Persons under ar obtained his release in 1819, although he had been in the Chapter V. custody of the warden of the Fleet before his election.1 A person succeeding to a peerage while under arrest, is rest becom- entitled to his discharge in virtue of his privilege. On the ing peers. 1st January, 1849, Lord Harley having succeeded, by the death of his father, to the earldom of Oxford, applied to a judge in chambers (Mr. Baron Platt), for his discharge from the Queen's Prison. It was submitted that he was not entitled to privilege until he had taken his seat as a peer: but this position could not be supported by any authorities, and the earl was ordered to be discharged. It has been decided by the Lords that a peer is entitled to privilege when he has not qualified himself to sit, by taking the caths.3 Members not ad bail. 2 As a consequence of the immunity of a member of Parliamitted as ment, it has been held that he cannot be admitted as bail; for not being liable to attachment, by reason of his privilege, he cannot be effectually proceeded against, in the event of the recognizances being forfeited.* Not to be impleaded. Writ of supersedeas. Suits stayed by letter. The privilege of not being impleaded 5 was formerly maintained, as, for instance, during 8th Edward II., by the issue of writs of supersedeas to the justices of assize, to prevent actions from being maintained against members in their absence, by reason of their inability to defend their rights while in attendance upon the Parliament." At the beginning of the reign of James I., another practice was adopted. Instead of resorting to writs of supersedeas, the Speaker was ordered to stay suits by a letter to the judges, and sometimes by a warrant to the party also; and 19 C. J. 411; see Reports of Precedents, 10 C. J. 401; 62 ib. 642. 653. 654; 2 Hatsell, 37; 74 C. J. 44; 75 ib. 230. 2 M'Cabe v. Lord Harley. 3 L. J. 24th Feb. 1691; 13th May, 1720. Duncan v. Hill (1 Dowling & Ryland's Rep. 126); Graham v. Sturt (4 Taunton's Rep. 249); Burton v. Atherton (2 Marsh. 232); and case of Mr. Feargus O'Connor, who offered himself as bail for Mr. The case of Bogo de Clare, for- 61 Hatsell, 41. 42. 43; D'Ewes, 436. 71 C. J. 286. 381. 421. 804, &c. Chapter v. the parties and their attorneys who commenced the actions were brought, by the Serjeant, to the bar of the house.1 Service of a summons within the tions of the The privilege insisted upon in this manner continued Limitauntil the end of the seventeenth century, when it underwent privilege a considerable limitation by statute. The 12 & 13 Will. by statute. III. c. 3, enacted, that any person might commence and prosecute actions against any peer, or member of Parliament, or their servants, or others entitled to privilege, in the court at Westminster, and the duchy court of Lancaster, immediately after a dissolution or prorogation, until the next meeting of Parliament, and during any adjournment for more than fourteen days; and that during such times, the court might give judgment and award execution. Soon afterwards, it was enacted, by the 2 & 3 Anne, c. 18, that no action, suit, process, proceeding, judgment, or execution, against privileged persons, employed in the revenue, or any office of public trust, for any forfeiture, penalty, &c., should be stayed or delayed by or under colour or pretence of privilege of Parliament. The Act of William III. had extended only to the principal courts of law and equity but by the 11 Geo. II. c. 24, all actions in relation to real and personal property were allowed to be commenced and prosecuted in the recess and during adjournments of more than fourteen days, in any court of record. Still more important limitations of the privilege were effected by the Act 10 Geo. III. c. 50, whereby any person may at any time commence and prosecute an action or suit in any court of law against peers or members of Parliament and their servants; and no such action or process shall be interfered with under any privilege of Parliament. It is also, however, enacted that nothing in the Act should subject the person of any member of Parliament to arrest or imprisonment.2 Under this Act, and under the Acts 45 Geo. III. c. 124, 11 C. J. 304. 525; Prynne's 4th precincts of Register, 810; 1 C. J. 861; 1 HatParlia- sell, 184. 185; 1 C. J. 378. 421. 595, ment, see p. &c.; 10 ib. 280. 300. 596; 11 ib. 557, 80. &c. 2 The 4th Article of the Act of Union extends all privileges of English peers to the peers of Ireland. Subpoenas and juries. and 47 Geo. III. sess 2, c. 40, members of Parliament may Chapter V. The claim to resist subpoenas upon the same principle Members summoned 3 As the withdrawal of a witness may affect the adminias jurors. stration of justice, the privilege has properly been waived: but the service of members upon juries not being absolutely necessary, their more immediate duties in Parliament are held to supersede the obligation of attendance in other courts.5 1 1 C. J. 34. 48; 1 Parl. Hist. 630; D'Ewes, 347; 1 Hatsell, 96. 97. 169. 175; 3 L. J. 630; 1 C. J. 203. 205. 211. 368. 1040, &c.; 9 ib. 339. 2 56 ib. 122; 68 ib. 218. 243. 292; 71 ib. 110; 82 ib. 306. 379; see also H. D. 1st March, 1844 (Earl of 3 78 ib. 132. 491 L. J. 508; 92 ib. 590; 103 C. J. 40; 106 ib. 277, &c. 5 1 West, Inq. 28. Chapter V. Privilege, see p. 270. On the 20th February, 1826, Mr. Holford complained that he had been fined for non-attendance as a juryman by the Court of Exchequer, his excuse that he was attending the service of Parliament not being admitted; and Mr. Ellice, another member, stated that he had also been fined for non-attendance, in the same court. A committee of privileges was immediately appointed, and the house, on receiving its report, resolved, nem. con., that it is "amongst the most ancient and undoubted privileges of Parliament, that no member shall be withdrawn from his attendance on his duty in Parliament to attend on any other court."1 Exemption, held good during an adjournment, was not ordinarily claimed by members after a prorogation; and there was no distinct authority for its existence at that time but by the Juries Act, 1870, peers and members of Parliament, and the officers of both houses, are included among the persons exempted from serving on juries, without reference to the sitting of Parliament; and their privilege has since become a legal exemption. commit The privilege of freedom from arrest has always been Criminal limited to civil causes, and has not been allowed to interfere ments. with the administration of criminal justice. In Larke's case, in 1429, the privilege was claimed, "except for treason, felony, or breach of the peace;" and in Thorpe's case, the judges made exceptions to such cases as be " for treason, or felony, or surety of the peace." The privilege was thus explained by a resolution of the Lords, 18th April, 1626: "That the privilege of this house is, that no peer of Parliament, sitting the Parliament, is to be imprisoned or restrained, without sentence or order of the house, unless it be for treason or felony, or for refusing to give surety of the peace;" and again, by a resolution of the Commons, 1 Case of Tracy, 1597, D'Ewes, 560; 1 Hatsell, 112; Sir W. Alford, 1628, 1 C. J. 898; Mr. Holford and Mr. Ellice, 1826; 14 H. D. 2 s. 568. 569; 81 C. J. 82. 87; Mr. Bennett, 14 H. D. 2 s. 642; Mr. Macleod, 21 H. D. 2 s. 1770. In the case of Viscount Enfield, 6th Feb. 1861, Chief Justice Erle stated, that "his 20th May, 1675, "that by the laws and usage of Parliament, Chapter V. On the 14th April, 1697, it was resolved, "That no member of this house has any privilege in case of breach of the peace, or forcible entries, or forcible detainers; "1 Seditious and in Wilkes' case, 29th November, 1763, although the Court of Common Pleas had decided otherwise, it was resolved by both houses, libels. Case of 2 "That privilege of Parliament does not extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of laws in the speedy and effectual prosecution of so heinous and dangerous an offence." 3 "Since that time," said the committee of privileges, in 1831, "it has been considered as established generally, that privilege is not claimable for any indictable offence." 4 These being the general declarations of the law of ParliaCochrane. ment, one case will be sufficient to show how little protection is practically afforded by privilege, in criminal offences. In 1815, Lord Cochrane, a member, having been indicted and convicted of a conspiracy, was committed by the Court of King's Bench to the King's Bench Prison. Lord Cochrane escaped, and was arrested by the marshal, whilst he was sitting on the privy councillors' bench, in the House of Commons, on the right hand of the chair, at which time there was no member present, prayers not having been read. The case was referred to the committee of privileges, who reported that it was "entirely of a novel nature, and that the privileges of Parliament did not appear to have been violated, so as to call for the interposition of the house, by any proceedings against the marshal of the King's Bench." 5 Thus the house will not allow even the sanctuary of its Causes of commit ment to be 14 Rot. Parl. 357; 5 ib. 339; 3 L. communi- J. 369. 562; see also Declaration by cated. the Commons, 17th Aug. 1641, 2 C. J. 261; 11 ib. 784. 22 Wils. Rep. 150; 19 St. Tr. 981. 329 C. J. 689; 15 Parl. Hist. 1362-1378. 4 Sess. Paper, 1831 (114); see also Sess. Paper, 1814-15 (239); 30 H. |