discharging Prisoners in all Cases.
And the Commons cannot but see how your Lordships are contriving, by all Methods, to bring the Determination of Liberty and Property, into the bottomless and insatiable Gulph of your Lordships Judicature, which would swallow up both the Prerogatives of the Crown, and the Rights and Liberties of the People; and which your Lordships must give the Commons leave to say, they have the greater reason to dread, when they consider in what manner it has been exercised: The Instances whereof they forbear, because they hope your Lordships will reform; and they desire rather to compose the old, than to create any new Differences.
Upon the whole, the Commons hope, that, upon due Consideration of what they have laid before your Lordships, you will be fully satisfied they have acted nothing in all these Proceedings, but what they are sufficiently justified in from Precedents, and the known Laws and Customs of Parliament; and that your Lordships have assumed and exercised Judicature contrary to the known Laws and Customs of Parliament, and tending to the Overthrow of the Rights and Liberties of the People of England.
The Serjeant at Arms, attending the House, having acqainted the House, that he had received two Writs of Habeas Corpus under the Great Seal of England, to bring before the Lord-keeper the Bodies of James Mountague, Esq; and Alexander Denton, Esq; (who are committed to his Custody by Warrants from the Speaker of this House for a Breach of Privilege.)
Resolved, That no Commoner of England, committed by the House of Commons for Breach of Privilege, or Contempt of that House, ought to be, by any Writ of Habeas Corpus, made to appear in any other Place, or before any other Judicature, during that Session of Parliament wherein such Person was so committed.
Resolved, That the Serjeant at Arms attending this House, do make no Return of, or yield any Obedience to the said Writs of Habeas Corpus; and, for such his Refusal, that he have the Protection of the House of Commons.
That the Lords who appeared as Managers, and spoke at this free Conference, were, the Earl of Sunderland, the Lord Ferrers, the Bishop of Salisbury, the Lord Hallifax, the Lord Wharton, and the Duke of Devonshire Lord Steward.
That the free Conference was begun by the Managers for the Lords, who said, this Conference was desired to maintain a good Correspondence between the two Houses, which was never more necessary than at this Time.
That the Lords are the great Court of Judicature; and when the Courts below have differed in Opinion, there has been Resort to the Lords for their Judgment, as in the Case of Kindred of half-blood claiming Shares of Intestates Estates.
'That, in the Case of Freedom of Speech, which is the greatest Privilege, there was a Judgment in King Charles the First's Reign, in the Heat of those Times, against some Members, for Speeches in Parliament: This the Commons first condemned; and then by Conference brought it before the Lords, who came to a Resolution, that it was erroneous, and desired the Lord Hollis to bring his Writ of Error; and thereupon it was reversed by the Lords, in the Time of Charles the Second; which shews the Care the Lords had of the Commons Privileges.
'That the Earl of Banbury (as he was called) was, by the Lords, adjudged to be no Peer: This was examined in the King's Bench, where, in Abatement of an Indictment of Murder against him, as Charles Knolles, Esq; he pleaded his Title of an Earl; and in Avoidance of that, the Order of the Lords was replied, and was examined by the Court, and disallowed.
'That the Lords do not meddle with the Commons Right of determining their own Elections; they have a settled Possession of it, which is a Right: But if all the Rights of Subjects concerned in those Elections are to be determined there, that will bring all Questions of Freehold, and the Allowance of all Charters, and all Liberty and Property before them.
'That a Freeholder of forty Shillings per annum has a Right of Inheritance, to which he is born; and if his Vote is denied, he is damnified, and loses the Credit of his Vote; and if he shall only come to the House of Commons, they can neither give him Damages nor Costs of Suit.
'That the Proceedings in 1675, produced as a Precedent in this Case, were upon a Matter contested between the two Houses, and resolved differently in the Lords House: Topham and the Lieutenant of the Tower were both turned out; and the Ferment was so high, that the Parliament was prorogued, and soon after dissolved.
'That they agreed the necessity of a good Correspondence between the two Houses, especially at this time of common Danger: and that the Commons had fully shewn their Desire to maintain that good Correspondence, by condescending to meet their Lordships at this free Conference, altho' their antient and fundamental Privileges had been called in question, and denied by their Lordships, and that in an extraordinary and very unparliamentary Manner.
'That the delivery of Resolutions is so far from being the only Method of Conferences, that the more usual Method has been to offer Reasons, without Resolutions; and it would be very difficult to give any Instance (before this) of either House delivering positive Resolutions at a Conference, without the Reasons, at the same time, to support them, and that induce them to make such Resolutions.
'1. That the Commons Answer to the Lords first Resolution, is not foreign to the Subject-Matter of the Conference: Because the Commons apprehended the Subject-Matter to be their Lordships denying the Privileges of the Commons, on the one hand, and their extending their own Judicature beyond its proper Limits, on the other: And therefore the Commons could not but take notice, how far their Lordships had transgressed in the Exercise of an unwarrantable Judicature, in Contradiction to that very Rule they had laid down for the Test of the Proceedings of the Commons, and by which the Commons had strictly governed themselves.
'That tho' the Commons cannot create new Privileges; yet, in Coke's 13 Reports, so. 63. 'tis said, the Privilege of Parliament, either of the upper House, or of the House of Commons, belongs to the Determination or Decision only of the Court of Parliament; for every Court hath a Right to adjudge their own Privileges, according to the Book of Ed. 4 Sir John Paston's Case.
'That Matters of Election do not belong to the Courts below, but only to the House of Commons, which hath been in long Possession of them: That there was an Act of Parliament made in the time of King Henry the Sixth, to give an Action for a false Return of Members to serve in Parliament, because no such Action lay at Common-Law, it relating to Elections.
'That, besides the Instances given, in the Answers the Commons gave to the Lords Resolutions, at the last Conference, this Distinction, as to privileged Cases, is fully and undeniably warranted by the Statute made in the first Year of King William and Queen Mary, entitled, An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown; where, among other Endeavours of the late King James, to subvert and extirpate the Laws and Liberties of the Kingdom, these are mentioned, by violating the Freedom of Election of Members to serve in Parliament, and Prosecutions in the Court of King's-Bench, for Matters and Causes only cognizable in Parliament.
'Besides, that there are privileged Cases as well as privileged Persons, appears from hence: A Prohibition, and afterwards Attachment, lies, for suing in the Spiritual Court for a Temporal Cause determinable in the Temporal Court. There are divers Laws within this Realm, of which the CommonLaw is but one, as appears in Coke's 1 Inst. Fo. 2. B. where he mentions Lex & consuetudo Parliamenti, & lex communis, as distinct Laws.
'As there are several Laws, so there are several Courts and Jurisdictions, and several Causes proper for those several Laws and several Jurisdictions: Of these the high Court of Parliament is the first: Lex & consuetudo Parliamenti is a great Branch of the Law of England; and many Causes are to be determined only by that Law, as appears in the Inst. Fo. 23.
'With such Causes as are in their nature parliamentary, and to be determined by the Law of Parliament, the Common-Law, and Common-Law Judges have nothing to do; as further appears, 4 Inst. Fo. 14, 15. where the Expressions are very suicable to the present Controversies.
'That the Persons assisting in the Prosecution of such Actions, after a Prohibition by the Commons, for that such Causes belong to their Jurisdiction, the committing them for the Breach of their Privileges in that particular, is no more than is done by the Common-Law Courts for a like Contempt, when Persons will sue, after a Prohibition, to the Spiritual Courts: And the Commons usual way to defend their Privileges against such invasions, has been by committing the Tools and Instruments thereof.
'It is a fundamental Maxim of the Law and Custom of Parliament, which is the highest and noblest Part of the Law of England, and particularly adapted to the Preservation of the Liberties of this Kingdom, that the two Houses are independent of one another, and sole Judges of their Rights and Privileges: That their Lordships did admit, the Commons have a Privilege to judge of the Rights of their own Elections, to one Intent, but not to another: But if the Commons have such a Privilege to one Intent, they must be Judges of it to all Intents and Purposes whatsoever; and, being sole Judges thereof, their Judgment cannot be legally called in question, either by Writs of Habeas Corpus, Writs of Error, or otherwise, in any other Court; and consequently the Proceedings in Westminster Hall, and in the House of Peers, and the Judgment given there, are all null and void, & coram non judice.
'4. In answer to what the Lords had offered upon the fourth Resolution, your Managers insisted, that Application of Friends for the Liberty of any Person imprisoned, ought to be in a proper Place, and in a proper Manner, which in this Case ought to have been only to the House of Commons, and by the Petitions of the Persons they had committed.
'The Licentiousness of Speech used by the Lawyers, was only mentioned among other Particulars of the Provocations they gave the House of Commons; but they were committed for pleading upon the Returns of the Writs of Habeas Corpus, in behalf of the Prisoners committed by the House of Commons, which the Commons (who are the only Judges of their own Privileges) take to be a great Breach of the Privilege of their House.
'6. To the last Resolution your Managers insisted, that no Writ of Error lies in that Case; and that there may be Cases wherein no Writ of Error lies, was their Lordships Opinion in the Case of the late Bishop of St. David's, who brought his Writ of Error upon the Courts not granting him a Prohibition.
'The Case of Sir Thomas Armstrong, mentioned by their Lordships, was particular, in that the Commons then apprehended he was entitled to a Writ of Error, within the meaning of the Statute of Edward the Sixth.
'Your Managers further urged the Novelty of the Action in the Case of Ash by and White, of which no Footsteps can be found in any Book of the Law, or in any Record, although we have faithful Reports of all memorable Cases for four hundred Years past; and the Occasion of such an Action must frequently have happened.
'The Lords themselves (when they had no Design upon the Privileges of the Commons) were of Opinion, in the Case of Sir Samuel Barnardiston, in the first Year of the Reign of King William, that no such Action lay; and there is no Reason can be offered to maintain this Action, but held more strongly in the Case of Sir Samuel Barnardiston, as Damages, Costs, &c. And it is an absurd Distinction to say, that in this Case the Right of Election cannot come in question, because the determining of the Right of the Electors doth generally determine the Right of the Elected; and almost all controverted Elections depend upon the Qualifications of the Electors.
'That the Commons had shewn such a Disposition to maintain a good Correspondence with their Lordships, though their Lordships in the Case of Aahby and White, had, contrary to the Judgment of the Courts below allowed the Action, upon which the Plaintiff had taken out Execution, and levied the Money; that the Commons took no notice of it, and were willing to let the Matter fall, which might occasion any Contest in this Time of public Danger: But when other Actions of the like Nature were still commenced and prosecuted, whereby all Elections would be brought to the Determination of the Lords, or, at leaft, in time so influenced, as that the Lords would in Effect chuse the Commons, and thereby the Independency of the two Houses would be destroyed, which is the great Safety of the Constitution; then it concerned the Commons, who are the Representatives of the People, to oppose what would be so fatal to our Constitution.
'The bringing Writs of Habeas Carpus upon the Commitments of the Commons, and a Writ of Error thereupon before the Lords, would bring all the Privileges of the Commons to be determined by the Judges, and afterwards by the Lords, upon such Writs of Error.
'And if a Writ of Error cannot be denied in any Case, and the Lords alone are to judge whether the Case be proper for a Writ of Error, then all the Queen's Revenue, all her Prerogatives, and all the Lives and Liberties of the People of England, will be in the Hands of the Lords, for every Felon, Burglar, and Traitor, will be entitled to a Writ of Error before the Lords; and they will have even Power of Life and Death.
'And by Writs of Error and Appeals, as already exercised, they will have all our Properties; by such new-invented Actions they will have all our Elections; and by such Writs of Habeas Corpus, and Writs of Error thereupon, they will have all our Privileges, Liberties, and even Lives, at their Determination; who determine by Vote, with their Doors shur, and it is not certainly known who it is that hurts you.
'Especially since the Lords have found out a way to distreis the Government, by detaining the Money given by the Commons, which must come last to them, because the Money-Bills must begin with the Commoners; and if by that means they can extort Writs of Error where they never were heard of, the Commons must commit the Persons employed in all such Innovations, or else they must lose, by such Connivances, all that they have.
'In the Case of Denzil Holles, Sir John Elliot, &c. in 1667, the Commons declared the Judgment given in 5 Car. I. to be an illegal Judgment, and against the Privilege of Parliament; and this they did of themselves, before they acquainted the Lords therewith.
'Afterwards, because it concerned the Lords as well as the Commons, they imparted their Resolutions, to the Lords, who concurred with the Commons; and the Writ of Error, which was afterwards brought at the Desire and Instance of the Lords, and not at all by the Desire of the Commons, they rested upon their own Resolution, that it was an illegal Judgment.
'That the Case of Sir Francis Goodwin is not fairly stated, the word Order being omitted in the Commons Answer to the Lords Message, relating to the Commons Proceedings in this Case; which refers to a particular Order of the House of Commons, they having before determined that Election. That it is not taken notice that the Lords went with the Commons to the King, and were Mediators; and that, at the last, a new Writ issued for a new Election.
'That by the Writ of Error brought in the late Bishop of St. David's Case, upon the Denial of a Prohibition, and disallowed by the Lords, it appears, when a Record comes improperly before them, they are so just as to dismiss it.
'That the Question is, whether the Queen is bound to grant a Writ of Error? If she is, it will be hard for any Body of Men to interpose with the Crown, and stop it, to hinder that Fiat, which, by the Opinion of the Judges, she ought to give.
'The Lords are less interested in the Event of this Conference than the Commons, who are the Trustees of those who sent them, and are bound in Duty and Interest to preserve their Liberty and Property; and having but a triennial Duration, which is at this time near expiring, it is not to be imagined they will infringe what they are entrusted with, and so much concerned to maintain; and that so notoriously, that the Lords should complain, who are much less concerned, but more to be feared, as their Designs as well as Honour may be hereditary.
'That their Lordships, not making any Distinction between Matters and Causes, which were exempt from the Cognizance of the Common-Law Courts, as being solely cognizable in Parliament, and Causes which were exempt only in Respect of the Persons sued, being entitled to Privilege of Parliament, seems to be the Occasion of the mistakes their Lordships have entertained, in relation to the Proceedings of the Commons; that the House of Commons is a Court of Judicature in many Respects; and, as such, hath, as well as other Courts, Causes proper and peculiar to its Jurisdiction.
'That all Matters moved or done in Parliament, must be questioned and determined there, and not elsewhere, has been heretofore asserted by the House of Commons, as their antient and undoubted Right, and has been allowed both by the Judges of Law, and by their Lordships, And when the Judges of the King's-Bench, in the fifth Year of King Charles the First, upon an Information against Sir John Elliot, Mr. Hollis, and others, held, that Matters done in the House of Commons, if not done in a parliamentary way, might be questioned elsewhere; that Judgment was afterwards reversed in Parliament.
'That their Lordships allowed all Matters relating to Elections, ought to be determined solely by the Commons: And tho' their Lordships attempted to make a Distinction between the Right of Elections, and the Right of Electors, yet their Lordships cannot find room for such a Distinction, unless they would say, the Right and Qualification of the Electors was a Matter not relating to Elections.
'That by the Parliament Rolls, 11 Rich. II. it appears a Petition was exhibited by Parliament, and allowed by the King, that the Liberties and Privileges of Parliament should be discussed by the Parliament, and not by any other Courts, nor by Common or Civil-Law; and, therefore, when the Judges have been asked their Opinions in Matters of Parliament, they have answered, that the Privileges of Parliament ought to be determined there, and not by any other; as they did in the Case of Thorp, Speaker of the House of Commons, 31 H. VI.
'That these Matters are not exempt from the Determination of other Courts, in respect of the Persons sued; for then they might be determined there after the time of Privilege was expired; whereas it is evident, that such Matters and Causes cannot be determined, in any other Court than that of the Parliament, after the Expiration of the time of Privilege, any more than before.
'That these Matters are determinable in Parliament, although the Persons prosecuted are not entitled to the Privilege of Parliament, as appears by many Instances, particularly by that of the Mayor of Westbury, in the eighth Year of Queen Elizabeth, who, for taking four Pounds to get a Person elected a Burgess for that Borough, was fined and imprisoned by the House of Commons, although he was not a Person entitled to the Privilege of Parliament.
'That it may be as well said, that an Action is maintainable for refusing any of the Lords a Right of precedency in Parliament; yet it cannot be imagined the House of Peers would be content the same should be brought in question, in any of the Courts of Law, and decided by a Jury of Commoners.
'But the same Arguments will hold for maintaining such an Action, to recover Damage for refusing Precedency to him that hath Right to it, as for maintaining an Action to recover Damages, for refusing to take down upon the Poll the Vote of an Elector: For it may with equal Reason be said in both Causes, that the Plaintiff hath a Right, that the Defendant refused him that Right, that such Refusal is an Injury, and consequently ought to be repaired in Damages.
'That the Courts of Westminster-Hall have that Deference for each other's Judgment, that, in Commitments for Contempt or Misdemeanour, which are frequent every Term, another Court, though superior, will not redress the Prisoner by Habeas Corpus, or otherwise; but he must address to the Court which committed him, much less can an inferior Court do it.
'The House of Commons therefore expected the same Deference from those Courts which they pay each other; and also from the Lords House what is due to a co-ordinate Jurisdiction: The Commons taking themselves to be superior to any Court in Westminster-Hall, and not allowing any Court in this Government to be their superior, no more than their Predecessors have done.
'The Commitment was not for acting contrary to the Vote of the Commons, but for acting contrary to Law, after the Law was notified to them by that Declaration, and they thereby prohibited to proceed in that Course.
'To set this in a true Light, if a Man sues in the Admiralty, or ecclesiastical Court, for a Matter properly cognizable at Common-Law, the Party shall not indeed be committed for commencing that Suit; but if the Defendant in such Suit obtains a Prohibition, which declares what the Law is, and gives the Plaintiff notice that his Suit is contrary to Law, and therefore prohibits him to proceed any further therein; if he does proceed, an Attachment will issue to arrest him for Breach of Prohibition, as it is said, though in truth, it is for acting contrary to Law, after he had been admonished what the same was.
'Now there's no Difference between the Declaration complained of, and the Prohibition mentioned, but in the Name only; both declare what the Law is; both admonish the Person offending, and both command him not to proceed; so that there is as much reason to complain of a Prohibition at Law, as of the Declaration mentioned in the Resolution.
'5. For the fifth Resolution, the Commons, have the same Exceptions to it as they had to the third Resolution: For if Council, Attorneys, or Solicitors, are prohibited, and act contrary to the Order of any Court, they are guilty of a Contempt of that Court, and for such Contempt they may be taken into Custody.
'To their Lordships last Resolution, it is very true, that in the last Reign the House of Commons did so resolve in the Cause of Sir Thomas Armstrong, as hath been cited, which Case was, that Sir Thomas Armstrong was indicted for HighTreason, and afterwards fled beyond Sea, where he was at the time of the Exigent awarded against him; and afterwards, within a Year after the Exigent awarded, he was brought Prisoner into England, and would have a Writ of Error, but it was denied him; upon which the House of Commons made the Resolution mentioned. At the Common Law, if a Person had been guilty of a capital, or any other Crime, and had been in England at the time of the Indictment found against him, but was beyond Sea at the time of the Exigent awarded, and thereupon an Outlawry was had, the Person outlawed might any time afterwards have reversed that Outlawry, for that Error in Fact; the Practice whereupon was, that Persons guilty of Treason, would fly beyond Sea, and there stay till the Witnesses against them were dead, and then return into England, reverse their Outlawry, and become safe. To remedy which Mischief, was the Statute of Edward VI made, which takes away the Error in Treason, unless the Person outlawed rendered himself to the Chief-Justice within a Year after the Outlawry: Within which Exception was the Case of Sir Thomas Armstrong, as he Commons apprehended, which was the Reason of the Resolution: And in other Cases the Practice since that Resolution has been otherwise; for in the Case of Salisbury, who was attainted of Felony for counterseiting the Stamps, a Writ of Error was deny'd him, tho' he petitioned for the same. But if this Resolution is aimed at a Writ of Error for denying a Habeas Corpus. or denying to bail, or discharge Persons committed by the House of Commons, this Resolution is very wide from the Purpose; for, whether a Writ of Error be a Writ of Right, or a Writ of Grace, in all Cases where a Writ of Error does lie, yet their Lordships Resolution cannot be carried so far as to make a Writ of Error lie, in a Case where there is no Judgment pronounced, as there never is in the Case of an Habeas Corpus, or in any thing relating thereunto: for if a Habeas Corpus is desired, or if granted, and the Persons thereupon denied to be bailed or discharged, this is no such Judgment, but that the same, or any other Court, may great an Habeas Corpus, and discharge or bail the Person committed.
'Your Managers added, The Commons hoped it would be no Difficulty to convince the Lords, that these Resolutions were both unreasonable and unparliamentary, and they have not been much justified; and certainly it cannot be parliamentary, or reasonable, for the Lords to condemn the Commons in the Case of their own Privileges, when the Lords are no Judges of them: And therefore, though the Commons have now entered into this Debate with their Lordships, it was never meant to subject their Proceedings to the Lords Examination, but only to satisfy the Lords, and all Mankind, that the Commons have not done an extravagant thing. That a noble Lord said, they did not intend to interrupt the Commons in the Determination of their Elections. The Commons are beholden to them for that; for otherwise, when they thought fit, they might as well meddle with that, as several other things they have of late taken upon them.
'The Commons hope their Lordships will consider what the Constitution is, and think it not reasonable, that any Part should exceed its due Bounds; But there have been great Invasions made upon it by their Lordships, and some Instances of that kind have been delivered at the last Conference; and it would be easy to shew, that the Judicature which of late has been assumed by the Lords, is not consistent with the Constitution.
'A Writ of Error in this Case, the Commons take to be such: And the Commons would be blameable for admitting of it, since no such Writ does lie: and the Commons have done well in advising her Majesty not to grant it, since it is against the Law: The Commons find no such Writ ever brought.
'Tis said their Lordships will do Right to the Commons upon it; but the Commons can never think it reasonable to trust the Liberties of the People of England to their Lordships Pleasure, for they that have Power to do Right, have Power to do Wrong; and Power is so often abused, that the Commons can never suffer the Lords to assume this new Power to themselves. Were we certain Power could never be abused, an arbitrary, and what is called a tyrannical Power, would be the best in the World, for that not being tied to any Rule, would apply the Remedies proper in all Cases; but since this is not to be expected, the Commons were in the right to stop this Writ of Error: They find one thing has brought on another; and therefore, for the future, shall oppose any further Progress of this nature.
'That 'tis said, the Lords cannot judge of the Privilege of the House of Commons. They do not say they can; there may be no Occasion; but from Precedents it appears they have done it by Writ of Error, and at the Desire of the Commons.
'That this comes upon a Petition of five Men to the Lords, setting forth, they have been imprisoned by the Commons for bringing their Actions against the Constables of Aylesbury, and for suing out Writs of Habeas Corpus, and are at least delayed in a Writ of Error.
'In answer to this, your Managers said, This Action is of the first Impression; and 'tis a good Argument no such Action lies, because none was ever brought before, and especially, because Occasions cannot be presumed to have been wanting in every new Election of Members to serve in Parliament, nay many more justifiable than in the late Case of Ash by and White, where the Plaintiff was a Person likely to become chargeable to the Parish, and therefore removed by the Order of two Justices: And this, by the way, brings in mind the printed Case of Ashby and White, from the Report of the Lords Committees, where 'tis given in Answer, no such Action before was brought, that few had such a true English Spirit as that Plaintiff, tho' 'tis said he then was a Cobler, and formerly had been an Hostler; and his Breast, it seems, was first warmed with this true English Spirit, which was rather a Spirit of Faction,
'And it is worthy Observation, that in this Case, the Costs and Charges sustained by Ashby, or somebody for him, could not be less than 100 l. more than the Costs and Damages he recovered; so that it was infelix Victoria, and no Benefit, but a Loss to him. A noble Lord was pleased to say further, that tho' he would not pretend to judge of the Commons Privileges, yet he might of what was not their Privileges. That Argument appears very strange, since the Commons say the Matter in question is their Privilege; and if the Lords saying 'tis not, is sufficient to divest them of it, the same Method may divest the Commons of all the rest. The Commons are not going about to create new Privileges, but continue the Possession of those which their Predecessors ever enjoyed and exercised; and which they think neither this or any other future House of Commons, can ever depart from.
'As to what was said; that none but a superiour Court can take cognizance of what another does, it was answered, That when the Earl of Shaftsbury was committed by the House of Lords for a Contempt, he was brought by a Habeas Corpus to the Court of King's-Bench: This was complained of to the House of Lords, But they passed it over, being of Opinion a Man might seek for Liberty where he would.
'Your Managers thereupon returned, They wished your Lordships had said that at the beginning, it would have saved much time and shortened the Debates; for the Commons think their Privileges as sacred as the Lords can their Judicature. Your Managers proceeded to say.
'That as nothing offered at this Conference, or the last, was meant to submit or lessen the Privilege of the Commons; much less had any thing in the Precedents, in the Time of Queen Elizabeth and James I, produced at the last Conference, any Tendency that way.
'And, in answer to some Objections made to those Precedents, your Managers said, the Commons did not take upon them to set forth the whole Proceedings which are very long; but tho' they had not their Books there to make out the Quotations, can depend upon what they have stated to be true.
In the Precedent of Sir Francis Goodwin's Case, cited by the Commons, there are no Omissions that; duly considered, can make that Case less to the Advantage of the Commons, on this Occasion; for if the Word Order be omitted, and taking the Answer to have been, that they did conceive it did not stand with the Honour and Order of the House, to give Account of any of their Proceedings or Doings, that will little alter the Case, since it is plain, from the Entry on the Journal, the Commons in returning this Answer, had regard chiefly to the Precedent then quoted, 27 Eliz. when the Commons refused to give the Lords any Reasons (tho' the Lords desired them) for the rejecting, at the first reading, a Bill the Lords had sent down to the Commons: The Reasons for the Commons Proceedings in this Case were prepared by themselves, which they did communicate to the Lords; but the Lords were not to add or diminish: And tho' some Lords were present at the Commons delivering their Reasons, there is a material Distinction, upon the Commons Journals, of those Lords being present as Lords of the Council, and not as Lords of the Parliament.
'And the noble Lord who took notice of the Commons Omission in the stating of this Case, and pretended to state it fully and truly himself, omitted, that the new Writ was ordered to issue at the Request of Sir Francis Goodwin, by his Letter; which, for the Satisfaction of the House, was read and entered on the Journal, before any Question for the new Election was made.
'In that of the 28th of Eliz. the Commons did not, at the last Conference, omit to take notice of the Judges Determination; but it is justly stated as a Matter the Commons, in the Examination of that Case, were informed of, but did not respect; the Commons then asserting themselves to have the sole Determination of that Case.
'Your Managers further urged, Tho' the Commons do not submit their Privileges, it may be proper to ascertain what they claim, with the Reasons why they are at this time the more concerned to oppose all Attempts upon them.
'They do agree the Right of voting may be grounded upon Freehold, Charter, or Prescription; and they do not pretend to draw them from the Courts of Common-Law, when, as such, they come there originally, immediately and directly in question.
'But it is as plain, when the Right of voting in an Election is the thing originally, immediately and directly in question, that is solely cognizable in the House of Commons, whose Determination is the standing Rule for all Places: And if the Elections only were examinable by the Commons, and every Elector's Vote was examinable elsewhere, the Consequence of such different Determinations is fully stated, as delivered at the last Conference; which common and known Difference of coming originally, or collaterally and incidentally in question, will answer the Case of the Earl of Banbury, where the Order of the House of Lords came only incidentally in question, upon an Indictment for Murder; nor is there any Injury in this case that requires an Action, much less Damages: The Elector's Vote, upon every Election, depends upon its own true Foundation, as the Elector then stands entitled by Freehold, Charter, or Prescription, whether he was entitled, or was allowed, or refused at any former Election, or not.
'Nor is Damage always necessary to a Remedy; that which is specific and gives the Right, is the most noble and compleat Remedy; Damages being only secondary, substituted by way of Recompence where the other cannot be had, as appears by many Instances in the Law.
'The Commons had great reason to assert their ancient Right, and withstand these late and new Attempts upon the Constitution, which in every step have been unprecedented; viz. the Action, the Habeas Corpus, and the Writ of Error.
'But thus much may be observed, that this is not the common Case, where the Question arises and falls under the Determination of the Judges of the Law, which is of Petitions of Right, and Writs of Error in the Courts of Westminster, (as that of Sir Thomas Armstrong was) where the Queen is Party; there it is in the room of a Suit against the Crown, and if denied, the Party has no Remedy.
'This Petition to the Queen, for a Writ of Error in Parliament, is properly a Parliamentary Case, and is the same when the Queen is Party or not; and seems some Remnant of our ancient Constitution, where all Petitions were to the King in Parliament or to the King and his great Council, which was distinct from the House of Peers, and were examined by Triers, whether fit for the Parliament to proceed upon, or not; and to say, that upon such Examination, they cou'd not be rejected, is to say, that Examination was insignificant. And, if in this Case no Writ of Error lies, it cannot then be said, that the denying of it is an Obstruction of Justice, or contrary to Magna Charta.
'That a Writ of Error lies not in any Proceeding on any Habeas Corpus, has been the uniform Opinion of former times, as appears in the Case of the City of London, 7 Jac. reported by the Lord Chief-Justice Coke, in his eighth Report, where one under an Arrest, for the Penalty in a ByLaw, brought his Habeas Corpus, and the Judges took it for a Ground, that no Issue or Demurrer could be joined upon the Return, nor could any Writ of Error lie upon their Award; and upon that, as a Principle, grounded their Resolution, Fol. 128.
'And that this never came directly in question, is because a Writ of Error in such Case was never asked, much less had, upon a bare Commitment of any Court whatsoever, And it is hard to imagine that there is any lawful Resort or Appeal for Liberty, lest untried at this Day, when so many, in all times, have had Occasion to apply for it; especially considering the frequent Commitments of both Houses of Parliament.
'That the Commons are not surprized, to find the Lords make such a Shew of submitting their Privileges to the Courts of Westminster, when it is in order to draw all the Rights and Privileges of both Houses to their own final Determination; and much less when they consider how insignificant all Courts of Justice are rendered, while their Lordships exercise the last Resort in Judicature.
'But where the ancient Form, which appears in Rostall's Entries, Fol. 302. was, Ut de concilio & advisamento dominorum spiritualium & temporalium ac comnunitatum in Parliamento nostro existentium ulterius pro errore corrigendo fieri faciamus quod de iure, &c.
'In December 18. Jac. 1. It appears by the Lords Journal, that an Appeal to the Lords from a Court of Equity, was by them acknowledged to be as new and unprecedented, as any of the Attempts which occasion the present Conference.—
'Here the Lords interrupted your Managers, affirming, That they were restrained from entering into Debate of their Judicature of Appeals from Equity, as foreign from the Subject-Matter of the last Conference. But it was answered, and insisted by your Managers, that this was Part of the Matter offered at the last Conference.
'And your Managers declared, That they had more to offer, and were ready to proceed upon the Subject-Matter of the last Conference, in such Manner as they thought their Duty to the Commons of England required, if their Lordships thought fit to hear them: Whereupon the Lords did rise, and broke off the Conference.'
Resolved, That the Proceedings of this House, in relation to the Aylesbury Men, committed by this House for a Breach of Privilege, and the other Proceedings of this House in that Matter, are in Maintenance of the ancient and undoubted Rights and Privileges of the Commons of England.
We must now return back to the Month of December, on the 8th of which, Her Majesty was pleased to give the royal Assent to the following Bill, viz. An Act for granting an Aid to her Majesty by a Lord-Tax to be raised in the Year one thousand seven hundred and five.
Queen's Speech in Parliament.
'And I must thank you, Gentlemen of the House of Commons, in particular, for your early Dispatch of so great a Part of the necessary Supplies, which cannot fail of being a very essential Advantage, both in the Forwardness of our own Preparations, and in the great Encouragement it will give to all our Allies.
'I look upon this good Beginning to be so sure a Pledge of your Affections for my Service, and for our CommonInterest, That I have not the least Doubt, but you will continue with the same Zeal to dispatch what remains of the Public Business, and to bring this Session to a happy and speedy Conclusion.'
Vote in favour of the Duke of Marlborough.
The 11th, being the Day appointed by the Commons, for taking into Consideration the great Services that had been performed by the Duke of Marlborough, the last Summer, and to consider of some Means to perpetuate the Memory of them; they came to this unanimous Resolution, 'That an humble Address be presented to her Majesty, expressing the great Sense this House hath of the glorious Victories obtain'd by the Forces of her Majesty, and her Allies, under the Command of his Grace the Duke of Marlborough; and humbly desir'd her Majesty, That she would be graciously pleased to consider of some proper Means to perpetuate the Memory of the great Services performed by the said Duke.' This Address being presented to her Majesty by the whole House, Her Majesty was pleased to give this gracious Answer.
Queen's Answer to their Address upon it.
Resolves in relation to Scotland.
The 13th, the House resolv'd, 'That a Bill should be brought in, for the effectual securing the Kingdom of England, from the apparent Dangers that might arise from several Acts lately passed in the Parliament of Scotland: And about a Month after, Mr. Conyers reported, from the Committee of the whole House, to whom it was referr'd to consider of Heads for that Bill, the Resolutions which they had taken, and which were as follows, 'That it be one Head of the Bill to enable her Majesty to nominate and appoint Commissioners for England, to treat with Commissioners for Scotland, for an Union between the two Kingdoms. 2. That all Natives of the Kingdom of Scotland, except such as are settled and shall continue Inhabitants of England, or the Dominions thereunto belonging, or at present in Service in the Army or Navy, shall be reputed as Aliens, unless the Succession to the Crown of Scotland be settled on the Princess Sophia of Hanover, and the Heirs of her Body, being Protestants. 3. That a more effectual Provision be made to prevent the Exportation of Wool from England and Ireland into Scotland. 4. That Provision be made to prevent the Importation of Scotch Linnen into England or Ireland; and to permit the Exportation of the Linnen Manufactures of Ireland, in English Bottoms, into her Majesty's Plantations in the West Indies. 5. That immediate Provision be made to prevent the conveying of Horses, Arms and Ammunition from England or Ireland into Scotland. 6. That all the Protestant Freeholders of the six northern Counties of England, be permitted to furnish themselves with Arms.' These Resolutions being read twice, all, except the last, were agreed unto by the House; who appointed a Committee, to prepare and bring in a Bill accordingly, and on the 16th, upon the second Reading of the Lords Bill to the same Purpose, ordered it to lie upon the Table.
Thanks given to the Duke of Marlborough. ; His Grace's Answer.
The 14th, It was unanimously resolved to give the Duke of Marlborough the Thanks of their House, for the eminent Services he had performed to her Majesty and this Kingdom, as well in the glorious Victories he had obtained by the Arms of her Majesty and her Allies under his Command, as for his prudent Negotiations with several Princes and States; and, having appointed a Committee to attend his Grace for that End, Mr. Comptroller reported on the 15th, That they had congratulated his Arrival, as they were directed, and that thereupon his Grace was pleased to say to this Effect: 'It's a great Satisfaction to me to find, that my faithful Endeavours in discharging my Duty to the Queen and to the Public are so favourably accepted. I beg leave to take this Opportunity of doing Justice to a great Body of Officers and Soldiers who accompanied me in this Expedition, and all behaved themselves with the greatest Bravery imaginable. And I am sure this Honour done us by the House of Commons, in taking so much notice of it, will give a general Satisfaction and Encouragement to the whole Army.'
On the 16th, her Majesty was pleas'd to give the Royal Assent to the two following Acts, viz. An Act for raising Monies by Sale of several Annuities for carrying on the present War: And an Act for continuing the Duties upon Malt, Mum, Syder and Perry, for one Year: And also to five private Bills. The next day Mr. Chancellor of the Exchequer acquainted the House, that he had a Message sign'd by her Majesty: And he delivered it to Mr. Speaker, who read the same to the House, and was as followeth.
Message from the Queen relating to the Manor of Woodstock.
'Her Majesty having taken into her Consideration the Address of this House, relating to the great Services perform'd by the Duke of Marlborough, does incline to grant the Interest of the Crown in the Honour and Manor of Woodstock, and Hundred of Wootton to him and his Heirs; and desires the Assistance of this House upon this extraordinary Occasion.
A Bill order'd in, thereon. ; Place-Bill lost.
Upon which the House resolved, 'that a Bill be brought in to enable her Majesty, to grant the Honour and Manor of Woodstock and hundred of Wootton, to the Duke of Marlborough and his Heirs.' And it was further resolved, 'That an humble Address be presented to her Majesty, that she would be graciously pleased to advance the Money for clearing the present Incumbrance upon the Lieutenancy and Rangership of the Parks, Rents, and Profits of the Honour and Manor of Woodstock and Hundred of Wootton, in order to the present Settlement thereof upon the Duke of Marlborough and his Heirs.' About the same time the Party that prevailed in the House of Commons, both to make themselves Popular by a Self-Denying Act, and to mortify some eminent Members, who had left them, and were now in Places of Profit and Trust, brought in a Bill for excluding out of the House of Commons, all Persons in any Offices or Employments erected since the 6th Day of February, 1684. or to be erected. This Bill had a quick and casy Passage through the House of Commons, but being sent up to the House of Lords, the latter made several Amendments to it, which were disagreed to by the Commons, and so that Bill was lost. There was also another Bill set on foot by the Commons, about the 16th, to prevent Persons who were entitled by their Offices to receive any Benefit by public annual Taxes, to be granted, from being Members in Parliament, while they were in such Offices, which being levelled against many brave and deserving Members who served the Nation, both by Sea and Land, occasioned some Murmurings, to stifle which, the Commons on the 20th, impower'd the Committee to receive a Clause to except out of that Bill, all Flag-Officers in the Navy, and Captains of Ships, and all the General-Officers in the Army, and all Colonels of the Land-Forces, and Marines; but, notwithstanding this Allay, when the Bill came to a third reading, it was resolved it should not pass.
Address relating to the Earl of Ranelagh.
The 22d. the House resolved, 'That an Address should be presented to her Majesty, that she would be pleased to give directions to oblige the Earl of Ranelagh to bring his Accounts to a final Determination; and what shall appear to be due from him upon the Balance of his said Accounts, that his Lordship be obliged to pay the same to the Use of the Public;' which being presented accordingly, her Majesty was pleased to say. 'That she had not omitted to give the necessary Directions in this Particular; and should always be desirous to do every thing that may bring the public Accounts to a final Determination.'
And having also resolved, 'That an Address should be presented to her Majesty, that she would be pleased to give Direction for the obliging Mr. Parkhurst and Mr. Paschall, and the rest of the Commissioners of Prizes during the late War, to make up their Accounts according to the Course of the Exchequer;' and the same being presented to her, she answer'd, 'That she would order, that the most proper Methods be taken of having the Accounts of the Prizes during the late War made up and perfect, according to the Course of the Exchequer.'
Address in praise of the K. of Prussia.
On the 8th of January the House of Commons took into Consideration the Treaty with the King of Prussia lately concluded by the Duke of Marlborough, and unanimously resolved, 'That an humble Address be presented to her Majesty. Returning the Thanks of this House to her Majesty, for concluding the late Treaty with the King of Prussia, which was so seasonable a Support to the Duke of Savoy, and so great an Advantage to the Common Cause: And also to assure her Majesty, that her faithful Commons would effectually enable her Majesty to make good the Treaty with the King of Prussia, who, upon so many Occasions, hath signaliz'd his Zeal for the Protestant Religion and Liberty of Europe.' The next Day Mr. Secretary Hedges acquainted the House, That their Address having been presented to her Majesty, her Majesty was pleased to make the following Answer.
'Her Majesty returns you many Thanks for the Assurances you have given her in your Address, and is very well pleased to find you have so just a Sense of the King of Prussia's Zeal for the Protestant Religion, and the Liberty of Europe.'
Address relating to the Allies and the Hungarian Malecontents.
The 26th of the same Month, Mr. Speaker reported to the House, 'That the House had attended her Majesty with their Address, That her Majesty would be graciously pleased to use her Interest with her Majesty's Allies, that they may the next Year furnish their several compleat Quota's, both by Sea and Land, according to their respective Treaties; and that her Majesty will be graciously pleased to continue her Endeavours for an Accommodation between the Emperor and his Subjects now in Arms in Hungary, in order to the better and more effectual carrying on the present just and most necessary War: And that her Majesty was pleased to give this gracious Answer.'
'Gentlemen, I will continue to use my best Endeavours to obtain a Compliance from the Allies with what is desired in your Address. As to the Accommodation with the Malecontents in Hungary, I have made Application to the Emperor several times upon that Point, and shall continue to press him in it with all the earnestness imaginable.'
Bill against Popery.
Towards the end of the Session, the Lords passed a Bill for the further preventing the Growth of Popery, which being sent down to the Commons, it was generally wished, that so wholesome an Act might meet with no Obstruction. But the Commons made such Amendments to it, on the 7th of March, as came little short of the Bill for preventing Occasional Conformity; The said Amendment ran thus: 'Provided always that all Persons, who, by Virtue of this Act shall be obliged to take the Oaths of Allegiance and Supremacy, and subscribe the Declaration, shall at the same time declare himself to be a Member of the Church of England, as now by Law established; such Declaration to be entered on the same Roll, where the said Oaths and Declarations, so to be taken and subscribed, are to be entered. And in Case any such Persons shall, after their taking such Oaths, and making such Declarations as aforesaid, knowingly or wilfully resort to, or be present at any Conventicle, Assembly, or Meeting, under Colour or Pretence of any Excercise of Religion, in other manner than according to the Liturgy and Practice of the Church of England, in any Place within this Kingdom, shall forfeit the Sum of 100 l. for every time he shall be present at such Assembly, Conventicle or Meeting.
Bills pass'd by the Queen.
An Act for continuing Duties upon Low-Wines, and upon Coffee, Tea, Chocolate, Spices and Pictures, and upon Hawkers, Pedlars and Petty-Chapmen, and upon Muslins; and for granting new Duties upon several of the said Commodities, and also upon Callicaes, ChinaWare and Drugs.
An Act for the better enabling her Majesty to grant the Honour and Manor of Woodstock, with the Hundred of Wootton, to the Duke of Marlborough, and his Heirs, in Consideration of the Eminent Services by him performed to her Majesty and the Public.
An Act for the Relief of Fulke Emes, Gent. and others, who had elapsed their Times, either for paying their Money, or naming their Nominees for purchasing Annuities: And also for Relief of Sir John Mead, Knt. and Bar. who had elapsed his time for paying part of his Purchase-Money for a forfeited Estate in Ireland; and also for Relief of Dorothy Ireland, and others, in respect of several Tickets for Payment of Annuities, and of several Million-Lottery and Malt-Lottery Tickets, and Exchequer-Bills, and Debentures of the Army, which have been burnt or lost.
An Act for making perpetual an Act for the more easy Recovery of small Tythes; and also an Act for the more easy obtaining Partition of Lands in Coparcenary, Joint-Tenancy and Tenancy, in Common; and also for making more effectual and amending several Acts relating to the Return of Jurors.
Queen's Speech in Parliament.
'I Cannot put an end to this Session, without doing you the Justice to Acknowlege, you have fully made good the Assurances you gave me at the beginning of it, by the great Readiness you have shewn in the Dispatch of the public Business; and I make no doubt, but this Dispatch will prove a real Advantage to us, and a great Discouragement to our Enemies.
'I return you my hearty Thanks in particular, for the great Supplies with which you have enabled me to carry on this necessary War, I assure you they shall be carefully applied to the Uses for which they have been given; and I persuade myself I shall always have the cheerful Assistance of my dutiful and loving Subjects in the Prosecution of the present War, till our Enemies are obliged to such a Peace as shall be a lasting Advantage and Security to us, and to our Allies.
'We have, by the Blessing of God, a fair Prospect of this great and desirable End, if we do not disappoint it by our unreasonable Humour and Animosity, the fatal Effects of which we have so narrowly escaped in this Session, that it ought to be a sufficient Warning against any dangerous Experiments for the future.
'I conclude therefore with exhorting you all to Peace and Union, which are always commemdable, but more particularly necessary at this time, when the whole Kingdom being shortly to proceed to new Elections, it ought to be the Care of every body, especially of such as are in public Stations, to carry themselves with the greatest Prudence and Moderation: Nothing will contribute more to our Reputation abroad, and our Security at home.'