"berton, Serjeant Peck, Sir John Churchill, and Charles "Porter Esquire, were committed to the Cuftody of the "Serjeant of the Houfe, for Breach of Privilege, in "having been of Counsel, at the Bar of the House of "Lords, in the Profecution of a Caufe depending upon an Appeal, wherein Mr. Dalmahoy, a Member "of the Houfe of Commons, was concerned. But the "Serjeant having been by Force prevented keeping them "in Čuftody, the Commons did, the 4th June 1675, "acquaint the Lords, at a Conference, as followeth ; (videlicet,)

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"We are further commanded to acquaint you, That "the Enlargement of the Perfons, imprisoned by "Order of the House of Commons, by the Gen"tleman Ufher of the Black Rod, and the Pro"hibition, with Threats, to all Officers and other "Perfons whatfoever, not to receive or detain "them, is an apparent Breach of the Rights and "Privileges of the Houfe of Commons; and they "have therefore caufed them to be re-taken into "the Cuftody of the Serjeant at Arms, and have "committed them to The Tower."

"The faid Counsel were afterwards committed to The "Tower, for a Breach of Privilege, and Contempt of "the Authority, of the Houfe.

"And the House being informed, "That the Lords "had ordered Writs of Habeas Corpus, for bringing the "Counsel to the Bar of their Houfe;" the Commons "paffed the following Refolutions:

"7th June, 1675. Refolved, nemine contradicente,

"That no Perfon, committed for Breach of Pri"vilege by Order of this House, ought to be discharged, during the Seffion of Parliament, "but by Order or Warrant of this House. "Refolved, nemine contradicente, That the Lieute"nant of The Tower, in receiving and detaining "in Cuftody Sir John Churchill, Serjeant Peck, "Serjeant Pemberton, and Mr. Porter, performed "his Duty according to Law; and for fo doing, "he fhall have the Affiftance and Protection of "this House.

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"Refolved, nemine contradicente, That the Lieute"nant of The Tower, in cafe he hath received, or fhall receive, any Writ, Warrant, Order, or "Commandment, to remove or deliver any "Perfon or Perfons committed for Breach of Privilege, by any Order or Warrant of this "Houfe, fhall not make any Return thereof, or "yield any Obedience thereunto, before he hath "first acquainted this Houfe, and received their "Order and Directions how to proceed there❝ in.

"ORDERED, That these Resolutions be immediately fent to the Lieutenant of The Tower."

"Afterwards the Lieutenant of The Tower gave the "Houfe an Account, "That he had refused to deliver "the Counsel, upon the Lords Order, fignified to him by "the Black Rod, because they were committed by this "Houfe; and that, after he had received the Votes of "this House, he had Writs of Habeas Corpus brought "him, to bring the Counsel to the Houfe of Lords at "Ten of the Clock the next Morning;" and humbly "craved the Direction of the House what to do.

"Mr. Speaker intimated to him, "He fhould for"bear to return the Writs."

"And the Houfe came to feveral other Refolutions: "9th June 1675. Refolved, nemine contradicente, "That no Commoner of England, committed by Origin. Refolution; vide Journals of H. C. Vol. XIV. p. 562. b.

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"Order or Warrant of the Houfe of Commons, "for Breach of Privilege, or Contempt of that House, ought, without Order of that Houfe, "to be, by any Writ of Habeas Corpus or other Authority whatfoever, made to appear and "anfwer, and do and receive a Determination "in the House of Peers, during the Seffion of "Parliament wherein fuch Perfon was commit❝ted.

"Refolved, nemine contradicente, That the Order of "the House of Peers, for the iffuing out of Writs "of Habeas Corpus, concerning Serjeant Peck, "Sir John Churchill, Serjeant Pemberton, and Mr. "Charles Porter, is infufficient and illegal; for "that it is general, and expreffes no particular "Caufe of Privilege, and commands the King's "Great Seal to be put to Writs not returnable "before the faid Houfe of Peers. "Refolved, nemine contradicente, That the Lord "Keeper be acquainted with thefe Refolutions, 66 to the End that the faid Writ of Habeas Corpus may be fuperfeded, as contrary to Law "and the Privileges of this House.

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"Your Lordships Fifth Refolution; (videlicet,)

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"Refolved, That, for the Houfe of Commons to "cenfure or punish any Perfon, for affifting a "Prifoner to procure a Writ of Habeas Corpus, "or, by Vote or otherwife, to deter Men from foliciting, profecuting, and pleading upon, fuch "Writs of Habeas Corpus, in Behalf of fuch Pri"foner, is an Attempt of dangerous Confequence, "a Breach of the many good Statutes provided "for the Liberty of the Subject, and of perni"cious Example, by denying the neceffary Af"fiftance to the Prifoner, upon a Commitment "of the House of Commons; which has ever "been allowed upon all Commitments by any "Authority whatsoever."

"The Commons take this to be another Inftance of your Lordships Breach of your own Rule: Your Lord"fhips being no Judges of their Privileges; though, by this Refolution, you feem to make a Judgement, "without having heard, and knowing, what the Com"mons have to alledge for them.

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"This

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"This Attempt, therefore, in your Lordships, is of "dangerous Confequence, tending to a Breach of the good Understanding between the Two Houses, and "of moft pernicious Example. The Commons late Pro"ceedings, in cenfuring and punishing the Counsel that "have pleaded upon the Return of the Writs of Habeas Corpus in Behalf of thefe Prifoners, if duly confidered, "is a great Inftance of the Temper of the Houfe of "Commons: For this Houfe did not interpofe, when "the Prisoners applied to the Lord Keeper and the "Judges to be bailed; and had the Lawyers fhewn fo "much Modesty as to have acquiefced in the Opinion "of the Lord Keeper and all the Judges, that these "Prifoners were not bailable by the Statute of Habeas "Corpus, the Commons had never taken any Notice of it; but they would not reft fatisfied without bringing on again this Cafe; and the Privileges of the Commons were, with great Licentioufnefs of Speech, denied "and infulted in public Court, not with any Hope or "Profpect of Relief of the Prifoners (who, in this whole "Proceeding, have apparently been only the Tools of "fome ill-defigning Perfons, that are contriving every "Way to disturb the Freedom of the Commons Elec

tions), but in order to vent thefe new Doctrines "against the Commons of England, and with a Defign "to overthrow their fundamental Rights. And, after fo "much Inveteracy fhewn to the Commons, they could "not do lefs than declare the Abettors, Promoters, "Countenancers, or Affifters, of a Profecution fo carried on, to be guilty of confpiring to make a Difference "between the Two Houfes of Parliament, to be Dif"turbers of the Peace of the Kingdom, and to have en"deavoured, as far as in them lay, to overthrow the "Rights and Privileges of the Commons of England in "Parliament affembled.

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make an Attempt upon the whole Frame of it, by "drawing the Choice of the Commons Reprefenta "tives to your Determination; for that is a neceffary "Confequence, from your Lordships encouraging the "late Actions, and your countenancing a Writ of Error, "which, if allowed upon fuch a Proceeding, might as "well be introduced upon all Acts and Proceedings of Courts or Magiftrates of Juftice. And though the prefent Inftance has been brought on under the fpecious "Pretence of preferving Liberty; it is obvious, the fame "will as well hold to control the bailing and discharg"ing Prifoners in all Cafes.

"And the Commons cannot but fee how Lordyour "fhips are contriving, by all Methods, to bring the De"termination of Liberty and Property into the bottom"lels and infatiable Gulph of your Lordships Judica"ture; which would fwallow up both the Prerogatives "of the Crown, and the Rights and Liberties of the "People; and which, your Lordships must give the "Commons Leave to fay, they have the greater Reason "to dread, when they confider in what Manner it has "been exercifed; the Inftances whereof they forbear, "because they hope your Lordships will reform; and they defire rather to compofe the old, than to create 'any new Differences.

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Upon the Whole, the Commons hope, that, upon "due Confideration of what they have laid before your "Lordships, you will be fully fatisfied they have acted

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"The Commons fhall not enter into any Confideration, whether a Writ of Error is of Right or of Grace; they conceiving it not material in this Cafe, in which "no Writ of Error lies: Nor was ever any Writ of Er"ror brought or attempted in the like Cafe before; and "the allowing it in fuch Cafes would not only fubject all "the Privileges of the Houfe of Commons, but the Li"berties of all the People of England, to the Will and "Pleasure of the Houfe of Lords.

"And, when your Lordships Exercife of Judicature "upon Writs of Error is confidered, how unaccounta"ble in its Foundation, how inconfiftent it is with our "Constitution (which in all other refpects is the wifest "and the happieft in the World), to fuppofe the last Re"fort in Judicature and the Legiflature to be differently 66 placed :

"And when it is confidered how that Ufurpation in "hearing of Appeals from Courts of Equity, fo eafily "traced, though often denied and protefted against, yet "ftill exercifed, and almost every Seffion of Parliament "extended:

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"Some of the Arguments that were made Ufe "of by the Lords, in their Debates, and at "the Free Conference, to maintain their own "Refolutions, and anfwer the Objections of "the Commons.

"The Houfe of Commons made Two Objections to "the Manner in which the Lords proceeded at the First "Conference. They faid, "They had anticipated all "Debates, by delivering pofitive Refolutions; whereas "this is the proper and ordinary Method of Procee

dings between the Two Houfes: When One House has "formed an Opinion, they communicate it to the other, "to the End that, if it be found reafonable, it may be "approved; or if, upon Examination, it be difliked, the "Caufes of the Difagreement may be fhewn, in order "to convince the other Houfe of their Miftake."

"As to the First Part of the Objection; the Lords "did (as juft Judges always do) confider the Matter of "the Petitions, and not the Perfons of the Petitioners. "And as to the Second Part; the Lords faid, "The

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66 they

"the last Resort.

"The Lords had no Occafion to fay any Thing in "Defence of their First Resolution, because the Com"mons did not think fit to avow in Words, that they "had a Power to create new Privileges by their Votes; "though they have manifeftly attempted it in Practice, "and particularly in the Cafe of the Five Prifoners.

"As to the unjuft Reflections which the Commons "made upon the Houfe of Lords, as if they had en"tertained original Caufes, and were guilty of fome "Encroachments in hearing Appeals from Courts of "Equity:

"The Lords avowed their Claim of a Jurifdiction in "hearing and determining Appeals from Courts of Equity; and could fhew a continued Exercife of it, "more ancient than the Determination of Elections in "the House of Commons, which yet the Lords do not "go about to call in Queftion. But they deny their "having meddled with any original Causes, or that "the Cafe particularly mentioned by the Commons "was at all of that Nature.

"What the Commons objected to the Univerfality "of the First Part of that Refolution, as if it would de"stroy all Diftinctions of Courts, and make a Confusion "of Jurifdictions, did arife only upon a plain Mistake. "The Lords mentioned Actions in general, without "confining what they faid to Actions at Common Law, "or affirming that Actions for all Sorts of Injuries may "be brought in any One Court.

"As to the Infinuation, "That the Lords had no other "Aim, than to extend their own Jurifdiction, by the ἐσ feeming Regard and Tenderness they fhewed for the "Rights and Liberties of the People:" The Anfwer is, ""The only just Way of interpreting Men's Meaning, "is by obferving what they act.'

"The Lords have acted with true Regard to Liberty "and Property on this Occasion, as well as in all others. "They have voluntarily owned themselves to be re"ftrained; at the fame Time they defire the Commons "not to go about to create new Privileges: The Lords "claimed nothing new; and the Commons cannot with "Reafon defire them to give up, what the Law and the

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"The principal Thing infifted upon by the Houfe of "Commons against this Refolution was, "That there are "privileged Cafes as well as privileged Perfons;" but they did not think fit to give any Inftances of fuch "privileged Cafes as were any Ways applicable to the "Matters in Difpute; that is, that were fo entirely of "the Cognizance of the Houfe of Commons, that the bringing an Action at Common Law in thofe Cafes was a Contempt to the Houfe of Commons: And, un"lefs that could be done, this Diftinction of privileged "Cafes from privileged Perfons will have no Weight "to justify the Commitment of the Five Ailesbury Men. "If Men mistake, and bring Actions in Westminster Hall "for Matters cognizable in Parliament, fo that they "can have no Relief in the Courts below; it does not "follow from thence, that they ought to be committed "for Breach of Privilege on that account.

"The determining of Elections is admitted to be the "Business of the Houfe of Commons; and yet it is "certain, that the profecuting Actions at Common Law "for falfe or double Returns was never thought to be a Contempt to the House of Commons, nor was any body punished or committed upon that Account in "the Cafes of Sir Samuel Barnardifton and Mr. Onflow.

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"The Freedom of Speech in Parliament is the most "neceffary and the most acknowledged Privilege of the "House of Commons; and yet, when an Information "was brought in the King's Bench, against Sir John "Elliot and others, for Words spoken in the House of "Commons, and Judgement was given against them in "that Court, the Commons did not think it fufficient "to condemn that Judgement by Votes of their own "House, but brought thofe Votes up to the Lords, and "defired their Concurrence; which was given: And "immediately thereupon a Writ of Error was brought "in Parliament, and the Judgement regularly reversed "there. And it cannot be denied that, upon this Occa

fion, the most valuable Privilege of the Houfe of Com"mons was brought under the Judgement of the Lords, "as well in their Judicial as in their Legislative Ca❝pacity.

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"The Cafe of Richard Strode, and the Act of Parlia"ment which paffed upon that account in the Fourth "Year of King Henry the Eighth, was that which was principally infifted on by the Houfe of Commons, in "the Cafe of Sir John Elliot, for justifying their un“doubted Privilege of Freedom of Speech, and fhewing "the Injuftice of what was done in that Cafe by the "Court of King's Bench.

"The Cafe of Strode might be used by the Lords as "another Instance, to fhew that this Diftinction of pri"vileged Cafes will not ferve the Purpofe of the Houfe "of Commons, to juftify the Commitments of the Ailef

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bury Men. He was profecuted in the Stannary Courts, "for Words spoken, and Bills offered, in the House of "Commons, in order to be paffed into Laws; and upon "that account was imprifoned, and condemned to pay "confiderable Sums, and petitioned the Houfe of Com"mons to be relieved in that Matter: The Houfe of "Commons did not then pretend to put a Stop to those "Suits, or to commit the Perfons concerned in them; "but thought the only Remedy, against thofe Profecu❝tions and others of like Sort, was, to prepare a Bill, in "order to be paffed into a Law, for making void the "Judgements against Strode; and took that Occafion, by "the fame Bill, to declare the Law in general, and "to give an Action to all Perfons who fhould be "afterwards vexed or molefted for the like Caufes, in "which they fhould recover Treble Damages, and Cofts " of Suit.

3

"There

"There is no Cafe that can more properly be called "a privileged Cafe, with refpect to the Houfe of Peers, "than the determining of Peerage: And yet, if that "Matter comes to be incidentally a Point in any Cafe de"pending in the Courts in Westminster Hall, they must "proceed to determine of it as they think the Law to "be; and the Lords have not gone about to hinder it, "nor found Fault with them upon that account.

"The Courts in Weftm'r Hall muft of Neceffity "judge of the Privileges of Parliament in many Cafes. "When any Perfon prays a Writ of Privilege (which was "always the Way anciently when Men defired the Be"nefit of Privilege, and it is often practifed yet upon "Occafion); the Court where the Writ is prayed must judge whether the Party has Right to Privilege or

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σε

Suppofe the Serjeant of the Houfe of Commons "fhould kill, or be killed, in the Execution of a War❝rant of that Houfe: Upon an Indictment for Murder, "the Court muft neceffarily judge of the Legality of "the Warrant.

"The Commons fuppofed Cafes, of Affronts to the "Perfon of the Speaker, or of reproachful Words fpokén "of the whole Houfe of Commons, as Inftances of what "they called privileged Cafes.

"There is no Doubt but either of thefe Cafes would "be Contempts, and fuch as might be punished by the "House. But moft certainly thefe were alfo fuch Of"fences as might be profecuted in Westminster Hall; and "if the Attorney General should bring Informations "upon them, it could never be pretended that he would "be guilty of a Breach of Privilege of the House of "Commons.

"It was urged, "That, in privileged Cafes, the Votes of "the House of Commons were like Prohibitions to the "Ecclefiaftical Courts; and that, when Prohibitions were "served upon the Judges in the Admiralty or Ecclefi"aftical Courts, it was a Contempt for them to proceed "farther."

"The Answer to this is, "That Prohibitions to Eccle"fiaftical and Admiralty Courts were founded upon a "particular Reafon : The Proceedings in thofe Courts "are according to the Civil or Canon Law; and there"fore it was neceffary, to preferve the Conftitution, and "reftrain thofe Courts from making Invafions upon the "Common Law, that a Guard fhould be fet upon them, " and a Power fixed to refrain them: And this Power "is lodged in the Courts of Westminster Hall; who are "trufted with the iffuing Writs of Prohibition to the "Ecclefiaftical and Admiralty Courts, from Time to "Time, upon Complaints made to them; and thefe "Writs of Prohibition must be ferved perfonally upon "the Judge of the Admiralty or the Ecclefiaftical Judges, "who will be liable to Attachments if they proceed, "after fuch Service, until fuch Time as they have fhewn "the Nature of the Suit to the Courts from which the "Prohibition iffued; and if the Suit be properly of "Ecclefiaftical or Admiralty Cognizance, the Court "muft grant a Confultation, whereby they are at "Liberty to proceed again. This is a known and fettled "Method of legal Proceedings. But the Votes of the "House of Commons were never yet refembled to the "Queen's Writs; no Court is bound to take Notice of "them; on the contrary, the Judges are bound, not to "take Notice of them, but to act according to the "known Law. Nobody has Power to prohibit the Courts "in Westminster Hall; the Judges there are fworn to "proceed to do Juftice, notwithstanding any Command "under the Great Seal or Privy Seal, or by any other "Authority whatsoever. And the Subjects of England And the Subjects of England "have no lo ger an inheritance in the Common Law, if the Jugs are to take Notice of the Votes of VOL. XVII.

"either House of Parliament, and regulate their Judge66 ments accordingly.

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"The Votes would not always be uniform in either "House; and it appears, by the prefent Difpute, that the "Two Houses might often differ in Matters of Importance: And the Judges would be under Difficulty "which of the Houfes to obey; and if they yielded "Obedience to both, they would be obliged to act very contradictorily."

"What was faid against the Third Refolution of the "Lords was, Firft, "That thereby the Lords took upon "them to judge of their Privileges."

"The Lords did not difpute the Power of the Com"mons in examining and determining the Elections of "their own Members, nor of inquiring into all Matters "relating to the Determination of that Queftion, par"ticularly their examining into the Qualifications of "Electors; and agreed, that what they determined would "be binding as to the Right of the Member to fit in

the Houfe: But that Determination would not bind the "Right of any Elector; for he was no Party to that "Difpute of the Election; he was not heard for himself, "nor was his Caufe in Agitation before the Houfe; and "the Action brought by the Elector has no Manner of "Relation to the Sitting of the Member, but is only for "Recovery of Damages upon account of the particular Injury done him by the Officer at the Election.

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Suppose there was a Contest about Two Pérfons, which was Mayor of a Town: The Court where that "Caufe was tried, in order to a Determination of the

Right, muft perhaps examine into the Rights of those "voted. But would it be pretended, that the Electors "would be bound by the Opinion of the Court in that "Cafe; and that they could not bring their Actions, to "recover Damages against the Officer who wilfully "refufed their Votes, however the Question was de"cided as to the Mayor? So that it was begging the

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Queftion, to pretend that, becaufe the Houfe of Com"mons can try the Right of the Member to fit, there"fore they only have a Power to decide finally the Rights "of the feveral Electors.