Criminals ad

judged by the

two houfes in

capable to fit.

Lex confuetudo parliamenti.

Each houfe judge of their own caufes.

thefe standing incapacities; but if any person is made a peer by the king, or elected to ferve in the houfe of commons by the people, yet may the refpective houses, upon complaint of any crime in such person, and proof thereof, adjudge him difabled and incapable to fit as a member; and this by the law and cuftom of parliament.

The high court of parliament hath its own peculiar law, called the lex et confuetudo parliamenti; a law, which Sir Edward Coke obferves, is "ab omnibus quærenda, 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; fince, as the fame learned author affures 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 expreffed by any one man. It will be fufficient to obferve, that the whole of the law and cuftom of parliament has its original from this one maxim; "That whatever matter arifes concerning either house of parliament, ought to be examined, difcuffed, and adjudged in that house, to which it relates, and not elfewhere." Hence for inftance, the lords will not fuffer the commons to interfere in fettling

the

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 house permit the fubordinate courts of law to examine the merits of either cafe. But the

No limited form nor proofs

maxims upon which they proceed, together in parliament. with the method of proceeding, reft entirely

in the breast of the parliament itself; and are not defined and ascertained by any particular ftated laws.

definite.

The privileges of parliament are likewife Privileges of very large and indefinite. And therefore parliament in when in 3 Henry VI, the house of lords propounded a question to the judges concerning them, the chief juftice Sir John Fortefcue, in the name of his brethren declared," that they ought not to make anfwer to that question; for it hath not been ufed aforetime, that the justices should in anywife determine the privileges of the high court of parliament. For it is fo 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 parliament was principally established, in order to protect its members, not only from being molested by their fellow-fubjects, but also

Gg 4

more

Reafons for definite.

their being in

Privilege of
Speech.

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 devise some new cafe, 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 houfes 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 firft, privilege of speech, it is declared by the ftatute 1 W. and 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 speech 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 perfon, fervants, lands, and goods; which are immunities as ancient, as Edward

the

perfons.

the confeffor; in whofe laws we find this precept, "Ad fynodos venientibus five fummoniti fint, five per fe quid agendum habuerint, fit Jumma pax:' and fo too, in the old Gothic conftitutions, extenditur hac pax et fecuritas ad quatuordecim dies, convocato regni fenatu.' This Privilege of includes not only privilege from illegal violence, but also from legal arrests, and seisures by procefs 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 severity. It has likewife peculiar penalties annexed to it in the courts of law, by the statutes Henry IV. c. 6. and 11 Henry VI. c. 11. Neither can any member of either house be arrested and taken into cuftody, nor ferved with any process of the courts of law; nor can his fervants, lands, menial fervants be arrested; nor can any entry be made on his lands; nor can his goods be diftreined or feifed; without a breach of the privilege of parliament.

5

"These privileges however, which derogate from the common law, being only indulged to prevent the member's being diverted from the public bufinefs endure no longer, than the feffion of parliament, fave, only as to the freedom of his perfon: which in a peer is for ever facred and inviolable;

and

Privilege of

and goods.

By ftatutes

fome privileges

lution and prorogation.

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 fubfifts, it seldom being prorogued for more, than fourfcore days at a time. As to all other privileges, which ceafe after diffc obftruct the ordinary courfe of juftice, they ceafe by the ftatutes, 12 W. HII. c. 3. and 11 Geo. II. c. 24. immediately after the dif folution or prorogation of the parliament, or adjournment of the houses for above a fortnight; and during these receffes a peer, or member of the house of commons may be fued like an ordinary subject, and in confequence of such suits may be difpoffeffed of his lands and goods. In these cases the king has also his prerogative: he may fue for his debts, though not arreft the perfon of a member, during the fitting of parliament; and by ftatute 2 & 3 Ann. c. 18. a member may be fued during the fitting of parliament for any misdemeanor, or breach of trust in a public office. 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, and unless he make fatisfaction within two months, it fhall be deemed an act of bank

Other abridgments of the privileges of parliament.

ruptcy;