to attend House XXXI. No Peer of the realm can be compelled to Not compelled attend the House of Commons, to give evidence, &c. of Commons. without his personal consent-whether he be a Lord of Parliament or not (t). Except he has waved his privilege of Peerage by becoming a member of the House of Commons. XXXII. There was another very important privilege of benefit of formerly possessed by the Peerage, but recently abolished Clergy. by act of Parliament. It was equivalent to the benefit of Clergy, formerly possessed by the ecclesiastical body in England, and was granted by 1 Edw. VI. ch. 12. By this act, Peers, even although they were not able to read (v), were allowed privilege for all offences clergyable at that period, also for the crimes of housebreaking, highway robbery, &c., and as no subsequent law had, till very lately, repealed this clause in the statute of Edward, a Peer might commit those crimes, capital in a commoner, with impunity, for by pleading it to be his first offence, in these several felonies, he was liable to no personal punishment whatever (w). This extraordinary enactment was, Now repealed. however, repealed by the 7 and 8 G. IV. ch. 27. Exempt from XXXIII. Peers of the realm are also exempt from attendance on Juries (x) and are not capable of being Juries, &c. approvers, or, as it is commonly called "King's evidence" (y). Neither can they be admitted as bail, from the difficulty of proceeding against them (z). the Judges, &c. XXXIV. And lastly. They have a right to be atten- To be attended dended, and constantly are, by the Judges of the Courts of King's Bench and Common Pleas, and such of the Barons of the Exchequer as are of the degree of the Coif. (20) See the case of the Duch. of Kingston, who, being condemned for bigamy, on pleading her privileges, was released.-11 How. St. Trials, 264.—15 April, 1776. (x) 6 Geo. IV. ch. 50, s. 2. (y) 3 Inst. 129. (z) 2 Marshall's Rep. 232. 4 Taunton's Rep. 249. or have been made Serjeants-at-law (a); as likewise by the King's learned Counsel, being Serjeants, and by the Masters-in-Chancery-for their advice in points 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 (c), ad tractandum et consilium impendendum, though not ad consentiendum; but whenever of General sitting late years they have been Members of the House of Commons (d), their attendance here hath fallen into disuse. On account of this attendance, there are several Resolutions before the Restoration, declaring the Attorney-General incapable of sitting in the House of Commons. Sir Heneage Finch, Member for the University of Oxford, (afterwards Lord Nottingham and chancellor) was the first Attorney-General who enjoyed that privilege (e). As to Attorney in House of Commons. Freedom of Their lives, works, &c. not Peers have likewise the same privilege as the Commons of freedom of speech in their own House, but the publication of a speech containing a libel on an individual is not protected; as, in 1794, Lord Abingdon was convicted and punished by fine and imprisonment for a libel upon an individual contained in his speech in the House of Lords, and published by him in the newspapers (f). It is also a breach of privilege for any one to publish to be published, the lives, works, or wills of Peers, after their death, with out the consent of their heirs or executors (g). Except. Where they have no priviJege. But Peers have no privilege of Parliament as Trustees (h), or against the proving of wills (i), or to prevent a (a) S. O. H. of L. iv. (b) Ibid. v. ((c) See 31 Henry VIII. ch. 10. Moor. 551. 4 Inst. 4. Hale Parlts. 140. (d) See C. J. 11 April, 1614; 8 Feb. 1620: 10 Feb. 1625. 4 Inst. 48. Bill filed against them in cases where witnesses are to be examined (k), or the filing a bill in equity without process (7), nor against writs of habeas corpus (m), nor against prosecutions or proceedings for keeping gaming houses (n), nor against trials by courts martial, if holding a commission (0), nor in any suit for tythes (p), nor against information for striking in the king's palace or presence, whereby blood is drawn (q),—neither is privilege of Parliament to be allowed to Minors, Noblewomen, or Widows · of Peers (r). * Expelling the lege. The Lords may expel any of their Members for crimes, on proof thereof being given (s). The complaint of a Members. breach of privilege, in the Lords, must be upon oath, and if it be not allowed, the Lords are to pay the expenses (t). Privilege of Parliament cannot be waved (v), but a Waving priviLord may wave his personal privileges by declaring openly in the House that he does so, or signing a waiver with his own hand (w); having done which, with reference to any particular subject, he cannot resume them (x). A Member of the House of Commons is not allowed to do this, as they are not his, but are held by him for his representatives. *This offence was punishable by perpetual imprisonment, and fine and ransom at the King's pleasure; and by the offender losing his right hand, in the manner prescribed by the Stat. 33 Henry VIII. ch. 12-but the statute 9 Geo. IV. ch. 31. repeals so much of this act "as relates to the punishment of manslaughter, "and of malicious striking, by reason whereof blood shall be shed," and does not distinguish it from a common assault. By the common law, however, the offence of striking in the royal presence still subjects the offender to the loss of hand. (1 Hawk. P. C. ch. 21, s. 3; 2 Inst. 549.) E Judicature of the privileges of the Lords. The House of Lords is a distinct Court from the Commons for several purposes; they try criminal causes on Impeachments by the Commons; and have an original jurisdiction for the trial of Peers, upon Indictments found by a Grand Jury: they also try causes upon Appeals from the Courts of Chancery, or upon Writs of Error to reverse Judgments in B. R. &c. And all their decrees are as judgments, and judgments given in Parliament may be executed by the Lord Chancellor (y), or, in Scotland, by the Court of Session (z). But in order to prevent Writs of Error being brought up without just cause, and merely for delay of judgment, the Lords ordered (anno June 1641,) that persons so doing should pay such costs as the House should think fit to impose. For the manner of bringing in, and proceeding on a Writ of Error in the House of Lords, see Nalson's Collections, vol. 1-and Dow's, Clark and Finnely's, &c. Reports. But no Appeal to the Lords from the Colonies is sustainable; such an Appeal must be made to the King in Council (a); and be determined by the Judicial Committee of the Privy Council. The claims of the Lords, at different periods of their Summary of the history, have extended to an original and appellate jurisdiction generally, in civil and criminal matters, and to an unlimited power of punishment in all cases of contempt and breach of privilege, including under these widereaching terms, all personal injuries and insults, libels and obstructions, whether inflicted on the House collectively, or on a Peer in his individual capacity. We find, however, that these claims have been to a great extent reduced by the course of time and precedent; by the declaration of the Judges, and by the opposition of the lower House; (y) 4 Inst. 21. Finch. 233, 483. 1 Lev. 165. (z) Bell's Dict. Law of Scotland, 703. (a) Chitty's Prac. of the Law.594. so that at present they may be said to stand nearly as follows. The Lords have an exclusive criminal jurisdiction, but only in cases of Impeachment by the Commons, or the arraignment of any Peer of the realm; an exclusive civil jurisdiction, but only in cases of Appeals from the Courts below, a power in breaches of privilege, extending to fine and imprisonment for a term certain, but not, if long disuse have any weight, to corporal or infamous punishment. A Judicature in controverted Elections for the Sixteen Representative Peers of Scotland: and the power to imprison, expel, reject or disqualify their own Members for crimes. PRIVILEGES PECULIAR TO THE HOUSE OF COMMONS. House of Com Although the privileges of the House of Commons have been held by Blackstone, and many other learned and Privileges of the venerable writers, to be undefinable, yet there are other mons. names (as Chatham,* Holt, Hatsell, &c.) equally entitled Not undefinable. to respect, who dispute this doctrine, and declare that its acknowledgment would circumscribe not only the liberty of the subject, but the well-being of the State. But, as says Dwarris (himself a learned and accurate expounder of Parliamentary law), this repudiation of the doctrine is not sufficient. The circumstance of opinions of a doubtful nature coming recommended by names such as these, renders it more than ordinarily incumbent upon succeeding writers to subject them to close examination, and if found objectionable, to oppose their introduction and point out their fallacy (a). (a) Dwar. 71. See his speech upon the Address, 9th January, 1770.-Ld. Chatham's Speeches, v. 2, p. 154. |