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whether the Lords of Session were unanimous on that point; and, in particular, what was your Lordship's opinion thereupon, as being the most prevalent authority with me; for both these facts were differently represented here. Your friend, My Lord I., debated strongly for reversing that part of the Sixth Interlocutor, and pressed us much with an opinion of Dirleton's, in his short Latin Tract, De feudo pecuniæ & nominum, Quæst. 56, whose authority he exalted much. With us in England, particular opinions of Lawyers, delivered in Treatises of Law, are considered as of far less weight than Judicial decisions; and in this case, such decisions as were produced seemed to me to favour the other way of thinking. Neither did any of the cases put by Sir John Nesbit, in either of those Paragraphs, appear to me to be in point to the present. If your Lordship should find a moment's leisure, during this Recess, you would do me much pleasure to let me know very shortly your own thoughts on this Question, together with the principal reasons which determined the judgment of the Court upon it. And if you could add to that some account of the authority of the Book called Dirleton's Doubts, and what weight is allowed to it in your Courts, it would enable one to judge a little of Quotations produced from it for the future. It seems to have been a Posthumous Work, and to consist of Collections and hints for private use. I am sensible how barbarous it is to trouble your Lordship, in your short retirement from Fatigue, with the crambe repetita of an old cause; but your goodness knows how to indulge the curiosity of a friend, and at the same time will not mention that I have writ to you on the Subject.

I received your Lordship's last favour, and think myself honoured by your approbation of the hint for applying to the Lord Register about the State of your Records. I did not imagine that step would, of itself, have much effect; but it seem'd to be a proper foundation for what you might think right to do afterwards.

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HEARING you was gone North, and not likely to return till the Business of the Session called you, I delayed my thanks for the last letter you did me the favour of, till I could send them by Ross; but unluckily I have lost the opportunity; for I went into the Country during the Whitsun week, to try to get rid of an ugly cough; and upon my return I found him gone.

La C. desired me to make you many Compliments upon your Report, and it well deserved them; the search must have cost great labour in collecting the materials. They are put together in a clear method, and the Observations made with great judgement. It was in every body's hands, and most people who read things of that sort read it. It will, I am persuaded, some time or other be the ground-work of a general measure; and in the meanwhile it will be the Rule applied to upon all Questions of Peerage which may arise. Tho' I never was told, I partly guess at the reasons why nothing more was done upon it this year than ordering it to be printed.

I hope

I hope you are returned to Business in perfect health; no man wishes it more, or enjoys with greater satisfaction the many private and public testimonies of the Wonders you have wrought than,

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Drumlanrig, July 14th, 1740.

I AM really quite ashamed of myself for having left Edinburgh without waiting upon your Lordship. It is true, indeed, that for some days before I sett out I was necessarily engaged in my Lord March's Affairs, which confined me from the moment my eyes were open in the Morning till I went to bed, excepting the interruption of being obliged to dine twice out of town; but whatever weight this excuse may have with your Lordship, to incline you in your great goodness to forgive the omission, it is far from being satisfactory to myself: in short, I cannot quiet my conscience without troubling you with a letter, to assure you that I not onely have, in common with all those who are lovers of their Country, the most perfect respect & value for your Lordship in your publick Capacity, but am, from personal regard & friendship, most sincerely,

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I AM glad the business in which your Grace was engaged whilst you was at Edin' prevented the satisfaction I then wished for of seeing you, because the very Obliging Letter your Grace has given yourself the trouble to write to excuse it yeeld's a more lasting pleasure. The good opinion of the publick is a flattering acquisition, and would tend to make one that had it happy, if it were not sometimes, as I am afraid it is Case, more the Child of good fortune, than of merite, which with very thinking Men flattens the relish of it. But the good opinion of a Man of But the good opinion of a Man of your Grace's discerning and disinterestedness, backed with a declaration of your friendship, is somewhat more substantial, and has a real value in it, which, whether it be produced by good fortune or by merite, I am determined to hold, by deserving as well as I can the continuance of it, tho' I may not have had a just claim to the bestowing it upon me. I am glad to hear that the Dutchess's Residence at Drumlanrig has proved so agreeable to her that she has put off her journey to the Southward for some time. I hope she will feel the good effects of her sojourning in this Country, which is with reason much more fond of her Grace, than she can possibly be of it.

9th Aug 1740

I am, &c.

My Lord,

No. CCV.

Governor Trelawney to the Lord President.

29th Aug. 1740. Jamaica. M' AEDIE has just now brought me the honour of your Ldp's of July last was twelvemonth. Nothing could give me a greater pleasure than to find I have still a place in your remembrance & friendship: to be esteemed & loved by one whom one sincerely loves & esteems must give the greatest joy, as it is a mark of some virtue & honour of both sides. You will excuse me for coupling myself with you in any thing; but in good intentions & disinterestedness I will not yield even to you; in every thing else I knock under, & acknowledge without envy (as I speak it without flattery) your superior merit beyond any degree of comparison. Indeed, the consciousness of my want of abilities to act up to the dictates of my heart has been almost the only uneasiness (worth being called so) I have felt thro' life; "but the thought that Ferdinando can do no more than he can do" has at last quieted me, & I do my best chearfully, without being discomfited with an oversight or blunder now & then; but, like a horse that trips, mend my pace upon it. So much for morals: as to politicks, nothing has been done since the demolishing the Castle of Chagre. We are ho rly in expectation of the store ships for Admiral Vernon's squadron, convoyed by two sixty gun Ships, which will enable M' Vernon to put to Sea with all his Ships; & we are likewise in expectation of seeing very soon my La Cathcart here, with 6 or 7000 land forces, which, with those raised in the Northern Colonies, will give us such a superiority in this part of the World, both by land & sea, that I think the two Commanders may do almost any thing they have a mind to. I am very warm for a project which a great many will look upon as visionary & ridiculous, but I think far from being so; & that is, to restore the Indians to their liberty, and put them into the possession of their own Country, driving out the Spaniards, & only keeping for ourselves a port or two at most in the South Seas to have communication between the two Seas; for the rest of the Country, let the Natives, to whom nature has given it, enjoy it; & let us only have a commerce with them, which is more beneficial than having the land which we could not inhabit. By the best accounts I have, the thing is feasible, & I think right; so I could put my hand to the Plough with pleasure. You will excuse my flow of nonsense; I write as it comes warm from the heart, & from the head too, which I am afraid is too warm, a little heated; but I could not help sitting down immediately to express my pleasure at the receipt of yours, that I might give this to M' Aedie, who will have an opportunity to put it into a Glasgow Ship that sails after to-morrow; & is to dine with me to-day, that I may drink Collouden wh him tho' not in a Collouden Cup; for, tho' in a Country of Coco's, we have no nut to be compared with yours, the most famous of all nuts I have heard of, unless that which had Homer carved upon it. To all others it undoubtedly has the preference; esteemable for its own intrinsick merit (I mean its capaciousness), as well as that it belongs to a worthy Laird, whom I sincerely value & esteem, and am proud to be reckoned among the number of his friends, tho' in an inferior degree.

I am, w' the greatest respect,

Dear S',

Your most Obedient faithfull humble servant,
EDW. TRELAWNY.

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No. CCVI.

My Lord,

No. CCVI.

The Duke of Newcastle to the Lord President.

Newcastle House, Oct 11th, 1740.

YOUR Lordship will allow me to assure you, that it was a most sensible pleasure to me to receive a Letter from you, and to find that you had not forgot one who had ever the greatest regard, and, if you will give me leave to add, friendship for you. This being most sincerely my case, you will easily imagine how concerned I was, that it is not in my power to obey your commands in that trifle you have desired. It is some years since I promised my recommendation to the Consulship of Venice to M' Smith, a Merchant there (in case of a vacancy), at the request of the Duke of Richmond; & afterwards, having forgot that engagement, I gave my Lord Chief Justice Willes reason to expect it for a relation of his, Mr Swimmer. You will see by this, that I was doubly engaged before I had your Letter. I wish I may have any opportunity of convincing you how much I am your humble servant, how sensible of your great merit to your King & Country, & of the many civilities I have received from you during a long & most agreeable acquaintance with you. I sincerely wish you all health, honour, & happiness, & am with the highest esteem, My Lord,

Your Lordship's most affect

& most obedient humble Servant, HOLLES NEWCASTLE,

My Dear Lord,

No. CCVII.

M' Murray to the Lord President.

I HAD the honour of your's last night; and I chuse to return you an answer immediately, as I don't know how soon you may have the question started, and because I have very little doubt myself in what I am going to suggest to you. The mischief, and Public inconvenience, of allowing privilege in the cases you mention is so great, that no court of Justice would allow it, if they can by any means avoid doing it. Nay, in cases similar to those you mention, no privilege was ever pretended here in England; for they are in the nature of questions concerning Franchises. Here, if a man possesses a Franchise, as that of Mayor, or any other officer in a Corporation, or is wrongfully admitted a freeman, &. the way to try the right, and to turn him out, is by an information in the nature of a Quo Warranto, which is now very much considered as a civil action. If a man has a right to be admitted into any of these offices, or any other office or Franchise of a Public nature, and an Office as low as that of a Sexton is held to be so; the way to be legally put into possession is by Mandamus from the Court of K." Bench. In neither of these cases is privilege pretended to; it is true, these suits, in point of form, are carried on in the King's name, and conclude that the thing complained of is Contra Pacem Domini Regis; and it is Rule, that in breaches of the Peace there can be no privilege. Your Actions in Scotland, I understand to be, in form, Civil Suits, without the interposition of the King's name, and without alledging any breach of the Peace; but as I don't intend to propose your determining the Question of Privilege one way or other, I won't pursue the Argument, how far the reason should prevail, tho' the form is different.

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Give me leave to suggest to you to follow the example of the Courts of Westm Hall, and to refuse taking cognisance, one way or other, of the Plea of privilege, unless it is certified by some writ under the Great Seal.

There is no Privilege of Members of Parliament known to, or taken notice of by, the Common law of England, except the privilege of the person from arrests; but even of this privilege the Courts of Justice never took notice, till it was certified by a writ of Privilege under the Great Seal; the form of which you may see in the Register; and thus it stood till the 13th of Wm the 3d ca. 3. Since that statute, in the year 1734, the 12 Judges held, that, by reason of the negative words in that Act, that no member should be arrested, & the privilege became part of a Public Act; so far as the freedom of the person is concerned, I mean; and therefore the Judges were to take notice of it, without having it certified by a writ of Privilege.

As to the Privilege of staying Suits against members, &c. the Common Law of England never allowed it; there is no formed writ in the Register to that purpose.

In the 12th of Ed: 4th a writ of Privilege was obtained by a menial Servant of the Earl of Essex, suggesting such a Privilege; the Prescription to such a privilege was denied; and the 12 Judges held there was no such Custom, and therefore disallowed the writ and ordered him to answer.

The very next year, a like judgement was given (for this purpose, See Dyer's Reports, N° 60, marginal note) without going into a minute deduction. I take it, the notion that Privilege of Parliament protected from suits, as well as arrests, grew in the Reign of Ja: the 1st.

You will see in the Journals of the House of Commons, 22 Feb. 1606, upon a Message from the King desiring the attendance of all the Members, &. it was proposed, that the Speaker should write to the Justices of Assize for Stay of proceedings against any Member who should desire it. 3a Mar: 18 Jac: you will see in the Journals that numberless letters of this sort had been sent.

The Judges took no notice of the Letters, but constantly disobeyed them; of which you will find instances in Latch's Reports, 48. and Noy's Reports 83, and Dyer 60. As in this the Judges did their duty, it don't appear the House ever resented it; but they fell upon another way; they considered the Party, Attorney, &c who proceeded, as guilty of a contempt; and proceeded by their own summary Authority to punish them. The 13th W the 3d ca: 3d has made no alteration in this point; for there are no words which say they shall not be sued.

I think I may venture to say, that from the beginning to this day, the Judges in Westminster Hall never allowed this privilege from Suits. They can take no notice of it without a writ of Privilege; and when those writs issued, as they did in the time of Ed: the 4th, they disallowed them, as not warranted by Law. At present, the Great Seal would certainly not issue any such Writ. The only way in which this assumed privilege is supported is, by the House's proceeding against the Partys, Attorneys, &° as for a contempt; but the Courts are never complained of; and in fact they never regard this Privilege, but are always ready to proceed if the Partys desire it, who go on at their peril.

As this Privilege is of English growth, and communicated to Scotland by the Treaty of Union, you ought to consider it as it is considered by the Courts of Justice here. In its nature, 'tis a most unjust advantage, and every honest Argument is strong against it; and therefore I am sure your only doubt is in what way not to allow it; and the result of what I have been saying is, to propose to you by no means to pronounce whether there is or is not privilege in that case (the Parliament pretends to be the sole judge of their own Privileges), but to conceive your Interloquitur in general terms,

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