"It is resolved, by the Lords Spiritual and Temporal in Parliament assembled; That the declaring Mathew Ashby guilty of a Breach of Privilege of the House of Commons, for prosecuting an Action against the Constables of Aylesbury, for not receiving his Vote at an Election, after he had, in the known and proper Methods of Law, obtained a Judgement in Parliament for Recovery of his Damages, is an unprecedented Attempt upon the Judicature of Parliament, and is, in Effect, to subject the Law of England, to the Votes of the House of Commons."

"It is Resolved, by the Lords Spiritual and Temporal in Parliament assembled, That the deterring Electors from prosecuting Actions in the ordinary Course of Law, where they are deprived of their Right of Voting, and terrifying Attornies, Solicitors, Counsellors, and Serjeants at Law, from soliciting, prosecuting, and pleading, in such Cases, by voting their so doing to be a Breach of Privilege of the House of Commons, is a manifest assuming a Power to control the Law, to hinder the Course of Justice, and subject the Property of Englishmen to the arbitrary Votes of the House of Commons." (L.J. xvii. 534.)

IV

JUDGMENT ON THE HABEAS CORPUS OF THE
AYLESBURY MEN

Mr. Justice Powell. That this is a case of the highest consequence, for it concerns the privileges of the House of Commons, the liberty of the subject, and the jurisdiction of this court; it is the first case of this nature, for the lord Shaftesbury was a member of the House,1 and there may be a greater jurisdiction in some cases over their own members, than over strangers; however, they had not any authority upon the return, for they 2 are committed by another law than we proceed by and to be committed by one law, and to judge of the commitment by another law, would be a strange thing: for the House do not commit by the authority of the common law, but by another law, 'Legem et Consuetudinem Parliamenti'; for there are in England several other laws, besides the common law, viz. the ecclesiastical law, the admiralty law, etc., and there is the law and customs of parliament, where they have particular laws and customs for their directions.

:

To state judicature will help to clear this case. The House of Lords have a power to judge by the common law, but not originally, 1 i.e. of the House of Lords.

2 The Aylesbury men.

T

but a dernier resort upon Writs of Error and Appeals; and for that reason it is provided by the constitution, for the judges to give their assistance, which they are bound to do. But they have another law, viz. 'Lex et Consuetudo Parliamenti,' which the judges are not to assist in, or give any opinion; and I dare say, the House of Lords would take it ill, should they meddle or advise therein, for they have their privileges in their own rolls and books.

That the Commons have also a judicature, not by the common law, but do judge of breaches of privileges, and contempts to their House, 'Secundum Legem et Consuetudinem Parliamenti,' 4. Inst. 23, and by this law these persons are committed, and are now brought to be discharged by the common law. The Resolution of the Commons upon the breach of privileges is a judgement, and the commitment an execution of it, which cannot be controlled; for this would be to draw it ad aliud Examen, and then the Commons would not be supreme judges of their own privileges.

That the Resolution in the House of Lords, in the case of Ashby and White, does not bind the House of Commons, nor determine their privileges; for they judged of the privileges of the Commons as an incident to the action, and one court may judge of a matter within the jurisdiction of another court, when without it they cannot determine the case before them; as this court may of admiralty, or ecclesiastical jurisdiction, if the question arises in an action depending in this court. But such a determination will not bind another court, which has an original cognizance of that matter, as in ejectment now depending in the Common Pleas, the general issue pleaded, and a special verdict; the question there is, If a Quaker's marriage be good? Now if it should be held in that court a void marriage, and the judgement should be affirmed in this court, and upon a Writ of Error in the House of Lords, it should be reversed, this would not bind the ecclesiastical court, but they might proceed there for incontinency, and if they should proceed there to excommunication, finding it a void marriage and the party taken by the Excommunicato Capiendo should bring this Habeas Corpus upon the return of it, we could not discharge him. But this is a matter originally arising in Parliament.

That this court may keep other inferior courts within their jurisdictions, but not the House of Commons; for no prohibition was ever granted to that court, though they exceeded jurisdiction; so if the House of Lords do exceed, or take cognizance of matters in the first instance, no prohibition would lie; for no inferior court can prohibit a superior and no prohibition was moved here, nor could we have

granted it; for the House of Commons is superior to all ordinary Courts of law. When the House of Lords took cognizance, and proceeded upon the petition of my lord Wharton, complaining of an order of the court of Exchequer, for filing the record of a survey of the honour of Richmond, and lordship of Middleton, which the House of Commons, upon the petition of Mr. Bathhurst, complaining of this proceeding, Jan. 28, 1703, resolved to be without precedent, and unwarrantable, and tending to the subjecting all the rights and properties of the Commons of England to an illegal and arbitrary power; they also resolved then, that it is the undoubted right of all the subjects of England to make use of the record; as they ought by law to have done before the said proceeding of the House of Lords. .

Lord Chief Just. Holt. That this case does depend upon the vote that is recited in the Speaker's Warrant of Commitment, which was to this effect:

That it did appear to that honourable House, that John Paty of Aylesbury has been guilty of commencing and prosecuting an action at common law, against W. White and others, late constables of Aylesbury, for not allowing his vote in an election of members to serve in parliament, contrary to the declaration, in high contempt of the jurisdiction, and in breach of the known privileges of this House.

That he owned himself to lie under two disadvantages: one, That all the rest of the judges do agree with his three brethren, from whom he had the misfortune to dissent. The other, That he opposed the votes of the House of Commons, and did begin to think he might justify himself in resigning his opinion to the rest; but that he valued more the dictates of his own conscience, than anything he could suffer in this world, and by that and his judgement (though it were but weak) he would be guided. That this was not such an imprisonment as the freemen of England ought to be bound by. And that it did highly concern the people of England, not to be bound by a declaration of the House of Commons in a matter that before was lawful.

That neither House of Parliament has a power separately to dispose of the liberty or property of the people, for that cannot be done but by the Queen, Lords, and Commons; and this is the security of our English constitution, which cannot be altered but by act of parliament.

That there is a crime charged by the vote for commencing an action; but sure that cannot be a breach of privilege; for an original may be filed against a member of parliament during the time of

privilege, so that you do not molest him, and it is no breach of privilege; as it was resolved in Sir George Binion's case, 14 ch. 2; for otherwise, by lapse of time in several actions, he may be barred by the statute of limitations; so that if it be not a breach of privilege to commence an action against a member of parliament, then how can it be so to commence an action against the constable of Aylesbury.

But then the vote goes further, and says, for commencing and prosecuting an action: but prosecuting may not be a breach of privilege neither; for entering and continuing is prosecuting, which may be done without a breach of privilege.

That it does not appear, that the constable of Aylesbury has any privilege above another person, for no man is presumed to be privileged unless it be shown; and he has no privilege as constable.

That the vote goes yet further, and says, for not allowing his vote in an election of members to serve in this present parliament: but this can be no crime.

That he admitted they were judges of their own privileges; but the law must also be observed. By 2 Ric. 3, fol. 9, it appears, it was no crime by the common law, to bring an action, though never so malicious, false, or groundless, where it is adjudged, that there is no punishment for it, because it was in a method of justice; but when business began to increase, costs were given against the plaintiff by 23 Hen. 8, for bringing an action causelessly. A peer cannot have an action of Scandalum magnatum, where there is no cause for the action wherein he is charged with scandal; so much the law regarded the right of bringing actions.

That when subjects have such a right to bring actions, it cannot be stopped by privilege of parliament, for no privilege of parliament can intend so far as to destroy a man's right.

That it has been adjudged a good action by the law of the land, and that damages may be recovered for the injury, in not allowing his vote; and this action is the same as Ashby and White, which lies before us; and if we consult the records, we shall find it to be the same.

That the latter part of this vote is, That the prosecuting this action is contrary to the declaration, in high contempt of the jurisdiction, and in breach of the known privileges of this House.

That the privileges of the House of Commons are limited, for there is no privilege in case of treason, or felony, or breach of the peace; for a justice of the peace may commit a member for breach of the peace, and if he should be indicted for it, his plea of privilege would not be allowed.

That nothing can make a privilege that was not so before, (for the breach of which a man shall lose his liberty) but an act of parliament.

That each House is judge of their own privileges, because they are more conversant with the privileges of their own House; so the judges decline it; but if they come incidently before the courts of law, they must determine it there.

That suppose the House of Commons had not meddled in this matter, but the defendants in this action had pleaded to the jurisdiction of this court, that this was a matter examinable only in parliament, and the plaintiff had demurred, we must then have determined it, and be judges then of their privileges.

Coke's 1 Inst. 'Lex et Consuetudo Parliamenti ab omnibus querenda, a multis ignota, a paucis cognita,' and the reason it is known by so few is, because they do not seek for it. We are bound to take notice of the customs of parliament, for they are part of the law of the land; and there are the same methods of knowing it, as the law in Westminster-hall. (After quoting from Clarendon's History as to privileges of parliament, the Chief Justice proceeded) That if bringing an action is a breach of privilege, why was not Ashby laid hold on? He prosecuted to judgement and execution; but these persons are committed for commencing an action.

How can the bringing an action in one court be a contempt to another?

If a man that has a privilege in one court is sued in another, he shall have his privilege: but it is no contempt in a plaintiff that sues in another court, and there is no punishment for it; much less can it be a contempt to the House of Commons, where no action can be brought.

That he admitted, the House of Commons may commit any person, and for any crime, because they may impeach any person for any crime whatsoever; but that course is seldom taken, unless where the crime requires a strict prosecution, and much concerns the public.

That the lord Shaftesbury's case is not like this; for he was a member of the House, and it was for a contempt in the House.

The House may at any time commit a man for a contempt in the face of the House; whereas the prisoners are committed not for a breach of privilege or contempt, but because they have brought their actions which are legal, and so adjudged by the Lords in the Writ of Error.

That he did not question but that the warrant was a good warrant. That 'lex et consuetudo parliamenti' is as much the law of the land as any other law. It is the law gives the queen her prerogative: