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Criminals adjudged by the

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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 peo

ple, yet may the respective houses, upon 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. Lexes consuctuclo

The high court of parliament hath its own parliamenti.

peculiar law, called the lex et confuetudo parliamenti; a law, which Sir Edward Coke observes, is “ ab omnibus quærendo, a multis ignorata, a paucis cognita.It will not; therefore, 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 continual experience, than can be expressed by any one man. It will be sufficient to observe, that the whole of the law and custom of parliament has its original from this one maxim; “ That whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house, to which it relates, and not elfe

where.” Hence for instance, the lords will jonge of their not suffer the commons to interfere in settling

the

Each house

own causes.

1

the election of a peer of Scotland; the com-
mons will not allow the lords to judge of the
election of a burgess ; nor will either house
permit the subordinate courts of law to ex-
amine the merits of either case. But the No limited

form nor proofs 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 Itated laws.

The privileges of parliament are likewise Privileges of very large and indefinite. And therefore parliament inwhen in 31 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

their being in ment was principally established, in order to definite. protect its members, not only from being molested by their fellow-subjects, but also

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more

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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 determined, 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 independence 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 person, 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 person, by the speaker of the house of commons, at the opening of every new parliament. So likewise are the other privileges of perfon, servants, lands, and goods ; which are immunities as ancient, as Edward

the

Privilege of
Speech.

the confessor; in whose laws we find this precept, ' Ad fynodos venientibus five fummoniti fint, five per le quid agendum babuerint, fit Jumma pax :' and so too, in the old Gothic constitutions, extenditur hæc pax et securitas ad quatuordecim dies, convocato regni senatu.' This Privilege of

persons. includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law. To affault 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. 11. 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 fervants, 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 seised; 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 facred 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 statutes

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. HII. c. 3. and

II Geo. II. C. 24. immediately after the difsolution 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 dispoffeffed of Other abridg- his lands and goods. In these cases the king privileges of has also his prerogative: he may sue 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 trust 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

ruptcy;

ments of the

parlament.

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