liament 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.23 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 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 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 (2) *we find this precept, "ad synodos [*165 venientibus sive summoniti sint, sive per se quid agendum habuerint, sit summa par; 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 Henry 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 (*) Cap. 3.

25

(") Steirnh. de jure Goth. 3, c. 3.

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?-CHRISTIAN.

24 The privileges of domestics, lands, and goods are taken away by 10 Geo. III. c. 50. -CHRISTIAN.

The senators and representatives "shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place." Const. U. S. art. 1, sect. 4.-SHARSWOOD.

But this privilege does not extend to publication of the speech. 1 Sand. 133. The king vs. Creery, 1 M. & S. 273. The king vs. Lord Abingdon, 1 Esp. R. 226.-CHITTY.

By the common law, peers of the realm of England (6 Co. 52, 9 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 ap pear; which privilege is extended by the act of union with Scotland (5 Anne, 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 & 40 Geo. III. c. 67, art 4. See 7 Taunt. 679. 1 Moore, 419, S. C.) to Irish peers and peeresses. And they are not liable to be attached for the non-payment

VOL. I.-9

129

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 Anne, 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 trader, having privilege of parliament, may be served *166] *with legal process for any just debt to the amount of 1007., and unless he make satisfaction 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. (d) 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 ir regular ab initio, and that the party may be discharged upon motion. (e) 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 privilege 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

(*) 2 Lev. 72.

Dyer, 59. 4 Pryn. Brev. Parl. 757.
Latch. 48. Noy. 83.

(*) Stra. 989.

(5) Com. Jour. 17 Aug. 1641.

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. & East, 171, and see id. 448.) But this privilege will not exempt them from attachments for not obeying the process of the courts, (1 Wills. 332. Say. Rep. 50, S. C. 1 Bur. 631,) nor does it extend to peeresses by marriage, if they afterwards intermarry with commoners. (Co. Litt. 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. (Dough. 671.) However, all persons concerned in the arrest are liable to punishment by the respective houses of parliament. (Fortescue, 165, ante.)

By the law and custom of parliament, members of the house of commons are privileged from arrest, not only during the actual sitting of parliament, but for a convenient time, sufficient 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. (Stat. 10 Geo. III. c. 50. 2 Str. 985. Fort. 159. Com. Rep. 444, S. C. 1 Kenyon, 125.) And also for forty days (2 Lev. 72. 1 Chan. Cases, 221, S. C. But see 1 Sid. 29) after every prorogation, and before the next appointed meeting; which is now in effect as long as the parliament exists, it being seldom prorogued for more than fourscore days at a time. (1 Blac. Com. 165.) And the courts will not grant an attachment against a member of the house of commons for non-payment of money pursuant to an award. (6 Durnf. & East, 448.)

Mr. Christian has observed, that 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 members 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.)—CHITTY.

28

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 misdemesnors, 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.()*To which may be [*167 added, that a few years ago the case of writing and publishing seditious libels was resolved by both houses(k) not to be entitled to privilege; and that the reasons upon which that case proceeded() 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 accusation, preparatory to a trial by a court martial;(m) and which is recognised 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.

[*168

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 summoned to parliament, and passing through the king's forests, may, both in going and returning, kill one or two of the king's deer without *warrant; in view of the forester if he be present, or in 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 court 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."

(#) 4 Inst. 25. Com. Jour. 20 May, 1675.

(^) Mich. 16 Edw. IV. in Scacch.-Lord Raym. 1461. (Com. Jour. 16 May, 1726.

(*) Com. Jour. 24 Nov. Lords' Jour. 29 Nov. 1763. () Lords' Protest, ibid.

Com. Jour. 20 Apr. 1762.

() Particularly 17 Geo. II. c. 6.
(c) C. 11.

(P) Stat. 31 Hen. VIII. c. 10. Smith's Commonw. b. 2, c.

3. Moor, 551. 4 Inst. 4. Hale of Parl. 140.

(9) See Com. Jour. 11 Apr. 1614. 8 Feb. 1620. 10 Feb. 1625. 4 Inst. 48.

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. -CHRISTIAN.

28 The language of the protest upon this occasion is remarkably nervous; and the arguments in favour of privilege, even in the case of libel, are highly applicable to cases of libel generally. See the extracts from the protest, p. 19, Howel's St. Tr. 994.CHITTY.

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 chan cellor, was the first attorney-general who enjoyed that privilege. Sim. 28.-CHRISTIAN.

30

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)

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.

*169] *There is also one statute peculiarly relative to the house of lords; 6 Anne, c. 23, which regulates the election of the sixteen representative 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.

32

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 are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature. The general reason, given for this exclusive privilege of the house of commons, is, that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. This reason would be unanswerable, if the commons taxed none but themselves: but it is notorious that a very large

30 And which the king has sometimes refused. 6, 27, 39, E. III.—CHITTY.

This license has long ceased in Ireland; but the proxies in the English house of lords are still entered in Latin ex licentia regis. This created a doubt in November, 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.) A proxy cannot sign a protest in England, but he could in Ireland. (2 Ib. 191.)

The order that no lord should have more than 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.

There is an instance in Wight, 50, where a proxy is called litera attornatus ad parliamentum, which it is in effect. The peer who has the proxy is always called in Latin procurator. If a peer, after appointing a proxy, appears personally in parliament, his proxy is revoked and annulled. 4 Inst. 13. By the 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 Lord Coke is of opinion (4 Inst. 12) that they cannot vote unless they all concur. 1 Woodd. 41. In ancient times a commoner might have acted as the proxy of a peer in the house of lords. See the memorable case of Sir Thomas Naxey, clerk.-CHRISTIAN.

31 Lord Clarendon relates, that the first instances of protests with reasons in England were in 1641, before which time they usually only set down their names as dissentient to a vote: the first regular protest in Ireland was in 1662. 1 Ld. Mountm. 402.CHRISTIAN.

32" All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills." Const. U. S., art. 1, sect. 7.-SHARSWOOD.

share of property is in the possession of the house of lords; that this property is equally taxable, and taxed, as the property of the commons; and therefore the commons not being the sole persons taxed, this cannot be the reason of their having the sole right of raising and modelling the supply. The true reason, arising from the spirit of our constitution, seems to be this. The lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced to continue so, than the commons, who are a temporary, elective body, freely *nominated by the people. It would therefore be extremely dangerous [*170 to give the lords any power of framing new taxes for the subject; it is sufficient that they have a power of rejecting, if they think the commons too lavish or improvident in their grants. But so reasonably jealous are the commons of this valuable privilege that herein they will not suffer the other house to exert any power but that of rejecting; they will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; under which appellation are included all bills, by which money is directed to be raised upon the subject, for any purpose or in any shape whatsoever; either for the exigencies of government, and collected from the kingdom in general, as the land-tax; or for private benefit, and collected in any particular district, as by turnpikes, parish rates, and the like. Yet Sir Matthew Hale(u) mentions one case, founded on the practice of parliament in the reign of Henry VI.,(w) wherein he thinks the lords may alter a money bill: and that is, if the commons grant a tax, as that of tonnage and poundage, for four years; and the lords alter it to a less time, as for two years; here, he says, the bill need not be sent back to the commons for their concurrence, but may receive the royal assent without further ceremony; for the alteration of the lords is consistent with the grant of the commons. But such an experiment will hardly be repeated by the lords, under the present improved idea of the privilege of the house of commons, and, in any case where a money bill is remanded to the commons, all amendments in the mode of taxation are sure to be rejected.

33

Next, with regard to the election of knights, citizens, and burgesses; we may observe that herein consists the exercise of the democratical part of our constitution: for in a democracy there can be no exercise of sovereignty but by suffrage, which is the declaration of the people's will. In all democracies therefore it is of the utmost importance to regulate by whom, and in what manner, the suffrages are to be given. And the Athenians were so justly jealous of this prerogative, that a stranger, who interfered in the [*171 assemblies of the people, was punished by their laws with death: because such a man was esteemed guilty of high treason, by usurping those rights of sovereignty, to which he had no title. In England, where the people do not debate in a collective body, but by representation, the exercise of his sovereignty consists in the choice of representatives. The laws have therefore very strictly guarded against usurpation or abuse of this power, by many salutary provisions; which may be reduced to these three points, 1. The qualifications of the electors. 2. The qualifications of the elected. 3. The proceedings at

elections.

(*) On Parliaments, 65, 66.

(w) Year Book. 33 Hen. VI. 17. But see the answer to this case by Sir Heneage Finch, Com. Jour. 22 Apr. 1671.

33 This rule is now extended to all bills for canals, paving, provisions for the poor, and to every bill in which tolls, rates, or duties are ordered to be collected; and also to all bills in which pecuniary penalties and fines are imposed for offences. (3 Hats. 110.) But it should seem it is carried beyond its original spirit and intent, when the money raised is not granted to the crown.

Upon the application of this rule there have been many warm contests between the lords and commons, in which the latter seem always to have prevailed. See many conferences collected by Mr. Hatsel, in his Appendix to the 3d vol.

In Appendix D., the conference of 20 and 22 April, 1671, the general question is debated with infinite ability on both sides, but particularly on the part of the commons in an argument drawn up by Sir Heneage Finch, then attorney-general.-CHRISTIAN.