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in a civil suit, supposing the parliament not to be sitting, or to be dissolved? In what manner can courts of justice take cognizance of privilege of parliament? For it has been seen, a that when a letter was written by the speaker to the judges, to stay proceedings against a privileged person, they rejected it as contrary to their oath of office. These objects were formally affected in two ways; 1st, the discharge of such privileged b person might be procured by writ of privilege, in a nature of a supersedeas; 2d, such arrest being irregular ab initio, c the party can be discharged upon motion;d he may move the court from which the process issued, that he may be discharged immediately.

Writs of privilege are now discontinued. When the house is sitting, members are discharged directly by warrant. In 1819, Mr. Christie Burton had been elected member for Beverly, but being in custody in execution and on mesne process, was unable to attend his service in parliament. The house determined that he was entitled to privilege, and ordered him to be discharged out of the custody of the warden of the fleet. An action was brought against the warden by the assignees of the creditors of Mr. Burton, on his escape. The assignees were declared guilty of a breach of privilege, and ordered to attend the house. They acknowledged their offence and the matter was dropped.

The extent of this privilege of parliament, and the mode of procuring the liberation of parties improperly arrested -points which were found so embarrassing in the greater part of the cases referred to being thus established, the next question affecting this privilege is its duration. In the case of peers, the privilege is perpetual; but as to members,-where the privilege is that of parliament, its duration, the reader will be surprised to learn, is no where precisely e determined. It certainly is the received opinion, that it extends to forty days after every prorogation, and forty days before the next appointed meeting; and, after a dissolution, to a reasonable time to return home."

Privilege of parliament cannot be waived, "because it is said, the privilege is not so much that of the personƒ as of the house." b Latch. 150. Dyer 60. a

a Hodges v. Moore, ante. c Fort. 342. d Pitt's case, 2 Stra. 985. e Strange, 985. f D'Ew. Jaurn. 436. Scobell, 95. NOTE 2.-In this particular, New York differs from England, in having a statute fixing the limit of privilege.

The speaker charges a person brought to the bar for an offence, with breach of the privilege, "of the house."

The privileges enjoyed by individual members, and which are essential to their regular attendance on parliament and to the independent discharge of their duties in the house, were, on that account, brought prominently forward in the speaker's prayer; but it will now be proper to treat generally of the collective privileges of the two houses, or rather of the high court of parliament. These can be best, and indeed only, ascertained, by examining what have been, on various occasions, declared breaches of the privileges of either house.

Such are among others, indignities to the character, or obstructions to the proceedings of either house; assaulting, obstructing, insulting or menacing any member in his coming to or going from the house; so, the endeavor to compel members by force, to declare themselves in favor of or against, any proposition.

Challenging a member for his conduct in the house or in a committee. Libellous reflections against the honor and dignity of the house in general, or any member thereof. These, and similar offences, have been voted breaches of privilege and punished accordingly, whether committed by members or strangers. a

And first in the case of members: In 1675, Lord Shaftesbury, who had been committed by the house of lords for high contempt against the house, was brought before the court of queen's bench by habeas corpus, and the commitment for a contempt generally, being returned, the prisoner was remanded. In 1586, Arthur Hall, a member of the House of Commons, was imprisoned, ex. pelled and fined; the latter a power not acknowledged, an} which the house has not since been in the habit of exercising. Hall's offence was having published a libel, “containing matter of infamy, of sundry particular members and of the whole state of the house, and also of the power and authority of the house." In 1810, Sir Francis Burdett, was sent to the tower for publishing "a libelous and scandalous paper reflecting upon the just privileges of the house." In Hobhouse's case, in the year 1819, the house of commons having voted the defendant

a See cases cited in the appendix to the second report on Sir F. Burdett, in 1810; and the head of "Complaints" in the several Journal Indexes.

guilty of a breach of their privileges, for publishing a libel upon the house, and having ordered him to be committed to Newgate during their pleasure, and the speaker's warrant being returned into the court of King's bench upon a habeas corpus sued out by the defendant, the court refused to discharge him out of custody. In the case of defendants, not members of either house, the following are selected instances: In 1779, Flower was fined and committed for a libel on the bishop of Llandaff. In 1798, Messrs. Lambert and Perry were fined £50 each, and committed to Newgate for three months, for a newspaper paragraph, highly reflecting on the honor of the house of lords. b On the 22d June, 1781, complaint was made that Sir J. Wrottesley had received a challenge for his conduct as a member of an election committee; and Swift, the person complained of, was committed to the custody of the serjeant-at-arms.c

Besides insults and obstructions to the house and its proceedings, disobedience to the rules and orders of either house is treated as a breach of privilege. The house will punish those who refuse compliance with their orders, or obstruct their execution. And that, whether the orders be general; as that d "no printer or publisher of any printed newspaper do presume to insert in any newspaper, any debates or other proceedings of the house;" or particular; such as orders relating to "attendance before committees;" "the production of papers and records, &c."

Another offence against the collective privileges of the house, is the corruption or hindrance of witnesses summoned to attend or appear before it. e

Anciently no person was to be taken into the custody of the serjeant-at-arms, upon any complaint of a breach of privilege, until the matter of the complaint had been examined by the committee of privileges, and reported to the house.f Now, although the committee of privileges is still formally appointed at the commencement of each session, no members are nominated. If, therefore, any special circumstances arise out of a complaint of breach a p. 137, ante.

c Com. J. 535-537.

b Lords J. 506.

d 20 Com. J. 99.

e See Synthetical Table of the proceedings of the house of commons, framed oy Lord Colchester, and prefixed to the Index of the Commons' Journal.

f Resolution, 1701.

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of privilege, it is usual to appoint a select committee to inquire into them. In ordinary cases the party complained of is "ordered to attend the house," and is examined at the bar.

Both houses proceed in the same manner to declare the party guilty of a breach of privilege, amounting to a contempt of the high court of parliament, for which they deal with him by censure or commitment; to which the lords can add a fine.

For there is a difference in the punishments inflicted by the lords and commons. The house of lords claim to be a court of record, because it is such unquestionably, when it acts in its judicial capacity. It therefore not only imprisons, but also imposes fines; and formerly in cases of libel, (when disgracefully severe punishments used to be awarded); often added the pillory.

The lords have also power to commit offenders to prison for a specified time, beyond the duration of the session; and to order security for good behavior.

The house of commons, which is not a court of record, has tacitly abandoned the imposition of fines, but imposes the condition of the payment of fees before an offender is discharged, which is equally part of his punishment, and virtually amounts to a fine No period of imprisonment is named by the commons, and the confinement terminates with the session.

In Floyd's case, who had spoken offensive words of the king's daughter and the Elector Palatine, temp. Jac. I., the house of commons set up an unfounded claim to criminal jurisdiction; for it was impossible to make such mere indecencies of language, amount to a breach of privilege. Acting as a court of judicature, they pronounce sentence that Floyd, a gentleman by birth and station, and a country magistrate, should pay a fine of £1000, stand twice in the pillory, and ride backward on a horse with the horse's tail in his hand. a They, however afterwards discovered their error, and changed the course of proceeding b into an impeachment of Floyd before the lords; with an ambiguous and unmeaning protestation as to the rights and privileges of the com mons remaining in the same plight as before. The lords, it is said equally disgraced themselves in this case. e

a 1 Com. J. 609. 5 Parl. Hist.

c 3 Lords J. 134.

b Ib. 619.

Instead of "kneeling at the bar," to receive his sentence which was formally required, but not always complied with; the judgment of the house is now received by a prisoner standing at the bar. a

Having treated of the punishments inflicted by either house of parliament, for obstructions or contempts, or disobedience to orders, it remains to speak of the protection afforded to their own officers, to parties, witnesses and others.

The officers of either house, are supported by the house in the execution of their orders. As the officers of the courts of justice, charged with the execution of the process of the courts, may break open doors, if necessary, in order to execute it; so, Lord Ellenborough said, it cannot be contended that the houses of the legislature, are less strongly armed in point of protection and remedy against contempts toward them, than the courts of justice are. b

But by a recent case, the serjeant-at-arms, though he has a right to enter the house of the person against whom a warrant has been issued by the speaker and to search for the party, had no right to remain in the house, if the defendant be from home, in order to await his return; for that is an excess of jurisdiction. c

Another action was subsequently brought by the same plaintiff against the same defendant, and a messenger of his, for another trespass in executing a warrant of the speaker. The warrant was so drawn as to make it legally doubtful, and three of the judges felt themselves compelled to pronounce it illegal. All the judges agreed that they were bound to examine into its sufficiency; one held that it was sufficient. The house of commons in this case directed a discussion of this point in a court of error, but the point involved is of secondary importance.

We have already said that we have not with us in America as there is in England, one uniform common law of parliament and of privilege applicable alike to the congress of the United States, and to the several states of the Union; but, that great diversity exists between the privileges of members of congress, and that of the several states; and that parliamentary law and the law of legislative privileges of the several states, differ from each other;

b 14 East, 1.

a 33 Com. J. 594.

e Carrington and M. 382. 11 Adol. & El. 209.

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