only these standing incapacities; but if any perfon 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 difabled and incapable to fit as a member : and this by the law and cuftom of parliament.

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FOR, as every court of justice hath laws and customs for it's direction, 'fome the civil and canon, fome the common law, others their own peculiar laws and cuftoms, fo the high court of parliament hath also it's own peculiar law, called the lex et confuetudo parliamenti; a law which fir Edward Coke obferves is "ab omnibus quaerenda, a multis ignorata

a paucis cognita." It will not therefore be expected that we fhould enter into the examination of this law, with any degree of minutenefs: fince, as the fame learned author affures us, it is much better to be learned out of the rolls of parlia ment, and other records, and by precedents, and continual experience, than can be expreffed by any one man. It will be fufficient to observe, that the whole of the law and custom of parliament has it's original from this one maxim, "that "whatever matter arifes concerning either houfe of parlia

ment, ought to be examined, difcuffed, and adjudged in "that house to which it relates, and not elsewhere P." Hence, for instance, the lords will not fuffer the commons. to interfere in fettling 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 cafe. But the maxims upon which they proceed, together with the method of proceeding, reft entirely in the breaft of the parliament itself; and are not defined and ascertained by any particular stated laws.

THE privileges of parliament are likewife 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, fir John Fortefcue, in the name of his m Whitelocke of parl. c. 102. See 21 Jan. 1640. 6 Mar. 1676. 6 Mar. Lord's Journ. 3 May 1620. 13 May 1711. 17 Feb. 1769. 1624. 26 May 1725. Com. Journ. 14 Feb. 1580. 21 Jun. 1628. 9 Nov.

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4 Inft. 50,

P 4 Inft. 15. brethren,

Book I. brethren, declared, "that they ought not to make answer "to that queftion: for it hath not been used aforetime that "the juftices fhould in any wife determine the privileges of "the high court of parliament. For it is fo high and mighty "in it's 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 juftices 9." Privilege of parliament was principally cftablished, in order to protect it's members not only from being molested by their fellow-fubjects, but alfo more especially from being oppreffed by the power of the crown. If therefore all the privileges of parliament were once to be fet down and afcertained, and no privilege to be allowed but what was fo defined and determined, it were eafy for the executive power to devife fome new cafe, not within the line of privilege, and under pretence thereof to harafs any refractory member and violate the freedom of parliament. The dignity and independence of the two houses are therefore in great measure preferved by keeping their privileges indefinite. Some however of the more notorious privileges of the members of either house are, privilege of Ipeech, of perfon, of their domeftics, and of their lands and goods. As to the firft, privilege of speech, it is declared by the ftatute 1 W. & M. ft. 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 "queftioned in any court or place out of parliament." And this freedom of fpeech is particularly demanded of the king in perfon, by the fpeaker of the house of commons, at the opening of every new parliament. So likewife are the other privileges, of perfons, fervants, lands and goods: which are immunities as antient as Edward the confeffor; in whofe laws we find this precept, "ad fynodus venientibus, five fummoniti "fint, five per fe quid agendum habuerint, fit fumma pax :" and fo too, in the old Gothic conftitutions, "extenditur haec pax "et fecuritas ad quatuordecim dies, convocato regni fenatu." This included formerly not only privilege from illegal violence, but alfo from legal arrefts, and feifures by process

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from the courts of law. And ftill, to affault by violence à member of either houfe, or his menial fervants, is a high contempt of parliament, and there punifhed with the utmost severity. It has likewife peculiar penalties annexed to it in the courts of law, by the ftatutes 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 fome 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, fave only as to the freedom of the member's perfon: which in a peer (by the privilege of peerage) is for ever facred 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: which is now in effect as long as the parliament subsists, it seldom being prorogued for more than fourfcore days at a time. As to all other privileges, which obftruct the ordinary courfe of justice, they were reftrained by the ftatutes 12 W. III. c. 3. 2 & 3 Ann. c. 18. and 11 Geo. II. c. 24. and are now totally abolished by ftatute 10 Geo. III. c. 50. which enacts, that any fuit may at any time be brought against any peer or member of parliament, their fervants, or any other perfon entitled to privilege of parliament; which fhall not be impeached or delayed by pretence of any fuch privilege; except that the perfon of a member of the houfe of commons fhall not thereby be subjected to any arrest or imprisonment. Likewife, for the benefit of commerce, it is provided by ftatute 4 Geo. III. c. 33. that any trader, having privilege of parliament, may be served with legal process for any juft debt to the amount of 100%. and unless he makes fatisfaction within two months, it fhall be deemed an act of bankruptcy; and that commiflions of bankrupt may be iffued against such privileged traders, in like manner as against any other.

THE only way by which courts of justice could antiently take cognizance of privilege of parliament was by writ of privilege, in the nature of a fuperfedeas, to deliver the party

out of cuftody when arrested in a civil fuit". 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 v. But fince the statute 12 W. III. c. 3. which enacts that no privileged perfon shall be fubject to arrest or imprisonment, it hath been held that fuch arreft is irregular ab initio, and that the party may be discharged upon motion ". It is to be observed, that there is no precedent of any such writ of privilege, but only in civil fuits; and that the ftatute of 1 Jac. I. c. 13. and that of king William (which remedy fome inconveniences arifing from privilege of parliament) fpeak only of civil actions. And therefore the claim of privilege hath been usually guarded with an exception as to the cafe of indictable crimes; or as it hath been frequently expreffed, of treafon, felony, and breach (or furety) of the peace. Whereby it seems to have been understood that no privilege was allowable to the members, their families, or fervants, in any crime whatfoever; for all crimes are treated by the law as being contra pacem domini regis. And inftances have not been. wanting, wherein privileged perfons have been convicted of misdemefnors, and committed, or prosecuted to outlawry, even in the middle of a session 2; which proceeding has afterwards received the fanction and approbation of parliament. To which may be added, that, a few years ago, the cafe of writing and publifhing feditious libels was refolved by both houses not to be intitled to privilege; and that the reasons, upon which that cafe proceeded, extended equally to every indictable offence. So that the chief, if not the only, privilege of parliament, in fuch cafes, feems 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 ufed upon the slightest

military accufations, preparatory to a trial by a court martial; and which is recognized by the feveral temporary statutes for fufpending the habeas corpus act : whereby it is provided, that no member of either house shall be detained, till the matter of which he ftands fufpected, be first communicated to the houfe of which he is a member, and the confent of the faid houfe obtained for his commitment or detaining. But yet the ufage has uniformly been, ever fince the revolution, that the communication has been fubfequent to the arreft.

THESE are the general heads of the laws and customs relating to parliament, confidered 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 thefe commentaries, will take up but little of our time.

ONE very antient privilege is that declared by the charter of the foreft, confirmed in parliament 9 Hen. III; viz. that every lord spiritual or temporal fummoned to parliament, and palling through the king's forefts, may, both in going and returning, kill one or two of the king's deer without warrant ; in view of the forefter if he be prefent, or on blowing a horn if he be abfent: that he may not feem to take the king's venifon by stealth.

In the next place they have a right to be attended, and conftantly are, by the judges of the court of king's bench and common pleas, and fuch of the barons of the exchequer as are of the degree of the coif, or have been made ferjeants at law; as likewise by the king's learned counfel, being ferjeants, and by the mafters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings. The fecretaries of state, with the attorney and folicitor general, were also used to attend the house of peers, and have to this day (together with the judges, &c.) their regular writs of fummons iffued out at the beginning of every d Com. Journ. 20 Apr. 1762. с * particularly 17 Geo. II. c. 6.

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