incidental to the change of fituation made by that act. From the fituation in which the union placed them, the two noble lords had emerged by the favour of the crown, and were raised to those rights, to that condition in the British parliament, which in the parliament of Scotland they before enjoyed.

It was upon these principles that the house in 1709, in the cafe of the duke of Dover's vote, refolved, "That a peer of Scotland, claiming "to fit in the houfe of peers by "virtue of a patent pafied under "the great feal of Great Britain, "and who now fits in the parlia"ment of Great Britain, has no right to vote in the election of "the fixteen peers." The determination was as folemn, as deliberate, as any that ftands on the records of parliament. It rejected the vote of a perfon intimately connected with the lord treasurer (Godolphin). The refolution paffed at a time when all that related to the union was freth in every man's memory, and the true meaning and intention of that treaty were generally known. It paffed in the prefence of many of thofe who had been commiffioners on both fides, actors in that great fcene; and the journals thew that there was not a fingle proteft. It has been conftantly acted under, has stood unquestioned, unshaken, for near fourscore years.

It follows evidently, from this refolution, that as a peer of Scotland, under the circumftances defcribed in it, cannot vote in the election; fo neither can he be elected one of the fixteen. For the act exprefsly directs, that he fhall be chofen out of their own number, that is clearly out of the number of thofe who chufe; and to this conclufion their

uniform practice had been confonant.

But another question still remained behind. For though they could neither vote in the election, nor be elected, yet it may be urged, that having been elected previous to this difqualification, they might retain their feats till the next general election. The act of union provides forno cafes except thofe of death and legal difqualification. That the circumfiances upon which the prefent queftion is founded do not amount to a legal difqualification, ftrictly speaking, cannot be denied; but they may come within the real intent and meaning of the act, which is to be collected from its general principles, applied to the particular cafe.

A virtual reprefentation in the British parliament was the compenfation given to the Scottish peers, for the furrender they made of their individual rights in the parliament of Scotland. But the chance of being actually chofen, and of fitting as a reprefentative, is doubtlefs to be confidered as a very material part of this compenfation; and of the chance of enjoying this part of his compenfation every peer is evidently deprived, fo long as another perfon, who has no claim, to any thare in it at all, is in poffeffion of it.

Again, an hereditary feat, and a temporaryfeat byelection,are incom-. patible, for this obvious reafon--the hereditary feat takes away the whole effect of the relation that fhould fubfift between the reprefentative and thofe who chufe him. This connection is ftronger in fome governments than in others; but it obtains univerfally in all, and is of the very effence of reprefentation: But

fuppof

fuppofe for a moment that the reprefentative is bound to obey the inftructions of his conftituents, what would be the condition of an hereditary peer, who was also a reprefentative? Clashing duties might arife. His own judgment marks out to him one line of conduct, the orders of the electors another: which is he to follow? There is but one mode of obviating this difficulty, that of allowing him two voices; a mode which the form of our conftitution does not admit.

Again, the fame prerogative that had raised two of the fixteen to an hereditary feat, might extend the fame favour to the whole number. What then would become of the Seotch reprefentation? This way of putting it makes the abfurdity more glaring; but there is no real difference between the one cafe and the other, the violation of the principle of reprefentation is the fame in both.

He then flated particularly the cafe of James duke of Athol, upon whom an English honour devolved in 1736, and who continued to fit in parliament as duke of Athol and baron Strange. He obferved, that there never had been any decifion, any question, any even the fmalleft difcuffion upon the fubject; the whole had paffed fub filentio. Why it did fo is, perhaps, at this diftant period, rather to be conjectured than known. It probably was thought a thing of little confequence, as there was very little chance that a fimilar cafe, that of an old English honour devolving upon a Scotch peer, fhould happen again. The cafe now in queftion could not happen under the then circumftances. The Scotch peerage were then smarting under the wound which the rash and violent hand of party gave

in the cafe of the duke of Brandon, in 1711. In that fituation of things the peerage of Scotland might think it a point of little moment; but the cafe is very different now. The Scotch peers are reftored to their rights-the right of prerogative is restored. The royal favour may now flow in that channel, as freely as in any other.

I have purpofely waved, faid he, all confiderations of policy, as the caufe ftands in need of no fuch collateral aid. But thus much I may fay, the beft, the wifeft, and most dignified policy will chufe to do that, which is attended with no poffible inconvenience, rather than hurt the rights and wound the feelings of a confiderable and refpectable body of men; and if there were any fhadow of doubt in this bufinefs, which, he protefted, after the fulleft confideration, he could not perceive; yet furely, even in that cafe, the fairest and most upright mind might incline towards that decifion, which is favourable to the interefts of many, prejudicial to the real interefts of none.

He concluded with faying, that he was perfuaded their lordfhips would upon all occafions be difpofed to interpret every article of the treaty of union in the fairest and moft liberal manner, and especially that which refpects the peerage of Scotland. The change the union made in their condition is known to you all. I hope, faid he, you will keep in conftant remembrance this day, that, before an event fo beneficial. to both countries could take place, the peers of Scotland had great difficulties to conquer: to the attainment of that defirable end they made as large a facrifice as ever was made by men. Had they retained their hereditary feat in parliament,

liament, at the expence of half their property, they had made a happy and noble exchange. No man can deferve an hereditary feat in the great counfel of a free nation, who qoes not confider it as the firft of all rights, the most valuable of all poffeffions. That right, that ineftimable poffeffion, for reafons of public utility, our ancestors were contented to forego. In a word, they did that which has ever been counted a mark of exalted virtue-they chose rather to be little in a great ftate, than great in a small one. Deciding on the rights of the defcendants of men fo circumftanced, you would be disposed rather to extend than diminish those rights. We ask no extenfion; we demand nothing but what the union gave. All we defire is, that you will not, in contradiction to the clear and obvious meaning of that agreement, to the fenfe entertained and declared of it by thofe, by whom it was framed, and in contradiction to the clearest principles of representation, abridge our rights, by curtailing the flender compenfation allotted us for the greatest lofs, which men, who have any dignity, can sustain.

With respect to the new-created peers, added he, when we chofe them, they were in the fame fituation with ourselves; they were fellow fufferers. Being no longer in that fituation, they can no longer be entitled to a fhare of that compenfation, which was given to the aggregate body for the lofs it fuftained. They now fit here in their own right, they cannot fit in ours. We are proud of every connection with them, but what is incompatible with their condition and ours. We hope these two noble lords, and all VOL. XXIX.

who were formerly of our number, retain their former zeal for the maintenance of our rights. We hope they, who have reached the fhore, will not be indifferent to the condition of those, whom they have left behind.

The motion was oppofed by the earl of Moreton and the lord chancellor. It was contended by the latter that the prefent was of the nature of a judicial proceeding, and that they were bound not to liften to arguments grounded on fuppofed or real inconvenience to this or that fet of men; nor were they entitled to confider what an act of parliament should have been, but were bound to take it as it was, and to comply with the letter of it. By the act of union nothing fhort of legal incapacity could put any of the fixteen peers out of the fituation of reprefentatives till the fitting of parliament fhould expire; and it seemed agreed on all fides that letters patent creating a Scotch lord an English peer induced no legal incapacity.

Lord Loughborough, in anfwer to the chancellor, obferved, that though he had no objections to arguing the point juridically, yet the prefent was clearly not a judicial but a political proceeding; it had not one circumftance of a judicial proceeding attending it. With refpect to their being bound by the letter of the act of union, the prefent was a cafe not directly provided for by it; and he would ever maintain, that the intention and fpirit of every ftatute (penal ftatutes alone excepted) were to be looked to in the conftruction of it.

The motion was carried by a majority of 52 to 38, and was follow[G]

ed

ed by another motion of the fame kind refpecting the duke of Queenfberry created baron Douglas.

Previous to the difcuffion of the commercial treaty in the house of lords, two motions were made by the duke of Norfolk refpecting the Portugal trade, to the fame purport with those moved by Mr. Fox, and met with the fame fate. On the ift of March, the day fixed for going into the committee, lord Stormont begged leave to call the attention of the house, before they entered upon the bufinefs of the day, to the unconftitutional and unprecedented nature of the proceeding they were about to adopt.

Whenever, he faid, both houfes joined in an addrefs to the throne upon any fubject, the difcuffion of which was not concluded in both houfes, it had been customary to form the addrefs in general terms of thanks for the communication, and fo as not to preclude the freedom of future debate; but the addrefs fent up from the lower houfe was drawn up in fuch particular and precife terms, as to pledge parliament with refpe&t to their future conduct in the fubfequent ftages of the bufinefs.

He contrafted this mode of proceeding with that ufed upon the treaty of Utrecht; and fhewed that the minifter of that day, notwithftanding his powerful party connections and perfonal authority, had fhewn fo much refpect for the confitution as not to venture to adopt a proceeding like the prefent. To obviate therefore the dangerous confequences of fuch a precedent, if it fhould be adopted, he fhould move the houfe to come previously to the following refolution, "That no ad"drefs to the throne, and no refo

"lution of this houfe, can bind "this house in its legislative ca"pacity, or bar the fubject's right "of petitioning this houfe upon " any bill depending in parlia"ment, though fuch bill be found"ed upon and conformable to re"folutions to which this house has previously agreed."

Though the doctrine laid down in this motion was not controverted by adminiftration, but allowed to be juft, yet they contended that it was by no means neceffary to put it upon their journals, and therefore called for the order of the day; which being read, and the houfe refolved into a committee, the marquis of Buckingham opened the bufinefs in a long speech, in which he defended the treaty upon the fame ground that had been taken in the other house, and concluded with moving the firft of the refolutions that had been fent up for their concurrence.

The motion was oppofed with great ability by the bishop of Llandaff. The arguments ufed by him were comprized in the two following propofitions, which he concluded with ftating to the committee as the fum of his speech.

1. That to abandon a commercial fyftem, by which we had risen to our present height in the scale of nations, was a measure, abstractedly confidered, dangerous and impoli tic, and not to be juftified except by fome urgent neceffities of the ftate, which neceffities did not at prefent exift. 2. That to adopt a commercial fyftem, which our anceftors from long experience had reprobated as detrimental to the kingdom, was an unwife measure, and not to be juftified, except by a change in the relative fituations of

Great

Great Britain and France; the certainty of which changé having taken place had not been proved or rendered highly probable.

In fupport of the firft propofition, he entered into a detail of our commerce with foreign nations; the refult of which was, that we enjoyed a clear balance in our favour of at least four millions a year. From the viciffitudes incident to the current of all human affairs, a few obftructions had of late years been formed in fome of the channels through which this wealth flowed; but furely, he faid, the wisdom of the nation would have been much better employed in removing thefe obftructions, in widening and fecuring these ancient channels, the advantages of which were known to our fathers and ourselves, than in opening a new one, the rocks, and fhoals, and whirlpools of which were unexplored; the dangers of which no mortal eye could forefee; the advantages of which were certainly fpeculative, might be delufive, and, if delufive, must be ruinous to our wealth, our confequence, and our independence.

He would not affume, he said, the prohibition of our commerce with France as an efficient cause of our commercial profperity; two fimultaneous events might exift together, without one being the caule of the other; but if it could be fhewn, that our commerce did not flourish, when the trade with France was open, as clearly as it had been thewn that it did flourish, when our trade with France was fhut, men of plain understandings would fufpect that there was fome connection befween those two circumftances.

In proof therefore of his fecond

propofition, he read the preamble of the act paffed in the time of Charles the Second, prohibiting an open trade with France, to the following purport: "Whereas it has "been by long experience found, that "the importing French wines, &c. "had much exhaufted the treafure "of the nation, leffened the value "of the native commodities and "manufactures thereof, and brought "much detriment to this kingdom in general-”

It might be objected, he faid, that in confequence of the great improvements of our manufactures, the relative circumftances of the two nations were much changed; but he doubted much of the weight of this obfervation. He entered into various particulars on the point, and said, that after the most minute examination and enquiry, he could find no probable ground for admitting that the circumftances of the two countries were fo entirely changed as to render a trade, which in the time of Charles the Second was thought highly detrimental to this kingdom, and by which we loft a million a year, lucrative and fafe at prefent. Ou manufactures were doubtlefs much improved, and fo alfo were the manufactures of France, and in the courfe of ftill farther improvement; and if this were really the cafe, the argument from experience was conclufive against the treaty.

In a fecond fpeech, the bifhop entered into a further detail of the comparative excellence and cheap, nefs of French and English manufactures. He mentioned the exertions they were making in the manúfactory of iron, and particularly cutlery, and feemed to think that the importation of hardware into [G 2]

France,