Chapter V. walls to protect a member from the process of criminal law; though, as has been mentioned (p. 80), service of a criminal process on a member within the precincts of Parliament, whilst the house is sitting, may be a breach of privilege. Wrongful But in all cases in which members are arrested on criminal arrest of members, charges, the house must be informed of the cause for which see p. 80. they are detained from their service in Parliament. Several Acts which have suspended for a time the Habeas Corpus Act, have contained provisions to the effect that no member of Parliament shall be imprisoned during the sitting of Parliament, until the matter of which he stands suspected shall be first communicated to the house of which he shall be a member, and the consent of the said house obtained for his commitment.1 By the Protection of Person and Property Act, 1881, it was provided that "if any member of either House of Parliament be arrested under this Act, the fact shall be immediately communicated to the house of which he is a member, if Parliament be sitting at the time, or if Parliament be not sitting, then immediately after Parliament reassembles, in like manner as if he were arrested on a criminal charge." The arrests of members, under this Act, as long as it remained in force, were communicated to the House of Commons accordcases of ingly. In cases not affected by Acts of this special character, contempt, it has been usual to communicate the cause of commitment see pp. 118, of a member after his arrest; and whenever members are in custody in order to be tried by naval or military courts martial, or have been committed to prison for any criminal offence by a court or magistrate.5 In the case of cations in 121. 4 1 See 17 Geo. II. c. 6; 45 Geo. III. c. 4, s. 2; 57 Geo. III. c. 3, s. 4; 57 Geo. III. c. 55, s. 4; 3 Geo. IV. c. 2, s. 4. 2 Mr. Dillon, 4th May, 1881, 136 C. J. 213; 260 H. D. 3 s. 1744. Mr. Parnell, Mr. Sexton, Mr. O'Kelly, and Mr. Dillon, also the release of Mr. Sexton, 7th Feb. 1882. A motion for a committee of inquiry was negatived, 137 C. J. 8; 266 H. D. 3 s. 98; arrest of Mr. W. O'Brien, 16th Sept. 1887, 142 C. J. 552. 337 ib. 57; 39 ib. 479; 51 ib. 139. 557; 58 ib. 597; 59 ib. 33; 62 ib. 145; 64 ib. 214; 67 ib. 246, &c.; 70 ib. 70; 47 L. J. 349 (Lord Gambier); and see case of Lord Torrington, 14 ib. 521. 523. 525.527. Mr. Healy, 15th Feb. 1883, 138 C. J. 4. A motion for a committee of inquiry was negatived. Mr. F. O'Connor, 107 ib. 28; 157 ib. 3, &c. Communication criminal address to such mes commitments for military offences, the communication is Chapter V. P. 451. cations by to the not a to com The committal of a member for high treason1 or any Communi(commit criminal offence is brought before the house by a letter the Speaker ment for a addressed to the Speaker by the committing judge or house, see magistrate. On these occasions, the first communication P. 193; to the Speaker is made when the member is committed matter of privilege, to prison, bail not being allowed; 2 and subsequently, if see p. 273; faiture of the member be not released from custody, or acquitted, judge or the judge informs the Speaker of the offence for which the magistrate member was condemned, and the sentence that has been municate Communi- passed upon him. In the case of an attachment order for (comunit- contempt of court (see p. 122), the judge informs the not a matter of Speaker that such an order has been issued, but cannot privilege, see p. 273. certify to him when the arrest actually takes place, for the issue of the order is left at the discretion of the applicant for such an order, which is placed, when issued, in the sheriff's hands for execution. cation ment for contempt). Bankrupts. 3 The same distinction between civil and criminal processes has been observed in the case of bankrupts. By the Bankrupt Law Consolidation Act, 1849, s. 66, it was enacted that, "If any trader having privilege of Parliament shall commit. any act of bankruptcy, he may be dealt with under the Act in like manner as any other trader: but such person shall not be subject to be arrested or imprisoned during the term 1 Case of Mr. Arthur Lynch, 157 C. J. 281. See Mr. Speaker's ruling, 12th June, 1902, as to the sufficiency of a similar communication in cases of high treason as in other criminal offences, 109 Parl. Deb. 4 s. 480. In the case of Lord George Gordon the communication was made by a royal message, 37 C. J. 903, and in the case of Mr. Smith O'Brien by a letter from the Lord-Lieutenant of Ireland, 103 ib. 888. 2 Where a member is convicted but released on bail pending an appeal, the duty of the magistrate to communicate with the Speaker does not arise, 113 Parl. Deb. 4 s. 234. • Captain Verney, 146 C. J. 268; Mr. Hastings, 147 ib. 101; Mr. Lynch, 158 ib. 3. with the Speaker Chapter V. of such privilege, except in cases made felonies and mis- s. 120, and by the Bankruptcy Act, 1883, s. 124, a person ment of for con House of Another description of offence, partaking of a criminal Commitcharacter, is a contempt of a court of justice; and it was members for some time doubtful how far privilege would extend to tempt. the protection of a member committed for a contempt. For Cases in the instance, in the case of Henry Lord Cromwell, 30th June, Lords. 1572, who had been attached by the sheriff of Norfolk, by a writ of attachment from the Court of Chancery, for not obeying an injunction of that court, though the Lords ordered Lord Cromwell to be discharged of the attachment, they declared that if at any future time cause should be shown that by the queen's prerogative, or by common law or custom, or by any statute or precedents, the persons of lords of Parliament are attachable, the order in this case should not affect their decision in judging according to the cause shown.1 On the 9th February, 1625, the Lord Vaux claimed his privilege, for stay of the proceedings in an information against him in the Star Chamber; and it was granted.2 But by standing order No. 79, 8th June, 1757, no peer or lord of Parliament has privilege of peerage, or of Parliament, against being compelled to pay obedience to a writ of habeas corpus directed to him. And it was decided, in the case of Earl Ferrers, that an attachment may be granted, if a peer refused obedience to the writ.3 In 1605, in the case of Mr. Brereton, who had been Cases in the 11 L. J. 727; 4 ib. 27; 12 ib. 122; 4th Reg. 792; case of Duchess of Sutherland, 18th April, 1893. 23 L. J. 496; see also the case of Lord Arundel, 3 ib. 558 (Report of Precedents), 562, &c. Burr. 631; see statement in Bacon's Abridgment, vol. 6, p. 546; 2 Hawk. P. C. c. 22, s. 33; 1 Burr. 634. The courts will not grant an attachment against a peer or member of Parliament (see p. 123) House of Commons. Mr. Long Mr. Lech mere Charlton. Mr. Whalley. committed by the Court of King's Bench for a contempt, Chapter V. In more recent cases, members committed by courts for In 1831, Mr. Long Wellesley, a member, having confessed in the Court of Chancery, that he had taken his infant daughter, a ward in chancery, out of the jurisdiction of the court, Lord Brougham, C., at once committed him for contempt. The lord chancellor acquainted the Speaker of this commitment; and Mr. Wellesley also appealed, through the Speaker, to the House of Commons, and claimed his privilege. His case was referred to the committee of privileges, who reported, "that his claim to be discharged from imprisonment, by reason of privilege of Parliament, ought not to be admitted." 2 The next case was that of Mr. Lechmere Charlton, in 1837. That member had been committed by the lord chancellor, for a contempt, in writing a letter to one of the masters in chancery, "containing matter scandalous with respect to him, and an attempt improperly to influence his decision." The lord chancellor stated the grounds of this commitment, in a letter to the Speaker, to whom Mr. Charlton also complained of his commitment. These letters were referred to a committee of privileges, and after a full inquiry into the nature of the contempt, the committee reported that Mr. Charlton's claim to be discharged from imprisonment ought not to be admitted.3 The case of Mr. Whalley, in 1874, was, in some respects, exceptional. On the 23rd January, he was committed by the Court of Queen's Bench for a contempt, Parliament not then being sitting. On the 26th, Parliament was dissolved, 1 C. J. 269; also Bampfield's case, ib. 466. 286 C. J. 701. 392 ib. 3, et seq.; 1 Parl. Rep. 1837, No. 45. As the lord chancellor's order did not set forth the letter, the committee directed it to be pro- Chapter v. and, in the mean time, Mr. Whalley had been discharged from custody. Doubts were raised whether, under these circumstances, it was necessary for the court to communicate this commitment to the house; but, on the meeting of the new Parliament, the lord chief justice addressed a letter to the Speaker, explaining all the facts of the case. A committee on privilege, to whom this letter was referred, reported that it did not demand the further attention of the house, and they also expressed their opinion "that the lord chief justice fulfilled his duty in informing the house that a member of the House of Commons had been imprisoned by the Court of Queen's Bench."1 On the 17th August, 1882, Mr. Speaker acquainted the house that he had received a letter from Mr. Justice Law- Mr. Gray. son, sitting under a commission in Dublin, informing him that he had committed Mr. Gray, a member, for contempt of court, in publishing certain articles, calculated to prejudice the administration of justice. As the house was on the eve of a long adjournment, no further action was taken : but on the next meeting of the house, on the 24th October, a select committee was appointed to consider the matter. Meanwhile Mr. Gray had been discharged; and his discharge was communicated to the house. The committee, having examined Mr. Gray and other witnesses, and considered various documents, reported, in the terms of former committees, that the matters referred to them do not demand the further attention of the house.2 On the 19th June, 1902, Mr. Speaker acquainted the house that he had received a letter from Mr. Robert L. Mr. McHugh. Brown, stating that a court held under the Criminal Law and Procedure (Ireland) Act, 1887, and consisting of another resident magistrate and himself, had committed Mr. Patrick Aloysius McHugh, a member, for three months for refusing to enter into recognizances to be of good behaviour, he having grossly insulted the court. A select committee was Report of Committee, 1874 (77); 218 H. D. 3 s. 52. 108. 137 C. J. 487. 491; 273 H. D. 3 s. 1978. 2049; 274 ib. 34. Report of Committee on Privilege (Mr. Gray), |