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out a mode by which the member in custody in execution, should be delivered; or had taken care to secure the goaler from an action, or to ensure to the creditor his right to a new writ of execution. To effect the two latter objects it was always thought necessary or prudent, to make a particular law; though this opinion is controverted by Elsynge, a who considers the arrest as merely void, and an act to deliver him that is arrested, or to save the plaintiff's execution, ex abundanti and needless."
In order to avoid all difficulty for the future, it was thought expedient to pass the general law, 1 Jac. 1, b "for new executions to be issued against any which shall hereafter be delivered out of execution by privilege of parliament, and for discharge of them out of whose custody such persons shall be delivered;" with this proviso, "Provided always, that this act, or anything therein contained, shall not extend to the diminishing of any punishment to be hereafter by censure in parliament inflicted, upon any person which shall hereafter make, or procure to be made, any such arrest as aforesaid;" which was then a direct parliamentary recognition of the right in the two houses of parliament, not only to liberate persons entitled to privilege, but to inflict punishment by censure in parliament, in the particular case of arrests.
After the act of 1 Jac. 1, c. 13, some formal step and process at law seems to have been at first always thought necessary to give that act its full operation, no privileged person in custody in execution, having been for sometime, delivered by any other method, than by virtue of a writ of privilege, or by a writ of habeas corpus, issued in obedience to a warrant under the speaker's hand, made by order of the house. c But in 1625, the commons declared that "the house hath power, when they see cause, to send the serjeant immediately, to deliver a prisoner."
Colonel Pitt's case, reported in Strange, d determines by what means the courts of law, can discharge a privileged person from custody. The arrest of a member since the statute 10 Geo. 3, in civil cases, is held in that case, to be void ab initio, and it is thenceforth established, that he may be discharged immediately upon motion a Manner of holding parliaments in England.
b 1 Jac. 1, c. 13. d 2 Strange, 985.
c 1 Hats. 165.
in the court from which the process issued. But this determination was, of course, confined to the methods of releasing a member, which can be pursued in Westminster Hall. There was then no parliament in existence.
When parliament was sitting, before the last named statute, the house of commons had not abandoned their claim to the power of releasing their members arrested under civil process, by their own officers and proprio vigore. In 1677, Sir Robert Holt was discharged, though he had been taken in execution "out of the privilege of parliament." In 1707, Asgill, a a member in execution, was discharged; the serjeant being sent with the mace to the warden of the fleet. In many other cases during the seventeenth century, peers and members arrested in execution, were released without writ of privilege or habeas corpus. And in cases of arrest on mesne process, the practice prevailed of releasing the prisoners by a warrant, or sending the black rod in the name of the house to demand them. It is now settled that members may be discharged immediately by warrant; and this does not obtain, only where the privilege existed anterior to the arrest; but is enforced where a person has been arrested on mesne process and is in custody,-but is afterwards elected a member. So it is now enforced where he has been in custody in execution before his election. b
The parties effecting an arrest, were not lightly dealt with in former times. In 1621, Sir J. Whitelocke's man being arrested, the parties were called to the bar and heard on their knees. They acknowledged their fault and craved forgiveness of the house and of Sir J. Whitelocke; but it was ordered upon the question, "That they shall both ride upon one horse bare-backed, from Westminster to the exchange, with papers on their breasts, with this inscription, For arresting a servant to a member of the commons house of parliament.""
To return to the subject of the freedom of a member's person, (from which, the consideration of the means and process employed to deliver him when in custody, has led to this digression); the law is now, at all events, settled upon a rational basis. A peer or mem
a 15 Com. J. 471.
b Mill's case, 1807; Christie Burton's case, 1819.
ber of parlament may be sued, but cannot be arrested or detained in custody. His person shall not be subjected to any imprisonment upon process in civil suits; but the pretended privilege of lands and goods being taken away, (if it ever existed); a peer's or member's property may be sequestered for non-performance of ar order or a decree of a court of equity,-or levied upon under distringas issued by a court of law. a
By the 10 Geo. 3, "Any person may commence and prosecute any action in any court of record, or court of equity, or of admiralty, (or in causes matrimonial and testamentary, in any court having cognizance of such cause,) against any peer or member of the house of commons, or any of their menial or other servants, or any other person entitled to privilege of parliament; and no proceedings thereupon shall be delayed under color of such privilege. But this shall not subject the person of any member of the house of commons to be arrested or imprisoned, on any such suit or proceedings. And to remedy the dilatoriness by process of distringas, the court out of which the writ proceeds, may order the issues levied from time to time, to be sold, and the money arising thereby, to be applied to pay such costs to the plaintiff, as the court shall think just, and the surplus to be detained till the defendant shall have appeared, or other purpose of the writ to be answered. And obedience may be enforced to any rule of the court of king's bench, common pleas, or exchequer, against any person entitled to privilege, by distress infinite, if the person entitled to the benefit of such rule, shall choose to proceed in that way."
The privilege of freedom from arrest in civil suits, extends to protect members of either house from attachment for non-payment of money, or for non-performance of an award. b So likewise against imformations, and as well in the king's suit as a subject's.
But there is no such exemption in criminal cases and breaches of the peace. To proceedings on these, privilege of parliament is not considered applicable. The case of writing and publishing seditious libels was, in 1763, resolved by both houses not to be entitled to privilege upon reasons which extended equally to every indictable offence. The only privilege of parliament in such cases, of crimes 10 Geo. 3, c. 50.
b Walker v. Earl Grosvenor. Catimer v, Sir E. Knatchbull, 7 T. R. 171-448.
and misdemeanors, seems to be the right of receiving immediate information of the imprisonment or detention of any member, with the reason for which he is detained; a practice that is daily used upon the slightest military accusations, preparatory to a trial by court martial, and which is recognized by the several temporary statutes for suspending the habeas corpus act; whereby it is provided that no member of either house shall be detained, till the matter of which he stands suspected, be first communicated to the house of which he is a member, and the consent of the said house obtained for his commitment or detaining. But yet the usage has uniformally been, a ever since the revolution, that the communication has been subsequent to the arrest.
Neither, in matters of this nature, are peers or members protected against the process of the courts, to punish disobedience to their orders. To this effect is the following entry b; "It is ordered and declared, that no peer or lord of parliament hath privilege against being compelled, by process of the courts of Westminster Hall, to pay obedience to a writ of habeas corpus directed to him." Accordingly, an attachment may be granted, if the peer refuses obedience to the writ; for being a contempt, a peer has no privilege. c
In 1831, Mr. Long Wellesley was committed by Lord Brougham for a contempt of the high court of chancery, and a committee of privileges in the house of commons, held that Mr. Wellesley's claim to be discharged from imprisonment, by reason of privilege of parliament, ought not to be admitted.
In 1837, Mr. Lechmere Charlton was committed by Lord Cottenham for contempt in writing an improper letter to a master in chancery. The house of commons inquired fully into the nature and particulars of the contempt, and then declined to interfere for the member's liberation by virtue of the privilege.
As, since the 10 Geo. 3, c. 50, a person having privilege of parliament may be sued without protection, d so may he, be made bankrupt in the following manner. If any person within the description of the acts relating to bankrupts, having protection of parliament, does not within one calendar month after personal
a 1 Black. Com. 167.
c R. v Earl Ferrers, 1 Burr.
b L. J. 7th Feb. 1757.
d 4 Geo. 3, c. 33, s. 4. 45 Geo. 3, c. 24, s. 1. 6 Geo. 4, c. 16.
service of a summons, (an affidavit of debt having been filed by the creditor,) pay or secure, or compound for such debt, to the creditor's satisfaction, or enter into a bond in such sum, and with two such sufficient sureties, as any of the judges of the court out of which the summons issued shall approve, or does not within one calendar month next after personal service of such summons, cause an appearance to be entered to such action or actions in the proper court, every such trader is to be adjudged d a bankrupt from the service of such summons. And by section 11, if any such trader disobeys any decree pronounced in any cause depending in any court of equity, or any order made in bankruptcy or lunacy against any such trader for the payment of money, the same having been duly served upon him, and a peremptory day fixed for such payment, such trader is to be deemed a bankrupt from the service of such order for peremptory payment.
If a bankrupt be a member of parliament, the commissioners cannot commit him for not attending, or not answering; he can only be imprisoned in such cases as are made felony by the acts relating to bankrupts. But a member of parliament, who is become a bankrupt, vacates his seat, a unless the commission is superseded within twelve months from its being issued, or the creditors are paid their debts in full within the same period; and is disqualified for sitting in the interim.'
It is a sufficient objection a to bail, that he hath privilege of parliament, whereby the plaintiff may be delayed in obtaining payment from him.
The extent, then, of the privilege last under consideration, may now be regarded as sufficiently ascertained and fixed. It may be generally laid down, that no member of either house can be arrested and taken into custody, or detained in custody, unless for some indictable offence. In a civil suit, a peer or member cannot be arrested, or imprisoned, without a breach of the privileges of parliament, which either house, upon the report of the committee, will upon good reason punish by commitment. But how, it is material to learn, is a party to be delivered out of
custody when arrested
b 52 Geo. 3, c. 144.
a 6 Geo. 4, c. 16, s. 11.
c 4 Taunt. 249.
NOTE 1.Quære. What might be the effect upon a New York legislature if this is the common law of that state?