the borough of Aylesbury, in the county of Bucks, in the room of John Wilkes, Efq; expelled this house. [52.]

Mr Wilkes's expulfion was greatly facilitated by his own conduct for after be had set up the trade of being an antiministerial writer or author,-I call it a trade, because it may properly be called fo, when it proceeds either from avarice or ambition, and not from principle. Which of these three were his motive, or whether it proceeded merely from refentment and revenge, which is the worst of all motives, though generally the mof violent, I fhall not pretend to determine; but whatever was his motive, in order to carry on his bufinefs with the greater ease, he had fet up a printingpreis at his own house in Great George street, Westminster, where, among other things, he was accused of caufing to be printed an obfcene and blafphemous piece, intitled, An Efay on Woman, with Notes or Remarks; fome of which were therein said to be by a Reverend and learned prelate of our church. This piece was not, it feems, publifhed for fale; but feveral copies of it were given about among Mr Wilkes's friends, which, in the eye of the law, was an actual publication; and one copy, fome way or other, fell into the hands of our minifters; who, as in duty bound, thought themselves obliged to take notice of it; therefore, on the 15th of November, the first day of the fellion [xxv. 629.], the Earl of Sandwich carried it to the house of Lords, and after having, as far as decency would permit, opened the contents of it to that houfe, his Lordship, in a most pathetic speech, represented the high infult thereby put upon the Chriftian religion in general, to the difgrace of the whole nation, and upon one of the Reverend and Learned bench, in breach of the privileges of that houfe. Where upon one Mr Kidgel [xxv. 622.], a clergyman, was ordered to be fummoned to attend that house on the 24th, in order to prove its having been printed at Mr Wilkes's houfe. An account of this new charge was presently carried to the house of Commons, and long before night flew over the whole of the cities of London and Westminster; which gave new vi-gour to those who were enemies to his perfon, as well as his caufe, and made many of those who were friends to his caufe, throw up all regard for his perfon.

As this affair occasioned several long debates within doors, fo it occafioned a multitude of difputes without doors; but I fhall take notice of none of them, fave that relating to privilege, which I fhall give fome account of, because I found that the matter of privilege was very little understood by fome of those who talked upon the subject. In all questions upon this subject we ought to diftinguish carefully between the privilege of peerage and the privilege of parliament; because the former never ceases, whereas the latter ceafes, as foon as the parliament is diffolved, or is prorogued for above fourfcore days, as is commonly fupposed; and yet the latter, while it does continue, is every way more extensive than the former. Though there were no parliament in being, yet every lord of parliament, together with his fervants, is by the privilege of peerage fo far protected, that neither he nor they can be taken into custody or imprisoned, unless they be legally accused, or justly suspected, of treafon or felony; or, in general, unless the cafe be fuch as requires the immediate interpofition of the magiftrate, for preventing, or putting a stop to, fome fignal mischief; for example, that of preventing the efcape of a traitor or felon; that of obliging a peer, when neceflary, to give fecurity for the peace; that of paying obedience to a writ of Habeas corpus, &c.

When there is no privilege of parlia ment in being, you may, indeed, bring an action at law, or a bill in equity, a gainst any peer of the realm; and if he appears, you may proceed through all the mazes of the law to the obtaining a judgment or decree. But then you cannot compel him to appear, by taking him into cuftody upon any mean process, as you may a commoner not intitled to privilege of parliament; nor can you oblige him to fatisfy the judgment or decree by any fuch method. For either of these purpofes you can proceed no way but by attachment, diftrets, or fequeftration, against his eftate or effects; and if he has no visible or discoverable estate or effects, which may be the cafe even of a Noble Lord, where are you, after all your trouble and expence? You may even get a bill of indictment found by a grand jury of freeholders against a peer of the realm; but if for a lefs criminal matter than treason or felony, you cannot have 3 Za

him

n the King; and as the parliament often held in one place, and the t wherein the fuit or action was ught fat in another place, at a great ance, fo that it was impothole for a to attend both, therefore the intro ing this privilege became necellary. aft a law was made for allowing fuitto appear by attorneys: but as every who has a fuit depending, would chufe be in or near the place where it is rying on, in order to fee that his atney does him justice; and as the parment was often held at a place far dit; therefore this privilege was contid, and is to this day continued; ugh, with respect to law-furts, it is now fo neceflary as it was formerly; caufe all law-fuits of any consequence now carried on to a final conclufion, at least till issue joined, here in Weft nster, where our parliaments have for any years been always held, and will bably be always held in time to come; ad because the perfonal freedom of a er is fecured by his privilege of peerage. at with respect to the houfe of Comcons the continuance of this privilege is little more neceffary; which leads me O confider the privilege of parliament with refpect to the members of that houfe. As the house of Commons is now come › be of so much weight in the scale of overnment, the freedom and independncy of its members ought to be as carelly guarded as that of the members of he other houfe: the prefervation of our onftitution depends upon it; and, acordingly, whilft the privilege of parlia nent continues, they now claim, and are uftly allowed to enjoy, all the privileges which the members of the other houfe are ntitled to by virtue of what is properly alled the privilege of parliament. Con equently, in all cafes where the immeliate interpofition of the magiftrate is not ibfolutely neceffary, for preventing or utting a stop to fome fignal mifchief, the perfon, the poffeffions, and the charafter of every member of that houfe, are by this privilege, whilft it continues, protected against any attack, either by law or by violence. But with refpe&t to them, this privilege was originally far from being to extenfive. On the contrary, it feems that for ages they owed their privileges to the royal grace and favour; for it is probable, that their Speaker, as foon as chofen, and approved by the fovereign, made the fame re. quefts, or famething like the fame re

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quefts, which were made to Q. Elifabeth by the Speaker of her parliament in the' 35th of her reign; which were, That the liberty of fpeech, and the ancient custom of parliament, be granted to your Majesty's fubjects. 2. That we may have access to your royal person. 3. That your Majesty will give us your royal affent to the things that are agreed upon *.

And to thefe requests the Queen's an-' fwer is fo remarkable, that I thall give it at full length, as follows.

"To this fpeech, fays the fame hiftorian, the Lord Keeper, having received new inftructions from the Queen, replied by her Majesty's order,

First, he commended the Speaker for his speech; then added some examples out of hiftory for the King's fupremacy in the time of Henry II. and the Kings before the conquest t.

As to the praises given to her Majefty for delivering the nation from the attempts of enemies, fhe would have the praife attributed to God; and as to her wife and just administration, she said, they might have a wifer prince, but never fhould they have one that more affectionately regarded them, or would carry a more even hand without distinction of perfons: and fuch a prince the wished they might always have.

To your three demands the Queen anfwereth, That liberty of speech is granted you. But how far? This is to be thought on. There be two things of moft necellity, and these two do most harm; which are, wit, and speech; the one exercifed in in vention, the other in uttering things in vented. Privilege of fpeech is granted; but you must know what privilege you have: not to fpeak every one what he lifteth, or what comes into his brain, to utter that; but your privilege is for fuch fpeech as fhall be used with judgment and fobriety. Wherefore, Mr Speaker, her Majefty's pleasure is, that if you perceive any idle heads, which will not stick to hazard their own eftates, which will meddle with reforming the church, and transforming the commonwealth, and exhibit any bills to fuch purpose, that you receive then not, till they be thewed and confidered by thofe whom it is fitter fhould confider of fuch things, and can better judge of them.

• Gurdon's history of parliament, p. 398. + The Speaker had gone as far back as Henry III.

To

To your perfons all privileges are granted; with this caveat, that under colour of this privilege, no man's ill-doings, or not performing of duties, be covered and protected.

To the last, Free access to her Majefty's perfon is granted, fo that it be upon urgent and weighty causes, and at times convenient, and when her Majefty may be at leifure from other important caufes of the realin."

Thus we fee her Majefty made no anfwer to the third request; and, indeed, it ought not to have been asked, nor could it be answered, till after her Majefty had known and confidered the things they had agreed upon. And I must obferve, that one of the branches of the an cient custom of parliament now asked in general terms, was a freedom from arrefts, which had usually in moft former reigns been particularly and exprefsly afked and granted. This freedom from arrefts in all cafes of a civil nature has always been allowed to be a privilege of parliament; and ever fince the reign of Henry VIII. it has been allowed, that no action or fuit can be begun, or proceeded in, against a member of the house of Commons, during the continuance of that privilege, unlefs, with the leave of the house, he waves his privilege. But this last branch of privilege is not of fuch an old standing; for, before that reign, the judges had feveral times given it as their opinion, that a member or his fervant, though exempted from arrests, might nevertheless be impleaded, fued, and attached, by lands and goods, even during the continuance of privilege.

But in cafes of a criminal nature, even though not fo heinous as treafon or felo. ny, it has been doubted whether a member may not be profecuted, not withftanding his privilege; because the public intereft requires, that even petty crimes fhould be punished as foon as poffible; and if a member be fufpected, the only away by which he can vindicate his character is by fubmitting to a fair trial. Therefore it has been faid, that though a member of the house of Commons be, by his privilege, whilf it continues, exempted from any civil action or fuit; yet if he has been guilty of any petty crime, or ill-doing, as Q. Elifabeth calls it, he may be indicted; and if he does not appear, and take his trial, he may be attached by his lands and goods; which feems to be confirmed by this aníwer of

Q. Elifabeth to the Speaker. Nay, from thence it may even be fuppofed, that if he does not give bail for his appearance, he may be imprisoned, and compelled to plead. But if he be ready to give bail for his appearance, he can neither be imprisoned, nor can any attachment be iflued against his lands and goods; for by the privileges of the great charter of our liberties, no British fubject can legally be imprisoned, who is ready to give unexceptionable bail for his appearance, unless he be charged, or justly fufpected of a crime which in its nature is capital, or fuch a one as has been made unbailable by ftatute. He may, upon a just fufpicion, be taken into cuftody, and detained for a day or two, (I with the time were peremptorily determined by law), until an inquiry be made, whether the offence he is charged with be bailable or no; but he cannot legally be longer detained, if he be ready to give bail for his appearance in the proper court.

Having now fhewn the difference be. tween the privilege of peerage and the privilege of parliament; and having, from the best authorities I could come at, explained the nature and the effect of each; I fhall inquire into the conti nuance of that which is called the privi lege of parliament; for as to the privilege of peerage, it always fubfifts, and be longs to every peer and peerefs of G. Britain. But as to the privilege of parliament, it entirely ceafes at the end of forty days after the diffolution of parliament, and never revives until the writs be iflued for calling a new parliament. From the tefte or date of these writs the privilege of parliament commences as to all the peers, and as to the clerks and fervants of both houses; but as to the members of the house of Commons, this privilege commences only with the return of each refpective member; that is to lay, from the day he is elected, and returned by the returning officer; and continues till the end of forty days after the diffoJution or prorogation of that parliament, If that parliament be after one feflion diffolved, this privilege, after it ceases, does not revive, as I have faid, until writs be iffued for calling a new parlia ment; which writs must always bear date, and be iffued, at least forty days before the time therein appointed for the parliament's affembling at the place therein likewife to be appointed. But if the parliament be only prorogued, the privi

lege

lege never ceases, unless the prorogat on be at once for above eighty days; for as the privilege continues for forty days after the prorogation, that the members may have time to return to their refpective homes, and commences forty days before the time appointed for the next meeting of parliament, that the members may have time to return and attend; thefe two times run fo into one another as to prevent the privilege's ever ceafing, unless, as I have faid, the parliament be at once prorogued for above eighty days; and as this never was the cafe for feveral years after the revolution, there was a total furceafe of justice, at least in all caufes of a civil nature, against any member of either houfe, or any of their fervants, or any clerk or fervant of either houfe of parliament.

This included fuch a number of perfons, against whom no action or fuit could be commenced or carried on, without their own confent, that it foon came to be generally felt; and was at laft complained of as an infufferable grievance; therefore in the 12th year of K. William, there was an act paffed, intitled, An act for preventing any inconveniencies that may happen by privilege of parliament; by which the time of the continuance of this privilege is very much curtailed, I fhould think, as to all the effects it formerly had, except that of freedom from arrefts; for by that act the effect of this privilege, except as to freedom from arrefts, is to ceafe, immediately after diffolution or prorogation, until a new parliament, or the fane, is re-affembled, and immediate ly after adjournment of both houfes for above fourteen days, until reaffumed. That this is the cafe as to all caules of a civil nature, is evident from the words of the act; and if it is not the cafe as to every other effect, the act does not, I am fure, deferve the title it bears; therefore I must fuppofe, that by the general word actions, the parliament then meant to include indictments and informations, as well as fuits; or that it was then thought, that privilege of parliament did not protect a member from being indict ed, tried, and punished, for any crime, or ill-doing, he might be guilty of. Whilft the house is fitting, decency, and a refpect to the houfe, might require an application to the house for their leave to proceed but if a crime fhould be committed by a member, or his fervant, prefently after the recefs, muft the profecu

tion be delayed till the house meets again to give their leave to profecute? This would be giving to each houfe, and to every particular member, with regard to his fervants, a power which the crown itfelf is by our great charter deprived of; for it is there faid, Nulli negabimus, aut differemus juftitiam. If the fervant of a member fhould, prefently after the recefs, affault a young woman with intent to ravifh her, and Thould for that pur pofe ufe her very ill; if he fhould fucceed, I know it would be felony; he would be not only indicted, but hanged, without a neceffity of having leave from his mafier; as it was never pretended, I think, that treason, or felony, could be a mo ment protected by any privilege. But if he did not fucceed, he could be indicted for nothing but an affault: and must he be left at liberty for fix months to make an affault of the fame kind upon every young woman he found alone in a byplace? Yet this would be the cafe, if his matter fhould refolve to protect him, and the house did not meet till fix months af ter the crime committed. Such a numher cf bad confequences would follow from allowing privilege of parliament, as it now ftands, to be a protection against profecutions for petty crimes, that I am perfuaded the thing was never allowed, or was intended to be remedied by the law I have mentioned. But,

Suppofing it granted, that no fuch thing was ever allowed, or ever ought to be allowed, the liberty of no member of either houfe could be thereby endan gered: for even upon an indictment for a petty crime, the perfon indicted is not arrested, or taken into cuftody, if he has any estate or effects that may be diftrained; and if a man is not to be taken into cuflody after the indi&ment, furely there can be no good reafon for holding him in cuftedy, or obliging him to give bail, before the bill of indictment is found. But fuppofing the crime to be of fuch a nature as makes it neceflary for the magifate to require bail for appearance, or to commit to prifon, can we fuppofe any member of the houfe of Commons fo mean in his circumftances as not to be able to find bail for his appearance? especially, as we know that every member of that house must be in poffeflion of at leaft 300 1. a-year above all reprises. And as to the members of the other house, no magiftrate, or court, can commit to prifon any one of them for any fuch crime,