they ought to be difcharged. Tho' Holt's judgment feem- 1704-5. ed clear and folid, yet, as he was but one against three, the r majority prevailed, and the prifoners were remanded to Newgate (a). Upon this Paty and Oviat, two of the prifoners, 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 majefty in parliament. The commons were alarmed at these petitions, and refolved upon an addrefs to the queen," fetting forth the undoubted right and pri"vilege of the commons of England in parliament aflembled, to commit, for breach of privilege; and that the com"mitments of this house are not examinable in any other ❝ court that it was no caufe at all of commitment. That bailing the prifoners in this court did not meddle with the privileges of the house of commons, because, ifiled, yet they were answerable to the houfe, and are prifoners in cuftodiâ legis. That indeed juftices of the peace can commit for a riot without bail; but this power arifes from an exprefs act of parliament for that purpofe. That the queen herfelf cannot commit, fo as to bind the power of the law; but this court can, in fuch cafes, and always have, upon good caufes fhewn, bailed, notwithstanding fuch commitments. in the rolls of precedents there might be found a cafe, where bail had been allowed by this court upon a commitment of the house of commons. Mr. Denton excepted to the return of the commitment, alledging, 1. That the warrant did not fufficiently defcribe the crime. 2. That it did not appear that the party committed had notice of the vote or declaration of the houfe of commons, for every man is not bound to take notice of a vote, bccaufe it is but a temporary thing, 3. That it not appearing by this return, that the prifoner was a commoner, he might notwithstanding any thing that appeared to the contrary, be a lord; and then it must be agreed, the commons had no jurifdiction. That, if it had been a general commitment, without fhewing the offence particularly, and faid for a breach of privilege only, perhaps it had been a good commitment; but here the caufe was fet forth, and it appeared by the judgment of the lords in the cafe of Ashby and White, 1704-5: "court whatsoever; and that no fo fuch writ of error was ever "brought, nor doth any writ of error lie in this cafe: And "that as this houfe had expreffed their duty to her majefty, in giving difpatch to all the fupplies; fo they had an intire "confidence in her majefty's goodness and juftice, that she "would not give leave for the bringing any writ of error "in this cafe; which would tend to the overthrowing the "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 ftrange thing, which might have moft pernicious confequences, for a houfe of commons to defire 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 and could not be bound by the forms of Weftminfter-hall, having peculiar laws and cuftoms: Then when the earl of Northumberland petitioned the king, where the queftion was, whether the power, that he had raifed, was treafon, which petition was ordered to be delivered to the juftices to be confidered, the lords made proteftation, that the order thereof belonged to them, and they refolved it not to be treafon. That here was a parallel cafe; The house of commons had declared the prifoners guilty of a contempt; and how could this court contradict what had been determined by them, who are part of the legiflature, and cannot be fuppofed to break their truft? Judge Powis was of the fame opinion as to the remanding of the prifoners, urging, that this cafe was not like that of the lord Shaftfbury. That as to the objection made by the council, that the prisoners were not members, he answered, to that most commitments by the houfe of commons were of other perfons, not members, as for arrefting a member fitting the houfe, &c. otherwife they could not vindicate the breach of their privileges. As to what was objected that this commitment was during pleasure, he replied, that it was more beneficial to have commitments fo, that perfons fo committed might in the mean time make application and fubmit: And that the commitments of the houfe of commons were like the commitments of this court upon contempts, which always were underflood not to be for any certain time, and therefore during pleafure. That it was likewife objected at the bar, that the commitment was for bringing an action; to which he anfwered, that privilege ftops; and fo it is in all actions brought against any fervants of members fitting in the house. And as to the cafe of Afhby and White, he did not think it to be the fame to take upon them to affirm, that the writ did not lie, when 1704-5that 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. Befides, their having fupplied the public occafion, was a ftrange confideration 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 juftice; fince money, given for public fervice, was given to the country and to themselves, as properly as to the queen. Her answer to this addrefs was to this effect: "That she was Feb. 26. "much troubled to find the house of commons of opi"nion, fame with this cafe here. That he faw but two things of fubftance in this argument: The firft, that, if this court, being an high court, and the highest of all inferior courts, can difcharge any perfon committed per mandatum Domina Reginæ, furely then it may discharge one committed by the house of commons. To which he anfwered, that he took this to be a fallacy, because the king is to act by his miniftry and by his courts, and not by his abfolute will: That, according to lord Coke, though the king be prefumed to be prefent in this court, yet he doth act by his judges here, otherwife he might be a judge and party. And to the objection, "Whether the commons fhould "by a declaration direct who "fhould not be fued;" that we muft fuppofe they have a general jurifdiction of privileges, and contempts, and rights, as well as other courts: That this commitment was not for a trial, but as upon an adjudication, and as a punishment. That, when they came to a point of jurifdiction, they must confider it by ufage: That it is next to impoffible for the courts of Weftminter-hall to judge of the privileges of the house of commons, who have not accefs to their rolls, where only the privileges of that house are to be fen; and therefore it was very unreasonable to put judges upon the inquiry. That if this court had a jurifdi&tion over the commitments of the commons, they should have it alfo over those of the lords: Concluding, that they were a great court, but that neither their ancestors nor they ever yet knew it fo great as this would make it. Judge Powel concurred in this opinion, alledging, that he could not think they could be judges of this return, because the prifoners were committed by another law than this court proceeded by; and that to commit by one law, and difcharge by another, would introduce diforder: That as the ecclefiaftical, admiralty, and martial courts, and the house of peers proceed by their own rules, fo the house of commons proceed by their own rules; this court can meddle with their privileges in fome cafes, but not fo as to contradict or oppose them: And that he 1704-5. "nion, that her granting the writs of error, mentioned " in their addrefs, was against their privileges, of which "fhe would always be as tender, as of her own prerogative: "And therefore they might depend, fhe would not do any "thing to give them any juft occafion of complaint. But "this matter, relating to the course of judicial proceedings, "being of the highest importance, the thought it neceffary to weigh and confider very carefully, what might be pro་ per for her to do, in a thing of fo great concern." This anfwer was thought fo cold, that no thanks were returned for it; tho' a well compofed houfe of commons would certainly have thanked he did not know how the houfe of commons could have a power of judging, and not of punishing. That this court can correct exceffes of all inferior courts, but not of the parliament, which is fuperior. That, fuppofing the lords would intermeddle with freeholds, though, perhaps, they are not lefs valuable than their privileges, yet this court could not prohibit them. That he believed it as customary to make commitments during pleasure as otherwise. That, if we had long parliament as formerly, then perhaps it would have been hard. That bondage was fo much loft in England, that he believed the council had almost forgot how to apply that argument. That he did not know how excess of jurifdiction in either house can be good. If it happens, it must be determined by conference between themfelves. That if it should be fuppofed, that both should infift, and the commons should do any thing unreasonable, fure then the people of England would not chufe them again: And, if the lords fhould infift upon unreasonable privileges, then the people of England, he believed, would find out a way to chufe fuch an house, or use fuch methods, as would rectify and oblige to a fubmiffion. These three judges having thus declared their fentiments, "That the "prifoners ought to be remand"ed," the lord chief juftice Holt delivered his opinion, That they ought to be difcharged. I am fenfible, faid he, of the great difadvantage I lie under, because eleven of the judges are against my opi⚫nion. The cafe being of moment and concern, I did defire to confer with them, be⚫fore I delivered my thoughts. And it is a fecond difadvantage, that I have so great an efteem for their fentiments, that I would willingly refign my opinion to theirs. But then I lie under another, which is to encounter an opinion and judgment of the ⚫houfe of lords. I must confess, the commons of England are 'intrufted with, and are very ⚫ zealous for our liberties; ' and therefore I would think it a misfortune to lie under their difpleasure. Yet there is ⚫ another thing, which lies upon me, which, at all events, I am to take care of, and that is a good confcience. I am upon thanked her for that tender regard to law and juftice. The 1704-5fame day the answer was reported by Mr. fecretary Hedges, the commons proceeded to carry their refentments to greater extremities, and having continued fitting till the evening, voted, "That Mr. Francis Page, Mr. James Montague, "Mr. Nicholas Lechmere, and Mr. Alexander Denton, in pleading upon the return of the Habeas Corpus, on be"half of the five prifoners committed by this house, were "guilty of a breach of privilege ;" and ordered them to be taken into cuftody. As they were apprehenfive, left the queen fhould grant writs of error, whereby the five Ailfbury men might be discharged from their imprisonment, they upon my oath to judge impartially and juftly. I do not think this fuch an imprisonment, that the freemen and fubjects of England are to be bound by; and it will affect all the kingdom, if, by any ⚫ declaration or prohibition 'made by the house of commons, they are reftrain'd from bringing a lawful action. Neither of the houses of parliament, feparately or jointly, have any power to dilpose of the liberty or property of the fubject. It must be, with the queen added. This is the 'conftitution of the English ' government. It is faid in the return, that the prifoners are guilty of a breach of pri'vilege for bringing an action. I must therefore declare my ⚫ opinion, that commencing a fuit is no breach of privilege, tho' it be against a member ⚫ himself, so he be not affected ⚫ in his perfon or lands. The < fecond crime mentioned in the ⚫ commitment and return is profecuting. What is meant thereby feems not to be fo clear, because profecuting may be taken feveral ways, alfo as entering of a continuance, ' which cannot be faid to be ⚫ that |