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House of Lords Journal Volume 17: 12 March 1705

Pages 696-697

Journal of the House of Lords: Volume 17, 1701-1705. Originally published by His Majesty's Stationery Office, London, 1767-1830.

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DIE Lunæ, 12 Martii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

Arch. Cantuar.
Arch. Ebor.
Epus. London.
Epus. Sarum.
Epus. Petrib.
Epus. Cicestr.
Epus. Asaph.
Ds. Custos Magni Sigilli.
Ds. Godolphin, Thesaurarius.
Comes Pembroke, Præses.
Dux Bucks, C. P. S.
Dux Devonshire, Senescallus.
Dux Richmond.
Dux Bolton.
Comes Lindsey, Magnus Camerarius.
Comes Kent, Camerarius.
Comes Northampton.
Comes Denbigh.
Comes Peterborow.
Comes Winchilsea.
Comes Kingston.
Comes Carnarvon.
Comes Thanet.
Comes Sunderland.
Comes Anglesey.
Comes Feversham.
Comes Berkeley.
Comes Nottingham.
Comes Rochester.
Comes Abingdon.
Comes Portland.
Comes Torrington.
Comes Scarbrough.
Comes Bradford.
Comes Jersey.
Viscount Townshend.
Ds. Bergevenny.
Ds. Lawarr.
Ds. Berkeley Ber.
Ds. Fitzwalter.
Ds. Wharton.
Ds. Paget.
Ds. Grey W.
Ds. Lovelace.
Ds. Poulett.
Ds. Howard Esc.
Ds. Mohun.
Ds. Vaughan.
Ds. Colepeper.
Ds. Rockingham.
Ds. Cornwallis.
Ds. Guilford.
Ds. Cholmondeley.
Ds. Herbert.
Ds. Halifax.
Ds. Granville.
Ds. Gernsey.

PRAYERS.

Lord Great Chamberlain's Right, concerning the Gallery, &c. in the House.

Whereas, on the Fifteenth Day of November last, this House gave Order to Sir Christopher Wren, Her Majesty's Surveyor General, for the making a Gallery over the Lobby Door, cross the House, with Four Benches: The House being this Day moved, "That an Entry be made in the Journal, for saving the Lord Great Chamberlain's Right:"

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Words following shall be added to the said Order of the Fifteenth of November last; (videlicet,) "And that the Lord Keeper do acquaint the Lord Great Chamberlain with it; and desire him to issue his Warrant to Sir Christopher Wren, for erecting the same:"

Gallery in the House.

It being proposed, "To order the Gallery in the House to be pulled down."

After Debate;

This Question was propounded; (videlicet,) "Whether there shall be an Order for pulling down the Gallery in this House, after this Session is over?"

Then the previous Question was put, "Whether this Question shall be now put?"

It was Resolved in the Negative.

Message from H. C. for a Conference on the Lords Amendment to the Militia Bill.

A Message from the House of Commons, by Sir William Drake and others:

To desire a Conference with this House, upon the Subject-matter of the Lords Amendment made to the Bill, intituled, "An Act for raising the Militia for the Year One Thousand Seven Hundred and Five, although the Month's Pay formerly advanced be not re-paid."

To which the House agreed.

Answer.

And the Messengers were called in; and told, "That the Lords agree to a Conference, as desired; and appoint it presently, in the Painted Chamber."

Then the Lords following were named Managers; (videlicet,)

Dux Devonshire, Senescallus.
Dux Bolton.
Comes Peterborow.
Comes Berkeley.
Comes Rochester.
Comes Torrington.
Comes Bradford.
Comes Orford.
Viscount Townshend.
Ds. Pagett.
Ds. Poulett.
Ds. Herbert.

or upon particular Acts of Parliament, and must be tried and determined like other legal Interests. And this Consideration does manifestly shew the Absurdity of pretending that such Rights can be decided by the House of Commons, where there is neither a Power of administering an Oath in order to discover the Truth, nor a Power of giving Damages, which is the only Reparation the Elector is capable of receiving in such a Case. Therefore, if the Electors, when they are deprived of their Rights, have no Place to resort to, but the House of Commons; the Right of Election would be a Right without a Remedy, which indeed is no Right at all. And it is put into the Power of the Officers who have the Return of Members to serve in Parliament, to reject the Votes of as many Electors as they please, without being liable to make any Reparation in Damages to the Parties, which is a Notion not very likely to preserve the Freedom and Impartiality of Elections.

"The Third Thing alledged against these Men, in the Warrant of Commitment, is, "That, by bringing these Actions, they have broken the Privilege of the House of Commons."

"A Breach of the Privileges of Parliament is certainly a great Offence; and of all others, the House of Lords ought to be the last who should go about to lessen or excuse it, as having a like Interest with the Commons in the Preservation of the Privileges of Parliament.

"But, however it might seem the Interest of the Lords to be silent, while the House of Commons are setting a foot new Pretences of Privilege, because they may share in the Advantage; yet we think it our Duty and our Interest to do all we can to preserve the Constitution entire, and not to sit quiet when we see Innovations attempted, which tend to the Diminution of the Rights of the Crown, or to the Prejudice of the Subject; because the best and surest Way to preserve the rightful Privileges of Parliament is, to abide by those that are certain and known; and it is not in the Power of either or both Houses to create new Privileges to themselves.

"It never was thought a Breach of the Privileges of Parliament, to prosecute an Action against any Man who was not entitled to Privilege of Parliament; and therefore, since the late Constables of Ailesbury had no Title to Privilege of Parliament at the Time when those Actions were commenced or prosecuted, we cannot imagine upon what Foundation the pursuing these Actions can be voted a Breach of Privilege by the House of Commons.

"It seems very necessary it should be known upon what Rule this Pretence is grounded, that the People of England may be at a Certainty, and see some Limits set to the Claims of Privilege.

"To serve the Turn, it has been said, "There are privileged Cases, as well as privileged Persons;" but no Instance has been produced, whereby this Distinction can be applied to justify these Commitments.

"Actions at Common Law have been brought, upon false Returns and double Returns of Members to serve in Parliament; as in the Cases of Sir Samuel Barnardiston, and Mr. Onslow, which proceeded to Judgement, and a Writ of Error was brought in One of them, and the Plaintiff could not prevail in either of those Suits: And yet it was never pretended that the commencing or prosecuting those Actions was a Breach of Privilege of Parliament, nor were the Persons concerned in them imprisoned or censured, though there was a much greater Colour for such a Pretence in those Cases, because the Question there directed concerned the Right of sitting in Parliament; and consequently those would have been indeed privileged Cases, if any such Distinction had been once thought of in those Days; whereas, in the Actions brought by these Five Men, neither the Plaintiffs nor Defendants were Members of Parliament, nor did the Actions relate in any Manner to the Right of sitting there.

"The Opinion of the House of Commons at that Time was very different from what it is now. When the Judgement of the King's Bench (where Sir Mathew Hale sat then Chief Justice), which passed in Favour of Sir Samuel Barnardiston, "That the Action was maintainable," was reversed in the Exchequer Chamber; the House of Commons was so far from thinking it for their Advantage to have their Members deprived of the Benefit of the Common Law, that, in the Year One Thousand Six Hundred Seventy-nine, a Committee was appointed, to inquire touching the reversing that Judgement, and by whose Procurement and Solicitation, and by what Ways and Means, the same was reversed, and the Names of the particular Judges that were concerned: And when afterwards that Judgement in the Exchequer Chamber was affirmed in Parliament, the House of Commons never thought themselves secure against the Corruptions of the Officers who were to take the Poll and make Return at Elections, till they had got an Act, in the 7th and 8th Year of the late King, which gave a Remedy in Westm'r Hall for false and double Returns; so little contented were they, in their own Cases, with the Jurisdiction of the House of Commons, and the Remedy to be had there, which now they so siercely contend their Electors should entirely acquiesce in. And we cannot but think it manifest Partiality in those Gentlemen, to go about by such violent Means to deprive their Electors of recovering of Damages when they are wronged in being deprived of giving Votes, since they thought it necessary for themselves to have that Advantage when they are injured in their own Elections.

"The Sufferings of these unfortunate Men have not ended here; and the Rights of the free-born Subjects of England have received a further and no less dangerous Wound in their Persons.

"These Five Men, having endured a long and chargeable Imprisonment, and despairing of their Liberty any other Way, were advised to sue out Writs of Habeas Corpus, returnable in Your Majesty's Court of Queen's Bench; hoping to obtain their Discharge by the Help of that Court, where the Judgement ought to be given according to the Laws of the Land, without Regard to any Votes or Declarations or Commands to the contrary. But this Endeavour proved unsuccessful; and they were remanded to Newgate by Three of the Judges of that Court, contrary to the Opinion of the Lord Chief Justice Holt.

"We shall not presume to offer any Opinion to Your Majesty upon Occasion of this Judgement at present, because it is not regularly brought before the House; and we only mention it, because the House of Commons took such Offence at the bringing these Writs of Habeas Corpus, that, on the Four and Twentieth of February last, they voted, "That whoever had abetted, promoted, countenanced, or assisted, the Prosecution of those Writs, were Disturbers of the Peace of the Kingdom, and endeavoured, as far as in them lay, to overthrow the Rights and Privileges of the of the Kingdom, and Rights and Privleges of the Commons in Parliament."

"This is a very heavy Charge; and, if it be so criminal a Thing for a Prisoner to pray a Habeas Corpus, it does not only affect those who are at present concerned, but ought to touch every Commoner of England in the most sensible Manner.

"Liberty of Person is of all Rights the most valuable, and of which, above all other Things, the

"6. That the restraining those who are able to purchase Lands, or otherwise to entitle themselves thereunto, from giving their Consent to the Election of their Representatives in Parliament, is without Example, and contrary to the Custom of all Nations.

"7. That the admitting this Clause might endanger the taking away of the Votes of all Foreigners, though Naturalized or Denizens; for, unless an Exemplification of this Act were lodged in every Place where an Election is to be made, the Vote of any Foreigner might be refused, under Pretence that he was comprehended in this Act."

Message to H. C. for a Conference about them.

A Message was sent to the House of Commons, by Mr. Rogers and Mr. Hiccocks:

To desire a present Conference with the House of Commons, in the Painted Chamber, upon the Subjectmatter of the Amendments made by them to the Bill, intituled, "An Act for naturalizing Jacob Pechels, Elias Landes, Francis Lacroix, and others."

Militia Bill, Lords Reasons for insisting on their Amendment to it:

The Earl of Scarbrough reported from the Committee, the Reason drawn by them, for the Lords insisting on their Amendment made to the Bill, intituled, "An Act for raising the Militia for the Year One Thousand Seven Hundred and Five, although the Month's Pay formerly advanced be not re-paid."

Which was read, and agreed to, as follows; (videlicet,)

Because the Clause is too general; and that, neither Persons nor Sums being named, nor any certain Method of accompting being set down, this may occasion much Trouble even to Persons unconcerned, and may be managed with much Partiality."

Message to H. C. for a Conference on the Subject.

A Message was sent to the House of Commons, by Mr. Rogers and Mr. Hiccocks:

To desire a present Conference, in the Painted Chamber, on the Subject-matter of the last Conference, upon the Amendment made by this House to the Bill, intituled, "An Act for raising the Militia for the Year One Thousand Seven Hundred and Five, although the Month's Pay formerly advanced be not re-paid."

Answer.

The Messengers sent to the House of Commons, to desire a present Conference, upon the Subject-matter of the Amendments made by them to the Bill, intituled, "An Act for naturalizing Jacob Pechels, Elias Landes, Francis Lacroix, and others," return Answer:

That the Commons agree to a Conference, as desired.

Then the Lords following were named Managers; (videlicet,)

Comes Peterborow.
Comes Sunderland.
Comes Berkeley.
Comes Torrington.
Comes Scarbrough.
Viscount Townshend.
Epus. Sarum. Ds. Pagett.
Ds. Lovelace.
Ds. Poulet.
Ds. Mohun.
Ds. Herbert.
Ds. Halifax.

Conference reported.

The Commons being come to the Conference, the Managers Names were read.

Then the House was adjourned during Pleasure, and the Lords went to the Conference.

Which being ended, the House was resumed.

And the Duke of Bolton reported, "That the Lords had attended the Conference; and that the Commons had disagreed to their Lordships Amendment made to the Bill; as also what was offered by the Commons for their Disagreement to the said Amendment."

Lords insist on their Amendment.

After Consideration whereof, it is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That this House shall insist on their Amendment made to the said Bill.

And appointed the Lords following to be a Committee, to draw Reasons for the Lords insisting on their Amendment made to the said Bill; (videlicet,)

D. Bolton.
Comes Peterborough.
Comes Sunderland.
Comes Berkeley.
Comes Torrington.
Comes Scarbrough.
Comes Orford.
Viscount Townshend.
Epus. Sarum. Ds. Paget.
Ds. Lovelace.
Ds. Poulet.
Ds. Mohun.
Ds. Herbert.

Their Lordships, or any Three of them; to meet To-morrow, at Ten a Clock in the Forenoon, in the Prince's Lodgings near the House of Peers; and to adjourn as they please.

Subsidy Bill.

ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Bill, intituled, "An Act for granting to Her Majesty a further Subsidy on Wines and Merchandizes imported," shall be read a Second Time on Wednesday next, at Twelve a Clock.

Adjourn.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque ad et in diem Martis, decimum tertium diem instantis Martii, hora duodecima, Dominis sic decernentibus.