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arrest.

Chapter V. occasioned a more distinct recognition of the privilege by

statute, and an improvement in the law. He had been
imprisoned in the Fleet, in execution, before the meeting
of Parliament, and the Commons first tried to bring him
into the house by habeas corpus, and then sent their
Serjeant to demand his release. The warden refused to
give up his prisoner, and was committed to the Tower, and
to the cell therein called “Little Ease," for his contempt.
At length the warden delivered up the prisoner, and was
discharged, after a reprimand. So far the privileges of the
house were satisfied : but there was still a legal difficulty
to be overcome, that had been common to all cases in
which members were in execution, viz. that the warden was
liable to an action of escape, and the creditor had lost his
right to an execution. In former cases a remedy had been
provided by a special Act, and the same expedient was now
adopted: but in order to provide for future cases of a Statutes

relating to
similar kind, a general Act, 1 Jas. I. c. 13, was passed, freedom
which, while it recognized the privilege of freedom from from
arrest, the right of either house of Parliament to set a
privileged person at liberty, and the right to punish those
who make or procure arrests, enacted that after such time
as the privilege of that session in which privilege is granted
shall cease, parties may sue forth and execute a new writ;
and that no sheriff, &c., from whose arrest or custody persons
shall be delivered by privilege, shall be chargeable with
any action.

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.

167.

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.

how re

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
parliamentary privilege. The arrest of a member in a present.
civil cause is, therefore, irregular, ab initio, and he may be
discharged immediately, upon motion in the court from
which the process issued.'

For the same reason writs of privilege have been discon-
tinued. In 1707, a few years after the passing of the 12 &
13 Will. III., the Serjeant was sent with the mace to the
warden of the Fleet, who obeyed the orders of the house,
and discharged Mr. Asgill, a member then in execution.”
Peers, peeresses, and members are now discharged directly.
by order or warrant, and the parties who cause the arrest
are liable to censure and punishment, as in the case of the
Baroness Le Cale, in 1811 ; and Viscount Hawarden, in
1828.3

In 1807, Mr. Mills had been arrested on mesne process, and
was afterwards elected. The house determined that he was
entitled to privilege, and ordered him to be discharged out of
the custody of the marshal of the King's Bench. In 1819,
Mr. Christie Burton had been elected for Beverley, but being
in custody on execution, and also on mesne process, was un-
able to attend his service in Parliament. The house
determined that he was entitled to privilege, and ordered
his discharge from the custody of the warden of the Fleet.
An action was brought against the warden by the assignees
of a creditor of Mr. Burton, for his escape, who were
declared guilty of a breach of privilege, and ordered to
attend the house.

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

Representative peers,

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
marriage:1 but if a peeress by marriage should afterwards
intermarry with a commoner, she forfeits her privilege. It
is also ordered and declared by the Lords, that privilege of
Parliament shall not be allowed to minor peers, noble-
women, or widows of peers (saving their right of peerage).?

And by the 23rd Article of the Act of Union with Scotland
(5 Anne, c. 8), the sixteen representative peers are allowed
all the privileges of the peers of the Parliament of Great
Britain; and all other peers and peeresses of Scotland,
though not chosen, enjoy the same privileges. In the same
manner, by the Act of Union with Ireland, the peers and
peeresses of Ireland are entitled to the same privileges as

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
of the House of Commons, “the time of privilege” has
been repeatedly mentioned in statutes, but never explained.
It is stated by Blackstone and others, and has been the
general opinion (founded, probably, upon the ancient law
and custom, by which writs of summons for a Parliament
were always issued at least forty days before its appointed
meeting), that the privilege of freedom from arrest remains

as to the

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Fortescue

solution,

Chapter V. with a member of the House of Commons " for forty days

after every prorogation, and forty days before the next
appointed meeting;” 1 and this extent of privilege has been
allowed by the courts of law, on the ground of usage and
universal opinion. Thus in Mr. Duncombe's case, 7th Mr. Dun.

combe's
September, 1847, who was, by a judge's order, allowed his case.
privilege, extending to forty days, the chief baron, on a
motion for rescinding the order, maintained the privilege,
and stated as the judgment of the court that “the period of
forty days before and after the meeting of Parliament has
for about two centuries, at least, been considered the time
to be allowed; and such, we think, is the law”? (see

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

heir election.

? 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,
1735.

? Welsby, H. & G. 430.

3 Barnardo v. Mordaunt, 1 Lord Ken. 125.

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