house (o) (16). It is also enacted by statute 7 Jac. I. c. 6, that no mem ber be permitted to enter into the House of Commons, till he hath taken the oath of allegiance before the lord steward or his deputy; and, by 30 Car. II. st. 2, and 1 Geo. I. c. 13, (17) that no member shall vote or sit in either house, till he hath in the presence of the house taken the oath of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation,15and invocation of saints, and the sacrifice of the mass. Aliens, unless naturalized, were likewise by the law of parliament incapable to serve therein (p): and now it is enacted, [163] by statute 12 and 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 these standing incapacities; but if any person is made a peer by 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 (9); and this by the law and custom of parliament (18). For, as every court of justice hath laws and customs for its direction, (0) Com. Journ. 16 Dec. 1690. (p) 1 Com. Journ. 16 Mar. 1623, 18 Feb. 1625. (16) According to ancient principles, minors, unless actually knighted, must have been disqualified; for, in general, no one was capa ble of performing the feudal services till he had attained the age of twenty-one. And one of the most important of these services was, attendance on the lord's court. But if the king had conferred the honour of knighthood upon a minor, then it was held that the imbeeility of minority ceased. See note to p. 68, 2d book. (17) The oath of abjuration was altered by 6 Geo. III. c. 53, upon the death of the pretender. (18) This sentence was not in the first editions, but was added, no doubt, by the learned Judge, with an allusion to the Middlesex elec tion. The circumstances of that case were briefly these: On the 19 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 3 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 with out opposition; and on the 17 Feb. 1769, it was resolved, that "John Wilkes, Esq. having beer 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 17 March, 1769, the house again declared the election void, and ordered a new writ. At the next election. Mr. Luttrel, who had vacat ed his seat by accepting the Chiltern Hundreds, offered himself as a candidate against Mr Wilkes. Mr. Wilkes had 1143 votes, and (15) See Hov. n. (15) at 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. Mr. Luttrel 296. Mr. Wilkes was again returned by the sheriff. On the 15 April 1769, the house resolved, that Mr. Luttrel ought to have been returned and ordered the return to be amended. On the 29 April, a petition was presented by certain freeholders of Middlesex, against the return of Mr. Luttrel; and on the 8 May, the house resolved that Mr. Luttrel was duly elected. On the 3 May, 1783, it was resolved, that the resolutions of the 17 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. The history of England furnishes many instances of important con. stitutional questions that have deeply agitat ed the minds of the people of this country, which can raise little or no doubt in the minds of those who view them at a distance unin fluenced 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 parliament, 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 sub versive 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 refe rence to the former, as if it had been repeated in it word for word. the end of the Vol. B. L. some the civil and canon, some the common law, others their own pecu liar 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 Ed ward Coke (r) observes, is "ab omnibus quærenda, a multis ignorata (19), a paucis cognita (s)." 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 (t), 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 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 inde- [164] finite. And therefore when in 31 Hen. VI. the House of Lords (r) Inst. 11. (To be sought by all, unknown by many, and known by few " (19) Lord Holt has observed, that "as to what my Lord Coke says, that the lex parlia menti 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. 11 State Trials, 317. 2 Hawkins, ch. 14. s. 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. Bou dell v. Colman, id. 163. 4 Taunt. 401. S. C. that the privileges of parliament, whether in punishing a person, not one of 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 pro cess. It is doubtless within the spirit of the cor stitution that parliament should have ample means within itself of enforcing its privileges; but that those privileges should be indefinite, presents an anomaly in our limited government, theoretically absurd, if not prac. tically dangerous, to true liberty. Ex post facto laws are the resource of despotism, anxous to clothe itself with the semblance of legislative justice; and the operation of these indefinite privileges must sometimes partake of the same character. For a man may be convicted by the house for the infraction of a (t) 4 Inst. 50. privilege, from which there was nothing to warn him, not even the declaration of its ex istence; and surely this is contrary both to the spirit and the practice of the constitution. The courts at 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. (21) This sentence seems to imply a dis cretionary power in the two houses of parlia ment, 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 enquire 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 the parlia ment is from the law, and as it is circunscrib ed by law, so it may be exceeded; and if they do exceed those legal bounds and authority. their acts are wrongful, and cannot be justined any more than the acts of private mon." 1 Salk. 505. 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 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 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 (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 the opening of every new parliament (24). So likewise are the other privileges, of persons, ex servants, lands, and goods: which are immunities as ancient as Ed[165] ward the Confessor; in whose laws (2) *we find this precept, "ad synodos venientibus, sive summoniti sint, sive per se quid agendum habuerint, sit summa pax :" and so too, in the old Gothic constitutions, tenditur 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 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 (z) Se'd Baronage, part. 1. c. 4. (z) Cap. 3. (22) In the observations above, upon the privileges cf 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 adaries which afford the greatest share of secity to the subject and constituent, who y be equally injured by their extension as (a) Steirnh. de jure Golk. 1. 3, c. 3. 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! (23) The privileges of domestics, lands, and goods, are taken away by 10 Geo. III. c. 50. (24) But this privileges does not extend to publication of the speech, 1 Sand. 133. The king v. Creery, 1 M. and S. 273 The king Lord Abingdon, 1 Esp. R. 226. for some indictable offence, without a breach of the privilege of parlia ment (25). But all other privileges which derogate from the common law in mat ters 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 eve 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 trader, having privilege of parliament, may be served with legal process for any just debt to [*166] the amount of 1001. and unless he makes 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 (26). The only way by which courts of justice could anciently take cogni (b) 2 Lev. 72. (25) 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 privieged from arrests in civil suits, on account of heir dignity, and because they are supposed o 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 & 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 nonpayment of money, pursuant to an order of nisi prius, which has been made a rule of court. 2. Falkland's case, E. 36 Geo. III. K. B. 7 Du.nf. & 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 Bur. 631.) nor does it extend to peeresses by marriage, if they afterwards 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 irregu larity. (4 Taunt. 668.) But it seems that the sheriff is not a trespasser for executing it. (Dongh 671.) However, all persons concerned in the arrest are liable to punishment by the respective houses of parliament. (For tescue, 165. ante.) By the law and custom of parliament, mem bers 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 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. (26) And see stat. 6 Geo. IV. :, 16, ss. 19 11. be zance 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 irregular ab initio, and that the party may discharged upon motion ( It is to be observed, that there is no prece dent of any such writ of privilege, but only in civil suits; and that the sta tute 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 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 parlia[*167] ment (i). *To which may be added, that a few years ago the case of writing and publishing seditious libels was resolved by both houses (k) not to be intitled to privilege (27); and that the reasons upon which that case proceeded (?), extended equally to every indictable offence (28). 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 accusa tions, 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 par liament 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 |