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P. 328..

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Parliament.

courtesy; and, if not observed, the proceedings of the house Chaper
are guarded against any interference, on the part of the
Crown, not authorized by the laws and constitution of the
country. The occasions for this courtesy are also limited ;
as by the law and custom of Parliament the king cannot Use of
take notice of anything said or done in the house, but by the
the report of the house itself (see p. 328).

debate, sce Privileges Each house, as a constituent part of Parliament, exercises of each house-col- its own privileges independently of the other. They are

enjoyed, however, not by any separate right peculiar to each,
but solely by virtue of the law and custom of Parliament.
There are rights or powers peculiar to each, as explained
in the last chapter : but all privileges, properly so called,
appertain equally to both houses. These are declared and
expounded by each house; and breaches of privilege are
adjudged and censured by each : but still it is the law of

Parliament that is thus administered. Law and The law of Parliament is thus defined by two eminent Jurisdiccustom of

tion of th: authorities : “As every court of justice hath laws and cus- courts, see toms for its direction, some the civil and canon, some the p. 131. common law, others their own peculiar laws and customs, so the High Court of Parliament hath also its own peculiar law, called the lex et consuetudo Parliamenti.This law of Parliament is admitted to be part of the unwritten law of the land, and as such is only to be collected, according to the words of Sir Edward Coke, "out of the rolls of Parliament and other records, and by precedents and continued experience;" to which it is added, that " whatever matter arises concerning either house of Parliament, ought to be discussed and adjudged in that house to which it relates, and not elsewhere.” 1 | Hence it follows that whatever the Parliament has constantly declared to be a privilege, is the sole evidence of its being part of the ancient law of Parliament. “The only method,” says Blackstone, "of proving that this or that maxim is a rule of the common law, is by showing that it hath always been the custom to observe it;" and "it is laid

i Coke, 4 Inst. 15; 1 Blackstone, 163.

may

inent.

Chapter down as a general rule that the decisions of courts of justice

are the evidence of what is common law.”] The same rule
is strictly applicable to matters of privilege, and to the
expounding of the unwritten law of Parliament.

But although either house may expound the law of New privi-
Parliament, and vindicate its own privileges, it is agreed best
that no new privilege can be created. In 1704, the Lords created.
communicated a resolution to the Commons at a conference,
“ That neither house of Parliament have power, by any
vote or declaration, to create to themselves new privileges,
not warranted by the known laws and customs of Parlia-
ment;" which was assented to by the Commons.?
Both houses act upon precisely the same grounds in Breach of

privilege a matters of privilege. They declare what cases, by the law

Yhe Tal contempt and custom of Parliament, are breaches of privilege ; and of

Court of punish the offenders by censure or commitment, in the same Parliamanner as courts of justice punish for contempt.3 The modes of punishment may occasionally differ, in some respects, in consequence of the different powers of the two houses : but the principle upon which the offence is determined, and the dignity of Parliament vindicated, is the same in both houses.

The right to commit for contempt, though universally Commitacknowledged to belong to both houses, has been regarded with jealousy. But whilst the particular acts of both houses should, undoubtedly, be watched with vigilance when they appear to be capricious or unjust, it is unreasonable to cavil at privileges which are established by law and custom, and are essential to the dignity and power of Parliament.

The power of the House of Lords to commit for contempt By the was questioned in the cases of the Earl of Shaftesbury, in “ 1675, and of Flower, in 1779 : but was admitted without hesitation by the Court of King's Bench.

lent.

Lords.

11 Comm. 68. 71. • 2 14 C. J. 555. 560. 38 Grey's Debates, 232.

* For the exercise of the right of commitment by the House of Representatives, United States, though

the right is not embodied in the
constitution, see 2 Story's Comm.
305-317.

• 6 Howell, St. Tr. 1269, et seq.
68 Durnf. & East, 314,

Commons.

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officers in

By the The power of commitment by the Commons is established Chapter

upon the ground and evidence of immemorial usage. It was – distinctly admitted by the Lords, at the conference between Sie also

jurisdiction the two houses, in the case of Ashby and White, in 1704, of courts of

a law in and it has been repeatedly recognized by the courts of law.: mitters of The power is also virtually admitted by the Statute 1 Jas. I. Findege, c. 13, s. 3, which provides that nothing therein shall “extend to the diminishing of any punishment to be hereafter,

by censure in Parliament, inflicted upon any person.” Power to The house has also the power to send for persons whose Power to order attendance.

conduct has been brought before the house on a matter of
privilege by an order for their attendance, without specifying cust

"8 pp. 70, in the order the object or the causes whereon their attend- 143. ance is required ; 4 and in obedience to the order members attend in their places, and other persons at the bar (see

p. 89).5 Authority The right of compelling the attendance of persons before and protection of Parliament, and of commitment being admitted, it becomes

ho an important question to determine what authority and proexecuting orders of tection are acquired by officers of either house, in executing either house. the orders of their respective courts.

Resistance to the Serjeant-at-arms, or his officers, or others acting in execution of the orders of either house, has

always been treated and punished as a contempt.
Lords. The Lords will not suffer any persons, whether officers

of the house or others, to be molested for executing their
orders, or the orders of a committee, and will protect them
from actions.

1 Nearly 1000 instances of its (39). exercise occurred between 1547 and " See 2 Cavendish's Debates, 321 the first half of this century. Mr. (26th Feb. 1771), for the Speaker's Wynn's Treatise, p. 7.

suggestion that service of the order ? 17 L. J. 714.

of the house by leaving a copy 3 The Aylesbury case, 2 Lord thereof at the usual place of abode Raym. 1105 ; 3 Wils. 205; Murray's of the person therein named should case, 1 Wils. 299 (1751); Crosby's, be deemed personal service. 3 ib. 203 (1771); Oliver's, 14 East, 6 5th Apr. 1892, 147 C. J. 157; 3 1; Mr. Hobhouse's, 2 Chit. Rep. Parl. Deb. 4 s. 700; 152 C. J. 361 ; 207 ; 3 Barn. & Ald. 420; Sheriff of 156 ib. 414. Middlesex, 11 Adolphus & Ellis, 6 13 L. J. 104. 412; 15 ib. 565; 21 273; Howard's case, Printed Papers, ib. 190; 38 ib. 619; 45 ib. 340. 610. 2nd Report, 1815 (305), (397); 1847

Chapter The house was informed, 28th November, 1768, that an
III.

action had been commenced against Mr. Hesse, a justice
of the peace for Westminster, who had acted under the
orders of the house in suppressing a riot at the doors of the
house, in Palace-yard; and Biggs, the plaintiff, and Aylett,
his attorney, were ordered to attend, and were imprisoned."

On the complaint of Aldern, a constable, 26th June, 1788,
that having, under an order of the house, refused Mr. Hyde
admittance to Westminster Hall during the trial of Warren
Hastings, he had been indicted for an assault, Mr. Hyde
was ordered to attend, and committed. The last case of the
kind was that commonly known as “the umbrella case,"
when, 26th March, 1827, John Bell was summoned before
the Lords, and admonished, because he had served F. Plass,
a doorkeeper, when attending on the house, with a process
from the Westminster Court of Requests, to pay a debt and
costs awarded against him by that court, for the loss of an
umbrella which was left with the doorkeeper during a
debate.3

In the case of Ferrers, in 1543, the Commons committed Commons. the sheriffs of London to the Tower, for having resisted their Serjeant-at-arms, with his mace, in freeing a member who had been imprisoned in the Compter.4

In 1689, after a dissolution of Parliament, an action was brought against Topham, the Serjeant-at-arms attending the Commons, for executing the orders of the house in arresting certain persons. Topham pleaded to the jurisdiction of the court, but his plea was overruled, and judg. ment was given against him. The house declared this to be a breach of privilege, and committed Sir F. Pemberton and Sir T. Jones, who had been the judges in the case, to the custody of the Serjeant-at-arms.

In 1771, the House of Commons ordered Miller, a printer concerned in publishing the debates, to be taken into custody; and he was arrested by a messenger, under the Speaker's warrant. The messenger was brought before the

1 32 L. J. 187. 197.

38 ib. 249. 250. 251.

3 59 ib. 199. 206. "1 Hatsell, 53.

of the civil power,

Lord Mayor's court, who set the prisoner at liberty, and com- Chapter
mitted the messenger of the house for an assault. For this -
resistance to the orders of the house, Mr. Alderman Oliver
and the lord mayor (Brass Crosby) were committed to the

Tower.
Assistance When the house has ordered the Serjeant to execute a

"warrant, the house sustains his authority, and punishes those

who resist him. But a question arises concerning the
authority with which the Serjeant is invested by law, when
executing a warrant, authorized by the order of the house,
and the assistance he can demand from the civil power.
Both houses consider every branch of the civil government
as bound to assist, when required, in executing their warrants
and orders, and have repeatedly required such assistance.

In 1640, all mayors, justices, &c., in England and Ireland
were ordered by the Commons to aid in the apprehension
of Sir G. Ratcliffe.3 In 1660, the Serjeant was expressly
empowered "to break open a house in case of resistance, and
to call to his assistance the sheriff of Middlesex, and all other
officers, as he shall see cause; and who are required to assist
him accordingly." And on the 23rd October, 1690, the
Lords authorized the Black Rod to break open the doors
of any house, in the presence of a constable, and there
search for and seize Lord Keveton.4

On the 24th January, 1670, and again on the 5th April, 1679, the House of Commons directed, by resolution, that the Speaker should issue warrants requiring sheriffs, bailiffs, constables, and all other his Majesty's officers and subjects, to aid and assist the Serjeant-at-arms in his execution of the orders of the house. The Lords also have frequently required the assistance of the civil power in a similar manner. And at the present time, by the Speaker's warrant to the Serjeant-at-arms for taking a person into

1 33 C. J. 263. 285, 289; Report of Committee, 1771; see also 1 May, Const. Hist. (7th ed.) 429.

. See other cases, 9 C. J. 341.587; 13 ib. 826.

32 ib. 29.

8 ib. 222; 14 L. J. 530. 59 C. J. 193; 8 ib. 586; see also 2 ib. 371 ; 9 ib. 353.

6 21st Dec. 1678, 13 L. J. 429; 21st and 23rd Oct. 1690, 14 ib. 527. 530; 21st May, 1747, 27 ib. 118.

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