Journal of the House of Lords: Volume 19, 1709-1714. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Jovis, 20 Decembris.
Domini tam Spirituales quam Temporales præsentes fuerunt:
Duncombe's Pet. referred to Judges.
Upon reading the Petition of Anthony Duncombe, Thomas Duncombe Browne, Mary Duncombe, Elizabeth Duncombe, Thomas Browne and Ursula his Wife, Jane Duncombe, John Sawyer Esquire and Anne his Wife, Jane Duncombe the Younger, and Elizabeth Duncombe; praying Leave to bring in a Bill, for enabling the Petitioner Anthony Duncombe to make a Jointure, and the Petitioner Thomas to change his Name:
It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Consideration of the said Petition shall be, and is hereby, referred to the Lord Chief Baron of Her Majesty's Court of Exchequer and Mr. Justice Powys; who are forthwith to summon all Parties concerned in the Bill; and, after hearing them, to report to the House the State of the Case, with their Opinion thereupon, under their Hands; and whether all Parties that may be concerned in the Consequences of the Bill have signed the Petition; and also that the Judges, having perused the Bill, do sign the same.
Message from H. C. to return the Bill for preserving the Protestant Religion, with Amendments:
A Message was brought from the House of Commons, by Mr. Windsor and others:
To return the Bill, intituled, "An Act for preserving the Protestant Religion, by better securing the Church of England as by Law established; and for confirming and supplying the Defects of the Toleration granted to Protestant Dissenters by an Act, intituled, An Act for exempting Their Majesties Protestant Subjects dissenting from the Church of England from the Penalties of certain Laws; and for the further securing the Protestant Succession, by requiring the Practisers of the Law in North Britain to take the Oaths, and subscribe the Declaration, therein mentioned;" and to acquaint this House, that they have agreed to the same, with some Amendments, whereunto they desire their Lordships Concurrence.
Which Amendments, being read Thrice, were agreed to.
Lords agree to them.
And a Message was sent to the House of Commons, by Mr. Hiccocks and Mr. Meller, to acquaint them therewith.
D. of Hamilton's Patent, creating him D. of Brandon, considered:
The Officer attending (according to Order) with the Privy Seal Bill of the Patent for creating the Duke of Hamilton, Duke of Brandon.
He was called in; and delivered, at the Bar, the said Privy Seal Bill, with a Copy of the Enrolment thereof.
Then Counsel, on the Behalf of the Duke of Hamilton, were called in; and the Copy of the Enrolment of the said Patent was read.
And the Counsel were heard, and withdrew.
Whether the Queen is disabled by the Union, to create a Scots Peer a Peer of Great Britain? Question proposed to be put to the Judges:
And, after Debate, and reading some Proceedings out of the Journal, in the Duke of Dover's Case;
The Question following was proposed to be put to the Judges; (videlicet,)
"Whether the Queen be disabled, by the Act of Union, to grant a Peerage of Great Britain, with all the Privileges depending thereon, to any Person who was a Peer of Scotland before the Union?"
Which being objected to; and a Debate arising thereupon:
This Question was stated,
"That the Judges do now deliver their Opinions to this House, upon the said proposed Question?"
After further Debate;
The previous Question was put, "Whether this Question shall be now put?"
It was Resolved in the Negative.
Then, it being proposed,
"That no Patent of Honour, granted to any Peer of Great Britain, who was a Peer of Scotland at the Time of the Union, can entitle such Peer to sit and vote in Parliament, or to sit upon the Trial of Peers?"
And Debate thereupon;
Scots Peer at the Time of the Union disabled from being created a Peer of Great Britain:
The Question was put, "That no Patent of Honour, granted to any Peer of Great Britain, who was a Peer of Scotland at the Time of the Union, can entitle such Peer to sit and vote in Parliament, or to sit upon the Trial of Peers?"
It was Resolved in the Affirmative.
Protest against that Resolution.
"Buckingham, P. 1. Because, as we apprehend, by this Resolution, the Prerogative of the Crown, in granting Patents of Honour, with all Privileges depending thereon, to the Peers of Great Britain who were Peers of Scotland at the Time of the Union, as well as the Right of the Duke of Brandon to sit and vote in Parliament, are taken away: And this Prerogative of the Crown, and Right of the Duke, depending upon the Construction of an Act of Parliament, though Counsel, by Order of the House, were heard at the Bar, and all the Judges were ordered to attend at the same Time; yet the Opinion of the Judges was not permitted to be asked, touching the Construction of the said Act of Parliament.
"2. Because the Prerogative of the Crown, as we conceive, in granting Patents of Honour, with the Privileges depending thereon, ought not, on the Construction of any Act of Parliament, to be taken away, unless there be plain and express Words to that Purpose in the said Act; and, we conceive, there are no such plain and express Words for that Purpose in the Act of Union.
"3. Because, by this Resolution, all the Peers of Great Britain, who were Peers of Scotland at the Time of the Union, are supposed to be incapable of receiving any Patent of Honour from the Crown, by virtue whereof they may be entitled to the Privilege of sitting and voting in Parliament, and sitting on the Trial of Peers; which, we conceive, is repugnant to the Fourth Article of the Act of Union, which declares the Privileges, that there shall be a Communication of all Rights, Privileges, and Advantages, which do or may belong to the Subjects of either Kingdom; except where it is otherwise expressly agreed in those Articles, in which, we apprehend, there is no such Provision.
"4. Because the Duke of Queensberry, in all respects in the same Case as the Duke of Hamilton, was introduced, sat, and voted in this House, in Matters of the highest Importance, in Two several Parliaments, as Duke of Dover, by virtue of a Patent passed since the Union; and, in consequence of such Sitting and Voting, his Vote in the Election of the Peers of Scotland was rejected; and, as a further Consequence thereof, the Marquis of Lothian was removed from his Seat in this House; which he had an undeniable Title to, if the Duke of Queensberry's Patent, as Duke of Dover, had not given him a Title to sit and vote in this House.
"5. Because, by this Resolution, the Peers of Scotland are reduced to a worse Condition, in some respects, than the meanest, or most criminal, of Subjects.
"6. Because we conceive this Resolution may be construed to be a Violation of the Treaty between the Two Nations.
"Oxford & Mortimer.
"Harcourt, C. S.
Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque ad et in diem Veneris, vicesimum primum diem instantis Decembris, hora duodecima, Dominis sic decernentibus.