1704-5. alfo ordered them to be removed from Newgate, and taken into the cuftody of their ferjeant at arms; which order was executed at midnight, with fuch circumftances of feverity and terror, as have been feldom exercised towards the great that ever privilege did extend fo far, as to exclude or debar any man from bringing any action, but especially where ⚫ there is just cause. This cafe has undergone a great and high judgment above upon 'the queen's writ of error. My 'brother Powis fays, that he • does not know, that this is the fame cafe with that of Ashby and White. But if he will look upon the return, he will foon be fatisfied, that it is. Another part of the return fays, That the profecution was contrary to the declaration, and in breach, &c. I do not well know, what is meant by a profecution contrary to a declaration : But fuppofe there was a declaration. I much queftion, if that declaration will make that a breach of 'privilege, which was not fo before. There is no precedent for it; and, if any man can ⚫ bring fuch a precedent, it will go a great way with me. Privilege is not unlimited, but • established by the rules of law. If a member break the peace, he must find fureties; or, if he ⚫ commit high treafon or felony, ་ fitting the house, he must anfwer. If the declaration does claim a privilege. and fays it 6 eft degree; and nothing but an act of parliament can make a man's perfon subject to imprifonment, but where originally he was fo fubject. The reafon why judges do not give their opinions to the lords a'bout their privileges is, be'caufe it is lex parliamenti; and the lords themfelves being always there, are prefumed to know their privilege best themselves. But whenever the question is about privilege in 'Westminster-Hall, we must judge of it according as it appears to us, and according to the law of the land. Suppose in this cafe the house of com'mons had not interpofed; the plaintiffs had gone on, and the defendants had pleaded the whole matter of the privilege fpecially, and the plaintiffs had 'demurred, we then fhould have judged of it, because it 'would have been a plea to the jurisdiction of the court. All appears upon record now be'fore the court, and therefore we are to judge of it as much as if it had been pleaded. The parliament-law of privilege is lex terræ, as much as any law ufed in Westminster-Hall, and my lord Clarendon gives us an account of privilege in the first is fo; yet, if it was not fo be-volume of his hiftory, p. 310, 311, 312. If it was privilege in the houfe before, then how comes it, that Ashby was not 'committed, who was the ringleader, but is ftill at liberty? Another obfervation upon this "return eft offenders. These were fuch ftrange and unheard-of pro- 1704-5. ceedings, that by them the minds of all people were much alienated from the house of commons. But the prifoners were under fuch management, and fo well fupported, that they would not fubmit, nor afk pardon of the house. It was generally believed, that they were fupplied and managed by the lord Wharton. They petitioned the house of lords for relief, who refolved to proceed in the matter by fure and regular steps. They first came to the following general re- Feb. 27. folutions: 1. That neither house of parliament has any 66 power, by any vote or declaration, to create to them"felves any new privilege, that is not warranted by the "known laws and cuftoms of parliament. 2. That every "freeman of England, who apprehends himself to be in jured, has a right to feek redrefs by action at law; and "that the commencing and profecuting an action at com <return is, that they do not fay for a breach, but in breach; ⚫ neither do I fee, how bringing an action at law in one court, is in contempt of another court. This court here can ⚫ hold plea in any action what• foever. The house above 'cannot award process there; ⚫ and then I cannot fee, how a man fuing here can be guilty thereby of a breach of the privileges of that court. These ⚫ words are terrible, and would afrighten men, when faid, In contempt of the privileges of the houfe of commons, be'cause every man is bound to ⚫ maintain them in their lawful ་ common law. As to my lord Shaftsbury's cafe, it was for facts done in the house; and the house may at any time ⚫ commit a man for a contempt in the face of the house; • Whereas the prisoners are committed, not for a breach of privilege or contempt, but becaufe they have brought their actions, which are legal, and fo adjudged by the lords in the writ of error. To conclude, the cafe of the lord Banbury is confiderable with me: He petitioned the house of lords to fit, and alfo to have the king's leave. The lords determined he was not a lord; yet when he was brought upon an indictment, by the name of Charles Knowles, Efq, he here plead⚫ed and infifted, that he was 6 a peer; which plea was allowed, and he was not tried." But notwithstanding the chief juftice's opinion, the pri foners were remanded. 1704-5. "mon law against any perfon (not intitled to privilege of "parliament) is no breach of the privilege of parliament. << 3. That the houfe of commons, in committing to New"gate, Daniel Horne, Henry Bafs, John Paton, junior, "John Paty, and John Oviat, for commencing and profecuting an action at the common law, against the con"ftables of Ailfbury, for not allowing their votes in election of members to ferve in parliament, upon pretence, "that their fo doing was contrary to a declaration, a con"tempt of the jurifdiction, and a breach of the privilege Feb. 28. of that houfe, have affumed to themselves alone a legifla«tive authority, by pretending to attribute the force of a law to their declaration; have claimed a jurifdiction not warranted by the conftitution, and have affumed a new privilege, to which they can have no title by the laws and cuftoms of parliament, and have thereby, as far as in "them lies, fubjected the rights of Englishmen, and the "freedom of their perfons, to the arbitrary votes of the ehouse of commons. 4. That every Englishman, who is imprisoned by any authority whatsoever, has an undoubted right, by his agents or friends, to apply for and obtain a "writ of Habeas Corpus, in order to procure his liberty by "due courfe of law. 5. That for the house of commons "to cenfure and punish any perfon, for affifting a prisoner "to procure a writ of Habeas Corpus, or by vote, or other wife, to deter men from foliciting, profecuting, or plead"ing upon fuch writ of Habeas Corpus in behalf of such "prifoner, is an attempt of dangerous confequence, a breach "of the many good ftatutes provided for the liberty of the "fubject, and of pernicious example, by denying the ne་ ceflary affiftance to the prifoner, upon a commitment of "the house of commons, which has ever been allowed upon all commitments by any authority whatsoever. And, 6. "That a writ of error is not a writ of Grace, but of "Right, and ought not to be denied to the fubject, when "duly applied for (though at the requeft of either house of parliament) the denial thereof being an obftruction of juftice, contrary to Magna Charta.” Thefe refolutions being delivered to the commons at a conference, they took time to confider of them till the 7th of March, upon which day, at their defire, a fecond conference was held, wherein the commons delivered a long anfwer, in which they set forth, that the right of determining elections was lodged only with them; and that therefore they only could judge who had a right to elect: That they only only were judges of their own privileges, and that the lords 1704-5. could not intermeddle in them. They quoted very copioufly the proceeding in the year 1675, upon an appeal brought against a member of their houfe; and urged, that their prifoners ought only to apply to them for their liberty; and that no motion had ever been made for a writ of error in fuch a cafe. The lords, upon this, defired a free conference, which was held with the commons on the 9th of March; but that it ended without fuccefs, was not furprizing, confidering the temper, with which the commons came to it, and which appeared from the votes they made the day before, after they had agreed to the free conference. For, upon information, that their ferjeant at arms had been ferved with two writs of Habeas Corpus, returnable before the lord keeper, in behalf of Mr. Montague and Mr. Denton, two of the gentlemen, who had been of council for the five prifoners, they came to thefe refolutions, That no commoner of England, com"mitted by the houfe of commons for breach of privilege, "or contempt of that house, ought to be by any writ of "Habeas Corpus made to appear in any other place, or be"fore any other judicature, during that feffion of parlia"ment, wherein fuch perfon was fo committed. That the "ferjeant at arms attending that house do make no return, "nor yield any obedience to the faid writs of Habeas Corpus; and, for fuch his refufal, that he have the protec❝tion of the house of commons. And that the lord-keeper "be acquainted with the faid refolutions, to the end that "the faid writs of Habeas Corpus might be fuperfeded, as "contrary to law, and the privilege of the house." Five March 13. days after, the commons ordered the report of the free conference, which was made by Mr. Bromley, to be entered upon their journals; and refolved, "That the proceedings "of the house, in relation to the Ailfbury men committed "by the house for breach of privilege, and the other pro"ceedings of that houfe in that matter, were in maintenance "of the ancient and undoubted rights and privileges of the "commons of England:" And they ordered all the proceedings in relation to the Ailfbury men, the report of the lords journals, and the report of the conferences, and of the free conference, to be printed. The next day, the lords attended the queen with a full reprefentation of the whole thing, wherein having recited the matter of fact relating to this affair, they laid before her, "That the pro"ceedings of the houfe of commons against the Ailfbury 66 men 1704-5. * See 144. 66 men were wholly new and unprecedented. That it is the birth-right of every Englishman, who apprehends himfelf to be injured, to feek for redress in her majesty's "courts of juftice. That if there be any power, that can "controul this right, and can prefcribe when he fhall, and "when he shall not, be allowed the benefit of the laws, "he ceafes to be a freeman, and his liberty and property are precarious. That the crown lays claim to no fuch power, and their lordships were fure the law has trufted "no fuch authority with any fubjects whatsoever." They urged, "That in former times the opinion of the house of commons was very different from what it was at prefent," of which their lordships gave feveral inftances; and they concluded with an humble requeft, "That no importunity "of the house of commons, or any other confideration "whatsoever, might prevail with her majefty to suffer a "ftop to be put to the known courfe of juftice, but that "fhe would be pleased to give effectual orders for the im"mediate iffuing of the writs of error.' This representation was thought fo well drawn, that fome preferred it to thofe of the former feflions; it contained a long and clear deducton of the whole affair with great decency of ftyle, but with many heavy reflections on the house of commons By this time the whole bufinefs of the feffion was brought II. 126. to a conclufion; for the lords, who had the money-bills, would not pafs them till this was ended. The queen, in anfwer to their representation, told them, "That the "fhould have granted the writs of error they defired, but "that finding an abfolute neceffity of putting an immediate "end to this feffion, fhe was fenfible there could have been "no further proceedings upon that matter." This answer being reported to the house of lords, was looked on by them as a clear decifion in their favour, and therefore they ordered, "That the humble thanks of their house be im"mediately prefented to her majefty, for her most gracious "anfwer, in which he had exprefled fo great a regard to "the judgment of their house, fo much compaffion to the "prifoners, and fuch tenderness to the rights of the fubject. The Par About an hour after, the queen came to the house of liament is lords, and, after paffing the bills, ended the feffion with the prorogued following speech to both houses: March 14. My |