To this it is anfwered, Inftance of Precedent and Cuftoms are fometimes fufficient to found a Right, where there is no Law to the contrary; but where there is a Right eftablish'd by a plain pofitive Law, as in this Cafe, no Precedent can annul that Right. The Argument is not fairly stated. For, first, the Free-holders and Barons do not barely plead Custom, but they plead exprefs Law, inasmuch as by the fore-cited Act, no Perfon was allowed to take the Place of any two of the Eftates of Parliament, and that the eldest Sons of Peers had taken the Stiles fuited to their Dignities, and the Privileges and Immunities that belong to Noblemen only by the Law, as being comprehended under that general Defignation, and the contrary Practice of 130 Years, with the Decifions, are not mentioned to prove a Custom, but to declare and firengthen the Law. Befides, by examining the particular Circumftances of the above-mentioned Inftances, it will appear they cannot come up to the Point insisted on. For in that Inftance of the Lord Livingston, the Reafon for throwing him out was founded upon two Points; one was, that Mr. Higgins, who ftood against him, had moft Votes; and if his Quality, as being a Peer's eldest Son, had been a legal Objection against him, that Parliament would neither have remitted to a Committee of Elections, nor would that Committee have made the strict Enquiry they did, which of the two Candidates had the Majority of Votes: And the other Part, of his being a Peer's eldest Son, was mentioned, because there was then a ftanding Law in Scotland, that no Perfon fhould represent a Burgh but a trading Burgess, which he was not. Here is a vain Attempt to remove two very clear and pofitive Precedents; for it is very well known, as to the Lord Livingston's Cafe, that the whole Reafoning was upon the Incapacity of the eldest Sons of Peers; and that, not only as to Boroughs, but in general to be elected as Commoners to ferve in Parliament; as may appear from this, that there were abundance of Commiffioners for Boroughs admitted at that very Meeting, who were alfo as far from being refiding or trading Burgeffes, as the Lord Livingston. As to the other Inftance of Mr. Mackenzie, 'twas a voluntary Act of his own, at the Defire of his Father, the Lord Viscount of Tarbat, which ought not to prejudice any other Man who designs to maintain his own Right. This is a bard Shift to avoid a clear Precedent, it is not a Fact of Mr. Mackenzie's, or my Lord Tarbat's that they stand upon, but the Deed of the Parliament, whereof the Words are too strong to admit of an Evafion, viz. In refpect the Vifcount of Tarbat's eldeft Son, who was elected one of the Commif fioners fioners for the Shire of Rofs, (by reafon that his Father is Nobilitate) cannot now reprefent that Shire as one of their Commiffioners, Warrant was given to elect another in his Place. Befides, 'twill appear, that the laft Parliament of Scotland was not only fully convinc'd, that Peers eldest Sons had a Right by Law elect, and to. be elected, but were likewife refolved to maintain that Right: For in the last Seffion of that Parliament, the Commons wifely confidering, that the two late Inftances above-mentioned were not fufficient to overthrow fuch ancient and just Laws as the eldeft Sons of Noblemen founded their Right upon, they thought it neceffary to have a Law for excluding them; and to that End offered a Clause to be added to the Union Act, in thefe Words: "That "no Peer, nor the eldest Son of any Peer, can be chose to represent any "Shire or Burgh of this Part of the united Kingdom in the House of Com"mons." And made use of these two very Inftances to promote the Clause against the Peers eldest Sons; but that Parliament thought fit to reject it, and agreed to the before-cited Claufe in Place thereof, defigning plainly by this to preferve to the Peers eldest Sons their Right of electing, and being elected, according to the above recited Laws. This Argument is by no Means to be allowed of; for we must take the Words of the Law, and must not go back to the fecret Hiftories or Circumstances that paft at the making of thefe Laws; were that but once admitted, then Laws would be liable to arbitrary Interpretations. But in the next Place, it is to be remembred, that in the Parliament of Scotland held in the Year 1690, tho' the Peers did press very earnestly to have it declared, that the eldest Sons might be capable to elect and be elected, at that Time, when there was an additional Reprejentation granted to feveral Shires in Scotland, they could not prevail; on the contrary, the Act paft without any fuch Declaration. It is alfo urged against Peers eldest Sons, that never any of them did fit, which argues a Prescription against their Right of fitting: To which it is answered, Where a plain Right is founded upon a pofitive Law, the Intermiffion of the Exercise of their Right can never be extended to make void that Right, no more than if a Freeholder of England fhould neglect, during his Life, to exercife his Right of Election; it should be infifted on against his Son's having a Right to elect after his Father's Deceafe; and indeed, the true Reason why the Scots Peers eldest Sons did forbear making Ufe of their Right of being elected, was, because the Peers and Commons in the Scots Parliaments did fit and vote in one and the fame Houfe, and the Peers being numerous, did avoid bringing in their eldest Sons into the Houfe, left the Commons should have been uneafy at it: But this Reafon cannot take place fince the Union, and the Peers eldest Sons are at Freedom to exercise their lawful Rights when they think fit. It were to be wifbed, that the Peers of Scotland had ftill avoided to bring in their eldest Sons into the House of Commons, left the Commons of Scotland fhould thereby have been made uneafy; nor indeed does the Union make any Alterations in the Cafe; for the Commons can never bear contentedly that it fhould be in fo publick a Manner owned at the Door of the House of Commons, That the Peers only avoided the bringing in of their eldeft Sons, as if it were in their Power to bring them in every where in Scotland, and thereby to confound the Perfons of the three Estates, and fwallow up the Reprefentation which is referved to the Commons of Scotland. From this Part of the Argument it. is evident, what will be the Confequences of admitting the Peer's eldeft Sons to fit in the Haufe, viz. The Peers themselves, their Fathers, will no more avoid the bringing in their eldest Sons, for any Uneafinefs it may create to the Commons of Scotland. Befides, it is impoffible that the Hiftory of the last Seffion of Parliament in Scotland is fo much forgot, as to give place to this Conftruction put on the Vote of Parliament mentioned on the other Side; it is very well known, that many of thefe who voted for repeating of the Claufe, did not at all doubt that the Nobleman's eldest Sons were incapable to elect or be elected; but People were unwilling to enter upon new Questions at that Time, when Endeavours were used to preferve a good Correspondence in the last Parliament of Scot land. It is further urged against Peer's eldest Sons, that to admit them into the Representation of the Commons of Scotland would be of dangerous Confequence; because the Influence of the Peers there is fuch, that none elfe will be returned. 'Tis evident that this is a very ill founded Sufpicion, fince there are only four Lord's eldest Sons return'd among the forty-five Commons to this prefent Parliament: But allowing this fuppofed Influence of the Peers to be true, 'twill be in no Sort remedied by excluding their eldest Sons; for by the fame Influence they can elect their younger Sons, or other Relations and Friends. And upon the whole, it would be a very great Hardship, and very unequal, to exclude Scots Peers eldest Sons from reprefenting Counties or Boroughs of Scotland in the House of Commons, when at the fame Time they can reprefent, and be chofe for any County and Burgh in England: And when the Peers of Scotland have, for the Common Good of thofe Kingdoms, reduced themselves to fo fmall and uncertain a Representation in the House of Peers, it would be a Hardship to exclude their eldeft Sons from fitting in the House of Commons. It is very true, the House of Commons have been always jealous of Peers intermeddling in Matters of Elections; and certainly for that fame Reason ought ought to be very jealous of admitting the eldest Sons of the Peers of Scotland, fo directly contrary to the Treaty, and fo dangerous of itself; especially when the Distance of that Place from the Eye of the House, and the great Powers and Superiorities of the Peers of Scotland are confidered. The Peers have indeed very honourably contributed to the Union, but it is upon Terms contained in the Treaty, and in the Act, which is a Part of the Treaty. And they can't be allowed now to difpute what has been already settled for that End. The reft of the Reafoning of this Period comes in fhort to this; there is no preventing the Influences of Peers in Scotland, at the Election there, and therefore let us even take in their eldeft Sons. But how concluding this is, every Man at first Sight may percieve. The Reprefentatives of Scotland in the House of Commons urge in their own, and in Behalf of all the Commons there, their ancient Conftitution and Law, referved by the Treaty; and for the fame Reafon will be far from wishing the leaft Alteration of what has been received in England; nor ought the Custom of admitting the eldeft Sons of Peers in England be made use of as an Argument in this Cafe; for befides that, this is to argue directly against fo folemn an Establishment from extrinfick Reafons. It is certain, there is an obvious Disparity on many Accounts, between the Power and Cafe of the Peers and Commons of Scotland, and the Cafe of thefe in England. And though it is impoffible, that the Peers of England can find eldest Sons to Supply 513 Members in the House of Commons; yet the Peers of Scotland may easily fupply the Place of 45, which is all the Number allowed to reprefent the Commons of Scotland. To conlude. It has always been looked upon as the Excellency of the Scotch Conftitution, that their Representation was full and compleat: But if Peers eldest Sons be excluded, there would be many of the most confiderable Estates and Freeholds in Scotland not reprefented, which would overthrow the fundamental Maxim, That no Man can be taxed but by his own Confent: Nor can it be doubted, but the Freeholders of the feveral Counties and Corporations in Scotland are certainly the best Judges, whether or not it is their Intereft and Privilege to elect a Peer's eldest Son, who offers his Service to them, and they can reject him at Pleasure. Therefore it is humbly conceived, that this honourable Houfe will always have a due Regard to the Elections of fuch Perfons, whofe Right is founded upon plain and positive Laws, fince no Objection is urg'd against that Right, but fome very groundless Jealoufies, and two very lame Inftances, which were not at all regarded, but rejected by the Parliament of Scotland, as above mentioned. To conclude. The Excellency of the Scots Conftitution, as to this Part of the Representation, ought no doubt to be preferved intire, and the eldest Sons of Scotch Peers excluded, fince the greatest Part of the Eftates and Free bolds holds in Scotland are reprefented by their Fathers, who fit in a higher House. And fince the Conftitution of their Forefathers did not permit the confounding of the Function, Office, or Place of the Eftates, but did confine all Sorts of Perfons in Scotland to that felf Eftate and Place, wherein they commonly profefs themselves to live, and whereof they take their Stiles or Designation: And feeing alfo the Peers eldest Sons did fhine with their Fathers Honour, and were always understood to be comprehended under the general Word of Noblemen, in Contradiftinction to the Free-holders; and, as fuch, were found incapable by the Parliament of Scotland, in the fore-cited folid and clear Inftances. A Copy of the late King's Will: Tranflated from the French Original, Printed at the Hague, May 11, We William, by the Grace of God, King of Great Britain, Prince of Orange, &c. Confidering the Infirmity and Mortality of Man, the Certainty of Death, and the Uncertainty of the Time and Hour of it, have thought fit and refolv'd, before We leave this earthly Vale, to difpofe of the temporal Goods, which it has pleafed God to give Us, as well Feodal, as Allodial; by Virtue of a Grant from the States of Holland, and WeftFriefeland, bearing Date, June 15, 1673. Recommending firft Our immortal Soul into the merciful Hands of God, and Our Saviour Jefus Chrift, and Our mortal Body to the Earth; revoking, cancelling, and annulling, by thefe Prefents, all Teftaments, Codicils, or other Difpofals, which We have hitherto made or executed, it being Our Defire, that neither they, nor any of them, fhould be valid, or in any wife take effect: But difpofing thus, anew, We declare, We have named and appointed, as by thefe Prefents We do name and appoint, Our Coufin, the Prince Frison of Naffau, eldest Son of Prince Cafimer of Naffau, at present Stadtholder of Friefeland, Our fole and univerfal Heir of all Our Eftates, as well Feodal as Allodial, which We fhall leave at the Day of Our Death; referving to Ourselves to appoint him fuch Guardians as We fhall hereafter think fit. We further declare, that We referve to Ourselves the Power of bequeathing, under Our Hand and private Sign Manual, fuch Legacies and Gifts as We fhall here after |