1704. Anno 4 Annæ, Correfpondence, or by engaging them in new Matters, to draw things to fuch a length, as might prevent the bringing these Debates to any Iffue during the Seffion: Yet the Lords immediately defired a free Conference, which was afterwards had with the Commons. We are fo defirous that your Majefty fhould be made fully acquainted with all the Paflages relating to this Difpute be tween the two Houfes, that we humbly beg leave to annex to this our Reprefentation, what paffed at the first and fecond Conference; and alfo (as far as we have been capable of recollecting in fo fhort a time) the Subftance of what was faid at the free Conference, and in our Debates, in maintainance of the Refolutions of the House of Lords. But we take it to be a Duty neceffarily incumbent on us, to obferve to your Majefty, the Manner in which we have been treated by the House of Commons, at these Conferences; fo that from thence your Majefty, according to your great Wisdom, may judge to what fuch Proceedings do naturally tend. They told us, that the Judicature of the Houfe of Lords was unaccountable in its Foundation, and inconfiftent with the Conflitution: If they mean it is fo antient, that no Account can be given of its Foundation, 'tis true; but there is Reafon to believe it began with the Monarchy, and we are fure it has continued without Interruption, unless du ring that unhappy Interval, when a pretended House of Commons deftroyed the Church and the Monarchy, as well as the House of Lords: As many Ages as the Conftitution of the English Government has lafted, this Judicature has confifted with it, and formed a noble and neceffary Part of it, and therefore thefe Gentlemen will hardly be believed, against fo long an Experience, that it is inconfiftent with the Conftitution. They alfo charged the Lords in direct Terms, with ufurp ing the hearing Appeals, with making Advances upon the Conflitution, with contriving to bring Liberty and Property into the bottomlefs and infatiable Gulf of the Lords Judicature, and with direct Reproaches, as to the Manner in which that Judicature has been exercifed, and in the most contemp. tuous Way told us, they forbore to mention the Inftances, because they hoped we would reform. We defire no other Judge but your Majefty, how fuch a Treatment of us becomes thefe Gentlemen; and we dare appeal to all your Subjects, for Witneffes of the irreproach able manner of adminiftring Juftice in the Houfe of Lords. We hope the great Difpleasure the House of Commons has conceived against us may prove of fome real Service, and of ufeful Caution to your Majefty, for it has drawn them directly 1704 directly to own (what was but too vifible before) that they Anno 4 Anna,] are aiming at more Power, and a larger Share of the Administration, than is trufted with them by the Nature of our Government. They directly complained, that by the Conftitution, the Judicature, in the laft Refort, was not placed in the fame Hands with the Legislature, tho' they cannot shew it to be fo, in any Country where the Government is not arbitrary, and the Prince's Will the Law. They have been long endeavouring to break in upon the Lords Share in the Legiflature, of which we could mention too many Inftances to your Majefly. From an antient Claim, that Aids to the Crown are to begin in the Houfe of Commons, and that the Lords could not alter the Sums, they have of late Years pretended (but without any Reason, and against the known Ufage of Parliaments) that we could make no Alterations in any Part of a Money-Bill, tho' it have no relation to the Money: And, upon that foot, when they have had a mind to get any thing paffed into a Law, of the Reafonableness of which they have defpaired to convince the Lords, they have tacked it to a Money-Bill, in order to put the Crown and the Lords under that unhappy Neceffity, either to agree to a Law they might think prejudicial to the Public, or to lofe the Money, which perhaps, at that Time, w's abfolutely neceffary to the faving the Kingdom. By this Method they affume to themselves the whole legiflative Authority, taking in effect the negative Voice from the Crown, and depriving the Lords of the Right of deliberating upon what is for the Good of the Kingdom: For this Reafon the Lords had, in a very folemn manner, refolved never to fuffer fuch Impofitions for the future, let the Importance of the Bill be never fo great. This Refolution was well known, and yet in this prefent Seffion (as appears by the printed Votes of the 28th of November laft) a great Number of the Gentlemen of the Houfe of Commons, to the manifeft Danger of difappointing the Supplies of the Year, which must have been the Ruin of the whole Confederacy, and delivering up of Europe into the Hands of France, made an Attempt to tack to the Land-Tax a Bill which had been rejected in two preceding Seffions of Parlia ment. Thus the House of Commons have formerly fet on foot feveral Attempts, against that Share in the Legiflature which is placed in the Lords: But this is the first time they have published their Defire, to be let into the Judicature of Parliament. Whatever they would infinuate upon this Occafion, we defire not to meddle with the Choice of the Commons Repre I, 04. Acno 4 Annæ, Reprefentatives, we willingly leave that Matter where it is, and in what manner it is exercised there; how impartially and how fteadily, is fo well know by Experience to moft Parts of the Kingdom, and fo univerfally understood, that the People will be extremely defirous their Eftates and ProFerties fhould be fubject to fuch Determinations. It is not frange the free Conference ended without Succefs, when the Commons came to it with fuch a Temper, as appears by the Votes of the 8th of March, made after they themfelves had confented to the free Conference. If thofe Votes had been published foon enough, it would have fully convinced the Lords, how vain a thing it was to confer with them further, upon the Matters in Debate at the former Conferences; for, not content with what they had done before, upon Information that their Serjeant had been served with two Writs of Habeas Corpus, returnable before the Lord-Keeper (Wright) in behalf of Mr. Montagu and Mr. Denton, two of the Gentlemen who had been of Council with the five Prifoners, they came to a Refolution, that no Commoner, committed by them for Breach of Privilege, or Contempt of the Houfe, ought to be, by Habeas Corpus, made to appear before any other Judicature, and required their Serjeant to make no Return, or yield any Obedience to thofe Writs; and that for fuch Refufal he had the Protection of the Houfe of Commons. It has been always held the undoubted Prerogative of the Crown, to have an Account of the Reafon why any Subjec is deprived of Liberty, and it has ever been allowed, that, by the known Common Law, it is the Right of every Subject under Restraint, upon Demand, to have his Writ of Habeas Corpus, and thereupon to be brought before fome proper Court, where it may be examined, whether he be detained for a lawful Caufe: And the Statutes made in the Reign of your Royal Grandfather, and your Royal Uncle, have enacted, that in all Cafes, Writs of Habeas Corpus be granted and obeyed, by the refpective Officers, upon great Penalties. But thefe Votes import a direct Repeal of thofe Laws, as to all Perfons committed by the Houle of Commons. It is no longer worth difputing, whether a Perfon committed by them, tho' for a Fact which appears to be both lawful and neceffary, may be delivered by any Court; for by this new Law he fhall never be brought thither, and the Serjeant is not only warranted, but commanded openly to contemn your Majesty's Royal Writs of Habeas Corpus, brought upon the Act of 31 Charles II. which is an Invafion of your Prerogative, never before heard of in England. Your Majefly does not claim an Authority to protect any of your Officers for disobeying a known Law. The Habeas Corpus 1704. Corpus Act, in time of imminent and vifible Danger, was in the Anno 4 Anna, late Reign fufpended by Acts of Parliament for fome short time, and yet (fo facred was that Law held) that those Acts paffed with great Reluctancy, and one of the Arguments that prevailed moft for agreeing to that temporary Sufpenfion was, that it would be an unanfwerable Evidence to all future Times, that this Act could never be suspended afterwards, by any lefs Authority than that of the whole Legiflature. But we live to fee a Houfe of Commons take upon them to fufpend this Law by a Vote. They ordered, that the Lord Keeper of your great Seal fhould be acquainted with their Refolutions, to the end the Writs of Habeas Corpus may be fuperfeded, as contrary to Law, and the Privileges of their Houfe. They are contrary to no Law, but that of thefe Votes, which furely are none of the Laws the Lord Keeper was fworn to observe: But yet he is to act at his Peril. They have ordered this Law to be published to him by their Clerk. The Lord Keeper is a Commoner, and if he disobeys, 'tis a Breach of Privilege; and if they fhould carry it it so far, as to order him into Cuftody, he may feek, but is not to have Relief from any Habeas Corpus. We humbly beg Pardon of your Majefly for this long and melancholy Reprefentation, which we could not avoid, without being guilty of Treachery to your Majefty, and to our native Country. The five Perfons immediately concerned are but poor Men; but we well know your Majefty's Justice and Compaffion extends itself to the meanest of your Subjects. The Matters in difpute are of the higheft Confequence: Your Majesty's Prerogative, the Reverence due to Laws, and the Liberties and Properties of all the People of England are concerned, and at ftake, if thefe Encroachments prevail. We do not pretend to follicite your Majefty to put a Stop to thefe Innovations, your own Wisdom will fuggest the most proper Methods: We have endeavoured to do our Duty, in laying the whole Matter before you. We humbly beg leave fo far to refume what has been faid, as to prefent your Majesty a fhort View of the unhappy Condition of fuch of your Subjects, as have Right of giving Votes for chufing Members to ferve in Parliament, which has been hitherto thought a great and valuable Privilege; but, by the late Proceedings of the House of Commons, is likely to be made only a dangerous Snare to them, in cafe they who may be hereafter chofen to ferve in Parliament, fhail think fit to pursue the Methods of this prefent House of Com mons. If Anno 4 Annæ, 1704. If they refrain from making ufe of their Right in giving their Votes, they are wanting in their Duty to their Country, by not doing their Parts towards the chufing fuch Representatives as will use their Truft for the Good of the Kingdom, and not for the Oppreffion of their Fellow-Subjects. If the Officer, who has the Right of taking the Suffrages, refufe to admit them to give their Votes, they must either fit down by it, and fubmit to be wrongfully and maliciously deprived of their Rights; or if they bring their Actions at Law, in order to affert their Rights, and recover Damages for the Injury (as all other injured Men may do in like Cases) they become liable to imdefinite Imprisonment, by incurring the Displeasure of those who are elected. If, being thus imprisoned, they seek their Liberty by Habeas Corpus, (the known Remedy of all other Subjects) they do not only tie their own Chains fafter, but bring all their Friends and Agents, their Solicitors and Council, into the fame Mif.. fortune with themselves. If they think themselves to have received Injury by the Judgment upon the Habeas Corpus, and feek Relief by Writ of Error, (the known Refuge of those who fuffer by any wrong Judgment) all that affift them in that matter, are likewife to lose their Liberties for it, and they themselves will be removed to new Prisons, in order to avoid the Justice of the Law. We humbly conclude with acquainting your Majefty, that we have been informed, by the Petition of two of the Prisoners, that they have been long delayed, tho' they have made their Applications in due manner for Writs of Error: We are under a neceffary Obligation, for the fake of Justice, and afferting the Judicature of Parliament, to make this humble Addrefs to your Majefty, that no Importunity of the House of Commons, nor any other Confideration whatsoever, may prevail with your Majefty to fuffer a Stop to be put to the known Courfe of Juftice, but that you will be pleased to give effectual Orders for the immediate iffuing of the Writs of Error. To which her Majefty was pleased, the fame Day, to return the following moft gracious Answer: Queen'sAnswer. " Vote of My Lords, Should have granted the Writs of Error defired in this Addrefs: : But, finding an abfolute Neceffity of putting an immediate End to this Seffion, I am fenfible there "could have been no further Proceeding upon that Matter." Ordered, by the Lords fpiritual and temporal in Parliament affembled, that the humble Thanks of this House be prefented |