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"ment, ought to be examined, difcuffed, and adjudged in "that house to which it relates, and not elsewhere"." Hence, for instance, the lords will not fuffer the commons to interfere in fettling the election of a peer of Scotland; the commons will not allow the lords to judge of the election of a burgefs; nor will either houfe permit the fubordinate courts of law to examine the merits of either cafe. But the maxims upon which they proceed, together with the method of pro'ceeding, reft entirely in the breast of the parliament itself; and are not defined and afcertained by any particular stated laws (18).

[164] THE privileges of parliament are likewife very large and indefinite. And therefore when in 31 Hen. VI the houfe of lords propounded a queftion to the judges concerning them, the chief juftice, fir John Fortefcue, in the name of his brethren, declared, "that they ought not to make anfwer "to that question: for it hath not been used aforetime that P 4 Inft. 15.

(18) This fentence feems to imply a difcretionary power in the two houses of parliament, which furely is repugnant to the fpirit of our conflitution. The law of parliament is part of the general law of the land, and must be difcovered and conftrued like all other laws. The members of the respective houfes of parliament are in moft inftances the judges of that law; and like the judges of the realm, when they are deciding upon paft laws, they are under the most facred obligation to enquire and decide what the law actually is, and not what, in their will and pleasure, or even in their reafon and wifdom, it ought to be. When they are declaring what is the law of parliament, their character is totally different from that with which, as legislators, they are invefted when they are framing new laws; and they ought never to forget the admonition of that great and patriotic chief justice lord Holt, viz. "that "the authority of parliament is from the law, and as it is circum"fcribed by law, fo it may be exceeded; and if they do exceed "thofe legal bounds and authority, their acts are wrongful, and "cannot be justified any more than the acts of private men." 1 Salk. 505.

"the

"the justices should in any wife determine the privileges of "the high court of parliament. For it is fo high and mighty "in it's nature, that it may make law: and that which is "law, it may make no law: and the determination and knowledge of that privilege belongs to the lords of parliament, and not to the juftices 9." Privilege of parliament was principally established, in order to protect it's members not only from being molefted by their fellow-fubjects, but alfo more especially from being oppreffed by the power of the crown. If therefore all the privileges of parliament were once to be fet down and ascertained, and no privilege to be allowed but what was fo defined and determined, it were eafy for the executive power to devife fome new cafe, not within the line of privilege, and under pretence thereof to harafs any refractory member and violate the freedom of parliament. The dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges indefinite (19). Some however of the more notorious privileges of the members of either house are, privilege of fpeech, of perfon, of their domeftics, and of their lands and

Seld. Baronage. part 1. c. 4.

(19) In the obfervations above, upon the privileges of parliament, the Editor is obliged to differ from the learned Judge; he cannot but think that clearnefs and certainty are effentially neceffary to the liberty of Englishmen. Myftery and ignorance are the natural parents of fuperftition and flavery. How can rights and privileges be claimed and afferted, unless they are afcertained and defined? The privileges of parliament, like the prerogatives of the crown, are the rights and privileges of the people. They ought all to be limited by thofe boundaries which afford the greatest fhare of fecurity to the fubject and conflituent, who may be equally injured by their extenfion as their diminution. The privileges of the two houfes ought certainly to be fuch as will beft preferve the dignity and independence of their debates and councils without endangering the general liberty. But if they are left uncertain and indefinite, may it not be replied with equal force, that under the pretence thereof the refractory members may harafs the executive power, and violate the freedom of the people?

goods,

Book I. goods (20). As to the firft, privilege of fpeech, it is declared by the ftatute 1 W. & M. ft. 2. c. 2. as one of the liberties of the people," that the freedom of fpeech, and debates, and "proceedings in parliament, ought not to be impeached or "queftioned in any court or place out of parliament." And this freedom of fpeech is particularly demanded of the king in perfon, by the fpeaker of the house of commons, at the opening of every new parliament. So likewife are the other privileges, of perfons, fervants, lands and goods: which are immunities as antient as Edward the confeffor; in whofe laws we find this precept," ad fynodos venientibus, five fummoniti [165]“ fint, five per fe quid agendum habuerint, fit fumma pax :” and fo too, in the old Gothic conftitutions, "extenditur haec pax "et fecuritas ad quatuordecim dies, convocato regni fenatu 3.” This included formerly not only privilege from illegal violence, but also from legal arrefts, and feifures by process from the courts of law. And ftill, to affault by violence a member of either houfe, or his menial fervants, is a high contempt of parliament, and there punished with the utmost feverity. It has likewife peculiar penalties annexed to it in the courts of law, by the ftatutes 5 Hen. IV. c. 6. and 11 Hen. VI. c. 11. Neither can any member of either house be arrested and taken into cuftody, uniefs for some indictable offence, without a breach of the privilege of parliament.

BUT all other privileges which derogate from the common law in matters of civil right, are now at an end, fave only as to the freedom of the member's perfon: which in a peer (by the privilege of peerage) is for ever facred and inviolable; and in a commoner (by the privilege of parliament) for forty days after every prorogation, and forty days before the next appointed meeting: which is now in effect as long as the parliament fubfifts, it feldom being prorogued for more Steiran. de jure Gutb. l. 3. c. 3.

I cap. 3.

t 2 Lev. 72.

(20) The privileges of domeftics, lands, and goods, are taken away by 10 Geo. III. c. 50. (See p. 165.)

than

than fourfcore days at a time (21). As to all other privileges, which obftruct the ordinary courfe of juftice, they were reftrained by the ftatutes 12 W. III. c. 3. 2 & 3 Ann. c. 18. and 11 Geo. II. c. 24. and are now totally abolished by ftatute to Geo. III. c. 50. which enacts, that any fuit may at any time be brought against any peer or member of parliament, their fervants, or any other perfon entitled to privilege of parliament; which fhall not be impeached or delayed by pretence of any fuch privilege; except that the perfon of a member of the house of commons fhall not thereby be subjected to any arrest of imprifonment. Likewife, for the benefit of commerce, it is provided by ftatute 4 Geo. III. c. 33. that any trader, having privilege of parliament, may be ferved with legal procefs for any just debt to the amount of 100 l. and unless he makes fatisfaction within two months, it fhall be deemed an act of bankruptcy; and that commiffions of [ 166] bankrupt may be iffued against fuch privileged traders, in like manner as against any other.

THE only way by which courts of justice could antiently take cognizance of privilege of parliament was by writ of privilege, in the nature of a fuperfedeas, to deliver the party out of cuftody when arrefted in a civil fuit". For when a letter was written by the fpeaker to the judges, to stay proceedings against a privileged perfon, they rejected it as contrary to their oath of office. But fince the ftatute 12 W. III. c. 3. which enacts that no privileged person shall be fubject to arrest or imprifonment, it hath been held that v Latch 48. Noy. 83.

Dyer 59. 4 Pryn. Brev. Fal. 757

(21) It does not appear that the privilege from arreft is limited to any precife time after a diffolution; but it has been determined by all the judges that it extends to a convenient time. (Col. Pit's cafe, 2 Str. 988.) Prynne is of opinion that it continued for the number of days the member received wages after a diffolution, which were in proportion to the diftance between his home and the place where the parliament was held. 4 Parl. Writs, 63.

fuch

fuch arreft is irregular ab initio, and that the party may be difcharged upon motion ". It is to be obferved, that there is no precedent of any fuch writ of privilege, but only in civil fuits; and that the ftatute of 1 Jac. I. c. 13. and that of king William (which remedy fome inconveniences arifing from privilege of parliament) speak only of civil actions. And therefore the claim of privilege hath been ufually guarded with an exception as to the cafe of indictable crimes; or as it hath been frequently expreffed, of treafon, felony, and breach (or furety) of the peace. Whereby it feems to have been understood that no privilege was allowable to the members, their families, or fervants, in any crime whatsoever; for all crimes are treated by the law as being contra pacem domini regis. And inftances have not been wanting, wherein privileged perfons have been convicted of mifdemefnors, and committed, or profecuted to outlawry, even in the middle of a feffion ; which proceeding has afterwards received the fanction and approbation of parliament. To which may be added, that a few years ago, the cafe of writing and publishing feditious libels was refolved by both [167] houfes not to be intitled to privilege (22); and that the reafons upon which that cafe proceeded, extended equally to every indictable offence. So that the chief, if not the only privilege of parliament, in fuch cafes, feems to be the right of receiving immediate information of the imprisonment or detention of any member, with the reafon for which he is detained a practice that is daily ufed upon the flightcft military accufations, preparatory to a trial by a court mar

w Stia. 989.

x Com. Journ. 17 Aug. 1641.

y 4 Inft. 25. Com. Journ. 20 May 1675.

z Mich. 16 Edw. IV. in Scac.b

Lord Raym. 1461.

2 Com. Journ. 16 May 1726.

b Com. Journ. 24 Nov. Lords' Journ.

29 Nov. 1763.

< Lords' Proteft. ibid.

(22) The contrary had been determined a fhort time before in the cafe of Mr. Wilkes by the unanimous judgment of lord Camden and the court of common pleas. 2 Wilf. 251.

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