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Chapter V. occasioned a more distinct recognition of the privilege by
statute, and an improvement in the law. He had been
But although the privilege of either house of Parliament was admitted to entitle a prisoner to his release, the manner of releasing him was, during the 17th century, still indefinite, whether by warrants for a writ of privilege, or a writ of habeas corpus, or by the order of the house.3
During the same period also, when the property of peers or of their servants was distrained, the Lords were accustomed to interfere by their direct authority, as in
110. J. 155. et seq. : 5 Parl. Hist. 32 L. J. 270. 296. 299. 302. 588 : 113, &c.; 1 Hatsell, 157.
3 ib. 30; 4 ib. 654 ; 8 ib. 635. 639; ? See 1 C. J. 173. 195; and Col. 1 C.,J. 820; 9 ib. 411 ; 1 Hatsell, lection of Precedents, 10 ib. 401.
1628; 1 but privilege did not attach to property held by a Chapter V. peer as a trustee only. In cases of arrest on mesne process, the practice of releasing the prisoners directly by a warrant, or by sending the Black Rod or Serjeant, in the name of the house, to demand them, was continually adopted.
At length, in the year 1700, an Act was passed, which, while it maintained the privilege of freedom from arrest with more distinctness than the 1 Jas. I., made the goods of privileged persons liable to distress infinite and sequestration, between a dissolution, or prorogation, and the next meeting of Parliament, and during adjournments for more than fourteen days. In suits against the king's immediate debtors, execution against members was permitted even during the sitting of Parliament, and the privilege of freedom from arrest in such suits was not reserved to servants. Again, by the 2 & 3 Anne, c. 18, executions for penalties, forfeitures, &c., against privileged persons, being employed in the revenue or any office of trust, were not to be stayed by privilege. Freedom from arrest, however, was still maintained for the members of both houses, in such cases, but not for their servants.
By the 10 Geo. III. c. 50, a very important limitation of the freedom of arrest was effected. Down to that time the servants of members had been entitled to all the privileges of their masters, except as regards the limitations effected by the two last statutes : but by the 3rd section of the 10 Geo. III., the privileges of members to be free from arrest upon all suits, authorized by the Act, was expressly reserved; while no such reservation was introduced in reference to their servants. And thus, without any distinct abrogation of the privilege, it was, in fact, put an end to, as executions were not to be stayed in their favour, and their freedom from arrest was not reserved.
Servants' privilege discontinued.
i Cases of Lords Warwick and Montague, 3 L. J. 776. 777; 10 ib. 611.
: 12 ib. 194. 390; 14 ib. 36. 78; 16 ib. 294 ; 22 ib. 412.
3 Bassett's case, 1 C. J. 807 : 4 L. J. 654 ; 8 ib. 577. 601; Boteler's case, 17 C. J. 6.
-12 & 13 Will. III. c. 3, after. wards extended by 11 Geo. II, c. 24.
Chapter V. By these several statutes the freedom of members from Members,
arrest in civil cases has become a legal right rather than a leased at
For the same reason writs of privilege have been discon-
In 1807, Mr. Mills had been arrested on mesne process, and
It now only remains to inquire what is the duration of the Duration of privilege of freedom from arrest; and it is singular that this" important point has never been expressly defined by Parliament. The person of a peer (by the privilege of peerage) Peers. “is for ever sacred and inviolable.” This immunity rests upon ancient custom, and is recognized by the Acts 12 & 13
See Colonel Pitt's case, 2 Report of Precedents, 28). Strange, 985 (1734).
• 62 C. J. 654; 74 ib. 44; 75 ib. ? 15 C. J. 471.
286. 3 48 L. J. 60. 63; 60 ib. 34 (and
Will. III. c. 3 and 2 & 3 Anne, c. 18. It would seem to Chapter V. have been an ancient feudal privilege of the barons, the law assuming that there would always be, upon the demesnes
of their baronies, sufficient to distrain for the satisfaction of Peeresses. any debt. Peeresses are entitled to the same privilege as
peers, whether they be peeresses by birth, by creation, or by
And by the 23rd Article of the Act of Union with Scotland
the peers and peeresses of Great Britain. Authorities The Lords, under standing orders Nos. 64 and 67, claim duration of privileges for themselves “ within the usual times of priviprivileges.
$. leges of Parliament,” and for their servants, for twenty
days before and after each session. With regard to members
as to the
Chapter V. with a member of the House of Commons " for forty days
after every prorogation, and forty days before the next
also p. 123). See M:. It has been determined by the courts of law, that the After disHarrison's privilege, even after a dissolution, is still enjoyed for a son 0156, p. 123.
convenient and reasonable time for returning home. What
non this convenient time may be, has never been determined ; but the general claim of exemption from arrest, eundo et redeundo, extends as well to dissolutions as to prorogations, as no distinction is made between them. These cases apply to arrests made after the privilege has Members
in execuaccrued: but the effect of the election of a person already tion before in execution still remains to be considered. In Thorpe's the case the judges excepted from privilege the case of “a condemnation had before the Parliament:" but their opinion has not been sustained by the judgment of Parliament itself. Unless a member has incurred some legal disability, or has subjected himself to processes more stringent than those which result from civil actions, it has been held that his service in Parliament is paramount to all other claims. Thus in 1677, Sir Robert Holt was discharged, although he had been "taken in execution out of privilege of Parliament;" and, not to mention intermediate cases, or any which are of doubtful authority, Mr. Christie Burton
? 2 Stephen's Blackstone, 11th ed. 353. The right of franking letters, formerly enjoyed by members, was by Act granted for the above-mentioned forty days. For a history of
this right, see Report, 16th April,
? Welsby, H. & G. 430.
3 Barnardo v. Mordaunt, 1 Lord Ken. 125.