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Privileges

of each

II.

courtesy; and, if not observed, the proceedings of the house Chapter
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 king's
the report of the house itself (see p. 328).

Each house, as a constituent part of Parliament, exercises house col- its own privileges independently of the other. They are lectively 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 custom of Parliament.

name in

debate, see

p. 328..

tion of the

The law of Parliament is thus defined by two eminent Jurisdic-
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 experi-
ence;" 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 con-
stantly 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

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

III.

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.

not

But although either house may expound the law of New priviParliament, and vindicate its own privileges, it is agreed be leges may 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 Parliament;" which was assented to by the Commons.2

contempt

Court of

ment.

Both houses act upon precisely the same grounds in Breach of matters of privilege. They declare what cases, by the law privilege a and custom of Parliament, are breaches of privilege; and of the High punish the offenders by censure or commitment, in the same Parliamanner as courts of justice punish for contempt. 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.

ment.

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.1

Lords.

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.

1 1 Comm. 68. 71.

214 C. J. 555, 560.
38 Grey's Debates, 232.

For the exercise of the right of
commitment by the House of Repre-
sentatives, United States, though

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

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

By the

Commons.

Power to order attendance.

Authority and protection of

2

3

III.

law in

The power of commitment by the Commons is established Chapter upon the ground and evidence of immemorial usage.1 It was distinctly admitted by the Lords, at the conference between See also jurisdiction the two houses, in the case of Ashby and White, in 1704, of courts of and it has been repeatedly recognized by the courts of law. The power is also virtually admitted by the Statute 1 Jas. I. 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."

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matters of rivilege,

p. 131.

pp. 70,

The house has also the power to send for persons whose Power to send for conduct has been brought before the house on a matter of persons in privilege by an order for their attendance, without specifying custody, see in the order the object or the causes whereon their attend- 143. ance is required; and in obedience to the order members attend in their places, and other persons at the bar (see p. 89).5

4

The right of compelling the attendance of persons before Parliament, and of commitment being admitted, it becomes an important question to determine what authority and proorders of tection are acquired by officers of either house, in executing

officers in executing

either house.

Lords.

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.

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 exercise occurred between 1547 and the first half of this century. Mr. Wynn's Treatise, p. 7.

2 17 L. J. 714.

3 The Aylesbury case, 2 Lord Raym. 1105; 3 Wils. 205; Murray's case, 1 Wils. 299 (1751); Crosby's, 3 ib. 203 (1771); Oliver's, 14 East, 1; Mr. Hobhouse's, 2 Chit. Rep. 207; 3 Barn. & Ald. 420; Sheriff of Middlesex, 11 Adolphus & Ellis, 273; Howard's case, Printed Papers, 2nd Report, 1815 (305), (397); 1847

(39).

6

4 See 2 Cavendish's Debates, 321 (26th Feb. 1771), for the Speaker's suggestion that service of the order of the house by leaving a copy thereof at the usual place of abode of the person therein named should be deemed personal service.

5th Apr. 1892, 147 C. J. 157; 3 Parl. Deb. 4 s. 700; 152 C. J. 361; 156 ib. 414.

13 L. J. 104. 412; 15 ib. 565; 21 ib. 190; 38 ib. 649; 45 ib. 340. 610.

Chapter

III.

The house was informed, 28th November, 1768, that an 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.1 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.2 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.*

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 judgment 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

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Assistance of the civil power.

III.

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.1

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.

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In 1640, all mayors, justices, &c., in England and Ireland were ordered by the Commons to aid in the apprehension of Sir G. Ratcliffe. 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.5 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

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

2 See other cases, 9 C. J. 341.587;

13 ib. 826.

3 2 ib. 29.

8 ib. 222; 14 L. J. 530.

59 C. J. 193; 8 ib. 586; see also

2 ib. 371; 9 ib. 353.

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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