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1704-5. not be by chance, but that the directions were sent upon w fight of the 'orders. On the 5th of February, the lords

presented an address to the queen, concerning the misma-
nagements of the navy, setting forth in particular, « That,
“ for the three last years, the charge of the navy had ex-
" ceeded what was designed by the parliament, the sum of
“ above three hundred and sixty-six thousand pounds.
" That, in the year 1704, one thousand five hundred and
" sixty-fix reamen were wanting to make up the number of
66 thirty-five thousand, who, with the five thousand ma-
“ rines, ought to have been employed at sea, to make up
o the number of forty thousand men provided for by par-
6 liament. That there were the last year ten Aags in sea-
“ pay, viz. three admirals, three vice-admirals, and four
" rear-admirals, and that three of these were not in their
66 posts. That Mr. Churchill, admiral of the blue, had
"s not been at sea in any year of this war. That Mr. Gray-
" don, vice-admiral of the blue, had been on thore all this
« last year: And that Sir James Wishart, though a rear-
66 admiral, had been the last year captain to the admiral of
« the Acet. That there were two vice-admirals of the red,
66 and two rear-admirals of the blue, but no vice-admiral
ss of the white ; which, to their lordships, seemed to have
“ been very irregular, and to have been done in favour of
« Mr. Graydon, to continue him in the service, although
on this house had voted, That his behaviour, in letting the
« four French ships escape, was a prejudice to her ma-
“ jesty's service, and a great dishonour to the nation; and
" that his proceedings in Jamaica had been a great discou-
ri ragement to the inhabitants of that island, and prejudicial

to her majesty's service; and hereupon the lords had, on
« the 29th of March latt, made an humble address to her
" majesty, that Mr. Graydon might not be employed any
Có more in her service ; but, having been acquainted, since
" the report made to them from their committee, that Mr.
“ Graydon was discharged, they besought her majesty, that
" he might be employed no more in her service.” After
this, their lordships took notice of " the vast increase of
66 pensions, as appeared by the navy books, particularly,
“ a penlion of three hundred and nineteen pounds to Sir
6. John Munden, though he had not done his duty in the
" expedition to Corunna; whereas the pension to admiral
- Nevil's widow had not been paid for two years past; and
66 fome officers of the fleet had been laid afide, without any
66 penfion or consideration, though no mifbchaviour had

"s been

to been laid to their charge.” They farther observed, 1704-5. “ That in the ordinary estimate of the navy, there was put in “ down seven 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 os 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 pension, " five hundred pounds; as admiral of the blue, one thou« sand two hundred and seventy-seven pounds, ten shil“ lings; and for table: money (though not at sea) three " hundred and fixty-five pounds ; in the whole, three thoue sand one hundred and forty-two pounds, ten shillings.” They likewise represented, “ That there was not a sufficient “ number of proper thips for cruisers and convoys ;" and they concluded, with “ resting assured, that her majesty « would consider of the fittest methods, and give the most “ effectual orders for restoring and establishing the discipline " of the navy, the encouragement of seamen, the guarding " of the coasts, and the protection of trade.” To this address the queen made answer, " That it contained many “ obfervations, which she would consider particularly, and 6 give such directions upon them, as might be most for the « advantage of the public service." · A design was formed in this session of parliament, but Design there was not strength to carry it on at this time. The earl with rela. of Rochester gave an hint of it in the house of lords, by fay- tion to the ing, that he had a motion of great consequence to the secu- 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. said no more in the house, but in private discourse he owned Burnet. it was for bringing over the electoress of Hanover to live in England. It seemed not natural to believe, that a party, who had been all along backward at best, and cold in every step, which was made in settling the succession in that family, should become all on a sudden such converts, as to be zealous for it; and therefore it was not an unreasonable jealousy to suspect, that somewhat 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 difpleased with the measures she took, went into this design both to vex her, and in hopes that a faction might arise out of it, which might breed a distraction in our councils, and some of them might hope thereby to revive the pretender's claim. They reckoned, that such a motion would be poF 2

pular ;

1704:5. pular; and if either the court or the whigs, on whom the

court was now beginning to look more favourably, should oppose it, this would cast a load on them, as men, who, after all the zeal they had expressed for that succession, did now, upon the hopes of favour at court, throw it up: And those, who had hitherto been considered 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 themselves in the minds of that family, by this early zeal, which they resolved now to express for it. This was set on foot among all the party; but the more sincere among them could not be prevailed on to act so false a part, though they were told, this was the

likeliest way to advance the pretender's interest. The after The last business of this session, with which this parliaof the five ment ended, was the case of the Aillbury men. It has Aillbusy been related, what proceedings had been at law upon the men. eletion at Aillbury. The judgment that the lords gave Pr. H. C. in this matter was executed, and, upon that, five others Hilt, of of the inhabitants brought their action against the conftaEurope. bles, for refusing their votes. The house of commons Burnet. 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 same time they fent - their message for these five men (namely, John Paty, John Oviat, John Paton, jun. Henry Basse, and Daniel Horn) and committed them to Newgate, where they lay three months prisoners. They were all the while well supplied, and much visited, and therefore remained without making any application to the house of commons. It was not thought advisable to move in such a matter, till all the money-bills were pasled; then motions were made, in the interval between the terms, upon the statute of Habeas Corpus, but, that statute 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 prisoners for a Habeas Corpus. The lawyers, who moved it, produced the commitment in which their offence was set forth, that they had claimed the benefit of the law, in opposition to a vote of the house of commons to the contrary. They said, the subjects 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

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
prisoners ought to be remanded; but the chief justice Holt

- I


(a) The pleadings of the law- replying, that the commitment
yers more at large were as fol- was in pursuance of the order
lows: Page, Montague, Lech of the house, Mr. Page sub-
mere, and Denton, were coun- joined, that then it lhould be
cil for the prisoners; and after mewn to be by the house, the
reading the return of the com- speaker being in the chair,
mitment, Mr. Page said, “That which was mentioned in the
“ the writ of Habeas Corpus coinmitment. But this was
“ was a writ grounded on com- over-ruled by the lord chief
“ mon law, and therefore this justice, who said, that by the
“ court can bail all persons, house, was to be underitood the
“ who by the law of England whole house fitting, with the
“ are bailable. That he did speaker in the chair. Mr. Mon-
“ not say, but that the house tague continued the same ob-
of common's hath privileges, jection to the commitment, ad-
“ which belong to them, and ding, that it did not appear, that
may commit for breach of such the prisoners were any ways re-
“ privileges : that he now only lated to the house of commons,
“ enquired, if there be any law either as members or officers :
“ for the commitment of the That, as to the lord Shaftsbury's
“ prisoners ; and therefore the case, he was a member : That
“ first question he made, was, he agreed every court must have
" If there was a breach of pri- power to keep order among
“ vilege returned ? Adding, themselves ; but that to take a
" that there being no notice in man, out of the house, who was
“ the return, that the house of not of the house nor guilty of
“ commons has any privilege, any breach of privilege, for
“ he need not argue, whether aught appeared, by a return,
" they have a power, or not, he knew no law for it : That
" to restrain men from suing the cause assigned was, because
" in the queen's court.” The the prisoners had been guilty
lord chief justice Holt having of bringing and presenting an
told Mr. Page, that the question action, which he did not take
was, If they were not to take to be a crime by any known
notice of their power, though law: That, in the case of the
not returned to that court ? constable of Aillbury, there was
Mr. Page answered, that tho' a judgment at law judicially
the court would take notice of given, which could not be got
any power of the house, yet, over, until some act of parlia.
that not appearing in the re- ment interposed ; and the law
turn, they could not judge of being so, that a man might
it, the commitment being by bring his action, he did not
the speaker, and not by the know, what crime a man could
house. The lord chief justice be guilty of, who used this law:



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, since the ground of commitment was fpecified in the warrant, he thought it plainly appeared, that the prisoners had been guilty of no offence, and that therefore


That the words of his commit- He then urged, that no other ment went further, that bring- court, save that of the lords, ing this action is contrary to and the courts at Westminster. the declaration, in high con- and other inferior courts of tempt of the jurisdiction, and England, can execute any jurisin breach of the known privi- diction touching any actions at leges : That they did not know law; and that privileges, which what this word declaration are against the known laws of meant, neither did they under England, are in themselves void. ftand what this breach of the Another objection or exception juriidicuon was : That as to the was, that the continuance of the words, against the known pri- imprisonment of the prisoners vileges of the house, he was at was a new commitment: That a lofs what action is against the the habeas corpus is the way, privilege of the house, because which the queen takes to make they can have no privilege disquisition about the liberty of against law, and he was sure it her subjects : That, tho' both was not against law to bring any houses of parliament are pro. action. Then he took notice, per judges of their own privi. that the commitment was dur- leges, yet this court has formering pleasure, adding, that he ly judged of their own privihad known persons committed leges; to which purpose he inber maniatum Domini Regis bail- stanced in the lord Shaftsbury's ed; and therefore by strong case, wherein notice is taken of reason ought they to be bailed a case, wherein an original was if committed by the house of filed against a member fitting in commons. Mr. Lechmere in the house; and that in the case forced what had been alledged of the lord Banbury, though the by the other two, adding, that lords temporal and spiritual had one part of the commitment, declared he was no peer, yet in which set forth the reasons of it, this court, when he was brought was for bringing an action at to be tried for murder, and de. law, contrary to the declara. nied the jurisdiction here, insist. tion of the house of commons, in ing upon the peerage, this court opposition to which declaration, refused to try him, and allowed he must alledge the declaration his plea. That the laws of parof the lords : That this com- liament are the customs of parmitment, being also said to be liament: That there is no prefor a conteinpt of the high juris. cedent in parliament to commit diction of the commons, the a man for prosecuting for his lords in the case of Ashby and freehold or franchise; bat on White had declared against it. the contrary he believed, that

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