fended, that they would have committed his Lordship to the Tower. But it was deemed improper to proceed to such extremities.*

In 1698, a remarkable cause was tried before his Lordship at Guildhall, wherein Richard Lane brought an action against Sir Robert Cotton and Sir Thomas Frankland as Joint Postmasters General, for that 'a letter of the plaintiff's having been delivered into the Post-Office by the negligence of the said defendants was there opened, and divers exchequer-bills therein inclosed were taken away.' In the course of the trial, some difficult points of law being started, the Jury brought in a special verdict.

This case, likewise, was several times argued at the bar; and three of the Judges pronounced, that judgement ought to be given against the plaintiff; but Holt on the other side contended, that 'It would be very hard on the subject, if the action brought in this case was not a good one; for as the Crown has a revenue of 100,000l. per ann. for the management of the Post-Office, care ought to be taken that letters were safely conveyed, and that the subjects should be secured in their properties.' The other Judges, however, concurring against him, judgement was given for the defendants. But a writ of error was subsequently brought and allowed, on the reason which had been advanced by the Chief Justice; so that the final determination of this affair was in favour of the plaintiff.

In the year 1700, when Lord Somers resigned the

* This dispute, about the manner in which Lord Banbury should be tried, proved eventually favourable to that nobleman, as he in consequence escaped trial altogether.

Great Seal, King William pressed Holt to accept of it; but he replied, that he never had but one Chancery cause in his life, which he lost, and consequently he could not think himself fitly qualified for so great a trust.'

In 1701, upon a case of appeal for murther, in which the King cannot pardon, it was observed by Judge Treby, that an appeal was an odious revengeful prosecution, and therefore deserved no encouragement.' On this occasion, Holt with great vehemence exclaimed, he wondered that any Englishman should brand an appeal with the name of "an odious prosecution;" for his part, he looked upon it to be a noble remedy, and a true badge of the English rights and liberties.'*

In the second year of the reign of Queen Anne, a most important cause was agitated by the Judges of what was then called The Queen's Bench,' relative to the right of election for members of parliament; upon which occasion, Holt distinguished himself as a steady friend to the liberties of the subject. An action had been brought against the constables of Aylesbury, as the returning officers of that borough, at the suit of a Mr. Ashby one of it's burgesses, for having refused to receive his vote. This was tried at the assizes, and the defendants were cast in damages. But a motion was made in the Queen's Bench in arrest of judgement, it being alleged that 'no action laid, or had ever been brought on that

* His integrity and uprightness as a Judge are celebrated in the Tatler,' No. 14, under the character of Verus. In 1708, he published Sir John Keyling's Reports, with some notes of his own, and three modern cases annexed; Armstrong and Lisle, the King and Plumer, and the Queen and Mawgridge.

account.' When the case came to be argued, three of the Judges (Powel, Powis, and Gould) gave it as their opinion, that no hurt had been done to the man, or at least none but what was too inconsiderable to deserve the notice of the law: that the judging of elections belonged to the House of Commons; and that as this action was the first of it's kind, so if it were allowed, it would bring on an infinity of suits, and involve all officers concerned in elections in great difficulties.'

6

The Chief Justice, however, differed totally from his brethren upon the subject, and expressed his surprise at some of the arguments which they had advanced. He maintained, that Ashby had a right to give his vote; and, if he was obstructed in the enjoyment or exercise of that right, he might legally bring an action against the disturber.' "If the plaintiff," said he, "has a right, he must of necessity have a means to vindicate and maintain it, and a remedy, if he is injured in the exercise or enjoyment of it: and, indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal."" It is no objection to say, that it will occasion multiplicity of actions: for, if men will multiply injuries, actions must be multiplied too; for every man, that is injured, ought to have his recompence. And, if public officers will infringe men's rights, they ought to pay greater damages than other men, to deter and hinder other officers from the like offences."-" To allow this action will make public officers more careful to observe the constitutions of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great

and growing mischief, and tends to the prejudice of the peace of the nation."—" A right that a man has to give his vote to the election of a person to represent him in parliament, there to concur to the making of laws which are to bind his liberty and property, is a most transcendent thing, and of a high nature, and the law takes notice of it as such in divers statutes." -"The right of voting is a right in the plaintiff by the common law, and consequently he shall maintain an action for the obstruction of it." Many other learned and forcible arguments he adduced on the same side; but, the majority of the bench having pronounced a different opinion, judgement was given for the defendants.

On January 14, 1703, this judgement was reversed upon appeal in the House of Peers by fifty Lords against sixteen; Holt still declaring, that whenever such a cause should come before him, he should direct the jury to make the returning officer pay well for depriving an elector of his vote.' "It is," said he, denying him his English right; and, if this action is not allowed, a man may for ever be deprived of it. It is a great privilege to choose such persons, as are to bind a man's life and property by the laws they make."

66

Here, however, the affair of the electors and the returning officers of Aylesbury did not end. In December 1704, John Paty and four others, who had also prosecuted actions at common law against the constables of Aylesbury, were committed to Newgate by a warrant from the Speaker for a breach of the privileges of the House. Their counsel having moved for an Habeas Corpus, they were

brought up to the Court of Queen's Bench, when three of the Judges were for remanding them to prison; but Holt gave his opinion, in the clearest and strongest manner, that they ought to be discharged. The following has been published as containing the most remarkable passages of his speech upon the occasion:

"I am very sorry, I am forced to differ from my brethren in opinion; but, whatever inconveniences or dangers I may incur, I think myself obliged to act according to my conscience. I must declare it is my opinion, that the prisoners ought to be discharged, because it is an illegal commitment; and Magna Charta says, Quòd nemo imprisonetur nisi per legem terræ. And, if prosecuting a legal action in a legal method can justify a commitment, then no Englishman's freedom is safe.

"It is by the law of the land, that the House of Commons have their being; therefore, it can never be in the power of the Commons to control the law. For my part, I know no privilege of parliament that can be valid, and at the same time contradict the law of England.

"It is by Magna Charta, that the liberty of an Englishman is preserved; and, without destroying the constitution of England, the liberty of an Englishman cannot be taken from him but for a legal cause.

"It is pretended, that acting legally is a breach of the privileges of the House of Commons, and that we are not judges of it. This is impossible: when the law, by which the House of Commons sit, justifies the prosecuting of this action; and it is not in the power of the House of Commons to supersede that power, which gives them their essence.