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In order to prevent the mischiefs, that might No minors to
fit in either arise by placing this extensive authority in house. hands, that are either incapable, or else improper to manage it, it is provided by the custom and law of parliament, that no one shall sit or vote in either house, unless he be twenty-one years of age. This is also expressly declared by statute 7 & 8 W. III. c. 25, with regard to the house of commons; doubts having arisen from some contradictory adjudications, whether or no a minor, was incapacitated from fitting in that house. It is also enacted by statute
Oaths required 7 Jac. I. c. 6. that no member be permitted to to quality the enter the house of commons, till he hath taken take their seats. the oath of allegiance before the lord steward, or his deputy ; and by 30 Car. II. st. 2. and i Geo. I. c. 13, that no member shall vote or fit in either house, till he hath, in the presence of the house, taken the oaths of allegiance, supremacy, and abjuration, and subscribed, and repeated the declaration against transubftantiation, and invocation of saints, and the sacrifice of the mass. Aliens, unless natura- aliens. lized, were likewise by the law of parliament incapable to serve therein; and now it is enacted, by statute 12 & 13 W. III. c. 2. that no alien, even though he be naturalized, shall be capable of being a member of either house of parliament. And there are not only
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 Criminals ad- ple, yet may the
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 sit as a member; and this by the
law and custom of parliament. Lexo consu tudo
The high court of parliament hath its own parliamenti.
peculiar law, called the lex et consuetudo parliamenti; a law, which Sir Edward Coke observes, 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 same 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 sufficient to observe, that the whole of the law and cuítom 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 elle
where.” Hence for instance, the lords will judge of their not suffer the commons to interfere in settling
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
form nor proofs maxims upon which they proceed, together in paslianient. 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 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 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 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 inment was principally established, in order to definite. protect its members, not only from being molested by their fellow-subjects, but also
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
Privilege of speech.
the confessor; in whose laws we find this precept, ' Ad fynodos venientibus five fum 10niti fint, five per se quid agendum habuerint, fit fumma pax:' and so too, in the old Gothic constitutions, extenditur hæc pax et securitas ed 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 severity. 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
Privilege of process of the courts of law; nor can his fervants, lands, 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;