1704. And the Earl of Nottingham, having fome Time before re- Anno 3 Annæ, figned his Office of Secretary of State, it was beftow'd on Mr. Harley, Speaker of the House of Commons. Year 1704. The forcing the French Lines at Donawert, commonly Exploits of the called the Battle of Schellenberg, and the Victory at Blenheim, with all its glorious Confequences, were the Fruits of our military Virtue on that Side of Europe, and the taking of Gibraltar by Sir George Rooke, and the * Sea-Fight off Malaga with the Count of Toulouse (in which the French were fuperior in Strength to the Confederates, by ten three deck Ships, twenty four Gallies, and fix hundred great Guns) on the other. The THIRD SESSION of the First Parliament of Queen ANNE W AS opened by her Majefty, Odober the 29th, with Anne, 1704, Page 392. The next Day the Lords attended her Majefty with an Addrefs of Addrefs of Thanks, affuring her of their Concurrence in all Thanks. ber Undertakings, that they would improve to the utmost the bleffed Opportunity put into their Hands, and congratulated the Succefs of her Majefty's Arms under the Conduct of the Duke of Marlborough. against the December the 21st, The Lords addrefs'd her Majefty that Another to feThe would give Orders for fortifying Newcastle, Berwick, cure the NorCarlifle, and Hull; and that the Militia of the four Nor- thern Borders thern Counties might be difciplined and provided with Arms, Scots. and that a competent Number of regular Troops might be kept upon the Northern Borders of England, and in the North of Ireland, and that the Laws might be put in Execution for difarming of Papifts. January the 17th, A Bill entitled, An Act to enable Wil- Bill to enable liam Henry Earl of Bath, during his Minority, to execute the the Earl of Bath Power of making Leafes of his fettled Eftate, being offered to make Leases. to be read; and a Debate arifing thereupon, After Debate, the Queftion was put, Whether the Bill of fered fhall be now read? It was refolved in the Negative. Contents 46; Not contents 19. Diffentient' *Both Sides claimed the Victory, but the French left the Confederates Mafters of the Sea, and retired to Toulon, fo difabled that they were not able to quit that Port, all the next Year. Anno 3 Annæ, 1704. Diffentient For that the main Foundation, and greatest Motive for the legiflative Authority to intermeddle in the Settlement of priProteft thereon. vate Men's Eftates, is the Defire and free Confent of all Parties concerned in the faid Settlement firft had and obtained, and the Lord Granville, next Heir to the prefent Earl of Bath, having, in his Place in this Houfe, declared that he conceived his Intereft, in that Eftate, to be prejudiced by this Bill, and that he could by no means give his Confent to it: Bill for recruit We do therefore humbly conceive, the receiving this Bill to be contrary to the ufual Method of Proceeding in all Bills of this Nature; and therefore ought not to have been received. Winchelfea, Craven, Granville, Rochefter, Buckingham, March the 2d, Hodie 3a vice lecta eft Billa, entitled An A& ing Land Forces. for the better recruting her Majefty's Land-Forces and the Marines, for the Year 1705. Proteft thereon. The Question was put, Whether this Bill shall pafs? It was carried in the Affirmative. Diffentient Because there is in the Bill this following Claufe, viz. (That it fhall and may be lawful for the Juftices of the Peace of every County and Riding within this Realm, or any three or more of them, to raise and levy fuch able body'd Men, as have not any lawful Calling or Employment, or visible Means for their Maintainance or Livelihood, to ferve as Soldiers, for the Purposes in the Bill mention'd.) Thanet, Anglefea, Dartmouth. Die Mercurii, 14 Martii. It is ordered by the Lords fpiritual and temporal, in Parliament affembled, that the Reprefentation and Addrefs this Day prefented to her Majesty, with her Majelly's most gracious Answer thereunto, and the Thanks of this Houfe for the fame, together with the Papers annexed to the faid Representation and Address, and laid before her Majefty, fhall be forthwith printed and published. The Humble REPRESENTATION, &c. Die Martis, 13 Martii, 1704. E your Majefty's most dutiful and loyal Subjects, the Lords Repre- Words fpiritual and temporal, in Parliament affem fentation. bled, are under an unavoidable Neceffity of making our humble Application to your Majefty, upon an Occafion, which, as it is very grievous to us, fo we fear it may be uneafy to your Majefly: But the Proceedings of the House of Commons, 1704. Commons, in relation to five Burgeffes of the Town of Aylef Anno 3 Anna, bury, John Paty, John Oviat, John Paton, Henry Baffe, and Daniel Horne, have been so very extraordinary, that the Confequences of fuch Proceedings may prove fo fatal to the Properties and Liberties of the People of England, and fo directly tend to the Interruption of the Courfe of Justice, to the eluding the Judicature of Parliament, and to the Dimination of your Royal Prerogative, that we can't answer it to your Majefty, to the Kingdom, and to ourselves, without fetting them before you in a due Light. One Matthew Afbby, a Burgefs of the Borough of Aylesbury, brought an Action upon the Cafe at Common Law, against the Conftables of the Town of Aylesbury (being the proper Officers to return Members to ferve in Parliament for that Place) for having by Contrivance fraudulently and maliciously hindered him to give his Vote at an Election. In this Action a Verdict was found for him; but Judgment was given against him in your Majefty's Court of Queen's Bench, which was referved upon a Writ of Error brought in Parliament; where he obtained Judgment to recover his Damages for the Injury, and afterwards had Execution upon that Judgment. The five Perfons above-mentioned, being Burgeffes of the fame Borough, and having (as they conceived) had the like Wrong done them by the Conftables there, and, fuppofing the Law to be equally open to all Englishmen, did feverally commence and profecute Actions against thofe Officers, in order to recover their Damages. And for fo doing, they were fent for to the Bar of the House of Commons, and committed Prisoners to Newgate, the fifth Day of December laft, during the Pleasure of the House of Commons, as having acted contrary to the Declaration, in contempt of the Jurifdiction, and in Breach of the Privileges of that House. Thefe Proceedings are wholly new and unprecedented. It is the Birth-Right of every Englishman, who apprehends himself to be injured, to feek for Redrefs in your Majesty's Courts of Juftice: And if there be any Power that can controul this Right, and can prescribe when he fhall, and when he fhall not be allowed the Benefit of the Law, he ceases to be a Freeman, and his Liberty and Property are precarious. The Crown lays claim to no fuch Power; and we are fure the Law has trufted no fuch Authority with any Subjects whatsoever. If a Man mistakes his Cafe, in believing himself to have a good Caufe of Suit when he has not, if he mistakes his Court, by applying to an incompetent Jurifdiction, he will fail Anno 3 Anne, fail of Relief, and be liable to Cofts, but to no other Punishment: He is not guilty of a Crime, nor is it a Contempt of the Court that has the proper Jurisdiction. 1704. But these Men were guilty of no Miftake; the Point of Law was fettled by the Judgment of that Court, which is allowed to be the laft Refort, and this will continue to be thè Law, till it be altered by the legislative Authority. They faw their Neighbour quietly and unmolefted reap the Fruit of the Judgment he had obtained; and yet, for purfuing the fame Remedy, they are condemned to an indefinite Imprifonment, during the Pleasure of the House of Commons. This Method does introduce an Uncertainty and Confufion, never before known in England. The most arbitrary Governments cannot fhew more direct Inftances of Partiality and Oppreffion. The Point of Law is judicially fettled; and yet the Houfe of Commons take upon them to punish Men by Imprisonment, for endeavouring to have the Benefit of what is fo efta. blifhed for Law. We humbly observe to your Majefty, that the first thing they alledged in the Warrant of Commitment, as to the Offence of these five Perfons, is, that those Actions were brought contrary to a Declaration of the Houfe of Commons. It was never yet heard (when there was a Houfe of Lords in being, and a King or Queen upon the Throney that the House of Commons alone claimed a Power, by any Declaration of theirs, to alter the Law, or to reftrain the People of England from taking the Benefit of it; nor have their Declarations any fuch Authority, as to oblige Men to submit to them at the Peril of their Liberty. If they have fuch a Power in any Cafe, they may apply it to all Cafes as they please; for when the Law is no longer the Measure, Will and Pleasure will be the only Rule. The Certainty of our Laws is that which makes the chief Felicity of Englishmen: But if the Houfe of Commons can alter the Laws by the Declarations, or (which is the fame thing) can deprive Men of their Liberty, if they go about to take the Benefit of them, we fhall have no longer Rea fon to boast of that Part of our Conftitution. The next Thing alledged in the Warrant is, that the commencing and profecuting thefe Actions, was Contempt of the Jurifdiction of the House of Commons. Such a Jurifdiction was never claimed by the Houfe of Commons, till upon this Occafion; and if this Novelty of a Jurifdiction be founded on their new Authority of declaring, they will stand and fall together. The 1704. The House of Commons have for a long Time exercifed Anno 4 Annæ, a Jurifdiction over their own Members, by allowing or dif allowing their Elections, as they faw Caufe: But they have never before entertained a Notion, that they had a Jurifdiction over their Electors, to determine (finally and exclufively of all other Courts) the particular Rights of those to whom they owe their being. Your Majesty's royal Writ commands, that the feveral Electors make Choice of Perfons to represent them in Parliament, in order to do and confent to fuch Things as fhould be ordained there, relating to the State and Defence of the Kingdom and the Church, for which the Parliament is called: And they obey the Command, in proceeding to chufe Members for the Parliament then fummoned; but neither the Writ which requires them to chufe, nor the Indenture by which the Return is made, import any thing whereby it may be inferred, that the Electors put into the Power of their Reprefentatives, their feveral Rights of Elections, to be finally difpofed of at their Pleasure. It was an Interest vefted in them by Law before the Election, and which the Law will preferve to them, to be exercifed again in the like manner, when your Majefty fhall be pleafed to call another Parliament. It was not poffible for the Electors to fufpect, that fuch a Pretence would ever befet up by their Representatives, when, in the course of fo many Ages, the Houfe of Commons had never taken upon them to try or determine the Right of any particular Elector, unlefs incidently, and only in order to decide a Question, of the Title of fome Member of their own Houle to fit amongst them. The Right of Election is a legal Intereft incident to the Freehold, or founded upon Culiom, or the Letters Patents of your Majefty's Royal Ancestors, or upon particular Acts of Parliament, and must be tried and determined like other legal Interests: And this Confideration does manifeftly thew the Abfurdity of pretending, that fuch Rights can be decided by the Houfe of Commons, where there is neither a Power of adminiftring an Oath, in order to discover the Truth, nor a Power of giving Damages, which is the only Reparation the Elector is capable of receiving in fuch a Cafe. Therefore, if the Electors, when they are deprived of their Rights, have no Place to refort to, but the Houfe of Commons, the Right of Election would be a Right without a Remedy, which indeed is no Right at all. And it is put into the Power of the Officers, who have the Return of Members to ferve in Parliament, to reject the Votes of as many Electors as they please, without being lia1704. S ble |