n

FOR, as every court of justice hath laws and customs for its direction, some the civil and canon, some the common law, others their own peculiar laws and customs, so the high court of parliament hath also its own peculiar law, called the lex et consuetudo parliamenti; a law which sir Edward Coke observes is," ab omnibus quaerenda, a multis ignora"ta (17) 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

the people of this country, which can raise little or no doubt in the minds of those who view them at a distance uninfluenced by interest or passion. It might perhaps be a violent measure in the house of commons to expel a member for the libels which he had published; but that the subsequent proceedings were agreeable to the law of parhament, that is, to the law of the land, the authorities here referred to by the learned Judge, I conceive, do most unanswerably prove. It is supposed that the resolution of the 17 Feb. 1769, was considered to be subversive of the rights of electors, because it assigned expulsion alone, without stating the criminality of the member to be the cause of his incapacity during that parliament. But as his offences were particularly described in the resolution by which he was expelled on the 3d of the same month, no one could possibly doubt but the latter resolution had as clear a reference to the former, as if it had been repeated in it word for word.

(17) Lord Holt has observed, that "as to what my Lord Coke says, "that the lex parliamenti est a multis ignorata, is only because they "will not apply themselves to understand it." 2 Ld. Ray. 1114.

"in that house to which it relates, and not elsewhere P." Hence, for instance, the lords will 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 maxims upon which they proceed, together 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 (18).

[164]

THE privileges of parliament are likewise very large and indefinite. And therefore when in 31 Hen. 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 86 answer to that question: for it hath not been used aforetime

p 4 Inst. 15.

(18) This sentence seems to imply a discretionary power in the two houses of parliament, which surely is repugnant to the spirit of our constitution. The law of parliament is part of the general law of the land, and must be discovered and construed like all other laws. The members of the respective houses of parliament are in most instances the judges of that law; and like the judges of the realm, when they are deciding upon past laws, they are under the most sacred obligation to inquire and decide what the law actually is, and not what, in their will and pleasure, or even in their reason and wisdom, 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 invested 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 circumscribed by law, so it may be exceeded; and if they do "exceed those legal bounds and authority, their acts are wrongful, "and cannot be justified any more than the acts of private men." 1 Salk, 505.

"that the justices should in any wise 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 parlia ❝ment, 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-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 (19). 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

q Seld. Baronage, part 1. c. 4.

(19) In the observations above, upon the privileges of parliament, the Editor is obliged to differ from the learned Judge; he cannot but think that clearness and certainty are essentially necessary to the liberty of Englishmen. Mystery and ignorance are the natural parents of superstition and slavery. How can rights and privileges be claimed and asserted, unless they are ascertained 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 those boundaries which afford the greatest share of security to the subject and constituent, who may be equally injured by their extension as their diminution. The privileges of the two houses ought certainly to be such as will best preserve 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 harass the executive power, and violate the freedom of the people?

goods (20). As to the first, privilege of speech, it is declared by the statute 1 W. and M. st. 2. c. 2. as one of the liberties of the people, "that the freedom of speech, and debates, and pro"ceedings in parliament, ought not to be impeached or ques❝tioned 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 persons, servants, lands and goods: which are immunities as ancient as Edward the confessor; in whose laws

we find this precept, "ad synodos venientibus, sive [165] "summoniti sint, sive per se quid agendum habuerint,

"sit summa pax :" and so too, in the old Gothic constitutions, "extenditur haec pax et securitas ad quatuordecim "dies, convocato regni senatus." This included formerly not only privilege from illegal violence, but also from legal arrests, and seizures by process from the courts of law. And still, 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 severity. It has likewise peculiar penalties annexed to it in the courts of law, by the statutes 5 Hen. IV. c. 6. and 11 Hen. VI. c. 11. Neither can any member of either house be arrested and taken into custody, unless 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, save only as to the freedom of the member's person: which in a peer (by the privilege of peerage) is for ever sacred and inviolable; and in a commoner (by the privilege of parliament) for forty days after every prorogation, and forty days before the next appointed meetingt; which is now in effect as long as the parliament subsists, it seldom being prorogued for more

r cap. 3.

s Steinh. de jure Goth. 1. 3. c. 3.

t 2 Lcv. 72.

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

(See p. 165.)

than fourscore days at a time (21). As to all other privileges, which obstruct the ordinary course of justice, they were restrained by the statutes 12 W. III. c. 3. 2 & 3 Ann. c. 18. and 11 Geo. II. c. 24. and are now totally abolished by statute 10 Geo. III. c. 50. which enacts, that any suit may at any time be brought against any peer or member of parliament, their servants, or any other person entitled to privilege of parliament; which shall not be impeached or delayed by pretence of any such privilege; except that the person of a member of the house of commons shall not thereby be subjected to any arrest of imprisonment. 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 1007. and unless he makes satisfaction within two months, it shall be deemed an act of bankruptcy; and [166] that commissions of bankrupt may be issued against such privileged traders in like manner as against any other. THE only way by which courts of justice could anciently take cognisance of privilege of parliament was by writ of privilege, in the nature of a supersedeas, to deliver the party out of custody when arrested in a civil suit", For when a letter was written by the speaker to the judges, to stay proceedings against a privileged person, they rejected it as contrary to their oath of office. But since the statute 12 W. III. c. 3. which enacts that no privileged person shall be subject to arrest or imprisonment, it hath been held that such

u Dyer. 59. 4 Pryn. Brev. Parl. 757.

v Latch. 48. Noy, 83.

(21) It does not appear that the privilege from arrest is limited to any precise time after a dissolution; but it has been determined by all the judges that it extends to a convenient time. (Col. Pit's case, 2 Str. 988.) Prynne is of opinion that it continued for the number of days the member received wages after a dissolution, which were in proportion to the distance between his home and the place where the parliament was held. 4 Parl. Writs, 68,