CHAP. I I. Of the Privilege of Parliament. Privilege. Privilege is some special freedom or benefit granted to Definition of certain persons, contrary to the common course of law. 66 Judges should take cognizance of Privilege. The privileges of Parliament are very large and indefinite; and therefore, when, in 31 Henry VI. the House of Lords propounded a question to the Judges concerning them, the Chief Justice, Sir John Fortescue, in the name How far the of his brethren, declared "that they ought not to make answer to that question, for it hath not been used aforetime "that the Judges should in any way determine the privilege "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 Parlia"ment, and not to the Justices (a)." This dictum of Fortescue's evidently refers only to those cases in which the privilege of Parliament comes in debate in the House of Lords, where the judges have no deliberative voice. It admits no doubt, the unquestioned right, in either House of Parliament, of exclusively determining upon any violation of their acknowledged privileges. In this sense, the two Houses, respectively, are properly said to be the Judges of their own privileges; that is, whether they are infringed in the particular instance-as they are also the persons to judge of their own peculiar forms and manner of proceeding-suis propriis legibus et consuetudinibus subsistit. The judges will only take cognizance of the privileges of Parliament, when questions concerning those privileges are brought incidentally or collaterally before them, for judgment in the way of action, when the court (a) C. Justice Fortescue in Thorpe's case, 31 Henry VI. Privileges of the Counsellors of the Crown. The Upper House of Parliament. Of Proxies. is obliged to determine the question to prevent a failure of justice. They will not decide the point when it comes before them directly, because cognizance of such matters belongs ad aliud examen; but only when, as Sir Thomas Jones said, in Lord Shaftesbury's case, it is an incident in the cause before them. * This subject will be resumed when treating of the privileges of the House of Commons, those of the Lords first claiming attention. PRIVILEGES PECULIAR TO THE LORDS, (PERSONAL AND PARLIAMENTARY.)† I. Peers of the Realm are the hereditary Counsellors of the Crown, and may, whenever they consider it necessary, demand admittance to the King's presence, to advise with him on affairs of moment (a). II. They form the Upper House of the Imperial Par-. liament, and their honours and immunities, are hereditary and unalienable (b). III. A Peer may vote by Proxy on any question before the House of Lords, though he should happen to be residing in a foreign country (c). A proxy vote, however, cannot be given in any of the following cases- when the House is sitting in judgment (d)-nor in Committees (e)nor in signing Protests (f)-nor on questions relating to matters of Petitions touching the return of the sixteen representative Peers for Scotland (g)-nor on a motion. to adjourn a debate (7)-nor in any judicial cause, though the proceedings be by way of bill (¿). * 2 St. Trials, 66, 209. † In the following Digest of the Privileges of the Lords, I have included, not only those which belong to them as Members of the Upper House of Parliament, but also those peculiar rights and exemptious of the Peerage, which are still in their possession, whether remaining to them as a remnant of the feudal powers of their ancestors, or secured to them by statutable enactments. The proxy of a Lord cannot be entered on the same day on which he has been personally present in the house; neither can any that have been entered after three o'clock be made use of, that day, in any question. (j) The proxies are entered in Latin, ex licentia Regis; and such license being requisite, a doubt was started in 1788, at the time of the King's illness, whether the proxies were valid. The Peer holding the proxy is called a procurator; and anciently they could be given to Commoners to act for a Peer; but now, (k), al! proxies from a Spiritual Lord must be made to a Spiritual Lord, and from a Temporal Lord to a Temporal Lord; and by Order of the House (7), no Lord shall be capable of receiving more than two proxies, nor shall more be numbered in any cause voted. It is said (m), that a proxy cannot be made to a Lord that is absent himself. A Peer by his coming and sitting in the House himself, revokes proxy, and cannot make a new one without fresh leave, (n). Two or more Peers may be proxies for one absent Peer, but Coke is of opinion that they cannot vote unless they all concur (o). And in case anno 1 Eliz. where three proxies having been appointed, two of them differed from the other, it was held in Parliament to be no vote: but Lord Manchester, president of the Council, is said to have decided, in a case where the proxies differed (in 1626), in favour of him who was first named in the delegation (p). his originate in the IV. All bills in any way affecting the rights of the Bills that must peerage (q) must originate in the House of Lords, and can Lords. undergo no alteration or amendment by the Commons; (j) S. O. H. of L. 16 Jan. 1702; 19 May, 1813. (k) 25 Feb. 1625. (1) 25 Feb. 1625.-Rushw. 273. (n) S. O. H. of L. 25 April. 1626. (p) Elsy. 132. (m) Elsy. cites anno 33 & 34 Henry VIII. Protests. Sign papers and also all Bills relative to Restitution in Blood, &c. (r) See farther Chap. VII. on Public Bills—" What Bills must originate in the Lords." V. Each Peer has a right, when a vote passes the House, contrary to his sentiments, to enter his dissent or protest on the Journals of the House, with his reasons at length for dissenting. The protest must be entered in the Clerk's book at the next sitting day of the House, before three o'clock, otherwise it cannot be made; and it must be signed before the rising of the House on that day (s). But, however, many instances are recorded in the Journals of further time being allowed, under peculiar circum stances. Lord Clarendon says (t), the first instance of protests with reasons was in 1641, before which time, names only were set down as dissentient to a vote. VI. Peers may make their signature to all letters or with their title deeds by the name of their title; their family and Christian names being absorbed in the higher one of their nobility. only. Declaring upon his honour instead of oath. Trial by his Peers. VII. A Peer sitting in judgment gives not his verdict upon Oath, but upon his honour (v); the law supposing him of such integrity, that he will, for justice, do that which others are compelled to do upon their oaths. He also answers all Bills in Chancery upon his honour;-and if he is plaintiff in an action of debt upon accompt, it is sufficient to examine his attorney upon oath (w). But if summoned as a witness, in criminal cases (a), or in making an affidavit (y), he must be sworn. VIII. When arraigned for any capital offence, except in the case of murder or felony (z), it must be before his Peers (a), in full Parliament (b); who deliver their opinions upon his guilt or innocence upon their honour (c). This privilege cannot be waved (d). It does not extend to Bishops, "as they are not ennobled in blood" (e). Although by 20 Henry VI. ch. 9, it is declared to extend to all peeresses, either in their own right, or by marriage. But in case of misdemeanor, as riot, libel, conspiracy and perjury, a Peer is tried like a commoner by a jury. No Peer sitting in judgment on another, can be challenged, the law presuming that they, being all Peers of the realm, and judging upon their honour, cannot be guilty of falsehood, favour, or malice (ƒ). But, however, previous to the commencement of the trial, the Lord High Steward, in a short exhortation, requests those who bear the prisoner any ill-will to withdraw. Peers are tried in Courts erected specifically for the purpose, in the centre of Westminster Hall, at the expense of the Crown, which Courts. are pulled down as soon as the investigation terminates. As to the form and manner of the trial, see Lord Somer's Tracts, v. 13, p. 385, 6. The cases in which a Peer of Scotland is to be tried by his Peers, are determined by 6 Geo. IV. ch. 66. Except. IX. By the law of Scandalum Magnatum (g), any Scandalum person convicted of spreading scandalous reports respect- Magnatum. (a) Magna Charta. ch. 29.-L. J. 14 Jan. 1689. (b) S. O. H. of L. lii. But it would seem, from an examination of the authorities, that this privilege of being tried in full Parliament, extends only to trials. for treason, as there are many instances, subsequent to these Orders,, of a limited number of Peers, only, being summoned in trials for felony, &c. but the 7 Will. III. ch. 3, sec. 11. effectually secures to the Lords the privilege of a full summons in cases of treason. See Amos' Disquisition on the Court of the Lord High Steward, appended to 2d voi. of Phillips' State Trials, p. 359.. (c) S. O. H. of L. 14 Jan. 1689. (d) Cases of Ld. Berkeley, 4 Edw. III. and of the D. of Suffolk, 28 Henry VI. Keunedy on Juries, p. 50. (e) 2 Hawk. P. C. ch. 44. sec. 12-and see the cases of Archbishop Cranmer and Bishop Fisher. (f) Moor, fol. 622. (g) 1 Westm. ch. 33.-2 Rich. II. ch. 5.-12 Rich. II. ch. 11. D |