"speech, and debates or 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 sovereign by the speaker of the house of commons at the opening of every new parliament (s).

Secondly, privilege of person: a peer being (by virtue of his dignity) exempt from arrest (t) in civil cases at all times; and a member of the house of commons (by the privilege of parliament), not only while the house is sitting, but for such a period before the first meeting, and after the dissolution of a parliament, as may enable him conveniently to come from and return to any part of the kingdom (u). This immunity continues also [for forty days after every prorogation, and forty days before the next appointed meeting (v); which is now in effect so long as the parliament subsists, it seldom being prorogued for more than fourscore days at a time (w).] The only way, indeed, by which courts of justice could antiently take cognizance of this exemption [was by writ of privilege in the nature of a supersedeas, to deliver the party out of custody when arrested in a civil suit (x). 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 (y). But since the statute 11 & 12 Will. III. c. 3, which enacts, that

(s) See May's Parliamentary Practice, p. 56 (3rd edit.)

(t) See 6 Rep. 52; 9 Rep. 49 a, 68 a; 2 Hen. Bla. 272; Couche v. Lord Arundel, 3 East, 127; 1 Vent. 298; Davis v. Lord Rendlesham, 7 Taunt. 679; R. v. Bishop of St. Asaph, 1 Wils. 332.

(u) See Cassidy v. Steuart, 2 Man. & Gr. 169.

(v) 2 Lev. 72; Goudy v. Duncombe, 1 Exch. 430.

(w) This immunity from arrest is

as antient as Edward the Confessor, in whose laws (c. 3) 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, Stiern. de Jure Goth. 1. 3, c. 3-" Extenditur hæc pax et securitas ad quatuordecim dies, convocato regni senatu."

(x) Dy. 59; 4 Pryn. Brev. Parl.

757.

(y) Latch, 48; Noy, 83.

[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 (z). 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 indictable crimes (a), or, as it has been frequently expressed, of treason, felony, and breach (or surety) of the peace (b).] And so fully is this exception established, that [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 (c); which proceeding has afterwards received the sanction and approbation of parliament (d). To which may be added, that the case of writing and publishing seditious libels, has been resolved by both houses (e) not to be entitled to privilege (f); and that the reasons upon which that case proceeded extended equally to every indictable offence.] Even in indictable cases, however, there belongs to the houses of parliament [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 used upon the slightest military accusations, preparatory to a trial by a court-martial (g); and which is

(z) Str. 989; see Cassidy v. Steuart, 2 Scott, N. R. 432; et vide 10 Geo. 3, c. 50, cited post, p. 350. (a) Com. Journ. 17th Aug. 1641. (b) 4 Inst. 25; Com. Journ. 20th May, 1675.

(c) Mich. 16th Edw. 4, in Scacc. Ld. Raym. 1461.

(d) Com. Journ. 16th May, 1726. (e) Com. Journ. 24th Nov.; Lords'

Journ. 29th Nov. 1763.

(ƒ) 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. 151; Christian's Blackstone, vol. i. p. 167.

(g) Com. Journ. 20th Apr. 1762.

[recognized by the several temporary statutes for suspending the habeas corpus act (h), 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 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.]

There were formerly other privileges of parliament, protecting not only from illegal violence, but also from seizure, under the civil process of the courts of law, the lands and goods of the members, and even their menial servants. And even yet [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, and 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.] But all parliamentary exemptions from liability to civil process, save only as to the freedom of the person of the member himself, are now at an end, having been first restrained, and at length totally abolished, by the legislature. For by 10 Geo. III. c. 50 (i), it is enacted, that any action or suit may at any time be brought against any member of either house, or against their servants, or any other person entitled to privilege of parliament; and that none such, nor any process or proceeding thereupon, shall at any time be impeached, stayed 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 or imprisonment. Likewise for the benefit of commerce, it is provided by the Bankrupt Consolidation Act, 1849 (j), that if a trader, being a member of parliament, and personally served with a summons in an

(h) Particularly 17 Geo. 2, c. 6. (i) Et vide the previous statutes, 11 & 12 Will. 3, c. 3; 2 & 3 Anne,

c. 18; 11 Geo. 2, c. 24.

(j) 12 & 13 Vict. c. 106 (ss. 66, 77).

action for recovery of a debt of such amount as shall be sufficient to support a petition in bankruptcy, shall not, within one calendar month, pay, secure, or compound for such debt, or give security for payment of the debt and costs to be recovered in such action, and also cause an appearance to be entered to the action, he shall be deemed to have committed an act of bankruptcy, and may be dealt with as a bankrupt, though not to the extent of making him liable to arrest, except in the case of felony or misdemeanor (k).

In addition to these privileges of speech and of person belonging to the two houses of parliament, we may remark, that by a late statute their right of free publication of their own reports, papers, votes and other proceedings, is specially protected; it being provided by 3 & 4 Vict. c. 9, that any person made defendant in any civil or criminal proceeding, on account of the publication of such matters by authority of either house, shall be entitled to have the proceeding against him stayed, and all process therein superseded, by the court, on production of a proper certificate to that effect; and that the like remedy shall be afforded to a party who has published copies of them; and that no person shall be liable to any civil or criminal proceeding for having printed an extract from, or abstract of, such parliamentary documents, provided he do so bonâ fide and without malice (1).

It is moreover clearly settled, that in any case in which the privileges of either house of parliament have been violated, it has power to commit to prison the person guilty of such contempt (m); and also by its order, to set at liberty any party who, in breach of its privileges, may have been

(k) A member of the house of commons becoming bankrupt and remaining such for a twelvemonth, loses his seat; vide 52 Geo. 3, c. 144; post, p. 372.

(1) Vide Stockdale v. Hansard, 11

Ad. & El. 297, as to the practice on application to the court under this

statute.

(m) See Burdett v. Abbott, 14 East, 158; Stockdale v. Hansard, 9 Ad. & El. 1; 11 Ad. & El. 253.

arrested in respect of any act by him done in his capacity of member of parliament (m).

[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 a subsequent part of these Commentaries (n), will take up but little of our time.

One very antient privilege,] only worth mentioning as illustrative of a former era, [is that declared by the Charter of the Forest (o), confirmed in parliament in the ninth year of Henry the third; 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 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 Court of Queen'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 Queen's learned counsel, being serjeants; 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

(m) Burdett v. Abbott, 14 East, 143; 1 Jac. 1, c. 13. See the cases of breach of privilege enumerated, Stockdale v. Hansard, 9 Ad. & El. 12, note (b).

(n) Vide post, bk. v. c. IV.
(0) C. 11.

(p) Stat. 31 Hen. 8, c. 10; Smith's Commonw. b. 2, c. 3; Moor, 551;

4 Inst. 4; Hale of Parl. 140.