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4.5.

they ought to be discharged. Tho' Holt's judgment seem- 1704ed clear and solid, yet, as he was but one against three, the majority prevailed, and the prisoners were remanded to Newgate (a).

Upon this Paty and Oviat, two of the prisoners, moved for a writ of error, to bring the matter before the lords. This writ was only to be obtained, by petitioning the queen, that the judgment of the court of the queen's bench might be brought before her majesty in parliament. The commons were alarmed at these petitions, and resolved upon an addrefs to the queen, “ setting forth the undoubted right and pri« vilege of the commons of England in parliament aflembled, 45 to commit, for breach of privilege ; and that the com66 mitments of this house are not examinable in any other

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in the rolls of precedents there that it was no cause at all of
might be found a case, where commitment. That bailing the
bais had been allowed by this prisoners in this court did not
court upon a commitment of meddle with the privileges of
the house of commons. Mr. the house of commons, because,
Denton excepted to the return if siled, yet they were answer-
of the commitment, alledging, able to the house, and are
1. That the warrant did not prisoners in cuflodia legis. That
sufficiently describe the crime. indeed justices of the peace can
2. That it did not appear that commit for a riot without bail ;
the party committed had notice but this power arises from an
of the vote or declaration of the express act of parliament for
house of commons, for every that purpose. That the queen
man is not bound to take notice herself cannot commit, so as to
of a vote, because it is but a bind the power of the law; but
temporary, thing. 3. That it this court can, in such cases, and
not appearing by this return, always have, upon good causes
that the prisoner was a coin- sewn, bailed, notwithstanding
moner, he might notwithstand. Such commitments.
ing any thing that appeared to (a) The judges delivered
the contrary, be a lord ; and their opinions in the following
then it must be agreed, the com- manner: The youngest of them
mons had no jurisdiction. That, declared, that he thought the
if it had been a general com- prisoners ought to be remanded,
mitment, without thewing the alledging, that it was the first
offence particularly, and said for habeas corpus of the kind, that
a breach of privilege only, per- ever was brought : That, if this
haps it had been a good com- return now before the court
mitment; but here the cause had been of an babeas corpus
was set forth, and it appeared from an inferior court, it had
by the judgment of the lords been a bad return; but that the
in the cale of Alby and White, house of commons was superior,

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and

1704-5.6 court whatsoever; and that no so such writ of error was ever

jo brought, nor doth any writ of error lie in this case: And

" that as this house had expressed their duty to her majesty,
“ in giving dispatch to all the supplies ; so they had an intire
« confidence in her majesty's goodness and justice, that the
“ would not give leave for the bringing any writ of error
« in this case, which would tend to the overthrowing the
"s undoubted rights and privileges of the commons of
“ England.”

Ten judges (two only being of another mind) agreed, that,
in civil matters, a petition for a writ of error was a petition
of right and not of grace. It was therefore thought a very
frange thing, which might have most pernicious conse-
quences, for a house of commons to desire the queen, not to
grant a petition of right, which was plainly a breach of law,
and of her coronation-oath. It was no less strange for them

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and could not be bound by the that most commitments by the
forms of Westminster-hall, hav. house of commons were of
ing peculiar laws and customs : other persons, not members, as
Then when the earl of North- for arresting a member fitting
umberland peticioned the king, the house, &c. otherwise they
where the question was, whe- could not vindicate the breach
ther the power, that he had of their privileges. As to what
raised, was treason, which peti- was objected that this commit-
tion was ordered to be deliver- ment was during pleasure, he
ed to the justices to be consider- replied, that it was more benefi-
ed, the.lords made protestation, cial to have commitments so,
that the order thereof belonged that persons so committed
to them, and they resolved it not might in the mean time make
to be treason. That here was application and submit: And
a parallel case; The house of that the commitments of the
coinmons had declared the house of commons were like the
prisoners guilty of a contempo; commitments of this court upon
and how could this court con- contempts, which always were
tradi&t what had been deter- underliood not to be for any
mined by them, who are part certain time, and therefore
of the legillature, and cannot be during pleasure. That it was
supposed to break their trust? likewise objected at the bar, chat
Judge Powis was of the same the commitment was for bring-
opinion as to the remanding of ing an action; to which he an-
the prisoners, urging, that this swered, that privilege stops; and
case was not like that of the so it is in all actions brought
lord Shaftsbury. That as to against any servants of members
the objection made by the fitting in the house. And as to
council, that the prisoners were the care of Ashby and White,
not members, he answered, he did not think it to be the

same

to take upon them to affirm, that the writ did not lie, when 1704-5. that was clearly the work of the judicature to declare, whether it lay or not, which was unquestionably the right of the lords, who only could determine that. Besides, their hav. ing supplied the public occasion, was a strange consideration to be offered to the queen, as an argument to persuade her to act against law, as if they had pretended, that they had bribed her to infringe the law, and to deny justice ; fince money, given for public service, was given to the country and to themselves, as properly as to the queen. Her answer to this address was to this effect : “ That she was Feb. 26. “ much troubled to find the house of commons of opi

nion,

same with this case here. That of Westminster-hall to judge of he saw but two things of sub. the privileges of the house of Atance in this argument: The Commons, who have not acfirst, that, if this court, being cess to their 'rolls, where only an high court, and the highest the privileges of that house are of all inferior courts, can dil- to be seen; and therefore it charge any person committed per was very unreasonable to put mandatum Domina Regine, sure- judges upon the inquiry. That ly then it may discharge one if this court had a jurisdi&ticommitted by the house of com- on over the commitments of mons. To which he answered, the commons, they should that he took this to be a fallacy, have it also over those of the because the king is to act by his lords : Concluding, that they miniftry and by his courts, and were a great court, but that not by his absolute will : That, neither their ancestors nor they according to lord Coke, though ever yet knew it so great as this the king be presumed to be pre. would make it. Judge Powel sent in this court, yet he doth concurred in this opinion, alledg. act by his judges here, other- ing, that he could not think wise he might be a judge and they could be judges of this reparty. And to the objection, turn, because the prisoners were i Whether the commons should committed by another law than " by a declaration direct who this court proceeded by ; and

should not be sued;" that we that to commit by one law, and muft fuppose they have a ge- discharge by another, would inneral jurisdiction of privileges, troduce disorder : That as the and contempts, and rights, as ecclefiaftical, admiralty, and well as other courts : That this martial courts, and the house commitment was not for a trial, of peers proceed by their own but as upon an adjudication, rules, so the house of comand as a punishment. That, mons proceed by their own when they came to a point of rules ; this court can meddle jurisdi&tion, they must con- with their privileges in some fider it by usage: That it is cases, but not so as to contra. next to impossible for the courts dia or oppose them : And that

he

1704-5. " nion, that her granting the writs of error, mentioned

" in their address, was against their privileges, of which “ the would always be as tender, as of her own prerogative : " And therefore they might depend, she would not do any « thing to give them any just occafion of complaint. But “ this matter, relating to the course of judicial proceedings, « being of the highest importance, she thought it necessary 6 to weigh and consider very carefully, what might be pro« per for her to do, in a thing of so great concern." This answer was thought so cold, that no thanks were returned for it; tho' a well composed house of commons would certainly have

thanked

he did not know how the house such an house, or use such meof commons could have a power thods, as would rectify and obof judging, and not of punish- lige to a submission. These three ing. That this court can correct judges having thus declared excesses of all inferior courts, their sentiments, “ That the but not of the parliament, which“ prisoners ought to be remandis superior. That, supposing the “ed," the lord chief justice lords would intermeddle with Holt delivered his opinion, freeholds, though, perhaps, they · That they ought to be disare not less valuable than their charged. I am sensible, said privileges, yet this court could he, of the great disadvantage not prohibit them. That he be- • I lie under, because eleven of lieved it as customary to make the judges are against my opi. commitments during pleasure as "nion. The case being of otherwise. That, if we had ' moment and concern, I did a long parliament as formerly, 'desire to confer with them, be. then perhaps it would have been 'fore I delivered my thoughts. hard. That bondage was so "And it is a second disadvanmuch lost in England, that he "tage, that I have so great an believed the council had almost · eltcem for their sentiments, forgot how to apply that argu- ' that I would willingly resign ment. That he did not know my opinion to theirs. But how excess of jurisdiction in 'then I lie under another, either house can be good. If it " which is to encounter an happens, it must be determined ' opinion and judgment of the by conference between thom. house of lords. I must confess, selves. That if it should be the commons of England are supposed, that both should infift, • intrusted with, and are very and the commons should do any zealous for our liberties ; thing unreasonable, sure then " and therefore I would think the people of England would it a misfortune to lie under not chuse them again : And, if • their displeasure. Yet there is the lords should infist upon un- ' another thing, which lies upon reasonable privileges, then the me, which, at all events, I people of England, he believed,' am to take care of, and that would find out a way to chuse : is a good conscience. I am

upon

thanked her for that tender regard to law and justice. The 1901 Lame day the answer was reported by Mr, secretary Hedges, the commons proceeded to carry their resentments to greater extremities, and having continued sitting till the evening, voted, " That Mr. Francis Page, Mr. James Montague,

Mr. Nicholas Lechmere, and Mr. Alexander Denton, in os oleading upon the return of the Habeas Corpus, on bea half of the five prisoners committed by this house, were « guilty of a breach of privilege ;” and ordered them to be taken into custody. As they were apprehensive, left the queen should grant writs of error, whereby the five Ailfbury men might be discharged from their imprisonment, they

allo

upon my oath to judge im- ' as entering of a continuance,

partially and juftly. I do not " which cannot be said to be • think this such an imprison- ' any breach of privilege, the a ment, that the freemen and person of the member, or his < subjects of England are to be 'estate, not being difturbed « bound by ; and it will affect thereby. Indeed, if you di

all the kingdom, if, by any ' ftrain the person of a member, • declaration or prohibition ' or do any act to restrain his I made by the house of com- "liberty, then it is a breach. I mods, they are restrain'd from and punishable by the house. o bringing a lawful action. ' Again, the house of commons • Neither of the houses of par- ' should have shewn, that they ·liament, separately or jointly, have a privilege ; for, if the « have any power to dispose of “high constable of England o the liberty or property of the should not shew his authority. • subject. It must be, with the 'we should not take more no« queen added. This is the tice of him than of the con

conftitution of the English - Itable of St. Martin's. The

government. It is said in " law of the land must take « the return, that the prisoners' place. A man may legally « are guilty of a breach of pri- ' commence and prosecute an

vilege for bringing an action. " action against a man that is · " I must therefore declare my ' not privileged, tho' vexatious « opinion, that commencing a ' or wrong, as appears by 2 « suit is no breach of privilege, • Rich. III. 9. where all the • tho' it be against a member' judges were of opinion, that « himself, so he be not affected there was no punishment for • in his person or lands. The ! bringing an action, tho'wrong. « second crime mentioned in the "If an action is sued and proie6 commitment and return is "cuted against a peer, no action « prosecuting. What is meant i de scandalis magnatuin will • thereby seems not to be so • lie, if there was any probable « clear, because prosecuting 'cause of action. I do not think may be taken several ways, that any initance can be shewn

" that

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