House of Lords Journal Volume 17: 27 February 1705

DIE Martis, 27 Februarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Horne & al. Aylesbury Men, Pet.:

After reading and considering this Day the Petitions of Daniel Horne, Henry Bass, and John Paton Junior, John Paty, and John Oviatt; the House came to the following Resolutions; (videlicet,)

Resolutions concerning the Proceedings of H. C. about them.

"It is Resolved, by the Lords Spiritual and Temporal in Parliament assembled,

"1. 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.

"Resolved,

"2. 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. Then, it being proposed, "To Resolve, That the House of Commons, in committing to Newgate Daniel Horne, Henry Bass, and John Paton Junior, John Paty, and John Oviatt, for commencing and prosecuting an Action at Common Law against the late Constables of Ailesbury, 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 shew no Title by the Law and Custom of Parliament; and have thereby, as for as in them lies, subjected the Rights of Englishmen, and the Freedom of their Persons, to the arbitrary Votes of the House of Commons:"

After Debate;

This Question was proposed, "Whether this House shall agree to this Proposition?"

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

It was Resolved in the Affirmative.

Then the main Question was put, "Whether this House shall agree, to Resolved, That the House of Commons, in committing to Newgate Daniel Hornc, Henry Bass, and John Paton Junior, John Paty, and John Oviatt, for commencing and prosecuting an Action at Common Law against the late Constables of Ailesbury, 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 Jurisdication, 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 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 Commons?"

It was Resolved in the Affirmative.

After further Debate;

"Resolved,

"4. 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 Haboas Corpus, in order to procure his Liberty, by due Course of Law."

"Resolved,

"5. 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, or 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 Authority wharsoever."

Then, the Judges being heard to this Point, "Whether, in this Case, a Writ of Error is a Writ of Right or of Grace?"

"Resolved,

"6. 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, though at the Request of either House of Parliament; the Denial thereos being an Obstruction of Justice, contrary to Magna Charta."

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That this House will desire a Conference with the House of Commons, upon the Subject-matter of the Resolutions of this House agreed to this Day.

Committee to prepare Heads for a Conference about them.

Lords Committees appointed to draw up what shall be offered, at a Conference with the House of Commons, upon the Subject-matter of the Resolutions agreed to this Day; and report to the House.

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

Sheriffs Bill.

Hodie 3^a vice lecta est Billa, intituled, "An Act for the Ease of Sheriffs, in the Execution of their Offices, and passing their Accompts."

A Rider being offered, to be added to the Bill, was read, and afterwards withdrawn.

Then the Question was put, "Whether this Bill, with the Amendments, shall pass?"

It was Resolved in the Negative.

Message from H. C. to remind the Lords of Low Wines, &c. Bill, and the Subsidy Bill.

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

To put this House in Mind of the Bill, intituled, "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 Callicoes, China-ware, and Drugs," sent up to their Lordships on the Twentieth Instant.

And also to put this House in Mind of the Bill, intituled, "An Act for granting to Her Majesty a further Subsidy on Wines and Merchandizes imported," sent up to their Lordships on the Two and Twentieth Instant, because Dispatch hath been recommended from the Throne to both Houses; and Delay may be of great Danger to the Public.

Viscountess Falkland & al. versus Ld. Cheney.

ORDERED, That the Cause wherein Sir Cloudesly Shovel Knight and others are Appellants, against the Lord Cheyney and others Respondents, be put off till To-morrow, Eleven a Clock.

Messages from H. C. to return Grainge's Bill, and Pechell's & al. Nat. Bill.

A Message was brought from the House of Commons, by Mr. Harcourt and others:

To return the Bill, intituled, "An Act for vesting the Estate of Joseph Grainge and Elizabeth his Wife in Trustees, to be sold; and to dispose of Part of the Money arising by such Sale, for the Maintenance of the said Elizabeth, pursuant to their Marriage Settlement; and to apply the Residue to the Payment of the Debts of the said Joseph Grainge;" and to acquaint this House, that they have agreed to the same, without any Amendment.

A Message was brought from the House of Commons, by Sir Francis Masham and others:

To return the Bill, intituled, "An Act for naturalizing Jacob Pechels, Elias Landes, Francis Lacroix and others;" and to acquaint this House, that they have agreed to the same, with some Amendments, whereunto they desire their Lordships Concurrence.

ORDERED, That the Amendments made by the House of Commons to the said last mentioned Bill shall be read and considered on Thursday next.

Adjourn.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque ad et in diem Mercurii, vicesimum octavum diem instantis Februarii, hora undecima Auroræ, Dominis sic decernentibus.