Privilege of witnesses and others.

such contempt," in case such person "shall not be a peer, lord of Parliament, or member of the House of Commons." It must not, therefore, be understood, that either house has waived its right to interfere when members are committed for contempt. Each case is open to consideration, when it arises; and although reluctance would undoubtedly be felt in obstructing the censure of other courts, privilege would still be allowed, if the circumstances of the case appeared to justify it.

As yet the personal privilege of members, and the ancient privilege of their servants, have alone been noticed. These were founded upon the necessity of enabling members freely to attend to their duties in Parliament. Upon the same ground, a similar privilege of freedom from arrest and molestation is attached to all witnesses summoned to attend before either house of Parliament, or parliamentary committees, and to others in personal attendance upon the business of Parliament, in coming, staying, and returning. A few precedents will serve to explain the nature and extent of this privilege.

Instances of protections given by the lords to witnesses and to parties, while their causes or bills were depending, appear very frequently on the Journals of that House.

In 1640, Sir Pierce Crosbie, sworn as a witness in Lord Strafford's cause, being threatened with arrests, was allowed privilege," to protect him during the time that this house examine him;"1 and many similar protections have been granted in later times.2

In 1641, it was ordered that Sir T. Lake, who had a cause depending, should "have liberty to pass in and out unto the house, and to his counsel, solicitor, and attorney, for and during so long time only as his cause shall be before their lordships in agitation;" and similar orders have been made in the case of several other parties,

14 Lords' J. 143, 144.

2 25 Ib. 625. 27 Ib. 19.

4 Lords' J. 262.

who have had causes depending,' or bills before the house.2

On the 12th May 1624, the master and others of the felt-makers were ordered, by the commons, to be enlarged from the custody of the warden of the Fleet, for the prosecution of a bill then depending, " till the same be determined by both houses."" On the 24th May 1626, it was ordered, "that J. Bryers shall be sent for to testify, and to have privilege for coming, staying, and returning." In the same manner, privilege was extended to persons who had bills depending, on the 22d and 29th January 1628, on the 3d May 1701, and the 11th May 1758.5 On the 23d January 1640, certain persons having petitions before the grand committee on Irish affairs, were ordered "to have liberty to come and go freely to prosecute their petition, without molestation, arrest, or restraint; and that there be a stay of committing any waste upon the lands mentioned in the petitions, during the dependency of the business here." Numerous

instances have occurred, in which witnesses, who have been arrested in their way to or from Parliament, or during their attendance there, have been discharged out of custody; and the same protection is extended, not only to parties, but to their counsel and agents, in prosecuting any business in Parliament. On the 2d May 1678, Mr. J. Gardener, solicitor in the cause concerning Lyndsey Level, who had been arrested as he was coming to attend on the house, was discharged from his arrest." On the 9th April 1742, complaint was made, that Mr. Gilbert Douglas, a solicitor for several bills depending in the

House of Commons, had been arrested as he was attending the house; and he was immediately ordered to be discharged from his arrest.1

In the same way, solicitors for bills depending in the house, were discharged from arrest, on the 30th April 1753; on the 12th February, and 22d March, 1756.3

On the 29th March 1756, Mr. Aubrey, who had an estate bill depending in the House of Commons, presented a petition, in which he stated that he apprehended an arrest, and it was ordered, "that the protection of the house be allowed to him during the dependence of his bill in this house." The last case that need be mentioned is that of Mr. Petrie, in 1793. That gentleman was a petitioner in a controverted election, and claimed to sit for the borough of Cricklade. He had received the usual notice to attend, by himself, his counsel, or agents, and had attended the sittings of the election committee as a party in the cause; and although he had a professional agent, he had himself assisted his counsel, and furnished them with instructions before the committee. He was arrested before the committee had closed their inquiries; and on the 20th March the house, after receiving a report of precedents, ordered, nem. con., that he should be discharged out of the custody of the sheriff of Middlesex.5

124 Com. J. 170.

226 Ib. 797.

3 27 Ib. 447. 537.

4 27 Ib. 548.

5 48 Ib. 426.

CHAPTER VI.

JURISDICTION OF COURTS OF LAW IN MATTERS OF

PRIVILEGE.

stated.

THE precise jurisdiction of courts of law in matters of Difficulty of the privilege, is one of the most difficult questions of consti- question. tutional law that has ever arisen. Upon this point the precedents of Parliament are contradictory, the opinions and decisions of judges have differed, and the most learned and experienced men of the present day are not agreed. It would, therefore, be presumptuous to define the jurisdiction of the courts, or the bounds of Parliamentary privilege; but it may not be useless to explain the principles involved in the question; to cite the chief authorities, and to advert to some of the leading cases that have occurred. It has been shown already, that each house of Par- Principles liament claims to be the sole and exclusive judge of its own privileges, and that the courts have repeatedly acknowledged the right of both houses to declare what is a breach of privilege, and to commit the parties offending, as for a contempt. But, although the courts will neither interfere with Parliament in its punishment of offenders, nor assume the general right of declaring and limiting the privileges of Parliament, they are bound to administer the law of the land, and to adjudicate when breaches of that law are complained of. The jurisdiction of Parliament and the jurisdiction of the courts are thus liable to be brought into conflict. The House of Lords, or the House of Commons, may declare a particular act to have been justified by their order, and to be in accordance with the law of Parliament; while the courts may acknowledge no right to exist in one house, to supersede by its sole authority

the laws which have been made by the assent, or which exist with the acquiescence, of all the branches of the legislature. It is true, that, in a general sense, the law of Parliament is the law of the land; but if one law should appear to clash with the other, how are they to be reconciled? Is the declaration of one component part of Parliament to be conclusive as to the law; or are the legality of the declaration, and the jurisdiction of the house, to be measured by the general law of the land? In these questions are comprised all the difficulties attendant upon the clashing jurisdictions of Parliament and of the courts of law.

It is contended, on the one hand, that in determining matters of privilege, the courts are to act ministerially rather than judicially, and to adjudicate in accordance with the law of Parliament as declared by either house; while, on the other, it is maintained that although the declaration of either house of Parliament in matters of privilege within its own immediate jurisdiction may not be questioned; its orders and authority cannot extend beyond its jurisdiction, and influence the decision of the courts in the trial of causes legally brought before them. From these opposite views it naturally follows that, in declaring its privileges, Parliament may assume to define its own jurisdiction, and that the courts may have occasion to question and confine its limits.

The claim of each house of Parliament to be the sole and exclusive judge of its own privileges has always been asserted in Parliament upon the principles and with the limitations which were stated in the third chapter of this book, and is the basis of the law of Parliament. This claim has been questioned in the courts of law; but before the particular cases are cited, it will be advisable to take a general view of the legal anthorities which are favourable or adverse to the claim, in its fullest extent, as asserted by Parliament.

See p. 48.