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transcendant and absolute that it cannot be confined, either for causes or persons,
bounds. It can alter the succes, sion to the crown, the religion of the country, the constitution itself.
In quoting the above passage, however, we would fain remember that the doctrines of Coke on this Institute have not been always received as unimpeachable; and though often cited by “high privilege” men for the sake of the author's name rather than his matter, the latter must, in the case of this part of his works, be sceptically scrutinized. Thus, during the argument in Burdett v. Abbott (4 Taunt, 416), it was said that Prynne and Selden had proved that the modus tenendi parliamentum in Anglia, on which most of the Fourth Institute is founded, is a forgery, and that, therefore, most of that treatise must be considered of little or no authority. What Mr. Prynne, indeed, has done, in his treatise upon the subject of this Institute, is to enumerate many misquotations and inaccuracies which he had laboriously sought; and he boldly charges upon its author, in consequence, untrustworthiness generally, in this portion of his famous writing. “I shall seriously advise,” says Prynne, “all professors, students of the common law, especially judges, and all members of Parliament, who shall have occasion to vouch any records quoted in the Institutes in their arguments or debates, diligently to search for, and compare them with, their originals, before they make publike use of, or depend upon them (who, upon that account, should be very willing his misquotations or mistakes should be rectified), lest they be seduced or misguided by them to their dishonour, as many have been, and to follow the author's advice, not to take any thing upon trust, but to search the fountains themselves, which I fear himself did not constantly pursue.” And Sir O. Bridgman (in Benyon v. Evelyn) says that Lord Coke's treatise on the jurisdiction of parliament is a posthumous work, and contains a multitude of errors. But whether or no the doctrines of Coke, his arguments and authorities, be as unsound as is here represented, it remains still true of the dominion of parliament, that it is collectively, as well as in its separate portions, strong
enough to assert what its dignity requires and public utility demands, and also to waive what may tend to work much mischief to the community—the claim to doubtful or detrimental privileges.
Before we can judge in all respects of the cure for the mischievous relations which at present subsist between courts of law in respect of their jurisdiction, and the House of Commons with regard to its privileges, it will be well to recall some of the more modern cases when the conflict has arisen. We need go back no farther than the celebrated case of Ashby v. White, which was litigated in the second year of Queen Anne, and was selected by Mr. Smith as one of his leading cases, to exemplify the maxim of “ubi jus ibi remedium." The disputes arising out of this case ultimately took the form of a controversy between the House of Lords and Commons, which was only determined by the prorogation of parliament. The privilege which, the Commons contended, had been invaded in Ashby v. White, was that of their own exclusive right to entertain questions relating to the elective franchise. The House of Lords held that electors had a right to bring actions against returning officers touching their right of voting ; whereupon the House of Commons resolved, "that any one who should dare to bring such action in respect of such causes, and all attorneys, solicitors, counsellors, and sergeants-at-law, soliciting, prosecuting, or pleading on” such cause, should be guilty of a high breach of the privileges of the House. Nevertheless, “the Aylesbury men,” five in number, disregarding this resolution, brought their suit against the constables of this borough for rejecting their votes; and the House of Commons, obtaining copies of the declarations, carried out their expressed intention, and committed the Aylesbury men with their attorney to Newgate, and their counsel to the custody of the sergeant-at-arms.
One of the Aylesbury men (Paty) sued out a habeas corpus to the keeper of Newgate, who, for his return, set forth the speaker's warrant of commitment; and the Lord Chief-Justice Holt, as is well known, distinguished himself by holding, against the rest of
the court, that the prisoner should be discharged; but, being overruled, writs of error were applied for. The Commons thereupon ordered their sergeant-at-arms to take into custody Montagu, Letchmere, Denton, and Page, the counsel for the prisoner on the habeas corpus. Nicholas Letchmere, however, he who after'wards was attorney-general—evaded the officer, who reported him to have escaped out of a back window of his chambers in the Temple, which were on the second floor (but which we grieve to say we cannot now identify), using for this purpose his sheets and a rope. The other learned gentlemen were either too dignified to escape, or lived on higher floors, so they were taken into custody. Thereupon they, in their turn, sued out writs of habeas corpus, and the complications were becoming still more serious—the conferences between the two Houses leading to no good result—when the Queen settled the matter, for the time, by proroguing parliament. What were the views of the Lords on this constitutional question, will be seen in the report of the committee which they appointed to examine the proceedings in Ashby v. White. This report embodies the arguments of the Lord Chief-Justice, and it is said was mainly drawn up by him.
There was no little conflict of opinion on the Bench in the celebrated case to which we are now alluding; and if we may trust to the version of the proceedings in court, given by Lord Raymond, the judges allowed themselves greater freedom in expression, pointed language, and personal allusions, than are nowadays observed. A hundred years ago, when a member of the courts, especially if he were the chief, thought the views or arguments of his brethren on the Bench erroneous, he seems to have said so in a hard, blunt, and peremptory fashion, examples of which will be seen in the following extracts. Thus, Powys, J., stated his opinion as to parliamentary privilege (which he did briefly and pertinently) as follows :-“Another reason against the action is, that the determination of the matter is particularly reserved to the parliament, as a matter conusable by them, and to them it belongs to determine the fundamental rights of their House, and of the constituent parts of it, the members; and
the courts of Westminster shall not tell them who shall sit there. Besides, we are not acquainted with the learning of elections, and there is a particular cunning in it not known to us, nor do we go by the same rules, as they often determine contrary to our opinion without doors." In another and less laudable tone he adds, “Our business is to determine of meum and tuum where the heats do not run so high as on things belonging to the legislature; therefore, this being an unprecedented case, I shall conclude with a saying of my Lord Coke, Omnis innovatio plus novitate perturbat quam utilitate prodest.' He also said, that the defendant was “ quasi a judge;" whereupon Powell, J., took up his words sharply, saying, “I do not understand what my brother Powys means by saying he is quasi a judge;' surely he must be a judge or no judge."
Holt, C. J., in his admirable and well-known judgment, remarked in the outset—“My brothers differ from me in opinion, and they all differ from one another in the reasons of their opinion;? but, notwithstanding their opinion, I think the plaintiff ought to recover. I will consider their reasons. My brother Gould thinks no action will lie against the defendant, because, as he says, he is a judge; my brother Powys, indeed, says he is no judge, but quasi a judge; but my brother Powell is of opinion that the defendant neither is a judge nor any thing like a judge, and that is true.” Then, turning to the point of privilege, the Chief-Justice continuing in a bantering tone, “But my brother says we cannot judge of this matter, because it is a parliamentary thing. Oh! by all means be very tender of that! Besides, it is intricate, and there may be contrariety of opinion." “But they say, that this is a matter out of our jurisdiction, and we ought not to enlarge it. I agree we ought not to encroach or enlarge our jurisdiction; by so doing we usurp both on the right of the queen and the people; but sure we may determine
* This reminds one of the well-known judgment of Maule, J., when a difference of opinion existed among the members of the Bench—“I agree,” said this caustic judge," with the conclusions of my brother A, for tho reasons offered by my brothers B. and C."
on a charter granted by the king, or on a matter of custom or prescription, when it comes before us, without encroaching on the parliament. And, if it be a matter within our jurisdiction, we are bound by our oaths to judge of it. This is a matter of property determinable before us. Was ever such a petition heard of in parliament, as that a man was hindered of giving his vote, and praying them to give him remedy? The parliament undoubtedly would say, Take your remedy at law. It is not like the case of determining the right of election between the candidates.
“My brother Powell says, that the plaintiff's right of voting ought first to have been determined in parliament, and to that purpose cites the opinion of my Lord Hobart (318), that the patron may bring his action upon the case against the ordinary, after judgment for him in a quare impedit, but not before. It is indeed a fine opinion, but I do not know whether it will bear debating, and how it will prove when it comes to be handled. For, at common law, the patron had no remedy for damages against the disturber, but the statute 13 Ed. I., st. 1, c. 5, s. 3, gives him damages; but if he will not make the bishop a party to the suit, he has lost his remedy which the statute gives him. But, in our case, the plaintiff has no opportunity to have remedy elsewhere. My brother Powys has cited the opinion of Littleton on the statute of Merton, that no action lay upon the words,
si parentes conquerantur,' because none had ever been brought, yet he cannot depend upon it. Indeed, that is an argument when it is founded upon reason, but it is none when it is against reason." A little further on he declares, that “We must not be frighted when a matter of property comes before us, by saying it belongs to the parliament; we must exert the Queen's jurisdiction. My opinion is founded on the law of England.”
Chief-Justice Holt certainly was not a man easily “ frighted.” His language and demeanour savour of courage as well as honesty. He took occasion, during the argument, to exclaim, “Let all people come in and vote fairly. It is to support one or the other party to deny any man's vote. By my consent, if such