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of that! But this matter can never come in question in parliament, and there the plaintiff could receive no compensation for the wrong he has suffered. To allow this action will make public officers more careful to observe the constitution of cities and boroughs, and not to be partial at all elections, which is, indeed, a great and a growing mischief, and tends to the prejudice of the peace of the nation. I agree we ought not to enlarge our jurisdiction; by so doing, we usurp both on the right of the Queen and the people. But this is a matter of property determinable before us, and we are bound by our oaths to judge of it. Was ever such a petition. heard of in parliament as that a man was hindered of giving his vote and praying them to give him remedy? The Parliament undoubtedly would say, 'take your remedy at law.' It is not like the case of determining the merits of the return between the candidates. privilege of voting does not differ from any other franchise whatsoever. We do not deny to the House of Commons their jurisdiction to determine elections; but we must not be frightened, when a matter of property comes before us, by saying, 'it belongs to the Parliament.' The Parliament cannot judge of this injury, nor give the plaintiff damages for it. If a returning officer corruptly refuses a vote, and is sued before me, I will direct the jury to make him pay well for it. It is a great 'privilege to choose such persons as are to bind a man's life and property by the laws they make. This privilege, belonging to the plaintiff, has been wantonly violated by the defendant; and I am of opinion that, instead of arresting the judgment, we ought to allow the plaintiff to have execution for the damages which the jury has awarded to him."

Judgment, however, was arrested, and such a triumph was this considered to the Tory party, that it was celebrated by bonfires all over the country. But the writ of error was brought into the House of Lords, where the Whigs had the ascendancy.

At the hearing the Judges were called in, and nine attended. Holt adhered to his opinion, and was supported by Barons Bury and Smith, while Justices Trevor and Price agreed with the three Puisnies of the Queen's

Bench. Lord Somers, now an ex-Chancellor, ably expounded the law, and enforced the arguments in favor of a reversal of the judgment; while Lord Keeper Wright, his successor, not being a peer, was condemned to silence. But little weight was given to reasoning or eloquence. It was made a mere party question, and, on a division, the judgment of the Court of Queen's Bench was reversed by a majority of 50 to 16.

The Whigs were at this time very unpopular, and the decision was viewed with no favor by the public. It threw the House of Commons into a transport of fury, and after a long debate they resolved, by a majority of 215 to 97, "That the qualification of an elector is not cognizable elsewhere than before the Commons of England in parliament assembled: that Ashby, having commenced an action against the Bailiffs of Aylesbury for rejecting his vote, is guilty of a breach of the privileges of this House; and that whosoever shall in future. commence such an action, and all attorneys or councillors soliciting or pleading the same, are guilty of a breach of the privileges of this House, for which they may expect condign punishment."

The conduct of the Commons upon this occasion cannot be too severely reprobated. They wantonly rushed into a controversy with the Courts of Law and with the Upper House of Parliament. The action brought against the returning officer did not in the slightest degree interfere with any of their functions or any of their privileges; and the House of Lords, in reversing the judgment of the Queen's Bench, had done no more than their duty, in soundly expounding the law, and administering justice to a suitor at their bar. The intemperate resolutions passed had a strong tendency to bring parliamentary privilege into public odium, and to invite dangerous attacks upon it. They were prompted, not by any respect for freedom, but by the desire to perpetuate the power of a faction.

The Lords perhaps would have done well if they had treated this foolish proceeding with silent contempt; but they appointed a committee, who reported that "the Commons thereby assumed a power to control the law

and to pervert justice." A sudden prorogation of Parliament suspended the controversy.

During the recess, the current of popular opinion turned strongly against the House of Commons; and various constituencies announced their determination, upon a dissolution of Parliament, to return Whig representatives, who might rescind the obnoxious resolutions. Encouraged by this spirit, Paty, and several other electors of Aylesbury, whose votes had been illegally rejected like Ashby's, brought fresh actions against the returning officer.

As soon as Parliament again met, these plaintiffs were all committed to Newgate, "being guilty of commencing and prosecuting actions at law for not allowing their votes in the election of members to serve in parliament, contrary to the declaration, in high contempt of the jurisdiction, and in breach of the known privileges of this House." The captives having sued out writs of habeas corpus in the Queen's Bench, the keeper of the jail produced them, and made a written return, setting out at full length the above warrant, under which they were arrested and detained. They then moved that they might be set at liberty, on the ground that their imprisonment was unlawful, as the warrant showed that they had been unlawfully committed for bringing actions which the highest tribunal of the country had decided to be competent. On account of the high importance of the question, a meeting was called of the twelve Judges, to whom it was submitted, and eleven of them properly held that no court of law could inquire into the merits of a com mitment of either House of Parliament, for the same point had been solemnly decided in Lord Shaftesbury's case. and it is clear that the contrary doctrine subjects all par liamentary privilege to the control of the Common Law Judges, who are supposed to be unacquainted with the subject. Holt, C. J., however, refused to acquiesce in this opinion, and was for setting the prisoners at liberty:

"The legality of the commitment," said he, "depends upon the vote recited in the warrant; and, for my part, I must declare my opinion to be, that the commitment is illegal, although sorry to go contrary to an act of the

House of Commons and the opinion of all the rest of the Judges of England. This is not such an imprisonment as the freemen of England ought to submit to. The prisoners have done that which was legal according to the highest tribunal of the country, and which the House of Commons alone could not make illegal. Both Houses jointly cannot alter the law so as to affect the liberty or property of the subject; for this purpose, the Queen must join. The necessity for the concurrence of the three branches of the legislature constitutes the excellence of our constitution. How can the bringing of an action at law for not allowing a vote in the election of members of parliament be a breach of privilege? The returning officer of a borough is not a servant of the House of Commons, is not acting by their authority, and cannot be clothed with any privilege by them. To bring an action against a person who has no privilege cannot be a breach of privilege, whether the action is maintainable or not. If a peer be charged with any false and scandalous matter, yet if it be by way of action he cannot have scandalum magnatum. But the plaintiffs here have a good cause of action, as we know by the judgment in Ashby v. White. The declaration of the House of Commons will not make that a breach of privilege which was none before. The privileges of the House of Commons are well known, and are founded upon the law of the land, and are nothing but the law. We all know that the members of the House of Commons have no protection from arrest in cases of treason, felony, or breaches of the peace; and if they declare they have privileges which they have no legal claim to, the people of England will not be estopped by that declaration. This privilege of theirs concerns the liberty of the people in a high degree, by subjecting them to imprisonment for that which heretofore has been lawful, and which cannot be made unlawful without an act of parliament. As to the House of Commons being judges of their own privileges, I say they are so when a question of privilege comes before them. The Judges have been cautious in giving an answer in Parliament in matter of privilege of Parliament. But when such matter arises before them in Westminster Hall, they must determine it. Suppose the actions had

proceeded, and the privilege had been pleaded as a defense, we must have given judgment whether it exists or not. Why are we not to adjudge on the return to the habeas corpus? The matter appears on the record as well this way as if it were pleaded to an action. We must take notice of the lex parliamenti, which is part of the law of the land. As to what my Lord Coke says, that the lex parliamenti est a multis ignorata, that is, because they will not apply themselves to understand it. If the votes of both Houses cannot make law, by parity of reason they cannot declare it. The judgment in Ashby v. White proves that such an action is no breach of the privileges of the Commons. Why did they not commit him when he brought the action? The suffering of him. to go on with his action, is a proof that this pretense of privilege is a new thing. These men have followed his steps, and yet they are said to have acted in breach of the privileges of the Commons. The Commons may commit for a crime; but not without charging that a crim has been perpetrated. Lord Shaftesbury was committed for a contempt done in the House. Here the cause of the commitment being expressed in the warrant, we are precluded from presuming that it was for something criminal of which the Commons could take notice. I am therefore of opinion that the prisoners ought to be set at liberty."

This doctrine seems plausible as well as bold, but when examined, will be found contrary both to sound reason and to authority; for if the sufficiency of the cause of commitment by either House of Parliament can be examined on a return to a habeas corpus, then all parliamentary privilege would be determinable without appeal by every court, and by every single judge, in whom the power of granting a writ of habeas corpus is vested; and the two Houses of Parliament, deprived of the power of commitment for a contempt, which belongs to inferior tribunals, could not effectually exercise the functions assigned to them by the constitution. There must be a possibility of the abuse of power wherever it is given without appeal, and in certain cases it must be so given under every form of government. One of these is the

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