ment.

jury brought in a special verdict. The case was several times argued at the bar, and three of the judges were of opinion that judgment ought to be given for the defendants; but Holt gave his opinion in favour of the plaintiff. He said "It would be very hard upon the subject, if the action, brought in this case was not a good one; for as the crown has a revenue of £100,000 per annum 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." Judgment was, however, given for the defendants. But a writ of error was afterwards brought, and allowed on the reasons which had been advanced by Holt. In the second year of Queen Anne, a very important cause was agitated by the judges, of what was then called' The queen's bench,' relative to the right of election of members of parliament. On this occasion, Holt greatly distinguished himself as a steady friend to the liberties of the subject. An action had been brought against the con stables of Aylesbury, at the suit of one Ashby, a burgess of that town, for refusing to receive his vote in an election of a member of parlia ment: the constables being the returning officers in that borough. This was tried at the assizes, and the constables were cast in damages. But a motion was made in the court of queen's bench, in arrest of judgWhen the case came to be argued, three of the judges, Powel, Powis, and Gould, gave it as their opinion, that no wrong had been done to the man, or at least none considerable enough to deserve the notice of the law; that the judging of elections belonged to the house of commons; that as this action was the first of its kind, so, if it was allowed, it would bring on an infinity of suits, and involve all officers concerned in elections in great difficulties. Lord-chief-justice Holt, however, differed totally from his brethren on this subject, and expressed his surprise at some arguments which they had advanced. He maintained that the plaintiff had the right and privilege to give his vote; and if he was hindered in the enjoyment or exercise of that right, he might legally bring an action against the disturber. "If the plaintiff," he said, "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 recompense. And if public ofhcers 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. right of voting at the election of burgesses, is a thing of the highest importance, and so great a privilege, that it is a great injury to deprive the plaintiff of it. 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

The

plaintiff by the common law, and consequently he may maintain an action for the obstruction of it." He concluded that the plaintiff' ought to have judgment; but, the majority of the judges having given a different opinion, judgment was given for the defendants. On the 14th of January, 1703, this judgment was reversed in the house of lords, and judgment given for the plaintiff by fifty lords against sixteen. Holt supported his opinion in the house of peers, and observed, "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." But the affair of the electors and returning officers of Aylesbury did not end here. In December 1704, John Paty, and four others, who had also commenced and prosecuted actions at common law against the constables of Aylesbury, were committed to Newgate by a warrant from the speaker of the house of commons, for breach of the privileges of that house. The counsel for the Aylesbury electors having moved for an habeas corpus, they were brought up to the court of king's bench; and when the judges came to deliver their opinions, three of them were for remanding the prisoners to Newgate; but Holt gave his opinion in the clearest and strongest manner that the prisoners ought to be discharged. The following are the most remarkable passages in the chief-justice's speech on this 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, Quid 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.

"'Tis 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 inpossible; when the law, by which the house of commons sit, justifies the prosecuting this action; and 'tis not in the power of the house of commons to supersede that power which gives them their essence.

"If we can discharge a person committed per mandatum regis, a fortiori, I think we can discharge from a commitment of the house of

commons.

"The house of commons, 'tis true, have a power over their own members, and may commit them; but to say that their commitment of any other person, though never so unlawful, is unexaminable, will tend to make Englishmen slaves, which, while I sit here, I can never consent to."

The chief-justice then observing that several members of the house

of commons were in court, added as follows::- "I hope never to be overawed from doing justice; and I think we sit here to administer equal justice to all her majesty's subjects; and, therefore, it is my judg ment that these prisoners ought to be discharged." However, as the three other judges had given a contrary opinion, the prisoners were remanded to Newgate. Upon this, John Paty, and another of the prisoners, moved for a writ of error, to bring the matter before the house of lords. This writ was only to be obtained by petitioning the queen that the judgment of the court of queen's bench might be brought before her majesty in parliament. The commons were alarmed at these petitions, and carried up an address to the queen, desiring her majesty not to grant the writ of error. The opinion of the judges was taken upon this; and ten of them, of whom Holt was one, agreed, that, in civil matters, a petition for a writ of error was a petition of right, and not of grace, and that for the queen not to grant a petition of right would be plainly a breach of law, and of the coronation oath. The house of peers too, having received a petition from the prisoners for relief, passed several votes, among which were the following:

"That neither house of parliament has any power, by any vote or declaration, to create to themselves any new privilege that is not warranted by the known laws and customs of parliament.

"That every freeman of England, who apprehends himself to be injured, has a right to seek redress by action at law; and that the commencing and prosecuting an action at common law against any person. not entitled to privilege of parliament, is legal.

"That the house of commons, in committing to Newgate John Paty, &c. for commencing and prosecuting an action at the common law, against the constables of Aylesbury, for not allowing their votes in election of members to serve in parliament, upon pretence that their so doing was contrary to a declaration, a contempt of the jurisdiction, and a breach of the privilege of that house, have assumed to themselves alone a legislative authority, by pretending to attribute the force of a law to their declaration; have claimed a jurisdiction not warranted by the constitution, and have assumed a new privilege to which they can have no title by the laws and customs of parliament; and have thereby, as far as in them lies, subjected the rights of Englishmen, and the freedom of their persons, to the arbitrary votes of the house of commons."

This affair at length occasioned so violent a contest between the two houses, that Queen Anne could find no method of putting an end to the dispute but by dissolving the parliament, which was accordingly done on the 5th of April, 1705.

The following anecdote is related of this excellent judge :—A serious riot having occurred in Holborn, in consequence of the discovery of a scheme for kidnapping and carrying off young people of both sexes to the plantations,-a party of the guards was sent for; but the commanding officer used the precaution to acquaint the chief-justice with what had taken place, and to request that he would countenance the interference of the military by sending some constables along with them. The officer having delivered his message, the chief-justice said to him, Suppose the populace should not disperse at your appearance, what are you to do then?" "In that case," replied the officer, 66 we have orders to fire upon them." "Have you, Sir?" replied Holt. "Then

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take notice of what I say. If there be one person killed, and you are tried before me, I will take care that you, and every soldier of your party, shall be hanged. Go back to those who sent you, and acquaint them that no officer of mine shall attend soldiers; and let them know. at the same time, that the laws of this kingdom are not to be executed by the sword. These matters belong to the civil power, and your soldiers have nothing to do with them." The chief-justice then proceeded himself to the scene of riot, accompanied by a few constables, with whom he succeeded in dispersing the mob.-Sir John died in 1709

Sir Robert Atkyns.

BORN A. D. 1621.-DIED A. D. 1709.

SIR ROBERT ATKYNS, lord-chief-baron of the exchequer, was descended from an ancient and opulent family in Gloucestershire; and it has been remarked as a singular circumstance, that for more than three hundred years consecutively, some member of this family always presided in one of the superior courts of law. His father, Sir Edward Atkyns, was a judge of the court of common pleas during the commonwealth, and shared with Hale, Rolle, Wyndham, and other judges, the merit of the various improvements in the administration of the law which took place at that period. Immediately after the restoration, Sir Edward Atkyns was named as one of the judges in the special commission for the trial of the regicides, and appointed a baron of the exchequer, in which latter office he continued till his death, which took place in 1669, at the age of eighty-two. Sir Robert Atkyns was born in 1621, and educated at Baliol-college, Oxford.

In 1661 he was made a knight of the bath, at the coronation of Charles II., and in 1672 was appointed a judge in the court of common pleas. In 1680 he retired from public life. But in July, 1683, on the imprisonment of Lord Russell, Sir Robert being applied to for his advice, gave it in a manner equally honourable to his courage and learning. "No fear of danger," he observes, "shall hinder me from performing the duty we owe one to another, to counsel those who need our advice how to make their just defence when they are called in question for their lives." He then goes on with a luminous exposition of the law of treason, in the course of which he takes occasion to declare, that "there is, nor ought to be, no such thing as constructive treason."

In 1684, on the exhibition of an information against Sir Williar: Williams, speaker of the house of commons, "for appointing a certain seditious and infamous libel, entitled, 'The information of Thomas Dangerfield,' to be printed and published," the defender pleaded to the jurisdiction of the court, and Sir Robert, in support of the defender's plea, undertook to prove "that these being matters transacted in parliament, and by the parliament, the court of king's bench ought not to take cognizance of them, nor had any jurisdiction to judge or determine them." Sir Robert Atkyns was returned to the only parliament called by James II., as representative of the county of Gloucester, but he does not appear to have taken at that time any active part in the debates. In the

reign of James II. he composed another legal argument, the subject of which was the king's power to dispense with penal statutes, and which was suggested by the well-known case of Sir Edward Hales. In this treatise he considers at large the doctrine of the king's dispensing power. It is clearly and candidly written, and the truth of the reasoning against the royal prerogative contended for by the judges in Hale's case will hardly be denied at the present day.

Sir Robert zealously promoted the revolution, and was made lordchief-baron of the exchequer in May, 1689. In October following he succeeded the marquess of Halifax as speaker in the house of lords, and sat as speaker till the great seal was given to Sir John Somers in 1693. In the month of October of this last year, when the lord-mayorelect was sworn in before him, Sir Robert made a singular speech, in which, after drawing a terrible picture of the designs of the French monarch, he hints his shrewd suspicions that "perhaps he (Louis) does take upon him to know, by the help of some confederacy with him that is prince of the power of the air, that the wind shall not serve in such or such a corner until such a time. He knoweth when our royal navy is to be divided, and when it is united. And shall I guess how he comes to have such intelligence? That were well worth the hearing," continues his lordship-and we can fancy the worshipful mayor and aldermen pricking up their ears to hear the chief-baron tell the curious tale― "I would but guess at it," his lordship goes on to say, "and I would in my guesses forbear saying any thing that is dishonourable to any among ourselves." He then edifies the worthy citizens with his views of the nature and employments of evil spirits, and draws this most potent conclusion, that "wicked spirits hovering in the air" report to Louis from time to time what the English fleets and armies are doing! The best apology that we can make for this extraordinary exhibition, is to remind the reader that Sir Robert was at this time beyond his seventieth year. He retired from the bench in June, 1695, but lived to the age of eighty-eight. His writings have been published in one volume, octavo, under the title of Parliamentary and Political Tracts.' His son, Sir Robert Atkyns has obtained some celebrity as an anti quarian writer.

William Dampier.

BORN A. D. 1652.—died a. d. 1712.

THIS celebrated navigator was born in 1652. He was descended from a good family in Somersetshire, but losing his father when very young, and being of an errant disposition, he was bound by his guardians apprentice to the master of a trading vessel belonging to Wey

mouth.

After seeing a variety of service, and being wounded in the war with the Dutch, he sailed for Campeachy with a Captain Hudsel, on a mercantile speculation. The success of this voyage encouraged him to take a second trip, during which he conceived the idea of exploring the Musquito shore in company with a Mr Hobby. They had procee led no farther on their voyage than the west end of Jamaica, when all the