The History and Proceedings of the House of Commons: Volume 3, 1695-1706. Originally published by Chandler, London, 1742.
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The Case of Ashby and White.
About the same time, likewise, the great Affair of Ash by and White was depending before the House: A Brief of which Case is as follows:
One Matthew Ash by commenc'd and prosecuted an Action at Common-Law against William White Constable of Aylesbury, a Borough where Sir John Packington was Lord of the Manor, and the Constable of his or his Tenants making, who had refus'd to admit Ashby's Vote at the Election of Burgesses to serve in Parliament; and Ash by (by Direction of my Lord Wharton, and at his Expence) brought this Action against White for having by Contrivance fraudulently and maliciously hinder'd him to give his Vote at the Election for Burgesses for Aylesbury, where Sir John Packington stood Candidate: In this Action a Verdict was found for Ashby in the Country, but Judgment was given against him in the Court of Queen's-Bench, which was revers'd upon a Writ of Error brought in the House of Lords, where he obtain'd Judgment to recover his Damages, and afterwards had Execution upon that Judgment. The five other Inhabitants of Aylesbury, John Paty, John Oviat, John Paton, Henry Bass and Daniel Horn, followed the Example of Ash by, and brought Actions against White and other Aylesbury Constables, in order to recover their Damages.
The Speaker's Speech thereon.
'Upon this Occasion, Mr. Speaker, (Harley) after the Reports were over, told the House, that he thought it to be his Duty to put them in mind of the great Consequence and Importance of this Matter, and that it behoved them to take very great Caution in their Proceedings, not only that the Grounds and Foundation be good, but also that the Method and Manner of treating it, be according to the antient Usage and Custom of Parliament: And to that end he desired the House would give him leave to state this Matter, as it appeared to him, and according to what occurred upon the sudden to his Memory, that the House might take proper Methods upon this Occasion.'
Mr. Speaker then proceeded to give the House an Account of the State of Elections by Custom or Common-Law, and that the great Alteration in point of Elections, was in the Beginning of Henry the IV th's time, since whose Reign the Returns for Parliament have been made by Indenture. That by the Statute of 7 Hen. IV. there is a Method prescribed of Election and Return, and the Occasion he took to be this; Henry the IVth came to the Succession of the Crown by the Deposition of Rich. II. when the Parliament was sitting. That Parliament was continued to Hen. IVth's time: For tho' in the Rolls it was called a new Parliament, and Returns were made, as by the Sheriffs of the Counties, and also by the Boroughs, as if it was a new Parliament; yet it was the same Parliament, for they were the same Men, and there were too few Days between one Parliament and the other, to have a new Election. But Henry IV. having made such an extraordinary Step, he would not leave it as a Precedent to be found out. Afterwards, when Times were a little more settled, in his seventh Year, and that Practice was necessary to be condemned, it was provided, at the great Complaint of the Commons, that it should be done by Indenture, that the same or like Deceit should never be put upon the Kingdom afterwards, and one Part was to be kept below. This continued for about four Years, when there was another Complaint of the Proceeding of Sheriffs, (he said he need not mention the Regulation of forty Shillings a Year, and some other things which are not directly to this Case;) and upon that there was a Penalty put upon the Sheriffs of a hundred Pounds, which he took to be in the eleventh Year; and it was put under the Enquiry of Judges of Assize, and so it stood all that King's Reign, 'till Henry V. and then there was another Law made for Electors and Elected, that they should be all resident. Some of the Law-Books give a pretty Construction of it, that tho' there was such a Law, yet the Custom of Parliament was to be the Rule; but' he said he thought it to be a better Construction, that it being then reckoned a Service, and a hard Service, none but the Residents in the Borough were compellable. Thus it continued, till about Henry the VIth's time, and then if the Sheriffs had made a wrong Return, if indicted or prosecuted at the Assizes, there was to be immediate Execution for this hundred Pounds, without any Traverse. Upon this there was a Statute to allow the Sheriff a Traverse for this hundred Pound, and that he should not be liable to it till he was legally convicted; so it stood till about a Year afterwards, that the Parliament thought it necessary to make another Act about 8 Hen. VI. And then there was a great Complaint again of the ill Proceedings of Sheriffs: And the Law was enforced again, and it was declared who should be the Electors; and the Sheriff was made liable to the Penalty of a hundred Pound, and Imprisonment without Bail or Main-Prize, and it was enquirable by the Judges of Assize. Another Statute was made the 10th of Hen. VI which enforceth the Manner of Elections; and so it stood till 23 Hen. VI. when there are two more Statutes, one relating to the Wages of Knights, Citizens and Burgesses, and how they should be levied; another reciting the Statute of Hen. V. and Hen. VI. and it says, that there were not sufficient Penalties on Sheriffs, who, besides that sometimes they sent no Writs to Boroughs, made insufficient Returns, &c: And the Mayors and Bailiffs were guilty of the same; and therefore, over and above the first Penalty of a hundred Pounds, they laid another Penalty a hundred Pounds more, which was to the Plaintiff, with Costs of Suit; and this was to be tried before the Judges of Assize, and at the Courts at Westminster, and at the Sessions; and the Action is to lie either for a Knight, or Burgess, or any other Person that would bring the same; but within a time limited; viz. three Months from the Commencement of the Parliament. Thus Elections stood in point of Law till the modern Alteration, within every body's Memory. And he hoped whatever time Gentlemen took this Matter into Consideration in, they would do it as became the House of Commons, and examine all Particulars, as well as the Judgments of Law, and that they would do what became the House of Commons, and that no body would see the Dignity of the House of Commons impair'd. And however Differences were between them in other things, they would be unanimous in preserving the Rights of the Commons, and of doing it in a right and justifiable Manner: And offered to their Consideration, whether it would not be best to proceed in the old Method, by going into a grand Committee for the Courts of Justice to consider this Matter, and that by taking this Course, they would walk in the Steps of their Predecessors, and avoid many Inconveniencies, which were easily to be foreseen would happen, by taking another Course.'
But it being moved and seconded to consider of the said Reports in a Committee of the whole House, the Question was put, and carried, that the House on Tuesday then next following, would resolve itself into a Committee of the whole House, to consider of the said Reports.
The grand Debate thereon. ; Mr. Brewer.
Accordingly, Jan. 25. Mr. Freeman being in the Chair, Mr. Brewer thus open'd the Debate. 'Sir, we are now in a Committee of the whole House upon the Consideration of the Case of Ashby and White; which I take to be a Matter of the last Consequence to the Privileges of the House of Commons, which I think are dangerously invaded by the Lords Pretence of Judicature upon them. But, as I don't doubt every Gentleman here thinks it his Duty to support and maintain the just Rights and Privileges of this House, as entrusted by those who sent us hither; so we shall do it in such a manner, as will consist with, and maintain a due Correspondence with the Lords I shall open the true State of the Case, with the Judgment given upon it in Westminster-Hall, and some of the Reasons, which, in my Opinion, support that Judgment; and then speak to the Reversal of it by the Lords, (which, with Submission, I take to be a new Attempt of their Lordships, to bring this, and all our Privileges before them in Judgment) which, I believe, neither this, nor any other House of Commons will endure, nor want Will or Power to relieve themselves against such an Usurpation.
'The Plaintiff declares against the Defendants, that whereas, on the 26th Day of December, in the 12th Year of King William the third, a Writ issued to the Sheriff of Bucks, commanding him to cause to be elected two Burgesses for Aylesbury; the Sheriff directed his Precept accordingly to the Constables, to whom it belonged to execute that Precept; and the Burgesses being assembled, and the Plaintiff duly qualified to give his Vote, he offered to give it for Sir Thomas Lee and Mr. Mayne; but the Defendants, falsly and maliciously intending to defeat him of that Privilege, did refuse to receive it; which he lays to his Damage, and Issue being joined, that Cause was tried at the Assizes, and alverdict for the Plaintiff, and 5 l. Damages.
'The Fact being thus tried, the Matter in hand (that is to say, whether this Action is maintainable by the Rules of Law or not) was often argued by Council learned at the Bar, and afterwards considered by the Judges in the Queen's-Bench; and upon their mature Consideration, Judgment was given for the Defendants, that is, that the Plaintiff had no good Cause of Action.
'Now I understand the chief Reason was, for that the Right of voting in such Cases hath ever been, and ought to be cognizable and determinable by the House of Commons, and not elsewhere; for, by the Law and Usage of Parliament, the House of Commons have heard and determined the Right of their own Elections, and consequently and necessarily the Right of the Electors to vote; and for this purpose, at the opening of all Parliaments, a Committee of Elections is nominated of Members of our own, to hear and determine of such Right of Elections, to whom Petitions (after presented to the House) are referred; and if any Elector had been refused his Vote in the Country, he is, notwithstanding, allowed his Vote here, in case he had Right; and it shall avail the Candidate as much as if the Vote had been received below: and the Committee, after Judgment upon the Case, report to the House all the special Matter, and their Resolutions; where the whole Matter may be afresh debated, and the House agree or disagree with the Committee, as shall appear reasonable. So that this Determination and Method of Trial hath two Digestions, and more likely to be well founded than that of a common Jury, who we know are made by Under-Sheriffs, and often of Persons so corrupted or ignorant, that new Trials are often granted by the Judges. But it may be objected, that no single Petitioner will be received by the House: In answer to this, I say he may; and I have known Petitions touching Elections preferred by very few Persons, and by the same Reason may by one: I am sure we have no Order of the House against it; and if Gentlemen object, that no single Petition of this nature was ever received, if they will shew me when it was offered, I will shew them when it was received; I believe they cannot shew me it was ever refused. But I would ask if they can shew me that such an Election as this was ever brought against the Officer, as in this Case. I am sure they cannot, and which, in our Law, is allowed a good Argument, that no Action lies; especially it being a Case which cannot be presumed, but may happen very often, almost in every Election: And I believe there never was a Parliament called but frequent Occasions might have been taken for such an Action, and better founded than this of the Plaintiff's, who was a poor Hostler, and removed from that Parish by the Order of two Justices, as being likely to become chargeable. But it seems our Ancestors reposed a Confidence in their Representatives to have right done them in such Case: They sought not Relief from common Juries. And what is now done by this Attempt ? Why, the Judges, upon their Oaths say, that they have no Cognizance of the Cause; but notwithstanding, the Lords say they have no Cognizance, and reverse that Judgment; and the Consequence of that is, the Lords will judge of this our undoubted Privilege, never 'till now drawn into question; and by that Reason and Law, the Lords may sit in judgment upon all other our Privileges, and thereby we become depending upon them; which some without doors, I find, are willing to submit to: for that they say, where one is deprived of his Right he ought to have Damages, which the House of Commons cannot give. I allow, where one is injured he shall have Relief, by our Law, in one Place or other; but we have not one Shop to cure all Distempers. The Queen's-Bench relieves chiefly in Matters criminal; the Common-Pleas in civil Pleas between Party and Party; the Exchequer in Matters of Revenue; Chancery in Cases of Fraud; and in the Case in question, Relief may be had (as said before) in the House of Commons, by Law and Usage of Parliament, which all Lawyers know, is a very considerable, known and approved Part of the Laws of England. And tho no Damages are usually given here, yet the Officer, for Misbehaviour, and arbitrarily refusing Votes who had Right, may be, and has been punished, by the Power and Authority of the House, and even at Common-Law; as when an Alderman is refused by the Mayor, or other Person who ought to admit him, the Remedy is by Mandamus, which tho' it is chargeable to the Person injured, yet I do not know any Damages are given him, otherwise than that the Party injured is admitted; which is a Relief, the Alderman having what he complained for: And so the Elector; his Vote is allowed as good as if the Constable had took it. And, by the way, give me leave to observe how small a Relief the new devised Remedy, by Damages, is: I dare affirm and demonstrate, that the Plaintiff, in the Case in question, is above 100 l. out of pocket, more than the Costs and Damages recovered, which I take to be infælix Victoria. But if Gentlemen say, the poor Hostler could not expend so much, I believe so too, but if at the Expence of any great Man, I think it less justifiable, to make a Tool of that poor Fellow, perhaps in order to enlarge a Jurisdiction.
'I must confess I take the Case of the elected to be much stronger than that of the Electors; and yet, in such Cases, Relief at Common-Law was always denied, as in the Case of Sir Samuel Barnardiston and Soame, there the Sheriff made a double Return: and in the Case of Mr Onslow (fn. 1), a false Return; and the Persons injured by those Returns were put to very great Charges, and kept long from their Seats in the House, and yet, at Common-Law could never obtain a Relief. The Judges were of Opinion (as they now are in the Case of the Elector) that it was a Matter of parliamentary Cognizance, of which they were not competent Judges. And should we now admit this Matter to be determined by the Courts below, what great Confusion and Inconvenience would follow? I presume no body will pretend to exclude the Jurisdiction of the House of Commons, in this Case; and yet, if they judge one way, and the Courts below another, and neither have Power to supersede or reverse the Determination of the other, under what Uncertainty will the Officers and all Parties concerned lie? Whereas, in other Cases, where one Court errs, a superior Court reverses; but here, both Adjudications shall stand together, though inconsistent the one with the other.
'But 'tis said, in this Case, the Action lies, because the Defendant refused the Plaintiff's Vote, Maliciose & falso: I take those to be Words of course, and no Evidence of that is given to the Jury.
'Sir, to conclude, the House lately passed a Resolution, that no Lords should intermeddle at any of our Elections: But if this be allowed as Law, they may at the last, judge and make (for aught I know) all our Elections. But for my part, I am for continuing the Possession of this, and all our other just Privileges, as derived down to us from our Predecessors, who ever enjoyed and exercised them as now we should; and I hope before we rise we shall think of some Remedies, and not lie wholly under the Power or Mercy of the Lords.'
Sir Thomas Powis.
'Sir Thomas Powis. Mr. Freeman, I believe I should hardly have rose up in this Matter, but that I think it more particularly my Duty to speak to this thing, if it were possible, than any other; for in truth, I have had a more particular Opportunity of knowing the Nature of this Case, and the Proceedings in it, and what the Consequences of it will be, than many others have had.
'I must acquaint you I was of Council in this Cause, in the House of Peers, upon the Writ of Error with White, and the other Constables that were prosecuted in this Action, and did to my power defend what I took to be the Rights and Privileges of this House.
'I would stand right in the Opinion of every body; for what I did there for my Client, in the Course of my Profession, I do not think my self obliged to maintain here: for then it was my Duty to do my best for him as his Council, but now he hath done with me, and I have done with him, in this Place.
'It hath been to the great honour of some Judges in Westminster-Hall, who have argued in Cases below, at the Bar, and have been brought on the Bench before the Cause hath been determined, that they have argued at the Bar one way, and when upon the Bench, have given Judgment another way, against their very Clients, and thereby have done their duty in both Places.
'Now, when I have said this, I hope I do stand fair and clear, that I do now speak as a Member of the House of Commons.
'You are upon a Point which I wish had never happened, for there is nothing I enter upon with greater Reluctancy than what looks like a Dispute with the other House; for no Man pays a greater honour to the House of Peers, and to every Peer there, than I do; however, as I am instituted, I shall endeavour to maintain the Rights of this House. And I do say, if the Peers of England can determine all our Properties at Law, upon Writs of Error, and all our Rights in Equity upon Appeals; and if they can determine all our Elections in Consequence of this Action (as I am of Opinion they may, if this Action prevails) they have a greater Power than ever that House had in the Days of their noble Ancestors, when they were in the greatest Grandeur.
'I will shew you what will be the ill Consequences, and I think it very fit for you to take this Matter into Consideration, if there be any way to come at it. First, I cannot deny but, generally speaking, a Man has Right to bring his Action at Law; but then I hope, though a Man hath a Right to bring an Action, yet he cannot bring it in detriment to any other Man's Privilege; for if a Member of this House be sued in time of Privilege, though a Person have a Right to such Action, yet he cannot prosecute it in breach of the Privilege of such Person, much less can a Man prosecute an Action in Breach of the Privilege of this House And suppose this should come before the Lords in question, by Writ of Error, and they should be in Possession of the Cause, sure every Determination of the Lords, upon a Writ of Error, is not without more ado to be conclusive to the Commons in their Rights and Privileges, so as that they may not take an alarm, and be concerned if all their Privileges are about to be taken from them. Suppose any Member of this House, (as I think by the Privileges of this House he may,) should, in this House, have just Occasion to take notice of some great Misdemeanor in any great Officer of the Crown, and should assert Matters highly intrenching on the Honour of a Peer of England; and suppose, when the Parliament was up, the Peer should bring his Action of Scandalum Magnatum against the Member, at Law, for Words that he had spoken here, and lay them as spoken elsewhere (for in a transitory Action he may) and he should justify that they were spoken in the House of Commons, where, by the Privileges of the House, Freedom of Speech is allowed; and suppose Judgment in that Case (as in this it was) should be given against the Plaintiff, and afterwards this, by a Writ of Error, should be brought before the Peers, and they should reverse this Judgment, and give Judgment for the Plaintiff; can any thing be more destructive to the Constitution of Parliament, if such a Case as this should happen? And must the Commons in such Case sit down under it?
'Suppose any Man should presume to arrest any Member as he was going into the House of Commons, nay, the Speaker himself, and afterwards he is committed by order of the House, and the Person committed should bring his Action for taking him into Custody, and the Serjeant who took him into Custody should plead this matter, and the Judges give Judgment for him as they did for the Defendants in this Case, and by Writ of Error, it being brought into the House of Peers, they should reverse this Judgment, and give the Plaintiff his Damages; will any one say, we could not take notice of this ? Would it not destroy all our Rights and Privileges ?
'So no doubt in this Case, though they have gone by way of Action at Law, and Judgment in Westminster-Hall, and Writ of Error in the House of Peers, it cannot be said, but, if it concerns our Rights, we may take notice of it. In the Case of Sir John Elliot, &c. the Commons declared the Judgment, 5 Car. I. illegal, and against the Privilege of Parliament.
'It is my poor Opinion, it is our Right (and I think no body can doubt it,) for we are in possession of it, to determine our own Elections; and I would be glad to be acquainted when first we began to hear and determine our own Elections: I believe no body will say with certainty when we did not.
'I know we have a turbulent Author, who generally affected to be in the wrong, and, though a Member of this House, made it his Business to write against their Privileges, and was always hunting among the Records of the Tower, from whence he brought away a great deal of Dirt with him, and yet could never pretend or produce more than two Instances, where the Commons resorted to any other place for the settling the Right of their Elections: The Man I mean, is Mr. Prynn; he takes Occasion to do it from what is said by my Lord Chief Justice Coke, (who, with your Favour, I must take notice so far, as to say he was not only a very great Man in our Profession, but had been Speaker of the House of Commons in his time) and he, in his 1 Inst. fol. 116. and 4 Inst. 1 cap. fol. 14, 15, and 23. asserts, That the Law of Parliament is as much part of the Law of the Kingdom, as any other, and indeed the highest: He calls it Lex & Consuetudo Parliamenti; and says, this is a Law that each House hath possession of, and judgeth by, and each House is a House of Judicature; and he puts upon this a great many Instances, and some of them may seem strange to those who have run upon the Commons of late. He tells you of a Case 8 Eliz. (at that time Onslow was Speaker, and it is in fol 19, of the Book of the House of Commons of that Year) one Long was returned a Member for Westbury; and it being complained of that he came into the House by undue Practices, it was enquired into by the House of Commons, and found that he had given four Pounds to the Mayor of Westbury; and they having examined and tried this matter, did not only expel Long, but they fined and imprisoned the Mayor of Westbury, Secundum Legem & Consuctudinem Parliamenti. Mr. Prynn, the Author I mentioned, supposeth there was a time when the Commons used to apply to the King, in case wrong was done in the matter of their Elections; and in his Comment on the 4 Instit. 31. goes back to the 12 Ed. II. there the King was pleased by Commission to appoint several Persons to hear the matter of an Election. He pretends too, another Instance, and that is in Henry the VIth's time, in the Case of Huntington; and there was a Petition to, and a Commission from the King in like manner. The latest of these Instances is above two hundred Years ago, and neither of them make any thing for a power in the Lords to determine the Elections of the Commons; but, on the contrary, rather for a power to be delegated by the King; and the Instances are but two. Now, I say, Sir, we are, and have been in possession of this Right for a very great length of time, and have it confirm'd to us by Act of Parliament; for the late Act of 7 and 8 of King William, hath, in effect, declared, that the determination of the Right of the Electors is in the House of Commons: for it says, that the Sheriffs and Officers of all sorts, shall follow the last Determination of the House of Commons, as their Rule and Guide in such Cases. And surely nothing is more absurd, than to say, that this House shall Examine, Try, and Determine who are elected; and yet Westminster-Hall, and the Lords, shall Examine and Determine the Right of the Electors. How can any one examine the Election, but the first step he takes must be to consider and determine who are the Electors? And the determining the one, is determining the other.
'I would trouble you a little with the Reasons they give why this Action should lie. It hath been said, and I think it is true, for the Honour of England, and I believe it hardly can be found to fail, that where a Man hath a right, and a wrong done him, he is somewhere to have a Remedy; but now let us see the Application of this Rule. Are they not by the same Law that settles the right, and declares the wrong, to enquire where the Remedy is to be had? For, though you have a Remedy, you mistake that which is the proper Remedy; and the same Law that settles the right, and declares the wrong, gives the Remedy; you must therefore go to the place where the Law directs, for your Remedy, not where yourself would desire the Remedy. Therefore says my Lord Coke, in his Preface to his 4 Instit. and likewise fol. 14, and 15. we have several Jurisdictions, some Ecclesiastical, some Temporal, &c. some governed by one Law, and some by another; and all must have their Rules and Bounds, which must be observed. If your Right be Ecclesiastical, as for Instance, before the Statute of Tithes, could you in Westminster-Hall have brought your Action? Or if Issue had been joined in such an Action, and the Parties had gone to Trial, will any body say but that the Judges must have arrested Judgment, and said that 'twas out of their Jurisdiction? If a Lord of a Manor should refuse to admit a Man, to whom a Surrender is made of a Copyhold Estate, the Lord has done him wrong, and damage too; but yet he cannot bring his Action at Law for it, for it is an equitable Right, and he must go to a Court of Equity for his Remedy; and so I could put a thousand Instances, but I will not spend your time. So that I say, it is not enough to say you have a Right, and must have a Remedy, and therefore you may bring your Action at the common Law; but you must seek it in a proper Place, though perhaps Costs and Damages, and a Trial by a Jury, may be more desirable to the Party.
'Now, in this Case I would know, whether this is not a Matter of parliamentary Jurisdiction, and also a parliamentary Right? Is any thing more plain? He that hath Right to vote, hath a Right to send a Person to represent him, and sit in Parliament; therefore it is a parliamentary Right; where then must be your Remedy? In the House of Commons, where you have a Right to send a Person to sit and represent you; there you may complain, I was denied my Vote, or misused upon the Election. This, by the Law of Parliament, shall be examined here, and for this purpose you constantly appoint a standing Committee of Elections. Indeed I cannot but wonder at the bringing of this new-invented Action; for if there be any thing certain in the common Law, it is this, that where you claim a Right to any thing, it must be founded upon common Usage in that Case, or in some Case that carries the same Reason, and is just like it; for the common Law, generally speaking, is nothing else but common Usage. Now let us see for the Usage in this Case, and whether there has been any thing like this Action before. Say they, how do you know but such Actions have been brought before? I do not see that there can be a stronger negative Proof in any other Case than in this; for we have had Parliaments, as appears by our Statutes in print, for five hundred Years, and we have had Parliaments in every Reign since, and in several Reigns a great many Parliaments: And let us consider, whether this Case would not have happened frequently in five hundred Years, in so many Elections in Counties, Boroughs, and Cities where there are such an infinite number of Electors? And therefore this Case must frequently have happened if such an Action lay at Law. If it be asked, how do I know that such an Action hath not been brought before; I answer, it is wonderfully plain there never was such an Action brought before; for as we have our Acts of Parliament in Print, so we have faithful Reports of all our Law-Cases, which we call the Year-Books, and which are Memorials of all Cases so long back as from Ed. II's time, that is 400 Years, followed by a Series of Reports till this time, and are now grown so numerous, that they become a Burden: And I will desire any Gentleman of the Law here, or in England, to shew me the footsteps of any such Action as this, or of this kind till now, ever brought before. We have always said, our Fore-Fathers were wiser Men, and greater Lawyers than we are; and so they were: but such an Action as this never entered their thoughts.
'But it may be said, how does it appear that there was Occasion for these kind of Actions formerly, for Men heretofore were unwilling to serve in Parliament, they were hired, and almost prest to it, and it was hard to get Men to come up? I answer, It was so far otherwise for many Years past, that so early as Henry VI's time, there were great Contests about Elections, and the Sheriffs in those days were apt to do wrong, as appears by 7 H. IV. cap. 15. And therefore 11 H. IV. cap. 1. there was imposed one hundred Pounds Penalty to the King, on the Sheriff that did not do his duty, according as the Statute does direct; So that it does appear there was Occasion for these Actions, if they had lain by Law; and yet you will find that never, till 23 H. VI. did it enter into the thoughts of any Man, that an Action at common Law could be brought for an Injury in an Election; and therefore that Act recites, that there was not before that time, a sufficient Remedy for the Party grieved, and therefore gives a hundred Pounds to the Party, and Costs, if a Knight, and forty Pounds if a Citizen or Burgess, and that by a Law made on purpose to help the Party to an Action, where there was no such Remedy before. Thus it rested till the famous Case between Nevill and Strode, in 2 Siderfin, fol. 168. (in that time they sent five Knights of the Shire out of Berkshire.) Mr. Nevill brought his Action against Strode the Sheriff; and he alledged that he being one of the five chosen for that County, Strode had maliciously and falsely refused to return him, &c. and the Jury gave him fifteen hundred Pounds Damages. This Action made a great Noise, and the Judges looked upon it as a great Novelty, and thought fit to consult the Parliament in it; (fn. 2) (they used to consult the Parliament in former days, in matters relating to the Parliament,) and the Judges heretofore, when they were asked their Opinion in difficult matters relating to the Parliament, would say, this is above us, and therefore to be decided by Parliament. And this Case being referred to the Parliament, they looked upon it as so extraordinary an Attempt, that though Mr. Nevill had a Verdict for fifteen hundred Pound Damages, yet he never got a Farthing of the Money, or any Benefit by the Verdict: Sed ibi dormivit.
'After this, came the great Cause, that hath been mentioned, of Soame and Barnardiston; and methinks this deserves very much our Consideration, and how far the Determination of the House of Peers ought to be a Rule in this very Case. That Cause set forth with great Prospect of Success; Sir Samuel Harnardiston, in that Case, did not slight the Determination of the House of Commons, but first petitioned this House as the proper place to determine his Right, and had it decided for him, that he was the Person duly elected, and the other Return was taken off the File; and then he brought his Action at common Law, and set forth this whole matter, and that the Sheriff falsly and maliciously returned another with him, whereby he was kept out of his Right, &c. a long time, and put to very great Expence and Costs. This came to be tried at the Bar of the King'sBench, and there was a Verdict given for Sir Samuel Bar nardiston for eight hundred Pounds. This was looked upon as a great Case, and my Lord Chief-Justice Hale bid all Persons about him take notice, that they did not determine the Right of the Election, for the Judgment in that Case belonged to the Parliament; but said, since the House of Commons had determined the Right, he thought they might follow their Judgment to repair him in Damages, and so gave Judgment for the Damages the Jury had given the Plaintiff.
'This Case was looked upon as so improper for the Common Law, that upon a Writ of Error brought into the Exchequer-Chamber, that Judgment was reversed, because the common Law could not any way intermeddle with Elections to Parliament, further than was directed by Act of Parliament. It might have been said, and I know it was said, that the Reversal of this Judgment, was by an extraordinary high Hand: And therefore upon the Revolution, in the very beginning of King William's Reign, Sir Samuel Barnardiston brought a Writ of Error in Parliament, complaining that in the Exchequer-Chamber, they had reversed this Judgment unjustly, and went upon these Reasons, as may be observed from the Journal of the House of Lords, which were the Reasons of some very few protesting Lords.
'First, Because it was a denying Sir Samuel Barnardiston the Benefit of the Law, which gives Relief to all Wrongs and Injuries; and is a very great Damage to the Plaintiff, and therefore he ought to be repaired.
'Secondly, Say they, if it should be allowed that Sheriffs and Bailiffs may make false Returns, and no Remedy but a hundred Pounds Forfeiture, it would be of dangerous Consequence, and might tend to the packing of a House of Commons, which may overturn the whole Constitution. But the Peers then did not think these Reasons sufficient for this new Action at common Law, and accordingly the House of Peers affirmed the Judgment of Reversal in the Exchequer-Chamber, and said, the Judgment was well reversed, for that no such Action did lie at the Common-Law, though the Injury done did tend to the Plaintiff's Damage; and all other Mischiefs which are now suggested, were insisted on; and thus it stands to this day. And yet now it is said upon the same Reasons, the Action does lie for this Person, though he be only an Elector, and must receive much less damage than the Person elected; and there is no one Reason for the Elector, but holds more strongly for the elected. The elected can't maintain an Action, and yet now it is clear that one of the Electors may, though he can have no substantial damage; for if a Man comes and gives his Vote, (as here in this Case) 'tis not in the power of the Officer to hinder him of the Benefit of it; for his Vote will be as well given as if the Officer had put it down, and this with respect both to the Person who gave the Vote, and him for whom he voted; and so really it is no substantial damage to any Man.
'The next thing I shall mention to you, is another Case of Mr. Onslow: He brought his Action against the Sheriff of Surrey for making such a Return upon him, (I believe I have the Gentleman in my Eye who brought that Action) he declared in the same manner, that it was done falsely and maliciously, and had a Trial and a Verdict; and yet notwithstanding, the Court of Common-Pleas, (being governed by Sir Samuel Barnardiston's Case) did unanimously, 33 Car. II. say, we must not presume to determine the Merits of Elections, or Returns, there is a proper Jurisdiction for it; and they gave Judgment against the Action, and I think he hath acquiesced in it ever since. I am sure I have heard no more of it; the Reasons given by the Court, appear in the Report of the Case in 3 Levinz, fol. 29, and 30. and are worth the reading.
'There was a Case a Year ago between Prideaux and Morris, in the County of Cornwall. Mr. Stratford was returned, and Mr. Prideaux brought an Action in the Common-Pleas, in the time of King William, against the Viander, for making a false Return against him to his great damage, and laid it with all Aggravation. This went to a Trial in Cornwall, and there was a special Verdict found; and the question was, whether this Action would lie before the Commons had determined the Right of Election? And the whole Court unanimously gave Judgment, that the Action could not be brought, till the matter had been first brought before the House of Commons, and they had determined the Right.
'Now here is a total silence in all Books of the Law, that any such Action as this is doth lie: Here are the Acts of H. 6. and King William, which provide Remedies at Law, because there was no other Provision before. Here are not only these solemn Judgments in Westminster-Hall, but the Judgment of the House of Peers, in the Case most like to this of any that can be thought of, that no such Action doth lie: And yet I cannot tell how, there are, abroad, Persons that endeavour to run upon the House of Commons, and use them ill on all Occasions, and are zealous for this Cause, which seems to be set on foot to undermine all our Elections, and bring them to another Judicature.
'Now see the Consequence: No Man ought to have a foot against him, two Judgments at once in two several Courts; whereby one may punish him at the same time for doing a thing, and the other for not doing it. I believe such Proceedings would be looked upon as barbarous even in Turkey, and yet that will be just our case: A Gentleman petitions the House of Commons, and says, the Right is in such a Set, or Sort of Men; as for Example, in all the Freemen, or free Burgesses; and that, according to that way of Election, he was chosen, and not the Person that is returned: and this is determined by the Committee of Elections, and afterwards by this House against him that petitioned. This Man goes immediately and brings an Action in Westminster-Hall against the Officer that returned the other; nay, every one of these Persons that he affirmed the Right of Election to be in, bring their Actions, and it comes into Westminster-Hall to be tried, and the Jury find the Right to be in these Men, as he has alledged, contrary to the Determination of the House of Commons, and Judgment is given against the Officer in every one of these Actions, for the Men you have determined the Right not to be in. You cannot set one of these Judgments against the other; I cannot defend my self in Westminster-Hall, by saying, the House of Commons have determined that these Men, who sue me, have no Right to vote. There is nothing like this in the World; two independent Courts cannot controul one another, but both may go on together in the same Cause; and both having a Right to judge, one judges one way, and the other the other, and the Officer is crucified between them.
'Let it be consider'd again, that at this rate none but Knaves, or Beggars, will be Mayors, or Bailiffs in an Election-Year: For suppose as at Westminster, where I think there are ten thousand Electors: Or suppose it be as in some Towns near Wales, for one of which I have the Honour to serve, where the Descendants of every Burgess claim a Right to vote, and by Consequence they will bring it in time almost to all the Sons of Adam; for all the Sons, and all the Daughters Husbands, and all their Descendants claim a Right to vote. Now what a miserable Case must that Officer be in, when Persons shall come from East, West, North and South, and say their Pedigree is so and so, (for they are good at Pedigrees in those Countries,) yet, what a Condition is he in? he is bound to determine whether they have a Vote or not; and tho' he is no Lawyer, or Herald, yet however he is bound to give Judgment one way or another, at the Peril of an Action: And suppose but a hundred Men should bring their Actions against the Officer, what Man can stand a hundred Actions, tho' he be in the right? There are not only these Difficulties in the Case, but there is Revenge: and in popular Elections there are those Heats, and the Voters engage with that Animosity, that the losing Side next day will be ready, perhaps only for Revenge, to send for a Multitude of Writs, and have the Pleasure of ruining the Officer who was against them, tho' he was in the Right; for every one has a Right to bring his Action whose Vote was disallowed, tho' it should be found at last that he had no Right.
'As to the Words falso & malitiose laid in this Declaration, which seem to be a great Ingredient in this Action, I agree, in some Cases where there is a Jurisdiction, these Words may make a great Aggravation of the Offence; but they cannot make a thing unlawful that is lawful, nor give a Jurisdiction where there was none before: For no Man will say, if a Person should bring an Action at CommonLaw for a Legacy, and alledge, that the Executor, tho' he had sufficient Assets, yet he falso & malitiose refused to pay it; that would give a Jurisdiction to the Courts of CommonLaw. These Words are Verba Clericorum, Words of course for the most part. Besides, how dangerous and hazardous would it be for an Officer, tho' ever so innocent, to depend upon these Words; when every body knows that Falsity and Malice rest in the Mind, they are in the Imagination, and the Jury that are to try this Action, are at liberty to judge with what Mind the Officer acted; that would be the hardest thing in the World for an Officer to undergo in every Action. It would be enough for the Jury to presume it was done maliciously, (seeing few Mayors, or Bailiffs, but have their Inclinations, and give their Votes themselves for their Friends,) because the Officer made an Interest for the other Side; and the Consequence of this new-invented Action, if countenanced, will be, that every triennial Parliament will bring a triennial Harvest to Westminster-Hall. I speak against my own private Interest, if that was to be considered. Elections, without Actions, keep up Animosities too long, so that they are hardly healed in three Years time; but these Actions will help to vex and worry Corporations from three Years to three Years, and Mayors and Bailiffs will be the most miserable Men in the Kingdom, and ought to run their Country rather than stand a popular Election; whereas the Officer is accountable to you for his Behaviour at the Election.
'This is not a Matter that stands in need of the Aid and Assistance of Westminster-Hall, that they should invent a new Action and Remedy, as if there was a Failure of Justice. Has any one come with a Complaint against any Officer to this House, and they have not been willing to hear it? Have not the Committee a Right to hear and report Matters with respect to the Electors, as well as to the Elected? And have not we known that the Electors, tho' but a small Number of them (as in a late Case of this sorry Town of Aylesbury) about five, I think, of the Electors came and complained, and their Complaints were fully heard. And if any single Elector should come with a Petition, and represent that he was abused by an Officer, or ill-treated by any Mayor, or Bailiff at the Election, I do not think but the House would be ready to do him Justice: And they have a Right so to do, for the Officer is accountable to them for his Behaviour. 'Tis not now only so practised, but always was so; for in the same Treatise of my Lord Coke's, 4th Inst. Fol. 49. he says, that they will make him change his very Return; they will make him raze out the Name of one, and put in the Name of the other. So that they have a Jurisdiction adequate in this Case; and surely if they can hear the Complaint of several Electors, they can hear the Complaint of any one Elector. I would not trouble you with Arguments that may be proper in Westminster-Hall, because we are here upon Matter of our Constitution; but I know no Action more obnoxious to the true Reason of the Common-Law, which abhors Multiplicity of Actions; and a Man shall never have a particular Action, for that is naturally draws on Multiplicity of Actions, and may be reformed in a more compendious Manner. Upon this Reason that famous Case in 5 Rep. called Bolton's Case, is founded: If a Man builds a Dove-House near a common Field, where Men make all their Profit by Plowing and Tillage, and therein keeps a great Number of Pidgeons that is upon his Neighbour's Corn, is not this a great Wrong and Injury to them? And yet no Action lies; for, if one man that is wronged thus may bring his Action, a great many more may do the like, and so there will be infinite Actions: therefore it shall be presented in the Court-Leet, as that Book says. So there is that Case of Williams in the same Book, where the Lord of a Manor had a Chapel for himself and his Tenants to repair to, and to hear Divine-Service, within the Parish of Aldbury: He brought his Action against the Vicar, who was obliged to officiate, for that he had neglected, &c. tho' he had used time out of mind to officiate and had an Allowance for it: Says the Case, if this Action should be allowed, all the Tenants and Servants of the Lord might have the like Action, and so there would be a Multiplicity of Actions, and therefore he shall not have this Action; but, if it had been to have been performed in his own private House or Chapel, he alone might have had an Action. But since it would draw on a great many Actions, which may ruin any Man, therefore the Remedy must be taken in such manner as it is given where there is public Offence. In the Case before us, every Person is chosen pro bono Publico; for tho' he be chosen for a particular Place, he serves for the whole Kingdom; and for that Reason you shall proceed by way of Action, but in such manner as it hath been always used, where the whole thing shall be examined at once, and all determined upon one Petition, wherein all the Parties injured may join instead of a multitude of Actions.
'I shall not propose to you any thing, but hope you will at least come to some Determination that may assert our Right in this Point; that this Door may not be open to bring a new Jurisdiction, to examine and determine whether any of us sit here rightfully or not.
'Tis a standing Order of the House, that no Peer hath a Vote in the Election of a Commoner; but in the next Elections, if this be allowed, every Peer may vote, for they are Freeholders, and many of them Burgesses and Members of Corporations, and they may all come and demand their Votes, and if refused, bring their Actions. These and many more Inconveniencies are obvious, if this Action should be allowed, and I believe it may have a great Effect upon our Constitution. Very much more might yet be said, but I have taken up too much time already.'
Sir John Hawles, (Solicitor-General, Temp. Will. III.)
'Mr. Freeman, we are jealous of our Privileges, and I think we have just reason so to be; but we must take care that that does not carry us too far out of the way. I would not have it taken for granted, that whatsoever is said against the Lords here, tends to assert the Privileges of this House, or that what is said for the Lords here, is against this House. I am as much for the Privileges of the Commons of England as any Man, and I own they have lost a great deal of Power; I think the Commons had a great Power, when the greatest Part, of the Judicature of this Government was their sole Right: Nay, if a Peer had had a Matter of Contest with another Peer, or with a Commoner, and Issue was joined, that Issue was to be tried by Commoners, and not by Peers. 'Tis true, if the Prosecution of a Peer was in a capital Matter at the King's Suit, it was to be tried Part by Commoners and Part by Peers; the Bill of Indictment was to be found by Commoners, but the Issue was to be tried by Peers: But if a Peer was prosecuted in a capital Matter by a Commoner, or Peer, as by an Appeal, the Issue was to be tried by Commoners. I must confess, as to the Lords Jurisdiction in Matters of Equity, the Commons have great reason to be jealous, because, there, all Facts, as well as Law and Equity, come to be tried and judged by the Lords alone.
'Sir, I say, when all Facts were tried, and most of the Officers of Government were chosen by the Freeholders of the County, the Commons were somewhat greater than now they are: when they had the Election of the Sheriffs of the Counties; when they had the Election of what they called Conservators of the Peace, Officers that were the same with our now Justices of the Peace, with this Difference only, those the Commons made, these the Crown makes. The Commons had a great Power when they were to elect their Captains that led them out to War, which heretofore they did, and had a Right to do, till it was taken away from them by the Act that settles the Militia, though I own it was disused many Years before. The making of Sheriffs is now placed in the Crown; we have nothing left now, but Matters of Trials in particular Cases, and even that is so far crampt, that the Jury is returned by an Officer that the Crown puts upon the County.
'But yet I am not for carrying things farther than we have a Right to do; I am for keeping what we have, and for that Reason I am not for encroaching upon the allowed Jurisdiction of the House of Lords; we have always allowed them a Right to hold Plea of Writs of Error. The Parliament in Hen. IVth's time, did declare the Right of Judicature to be in the House of Peers; and I never found any Inconvenience in it, if the Peers kept only to Matters of Law, and left the Facts to be tried by the Commons; nor did I ever know that Right of the Lords questioned till now A great deal hath been said for, and against the Right of bringing this Action; I do not think that that is now the Question: the Question is, Whether a Judgment being given in the King's-Bench, a Writ of Error does not lie in the House of Lords? But whether the Lords did right, in giving that Judgment they have now given in the Case before you, that is another thing. I speak to the Right of holding Plea of this particular Writ of Error; no body hath denied but that they have a Right to hold Plea of a Writ of Error in general, upon a Judgment given in Westminster-hall; but, say they, the Lords ought not to have done it in this particular Case; and several Reasons have been given for it.
'First, Here is the Privilege of the House of Commons in question in the Case: That hath been argued and insisted on, but I confess, that Argument does not influence me. The Lords have held Plea of a Writ of Error, in which the Privilege of the Commons hath been in question, and the Lords have done Right to the Commons in it, particularly in that Matter of the Parliament of 1640, when some were supposed to have done irregular things in the House of Commons, and were prosecuted for it by Information in the King'sBench, and were fined in K. Charles I's time; whereupon a Writ of Error was brought in the House of Lords, and that Judgment reversed in the time of King Charles II. There the Lords did Right to the Commons in the Matter of Privileges of the Commons, for it was for laying Hands upon the Speaker in this House; and I think every body commended what was done in that Matter by the House of Lords, and no body ever said but that they had a Right o to do. Some things are not to be come at otherwise, than by a Writ of Error in the House of Lords; and I believe if you look a little back, there have been Judgments given in Westminster-hall, not only in Matters of, but against the Privilege of the Commons; and these Judgments stand unreversed, though I think they are fit to be reversed, and I know no other Method to do it but by Writ of Error in the House of Lords. I think there is one Judgment upon an Information against the Speaker, for licensing Papers to be printed, which he did by Order of the House.
'There is another Instance of a Person taken into Custody by Order of this House; it was the Case of Mr. Topham Serjeant of this House: The Party brought his Action; the Serjeant pleaded his Warrant, that it was done by Order of the House of Commons, and Judgment was given against him, and this Judgment stands unreversed.
'Now what Method have you to reverse these Judgments, but by Writ of Error? If you think to do it by a Bill in this House, that must likewise pass the House of Lords, and so will be the same thing as a Writ of Error.
'Another thing is said, that this Person was not damnify'd; or if he was, there are such a number of Persons who were then likewise damnify'd, that may bring their Actions, that no body will execute such an Office. I think that Argument ought not to prevail, for at that rate you will allow the Officer not only to be a Judge, but the supreme Judge, and the Parties damnify'd shall be without Relief; he may do what he pleases, and he shall never be questioned afterwards, save in this House, which I will consider by and by. Tis agreed, you may punish an Officer that misbehaves himself in matters of Elections, and that is practised now very much; but at the same time you punish the Officer, the Person damnify'd hath no Satisfaction, though our Law allows Satisfaction, in cases where he that did the wrong shall not be punished, and allows Satisfaction in all cases where a Person is punishable, if another hath received a particular damage.
'A Man is liable to be fined to the King or Queen, that is a Punishment; but if he pays so much to the Party damnify'd, that is Satisfaction. If a Man's Horse breaks into another's Ground, he shall not be punish'd, but the Person damnify'd shall have Satisfaction: But in this Case you allow the Officer shall be punished, but you will not allow the Man injured any Satisfaction for the Damage he received; which cannot be supported by Reason, or by the Authority of any particular Case.
'In all Cases I take it to be true, where a Man is punished for doing another Damage, the Person damnify'd shall have Satisfaction. But that Rule does not hold true in the contrary.
'It is said there are a great many Persons concerned, and if you give every one an Action, there will be no end of these Actions, and therefore none shall have an Action. This is a strange Argument: If a Man injures one, or two Persons, each shall have an Action for their respective Damages; but if he injures an hundred, none of them shall have an Action: as if when a Man is moderately injurious, he shall make Satisfaction; but if he is extravagantly injurious, he shall be scot-free, and make Satisfaction to none. This rests to be made good either by Reason or Authority, which hitherto hath not been done. The Case cited, I own, is true; but you must take it with this difference, if any thing is done which might have been of Damage to a hundred People, but was of Damage to none, none shall bring their Action, though the Criminal shall be punished; but where there is particular Damage done to any Person, an Action will lie for the Damnification of that Person. If a Man digs a Pit, any Man may fall into it, and no Person shall bring an Action for that; but if any Person doth fall into it, and hath particular Damage by it, he shall bring an Action and have Satisfaction. And with Submission, that Argument will not hold, that because a Person might be ruin'd, if he be obliged to make Satisfaction for the wrong he hath done, therefore he shall not make Satisfaction to any particular Person he hath damnify'd.
'It hath been said, admitting it to be so, that the Party ought to have Satisfaction, yet he ought to take his Remedy in a proper Court; as if a Legacy was given, an Action would not lie in the Queen's-Bench for it; which is true But it would have been well if that Gentleman had told us which was the proper Court to give Satisfaction, for the wrong supposed to be done in this Case; if the Queen'sBench be hot the proper Court, what Court is? 'Tis said the House of Commons is a Court, I was always of Opinion it was so: 'Tis a Court of Judicature, my Lord Coke says, and a Court of Record. I wonder, when all this is allowed, it should be said this Court hath not a power to administer an Oath to a Witness; I think that was never deny'd to any other Court whatsoever. Every Court of Record has power to administer an Oath; but though this be a Court of Record, this cannot, it hath not that power. It would have been very well if those who are against this Action, could shew us that this is a Court that can give Satisfaction; some Courts can punish, but can't give Satisfaction, whereof I think this one; Satisfaction was never given here that I know of; was it ever ? or pretended to be had here? In the first Instance, 'tis true, this House hath punished, and by such Punishment compelled the Delinquent to make Satisfaction to a Person, by increasing, or remitting such Punishment; but that is not the Case before us.
'It hath been said there has been no Instance of this kind of Action brought; and that the Court of Queen's-Bench have declared they have nothing to do with the Business of Elections, for that the Right of Elections ought to be determined here, and for that purpose the Declaration of the Lord Chief-Justice Hale, in the Case of Barnardiston and Soame, has been cited. I must confess I can't but wonder at that Case; we did lately think that the Judgment given in the King's-Bench in that Case, was rightly given; and afterwards, when it was reversed, People were astonished at the Reason of it; and more when that Judgment of Reversal came to be affirmed in the House of Lords. No body hath ever said why that Judgment was reversed; I do not see but, on the same Reason, several Judgments within these few Years, nay, even in this Reign, may be reversed likewise; for the Court of King's-Bench, in that Case, did not pretend to a Judicature of determining the Right of Elections; the matter in that Case had been determin'd before in this House; but they only gave Damages for the wrong sustained, that was all the Court did in that Case, and yet that Judgment was reversed. I believe there hath been some Judgment given by this House, within these twelve Months, that where the House hath determined the Right of Election, the Party grieved shall be allowed to maintain an Action at Law for his Damnification.
'But I take it there is a difference between the Case of Barnardiston and Soame, and this present Case. Time was, when it was doubted, where a Man was Elected, and the Officer refused to return him, whether the Person elected was damnified or not. 'Tis very certain, heretofore Persons were not so ambitious of sitting in this House as now they are; and some Persons purchased Charters of Exemption, to be excused sitting in this House: And so it had been practised in the House of Lords. The Act that hath been mentioned before, expresly commands, that the Person chosen shall come and be present in Parliament. And afterwards there was a Penalty put upon such as were chosen, if they did not appear here; to which another Punishment was added, which was, that the Person elected, if he did not come hither, should lose his Wages. It was not reckoned a Damage that any Person was not returned a Burgess to sit here, but a Kindness; but that did not hold so in the Case of an Elector. Every body agrees, as the Electors had a Right to chuse, so there was no Statute to compel them so to do; but they looked upon it not only as their Right, but their Interest, to be present at the Elections. And none can say but it is a Man's Interest, to make choice of such a Person to serve in Parliament, (who hath the power over his Estate, and Life too for aught I know,) as he could trust. No body ever doubted that a Person who had a Right to vote, had an Interest, and might be damnified if his Vote was refused. So that none of the Cases that have been put of the Right of the Person elected to serve in Parliament, as Knight of the Shire, or as Burgess, come up to the Case in question.
'I would say one thing as to the Damnification of the Persons elected; there is a late Act that gives double Damages where the Return is contrary to the last Determination. Now, I do take it, that Act supposes that a Man might have been damnified before; and if he was damnified before, he was so by the Common-Law, for no Statute gives him any Damages: 'Tis true, that Statute gives double Damages, but still that Statute supposes there was a Damage before, and builds upon that Foundation; so that with Submission, that very Statute runs against all the Cases that have been put as to the Persons elected.
'Tis said, at this rate, the Lords may come to vote in Elections. I am of Opinion the Lords have no Right to vote in Elections for a Knight of a Shire or a Burgess; and the Reason I go upon is this, every Person who had a Right to vote, ought to have contributed to the Expences of him that was elected; if he was a Freeholder, he was an Elector for the County, if a Burgess, for the Borough; and the Expences of the Knight of the Shire were to be levied of all the Freeholders, and the Expences of the Burgesses upon all that were resident in the Borough. But the Lords were excused from that Charge, they were not to be contributors to the Expences of a Knight of the Shire, or Burgess, because they were of another House. There was a Law made which says, that for Lands purchased by any Lords, such Lands should continue chargeable to the Expences of Knights of the Shire, as they were before such Purchase; so that 'tis plain before that Act, the Lands the Lords were seized of, or purchased, were excused from that Charge.
'But, Sir, I think this matter is not to the Case in question. This is nothing but a collateral Action for Damnification, whereof the Consequence is not much, not above five Pounds; tho' I acknowledge the smallness of the Sum does not influence this Case. Nor is the question, whether the Lords have done right or not, in reversing the Judgment given in the Queen's-Bench: Humanum est errare. If they have a Jurisdiction, we can't justly complain; tho' I am of Opinion they have done right: I think the Plaintiff in this Case was damnified, and I think the Court of Queen's-Bench ought to have given Judgment against those who did him the Injury, for the Damage he sustained; and I think the Lords have done right in reversing that Judgment, and in giving such Judgment as the Court of Queen's-Bench ought to have given.'
Sir Edward Seymour.
'Sir, 'Tis enough for me that we have the Law on our side, and we are very much obliged to the Pains and Understanding of those learned Gentlemen that opened this Debate, in presenting us with a true state of our Disease; it only remains now for your Prudence, to apply a Remedy. And I cannot but take notice, that this is an Action without any Precedent to warrant this Proceeding; and I believe it might have remained so still (for I don't think there was Virtue enough in the Cobler of Ailesbury, nor had he Purse enough) if a Lord had not acted that part.
'For my part, Sir, I do not think this to be the single Instance of the House of Lords, we have reason to complain of: I think in a great measure, by their Proceedings, they seem to hold forth, That the Axe is laid to the Root, and that they have a dislike of this House of Commons, and endeavour to get rid of them. I shall not instance in Particulars, but I hope there is one you will not let go, without applying some Remedy to; and that is, that noble Representation in which they have virified you to the highest degree, and lay all the Mischiefs of the last Reign, and this, at your door. I could shew you, there is nothing in it but stuff, populum fallere; and we see the Consequence of it, and what Pains and Endeavours they have taken to disperse it all over the world, to make Impressions upon the People. But that which I would have some resort to, is this, that these worthy Persons that have spoke before, tho' they have truly represented the State of our Condition, yet they have been very tender of applying a Remedy.
'It does, I think, consist of two parts; one is what relates to the inferior Courts, the other to the Judgment of the House of Lords upon this Writ of Error. Now there is a Right to bring a Writ of Error, the Learned admit; but I would take away the Foundation, and make this Declaration:
'That no inferior Court below should presume to intermeddle with the Elections of the House of Commons; and I am sure then there will be no Foundation for a Writ of Error. In the next step, with relation to the Judgment given in the House of Lords; 'tis true, the Lords make a great Complaint, that in matters of Parliament we have addressed, without advising and consulting with them: I will not say how far 'tis justified by their Proceedings; I need not remind you of the Address they made without you, when you addressed against my Lord of Worcester; before you had presented your Address, they presented a Counter-Address to yours. But I take the Distinction to be here, 'tis one thing in matters of State, and another thing when the matter depends between the two Houses: Where 'tis a matter of State, with relation to the Queen's Prerogative being violated and invaded, as you are her great Council, you are to advise the Queen in that matter, and not let any thing of that kind pass upon her.
'But however I would go the regular way, by condemning this Judgment, in relation to the House of Lords; and, after you have made that Condemnation, I would apply so the House of Lords, to see if they would recede from this Judgment of theirs. But I am afraid Arguments or Debates will help your Case but little, you must have recourse to Remedies that are in your own power. We see what they did upon the last Occasion, when they thought their Privileges were concerned; they adjourned, and all to prepare the way to make the World believe they were injured, and prepare them for their Proceedings afterwards.
'And I say, this is not a thing that falls out by Chance, but carried on by all their Power, to represent you as inconsiderable, and to make you useful for nothing but giving Money, and then to send you home into the Country. But if you do not keep the Power in your own Hands, you will be without Remedy. I conclude with what I mentioned in relation to the Courts below, to declare that they have no Power to intermeddle in Matters of our Elections.
Marquiss of Hartington, afterwards Duke of Devonshire.
'I shall not pretend to follow that honourable Gentleman near the Bar, in all the steps he hath made, tho' I think I may be as regular as he. I think he hath only shewed, that there is not so much Reason in this Case to find fault with the Lords, but that it is necessary to find fault with them one way or other.
'I think this is a matter of great Consequence, and as long as I sit here, and as long as I live, I shall be as tender of the Privileges of this House as any body. I think 'tis upon the due Balance of both Houses, that the Safety of the whole does consist; and I must confess, I think the Liberty of a Cobler ought to be as much regarded as of any body else; That is the Happiness of our Constitution.
'I think it was very well observed by an experienced Member, that this Writ came very regularly before the Lords: If so, them I think the question is between us, and the Persons that elected us; and I think, tho' Gentlemen would not formerly allow of any Distinction between the Privileges of the House, and those of the People of England, yet they must allow it now, or they can't complain that this Action is any Prejudice to this House. For when a Person offers his Vote at an Election, and is not admitted to give it, and upon such refusal brings his Action in the Courts in Westminster-Hall, (which I take to be the present Case,) if giving judgment upon it be contrary to the Privileges of this House, then 'tis pretty plain, that our Privileges do interfere with the Rights of the People that elected us
'I shall plainly give you my Opinion in this Case: I can't think this Action to be a Breach of the Privilege of this House; For, Sir, the party grieved, can be no way relieved, but by applying to the Law: and I think the leared Gentleman below, is out in all his Instances; for he hath given an account of People injured applying to you, but they were Candidates, and certainly that was their proper Remedy; but in the Case of an Elector, I don't see he can have Satisfaction by applying to you.
'Gentlemen talk of the Law of Parliament; I can't see how that can give any Interruption to the Law of the Land, that it shall not do right to the Party grieved. How shall a Man, injured in the manner I have mentioned, receive Satisfaction, by applying to the Parliament? 'Tis true, the Officer offending may be punished, but the Party injured can't receive that Satisfaction he would in the Courts below, by giving him his damages.
'I think this is a matter of great Consideration, and it is necessary to consider well of it, and not to determine rashly. I think it may be of use to us, since there are Judges who have been of Opinion, that the Subject ought not to have his Remedy in this Case. A Judge that will, out of Fear, or any Regard to one House, do contrary to his Oath, I believe at another time will be influenced by the other. I think 'tis the duty of a Judge to act according to Law, and not be afraid of either.'
'Sir, there is no doubt but all the Judges, (as hath been said) and every body else, are obliged to behave themselves according to the Laws of the Land: But the Question is, what is the Law of England in this Case? If the House of Commons has an original Right to determine all matters concerning Elections of their own Members, (as it hath been always understood to have) and if we have a power to punish Officers for making false Returns, or any other Misfeazances committed by the returning Officers; then it will not be necessary, that the Judges in Westminster-Hall should have any Jurisdiction at all, in the matter now in question; and if they have none, then by Consequence the Lords will have as little by Writ of Error.
'I do confess, Sir, when I first heard of this Case, it gave me some apprehension that it might be of fatal Consequence (by reason of the Novelty of it,) to your Privileges, which are indeed the Privileges of the Commonalty of England, which we represent. But since I have thought of it from time to time, and it hath been better opened by the learned Gentlemen that have spoke in this Debate, I conceive our coming to some Resolutions declaratory of our Right in this Affair, may preserve the Liberties of this House, and of all the Commons of England, who have entrusted us with the Preservation of their Rights.
'I think the learned Gentleman over-the-way took his ground too narrow; I might yield him this Point; that where there is a Writ of Error brought from a Judgment in Westminster-Hall, in Cases where a Writ of Error lies, and where that Court and the House of Lords have a Jurisdiction, there the House of Lords are at liberty to give what Judgment they please. But I have read, The House of Lords is not an unlimited Jurisdiction, but is bounded, as well as the Courts of Westminster-Hall, by the Law of England. I speak it with the greatest reverence, that the regal Power, (which is the most supreme in England) is obliged to the Observance of the Laws; and it would be absurd at the same time to say, that any Part of the parliamentary Constitution is not limited by the known Laws of the Land, or the Laws and Customs of Parliament; and I doubt not but it will appear, a Writ of Error doth not lie, and never did lie before the Lords in such a Case: And so it comes at last to this Point, what is the Law of England in this Case ? And I will tell you my Thoughts of it.
'I have read and learned, and I believe it is true, that Matters of Parliament are determined by the Laws and Customs of Parliament; and I believe there is as good an Authority for it as there is for Writs of Error, or any thing else; and that this Law and Custom of Parliament is a principal Part of the Laws of England, and to be learned by Experience and Precedents, and I reckon that we must come to them at last. Now, Sir, let us see what Experience or Precedents we have to found this Jurisdiction of the House of Commons upon, for examining and determining Matters concerning their own Elections. 'Tis true, we have no Journals extant before Ed. VI's time: And there is a Book they call Seymour, I think it is a Book of no great Authority, and if it be, there is but a small Matter in it. I have read it over carefully myself more than once, and find only Titles of Bills depending, and when they were read; and all I learned from it was, that sometimes Bills in those Days were read four times. And, Sir, there is as little concerning Elections in Queen Mary's Reign; but in the beginning of Queen Elizabeth, you have the Matters of Elections plainly set down, and so they have been ever since. And from that time to this it hath been a standing Rule in the House of Commons, in the Beginning of every Parliament, and (as I take it) of every Session, to appoint a Committee to examine all Matters concerning Elections. Now, if the Right of Elections is not a Matter concerning the Election, then I own my self under a Mistake: but if that be a material Part, and comprehended within the general Words, and if those Committees have from time to time proceeded to examine the Right of Electors, and this House hath proceeded from time to time to give Judgment in such Cases, sometimes according to general Qualifications settled and adjusted in the House, and very frequently upon examining and considering the Rights of particular Votes; then I think we have as good Authority for the Jurisdiction of this House, in the Matter of these Elections, as can be had for anything whatsoever.
'I do say, in this Case, we ought to take our Ground and Foundation upon the Right which the Commons of England have, and ever had by Law and Customs of Parliament, to be exercised by the Representatives of their own chusing; which Right is grounded upon manifold Precedents and constant Usage. For if we have a Power to hear and determine the Right of the Electors; and to punish Officers for abridging them of their Right, and give Satisfaction to the Party, which most evidently appears, not only in our Journals but by a continued and uninterrupted Practice, time out of Mind; then I think we need look no further.
'I do say, that from time to time there has never been a Session of Parliament but this Power has been exercised; and in your Committees they have often come to Resolutions to determine the Right of all Electors, and frequently of particular Electors; and for that purpose only they have examined whether Persons had Burgage Tenures, or have paid Scot and Lot, or have been Freemen, and other Circumstances necessary for the Information of the Committees; and as Matters have appeared, they have judged them qualified or unqualified: And where the Votes of Persons having Right have been offered, tho' refused at the Election, the Committees have usually allowed those Votes as if they had been given; and upon their Determination the House have agreed with the Committee very frequently, and sometimes have disagreed with the Committee, as the Merits of the Cause have appeared to the House. So that nothing is plainer than that the House of Commons have, from time to time, exercised this Jurisdiction in all the Parts of it; and sometimes Elections have been tried at the Bar, and determined by the House upon such Trial.
'Then how comes this Action to be brought in Westminster-Hall? I have consider'd that Point, and take nothing to be plainer than this, that Westminster-Hall never had a Power to meddle with Elections, but where, by some special Act of Parliament, you have given them Power. I know that there are some Opinions that Elections have been tried in Chancery, and in the House of Lords; but I cannot find any thing of that nature ever settled, though some Attempts have formerly been made that way. I know, that Witnesses have been carried up sometimes to the House of Lords Bar to be sworn, but the Trial of Elections, and of the Right of the Electors hath always been in the House of Commons; so that here would be no Defect of Power or Justice if nobody else meddled in this Matter.
'Then consider what Acts have altered this original Right; I think there are two that are most material to be considered; one is that of 23 of H. VI. cap. 15. What is the Importance of that? It takes notice, that convenient Remedy for the Party grieved was not ordained in the former Statutes against Sheriffs, Mayors and Bailiffs offending; whereby one would infer, that the Parliament in those Days did not think or know any thing of the Remedy now endeavoured to be set up in Westminster-Hall and the House of Lords. And this Statute provides, that if any Sheriff do contrary to the Statutes about Elections, he shall incur the Penalty of the former Statutes, viz. one hundred Pounds to the King, and a Year's Imprisonment, and shall forfeit a hundred Pounds more: To whom? to the Party that ought to have been returned; and if he do not sue, there is an Action given for the same to any body else And a Mayor or Bailiff, for a false or undue Return, is to forfeit to the King forty Pounds, and forty Pounds to the Party that should be returned; and if he do not sue, then a popular Action is given for the last Penalty: So it is plain, by this Statute, no Action is given to the Voter, who had his Remedy in the House of Commons. Your Ancestors were so careful of your Liberties, that they never trusted their Elections to all Persons; such as held in Villenage, all customary Tenants who held at the Will of their Lords, and might be influenced by them, and, (as I take it) Tenants by Escuage, 'till Escuage was reduced to Certainty, were excluded, and afterwards all Freeholders under forty Shillings a Year; and when the Officers were by Law to admit some Votes and reject others, they were to use the best of their Judgments, without being liable to a Multiplicity of Actions, (unless in the Cases I have mentioned,) but for their Defaults were always responsible to the House of Commons.
'Let us consider then the Statute in King William's time, I think it is in the seventh Year of his Reign; there the Statute takes notice of the Injury done to Gentlemen by double and false Returns, and thereby a double Return is made a false Return; and by the Statute 'tis provided, that if any returning Officer return contrary to the last Determination of the House of Commons, of the Right of Election; such Return is thereby adjudged to be a false Return, and void.
'This Statute of the seventh of King William, admits the very Determination of the Right of Election to be in the House of Commons; it does not say the Determination of the Election, but of the Right of Election. I will endeavour to avoid Repetition.
'But how does this Matter stand? By the Law and Custom of Parliament, which is a most material Part of the Law of England, the House of Commons have the Jurisdiction in these Matters of their Elections; but, by one or two Statutes, the House of Commons have given Power, in one or two Cases, to proceed in the Manner therein prescribed; but none of the Cases allowed by those Statutes, are like the Case of this Man at Ailesbury, for he is not a Person who has suffered because he was not duly returned, nor the Person mentioned in 7 Willielmi; nor is his Action founded upon any Statute; so that this Case is left out of the Statutes, and it must be determined according to the Law and Custom of Parliament.
'As to the Case of Mr. Nevil, it never came to be determined in Parliament: We read it was put off to the Parliament because of the great Weight of it; and the Judges were of Opinion that it was a Matter too high for them. And in the Case of Mr Onslow, where the Case of Mr. Nevil was cited, they positively said, it was a Matter of too great Presumption for the Judges to meddle with it.
'Then how comes it to pass, if this Action might have been brought at Common-Law; I say, how comes it to pass, that this Action was never brought before? Certainly that is an Argument it never lay, for there must have been Occasion for such an Action, if the Common Law would have maintained it. But the Judges, who knew best the Grounds and Reasons for this pretended Action, have refused meddling in this Matter, because it concerned the Parliament, and the Parliament had not entrusted them with it. As to the Case of Barnardiston and Soame, first adjudged in the King'sBench, the Reason was, because it had been adjudged in Parliament; for Sir Samuel Barnardiston had a Majority by near a hundred, and the House of Commons had tried the Cause, and gave him his Right of sitting in the House; so that one would have thought that he had liberty to have gone into Westminster-Hall. But afterwards this Judgment was reversed in the Exchequer; and Judge Ellis, in his Argument, says plainly, that the Right of determining Elections belongs to the House of Commons, and the House of Commons have determined it for Sir Samuel Barnardiston, and for that Reason you ought to affirm this Judgment.
'This Matter was brought, presently after the Revolution, into the House of Lords, and when it came there, all but five or six Lords were for affirming the Reversal. Now, Sir, by reading the Reasons of these five or six Lords that dissented, we may easily infer what were the Reasons that induced the whole House to affirm the Reversal. Two Reasons were given; first, say they, because otherwise there will be a Defect of Justice. One may infer, if these five or six Lords were of Opinion that there would be a Defect of Justice, all the other Lords were of Opinion there would be no Defect of Justice. The five or six Lords that dissented said, that the Plaintiff ought to have this Action by the Common-Law; certainly if the other Lords had been of this Opinion, they would have maintained the Action, but they concluded no such Action did lie, because no such Action was given by the Common-Law.
'I take this Matter to be of infinite Moment, and I think there is no Degree or State in this Realm but what is bound by the known Laws of this Land, so that they have no Jurisdiction in this Case, then I do not see how a Writ of Error can give them Jurisdiction. Sir, I appeal to you, and all the Gentlemen here, whether what hath been said on one side hath been at all answered by the other: If an Action of Scandalum Magnatum should be brought against a Member, for what he has said in this House, no doubt but that Member would plead the Privilege of this House, and 'tis to be hoped the Judges would allow it, and put the Plaintiff off sine Die. But notwithstanding, a Writ of Error, according to this Doctrine might be brought, and the Lords might give Judgment that this Action does lie, and then what would become of youa Liberty of Debate? This is an Instance worth your Regard.
It hath been told you how the Lords have taken notice of the Privileges of this House, in the Case of Hollis and Elliot. Let that be set in its true Colours, and see whether any thing can be drawn from that Case to fortify the Judgment lately given in the House of Lords. There was a Disorder in the House of Commons and the Speaker was violently forced back into the Chair, and scandalous Words against the King's Privy-Council and Judges, were uttered by Elliot, Hollis and others, and upon that a Prosecution was brought, 5 Car. primi, against those particular Gentlemen in Westminster-Hall; as well for the Words spoke in the House of Commons as for the Force; and Fines were set upon them. This Matter, after the Restauration of Charles II. was brought before the Lords, at a Conference, and they took notice of the Privileges of this House, no: to set them aside, but confirm them; and their Lordships declared the Judgment to be illegal, and the Freedom and Privilege of Parliament, and desired the Lord Hollis to bring the Roll before them by Writ of Error; and so, by Agreement, the Judgment was reversed, as being against the Freedom of Speech in Parliament, allowed by Strowd's Act; which their Lordships acknowledged to be declaratory of the ancient and necessary Rights and Privileges of Parliament. Their Lordships then would not let any Matter appear upon Record, to the destroying the Commons Privileges; and I wonder how this Precedent comes to be cited, to justify a Proceeding which tends directly to take away your Privileges.
'I wish with all my heart the House would have appointed some Persons to have searched Precedents, and I am sure they would have found an infinite Number to be produced, to have justified the Power of the House in this Case, how it hath been in their power, time out of mind, how they have a Power to punish Officers, and in some Instances they have given Damages.
'I remember one in my time; Mr. Tankred caused a Person to be brought hither, and he cleared himself; and the House (as I remember,) made an Order, that, as he was the Occasion of the Man's coming up, and had done him an Injury, he should make him reparation, and he was forced to do it by paying him a Sum of Money.
'Not that I would go so far as to say, that this House is a proper Court for imposing Fines: But if they are not a proper Jurisdiction for the Business of their own Elections, I think they have no Jurisdiction at all. I will not say this House has a Power to fine: I know we read something of that in your Journals, but I think those Fines came to nothing, because there was no Means to estreat them, or cause them to be levied; and so that Matter has slept ever since, and I hope, will for ever.
'But not only your Freedom of Debate, but Right of sitting in this House, is concerned in this Case: And if you have not a Power to determine Matters of Elections to this House, I wonder how any Author comes to say this House has any Judicature at all; for if they have not a Jurisdiction to this, they have no Jurisdiction to any purpose whatsoever.
'If this Point be settled, that this Power belongs to the House of Commons, the next Consideration will be how to attain it; and in this, I hope Gentlemen will take such steps as are proper for them, and for those they represent; for we are sent here ad tractandum, &c. in the Name of those we represent: And we have but a delegated Power, and can't, without Breach of Trust, give up the Rights of the Commonalty. For my own part I have taken an Oath to preserve the Privileges of the People that chose me, but, without such an Oath, should be of Opinion that I cannot give up this Privilege which I am to execute on their Behalfs; but I will use all the lawful and just Methods I can to-come at it, and I think you may do this without interfering with the House of Lords, or the Judges. There is no doubt but the Judges in Westminster-Hall are bound to take notice judicially of your legal Proceedings here; and if you come to make a Declaration, That the Power of hearing and determining all Matters concerning Elections, does belong to the House of Commons in Parliament; I doubt not but they will take notice of it, as becomes them. And give me leave to say, no body can help bringing this Action, as this was done; for a Person may take out a Writ and declare upon it, and carry it down to Trial, without the Privity or Knowledge of any Court; and then, when the Cause is tried, the other side comes and moves in Arrest of Judgment, and the Court gives Sentence. But I wish the Defendant had demurred, and then that would have put it as a Point of Law to the Judges; and if they had determined it judicially for you, I believe it would have gone no further. For it is one thing to determine it upon Demurrer, and another thing when the Cause has been tried and Damages given, to have the Court's Opinion ex post Facto.
'The Judges determined the Action does not lie; but as Matters stand now, perhaps in like Cases, there will be brought a Writ of Error before the Lords, and they will give such a Judgment as they have given now, for aught I know. I should not think it proper to come to any Question now, by which you shall determine your Right, if you are not fully satisfied about it; but it ought to be considered farther. The Law and Custom of Parliament is to be found out by Experience and Precedents: But if you are satisfied, then I think the proper Question is, that by the Law and Custom of Parliament, the hearing, examining and determining all Matters concerning Election of Members to serve in the House of Commons, is to be by the same House. I think that is to be your Question, or to that Effect.
'The Consequence will be, if this be Part of the Law of England, as it plainly is, you may as well stand upon that Declaration, as upon any new Law to be made by Parliament, if you could get it: But I believe you have no great Reason to expect a new Law in this Case to pass in the House of Lords. Then what would you do? If you should try to get a new Law and fail, it will be construed, that you had not this Power before, but endeavoured to get it, and the House of Lords denied it you.
'But 'tis plain and clear you have this Power already, and a sufficient Ground to stand upon; and I doubt not but Westminster-Hall will take notice of it, and the House of Lords too: If they do not, [Here Mr. Lowndes was interrupted by a Noise made by some few of the Members, who said, What then? but he proceeded] I say, if they do not, it will be time enough to confer with them afterwards: And give me leave, I am not afraid to say, if a private Man, much more the House of Commons, have the Law of England on their sides, let them be undermined ever so much, one way or other they will obtain their Right sooner or later. The Rights of the People of England are safer in the hands of their Representatives than any other; if they do not like them, they can turn them out and chuse new ones; but they cannot do so in the Case of the Lords.
'I beg pardon for my great Prolixity: I take it to be of Importance to avoid all Contests with the House of Lords, and with Westminster-Hall, and I think you may do it, by proposing and adjusting a plain Declaration of your Right by the Law and Custom of Parliament.'
Mr. Solicitor General, (Sir Simon Harcourt, afterwards Lord Harcourt, and Lord Chancellor.)
'After what hath been said at large concerning the Law in this Case, especially since it hath received no Contradiction in any Instance whatsoever; I will avoid the Repetition of what has been already offered, and endeavour, to shorten your Debate, by bringing it something toward a Point. It hath been said, that the Question now before you is, whether Judgment being given in the Court of Queen's-Bench, a Writ of Error does not lie in the House of Lords, to reverse that Judgment? I cannot, by any means, agree that to be the Question.
'But that which I take to be the proper Question before you is, whether or no it be the sole Right of the Commons of England to determine their own Elections? If you are of that Opinion, never let your Disease grow to such a Head, as to put you upon the necessity of complaining of a Judgment of the Lords, but rather check it in its Infancy.
'It may perhaps found harsh, that a Man shall not be admitted to make use, and have the Benefit of the Law; and yet when that Thought is thoroughly digested, I believe no Gentleman in this House, but will agree, that there may be many such Instances, where you will not endure any Suit at Law. I cannot give you any better Instances, than what have been mentioned to you by a learned Gentleman on the other side, who approves of this Proceeding by Writ of Error; the Prosecution against Sir William Williams for publishing a Libel (as it was called) by Direction of this House, and an Action against the Serjeant for obeying your Commands. If such an Action should be brought against the Speaker or Serjeant, should we sit still here to see what they would do in the Courts below, and afterwards wait for the Event in the House of Lords by Writ of Error?
'Tis very true, these Judgments that are mentioned by that Gentleman continue still unreversed. As to that given against the Speaker, he mentioned it as a Precedent not fit to be followed; indeed, 'tis a Reproach to the House to mention it, since no Parliament hath reversed it. As to the other Action against the Serjeant, he says, Judgment was given against him, and that stands in full Force; as I remember that Case, it went off upon the Form of Pleading.
'But nothing of that kind being the Question now, I beg leave to state what this Action is that is now before us; for Gentlemen in the Country, who have frequently met with Actions, prosecuted without Censure for matters relating to Elections, may, perhaps, be surprized, till they come to consider what the Point is; This is not an Action grounded upon any Statute whatsoever. 'Tis agreed an Action may be maintained where a Statute gives a particular Remedy, but this is an Action founded upon the Common-Law. Whatever your Privileges are, if you will consent to an Act of Parliament to make other Persons Judges of those Privileges, so far as you consent, if they pursue the Power given them by Act of Parliament, there is no Wrong done you: But an Action brought at Common-Law is that which, I think, interferes with the inherent Right of this House.
'We have, I think, attained to one Piece of Knowledge upon this Debate, that this was the first Action that was ever brought of this kind; and Gentlemen will not much wonder why this is brought now, when they consider what Endeavours have been used to make this House contemptible. I believe this may be thought the most probable Method to attain that end.
'I would not repeat the Precedents that have been quoted; yet I cannot but take notice of that of Barnardiston and Soame: Those Arguments that were made use of for this Judgment, in that Case were rejected, and the Judgment of the Lords was then directly contrary. I should be very glad to hear how the Lords Judgment of Reversal in that Case, and in this, are reconcilable. The Commons, at that time, would scarce have suffered such an Attempt upon their Privileges, and I hope we shall be as careful and as zealous to preserve ours: We have as much Power as our Predecessors, we shall never suffer for want of Power, if we do not suffer for want of Will to exert it.
'I expect to hear of the great Authority of one learned Judge, that differed from them; I have the utmost Esteem for his Judgment, but I am sorry to hear any Insinuation, that those Judges who have given their Opinion otherwise, are guilty of a Breach of their Oaths. It hath been touched upon, that, whenever any Question has been asked the Judges, concerning the Privileges of the Lords, or the Privileges of the Commons, their Answer is recorded for the Instruction of all their Successors, and, to the Honour of both Houses of Parliament, that it was a Matter above their Knowledge: The Law of Parliament is above the Judges of the CommonLaw, and is not to be subject to their Judgment, 'tis alieni fori.
'And, Sir, as I have been informed, this was the Answer given in the House of Lords by one of the present Judges, and by what I have heard, it was well he escaped their Censure; shewing too much Respect to this House gave very great Offence.
'I beg Gentlemen to consider, (I shall not enter into Particulars that have been mentioned) whether any thing of this kind would not make you despicable, to the lowest Degree, in the World, and expose Electors to such Mischiefs that none could endure? Upon every Election that comes before you, 'tis impossible to judge the Right of Election, but by the Right of the Electors. If you will endure any Person, after you have said he has no Right, to go into Westminsterhall, and bring an Action in the Courts there, a Jury may find a Verdict, that the House of Commons are mistaken, and that this Person hath a Right, and Judgment shall be given accordingly. Will not this Proceeding, that very Moment, submit your Resolutions to the Examination and Censure of the inferior Courts? May not they say, they vote for one another, we have detected them all? That they are a Parcel of People packed together, and not one of them elected as they should be ?
'What Condition the Magistrate will be in, hath been mentioned already; when a Multitude hath a Right, and every body may bring his Action, can any Magistrate, (a Constable as in this Case) bear the Expences of a hundred or a thousand Actions at Law ? There will not be wanting some to prosecute a Magistrate with all the Violence possible.
'Tho' I can by no means agree, that this Matter is to be determined according to the common Rules and Methods of Law, but according to the Course of Parliament; yet I shall compare it with some other Cases in the Law,
'That which makes these Persons Hardships the greater, is, these Magistrates are not People that officiously interpose to take a Poll at Elections, and make a Return; but these are Men, who, by the Duty of their Office, are obliged to do it; and if they do not execute their Office, and give you Satisfaction, yet if you let this be examined in another Place, after you have said they have done well, they may be punished for doing so.
'I will compare this with one or two common Cases that have not been mentioned; suppose a Person should exhibit an Indictment against another maliciously: he does this wilfully, and an Action does lie against him; but if a GrandJuryman find a Bill against a Man, the Law will not admit an Averment that it was done maliciously, because he was obliged by his Office to do it: So it is in the Case of a Witness, because he is brought in by the Process of the Court: So it is in the Case of Judges. And is it not equally the Duty of a Magistrate to determine upon the Poll, and afterwards to make a Return? And is not that examinable before you?
'A great deal might be said further upon this, but I hope 'tis pretty unnecessary: And that no body can have any Doubt but that our Privileges are very much concerned in this Question, and what the Consequences would be; therefore I would humbly propose for the Question what another Gentleman hath hinted at, which may reduce this Debate to a particular Point.
'We certainly have such a thing as the Law and Custom of Parliament, and that is very well known, and upon that Foot I desire you would put a Question to this effect:
'That the sole Right of examining and determining all Matters relating to the Election of Members to serve in Parliament, except in such Cases as are otherwise provided for by an Act of Parliament, is in the House of Commons; and that neither the Qualification of the Electors, or the Right of the Persons elected, is elsewhere cognizable or determinable.'
Members. The Question, the Question !
'Sir, I speak only to your Order, that Gentlemen would not interrupt one another by calling for the Question, but give diligent Attention to the Debate, for this is a Matter of great Consequence.
Then. Mr. Freeman (in the Chair) stated a Question on his Paper to the Effect proposed by Mr. Sollicitor, and read the same to the Committee.
Sir Christopher Musgrave.
'I am very willing to hear any Gentleman that will stand up and speak, and you have had a very good Hint given you by an honourable Person, that this is a Business of great Moment; and I hope we shall continue to do as we have done, that is, to hear Gentlemen patiently: and that we may not be guilty of any Disorder, I move you for Candles to be brought in.'
Mr. Dormer, afterwards a Judge.
Then the Question was put, and carried for Candles.
And they were brought in accordingly.
'Mr. Freeman, you have now a Question upon your Paper, but that which I take to be the Question, is, Whether a Freeholder, or a Freeman, who hath a Right to give his Vote for his Representatives in Parliament, may arbitrarily and maliciously be deprived of that Privilege, without any Redress in any Court whatsoever.
'This I take to be the Case before you, 'tis said to be of great Consequence, and I do take it to be of as great Consequence as any thing that ever came before either House; and I don't look upon it only to concern the Jurisdiction of the Lords and Commons, but to affect every Part of the Constitution, and the Queen the Head thereof, in the highest Degree. For it comes to this; if the Lords have not a Right to determine in this Matter, which by Writ of Error is regularly brought before them, we shall be turned into a State of Villenage, and the People will be deprived of chusing their own Representatives without Relief, and shall not have Relief by her Majesty in the Court of Queen's-Bench, nor before her in the Court of Parliament, where, in Consideration of Law, she is always present, and where, by our Law, is the last Appeal; and there will be a Failure and an Interruption of Justice, and our Constitution, in relation to ourselves, will be so far changed, that 'will be impossible there should be any right Representatives of the People: For, twill not be the People then that will chuse, but the Officer may arbitrarily refuse and return whom he thinks fit, and the particular Person will be without Remedy. For, whatever Gentlemen apprehend, if the Right of Return be not controverted, which way can any particular Man bring his Case before you? And what Remedy shall he have, if not by Action? I will not say there has not, (but I will turn the Argument, and put it upon them to shew there has;) but I believe there never was any particular Application to the Committee of Privileges, where the Injury has been done to a particular Man, which is the present Case: And this Matter is found by a Jury that was struck, and not one Man of the Jury but of Quality, and approved on both sides: And I think, tho' it never came before the Parliament, nor the Committee of Privileges, they might consider of a particular Injury.
'And as for the notion that hath been taken up, that where the House of Commons have a Jurisdiction, there the Party is in all Cases without Remedy in any other Court; sure that is not according to Truth: for in the Case of a false Return, there is a public Injury, that does not hinder the Party from obtaining Satisfaction as to his particular Injury; and if no Action lies, there can be no Sasisfaction; for this House hath not awarded Damages in any Case, notwithstanding the Case cited; for that was only Costs for the Man's Trouble in coming up to be examined before this House. And, if they should award Damages, there is no way of levying those Damages; What Writ can we issue out? And if this Person be without Remedy at Law, he must sit down without any Redress whatsoever.
'There may be a Multitude of Cases, where this House hath a Jurisdiction as far as concerns the Public and themselves, and the Party shall have his Action also.
'If I receive a Blow in this House, 'tis a Violation of the Privilege of this House, and this House can take Jurisdiction of it, and censure the Person that hath done the Injury; but will any Man say, that an Action of Battery will not lie at the Common-Law in that Case?
'There was the Case of Sir Thomas Clarges: At the time of his Election there was one Roe spoke Words to his prejudice: He might certainly have complained to this House of it; (you had an Instance, I think, last Session, of one that complained, for some such Injury, against the Lord Bishop of Worcester, and the House took it into Consideration; which Sir Thomas Clarges might have done,) but he brought his Action, and recovered considerable Damages; and afterwards a Writ of Error was brought in the King's-Bench, and Judgment was affirmed.
'There is a Case not within any Provision of your Law, and that is, where a Sheriff made a Return, and he delivered this to a private Messenger to bring up to the CrownOffice. The Messenger by the Way thought fit to vitiate the Return, and make another Return than what he received from the Sheriff: For this an Action was brought, and he recovered at Law against this Messenger, for the private Damage he had done him. Certainly otherwise the Law would be defective.
'In another Case, the Sheriff adjourned, in prejudice to a Candidate, to a Corn-Field; an Action was brought against this Sheriff, at Law, for the Damages he had done this Gentleman, and it was maintained; and I dare say more Cases may be put: Which shews that your having a Jurisdiction as to what concerns the Public, does not exclude the Party, but he may have an Action for his private Injury.
'A great many Positions I have heard, which I take not to be true, particularly this, 'That there is no Remedy at Law, 'but in Cases provided for by the Statutes:' That is not so; these Statutes imply the contrary. The first says, Whereas there was not a sufficient Remedy, therefore that gives a more compleat Remedy, and so the Judges declared in the Case of Barnardiston and Soame.
'Sir, they have told us of the Cases of Barnardiston and Soame, and of Nevill and Strode; with humble Submission to you, those Cases go so far as to prove the Jurisdiction of the Lords, and the inferior Courts: That of Barnardiston and Soame, was an Action tried before the Court of King'sBench, and a Set of as learned Judges as ever were before, or since; and three of them were of Opinion for the Action, and my Lord Chief-Justice Hale was one of them; who, the Term before he surrendred his Character, did thus express himself: 'He gave thanks to God, that he had spared him to that time, that he was able to keep his Cushion, and declare his Conscience in that Place.' But afterwards it had its Fate; a Writ of Error was brought in the ExchequerChamber; Mr. Justice Levinz, that reports it, says it appears, that those who argued against the Judgment in the King'sBench were made Judges, and they themselves afterwards determined the Case. And every body knows how valuable it was at that time, to know the Price of an House of Commons, and an English Parliament. Three Judges were made then in the Exchequer, and I think two in the Common-Pleas. Afterwards it came into the House of Lords, and there the Reversal in the Exchequer was affirmed, for Reasons different from what are argued now, and I believe for several good Reasons. The Sheriff in that Case had made a double Return, and the Sheriff might do it for, his own Indemnity, for it was no more than finding a special Verdict; and therefore the saying, falso & malitiose, being put to a thing that was in itself right, would not alter the nature of the thing. Another Reason they went upon was, they said this double Return was a void Return, and for that Reason the Action did not lie; and upon these Reasons depended that Judgment. That Gentleman who said that only four or five Lords dissented, is under a great mistake; four or five Lords only, I believe, entered their dissent, but there was a great number, and near an equality against that Judgment; and divers Lords, now in that House, were against that Judgment, that did not enter their dissent.
'Then, Sir, there is the Case of Nevill and Strode, and that was first a Judgment in the Common-Pleas, and when it had taken its Progress in Westminster-Hall, it came before the House of Lords; and the Lords returned it back again to Westminster-Hall, and ordered all the Judges of England to deliver their Opinion in it. That was founded upon an Ordinance of those Times; Berkshire was to send five Knights, and Nevill was one of them that were elected, but not returned; There they said, in that Case that Ordinance was entirely new, and that Case did not recommend itself by the known Laws of the Land, and for that Reason they would not give Judgment, for Wages could not be levied for five such Knights. And, when afterwards they were to give Judgment, the right Constitution had recovered itself.
'Now, as to the Lords Right to receive a Writ of Error in this Case: You have addressed to them that they would receive a Writ of Error, at a time when your Privileges were invaded. That was the Case of my Lord Hollis, who with others was informed against, 5 Car for having spoke Words in this House that did affect the Government: And he pleaded to the Jurisdiction of the Court, (is there any such thing here? No they have submitted to it;) and the Court over-ruled their Plea. to the Jurisdiction, and that Judgment continued in force, (as some others which have been since do now, which it were well if they were reversed,) 'tis this House took notice of it; and in 1667, they desired a Conference with the House of Lords. The Chair Man was my Lord Chief Justice Vaughan, and this House there complained how they were grieved by that Judgment; and, after repeated Conferences, both Houses did consent to this Expedient, that my Lord Holl is being the only Survivor, should be desired to bring a Writ of Error in the House of Lords, and he did so, and the Lords in that Case did you Justice, and reversed the Judgment.
'As to your passing this Vote, what it will signify, I cannot tell. What signified a Vote you passed before about the Year eighty, that the putting the Laws in execution against Protestant Diffenters, was an Injury to the Public, and a Subversion of the Government; and that those that put them in execution, should be looked upon as Enemies to the King and Kingdom? The Consequance was, that all the Laws against Popery were put in execution against Protestants more than they were before. The Judges in Westminster Hall said, this Vote had not passed into a Law, and they could not take notice of it. I hope we shall do nothing that will lessen ourselves, nor any thing but what will be effectual for the Ends for which tis proposed.
Sir Joseph Jekyll, (afterwards Master of the Rolls.)
'Mr. Freeman, I consider you have been a long time in this Debate, and a great deal of it has been spent, either in Suggestions contrary to what appears before you, or else in questions altogether improper for the Consideration of the Committee; and therefore it is necessary to look back to that which gave Occasion to the present Dispute.
'The Committee hath a Copy of the Proceedings of this Action referred to them, but it hath not been read; and I am confident if it had, and had been attended to by Gentlemen, they would scarce have said that the Lords, in the Judgment they gave, did any thing in opposition to your Judgment, or in derogation to your Privileges.
'Before the Action was brought, there was a Resolution of the House of Commons, That the Right of Election for the Borough of Ailesbury, was in the Inhabirants not receiving Alms. 'Tis from that Resolution the Plaintiff hath taken his Rise, and hath brought his Action; for by his Declaration he makes his Case to be, that he was an Inhabitant of that Borough, not receiving Alms; and that the Constables, falsly and maliciously, obstructed and hindred him from giving his Vote at the Election there. The Constables plead, Not guilty, and the matter goes to a Jury, and they find for the Plaintiff, and give him five Pounds Damages: Which is in effect a finding that the Plaintiff was an Inhabitant, not receiving Alms, and that he was obstructed and hindred from voting by those Constables, and that it was done falsè & malitiose, and to his Damage. And this may serve to demonstrate, that the proceeding at Law has not been in opposition, but in conformity to your Judgment.
'Now let us consider, whether the bringing of this Action is a Violation of your Privileges: A great many things have been said not proper for you to deliberate upon; one, that this will encourage a multitude of Suits; another, that this Action was never brought before, and several other matters which go to the question, whether the Action will lie. Now that is not the question. here; but the true and only question before you, is, whether this Action was brought in Violation of your Privileges; for, if there be no Breach of Privilege in it, I know of no Authority we have to stop the Course of legal Proceedings. And as to that, but one thing (as I conceive) has been said materially, which is this, that this is a parliamentary Case, and appertains to your Jurisdiction; and the Judges of the Common-Law, are not Judges of the Law of Parliament, and therefore they ought not to have given the Plaintiff his Judgment, (and it must be admitted the Lords ought not to have given any Judgment, but what the Judges ought to have given.) To maintain this, it hath been said, and undoubtedly it is true, that this House hath a Right to judge Elections; and it is as true, that in order to come to that Determination, it is incidently necessary that the House do judge of the Right of Electors; and it has been said, (but that I deny) that the Right of the Electors is by the Law of Parliament.
'I take the Right of every Elector in England to accrue to him by the Common-Law, for he is under one or other of these Qualifications: Either he is a Freeholder, and then he has a Right to vote for Knights of the Shire; or he has a Right by Charter, or a Right by Prescription; which two last Rights take in the Right of voting in all Cities and Boroughs. Now I would be glad to know whether the Right of a Freeholder is not by the Common Law? Is it not an Estate, with all its Privileges and Services, created by that Law? Whether a Right by, Charter is not by the CommonLaw? Is it not that Law that enables the Crown to grant Charters, and qualifies that Power? Whether a Right by Prescription is not by the Common-Law? Is not Prescription, Common-Usage? And is the Common-Law, any thing but Common-Usage? So that the Right of every Elector being by the Common-Law, the Judgment of that Right is primarily and originally in the Courts of Law. The Freeholders Right of voting, is of the Essence of his Freehold; and you may as well take away his Freehold, as take away his Right to vote, which he has by virtue of that Freehold, and then tell him he must come to the House of Commons to recover it. And the same may be said of those several Interests, which give a Right of voting in Cities and Boroughs. And thus, I hope, I have made it out, that a Right of voting is not a Parliamentary Right, but an ordinary, legal one, and by the Common-Law, Judges have the Judgment of it originally; and it is incidently only that the House has a power of Judging of it, and that too according to the Rules of the Common-Law; which is a further Demonstration, that it is a Common-Law Right; for it would be absurd to say, a Man has a Right by one Law, which is to be judged by the Rules of another.
'Then what Course has the Plaintiff taken? He has a Right by the Common-Law to chuse Burgesses for Ailesbury: That Right has been invaded, and he has gone to the Common-Law for Redress, and from no other Power could he have it; for this House, or the Committee of Elections, cannot give a Remedy in this Case, that is, cannot make the Person injured Reparation for the Damages done him, by obstructing him in the Exercise of his Privilege: And that is the thing the learned Gentlemen, who have spoke in this Debate, have passed by: And these are the material Points: That this is a Right at Common-Law, and this House cannot apply a Remedy.
'But it has been said, that the House will examine, not only on behalf of the elected Person, but of the Electors. 'Tis true, but in order to what? To see whether you have a right Member here, and for no other end; for I challenge any Gentleman, to shew me one Instance of a single Man who came hither and complained, that he had a Right to vote, and was hindred from voting, and made that solely to be the Offence of the Officer. Did the House, or would the House receive such a Complaint? And yet he may go with that Complaint to the Law: For whether the Person he would vote for be returned or not, the Injury is the hindering him from enjoying his Privilege: And it cannot be made an Injury or not an Injury, by matter ex post facto; that is, by the Officer's returning, or not returning the Candidates. And tho' the Officer should repent him, and not carry his Injustice so far as to make a false Return, yet it is of Use, that the Law will redress the Wrong done to the Voter, and thereby, perhaps, stop the first steps or approaches towards a false Return.
'But if I should admit the House would receive the single Petition of a Voter, who was refused, and when the Person he would have voted for was returned, yet the House cannot make him Reparation; all we can do, is to censure the Officer, but we cannot make the Person complaining whole, in point of Damages. Indeed it has been said, the House can give Damages, and there was an Instance given of Mr. Tankred, who complained against a Clergyman, and the House ordered Mr. Tankred to pay him Costs: So was Sir George Meggot ordered to pay Costs to the Member he causelesly petitioned against, (fn. 3) and the like is provided for at the beginning of every Session. But are these Instances of any Petitioner repaired in Damages by this House? No, these are Instances against Petitioners, not in Favour of them; nor are Damages given in those Cases, but Costs; all that is provided for, is, that Persons, srivolously complained against, shall not be out of Pocket. And by a mean you have a Jurisdiction in point of Expences, but not in point of Damages; for you may order the Wrong-doer into Custody, and make his Payment of Costs to the injured Person the price of his Liberty; but there is no direct Remedy, even for Costs.
'But it is apprehended, here may be a clashing of Jurisdictions, and if the Party should be allowed to go to Law, the Courts of Law may be of one Opinion, and this House of another. This is a Supposition the Law does not allow of, for this is to suppose Courts of Justice will not do right. It will be allowed to methat your Determination will always be just, and other Courts the Law supposes will do right too, and then they will determine as you; and your Determination, and that of the Law, as I said before, has been the same in this Case. But then, as the Supposition of Law is, that all Courts will do right, so human Frailty supposes there may be, an Error in Judgment. And yet Courts must have Jurisdiction, or else there can be no Administration. of Justice among Men, since there is no Judicature short of another World, that can pretend to an unerring Judgment. And now I will shew you the several Courts have different Jurisdiction of the same Fact, and the Law allows them, notwithstanding there may be diversity of Judgments. The Court of Common-Pleas may punish a Person for assaulting an Officer in the Execution of their Process, as a Contempt to that Court; but at the same time, for the same matter, the Offender may be punished in the King's-Bench, as it is a Breach of the public Peace; and the Officer may, if he pleases, bring his Action in the Court of Exchequer for the Damage done him.
'I would observe a little upon the Cases cited, and that as short as possible; The first is that of Nevill and Strode: I have looked into the Journal of 1659, and the only Book of our Law, where that Case is reported, and that is Sydersin's second Reports; and that was upon Writs issued out by Cromwell, whereby he appointed Counties to chuse differently, some three, some four, some five Members. Mr. Nevill who was a Member of the long Parliament, stood for one of the five Knights for the County of Berks; they chose him, but he was not returned, and therefore he brought his Action in the Common Pleas: That Action depended there some time, and thereupon the Justices brought the Record into this House for difficulty, and desired the House would come to a Determination in it, (and by the way, there was no House of Lords in being at that time; for it was in the time of the long Parliament, who had usurped the whole legislative, as well as the executive Power:) and no wonder the Judges complimented them with the Determination of that Question, since they were their Creatures, and had their Commissions from them. Well, but the Record being brought in, the House appointed a day to consider of the matter, and when they saw the Plaintiff had proceeded according to the known Methods of Law, they gave no Judgment in it, but sent it back to Westminster-Hall, and there it was again argued, but never adjudged. And that there was no Judgment given, is easy to account for, if the Judges thought such an Action would lie; for at that time, the long Parliament was upon the point of bringing in the King, and restoring the Laws: And if they had given Judgment for the Plaintiff, they had given a Sanction to the highest Usurpation of the Protector, and all his wild Fancies of changing the Constitution at his Will and Pleasure. And indeed the Plaintiff had disaffirmed the Authority of the long Parliament, which he had with great. Zeal asserted, and of which he was himself a Member. But if the Judges had thought such an Action would not lie, they might, without any Scruple, have given Judgment for the Defendant. And this seems to me a strong Authority that Westminster-Hall thought such an Action would lie: And it is very remarkable, that when that House of Commons (as they called themselves) had usurped the exorbitant Power I mentioned before, they did not proceed to assume the Jurisdiction of the Common-Law.
'The next Case is that of Soame and Barnardiston, in which Westminster-Hall was divided: My Lord Hale was of one Opinion, and my Lord North of another, and there were six and six of a side, and the matter came by Writ of Error into the House of Lords, and a Gentleman said, 800 l. was worth contending for. But I am apt to think Sir Samuel Barnardiston did not hope to recover one Farthing of the Money, for Soame was dead, and I believe without Assets: For, in all the Proceedings in the House of Lords, none appeared on the behalf of his Widow, she had no Council there: But it was argued against Sir Samuel Barnardiston, by Mr. Mountague, the late Lord Chief-Baron, to vindicate the Proceedings of the Exchequer-Chamber, and Judgment was given, as hath been said, in the House of Lords.
'But what happened next? The Commons were so uneasy under that Judgment, and the Injury which might be done to the People, from whom they derived their Authority, by double or false Returns, that the next thing was the Interposition of the Legislature to apply a Remedy, and the Lords came into it, though it was a great discredit to the Reversal of that Judgment; for the Act of the 7th of the late King, declares false Returns to be against Law, and provides an Action shall lie where an Officer makes a Return falsly and maliciously; they never thought is an ensnaring thing, but knew Malice might be tried in that as well as many other Cases: And I wonder to hear falsò & malitiesè should be so much words of course. Men are tried for their Lives every day, where Malice is the main point in Issue. If a Man does without any Provocation kill another, the Law intends Malice, and that is Murder: So here, if an Officer refuseth the Vote of one, who hath a clear and indisputable Right, the Law presumes it done maliciously; but if the Officer refuses a Man's Vote, and there is any probable Cause, or Colour to do it, or his Right of voting is doubtful, the Judge will tell the Jury they ought to find for the Defendant; and therefore it is only in a plain and glaring Case, that a Man can prevail in such an Action; and this by the way, is an Answer to that Objection, that such Actions as these will bring all your Elections to be determined by the Lords; since an Officer can never be found guilty by a Jury upon this Action, where there is a Controversy or Dispute, much less can the Lords try or determine any thing of the Right.
'There is another Case, and that is the Case of Mr. Onslow against the Bailiff of Haslemere; that Judgment was against the Action; and was given by my Lord Chief-Justice North, and the rest of the Judges of the Common Pleas, upon the Authority of the Judgment in the Case of Soame and Barnardiston, in the Exchequer-Chamber: and no wonder; they would not give a Judgment contrary to what some of themselves had given in another Place.
'Sir, this Question hath been before this House not long since, Whether a Candidate should be hindered from proceeding upon an Action at Law, before he had come to this House for their Determination, whether he was chosen or no? And this House, upon a solemn Debate, adjudged that he might go to Law before he had come hither; and I desire your Clerk may read a word or two in your Journal, 'tis Monday 13 March 98.
Clerk reads. '[The House being acquainted, that John Buller Esq; who was Candidate at the Election for choice of Members to serve in this present Parliament, for the Borough of Lescard, in the County Cornwall, hath brought an Action upon the Statute made in the 7th Year of his Majesty's Reign, against Mr. Richard Roberts, Mayor of the said Borough, for the Sum of 500 l. for making a false Return of William Bridges Esq; although the said Mr. Buller. never petitioned against, or questioned the said Return in this House, and a Debate arising thereupon, resolved that the Debate be adjourned 'till Wednesday morning next.']
Sir Joseph Jekyll.
'Now I desire you to look upon Wednesday the 15th day of March, when that Debate was resumed.
Clerk reads. '[This was the 15th of March. The House resumed the adjourned Debate relating to Mr. Buller; and after a long Debate, the same fell, without any thing done thereupon.']
Sir Joseph Jekyll.
Members. Well, what then?
'I take this to be a plain Authority, that will govern the Case before you: For if it was not reasonable to restrain a Man, from proceeding at Law upon the Statute, before he had come hither for a Determination, when it was to controvert the very Election, which was undoubtedly proper for the Judicature of the House; much less will it be reasonable to restrain a Proceeding at Law, which is not to controvert the Election, and upon a Case not proper for the Judicature of the House; and the House doing nothing upon that Complaint, is a Declaration, that the House could not justly do any thing upon it. For if a Man makes a Motion in any other Court, and the Court declares they will do nothing upon it, I desire to know whether that be not a Declaration of that Court, that the Motion is unreasonable, and it is all the Judgment the Court gives in such a Case. And I had the Honour to sit in Parliament when that Motion was made, and very much pressed; and some that have spoke in this Debate, were then of an Opinion contrary to what they are now, and were not for stopping the Course of Law.
'Sir, I apprehend the Action is well founded in this Case; this Man had a Right to vote, he had an Injury done him in respect to that Right, he hath sought to be repaired in a proper way, and he could not be repaired in any other: I am for doing nothing to his Prejudice, and therefore am against your question.'
Mr. Harley, (Speaker.)
'Sir, I shall trouble you but with a few words after this long Debate: And rather to understand the Terms you are debating on, than to think any thing I can offer to be of any great Weight. But I take the question not to be as some have represented it, but to be singly this in general, whether an Action does lie at Common-Law in the Case before you?
'There is no need to mention the particular Circumstances of Ailesbury Election; for if that was the single Case, you might have taken another Method. I will not insist, that in this very Election, a great number of those Inhabitants petitioned this House upon this point, that their Votes were denied: And after this Petition had lain in the House some time, it was withdrawn by their own consent; I do not trouble myself whether this particular Man was amongst them, nor will I trouble you with what may reasonably be urged from this; but leave that to other Gentlemen.
'But I desire we may understand the terms upon which we are debating; we have had Maxims of the Common-Law, and the Rights of Parliament mentioned. The CommonLaw is the Common-Usage of the Realm; I take the Laws of Parliament to be the Common-Law of the Land, and the Usage of Parliament to be the Law of Parliament; and the Law of Parliament is to be known by Usage, as the Common-Law is.
'Then how shall we know whether this belongs to the Common-Law? If there be any other way, I should be glad to be informed; but I think there is no other way of knowing, whether an Action will lie at Common Law, but by Reason or Usage, and Precedents. Now, if by Reason; it is to be made out by what necessarily attends this Case, or some other Cases like it. And pray what do they offer, that it lies at Common-Law? Do they give you any Precedent? What Reason do they offer? I suppose that which was read last is no Precedent in this Case; for that was an Action upon the Statute; or that the Courts below take upon them a Legislature instead of a Judicature, which must be, if there be no Rule for them to go by. I take the question you have read, to consist of two parts; one asserting your own Right, the other is Negative, that no other Courts have any Right, but in Cases particularly directed by the Statute.
'I cannot think this of Electors and Elected a Privilege, I take it to be a Service both in the Electors and Elected; and formerly it was reckoned a hard Service; I know not how they find it now. 'Tis a Service, I take it, because all who are Electors are liable to pay the Wages, and I take that to be a Burden: And not only from that, but the very Towns that were Boroughs, and elected when one paid Fifteenths, the other paid Tenths; so that I take it to be a Service: And if a Franchise, see the Consequence; it will be in the power of the Crown to create as many Boroughs as they please.
'Then consider, this House is in possession of this Power, as of Right, and I do not find the Common-Law in possession of any such Right. Then what do they offer to bring it in, but that there would be some failure of Justice? Now I took it, that the Judges are jus dicere, and not jus dare: If any thing want a Provision to be made for it, it must be done by the legislative Power; and if the Electors want it, Provision must be made for them, that they shall have an Action. And those Gentlemen, who think that necessary, may bring in a Bill to that purpose, and take the Sense of the Legislature upon it in a regular Way.
'The Question before you now is, Whether the Examination, Hearing, and Determination of all Matters relating to Elections, where some Statutes have not particularly directed otherwise, do not belong to this House? There was a famous Case of Goodwin, that was contested by the Crown, and the Crown pretended to send out another Writ. And there they say, that as to Members of Parliament, their Attendance, &c. they are the sole Judge: And this they laid before King James in the first Year of his Reign, and claim it as their sole Right, and the King's second Writ was determined to be void.
'But a Gentleman makes an Argument, if one should strike another in the House, what Remedy? Why there is an Act made for that Case in Henry the VIth's time.
'I think now the Matter will turn upon this: Say they, 'tis true you can try Elections, and who are the Electors; but here is one thing remains, that is, to give Satisfaction. Have they any Precedents for this? I believe the Precedents are without; they have a Power for what is necessary; nothing less than a Law can give the other.
'Gentlemen say, there may be a Difference in Judgment in Courts below, but they are subordinate, and there lies an Appeal: But in this Case, all Courts will be co-ordinate with you; and therefore if that be a Grievance, nay a Solecisin in Government, prevent it now.
'Tis said, what will your Vote do? That is pretty odd: If they would have an Act of Parliament, your Vote must be the Ground of it.
'You are Judges of the Whole; but say some, you cannot give the pecuniary Satisfaction. Well, suppose so; but you can restore all to their Right. But let me say this, if you would not set up a co-ordinate Power with you in Matters of Elections, and which will be too hard for you at last, I hope it will be a Warning to you, to take more care in the Judging of your Elections for the time to come.
'If the Judgment belongs to you, and you are possessed of it for so long a Tract of Time, that no body can offer any thing against it since Hen. IV's time; till Gentlemen shew me some Reason, why the Common-Law should lay hold of it, I must be of Opinion, that it does belong to you, and no Court can take cognizance of it but you, except where it is otherwise provided for by Statute.'
Sir Thomas Meres.
'Sir, I shall not enter into a Discourse, and repeat what I remember of former times: I will say but this, let others answer it better if they can. As to the Words falsò & malitiosè, it seems one Chief-Justice said, they were Words of Importance, and must be proved; another Chief-Justice said, they were only Words of course, that is, like Pepper and Vinegar to a Slice of Roaft-Beef: So there is one ChiefJustice, that spoke last but one, against another.
'As to making Satisfaction, I confess, I like very well what that Gentleman said on the right-hand, if there was any Precedent for it, I agree it would do very well, that this House could give Damages, and we will make the best of it; but most of these things have spite in them, and these Actions are brought with spite. Now this we can do, we can punish the Officer, and there is Revenge in that; and that is a sweet Bit, and some Satisfaction. What further occurs to me, hath been spoken by other Gentlemen, better than I can do it; and I shall not repeat, it being so late in the Night.'
Mr. Cowper, (afterwards Earl Cowper.)
'I perfectly agree with that honourable and learned Gentleman that spoke last but one in this Debate, in what he laid down as an undoubted Maxim or Ground-work for the Opinion he delivered, that the Law and Custom of Parliament is Part of the Law of the Land, and as such ought to be taken notice of by all Persons. And I think 'tis the exact Standard by which we ought to walk; and the Deduction my poor Judgment is apt to make from that Principle is this, That we ought not, out of Zeal to our own Jurisdiction, to go one Step farther than that known Law and Custom of Parliament will warrant us to do.
'Now I take it upon this Debate, that this Law and Custom of Parliament doth not give the Subject, who is injured by his Vote being denied him, any Satisfaction, or Recompence for that Damage: And am the rather confirmed in that Opinion, because that very learned and honourable Gentleman, who is particularly knowing in the Laws and Precedents of Parliament, has not pleased to represent to you any one Precedent, where the Subject so injured hath complained to the Parliament, and had Redress in that Particular; but all Petitions have been either from the Candidates, or Electors, complaining of an undue Return. So that it cannot be shewed, that it hath been the Law and Custom of Parliament to give that Remedy, or Relief in Parliament, which is the Subject-Matter, or End of the Action now in question.
'I go likewise along with him, and every Gentleman that hath spoke in this Debate, that by the Law and Custom of Parliament, none but yourselves can determine who are rightly elected, in order to displace, or place them here; and, incident to that End, you have the sole Right of considering the Right of the Electors: I say so far forth, as it is necessarily incident to determine who shall, and who shall not fit here; and no other Court can consider the Right of the Electors, in order to determine the Right of any to fit in this Place, further than you, by some Act of Parliament, have given them leave. But this Matter having now been disputed a great while, you have had it fully represented to you, how they came to hold the Scales in this Action in Westminster-hall, not as in a Case where the Right of Election, or the Privileges of this House was the Subject-Matter of the Question: the Action was brought there only to entitle the injured Subject to Damages. And this Matter ought to be considered, as it relates to different Ends and Purposes, and upon that it turned in the Case of Soame and Barnardiston. They who thought that Action lay, thought Courts below might try the Merits of an Election to repair Damages, not to determine who should be admitted to sit in Parliament.
'And I will venture to say, that the Judgment of the House of Lords that confirmed that Reversal, was in no wise, at that time, satisfactory to the Commons of England.
'But the Act of Parliament that hath been mentioned, was built upon this, that the Reversal of the Judgment between Barnardisto and Soame was not Right, and so that Act was procured to set up the Right of the Commons of England, that was thought to be invaded by that Reversal, or Judgment, that the Action upon the Case did not lie.
'I will go a Step farther, that as you have the sole Power to try the Right of Election, and consider the Right of the Electors, to the End I mentioned, to determine who shall be admitted here; so I grant it hath been the Law and Custom of Parliaments, (how ancient I will not enquire) to punish the Offenders, particularly the Officer and Magistrate presiding at the Election, for doing any Wrong, or Injury in his Office on that Occasion, in order to make him an Example; or as an Offender against the Public, and the Constitution of Parliament: So far I grant you have just Right to go, and no body ought to interfere with you.
'But now we are carrying the Matter yet further: The Question now is not, Whether we have the sole Right to punish the Officer as a public Offender; this Action is not brought to that end, nor is there a Word in the Declaration who was, or who was not duly elected, or that the Constitution or Privilege of Parliament was violated. But the Plaintiff only says he had a Right to vote, and that he was injuriously denied it (whether the right or wrong Member was returned, he meddles not with it) and he submits it to the Court and to the Law, Whether he ought not to have Damages for that Wrong? And the Question now is, Whether that Demand of Damages was not well founded? Or whether there is any thing in this, contrary to the Law and Constitution of Parliament? Law depending on Custom, certainly consists not in, and is not to be made out by one Act, but by often re-iterated Acts: And that must be very far from the Law and Custom of Parliament, which is so far from being a frequent Repetition of Acts, or Precedents, that in this Case, there is not one Instance, where an Elector hath brought his Petition, without regard to the Return made, and desired his particular Right to vote might be tried and asserted, he having been obstructed and injured in giving his Vote: Nor was ever such Elector repaired in Damages here, nor ever had his particular Right to vote resolved, or asserted by any Judgment, or Declaration of this House.
'The learned and honourable Person, upon whose Reasoning I am humbly offering my Thoughts, with great Deference, was pleased to instance in the Case of five Persons, in the Town of Aylesbury, who exhibited a Petition, and complained of an Injury done them at an Election for that Town, at which their Votes were refused. And if they complained of nothing further, and did not conclude to the Right of the Return, and complain, that they were unduly represented, I admit it had been so far an Instance to his Purpose. But if they had so complained only of the Injury done the Petitioners in denying their Votes; yet he is pleased to tell you, this Petition was withdrawn, and by the Consent of the Persons who presented it, and so came to nothing. I suppose this is the single Precedent to prove the Law and Custom of Parliament, because there is no other Instance given. It does not appear upon what Ground or Reasons it was withdrawn; and I having no particular Memory of that Passage; you will pardon me, if I am mistaken in my Conjecture. I believe no Man, that seeks a Remedy, would desist, if he expected to succeed; so I take the most probable Reason (till another appear) to be, that they were hopeless of doing any good with it: And one Petition not prosecuted, will hardly shew, that Parliaments use to give Redress in such Cases. Now, if that Precedent had been successful, if the Petition had been referred to a Committee, if Damages had been given upon the Complaint, and a declarative Vote had passed to assert the Petitioners Right, (but I did not observe there were any such Proceedings;) then, indeed, I must admit, that it was one Precedent in point, and a very material one; and it would have proved, that we had once held Plea of this Matter, and by consequence, if we had often done so, that no body else had to do with it. But if that Precedent be defective, and none can shew, that ever any Petition was exhibited by any Elector, for a personal Injury done him in rejecting his Vote, tho' the Person he would have voted for was returned, this Action may lie for such an Injury done to an Elector, without interfering with any Law, or Usage of Parliament, that hath yet been made evident; and that brings me to another Matter of that honourable Person's Discourse, and I acknowledge he entered into it with a great deal of Candour and Fairness.
'He was pleased to say, he thought it was admitted in this Debate, that the like Action is not to be found in all the Reports, or Books of Law. I would allow his Objection its due weight, and admit what I take his Meaning to be, that this Action, in the particular Species of it, may be new, tho' it's old in its Genus, or the principal Materials on which it is built; and I take it, if by the general Rule, or Reason of Law for such an Action, it be warranted, this Action (as a thousand other Actions on the Case may) will lie, tho' in all the Parts 'tis not to be exactly parallelled; for it is the very nature of, and implied in the name of an Action upon the Case, that every Man may maintain it on his particular Case, provided it carry in it the general Reason, or Ingredients required by Law to support such an Action, tho', in many Circumstances, it may be perfectly new. I see that honourable Person understands clearly the necessary Incidents of that Action; that is, there are to be Damnum & Injurie, which I take to mean a Damage to the Subject, not arising from a lawful, but, which is the Consequence, of an unlawful Act. Now, says he, first here is no Damage, because anciently the Attendance was thought a Service and a Burden, and the Right of Electing was a Service too, and in being deprived of a Service, there can be no Damage; and therefore one of the main Ingredients of an Action of the Case is wanting. This is clear Reasoning, and either to be answered or submitted to.
'It is said, the Right of Electing was a Service, how true, I doubt upon the Reason of the thing: A Service was often a Part of the Tenure, by which a Man held his Land till it came up to the Crown; and the Service was originally created by Grant and Reservation. Now, can any one imagine, that where one holds a small Freehold, any such Tenure was created between him and his immediate Lord, originally by Reservation, as that he should vote to send Members to Parliament?
'But it might be consider'd as a Service so created, it will not do the Business of the Argument, unless you consider it also as a Service of Burden, without Advantage or Privilege; for if it is a Privilege too, (tho' in its Creation it might be a Service, then the Depriving a Man of it is an Injury. Now no body can think but that the Right to elect a Parliament-Man, which is a distinguishing Character from the Vulgar, and hath its weight in the Legislature, is a Privilege; and therefore to be deprived of it, is to be deprived not only of a Service and Burden, but of a very valuable Privilege; and I believe any Englishman would think we dealt hardly by him, to deprive him of it, tho' we should tell him, at the same time, we deprived him only of a Service and Burden, and not of a valuable Privilege.
'There is another thing occurs on this Head: We have been so far from thinking the being elected, a Service or Burden only, that, in the nature of a Repeal of those Judgments of Soame and Barnardiston, by a positive Law, we have given the Elected double Damages if he be deprived of that Service. Therefore, by our own notion, and in our Case, 'tis a Privilege that ought to be recompensed even with double Damages, that is to say, when it concerns ourselves. And shall we declare it a mere Service in the Case of our Electors, not to be recompensed even by single Damages, and that after the undoubted Methods of the Common-Law have adjudged it their due; for I do not find any body doubts, whether this Man has proceeded in the legal Method throughout, even in the last Resort? The Lords have not judged the Fact; they are bound as to the Fact by the Verdict, and they are unquestionably the Judges of the Law on a Writ of Error. And therefore, as to what has been said, that any Fact of an Election might come to be determined before the Lords, it is a great mistake, for they judge purely of the Law on Writs of Error, as every one knows, that knows any thing of our Constitution. Give me leave to say, we, upon this Occasion, judge of this matter only as a Matter of Law, which may affect our Privileges; and, tho' we have Authority to consider what is Law, as it relates to, or may intrench upon our Privileges, no body that fits here can think that there lies an Appeal in this Place, or a second Consideration of this matter after the Lords Judgment, as 'tis a Point of Law only, and as it regards the Right of the Subject. So that an Objection in Point of Law here, to the Judgment of the Lords, will not hold otherwise than as it relates to our own Privileges; for no body will say, that we are the dernier Resort in any other respect. And tho' that is the only Point that brings it properly under our Consideration; yet, I fear we are taking from the Subject, in effect, what the Law hath adjudged his Right, and reversing a legal Judgment given in the Subject's favour. There are other Arguments flung in, to make up the Weight only, as that which compares the present to the Case of a Dove-House; in which Case, in regard of the multitude of Actions that would follow, an Action will not lie for every one that is injured by the erecting of it. It is true, where a multitude are injured by one and the same Fact, it shall not be punished by a multitude of Actions; but the Public is to take care of it, because the Injury is of a public nature. But by the same Standard and known Laws of England, if one Man is so rash as to commit a multitude of Injuries, which severally affect several Persons, it was never said, that he became unpunishable by the multitude of his Offences, but every one injured has his Action against him. I have heard it said, defendit Numerus, but that is spoken as to the Number of Offenders, not the Number of Offences committed by the same Man. And these Injuries which consist in denying the Subject to vote, when of right he ought, will not be multiplied (as is objected) by letting the Subject know, that as they may come into Parliament to punish the Officer, as a public Offender against the Constitution; so the particular Person injured by being denied his Vote, may also have an Action for the private and particular Injury done to him only.
'I would mention one thing more: They who have spoke for the other Opinion, seem to take it for granted, (which I do not take to be a true way of reasoning) that because, in determining who have a Right to fit here, we do incidently, and only can, in order to that end, determine who have a Right to vote; therefore no other Judicature can try the same Matter or Right to vote, tho' it be to different Ends and Purposes.
'Now if you will consider the different Jurisdictions in the Constitution of this Kingdom, there is nothing more common, and many Instances may be given of it. There are Variety of Jurisdictions that try the same Fact, and yet each hath a sole and separate Jurisdiction in that Matter, to different Ends; and these Jurisdictions are not, in that respect, subordinate to another: take the spiritual and temporal; the spiritual is not subordinate, but only restrainable by the temporal, where they intrench upon the temporal; as in the common Instance of Matrimony, which, directly, and abstracted from other Purposes, is triable in the Spiritual Court, and no where else. But, yet, if that comes to be a Question of Fact in relation to a Title at Law, or to make out a Descent, why the Temporal Courts every day try it, tho' per se, and taken by itself, it belongs to the Jurisdiction of the Spiritual Court; and yet these Courts are not, in that respect, subordinate one to another.
'So, in the Case touched upon, of a Battery, 'tis not triable in the Common-Pleas, as 'tis an Offence against the public Peace, by Indictment, in order to a Fine, but triable in those Courts only that have a criminal Jurisdiction; but as 'tis a private Injury, and in order to recompense the injured in Damages, that is triable in the Court of Common-Pleas, and other Places which have Cognizance of civil Actions only; and this is not in respect that one Court is subordinate to the other, but one holds Plea of the same Fact, in order to one End; and the other in order to another End; and there is no clashing of Jurisdictions in such Cases.
'For what hath been objected, that this may create Variety of Judgments concerning the same Right; this does not weigh, it seems, in our own Cases; for we may bring our Actions for double Damages for a false Return, and yet that may produce the same Variety of Judgments. So was the Opinion of the House in the Case cited behind me; and the Law is plain, that tho' the last Determination of this House, where there hath been any, shall determine the Right of Election, and there the Judges and Jury shall be bound by the last Determination, and to act by the same Rule; yet, in Towns where there has been no Dispute of the Right settled here one way or other, the Candidate may, notwithstanding, bring his Action, and he, or the People of the Place, may also petition the House of Commons. And then there is the same Objection; for there may be Variety of Judgments touching the Right of Election, one in the House of Commons and another in the Courts below. And upon the Trial, in order to obtain Damages, a Jury, in such Cases, where the Right had never been settled in Parliament before the Election in question, are not directed by the Judgment of your House, on the same disputed Election, nor is any Jury bound to follow such Judgment; and if you will go upon a Supposition that a Judge and Jury may go contrary to Law and Right, or the Determinations of the House, in the Case before you, 'tis an Objection which you have overlooked in your own Cases; and therefore why should it be an Objection to hinder the Person whom you represent of his Remedy for the Injury done him?
'Upon the whole, I am for so much of your Question as serves only to declare, that you have the sole Power of determining the Right of all Elections, and even the Elector's Right to vote, to the end to try who is your Member, or to punish the Officer as an Offender against the Constitution: So far is agreeable to the constant Law and Practice of Parliament. But for that part of the Question which relates to the restraining the Electors from bringing their Actions for the personal or private Damage done to them, I think it is not agreeable to the Law or Constitution of Parliament.
Sir Humphry Mackworth.
'Mr. Freeman, we are much obliged to the Gentlemen that have argued on both sides, who have brought the Matter of this Debate into a narrow Compass: The Question is, whether an Elector be entitled to an Action at Common-Law against the Officer, for recovery of Damages, in case his Vote which he offered, be not taken down in writing, and entered on the Poll? or, whether the House of Commons have the sole Privilege of examining and determining the Right or Qualification of every Elector to give his Vote, and to judge of the Behaviour of every Sheriff and other Officer, in taking the Poll on the Election of Members to serve in Parliament.
'I am of Opinion, with great Submission to better Judgments, that the House of Commons have a sole Right of Judicature in these Cases, and that the Elector is not entitled to an Action at Common Law. I shall endeavour to support this Opinion by answering the Arguments that have been made use of to prove the contrary: And first, I crave leave to observe, that the Gentlemen who have argued on the other side, have not taken notice of a Distinction, which seems to be very material in this Case, and that is between an actual Force or Violence done by the Officer, and a bare Omission in point of Duty. It is agreed, that, in case the Officer does by Force or Violence obstruct, or hinder an Elector from offering or pronouncing his Vote at an Election, for which of the Candidates he pleases, the Elector will be entitled to an Action at Common Law for Recovery of Damages, for that is personal Wrong, and does not concern the Right or Qualification of an Elector to vote in Elections: But, in case the Officer does permit the Elector quietly to offer or pronounce his Vote, (as he did in the Case of Ashby, who pronounced his Vote for Sir Thomas Lee, and Symon Mayne Esq;) but does not think fit to enter his Vote upon the Poll, the Elector in this Case is not entitled to an Action at Common Law for recovery of Damages, because he has neither suffered any Force or Violence, nor is, by such Omission, deprived of his Vote; for a Vote being once pronounced, the Law takes it for the Benefit of the Public, tho' the Officer be wanting in his Duty; and none have power to determine whether the Elector had a legal Vote, and whether the Officer had sufficient Reason to refuse to enter the said Vote in the Poll, but the House of Commons. If any other Persons should have Authority in this Case, they will be able to destroy the Freedom of Elections, and the Constitution of Parliament.
'It is insisted by some Gentlemen, that the Electors have no proper Remedy, in this Case, in the House of Commons, and therefore they must have their Remedy at CommonLaw: but, with great Deference to their Judgments, the Electors have a proper Remedy, in this House, in every respect; for here their Votes will be allowed, the legal Representatives restored, and the Officer will be punished for any wilful Default in the Execution of his Office. This is a Remedy that answers the End for which every Elector is entitled to give his Vote, which is not for a private Advantage to himself, but for the general Advantage of the whole Kingdom. But the Action at Law is no proper Remedy in any respect; for since a Vote that is offered and refused, is as good by the Law of Parliament as a Vote that is offered and received, and is so adjudged on the Trial of every Election in the House of Commons, or else they could not fill their House with legal Representatives; it is not proper or reasonable that an Officer should pay Damages to an Elector that has not suffered any, nor that a public Offence should be punished by a private Satisfaction; which is not likely to prevent the Evil, preserve the Vote, and restore the Representative; nor is the same consistent with the Constitution or the public Safety.
The Qualification of Electors, and the Behaviour of Officers, in all Elections, are Matters of Parliament, and such Matters are not cognizable elsewhere, as hath been often declared by all the Judges of England: A Parliamentary Case requires a Parliamentary Remedy. And since Votes have been refused in all Elections; if Electors, in this Case, had been entitled to an Action at Law, it must be presumed, that some time or other such an Action would have been brought, which yet was never once attempted in any former Reign; and all those Acts of Parliament that were made to give Damages in Cases relating to Elections, do demonstrate that no such Damages could be recovered at Common-Law; for if they could, there had been no Occasion for making any of those Statutes.
It is insisted, that every Right must have a Remedy, but then the Subject must be first deprived of that Right, which in this Case he was not; and, even when he is, he must have his Remedy in a proper Manner, and in a proper Court. There are several sorts of Rights and several sorts of Laws in England, and there are several Courts of Justice for the Administration of those Laws: A Man that has a right to a Legacy cannot bring an Action at Common-Law, but he has a proper Remedy in the Spiritual Court. The like may be observed of Cases that belong to the Courts of Chancery, Admiralty, Stanneries, and of the Forest-Laws. The Subject cannot bring Actions at Common-Law in Cases that belong to the Jurisdiction of other Courts. And when my Lord-ChiefJustice Coke enumerates the several Laws in this Kingdom, he gives the Precedence to the Law and Custom of Parliament, which he tells us is superior to the Common-Law in Westminster-Hall. And as every Court at Law has its Customs and Privileges peculiar to itself, and is sole Judge of them, so also the High Court of Parliament, suis propriis Legibus & Consuetudinibus subsistit, hath its own Power, Laws and Customs, and is sole Judge thereof. And, if an Action at CommonLaw will not lie for a Legacy, where the Spiritual Court has a Jurisdiction, though the Temporal Courts have, in many respects, a superior Authority, such an Action will much less lie in a Case concerning the Parliament, which is the highest Court of the Kingdom, and who are sole Judges in all Cases relating to themselves. But some carry this further, and say that every Right must have a Remedy with Damages This may be true in most Cases, where a Man is deprived of Rights of Property and Possession; but there are many In stances to be given, where a Right of Franchise or Privilege is not entitled to any Damage; as a Person elected Mayor of a Corporation, if the proper Officer refuses to swear him, has no Action at Law for Damages, but his Remedy is by Mandamus out of the Queen's Bench; there is a Remedy by Quare impedit, but not to recover Damages. In a Writ of Right, you shall recover the Land, but no Damages: So in this Case, the proper Remedy is to have the Vote allowed, which can only be done by the House of Commons. Some Gentlemen have found out a new Distinction which I never heard before, that the House of Commons have the sole Privilege to judge of the Rights of Electors, and of the Behaviour of Officers, to one intent, but not to another; that is, in order to determine who are the legal Representatives, but not to give Damages to the Party injured. But, with great Submission, there is no weight at all in this Distinction; for, as it is plain that the Elector is not, in this Case, deprived of his Vote, and therefore suffers no damage, so it is also evident that the Judgment of the House of Commons, in Matters properly cognizable before them, cannot be contradicted by any other Judicature; and therefore their Judgment of the Qualification of the Elector, and of the Behaviour of the Officer, must be conclusive to all Intents and Purposes whatsoever. It is contrary to the Reason of all Laws, that the Behaviour of an Officer should be subject to the Determination of two independant Jurisdictions; or that he should be innocent by the Judgment of a superior Court, and guilty by the Judgment of an inferior; or that he should be twice punished for the same Offence. No Man can serve two Masters; the Officer, at this rate, will be every way ensnared, and made liable to Punishment, whether he does his duty or not; if he accepts illegal Votes on the Poll, he will forfeit 500 l. by the Statute, for a false Return; if he refuses them, he may be ruined by a multitude of Actions; for if one may bring an Action, there may be five hundred, since every Man, at this rate, may offer a Vote, and bring an Action for not entering it upon the Poll. How is this consistent with the Freedom of Elections, in which there ought to be no Terror, neither on the Electors, nor on the Officers? But as the Electors should be free to offer their Votes, so the Officers should be free to judge whether they ought to be entered on the Poll, or not; and they ought not to be accountable to any but the House of Commons, whose Servants they are, in all Matters relating to Elections, and who are entrusted with the Determination of all Matters and Cases relating thereto; and they may as well punish them for taking illegal Votes on the Poll, as for not taking those that are legal. In neither of which Cases have the Judges of the Common Law any Jurisdiction, tho' there is the same reason in both, to take care that every the meanest Subject may have Relief for any Injury done him; but we are not to take more care of the meanest Subject than of the whole House of Commons. The greatest Subject in England ought to have no Relief but what is consistent with the Law of Parliament, and the Safety of the Constitution. If an Action lies, and upon a Judgment on that Action a Writ of Error lies in the House of Peers, the Lords will be the sole Judges at last, who have Votes to chuse a House of Commons; which is directly contrary to the fundamental Maxim of the Law and Custom of Parliament, that the two Houses are mutual Checks to each other, and sole Judges of their own Privileges.
'This is an excellent Constitution, and admirably well contrived for the common Safety: But how can this Constitution be preserved, if the Lords can punish our Officers, and govern our Elections? This will be the way to destroy all Checks, and to make the House of Commons dependent on the Lords; and then I cannot see upon what Foundation you can be said to sit here to do any service for your Country.
'Others insist that this is a Right that is incident to the Freehold and Freedom of Electors; therefore, as their Freeholds are cognizable at Common-Law, so is every Incident belonging to it. This Argument is plausible at first sight, but in reality there is nothing in it; for tho' the Commons of England have submitted their private Differences to Arbitrators, or Judges, indifferently chosen and appointed by the Prince, the common Parent of the People; yet they have never submitted their fundamental Rights and Privileges, which they hold in their public and political Capacities, as a free Branch of the High Court of Parliament, to any but their own Representatives, who are chosen and appointed by themselves. This is not a Case, properly speaking, between Party and Party, but between the Lords and Commons; because the Determination of this Case brings the whole Right in question, who have a Privilege to judge of the Qualification of Electors, to give their Votes in Election of Members to serve in Parliament, whether the Lords or the Commons? It is not now the Question who hath the best Right to a Freehold or Freedom, or to any thing that is incident to it; but whether the Commons of England shall have any Freeholds or Freedoms at all? or, which is the same thing in effect, whether they should have any Security for those Rights or not? For if the Lords are Judges of your Privileges, you can hold no Right but during their Pleasure.
'The Lords seem to contend for the Right of the Subject, but I wish it be not for a Power to enable themselves to judge and determine, as they think fit, of all our Rights and Liberties; for this is the necessary Consequence of allowing an Elector to have a Remedy in any other Place but within these Walls.
'This is my humble Opinion; and if I am mistaken, other Gentlemen will set me right. This is certainly a Matter of the highest Importance to the Welfare of the Subject, and I doubt not but they will very well consider it before they give way to the establishing a Precedent that tends to destroy the Privileges of this House, or the Liberties of their Country.
'A great Tenderness is expressed for this poor Man; whose Vote has been refused: But whether he had a right to give his Vote is very much questioned, and never yet determined by this House, who has the proper Judicature thereof. But admitting he had a Vote, whether ought to be preferred; a private Interest or the public Safety? Whether will be most for the Honour of this House and the Interest of our Electors, the Care of a private Person by a new-invented Action, neither warranted by Reason, Precedent, or any established Law; or the Care of the Parliament, and the Constitution on which depend the Rights and Liberties of all the Commons of England.
'Sir, I beg pardon for taking up so much of your time, but I must confess it seems to me, that our All depends upon a right Determination of this Matter; for I cannot see any other Reason why this new Device is supported by the Lords, but only to render you precarious and useless.'
Sir Gilbert Dolben.
'Mr. Freeman, I shall not trouble you very long at this time of day; I think the Point in Debate has been truly stated by the Gentlemen who insisted on this Question, Whether an Action will lie for an Elector, for having been refused his Vote at the Election of a Member to serve in Parliament ? A learned Gentleman would have the Question to be, not whether an Action will lie, but whether this House has the sole Right of determining that Matter, and of giving remedy in it. I confess I think it is more properly stated the other way: but the thing is scarce worth a Dispute, since which way soever you turn the Tables it comes to the same Point, and one of the Questions will in consequence be resolved by the Resolution. of the other. For if that Question be put which is proposed by the Gentleman, and carried in the Affirmative, that this House has the sole Right of determining this, and all other Matters whatsoever that concern the Right of Election; then it must follow, that whoever is wronged in any such respect, cannot be redressed by Action, since the Right of determining in Cases of this nature, is not in the Courts below, but solely in this House.
'I shall not offer you any Arguments to prove this sole Right, many having been urged by others; but I will consider some things (without taking up much of your time,) that have been offered as Objections to it.
'Some Gentlemen have made a distinction, in this Case, between the Right of Electors and of the Elected; and they will have it, that the Courts below may decide the first, but not the last; whereas, in my poor Opinion, the Decision of the Elector's Right must necessarily, in many Cases, decide who has a right to be elected. For suppose a common Case, that one of the Candidates insists upon an Election by a select Number, and the other upon a popular Election: If, in this Case one of the Populace be refused his Vote, upon a Pretence that he is not of the select number, whereupon he brings his Action against the Officer; will not the Event of that Trial determine (in Consequence) the Right of the Candidates? Surely it must; since if it go for the Plaintiff, he for whom the Plaintiff offered to vote, and who had the popular Interest, will appear to have had the Right of Election; and so will the other Candidate, if it go for the Defendant. Several other Cases to the same purpose might be put: So that if an Action of this nature should lie, it must (as I apprehend) unavoidably follow, that Westminster-Hall by original Action, and by Writ of Error the House of Lords, will have power to determine, (at least consequentially,) who has a Right to sit in this House, and who not. And how consistent such a Determination will be with your undeniable Right, (acknowledged on all sides) of determining the Elections of your Members, exclusive of all other Jurisdictions, I leave to Gentlemen to consider.
'A learned Person was pleased to object, that Right is founded upon Usage; and if this House had the sole Right of judging in a Case of this nature, where a single Elector is wronged, doubtless there would be some Precedent of Relief given to such an injured Person. But (says the Gentleman) there is no such Precedent, and therefore it must follow, that this House has not the sole Right of relieving in that Case. I think I may safely deny his first Proposition, as he applies it to the Rights of this House, which (generally speaking) are not founded upon Usage. Sir, the Rights of Parliament are chiefly founded upon the Nature and Constitution of Parliaments. Usage is indeed a Corroboration, and an Evidence of those Rights; but the Foundation of them, is our being a part of the Legislature, whereby we necessarily become invested with such Rights and Privileges, as enable us to act, and to discharge our Duty, in that great Capacity: So that it is not so much what has been used, as what is necessary to the Support of our Constitution, that must be the Rule and Measure in determining the Rights of the House of Commons.
'But neither has Usage been wanting in this Case: For whereas the Gentleman asserts, that there is no Precedent where this House has given Relief to a wronged Elector, (with Submission,) several such Precedents appear upon your Books, particularly in the Case of Banbury, where four or five of the Inhabitants complained, and the House gave a Remedy. And I cannot see why, if it has been given to four, it may not be given to one; nay, I should think if more than one have been relieved, a fortiori one should be relievable.
'But it seems to me, that the Argument drawn from Usage, goes much further than the learned Gentleman intended it should: for if all right be founded upon Usage, all Right of Action must be so founded; and then what becomes of this Action which the Gentleman has laboured to support? If Usage be nothing else but the Repetition of the like Acts, then this Action (according to the Gentleman's Rule, that Usage is the Foundation of Right,) cannot be rightful, unless there hath been a Repetition of the like Action.
'Nor can it be said, that this is the first time any such Cause of Action has arisen, and that therefore it could not have been brought before; for there has scarce been a Parliament called in any Reign, but some or other has, without doubt, been wrongfully refused his Vote: So that the Cause having been frequent, it must have had the like effect ere now, in Case such a wrong could have been redressed by bringing such an Action.
'But no Gentleman has pretended to say, that any Action of this nature was ever brought before; and therefore we may infer from the learned Gentleman's own Position, as likewise from the Authority of Littleton's Text, that, since none has been brought, none can be brought. And this has been the constant Opinion of the Courts in Westminster-Hall, the Judges having, upon every Occasion, where the Rights of Parliament have fallen under their Consideration, in all times declared, that nothing of that kind is within their Jurisdiction; nor can they judge of any such matter, farther than as they are impowered by particular Statutes.
'And this was the Reason why the Judgment in Barnardiston's Case, given in the Queen's-Bench, was reversed in the Exchequer-Chamber, because it was a thing purely of parliamentary Cognizance; the House of Commons having the sole power of determining all matters relating to Elections and Returns, except in Statute-Cases. Nay, the Court of King's-Bench had declared, they would not have proceeded in that Action of Barnardiston, had it not been grounded upon a precedent Judgment given in the House of Commons. But the Judges in the Exchequer-Chamber thought, that even the Determination of the House was not a sufficient Authority to the Courts below, to hold Plea in an Action relating to the Rights of Parliament, tho' the Action was grounded upon that Determination; and therefore they reversed the Judgment given in that Action, and (which is a mighty strong Circumstance in that Case) that Reversal was afterwards affirmed in the House of Lords. So that it is plain, even the Lords themselves were, at that time, of the same Opinion of the Judges, that nothing which concerned Elections was cognizable in Westminster-Hall: For otherwise they could not have affirmed the Judgment given in the Exchequer-Chamber, which was grounded entirely upon that Maxim.
'This appears farther, by what their Lordships did in the Case of Hollis and Elliot, against whom Judgment had been given in the King's-Bench, for what they had said and done in this House. In the Year 1667, the House of Commons voted, that the Judgment given in the King's-Bench against those Persons was illegal, as being against the Privilege of Parliament. And this Vote was (as I remember) delivered to the Lords at a Conference, with a desire of their Concurrence to it: Accordingly, the Lords sent a Message, that they did concur. Nay, they were so zealous, as to desire the Lord Hollis to bring a Writ of Error upon that Judgment, which was done, and the Judgment was reversed. From whence it must be inferred, that their Lordships were then of Opinion, that whatever Judgment is against the Privilege of Parliament (that is, of either House of Parliament,) is an illegal Judgment.
'Now to lay these two Opinions of the Lords together: If the House of Commons has the sole Privilege of judging all matters relating to Elections, (upon which ground their Lordships affirmed the Reversal of the Judgment in Barnardiston's Case) and if every Judgment given against the Privilege of Parliament be illegal (as their Lordships both resolved, and judged in the Case of Hollis and Elliot,) how comes it to pass, that the Lords have lately thought fit to reverse the Judgment given in this Case of Ashby and White, which was grounded upon that very Opinion, established by their Lordships in the Case of Barnardiston, that all matters concerning Elections are determinable only in the House of Commons? And consequently, how can we avoid saying, (pursuant to the other Opinion, and to the Judgment they gave in the Case of Hollis) that their Lordships Judgment of Reversal given upon the Writ of Error in Ashby's Case, being against what themselves have owned to be the Privilege of the House of Commons, is an erroneous, (not to say an illegal) Judgment?
'I confess I cannot much wonder at its being so, when I consider, that the steps their Lordships made in proceeding to this Judgment of Reversal, were so very hasty, as not to afford them sufficient time to weigh and to deliberate upon a matter of such Importance. This Cause had depended near a twelvemonth in the King's-Bench, it had been argued several times at the Bar, and at length seriatim by the Justices, three of whom, upon the Reason of former Resolutions, gave Judgment against the Plaintiff, that the Action does not lie: And yet no sooner was this Writ of Error brought, but the Errors are immediately argued; and upon the first Argument, the Opinion of the Judges are required; and notwithstanding they desired time but till the next day to consider of the Case, the Lords (as I am very well assured) would not allow them an Hour; but obliged them to deliver their present Thoughts, which tho' several of them expressed very doubtfully, and several others were for affirming the Judgment; yet their Lordships were so very clear, and so determinate in the Point, that, without any farther Consideration, the Judgment was reversed.
'And now I desire Gentlemen to judge, whether, in this Instance, the Lords have shewn that Regard either to the Privileges, or to the Dignity of this House, which their Ancestors, and themselves, had formerly expressed upon the Occasions before mentioned.
'I will take notice but of one thing more, which fell from a learned Gentleman, who insisted, that the Election to Parliament is not a Service, but a Privilege, because double Damages are given by the late Act concerning Returns. I have cast my Eye upon that Act, and I think, if the Preamble be read, it will appear, that Gentleman was somewhat unfortunate in appealing to it; for the Preamble calls the Election to Parliament, a Service, in express terms, and certainly with good Reason; if the House will give me leave, I will read it.
'Whereas false and double Returns, of Members to serve in Parliament, are an Abuse of Trust in a matter of the greatest Consequence to the Kingdom, and not only an Injury to the Persons duly chosen, by keeping them from their Service in the House of Commons and putting them to great expence to make their Elections appear; but also to the Counties, Cities, Boroughs, and Cinque-ports by which they are chosen, and the Business of Parliament disturbed and delayed thereby; Be it therefore enacted,—
Mr. King, (afterwards Lord King, and Lord Chancellor.)
'Sir, not to trouble you any longer, I am entirely for the Question, as it is stated.'
'That which calls me up, in the first Place, is what that honourable Gentleman, just against me, was pleased to intitimate, as if the Right of electing was only a Service, and not a Liberty, or Privilege; and I find a worthy Member, that spoke last, is of the same Opinion. Truly, I am loth to tell you my own, without desiring the Act 25 Car. II. 9 cap. may be read.
Members. No, no.
'Tis an Act to enable the County-Palatine of Durham to send Members to Parliament, and it recites, that they had not, before that time, had the Liberty, and Privilege of electing and sending any Members to Parliament: Where you see the Legislature call it a Liberty and Privilege; and if the Legislature call it so, I think I may venture to call it so too. And if it be a Liberty and Privilege, then the question will be, whether it does not stand on the same bottom with our Liberties and Privileges? In case of any other Franchise or Liberty, an Action lies at Common-Law for the Breach thereof; and why an Action should not lie at Common-Law for the Breach of this Franchise, as well as for the Breach of every other Franchise, is to me very strange. Gentlemen take it for granted, this is purely an Action at Common-Law, and no Statute hath any influence on it. Now there is a Statute which hath not been mentioned, only I must first promise that which, I think, no body will deny, viz. That wherever an Act of Parliament does forbid any thing, if any body be injured by the doing of the thing so prohibited by that Act, in Consequence of Law, the Person injured hath an Action: I say, there is a Statute that forbids disturbances or hindrances in Matters of Elections; And, by Consequence of Law, the Statute gives an Action to the Party injured, against the Person disturbing or hindering him in his Election. The Statute I mean is the 3 Ed. I. 5 cap. That is a positive Law whereby all Disturbances in Elections are forbid: Every Man is forbid to hinder or disturb by Force or Arms, by Malice, or menacing any Man, to make a free Election.
'I shall only instance in one parallel Case, tho' I could in many more, the Statute in Rich. II's time, de Scand. Mag. which only forbids the speaking evil of great Men; there is not one word of an Action: yet, by Operation of Law, it was always held, that an Action would lie upon that Statute for a Scandal of a great Man, because it was prohibited by that Statute. So here, the Statute forbids the disturbing of any Man by Force or Malice to make free Election; the Jury have found, that the Defendants did, in this Case, maliciously disturb and hinder the Plaintiff from voting at the Election; and, by a like Consequence and Operation of Law, this Action is maintainable.
'Gentlemen say, this is a new Action never heard of before: It is true, this particular Action was never brought before; but Actions of the same kind and nature, and grounded on the same Principles and Reasons of Law, have been brought before. Et ubi eadem est ratio, idem jes. I could give you many Instances of this kind. Was it ever heard, 'till the 20th or 21st Car. II. that an Action lay against an Officer, for denying a Poll to one who stood Candidate, for a BridgeMaster? The Mayor denied the Poll, and said, he was judge of the Election: And upon this the Person injured brought his Action, and recovered. At the same time it was said, there was no such Action heard of before; 'tis true, not that Species, but the Genus was heard of. Another Action was brought 30 Car. II. (which was never heard of before) against a Mayor, for refusing the Plaintiff's Vote for a succeeding Mayor.
'I believe every body knows, that all the Law-Books for 400 Years say, that the Reversioner has Liberty to go into an Estate of a Tenant for Life, to see if he commit waste. And no Action was ever brought till 16 Jan. I. by a Reversioner against a Tenant for Life, for refusing to let him in to see whether waste was committed. No Action was ever brought against a Master of a Ship, for the negligent keeping, and Loss of Goods on board his Ship, till about the 24 Car. II. and yet the Action lay.
'There was another Action, in K. Car. Ist's time, brought for a false and malicious Prosecution of an Indictment of a Man for Treason. There was the same Objection; and it was said, that this would deter People from prosecuting. And no body ever dreamt of it before, 'tis true, but it stood upon the general Reason of the Law; if you do me a wrong, I must have a Remedy. And as to what a worthy Gentleman hath said, that there are Instances at Common-Law, where a Man shall recover, and yet have no damages; 'tis true in real Actions, but let him give me an Instance of that in an Action of the Case. He recovers nothing there; if he does not recover Damages in real Actions, he recovers the Land itself.
Members. The Question, the Question.
'I find Gentlemen are very uneasy, I will trouble you no further.
Members. Go on, go on.
'I agree, the determining the Right of Election belongs to the House of Commons; and they ought to apply to the House of Commons in that Case: And I shall not depart from that, I think I cannot, without ruining the Constitution; but that which I say is, that this Action does not at all relate to the Right of Election. This Action is brought by a Man that hath an undoubted Right of voting, against an Officer for maliciously refusing his Vote. Put the Case this had happened in a County, (for the Law would have been the same) that a Freeholder, who had a Right to vote, had tendered his Vote to the Sheriff; and tho' he knew he was a Freeholder, yet, the Sheriff should maliciously refuse his Vote: hath the Sheriff done this Man an Injury, or no? This Man does not bring his Action, because the Person he would have voted for is not returned, but 'tis because there is an Injury done to his Franchise. If I thought the Right of Election was concerned in this Case, I would go as far as any, for I think that does belong to the House; but I do not think this is concerned in the present Case.'
Sir Thomas Littleton.
'I shall be shorter than some imagine. It has been discoursed, whether this be a Privilege, or a Burden, &c. Let them think it a Burden that call it so: If it be a Burden 'tis such a Burden as some Men spend a great part of their Estate for, as if it was a Privilege. I think this Resolution which is proposed, tends to the encouraging one Man to injure another Man's Franchise without any Reparation, which I believe is not very consistent with Law or Reason. You have no doubt a Power of punishing the Offenders, but you cannot give Damages: I think this is a plain Case; here was a Man who had a Right to vote, and was not admitted.
Sir Thomas Littleton.
Members. No, no.
'That is admitted upon the Judgment: for the Case is made upon the Right; and if he had not proved his Right, he could not have recovered: Then if he was denied his Right, no body will say, we can give him Damages. What would you have a poor Man do, come with a Petition, and fee Council, and attend the Parliament for a Month together? The Man it seems thought it better to go this way. I think if he had complained, we might have punished the Officer; but for Damages, he could have them no way but this.
'Suppose the Judges in Westminster-Hall had been of Opinion, that this Action did lie, and the Constables had brought a Writ of Error; what would you have said in a Case where a Man had been denied his Privilege of voting, and the Law had given Damages, if the Lords had said no, there shall be no Action? I think the Lords have done what is right, I think they have relieved the Person injured according to Justice; and it does not interfere with your Rights, for he founds his Action upon your Determination.
Mr. Walpole. Mr. Serjeant Hooper.
Members. No, no.
'Mr. Freeman, I desire to have the question read.'
Accordingly Mr. Freeman in the Chair read the question again.
'A Gentleman that spoke last but one, was pleased to say, that if he thought the Right of electing Members was any ways concerned in this Question, he would come heartily into it: I know not what that Gentleman means by it; but believe all future Elections will depend much upon the Determination you make now. If you give the Lords this Jurisdiction, to take cognizance of matters relating to Elections, we must come to them to know whether we have a Right to sit here. One Gentleman said, he could not tell whether the sitting here was a Burden, or a Privilege: I believe it is a Privilege to some, who by sitting here obtain a good Place; but I think as to others, it may be looked upon as a great Burden, to come up and spend a great deal of Money for the public Service; and all the Privilege that I know they have, is to protect their Estates, and serve their Country.
'There is no extravagant thing but may be brought into the House of Lords, if you countenance them in the Jurisdiction they have now taken upon them. Any Action whatsoever, let it belong to any temporal Jurisdiction, may be there determined. I will still suppose, notwithstanding what is objected against the Judges, that they will do their Duty; but Westminster-Hall is now no Barrier: for whatever is there determined, may be brought by Writ of Error into the House of Lords, and they will determine it as they think fit. In the Case of Soame and Barnardiston, the Law was taken to be, that Westminster-Hall had not a Right to intermeddle in these matters. What then hath since altered the Law, unless the Lords have the legislative Power in them? And that I dare say they will have, if you allow this.
'This I must take notice of from the Report now before you, that here is a step made, which if it had been made in another Jurisdiction, I should have given a hard name to it.
'I think, in the first place, the Party should be brought in by the Queen's Process. When Errors are to be assigned, there uses to go out a Scire Facias, which is the Queen's Writ; but here is only an Order made, and for what? That the Party shall join issue upon the Writ of Error. Suppose there had been a Release of Errors, must he have joined Issue upon the Errors? And yet it is here so ordered before the Party is heard. I say, if they have a Jurisdiction, the Party ought to be called in by Scire Facias: And no Judge, or Judicature, can grant Execution, or Process, but it must be in the Queen's name. As for your Question, I come heartily into it.'
Sir William Strickland.
'Mr. Freeman, I think this Question depends upon two Parts, and I believe it the best way to divide your Question. One Part of it concerns the Rights and Liberties of this House, and I think every body will come up to it: And as I would not lessen the Privileges that belong to the House of Commons, so I would not lessen any Privilege of the Commons of England, whom we here represent. As one are the Privileges of this House, so the other concerns the Liberties of the People of England, who can't otherwise come to a Remedy when they are abused in this Manner. The Gentleman that called it a hard Service, if he would tell his Country so, I believe he might be excused, and they would send another in his Room.'
Mr. Walpole. (afterwards Sir Robert, and Chancellor of the Exchequer.)
'I will trouble you very little at this time: I think the Point of Learning and Law hath been so well spoken to, by those learned Gentlemen that have been against the Question, that, if I was able, I should say nothing more to that. But I think the Question as it is going to be put, is not right; for as the Question stands, tho' I can't give my Negative to one Part, I think 'tis impossible to give my Affirmative to the other. The Matter before you comes to this single Question, Whether you will encourage, and give a Power to an Officer, be he whom he will, to act arbitrarily; or rather chuse, in such a Case, to do something in favour of the Electors? I am sure if I desire to be elected by those that had the Right, I would never give the Officer an Authority to the Prejudice of the Electors. Where you come to say, that the sole Judging of the Qualification of the Electors belongs to the House of Commons only, those, I apprehend, are Words of too large Extent and ill Consequence. Suppose there was an Action brought upon the last Act of Parliament, for a false or double Return.'
Mr. Freeman. ; Mr. Walpole.
'There is an Exception in the Question as to that.'
'I know there is; but suppose an Action is brought upon that Statute, the Officer may have proceeded with the greatest Impartiality, may have taken the Poll with the greatest Exactness and Justice, and there may appear to be an equal Number of Votes for each Candidate; whereupon he makes a Double-Return, and this brings it to be determined by the Committee of Elections, and they vote one of them duly elected. This Gentleman that had the Favour of the Committee, (tho' afterwards possibly it might be made appear, that by Bribery or Corruption, and at a great Expence, he procured himself to be elected,) after you have voted him duly elected, he hath nothing to do but to try his Action, and see if he can make his double Damages amount to his Expences. The first thing he is to do, is to produce the Vote of the House of Commons, that declared him duly elected, contrary, perhaps, to the last Determination in Parliament, which in every Place, is to be the Guide to the Returning-Officer. But shall there then be given in Evidence no Qualification of the Electors? Nothing to prove that the Persons admitted to vote were qualified according to such last Determination? Or shall that Vote of the House of Commons, that was intended only to bring him into this House, recover him 5 or 600 l. Damages? I take it to be so as the Law stands. Now it ought to be seen who hath the greater Number of legal Votes, and whether duly qualified; and in that Case you must suffer the Matter again to be tried by the Court, and you do, in some measure, make them Judges of the Qualifications of the Electors; if it were otherwise, they could not enquire into the Majority of legal Votes.
'What happens in the Case of a Mayor, may be in the Case of a Sheriff: If a Mayor or a Constable may deny a Man his Vote, that hath an uncontroverted Right in a Corporation, a Sheriff may refuse a Freeholder, and strike off enough to make a Majority for whom he pleases. You had once the Case before you, Whether a Sheriff could refuse a Scrutiny, and one or two Gentlemen would have given that Power to a Sheriff: but a learned Gentleman thought it a dangerous Question, and he desired to come to the Merits of the Election; and that was determined, and you voted the worthy Member duly elected, and thought it a dangerous thing to determine whether the Officer had that Power one way or another? I think that Part of the Question, which concerns the Qualification of the Electors ought to be left out.'
Marquis of Hartington.
Mr. Freeman. 'I will read the Question, (which he did.)
'Sir, I think it is a constant Rule, where a Question is complicated, 'tis the Right of every Member, if he desire it, to have the Question divided, and I think it regular to do it by an Amendment; and therefore I second that worthy Gentleman, that you would leave out those Words that relate to the Qualification of the Electors.'
'My Lord is undoubtedly right in what he desires; that if there be any Words in the Question to which Gentlemen have a dislike, that Question is not to be put; but, only Whether those Words shall stand Part of the Question: Therefore if those Words of the Qualification of the Electors do give Offence, it must be put, Whether they shall stand Part of the Question? But I hope at the same time Gentlemen will apprehend, that leaving out those Words, leaves out all you debated on.'
Sir Christopher Musgrave.
'No doubt, if any Question is complicated, Gentlemen do not know how to give an Affirmative or a Negative, and you must divide it: But I hope Gentlemen will consider the latter Part of the Question is the main thing whereon you have debated; for, if you do not assert that you have the Power of Determining the Qualifications of the Electors you give up the Right of the Commons of England: I do agree that the Question may be divided.'
Mr. Freeman. ; Sir Thomas Meres. ; Mr. Freeman.
'That which is debated now, is, Whether these Words shall stand Part of the Question.'
'Sir, I think the Question ought to be divided.'
'The Question, as I have it upon my Paper, is this, That according to the known Law and Usage of Parliament, neither the Qualification of any Elector, or the Right of any Person elected, is cognizable or determinable elsewhere than before the Commons of England in Parliament assembled, except, in such Cases as are specially provided for by Act of Parliament.
'But some Gentlemen are for leaving out these Words [neither the Qualification of any Elector, or] so that I must put a Question, Whether these Words shall stand Part of the Question'
Members. Aye, aye.
Then Mr. Freeman put the Question, and the Committee divided.
So it was carried, that those Words should stand Part of the Question.
Votes on the Question.
And the main Question being put,
Resolved, That, according to the known Law and Usage of Parliament, neither the Qualification of any Elector, or the Right of any Person elected, is cognizable or determinable elsewhere than before the Commons of England in Parliament assembled, except in such Cases as are specially provided for by Act of Parliament.
Resolved, That the Examining and Determining the Qualification or Right of any Elector, or any Person elected to serve in Parliament, in any Court of Law, or elsewhere than before the Commons of England in Parliament assembled, except in such Cases as are specially provided for by Act of Parliament, will expose all Mayors, Bailiffs, and other Officers, who are obliged to take the Poll, and make a Return thereupon, to Multiplicity of Actions, vexatious Suits, and unsupportable Expences, and will subject them to different and independent Jurisdictions, and inconsistent Determinations in the same Case, without Relief.
Resolved, That Matthew Ashby, having, in Contempt of the Jurisdiction of this House, commenced and prosecuted an Action at Common-Law against William White, and others, the Constables of Aylesbury, for not receiving his Vote at an Election of Burgesses to serve in Parliament for the said Borough of Aylesbury, is guilty of a Breach of the Privilege of this House.
Resolved, That whoever shall presume to commence or prosecute any Action, Indictment, or Information at Common-Law, which shall bring the Right of Electors, or Persons elected to serve in Parliament, to the Determination of any other Jurisdiction than that of the House of Commons, except in Cases specially provided for by Act of Parliament, such Person and Persons, and all Attornies, Solicitors, Counsellors, Serjeants-at-Law, soliciting, prosecuting, or pleading in any such Case, are guilty of a high Breach of the Privilege of this House.
Ordered, The said Resolutions to be fixed up on Westminster-Hall Gate, signed by the Clerk.
These Resolutions, with this (to wit,
Resolved, That, according to the known Laws and Usage of Parliament, it is the sole Right of the Commons of England in Parliament assembled, except in Cases otherwise provided for by Act of Parliament, to examine and determine all Matters relating to the Right of Elections of their own Members)
Before passed in the Committee, were reported to the House.
'Jan. 26. When the first Resolution was not opposed, but, after the second Resolution (viz.
'That, according to the known Law and Usage of Parliament, neither the Qualification of any Elector, or the Right of any Person elected, is cognizable or determinable elsewhere than before the Commons of England in Parliament assembled, except in such Cases as are specially provided for by Act of Parliament)
Debate on the Report.
Was read the second time by the Clerk, the Question (according to Order) being proposed to agree with the Committee in that Resolution, the Marquis of Hartington stood up in his Place, and spoke to this effect:
Marquis of Hartington.
'I do not expect the House will be of a different Opinion from the Committee; but I think it is my Duty, when I apprehend what you are doing will be of ill Consequence to the Constitution, to give my Dissent in every Step. I think it will be dangerous to the very Being of this House: If this Maxim had been allowed formerly, I think there would have been no need of taking away of Charters, and of Quo Warranto's: By the Influence of Officers they might have filled this House with what Members they had pleased, and then they could have voted themselves duly elected.'
Sir William Strickland.
'Mr. Speaker, I cannot agree to this Resolution: I think it deprives the People of England of their Birth-Right: For they who have Freeholds in any of your Counties, or Freedoms in any Corporation, have as much Right to vote in Elections to Parliament, as they have to their Estates. And if any Gentleman would subject them to such arbitrary Proceedings, that a Sheriff or any other Officer may deny them this Privilege, give me liberty to say, I must be always against any such thing; for tho' you can punish the Officer, you cannot give any Satisfaction to him that receives the Injury.
Mr. St. John.
'Sir, I do not rise up to trouble you long, but to speak to one Point that was mentioned by a noble Lord over the way. I shall be as tender as any Man alive, of doing any thing against the Liberty of the People; but I am for this; because I take it to be the greatest Security for their Liberty. The noble Lord was pleased to take notice, that, in the consequence, the Crown would have a great Influence on those that are to return the Members of the House of Commons; and when they were in, they might vote for one another. I cannot think that the Liberties of the People of England are safer in any Hands below, or that the Influence of the Crown will be stronger here than in other Courts.'
Marquis of Hartington.
'I think that Gentleman hath not answered what I said: I shall never have any Suspicion of any that sit in the House now; but when those that have no Right are returned, and make a Majority, I think it will not be safe.'
'I do not apprehend that Consequence from this Resolution. I think if it was so, this should have been offered before the first Resolution was passed, which hath passed in the House and Committee Nemine Contradicente; for you cannot determine the Right of any Members sitting here, without determining the Right of the Electors.'
'I cannot but think it will be harder to influence this House to get an Ill-Vote, than it will be in another Place: However, if I am a Free-holder and have a Right to vote in a County; or a Freeman, and have a Right to vote in a Borough, by admitting Persons to vote that have no Right, it may be as much Prejudice to me; for that may make my Vote signify nothing: And there is as much Injury one way as the other. If all the People of England, who have a Vote, should go together by the Ears in Westminster-Hall, and dispute there who has a Right to vote, and who not, I believe the Judges of the Common-Law, and noble Peers of the other House, would be glad, in a little time, to restore the Right where it is, it would breed so much Confusion. If Gentlemen are not satisfied already, they may easily be so, that there is no Defect of Power in this House, but they have a Power to do justice in all Cases of Elections; and I hope every body will take care, not only to maintain the Rights of the People that sent them hither, but the Trust lodged in them, which they cannot depart from by the Rules of Justice.
Then the second, with the other three Resolutions passed in the Committee, were agreed to by the House without a Division, with this Amendment only, of leaving out (at Common Law) in the fifth Resolution.