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Art. I.- A Practical Treatise on the Law, Privileges, Proceedings,
and Usages of Parliament. By THOMAS ERSKINE MAY, Esq. Fourth Edition. London: Butterworths, 1859.
HE The High Court of Parliament hath its own peculiar law –
the lex et consuetudo parliamenti—as we are told by one of the highest authorities on English jurisprudence. The lex 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 difficulty and dispute, nay, of no little danger, and they may yet, peradventure, be productive of
VOL. VII, XO. XIII.
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 :
“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 who 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 v. 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 well-considered
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 step3 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 Blackstone'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 heretofore been, cases of doubt and dispute connected with
the operation of the lex et consuetudo, and this renders it essential that a means of settling them should be fixed.
There are two matters of courtesy rather than privilege, which, being undoubted and comprehensible, we may here refer to, before we investigate any question relating to privilege. The first is freedom of access to the sovereign. By this right individual members of the House of Commons may accompany the Speaker when he approaches the throne with an address; and, moreover, they may effect entrance to the presence of royalty in the ordinary costume of gentlemen, instead of that of their footmen. The second is, that their proceedings may receive “a favourable construction" from the Crown; a concession, we may add (without, we hope, incurring the penalties of contempt), of great value, considering the vast blunders fallen into, the amount of precious time wasted, and the party spirit exhibited on many occasions by the august legislative assembly.
Passing from these matters of courtesy to what is more properly the privileges of parliament, we find that some of the latter have been defined or confirmed by statute, whilst others rest solely upon law and custom. Thus the freedom of speech, which is an essential privilege, depending upon ancient custom (and one which, we may remark, especially in respect of the quantity, seems to be much prized by certain members of the Houses at the present time), was made a subject of legislation in Henry VIII.'s reign, on occasion of Richard Strode being prosecuted in the Stannary Court for his conduct in the House of Commons, with reference to bills relating to the tinners of Cornwall. The 4 Henry VIII. c. 8, was passed, enacting that all suits, condemnations, &c. &c., “put or had” upon the said Richard, “and to every other of the person or persons that now be of the present parliament, or that of any parliament thereafter, shall be for any bill, speaking, reasoning, &c., of any matters concerning the parliament, utterly void, and of none effect."
In the interval between Strode's act and 1667, the privilege of free speech had nevertheless been often contracted or violated. At this latter period, therefore, the Commons took the oppor