the king or elected to serve in the house of commons by the people, yet may the respective houses upon complaint of any crime in such person, and proof thereof, adjudge him disabled and incapable to sit as a member: (q) and this by the law and custom of parliament. (18)

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 (r) observes, is "ab omnibus quærenda, a multis ignorata (19) 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, (f) 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 elsewhere." (u) 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. (20) But the maxims upon which

(g) Whitelocke, of Parl. c. 102. See Lord's Journ. 3 May, 1620; 13 May, 1624; 26 May, 1725. Com. Journ. 14 Feb. 1580; 21 Jun. 1628: 9 Nov. 21 Jan. 1640: 6 Mar. 1676; 6 Mar. 1711; 17 Feb. 1769. (r) 1 Inst. 11. (t) 4 Inst. 50. (26) 4 Inst. 15.

(18) [This sentence was not in the first editions, but was added, no doubt, by the learned judge, with an allusion to the Middlesex election. The circumstances of that case were briefly these: On the 19th Jan. 1764, Mr. Wilkes was expelled the house of commons, for being the author of a paper called the North Briton, No. 45. At the next election, in 1768, he was elected for the county of Middlesex; and on 3d Feb. 1769, it was resolved that John Wilkes, Esq., having published several libels specified in the journals, be expelled this house; and a new writ having been ordered for the county of Middlesex, Mr. Wilkes was re-elected without opposition; and on the 17th Feb. 1769, it was resolved that " John Wilkes, Esq., having been in this session of parliament expelled this house, was and is incapable of being elected a member to serve in this present parliament;" and the election was declared void and a new writ ordered. He was a second time re-elected without opposition, and on 17th March, 1769, the house again declared the election void, and ordered a new writ. At the next election, Mr. Luttrel, who had vacated his seat by accepting the Chiltern Hundreds, offered himself as a candate against Mr. Wilkes. Mr. Wilkes had 1143 votes, and Mr. Luttrel 296. Mr. Wilkes was again returned by the sheriff. On the 15th April, 1769, the house resolved, that Mr. Luttrel ought to have been returned, and ordered the return to be amended. On the 29th April, a petition was presented by certain freeholders of Middlesex, against the return of Mr. Luttrel; and on the 8th May, the house resolved that Mr. Luttrel was duly elected. On the 3d May, 1783, it was resolved, that the resolutions of the 17th Feb., 1769, should be expunged from the journals of the house, as being subversive of the rights of the whole body of electors of this kingdom. And at the same time it was ordered, that all the declarations, orders and resolutions respecting the election of John Wilkes, Esq., should be expunged.]

In the United States each house of Congress judges of the election, returns and qualifications of its own members: Const. art. 1, § 5; and its decisions are conclusive. State v. Jarrett, 17 Md. 309; People v. Mahaney, 13 Mich. 481; Lamb v. Lynd, 44 Penn. St. 336. Each house may also determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member. Const. art. 1, ý 5. All legislative bodies have also a common parliamentary faw power to punish contempts either in members or third persons, which tend to obstruct legislation. See Anderson v. Dunn, 6 Wheat. 204; Hiss v. Bartlett, 3 Gray, 468; Burnham v. Morrissey, 14 Gray, 226; State v. Mathews, 37

N. H. 450.

(19) [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.]

(20) [The house of commons merely avails itself, when thus sitting judicially, of the maxim, that all courts are final judges of contempts against themselves. See the case of Brass Crosby, 3 Wils. 188; Bl. Rep. 754, and 7 State Trials, 437; 19 State Trials, 1117; 2 Hawkins, ch. 14, §§ 72, 73, 74. And in conformity with this principle, it was determined in the cases of the King v. Flower, 8 T. R. 314, and Burdett. v. Abbott, 14 East, 1; Burdett v. Colman, id. 163; 4 Taunt. 401, S. C., that the privileges of parliament, whether in punishing a person, not one of

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. (21)

*The privileges of parliament are likewise very large and indefinite.

And therefore when in 31 Hen. VI, the house of lords propounded a [*164] 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 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 parliament, and not to the justices." (x) 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 parlia ment 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. (22) 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. (23) 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 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

(x) Seld. Baronage, part. 1. c. 4.

their members, or in punishing one of their own body, are not amenable in a court of common law; that their adjudication of any offence is a sufficient judgment, the warrant of the speaker a sufficient commitment, and that outer doors may be broken open to have execution of their process.

The courts of Westminster, however, may judge of the privilege of parliament, when it is incident to a suit of which the court is possessed, and may proceed to execution between the sessions, notwithstanding appeals lodged, &c. 2 St. Tr. 66, 209.]

See also the recent case of Stockdale v. Hansard, 7 C. and P. 737; 9 Ad. and El., 1; and 11 Ad. and El. 253, and the account of the result thereof in May's Const. Hist. c. 9. Also note to same case, Broom's Const. L. 966.

(21) [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 legisla tors, 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 the 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.]

(22) [It is a most pernicious doctrine to maintain that the privileges of either separate branch of the legislature are arbitrary, because nowhere defined by any particular stated laws. Precedents and law bind each house of parliament no less than each court at Westminster. Lord Chief Justice Holt laid down the law very differently from Lord Coke. "The authority of parliament," said Lord Holt, "is from the law, and as it is circumscribed by the 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; 2 Ld. Ray. 1114.]

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

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105

the opening of every new parliament. (24) So likewise are the other privileges, of persons, servants, lands, and goods: which are immunities as ancient as Edward the Confessor; in whose laws (2) *we find this precept," ad synodos [*165] venientibus, sive summoniti sint, sive per se quid agendum habuerint, sit summa pax:" and so too in the old Gothic constitutions "extenditur hæc pax et securitas ad quatuordecim dies convocato regni senatu." (a) 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 servant, 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. VII, 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. (25)

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 forever 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 meeting; (b) which is now in effect as long as the parliament subsists, it seldom being prorogued for more than fourscore days at a time. As to all other privileges, which obstruct the ordinary course of justice, they were restrained by the statutes 12 W. III, c, 3, 2 and 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. 34, that any

(z) Cap. 3.

(a) Sternh. de jure Goth. 1. 3, c. 3

(b) 2 Lev. 72.

(24) But the right to freedom of speech does not protect a member in publishing afterwards a speech which reflects injuriously upon individuals: Rex v. Lord Abingdon, 1 Esp. 226; Rex v. Creevey, 1 M. and S. 278; except possibly where it is published bona fide for the information of his constituents. Davidson v. Duncan, 7 El. and Bl. 233. Upon the complete exemption of legislators from liability for what they may do while in the discharge of their duty, see Coffin v. Coffin, 4 Mass. 1; Jefferson's Manual, § 3; Cushing Legis, Assemb. § 602; Hosmer v. Loveland, 19 Barb. 111; State v. Burnham, 9 N. H. 34.

(25) [By the common law, peers of the realm of England: 6 Co. 49, a, 68, a; Hob. 61; Sty. Rep. 222; 2 Salk. 512; 2 H. Blac. 272; 3 East, 127; and peeresses, whether by birth or marriage: 6 Co. 52; Sty. Rep. 252; 1 Vent. 298; 2 Chan. Cas. 224; are constantly privileged from arrests in civil suits, on account of their dignity, and because they are supposed to have sufficient property, by which they may be compelled to appear; which privilege is extended by the act of union with Scotland: 5 Ann. c. 8, art. 22; and see Fort. 165; 2 Str. 990; to Scotch peers and peeresses; and by the act of union with Ireland, 39 and 40 Geo. III, c, 67, art. 4; see 7 Taunt. 679; 1 Moore, 410, S. C.; to Irish peers and peeresses. And they are not liable to be attached for the non-payment of money, pursuant to an order of nisi prius, which has been made a rule of court. Ld. Falkland's case, E. 36 Geo. III, K. B; 7 Durnf. and East, 171; and see id. 448. But this privilege will not exempt them from attachments for not obeying the process of the courts: 1 Wils. 332; Say. Rep. 50 S. C.; 1 Burr. 631; nor does it extend to peeresses by marriage, if they afterward intermarry with commoners. Co. Lit. 16; 2 Inst. 50; 4 Co. 118; Dyer, 79.

Where a capias issues against a peer, the court will set aside the proceedings for irregularity. 4 Taunt. 668. But it seems that the sheriff is not a trespasser for executing it. Doug. 671. However, all persons concerned in the arrest are liable to punishment by the respective houses of parliament. Fortescue, 165.]

Upon the subject of exemption of legislators from arrest, see Cushing, Leg. Assemb. part 3, chap. 2, where the constitutional and statutory provisions in America are referred to.

Members of the house of commons are privileged from arrest, not only during the actual sitting of parliament, but for a convenient time to enable them to come from and return to any part of the kingdom, before the first meeting and after the final dissolution of it. And this convenient time appears to be fixed at forty days. See Goudy v. Duncombe, 1 Exch. 430. As to the bankruptcy of a member of the house of commons, see the New Bankruptcy Act, 32 and 33 Vic. c. 71, § 120-124.

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 [*166] within two months, it shall be deemed an act of bankruptcy; and 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 cognizance 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. (c) 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. (a) 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 arrest is irregular ab initio, and that the party may be discharged upon motion. (e) (26) It is to be observed, that there is no precedent of any such writ of privilege, but only in civil suits; and that the statute of 1 Jac, I, c. 13, and that of King William (which remedy some inconveniences arising from privileges of parliament,) speak only of civil actions. And therefore the claim of privilege hath been usually guarded with an exception as to the case of indictable crimes; (f) or, as it has been frequently expressed, of treason, felony, and breach (or surety) of the peace. (g) Whereby it seems to have been understood that no privilege was allowable to the members, their families, or servants, in any crime whatsoever, for all crimes are treated by the law as being contra pacem domini regis. And instances have not been wanting wherein privileged persons have been convicted of misdemeanors, and committed, or prosecuted to outlawry, even in the middle of a session; (h) which proceeding has afterwards received the sanction and approbation of parliament. (i) *To which may be added, that a few years ago the case of writing and publishing seditious libels was resolved [*167] by both houses (k) not to be entitled to privilege; (27) and that the reasons upon which that case proceeded, (1) extended equally to every indictable offence. So that the chief, if not the only, privilege of parliament, in such cases, seems to be the right of receiving immediate information of the imprisonment or detention of any member, with the reason for which he is detained; a practice that is daily used upon the slightest military accusations, preparatory to a trial by a court martial; (m) and which is recognized by the several temporary statutes for suspending the habeas corpus act; (n) whereby it is provided, that no member of either house shall be detained till the matter of which he stands suspected be first communicated to the house of which he is a member, and the consent of the said house obtained for his commitment or detaining. But yet the usage has uniformly been, ever since the revolution, that the communication has been subsequent to the arrest.

These are the general heads of the laws and customs relating to parliament considered as one aggregate body. We will next proceed to

IV. The laws and customs relating to the house of lords in particular. These, if we exclude their judicial capacity, which will be more properly treated of in the third and fourth books of these Commentaries, will take up but little of our time. One very ancient privilege is that declared by the charter of the forest, (0) confirmed in parliament, 9 Hen. III, viz: that every lord spiritual or temporal sum

(e) Stra. 989. (ƒ) Com. Journ. 17 Aug. 1641. Edw. IV. in Scacch.-Lord Raym. 1461. Lord's Journ. 29 Nov. 1763.

(c) Dyer, 59. 4 Pryn. Brev. Parl. 757. (d) Latch. 48. Noy, 83. (g) 4 Inst. 25. Com. Journ. 20 May, 1675. (h) Mich. 16 (i) Com. Journ. 16 May, 1726. (*) Com. Journ. 24 Nov. (7) Lord's Protest. ibid. (m) Com. Journ. 20 April, 1762. (n) Particularly 17 Geo. 11, c. 6. (0) C. 11.

(26) The privilege in these cases is the privilege not of the house merely, but of the people, and to enable the member to discharge the trust confided to him by his constituents. Coffin v. Coffin, 4 Mass. 27. The court from which the process issues should therefore discharge him on motion, and any court or officer having authority to issue writs of habeas corpus might also inquire into the case, and release the party from the unlawful restraint. Cooley Const. Lim. 134; Cushing Legis. Assemb. § 346 to 397.

(27) [The contrary had been determined a short time before in the case of Mr. Wilkes by the unanimous judgment of Lord Camden and the court of common pleas. 2 Wils. 251.]

moned to parliament, and passing through the king's forests, may, both in going [*168] and returning, kill one or two of the king's deer without *warrant; in view of the forester if he be present, or on blowing a horn, if he be absent; that he may not seem to take the king's venison by stealth.

In the next place they have a right to be attended, and constantly are, by the judges of the courts of king's bench and common pleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made serjeants at law; as likewise by the king's learned counsel, being serjeants, and by the masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings. The secretaries of state, with the attorney and solicitor general, were also used to attend the house of peers, and have to this day (together with the judges, &c.) their regular writs of summons issued out at the beginning of every parliament, (p) ad tractandum et consilium impendendum, though not ad consentiendum; but, whenever of late years they have been members of the house of commons, (q) their attendance here hath fallen into disuse. (28)

Another privilege is, that every peer, by license obtained from the king, may make another lord of parliament his proxy, to vote for him in his absence. (r) A privilege which a member of the other house can by no means have, as he is himself but a proxy for a multitude of other people. (s) (29)

Each peer has also a right, by leave of the house, when a vote passes contrary to his sentiments, to enter his dissent on the journals of the house, with the reasons for such dissent; which is usually styled his protest.

All bills likewise, that may in their consequences any way affect the right of the peerage, are by the custom of parliament to have their first rise and beginning in the house of peers, and to suffer no changes or amendments in the house of commons.

*There is also one statute peculiarly relative to the house of lords; 6

[*169] Ann, c. 23, which regulates the election of the sixteen represenative peers of North Britain, in consequence of the twenty-second and twenty-third articles of the union : and for that purpose prescribes the oaths, &c, to be taken by the electors; directs the mode of balloting; prohibits the peers electing from being attended in an unusual manner; and expressly provides, that no other matter shall be treated of in that assembly, save only the election, on pain of incurring a præmunire.

V. The peculiar laws and customs of the house of commons relate principally to the raising of taxes, and the election of members to serve in parliament.

First, with regard to taxes; it is the ancient indisputable privilege and right of the house of commons, that all grants of subsidies or parliamentary aids do begin in their house, and are first bestowed by them; (t) although their grants

(p) Stat. 31 Hen. VIII, ch. 10. Smith's Commonw. b. 2, c. 2. Moor, 551. 4 Inst. 4. Hale. of Parl. 140. (9) See Com. Journ. 11 Apr. 1614; 8 Feb. 1620; 10 Feb. 1625; 4 Inst. 48. (r) Seld. Baronage, p. 1,c. 1. (8) 4 Inst. 12. (t) 4 Inst. 29.

(28) [On account of this attendance there are several resolutions before the restoration, declaring the attorney-general incapable of sitting among the commons. Sir Heneage Finch, member for the University of Oxford, afterwards Lord Nottingham and Chancellor, was the first attorney-general who enjoyed that privilege. Sim. 28.]

(29) [The proxies in the English house of lords are still entered in Latin ex licentia regis: this created a doubt in Nov. 1788, whether the proxies in that parliament were legal on account of the king's illness? 1 Ld. Mountm. 342. But this I conceive is now so much a mere form, that the license may be presumed. Proxies cannot be used in a committee. Ib. 106. (2 Ib. 191.)

The order that no lord should have more that two proxies was made 2 Car. I, because the Duke of Buckingham had no less than fourteen. 1 Rushw. 269.

A similar order was made in Ireland during Lord Stafford's lieutenancy to correct a like abuse.

If a peer, after appointing a proxy, appears personally in parliament, his proxy is revoked and annulled. 4 Inst. 13. By orders of the house, no proxy shall vote upon a question of guilty or not guilty; and a spiritual lord shall only be a proxy for a spiritual lord, and a temporal lord for a temporal. Two or more peers may be proxy to one absent peer; but Lork Coke is of opinion, 4 Inst. 12, that they cannot vote unless they all concur. 1 Woodd. 41.]