"zable there; but who has a Right to choose, is a "Matter originally established, even before there is a "Parliament; a Man has a Right to his Freehold by "the Common Law. And the Law having annexed his "Right of voting to his Freehold, it is of the Nature "of his Freehold, and muft depend upon it. The fame "Law that gives him his Right, muft defend it for him; "and any other Power, that will pretend to take away "his Right of voting, may as well pretend to take away "the Freehold upon which it depends.

"To fay the Plaintiff, in this Cafe, may apply to the "House of Commons, is not fufficient, unless proved. "Never any fingle Elector, of any County or Borough, "did complain to the Houfe of Commons, that he was "debarred of his Vote, and defire them to determine his "particular Right.

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"Sometimes fome of thofe who have Right to choose, "in a Borough, have complained, that Perfons have "been returned by the Officer who were not duly "elected, as being an Injury done to the whole Com"munity of the Borough, to have a Perfon without Right fit there as their Reprefentative; but this is "only to bring the Merits of the Election in Queftion, "of which that Houfe hath Cognizance; and therefore, as incident and neceffary thereto, they may try "the Right of Electors, which of them, by Custom or "Letters Patents, have Voices. But this is no more than "all Courts have. In the Ecclefiaftical Courts, which proceed according to the Civil Law, if the Suit be originally proper for their Jurifdiction, they have "Power to determine Things foreign thereto; as, if "Letters Patents or Conveyances of Lands come in Question, though primarily and originally determina"ble in the Courts of Common Law. Matrimony is "properly under the Jurifdiction of the Ecclefiaftical "Court; and if a Question arifes between the fuppofed "married Parties in their Life-time, or upon Dower "or Bastardy, it fhall be tried and determined there. "But when an Action is brought by a Man and Woman, fuppofing her to be his Wife, if the Defendant pleads "in Abatement, that they were not married, it shall be "tried by a Jury where the Action was brought. So if any one's Title to Lands depends on a Marriage; if "an Action be brought to try the Title, the Marriage may be determined by a Jury. This fhews plainly, "that, because the House of Commons may determine "who are Electors, and who are not, incidentally, and fo "far only as it is neceffary to try the Right of the "Election, it doth not follow, that, when the Right of "Election is not in Question, they can try the Right "of an Elector.

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"When the Right of the Candidate is examined in "the Houfe of Commons, it is in order to determine "which Perfon hath the Right to join with them in "the making of Laws, and other public Services; "and if, in order to the determining this Point, the "Houfe of Commons must judge of the Electors, they "do it only to this Purpofe. But the Courts of Law judge of an Elector's Right wholly to another End; "as it is a legal Right to affert that, and to repair in "Damages the Elector, who is wrongfully hindered "from exercifing it. This is what the House of Commons cannot do, nor to this Day was there ever any Application made to them to do it; and, it may be reasonably fuppofed, they will not now begin to take "it upon them.

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"It commonly takes up a great Part of the Time of "a Seffion, to determine the Cafes of Elections, before "they can be fure the Houfe is compofed of fuch as "have a Right to fit; but, fhould they once pretend to "take Cognizance of particular Mens Complaints, in "order to decide the Rights of Electors, it would be

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"impoffible for them to have any Leifure to employ "themselves about the ardua et urgentia Negotia Regni, "the Safety and Defence of the Kingdom, for which "the Writ calls them together. It is granted, that the "deciding of the Right of Electors is a Matter of great Weight, and in Confequence concerns the Lives "and Liberties of the Subjects of England: But the "Law hath provided a proper Remedy to be purfued "in the ordinary Methods of Juftice, a Remedy that is "adequate, where Damages may be recovered. The "Plaintiff, in this Cafe, knew he had a Right by Law "to give his Vote; and when he found himfelf deprived "of it, he reforts to the Law for his Remedy: And it "is probable most of the Electors of England will be "of his Mind, and think it for their Intereft to re"fort to the Courts of Westminster Hall, for afferting "this great Right of theirs upon Occafion, where they may prove their Cafe by Witneffes upon Oath, and "have their Damages affeffed by their Countrymen duly "fworn; nothing of which can be done, if they are to "feek for a Remedy in the Houfe of Commons.

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"It was faid, in the Debate of this Cafe, "That In"ftances were to be given, where the Party injured did "not recover Damages; as in Cafe where One has a Right of Presentation, and is disturbed, he could nor recover Damages at the Common Law; and that was re"fembled to the Right of an Elector, which was faid to "be only a Right of Nomination." But the Answer to "this Objection is plain. "There the Law gives the Party "a Remedy to recover the Prefentation, the Thing "that was taken from him, to which he is restored by "the Judgement. But in the prefent Cafe, there is no

Poffibility for the Plaintiff to recover the Thing he "has loft, which was his Vote at the Election; for that "Election is over, and can never be had again; fo that "the Plaintiff cannot poffibly have any Reparation, un"lefs it be in Damages; and this Sort of Reparation "the House of Commons cannot give him.

"This Contrariety of Judgement can never appear; "for the Houfe of Commons never gives a direct Judge"ment on this or that individual Elector's Right: The "Voting is either upon a general Queftion of the Right "of the Competitors, or where the Right of Election "in the Borough is placed; whether all Inhabitants, or "thofe under a particular Qualification, or whether the "whole Commonalty, or a felected Number, have "Voices; and all these are but Ways and Means to de"termine the Right of Election.

"If the House of Commons judge of the Right of "a particular Elector at any Time, it is only pro ifta "vice, fo far as it relates to the particular Cafe before "them: But furely the House never thought the Elec"tor's Freehold finally concluded thereby, because he is "no Party to that Suit; his Right came not there in "Question originally; but confequentially, in a Caufe litigated between other Perfons, to which he is no Party; and it cannot be agreeable to right Reafon, or the "Principles of Law, for a Man's Right to be conclu"fively determined in a Cause between other Parties.

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"And, after all, where is the Damage to the Public, "if there fhould be a Variety in the Determination of "the Houfe of Commons and the Courts of Westminster? "It is not impoffible in the Nature of Things; for the "Courts of Law have great Advantages, which the "House of Commons want: They want the Help of Juries, and the Power of giving Oaths; and they "ought not to be difpleafed with their Electors, if they "refort to Courts provided with thefe Powers, for afferting the Right of Election; efpecially when it is con"fidered, that the Perfon, whofe Pretenfions the House "of Commons approves of, will fit there, which is all they are concerned in. They are the Elected; and it "would be ftrange, if that should entitle them to chal"lenge the fole Power of deciding the Rights of their "Electors, which is indeed to choofe their Electors."

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"It was urged, as a great Argument against the maintaining this Action, "That it had been adjudged, in "the Cafe of Mr. Onslow, in the 33th of King Charles the "Second, That no Action did lie at Common Law, for a "falfe Return of a Member to fit in Parliament; and "that, in the Cafe of Barnadifton and Soames, it was adjudged, the Candidate could not maintain an Action against the Sheriff for a Double Returu; and if the "Perfon, elected to ferve in Parliament, cannot main"tain an Action against the Officer, it was urged a for"tiori, that the Perfon electing, who perhaps is but a Cobler, ought not to be allowed to have fuch an Ac"tion."

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"It was answered, "That the Law of England has no Refpect to Perfons; if an Elector be a Cobler, he "is a Freeman of England, and has that great Privilege "belonging to him, to be reprefented in Parliament: "It was remembered, with what great Variety of Opi"nion, among the Judges, that Cafe of Sir Sam. Barnadifton was determined, and what an Alarm that Judge"ment gave to the House of Commons, to fuch a Degree, "that in the Seffion of Parliament, 1679, a Committee was appointed to inquire into it, as a Grievance; and "it was obferved, that the great Design of the Act of "Parliament made in the Seventh Year of the late King (which was often mentioned in the Debate of "this Cafe, to other Purposes) was, to cure the many "Inconveniencies arifing from that Judgement, and the Judgement in Mr. Onslow's Cafe, which only followed Barnadifton's, and was judged upon the Authority of "it. But there is no Refemblance between thofe Cafes "and the Cafe of an Elector. In Barnadiston's Case, "of a Double Return of Members, the Reafon on "which the Judgement was founded was, thas a DouVOL. XVII.

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"ble Return was no Return which the Law took No"tice of, but was only allowed of by the Custom of "Parliament: When an Officer, who doubts, makes a "Double Return, he submits to the Judgement of the "Houfe of Commons; and if that Houfe admits of fuch "a Return, as they had often done, it would be hard "the Law should subject a Man to an Action, for fubmitting a Matter of Fact (the Truth of which the "Officer doubts) to the Determination of those who "have a Jurifdiction of the Matter, and approve the "Manner of fuch a Return.

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"In the other Case, of a false Return of a Member, "feveral Reasons may be affigned for the Judgement, "which are not applicable to the Cafe of an Elector: "Perhaps it might be, becaufe fuch a Return is a "manifeft Injury to every One of the Electors

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(though principally to the Candidate); and therefore "it might fall within the Reafon of Williams's Cafe "abovementioned, that every Elector might fue him, "and therefore none of them feverally can maintain "the Action. But there is another Reafon very obvious, because the Candidate has a proper Remedy "to recover his Place, from which he is excluded by "the falfe Return: The Right of Election is cognizable "in the House of Commons; there he will recover his "Seat in Parliament, which is what the Law has the principal Regard to; and there is no Reafon he should "have another Remedy elsewhere.

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"It is abfurd to fay, the Electors Right of choofing "is founded upon the Law and Cuftom of Parliament; "it is an original Right, Part of the Conftitution of "the Kingdom, as much as a Parliament is, and from "whence the Perfons elected to ferve in Parliament "do derive their Authority, and can have no other but "that which is given to them by thofe that have the original Right to choose them. This doth not touch the Jurifdiction claimed and exercifed by the Houle of "Commons, to try the Right of the Election of their own Members; they who pretend to be admitted to "fit there, ought to make out their Right to the House; "but there is no Ground to infer from thence, that the "House hath Power to try or determine the Right of "other Perfons, who are not their Members, and do not pretend to any Place amongst them.

And, Secondly, if Things are fo ordered by the "Conftitution of the English Government, that the ulti"mate Refort in Point of Judicature is lodged with the "Lords; let the Cafe concern what it will, when it is "brought before them by Writ of Error, they are "bound to give Judgement one Way or other." And "as to the particular Inftance mentioned, relating to "Words fpoken in the Houfe of Commons, it was faid, ""There never was a greater Attempt made upon

Liberty of Speech in the Houfe of Commons, than "by the Information brought in the King's Bench, "5 Car. I. against Sir John Elliot, Denzil Holles, and "Benjamine Valentine Efquires, for Words fpoken in 6 T

"the

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the House of Commons: They pleaded to the Jurif "diction of the Court, as being for what was done in "Parliament, and therefore ought not to be examined "or punished elsewhere; but Judgement was given against them, and great Fines impofed upon them. ་ (Cro. Car. 181.) In the Parliament which met in 1640, thefe Proceedings were taken into Confidera"tion with great Warmth; and, the 8th July 1641, it "was Refolved, in the House of Commons, "That the "exhibiting of that Information was a Breach of the "Privilege of Parliament, and that the over-ruling of "the Plea to the Jurifdiction of the Court, and the "Judgement, and all that followed thereupon, was against the Law and Privilege of Parliament;" and "many other fevere Votes were paffed. Thus the Mat"ter refted, till after the Restoration of King Charles "the Second. But, when Things grew to be fettled, "and there was Leifure to confider of the Confequences "of former Proceedings, the Houfe of Commons began to think, that thofe Votes were not to be depen"ded upon, as a fufficient Security in a Cafe of fo high. "a Nature, fince upon Liberty of Speech all Parliamentary Debates were founded, and they could not "think that great Privilege fafe, while fo folemn a Judgement stood in Force: Therefore, in 1667, the "Confideration of this Matter took up a great Part of "the Seffion; and the belt Expedient they could find "out

out was, Firft, to come to a Refolution among them"felves, that the Judgement, given 5 Car. I. in that "Cafe, was an illegal Judgement, and against the Free"dom and Privilege of Parliament; and then, to pre"fent this Refolution of theirs to the Lords, at a Confe"rence; which was done 10 December 1667, and to de"fire their Concurrence. The next Day the Lords 66 concurred in the Refolution; and, at the fame Time, "(which was the Thing aimed at and defired by the "House of Commons) the Lords ordered the Lord "Holles to bring a Writ of Error in Parliament, to the "End there might be a Judicial Determination of that great Point; which was done accordingly; and, on "the 15th April 1668, that Caufe coming to be "heard in Parliament, the Judgement, in the King's "Bench was reverfed, to the great Satisfaction of the "Houfe of Commons.

"their Cafes would never be determined, for Want of "Time; and they who could get their Cafes heard "could have no Amends, that is, no Damages given "them for Reparation of the Wrong; befides the Ab"furdity of having, for the most Part, the Parties to "the Injury, thofe who fit by a falfe Return, Parties "to the Judgement.

"So that, to deny this Action, is to deny the Benefit "of the Law, in a Matter of the most tender Concern' to an Englishman.

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"That certainly can never be efteemed a Privilege of Parliament, that is incompatible with the Rights of the People. Every Englishman is entitled to Repa"ration for the Injuries done to his Rights and Franchifes, in the ordinary and common Methods of Justice, "where the Juries who try, and the Witneffes who give "Evidence, are to be upon their Oaths. Magna Charta, Cap. 29, is very exprefs: "No Freeman fhall be dif"feifed of his Freehold, or Liberties, or free Customs, "unless by the lawful Judgement of his Peers, or by "the Law of the Land."

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"If One be injured in fuch a Manner as the Plain"tiff in this Action hath been, no Man can fay, that, per Legem Terra, by the Law of the Land, he can "have a Remedy for Satisfaction, and afferting his Right, "in the Houfe of Commons. If there be any fuch Law, "it must be either Statute Law or Common Law. No "Statute gives him fuch a Remedy; nor doth the Com"mon Law, becaufe that is conftant Ufage for Time "immemorial; and there is not One Precedent can be produced, that ever any Man, upon fuch an Occa"fion, did ever apply to the Houfe of Commons for "Relief.

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Upon the Fourteenth Day of January 1703, the "Houfe of Lords reverfed the Judgement; and gave Judgement, That the Plaintiff fhould recover."

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This State of the Cafe being read, and approved of, the House came to the following Refolutions; (videlicet,)

"It is Refolved, by the Lords Spiritual and Tempo❝ral in Parliament affembled, That, by the known "Laws of this Kingdom, every Freeholder, or other "Perfon having a Right to give his Vote at the Elec❝tion of Members to ferve in Parliament, and being wilfully denied or hindered fo to do, by the Officer who ought to receive the fame, may maintain an Ac"tion in the Queen's Courts against fuch Officer, to "affert his Right, and recover Damages for the Injury."

"It is Refolved, by the Lords Spiritual and Tempo"ral in Parliament affembled, That the afferting, that a "Perfon, having Right to give his Vote at an Elec❝tion, and being hindered fo to do by the Officer who "ought to take the fame, is without Remedy for fuch tive of the Property of the Subject, against the Free"Wrong by the ordinary Courfe of Law, is deftruc"dom of Elections, and manifeftly tends to encourage "Corruption and Partiality in Officers who are to "make Returns to Parliament, and to fubject the Free"holders