DIE Jovis, 20 Decembris.
Domini tam Spirituales quam Temporales præsentes
Epus. Lich. & Cov.
|Ds. Custos Magni Sigilli.
Comes Oxon & Mortimer, Thesaurarius.
Dux Buckingham & Nor. Præses.
Epus. Bristol, Custos Privati Sigilli.
Dux Shrewsbury, Camerarius.
March. Lindsey, Magnus Camerarius.
Comes Poulet, Senescallus.
Viscount Say & Seale.
Ds. Willughby Br.
Ds. North & Grey.
Ds. Howard Escr.
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
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
Lords agree to them.
And a Message was sent to the House of Commons,
by Mr. Hiccocks and Mr. Meller, to acquaint them
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
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
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
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.