Page images

thefe standing incapacities; but if any person is made a peer by the king, or elected to

serve in the house of commons by the peoCriminals ad

ple, yet may the respective houses, upon judged by the two houses in complaint of any crime in such person, and capable to fit.

proof thereof, adjudge him disabled and incapable to fit as a member ; and this by the

law and custom of parliament. Lex és confia tuło The high court of parliament hath its own parliamenti.

peculiar law, called the lex et consuetudo par-
liamenti; a law, which Sir Edward Coke ob-
serves, is “ ab omnibus quærendo, a multis ig-
norata, a paucis cognita.It will not, there :
fore, be expected that we should enter into
the examination of this law, with any degree
of minuteness; since, as the same learned
author assures us, it is much better to be
learned out of the rolls of parliament, and
other records, and by precedents, and con-
tinual experience, than can be expressed by
any one man. It will be sufficient to ob-
serve, that the whole of the law and custom
of parliament has its original from this one
maxim; “ That whatever matter arises con-
cerning either house of parliament, ought
to be examined, discussed, and adjudged in

that house, to which it relates, and not elseEach house where.Hence for instance, the lords will own causes. not suffer the commons to interfere in settling

. the

jonge of their

form nor proofs

the election of a peer of Scotland; the commons will not allow the lords to judge of the election of a burgess ; nor will either house permit the subordinate courts of law to examine the merits of either case. But the No limited maxims upon which they proceed, together in parliament. with the method of proceeding, rest entirely in the breast of the parliament itself; and are not defined and ascertained by any particular stated laws. .

The privileges of parliament are likewise Privik very large and indefinite. And therefore the when in 3r Henry VI, the house of lords propounded a question to the judges concerning them, the chief justice Sir John Fortescue, in the name of his brethren declared, “ that they ought not to make answer to that question; for it hath not been used aforetime, that the justices should in anywise determine the privileges of the high court of parliament. For it is so high and mighty in its 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 justices.” Privilege of parlia- Reasons for ment was principally established, in order to definite. protect its members, not only from being molested by their fellow-subjects, but also Gg4


their being in.

more especially from being oppressed by the
power of the crown. If, therefore, all the
privileges of parliament were once to be set
down and ascertained, and no privilege to be
allowed, but what was so defined and deter-
mined, it were easy for the executive power
to devise some new case, not within the line
of privilege, and under pretence thereof to
harass any refractory member, and violate the
freedom of parliament. The dignity and in-
dependence of the two 'houses are therefore
in great measure preserved by keeping their
privileges indefinite. Some however of the
more notorious privileges of the members of
either house are privilege of speech, of per-
son, of their domestics, and of their lands and
goods. As to the first, privilege of speech,
it is declared by the statute W. and M. st. 2.
C. 2. as one of the liberties of the people,
“that the freedom of speech, and debates, and
proceedings in parliament, ought not to be
impeached or questioned in any court or
place out of parliament.” And this freedom
of speech is particularly demanded of the
king in perfon, by the speaker of the house
of commons, at the opening of every new
parliament. So likewise are the other privi.
leges of perfon, servants, lands, and goods;
which are immunities as ancient, as Edward


Privilege of



the confeffor; in whose laws we find this precept, ' Ad fynodos venientibus sive summoniti fint, five per fe quid agendum babuerint, fit summa pax :' and so too, in the old Gothic conftitutions, extenditur hæc pax et securitas, ad quatuordecim dies, convocato regni senatu.' This Privilege of includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law. To assault by violence a member of either house, or his menial servants, is a high contempt of parliament, and there punished with the utmost seve-, rity. It has likewise peculiar penalties annexed to it in the courts of law, by the statutes 5 Henry IV.c. 6. and 11 Henry VI.C. II. Neither can any member of either house be arrested and taken into custody, nor served with any process of the courts of law; nor can his servants, lands,

Privilege of menial servants be arrested ; nor can any en

and goods. try be made on his lands; nor can his goods be distreined or feised; without a breach of the privilege of parliament.

“ These privileges however, which derogate from the common law, being only indulged to prevent the member's being diverted from the public business endure no longer, than the session of parliament, save only as to the freedom of his person: which in a peer is for ever sacred and inviolable;

' and

lution and pro

and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting; which is now in effect as long, as the parliament sublists, it seldom be.

ing prorogued for more, than fourscore days By itatutes at a time. As to all other privileges, which fome privileges cease after difíc obstruct the ordinary course of justice, they rogation. cease by the statutes, 12 W. III. c. 3. and

11 Geo. II. C. 24. immediately after the dissolution or prorogation of the parliament, or adjournment of the houses for above a fortnight ; and during these recesses a peer, or member of the house of commons may be sued like an ordinary subject, and in conse

quence of such suits may be dispossessed of Other abridg- his lands and goods. In these cases the king

has also his prerogative: he may fue for his debts, though not arrest the person of a member, during the sitting of parliament; and by statute 2 & 3 Ann. c. 18. a member may be sued during the sitting of parliament for any misdemeanor, or breach of truft in a public office. Likewise for the benefit of commerce, it is provided by statute 4 Geo. III. c. 33. that any trader, having privilege of parliament, may be served with legal process for any just debt, to the amount of £.100, and unless he make satisfaction within two months, it shall be deemed an act of bank


ments of the privileges of parhament.

« PreviousContinue »