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To this it is anlwered, Instance of Precedent and Customs are sometimes fufficient to found a Right, where there is no Law to the contrary ; but where there is a Right establish'd by a plain positive Law, 'as in this Čale, no Precedent can annul that Right...
The Argument is not fairly stated. For, first, the Free-bolders and Barons do not barely plead Custom, but they plead express Law, inasmuch as by the fore-cited Aet, no Person was allowed to take the Place of any two of the
that the eldest Sons of Peers had taken the Stiles suited 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 Decisions, are not imentioned to prove a Custom, but to declare and Arengthen the Law.
. Besides, by examining the particular Circumstances of the above-mentioned Instances, it will appear they cannot come up to the Point insisted on.
For in chat Instance of the Lord Livingston, the Reason for throwing him out was founded upon two Points; one was, that Mr. Higgins, who stood against him, had most 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 standing Law in Scotland, that no Person should represent a Burgh but a trading Burgess, which he was not.
Here is a vain Attempt to remove two very clear and positive Precedents ; for it is very well known, as to the Lord Livingston's Cafe, that the whole Reasoning was upon the Incapacity of the eldest Sons of Peers; and that, not only as to Boroughs, but in general to be eleɛted as Commoners to serve in Parliament; as may appear from this, that there were abundance of Commisioners for Boroughs admitted at that very Meeting, who were also as far from being residing or trading Burgesses, as the Lord Livingston.
As to the other Instance of Mr. Mackenzie, 'twas a voluntary Act of his own, at the Desire of his Father, the Lord Viscount of Tarbat, which ought not to prejudice any other Man who designs to maintain his own Right.
Ibis is a bard Shift to avoid a clear Precedent, it is not a Faet 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 Evasion, viz. In refpet the Viscount of Tàrbat's eldest son, who was elečted one of the Commif
fioners for the Shire of Ross, by reason that his Father is Nobilitate) cannot ROW' répresent that Shire'as one of their Commissioners, Warrant' was given to elet anot ber in his Place.
Besides, 'twill appear, that the last 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 likewise resolved to maintain that Right: For in the last Session of that Parliament, the Commons: wisely considering, that the two late Instances above-mentioned were not sufficient to overchrow such ancient and just Laws as the eldeft Sons of Noblemen founded their Right upon, they thought it necessary to have a Law for excluding them; and to that End offered a Clause to be added to the Union Act, in these 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 Instances to promote the Clause against the Peers eldest Sons ;: but that Parliament thought fit to reject it, and agreed to the before-cited Clause in Place thereof, designing plainly by this to preserve 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 secret Histories or Circumstances that past at the making of these Laws; were that but once admitted, then Laws would be liable to arbitrary Interpretations. But in the next Place, it is to be reine mbred, 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 eieEted, at that Time, when there was an additional Reprejentation granted to several Shires in Scotland, they could not prevail ; on the contrary, the Aet past without any such Declaration.
It is also urged against Peers eldest Sons, that never any of them did fit, which argues a Prescription against their Right of sitting: To which it is answered, Where a plain Right is founded upon a positive Law, the Intermission of the Exercise of their Right can never be extended to make void that Right, no more than if a Freeholder of England should neglect, during his Life, to exercise his Right of Election; it should be insisted on against his Son's having a Right to elect after his Father's Decease; and indeed, the true Reason why the Scots Peers eldest Sons did forbear making Use of their Right of being elected, was, because the Peers and Commons in the Scots Parliaments did fit and vote in one and the same House, and the Peers being numerous, did avoid bringing in their eldest Sons into the House, lest the Commons should have been uneasy at it : But this Reason cannot take place since the Union, and the Peers eldest Sons are at Freedom to exercise their lawful Rights when they think fit.
It were to be wiszed, that the Peers of Scotland bad still avoided to bring in their eldest Sons into the House of Commons, left the Commons of Scot land bould thereby have been made uneasy; nor indeed does the Union make any Alterations in the Cafe; for the Commons can never. bear contentedly that it hould 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 eldest Sons, as if it were in their power to bring them in every where in Scotland, and thereby to confound the Persons of the three Estates, and swallow up the Representation which is reserved to the Commons of Scotland. From this part of the Argument it. is evident, what will be the Consequences of admitting the Peer's eldest Sons to fit in the House, viz. The Peers themselves, their Fathers; will no more avoid the bringing in their eldest Sons, for any Uneasiness it may create to the Commons of Scotland.
Besides, it is impossible that the History of the last Sefion of Parliament in Scotland is so much forgot, as to give place to this Construction put on the Vote of Parliament mentioned on the otber Side ; it is very well known, that many of these who voted for repeating of the Clause, did not at all doubt that the Nobleman's eldest Sons were incapable to elect or be eleEted ; but People were unwilling to enter upon new Questions at that Time, when Endeavours were used to preserve a good Correspondence in the last Parliament of Scotland.
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 Consequence; because the Influence of the Peers there is such, that none else will be returned.
'Tis evident that this is a very ill founded Sufpicion, since there are only four Lord's eldest Sons return'd among the forty-five Commons to this present Parliament: But allowing this supposed Influence of the Peers to be true, 'cwill be in no Sort remedied by excluding their eldest Sons ; for by the same 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 representing Counties or Boroughs of Scotland in the House of Commons, when at the same Time they can represent, and be chose for any County and Burgh in England: And when the Peers of Scotland liave, for the Common Good of those Kingdoms, reduced themselves to so small and uncertain a Representation in the House of Peers, it would be a Hardship to exclude their eldest Sons from sitting in the House of Commons.
It is very irue, the House of Commons have been always jealous of Peers iniermeddling in Matters of Elections ; and certainly for that same Reason
01ght ought to be very jealous of admitting the eldest Sons of the Peers of Scotland, so direEtly contrary to the Treaty, and so 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 considered. The Peers have indeed very bonourably contributed to the Union, but it is upon Terms contained in the Treaty, and in the A&t, which is a Part of the Treaty. And they can't be allowed now 10 dispute what has been already settled for that End. The rest of the Reasoning of this period comes in more to this, there is no preventing the Influences of Peers in Scotland, at the Ele&tion there, and therefore let us even take in their eldest Sons. But how concluding this is, every Man at first Sight may percieve.
The Representatives of Scotland in the House of Commons urge in their own, and in Behalf of all the Commons there, their ancient Constitution and Law, reserved by the Treaty; and for the same Reason will be far from wijing the least Alteration of what has been received in England; nor ought the Custom of admitting the eldest Sons of Peers in England be made use of as an Argument in this Cafe ; for besides that, this is to argue directly against so folemn an Establishment from extrinsick Reafons. It is certain, there is an obvious Disparity on many Accounts, between the Power 'and Case of the Peers and Commons of Scotland, and the Case of these in England. And though it is impossible, 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 supply the Place of 45, which is all the Number allowed to represent the Commons of Scotland.
To conlude. It has always been looked upon as the Excellency of the Scotch Constitution, that their Representation was full and compleat: Buc if Peers eldest Sons be excluded, there would be many of the most confiderable Estates and Freeholds in Scotland not represented, which would overthrow the fundamental Maxim, That no Man can be taxed but by his own Consent : Nor can it be doubted, but the Freeholders of the seve. ral Counties and Corporations in Scotland are certainly the best Judges, whether or not it is their Interest 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 House will always have a due Regard to the Elections of such Persons, whose Right is founded upon plain and positive Laws, since no Objection is urg'd against that Right, but some very groundless Jealousies, and two very lame Instances, which were not at all regarded, but rejected by the Parliament of Scotland, as above mentioned.
To conclude. The Excellency of the Scots Constitution, as to this part of the Representation, ought no doubt to be preserved intire, and the eldest Sons of Scotch Peers excluded, since the greatest Part of the Estates and Free
bolo's bolds in Scotland are represented by their Fathers, who fit in a higher House. And since the Constitution of their Forefathers did not permit the confounding of the Fun&tion, Office, or Place of the Estates, but did confine ali Sorts of Persons in Scotland to that self Estate and Place, wherein they commonly profess themselves to live, and whereof they take their Stiles or Designation : And seeing also the Peers eldest Sons did shine with their Fathers Honour, and were always understood to be comprehended under the general Word of Noblemen, in contradistination to the Free-holders; and, as such, were found incapable by the Parliament of Scotland, in the fore cited folid and clear Instances.
A Copy of the late King's Will: Translated from the
French Original, Printed at the Hague, May 11, 1702.
IN the Name of the Lord, Amen. We William, by the Grace of God, King of Great Britain, Prince of Orange, &c. Conlidering the Infirmity and Mortality of Man, the Certainty of Death, and the Uncertainty of the Time and Hour of it, have. thought fit and resolv'd, before We leave this earthly Vale, to dispose of the temporal Goods, which it has pleased God to give Us, as well Feodal, as Allodial; by Virtue of a Grant from the States of Holland, and WestFrieseland, bearing Date, June 15, 1673. Recommending first Our im. mortal Soul into the merciful Hands of God, and Our Saviour Jesus Chrift, and Our mortal Body to the Earth ; revoking, cancelling, and annulling, by these Presents, all Testaments, Codicils, or other Disposals, which We have hitherto made or executed, it being Our Desire, that neither they, nor any of them, should be valid, or in any wise take effect : But disposing thus, anew, We declare, We have named and appointed, as by chefe Presents We do name and appoint, Our Cousin, the Prince Frison of Nasau, eldest Son of Prince Cafimer of Nasau, at present Stadtholder of Frieseland, Our sole and universal Heir of all Our Eftates, as well Feodal as Allodial, which We shall leave at the Day of Our Death; reserving to Ourselves to appoint him such Guardians as We shall hereafter think fit: 'We further declare, that We reserve to Ourselves the Power of bequeathing, under Our Hand and private Sign Manual, such Legacies and Gifts as We shall here