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Law Magazine and Law Review:
QUARTERLY JOURNAL OF JURISPRUDENCE.
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 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. NO. 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