Third Session of Q. Anne's first Parliament.
Octob. 29. The Parliament met for the Dispatch of Business, when her Majesty made the following Speech to both
'My Lords and Gentlemen,
'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.
'Gentlemen of the House of Commons,
'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 believe you will find some Charges necessary next
Year, which were not mentioned in the last Sessions, and
some extraordinary Expences incurr'd since, which were
not then provided for.
'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
'My Lords and Gentlemen,
'I cannot but tell you how essential it is for attaining
those great Ends abroad, of which we have so hopeful a
Prospect, that we should be entirely united at home.
'It is plain, our Enemies have no Encouragement left,
but what arises from their Hopes of our Divisions; 'tis
therefore your Concern not to give the least Countenance
to those Hopes.
'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
'Such a Temper as this, in all your Proceedings cannot
fail of securing your Reputation both at home and abroad.
'This would make me a happy Queen, whose utmost Endeavours would never be wanting to make you a happy and
Commons Address to the Queen.
The next day the Commons presented their Address, as
'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
'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.'
Her Majesty's most gracious Answer to this Address, is
'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.
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,
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
After which it was ordered, that all the said Persons
should be committed to Newgate, except R. Mead, who
was taken into Custody by the Serjeant at Arms.
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.
Ordered, That the said Address be presented to her Majesty, by such Members of this House as are of her Majesty's
most honourable Privy-Council.
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
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.'
Resolved, That this House will take her Majesty's gracious
Answer into Consideration to-morrow morning.
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
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
In pursuance of the Order of this day made, Daniel Horne,
Henry Basse, John Paton, jun. John Paty, and John Oviat,
Prisoners in Newgate, sent the Names of their Council and
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.
The Serjeant at Arms being called upon to give an Account
what he had done pursuant to the Orders of the House on
Monday last, since the Account he gave yesterday:
He gave the House an Account accordingly; that he had
found Mr. Denton at his own Chamber, and had him in
Custody; but that he could not find the other Persons.
Conference between the two Houses.
A Message from the Lords, by Mr. Justice Tracy, and
Mr. Baron Smith:
'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
'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
'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
'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
'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
Ordered, That the said Report be taken into Consideration to-morrow Morning: When the Managers of the last
Conference were appointed to draw up a proper Answer.
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.
Samuel' Powel Ar' servien' ad arma, &c. H. corp' pro Mountagae
Ar' R immediatè.
Endorsed, Per statutem tricesim' prim' Caroli secundi Regis.
N. Wright, CS.
The Serjeant also acquainted the House, that he heard
there was another Habeas Corpus granted for Mr. Denton, in
his Custody also.
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.
But the House were of Opinion, that any Person committed by the House of Commons was not bailable, within
the Act of Habeas Corpus of 31 Car. II. but came not then to
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.
'A due Regard to the same Rule, would have prevented
your Lordships entertaining the Petitions mentioned at the
last Conference, which set forth,
'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
'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.'
Nov. 9. A Committee was appointed to examine and state
the Circumstances of the Return of the Knights for the
County of Norfolk.
And on the Friday, Nov. 11. Mr. Cromwell reports the
Case of the Norfolk Election very largely, in which Report
are these Resolutions.
1. That the said Writ really was executed.
2. That it was a pernicious Precedent that a new Writ
should issue without the Order of this House.
3. That the discussing, or judging of this, and such like
Differences only belonged to the said House.
4. That tho' the Lord Chancellor and Judges are competent Judges in their Courts, they are not so in Parliament
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.
6. That there should be no Message sent to the Lord
Chancellor, not so much as to let him know what was done
therein, because it was derogatory to the Power and Privilege of the said House.
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
'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
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
And it being the Privilege of the House of Commons, to
have the sole Examination and Determination of all Causes
relating to their Elections, as aforesaid:
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
May 23. 1 Jac I. Order'd, Jones, the Prisoner, to be sent for
hither, and to attend his Discharge from the House.
That the Prisoner committed by us, cannot be taken from
us, and committed by any other.
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.
But the Serjeant having been by Force prevented from keeping them in Custody, the Commons did, the 4th of June 1675,
acquaint the Lords, at a Conference, as followeth, viz.
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.
The Commons then passed the following Resolutions.
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.
Ordered, That these Resolutions be immediately sent to the
Lieutenant of the Tower.
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.
Mr. Speaker intimated to him, he should forbear to return
And the House came to several other Resolutions.
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
March 22. 1697. Charles Duncomb, Esq; having been comted by Order of this House, and afterwards discharged by
Order of the House of Lords, without the Consent of this
Resolved, That no Person committed by this House can,
during the same Session, be discharged by any other Authority whatsoever.
Resolved, That the said Charles Duncomb be taken into
the Custody of the Serjeant at Arms attending 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 next Day the said Report was left with the Lords at
a Conference; after which the Lords desired a free Conserence, which was agreed to.
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
The House again assumed the Consideration of that Matter: And after Debate,
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.
Resolved, That the Lord-keeper be acquainted with the
said Resolutions, to the end, that the said Writs of Habeas
Corpus may be superseded, as contrary to Law, and the Privileges of this House.
Ordered, That the Clerk of this House do acquaint the
Lord-keeper of the Great Seal of England with the said Resolutions.
The 13th, the Report of what pass'd at the free Conference
was delivered by Mr. Bromley, as follows:
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 delivering Resolutions at their first Conference
was parliamentary; and instanced the Resolutions 3 Car. I.
which produced the Petition of Right.
That the Lords look upon the Commons to be a great Part
of the Constitution, which cannot be preserved but by doing
right to both Houses.
That every Part of the Body politic, as well as the Body
natural, ought to be kept within due Bounds; an Excess in
any Member will weaken the whole.
That this Constitution is the Wonder of the World, and
Glory of this Nation; 'tis founded upon Liberty and Property: And the House of Commons hath been a great Fence
and Bulwark of Liberty.
That the Lords Resolutions are very well founded, and
justified by the Laws of the Land, as is their Judicature in
That it was proper for them to receive the Petitions, and
make these Resolutions thereupon.
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 when such a Complaint comes before the Lords, they
ought to give their Opinion as to the Law of the Land; and
that was the Foundation of their present Resolutions.
1. That the first Resolution was, in effect, agreed to by
the Commons, tho' they go off to foreign Matters, of which
the Lords take no notice.
That the Law of the Land can be altered only by the Legislature.
2. That the second Resolution asserts the Subjects Redress
by Action at Law, &c.
That all Constitutions have reckoned this their Safety; that
every Man, from the highest to the lowest, hath the Protection of the Law.
That, according to our Constitution, the Subject may contest his Right with the Crown, and upon equal Terms, with
that Respect which is due.
That this Resolution only asserts the Right, does not state
the respective Courts, where the Redress is to be had: If the
Party mistakes the Court, he is punished by Costs of Suit.
The Term of privileged Causes is new, and the Distinction unknown.
3. To support the said Resolution, it was urged, That the
Breach of Privilege was not well grounded.
That it belongs to the Crown to make Declarations; the
Commons did indeed make Ordinances; and when their
Prince was murdered, they came to Declarations.
That a Law, without Promulgation, cannot have Force to
make an Offence.
The Liberty of Men's Persons is the greatest Privilege,
and not to be taken away, but in known Cases; the invading
of it has shook the best Constitutions.
'That the taking away the Liberty of one mean Person,
once endangered the Government of Rome.
'That both Houses may commit for Breach of Privilege,
but cannot declare any thing to be a Privilege, without good
Grounds, nor consequently make any thing a Contempt, that
is not known to be so.
'That Commitments, or Censures, have not been usual upon Actions at Law, tho' such Actions have brought the Proceedings or Privileges of either House in question.
'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 in Soame and Barnardiston's Case, the Commons did
not concern themselves, only in support of the Action, when
in 1678, they examined the Judgment of Reversals as a
'That the Lords had not interposed in any Suits, which
concerned the Proceedings of their House.
'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 late Bishop of St. David's was prosecuted in the
Spiritual Court, and deprived, tho' a Member of that House;
and the Lords did not interpose.
'That it is the Wisdom of all Governments, to have the
Law open; and that's the Difference between a legal and an
'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 a Freehold cannot be determined by any Court
which cannot give an Oath.
'That the Precedents produced concern only the Right
of determining Elections in general.
'And an Action by an Elector, for his Right of Voting,
does not avoid the Election.
'4. To maintain the fourth Resolution, they said, That
it may be lawful for a Man to apply for his Liberty, when
he cannot have it.
'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.
'The fifth Resolution is a Consequence of the fourth:
'That the Commitment of the Lawyers was not for licentious Speech, as was insinuated at the last Conference,
but for pleading upon the Return of the Writs of Habeas
'That 'tis the particular Character of that odious Court
called the Inquisition, that no body dares appear for, or resort to a Person imprisoned there, but he is left to the Mercy
of that Court.
'The Lawyers are not to be answerable for every thing
they argue; they are to do their Duty for their Clients, and
the Court is to judge of it.
'6. The Commons declining the last Resolution is an
agreeing to it, though not so parliamentary as it would have
been to have agreed to it directly.
'That the Lords are the only proper Judges, whether
the Writ of Error lies before them.'
To these Arguments the Managers for the Commons
'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.
'2. To their Lordships Arguments for their second Resolution your Managers answered:
'That every Person injured, hath a Right to seek Redress;
but then that Redress must be sought in the Place where the
Matter is properly cognizable.
'3. To what the Lords offered upon the third Resolution,
your Managers answered:
'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 double Returns not being within that Statute, no
Action lay in the Courts of Common-Law, for making any
double Return, 'till the Statute 7 and 8 William III.
'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
'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.
'The Commons Commitment for commencing these Actions, is no more than what they and their Predecessors have
in all times practised, in Cases of Breach of Privilege.
'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.
'That the Proceedings in 1675, were so well grounded,
that they must be Precedents to the Commons to follow at
all times upon the like Occasions.
'5. To what the Lords offered upon the fifth Resolution,
your Managers answered;
'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
'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.
'Nay, such Writs of Error upon every Heabeas Corpus,
would bring the Liberty of every Commoner in England,
to the arbitrary Disposition of the House of Lords.
'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.
'The Novelty of those things, and the insinite Consequences of them, is the greatest Argument in Law, that they
are not of Right.
'The Commons are not contending for a small thing, but
for their all:
'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.
'The Lords, by way of Reply, said further, that this is
a Cause of Liberty and Property, and judicial Proceedings,
which the Commons had endeavoured to stop.
'That the Conference, therefore, asked by the Lords,
upon the fundamental Rights and Liberties, was proper.
'That they are the same Terms the Commons used, 3 Car.
when their Liberties were attack'd.
'That the true Method of Conference is not by way of
Question and Answer, but by Resolutions; which are not so
binding, but if the Lords are convinced by Arguments,
they may retract them.
'That the Lords, sure, may regularly take notice of this
printed Paper, when it contains such Declaration, as all
Persons are bound to take notice of at the Peril of Commitment.
'That the Right of the House of Commons to determine
their own Elections is not in question, or intended to be
changed; but the two Precedents produced to support them
are very much mistaken.
'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, in the stating the Precedent 28 Eliz. the Commons
have not taken notice, that the Election was in that Case determined by the Judges.
'That the Commons did not confine their Resolution to
Armstrong's Case; But it is general and absolute, that a
Writ of Error in Felony or Treason, is of Right and not
'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, instead, of proving the Law, the Consequences
are urged, which is not right arguing.
'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.
'She is obliged too, by Magna Charta: Nulli negabimus,
nulli deferemus, Justitiam.
'That whether a Writ of Error lies or not, will afterwards be proper for the Judgment of this Court, as 'tis of
any other Court where a Writ of Error is Returnable.
'That the Commons are very safe, and may depend the
Lords will be as tender of their Privileges as of their own.
'That whatever Privileges accrue to the Commons, will
accrue to the Lords also: if the Commitments of the Commons are free from the Cognizance of the Courts below,
those of the Lords will be so too.
'That 3 Car. the Commons maintained, that the Measure of Persons being bailable, is not from the Authority
which committed, but from the Cause of Commitment.
'Your Managers further observed, this Subject-Matter
was scarce ever in Conference before, between the Lords
and Commons, and will seem strange to Posterity.
'That the Lords Concern for Liberty and Property cannot be equal with that of the Commons; for the Lords Liberty is better fenced, and consequently their Property too,
than that of the Commons.
'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.
'At the first Conference, six Resolutions were delivered,
as Matters of undoubted Truth and Law.
'And the Proceedings of the Commons are to be tried
by these Rules, though they were no Parties to the making
'1. The first is not to be excepted against; only is an Insinuation, as if the Commons had practised the contrary, which
they are not conscious of.
'2. To the second, there are many Injuries for which no
Action at Law is allowed; as if a Judge gives a wrong Judgment the Redress by Writ of Error is no Satisfaction for
'So for other Acts of a Judge, or Court of Justice, as
denying a Writ of Habeas Corpus, or Bail, no Action lies,
but upon the late Statute.
'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 the Law-Books, and particularly the Lord Coke,
speak of Matters of Parliament which are not to be determined by the Common Law, but according to the Law and
Usage of Parliament.
'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
'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.
'3. As to the third Resolution, the Commons are not accountable to the House of Lords, or any other Court, for
what they did in that Matter.
'Their Privileges being Rights peculiar to that House,
what is their Privilege, and the Breach of it, is only examinable, and to be judged by themselves.
'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 Commons do not intend by their Declaration to
make a new Law, but barely declare what the Law was,
and prohibit any Person to act contrary.
'The Term Declaration is not peculiar to the Prince, but
is a familiar Term in Westminster-Hall.
'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.
'4. To the fourth Resolution, if it respects the Prisoners
committed by the Commons, they apprehend the Application
ought to be to their House.
'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
'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
'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.
'It was further urged by the Lords, in Reply, that if such
a Writ of Error wants a precedent, 'tis a new sort of Imprisonment has occasioned this.
'That the Consequences urged by Gentlemen cannot avail.
'That if the Law be so, nothing but the Legislature can
'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 not only the Lords, but all Mankind will judge of
what is not their Privileges, if they claim that which neither
Sense, nor Reason, nor Law will justify.
'That if the Commons say, to bring an Action at Law against Persons not privileged is a Breach of Privilege, all
Mankind will say it is not.
'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.
'The Question lies in a narrow Compass; Whether they
have a Right to bring their Actions at Law; if so, it is Injustice to imprison them for doing it;
'A Hardship to deny them Writs of Habeas Corpus, and a
greater to imprison their Council and Agents for endeavouring to procure them their Liberty.
'That their Right is settled by a Judgment of Law, which
will ever remain, till altered by the Legislature.
'That a Declaration of one House, or both Houses, cannot alter the Law.
'That the Lords intend not to disturb the Commons in the
Right of judging, only as to their own Members.
'That the material Difference is between judging of the
Right of the Electors, and the Right of the Elected.
'And there may be Cases, as here, where the Election is
not in question, and yet the Electors receive great Damage in
being denied their Vote.
'That the Right of Freehold is a Man's Birth-right, and
cannot be taken from him but by Law.
'That if any Person be injured by any Officer whatsoever,
he may, by Law, seek for Reparation: otherwise, there is a
Right without a Remedy, which is no Right at all.
'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.
'The Lords afterwards receded from the Generality of
their second and last Resolutions.
'They said, the second, so far as that every one who apprehends himself injured has a Right to seek Redress, was
general, but what followed of an Action at Law, was confined to the present Case.
'So the sixth, tho' it was general, was to be understood in
this particular Case.
'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.
'The Lords Judicature is too sacred a thing to be touched.
'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
'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.
'The Action was never known, tho' the like Occasions have
been as frequent as Elections, unless these Aylesbury Men
have more refined Notions of their Rights and Privileges
than others ever had.
'As to the Habeas Corpus, the Argument is so much stronger
as Liberty is dearer than Property.
'As to the Writ of Error, tho' the Lords Resolution is general, they now assert it to be of right only in this Case.
'As the Commons, at the last Conference, waved the Point
of a Writ of Error being of Right or of Grace, so they do
now, not by way of Admission, but as 'tis not material in this
'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
'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.
'The several Attempts in the Way of Judicature, which
have been made upon the Constitution, are so many Reasons
for the Commons at last to make a Stand.
'The very Form of the Writs of Error in Parliament is
altered in a most material Part.
'It is still returnable into Parliament generally; and the
Judgment is entered, per Cur' Parliamenti.
'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
'Of late, as appears by a Writ of Error, printed in the
Lord Chief-Justice Saunders's second Report, Fol. 223. (and
a greeable to that are all the modern ones) that Word (communitatum) is omitted.
'This is only touched for an Instance, that even the
highest Records, which ought to derive to us our Laws and
Constitution pure and entire, have been corrupted.
'And to proceed to instance some modern Innovations
upon our Constitution, in point of Judicature:
'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.
Ordered, That all Proceedings, in relation to the Aylesbury Men, committed by this House, and the Report of the
Lords Journal, and Reports of the Conference, and of the
free Conference, be printed.
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.
And afterwards her Majesty was pleased to make a gracious Speech to both Houses; which is as followeth:
Queen's Speech in Parliament.
'My Lords and Gentlemen,
'I am glad of this Occasion, to return you my hearty
Thanks for your making good the Assurances you gave
me in your several Addresses, of your Zeal and Readiness
to promote the public Business.
'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.
'My Lords and Gentlemen,
'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
Queen's Answer to their Address upon it.
'Gentlemen, I am very well pleased with your Address;
And I will take it into Consideration, as you desire, and
send you my Thoughts upon it, in a little time.'
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
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
'The Lieutenancy and Rangership of the Parks, with
the Rents and Profits of the Manor and Hundred, being
granted for two Lives, her Majesty thinks it proper that
Incumbrance should be cleared.'
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.
The Question was putting, the 14th, that the said Bill be
read the third time, when Mr. Aston, Deputy Gentleman
Usher of the Black-Rod, summoned the Commons to attend
the Queen in the Lords House.
And the Commons being come thither accordingly, her
Majesty was pleased to give the Royal Assent to
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 granting to her Majesty a further Subsidy upon Wines
and Merchandizes imported.
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 encouraging the Importation of Naval Stores from
her Majesty's Plantations in America.
An Act for the effectual securing the Kingdom of England, from
the apparent Dangers that may arise from several Acts lately
passed in the Parliament of Scotland.
An Act for giving like Remedy upon promissory Notes, as is
now used upon Bills of Exchange, and for the better Payment of
Inland-Bills of Exchange.
An Act to permit the Exportation of Irish-Linnen Cloth to the
Plantations, and to prohibit the Importation of Scotch-Linnen into
An Act for the better recruiting her Majesty's Land-Forces and
the Marines for the Tear One Thousand Seven Hundred and Five.
An Act for prohibiting all Trade and Commerce with France.
An Act for the Relief of the Creditors of Thomas Pitkin, a Bankrupt, and for the apprehending of him, and the Discovery of the
Effects of the said Thomas Pitkin, and his Accomplices.
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.
An Act to prevent all Traiterous Correspondence with her Majesty's Enemies.
An Act for raising the Militia for the Year One Thonsand Seven
Hundred and Five, altho' the Months Pay formerly advanced be
An Act for punishing Mutiny and Desertion and false Musters;
and for the better Payment of the Army and Quarters.
And to 52 private Bills.
And her Majesty afterwards made a most gracious Speech
to both Houses, which follows:
Queen's Speech in Parliament.
'My Lords and Gentlemen,
'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.
'Gentlemen of the House of Commons,
'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.
'My Lords and Gentlemen,
'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.'
Then the Lord-Keeper (by her Majesty's Command) prorogued the Parliament to Tuesday the first of May next.