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1704-5. not be by chance, but that the directions were fent upon fight of the orders. On the 5th of February, the lords presented an addrefs to the queen, concerning the mismanagements of the navy, fetting forth in particular, "That,

for the three laft years, the charge of the navy had ex"ceeded what was defigned by the parliament, the fum of "above three hundred and fixty-fix thoufand pounds. "That, in the year 1704, one thousand five hundred and "fixty-fix feamen were wanting to make up the number of thirty-five thoufand, who, with the five thousand marines, ought to have been employed at fea, to make up the number of forty thoufand men provided for by parliament. That there were the last year ten flags in fea66 pay, viz. three admirals, three vice-admirals, and four "rear-admirals, and that three of these were not in their

pofts. That Mr. Churchill, admiral of the blue, had "not been at fea in any year of this war. That Mr. Gray"don, vice-admiral of the blue, had been on fhore all this

laft year: And that Sir James Wifhart, though a rearadmiral, had been the last year captain to the admiral of "the fleet. That there were two vice-admirals of the red, "and two rear-admirals of the blue, but no vice-admiral "of the white; which, to their lordships, feemed to have "been very irregular, and to have been done in favour of "Mr. Graydon, to continue him in the fervice, although "this houfe had voted, That his behaviour, in letting the "four French fhips efcape, was a prejudice to her majefty's fervice, and a great difhonour to the nation; and "that his proceedings in Jamaica had been a great discou

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ragement to the inhabitants of that island, and prejudicial "to her majefty's fervice; and hereupon the lords had, on "the 29th of March laft, made an humble addrefs to her majefty, that Mr. Graydon might not be employed any "more in her fervice; but, having been acquainted, fince "the report made to them from their committee, that Mr. Graydon was difcharged, they befought her majefty, that "he might be employed no more in her fervice." After this, their lordships took notice of the vaft increase of penfions, as appeared by the navy books, particularly, a penfion of three hundred and nineteen pounds to Sir "John Munden, though he had not done his duty in the "expedition to Corunna; whereas the penfion to admiral "Nevil's widow had not been paid for two years paft; and "fome officers of the fleet had been laid afide, without any penfion or confideration, though no mifbehaviour had

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* been laid to their charge." They farther obferved, 1704-5, "That in the ordinary estimate of the navy, there was put

down feven thousand pounds for the prince's council, tho' they were only five in number in 1702, five in 1703, "and fix in 1704; and it did not appear, that more than "one thousand pounds a-piece had been paid to them: And "that Mr. Churchill's appointments from the navy were, "as prince's council, one thousand pounds; for penfion, "five hundred pounds; as admiral of the blue, one thou"fand two hundred and feventy-feven pounds, ten fhil"lings; and for table money (though not at fea) three "hundred and fixty-five pounds; in the whole, three thou"fand one hundred and forty-two pounds, ten fhillings." They likewife reprefented, "That there was not a fufficient "number of proper fhips for cruifers and convoys ;" and they concluded, with refting affured, that her majesty "would confider of the fitteft methods, and give the moft "effectual orders for reftoring and eftablishing the difcipline "of the navy, the encouragement of feamen, the guarding "of the coafts, and the protection of trade." To this addrefs the queen made anfwer, "That it contained many "obfervations, which fhe would confider particularly, and "give fuch directions upon them, as might be most for the "advantage of the public fervice."

A defign was formed in this feffion of parliament, but Defign there was not strength to carry it on at this time. The earl with relaof Rochester gave an hint of it in the house of lords, by fay- tion to the ing, that he had a motion of great confequence to the fecu- Electoress rity of the nation, which he would not make at this time, of Hano. but would do it when next they should meet together. He ver. faid no more in the houfe, but in private difcourfe he owned Burnet. it was for bringing over the electorefs of Hanover to live in England. It feemed not natural to believe, that a party, who had been all along backward at beft, and cold in every ftep, which was made in fettling the fucceffion in that family, fhould become all on a fudden fuch converts, as to be zealous for it; and therefore it was not an unreafonable jealousy. to fufpect, that fomewhat lay hid under it. It was thought, that they either knew or apprehended, that this would not be acceptable to the queen; and they, being highly dif pleased with the measures fhe took, went into this defign both to vex her, and in hopes that a faction might arise out of it, which might breed a distraction in our councils, and fome of them might hope thereby to revive the pretender's claim. They reckoned, that fuch a motion would be po

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1704-5. pular; and if either the court or the whigs, on whom the court was now beginning to look more favourably, fhould oppofe it, this would caft a load on them, as men, who, after all the zeal they had expreffed for that fucceffion, did now, upon the hopes of favour at court, throw it up: And thofe, who had hitherto been confidered as enemies of that house, might hope, by this motion, to overcome all the prejudices, which the nation had taken up against them; and they might create a merit to themfelves in the minds of that family, by this early zeal, which they refolved now to exprefs for it. This was fet on foot among all the party; but the more fincere among them could not be prevailed on to act fo falfe a part, though they were told, this was the likelieft way to advance the pretender's intereft.

men.

Burnet.

It has

The affair The last bufincfs of this feffion, with which this parliaof the five ment ended, was the cafe of the Ailfbury men. Ailfbury been related, what proceedings had been at law upon the election at Ailfbury. The judgment that the lords gave Pr. H. C. in this matter was executed, and, upon that, five others Hift. of of the inhabitants brought their action against the conftaEurope. bles, for refufing their votes. The house of commons looked on this as a high contempt of their votes, and a breach of their privileges, to which they added a new, and till then, unheard-of crime, that it was contrary to the declaration they had made. At the fame time they sent - their meffage for these five men (namely, John Paty, John Oviat, John Paton, jun. Henry Baffe, and Daniel Horn) and committed them to Newgate, where they lay three months prifoners. They were all the while well fupplied, and much vifited, and therefore remained without making any application to the house of commons. It was not thought advisable to move in fuch a matter, till all the money-bills were pafled; then motions were made, in the interval between the terms, upon the ftatute of Habeas Corpus, but, that ftatute relating only to commitments by the royal authority, this did not lie within it,

When the term came, a motion was made in the queen's bench upon the common law, in behalf of the prifoners for a Habeas Corpus. The lawyers, who moved it, produced the commitment in which their offence was fet forth, that they had claimed the benefit of the law, in oppofition to a vote of the house of commons to the contrary. They faid, the fubjects were governed by the laws, which they ought and were bound to know, and not by votes of a house of parliament, which they were neither bound to know nor

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to obey (a). Three of the judges were of opinion, that the 1704-5. court could take no cognizance of the matter, and that the prifoners ought to be remanded; but the chief juftice Holt

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replying, that the commitment was in purfuance of the order of the houfe, Mr. Page fubjoined, that then it should be hewn to be by the house, the fpeaker being in the chair, which was mentioned in the commitment. But this was over-ruled by the lord chief juftice, who faid, that by the house, was to be underflood the whole houfe fitting, with the fpeaker in the chair. Mr. Montague continued the fame objection to the commitment, adding, that it did not appear, that the prifoners were any ways related to the house of commons, either as members or officers: That, as to the lord Shaftsbury's cafe, he was a member: That he agreed every court must have power to keep order among themselves; but that to take a man, out of the house, who was not of the houfe nor guilty of any breach of privilege, for aught appeared, by a return, he knew no law for it: That the caufe affigned was, becaufe the prifoners had been guilty of bringing and prefenting an action, which he did not take to be a crime by any known law: That, in the cafe of the conftable of Ailfbury, there was a judgment at law judicially given, which could not be got over, until fome act of parliament interpofed; and the law being fo, that a man might bring his action, he did not know, what crime a man could be guilty of, who used this law:

(a) The pleadings of the law yers more at large were as follows: Page, Montague, Lechmere, and Denton, were council for the prifoners; and after reading the return of the commitment, Mr. Page faid, "That "the writ of Habeas Corpus "was a writ grounded on common law, and therefore this court can bail all perfons, "who by the law of England are bailable. That he did not fay, but that the house "of common's hath privileges, "which belong to them, and may commit for breach of fuch privileges: that he now only enquired, if there be any law "for the commitment of the prifoners; and therefore the "first question he made, was, "If there was a breach of privilege returned? Adding, "that there being no notice in "the return, that the houfe of "commons has any privilege, "he need not argue, whether "they have a power, or not, "to reftrain men from fuing "in the queen's court." The lord chief justice Holt having told Mr. Page, that the question was, If they were not to take notice of their power, though not returned to that court? Mr. Page answered, that tho' the court would take notice of any power of the house, yet, that not appearing in the return, they could not judge of it, the commitment being by the fpeaker, and not by the house. The lord chief justice

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1704-5. was of another mind. He thought a general warrant of commitment for breach of privilege, was of the nature of an execution; and, fince the ground of commitment was fpecified in the warrant, he thought it plainly appeared, that the prifoners had been guilty of no offence, and that therefore they

That the words of his commitment went further, that bringing this action is contrary to the declaration, in high contempt of the jurifdiction, and in breach of the known privileges: That they did not know what this word declaration meant, neither did they underftand what this breach of the jurifdiction was: That as to the words, against the known privileges of the house, he was at a lofs what action is again the privilege of the houfe, because they can have no privilege againft law, and he was fure it was not against law to bring any action Then he took notice, that the commitment was during pleasure, adding, that he had known perfons committed per mandatum Domini Regis bailed; and therefore by ftrong reafon ought they to be bailed if committed by the houfe of commons. Mr. Lechmere inforced what had been alledged by the other two, adding, that one part of the commitment, which fet forth the reafons of it, was for bringing an action at law, contrary to the declaration of the house of commons, in oppofition to which declaration, he muft alledge the declaration of the lords: That this commitment, being alfo faid to be for a contempt of the high jurifdiction of the commons, the lords in the cafe of Afhby and White had declared against it.

He then urged, that no other court, fave that of the lords, and the courts at Westminster. and other inferior courts of England, can execute any juris diction touching any actions at law; and that privileges, which are against the known laws of England, are in themselves void. Another objection or exception was, that the continuance of the imprifonment of the prifoners was a new commitment: That the babeas corpus is the way, which the queen takes to make difquifition about the liberty of her fubjects: That, tho' both houfes of parliament are proper judges of their own privileges, yet this court has formerly judged of their own privileges; to which purpose he inflanced in the lord Shaftsbury's cafe, wherein notice is taken of a cafe, wherein an original was filed against a member fitting in the houfe; and that in the cafe of the lord Banbury, though the lords temporal and fpiritual had declared he was no peer, yet in this court, when he was brought to be tried for murder, and denied the jurifdiction here, infift ing upon the peerage, this court refufed to try him, and allowed his plea. That the laws of parliament are the customs of parliament: That there is no precedent in parliament to commit a man for profecuting for his freehold or franchife; but on the contrary he believed, that

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