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Vice-Admiralty Court for Lower O-anada.—Sha1'key's
Conveyancing.--Pulling on Private Bill Legislati0n...... 43-l
Privileges of Parliament.—The Tenure of Real Property in the Island
of Guernsey.—Costs in the Probate Court.-Shakespeare in the
Queen‘s Bench.—Mr. Locke King's Intestacy Bill.—-The Library
of the Middle Temp1e.—Principles and Law of Banking.—Judi~
cial Anticipation.-The Failure and Fate of the Statute Law
Commissi0n.—Taylor on P0isons.—The Divorce Court.-—Bank-
ruptcy Law Reform.-—Lord Murray.-Recent Attacks on Titles
to Real Property.-Conservative Landed Estates Bil1s.—Lea.ding
ART. I.—A Practical T realise on the Law, Privileges, Proceedings,
THE High Court of Parliament hath its own peculiar'law-the lew et consuetudo parliamenti—as we are told by one of the highest authorities on English jurisprudence. The lea: et consuetudo is part of the unwritten law of the land, to “ be collected out of the Rolls of Parliament and other records, and by precedents and continued experience.” Now, a maxim of common law is proved by shewing “that it hath always been the custom to observe it,” and the decisions of courts of justice are “the evidence of what is common law.” Hence the constant declaration, by the High Court of Parliament, of a privilege belonging thereto, is evidence of its existence. Notwithstanding that such constitutional doctrines as the above occur in the early reading of the student of Blackstone, and are indeed very elementary in their nature; nevertheless, questions as to the privileges of Parliament have been the cause of much difliculty and dispute, nay, of no
little danger, and they may yet, peradventure, be productive of VOL. VII. so. xm. B
much more. The power of commitment being the natural and unquestioned support of parliamentary privilege, the aid and protection of an ordinary court of law are as naturally invoked by the person deprived of liberty at the hands of parliament; and thus collision between the august bodies is risked.
In the chapter on the Jurisdiction of Courts of Law in matters of privilege, at the close of his first book, Mr. May has some sensible remarks upon the unsatisfactory relations produced through the assertion of its privileges by parliament on the one hand, and the exercise of their jurisdiction by the ordinary courts of law on the other : — l
“It is to be hoped,” says he, “that further contests may be very remote; but it must be acknowledged that the present position of privilege is, in the highest degree, unsatisfactory. Assertions of privilege are made in parliament and denied in the courts; the officers Wl1O execute the orders of parliament are liable to vexatious actions; and, if verdicts are obtained against them, the damages and costs are paid by the Treasury. The parties who bring such actions, instead of being prevented from proceeding with them by some legal process acknowledged by the courts, can only be coerced by an unpopular exercise of privilege, which does not stay the actions. If parliament were to act strictly upon its own declarations, it would be forced to commit, not only the parties, but their counsel and their attorneys, the judges, and the sheriffs; and so great would be the injustice of punishing the public officers of justice for administering the law according to their consciences and oaths, that parliament would shrink from so violent an exertion of privilege. And. again the intermediate course adopted in the case of Stockdale 2:. Hansard, of coercing the sheriff for executing the judgment of the court, and allowing the judges who gave the obnoxious judgment to pass without censure, is inconsistent in principle, and betrays hesitation on the part of the House, distrust of its own authority, or fear of public opinion.
“A remedy has already been applied to actions connected with the printing of parliamentary papers; and a we1l—considercd statute founded upon the same principle, is the only mode by which collisions between parliament and the courts ‘of law can be prevented for the future.” The author having here pointed out the anomalies and provocation to conflict, then proceeds to throw out a sensible suggestion to ensure the practical decision of questions of privilege when they arise between parliament and the courts of law. He proposes that there should be devised some proceeding analogous to an injunction or prohibition, to restrain parties from carrying on an action at common law, or taking other steps which are in derogation of the privileges of parliament, and that this prohibition should be made binding also on the courts.
The first question which arises is, what is the “privilege ” in question? The dignity and independence of the two Houses are, “in great measure, preserved by keeping their privilege indefinite,” says Blackstone (Com., vol. i. 164), and he assigns for a reason, that if all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy “for the executive power to devise some new case, not within the line of privilege, and, under pretence thereof, to harass any refractory member, and violate the freedom of parliament!” But this is not very satisfactory reasoning. For, whilst most of the collisions between the parliament and private persons have arisen from this indefiniteness admired by the commentator; so, also, the greater danger which has been threatened of late, is not through the powers of parliament being insufficient to protect its members from oppression by the Crown or molestation from other quarters, but rather that the privileges in question may be asserted and extended in violation of the freedom of the people, and the rights of private individuals.
Although, therefore, we cannot acquiesce in B1ackstone’s view of the great advantage derived from the uncertain character of privilege, yet, from its very nature and that of the body to which it is attached,-there probably will be, at various times, as there
have heretoforebeen, cases of doubt and dispute connected with