Right of determining Elections.—Ano ther important power peculiar to the commons is that of determining all mat ters touching the election of their own members, and involving therein the rights of the electors. Upon the latter portion of their right a memorable con test arose between the lords and commons in 1704. Ashby, a burgess of Aylesbury, brought an action at common law against the returning-officers of that town for having refused to permit him to give his vote at an election. A verdict was ob tained by him, but a judgment was given against him in the Queen's Bench, which was reversed by the House of Lords upon a writ of error. The commons de clared that " the determination of the right of election of members to serve in parliament is the proper business of the House of Commons, which they would always be very jealous of, and this juris diction of theirs is uncontested ; that they exercise a great power in that matter, for they oblige the officer to alter his return according to their judgment; and that they cannot judge of the right of election without determining the right of the elec tors, and if electors were at liberty to prosecute suits touching their right of giving voices in other courts, there might be different voices in other courts, which would make confusion, and be dishonour able to the House of Commons ; and that therefore such an action was a breach of privilege." In addition to the ordinary exercise of their jurisdiction as regarded the right of elections, the commons relied upon an act of the 7 Wm. III. c. 7, by which it had been declared that "the last determination of the House of Com mons concerning the right of elections is to be pursued." On the other hand, it was objected that "there is a great dif ference between the right of the electors and the right of the elected; the one is a temporary right to a place in parliament pro Mc vice; the other is a freehold or a franchise. Who has a right to sit in the House of Commons, may be properly cognizable there ; but who has a right to choose, is a matter originally established even before there is a parliament.. A man has a right to his freehold by the common law, and the law having an nexed his right of voting to his freehold, it is of the nature of his freehold, and must depend upon it. The same law that gives him his right must defend it for him, and any other power that will pre tend to take away his right of voting, may as well pretend to take away the freehold upon which it depends." These extracts from the Report of a Lords' Committee, 27 March, 1704, upon the conferences and other proceedings in the case of Ashby and White, give an epi tome of the main arguments upon which each party in the contest relied. The whole of this Report, together with an other of the 13th March, may be read with great interest.
Encouraged by the decision of the House of Lords, five other burgesses of Aylesbury, now familiarly known as " the Aylesbury men," commenced ac tions against the constables of their town, and were committed to Newgate by the House of Commons for a contempt of their jurisdiction. They endeavoured to obtain their discharge on writs of habeas corpus, but did not succeed. The com mons declared their counsel, agents, and solicitors guilty of a breach of privilege, and committed them also. Resolutions condemning these proceedings were by the lords ; conferences were and addresses presented to the queen. At length the queen came down and prorogued parliament, and thus put an end to the contest and to the imprison ment of the Aylesbury men and their counsel.
The question which was agitated at that time has never since arisen. The commons have continued to exercise the sole power of determining whether elec tors have had the right to vote while in quiring into the conflicting claims of candidates for seats in parliament, and specific modes for trying the right of election by the house have been pre scribed by statutes, and its determination declared to be " final and conclusive in all subsequent elections, and to all intents and purposes whatsoever." Connected with the power of the com mons to adjudicate upon all matters re lating to elections, may be mentioned their power over the eligibility of can didates. John Wilkes was expelled, in 1764, for being the author of a seditious libel. In the next parliament (February 3, 1769) he was again expelled for an other libel; a new writ was ordered for the county of Middlesex, which he re presented, and he was re-elected without a contest; upon which it was resolved, on the 17th February, "that having been in this session of parliament expelled this house, he was and is incapable of being elected a member to serve in this present parliament" The election was declared void, but Mr. Wilkes was again elected, and his election was once more declared void, and another writ issued. A new expedient was now used. Mr. Luttrell, then a member, accepted the Chiltern Hundreds, and stood against Mr. Wilkes at the election, and being defeated, peti tioned the house against the return of his opponent. The house resolved that al though a majority of the electors had voted for Mr. Wilkes, Mr. Luttrell ought to have been returned, and they amended the return accordingly. Against this pro ceeding the electors of Middlesex pre sented a petition, without effect, as the house declared that Mr. Luttrell was duly elected. The whole of these proceedings were severely condemned, and on the 3rd of May, 1782, the resolution of the 17th of February, 1769, was ordered to be expunged from the journals as " sub versive of the rights of the whole body of electors of this kingdom." A resolu tion similar to that expunged had been passed in the case of the unfortunate Hall, in 1580, as part of the many punishments inflicted upon him, which we shall have occasion to mention.
Oaths.—The power of administering oaths exercised by the lords is not claimed by the House of Commons. They formerly endeavoured to attain the end supposed to be secured by the adminis tration of an oath, by resorting to the au thority of justices of the peace who hap pened to be members of their own body ; but this and other expedients of the same kind have long since been abandoned, and witnesses guilty of falsehood are punished by the house for a breach of privilege. Election committees have power by statute to administer oaths, and witnesses who give false evidence before such committees are guilty of perjury.
8. Privileges.—Both houses of parlia ment possess various powers and privi leges for the maintenance of their col lective authority, and for the protection, convenience, and dignity of individual members. At the commencement of each parliament, the Speaker, on behalf of the commons, has " laid claim to them of the king" since the reign of Henry VIII., but they appear to have been al ways enjoyed with equal certainty before that time. Some of them have been sub sequently confirmed, modified, and even abolished by acts of parliament, but the petition of the Speaker remains un changed, and prays for some which have been disallowed by law since the original form was adopted.