The persons of members are still free from arrest or imprisonment in civil actions, but their property is as liable to the legal claims of all other persons as that of any private individual. Their servants no longer enjoy any privilege or immunity whatever.
The privilege of freedom from arrest has always been subject to the exception of cases of " treason, felony, and surety of the peace;" and though in other en minal charges each house may, if it see fit, prevent the abstraction of a member from his parliamentary duties, the case of Lord Cochrane, in 1815, will show how little protection the house of com mons extends to its members in such cases. Lord Cochrane, having been in dicted and convicted for a conspiracy, was committed to the King's Bench prison. He afterwards escaped, and was arrested by the marshal while sitting on the privy counsellor's bench in the house of commons, on the right hand of the chair, at which time there was no mem ber present, prayers not having been read. The committee of privileges declared that by this proceeding of the marshal of the King's Bench "the privileges of parlia ment did not appear to have been vio lated so as to call for the interposition of the house." Courts of justice have committed privileged persons for contempt, and parliament has refused to protect them. By a standing oider of the house of lords, 8th June, 1757, it was declared " that no peer or lord of parliament hath privilege of peerage or of parliament against being compelled by process of the courts of Westminster-hall to pay obedience to a writ of habeas corpus directed to him ;" and in the case of Earl Ferrers, it was decided that an attach ment may be granted if a peer refuses obedience to the writ of habeas corpus. There have been two recent cases, that of Mr. Long Wellesley in 1831, and that of Mr. Lechmere Charlton in 1837, in which members committed by the lord Chancellor for contempt have laid claims to privilege, which were not admitted by the house of commons.
Peers and lords of parliament are always free from arrest on civil process; and as regards the commons, their privilege is supposed to exist for 40 days after every prorogation and 40 days before the next appointed meeting.
Jurisdiction of Courts of Law in Mat ters of Privilege.-.-In connection with the exercise of privilege, an important point of law arises as to the jurisdiction of courts of justice. It is one of great in terest and still greater doubt at the pre sent moment, and has at various times been the occasion of much dispute and diffi culty. Each house of parliament is acknowledged to be the judge of its own privileges. Sir Edward Coke affirms, " whatever matter arises concerning either house of parliament, ought to be ex amined, discussed, and adjudged in that house to which it relates, and not else where." (4 Inst.) But again, in the dis
putes in the case of the Aylesbury men, which has been already referred to, the lords communicated to the commons at a conference a resolution, "that neither house of parliament have power by any vote or declaration to create to them selves new privileges not warranted by the known laws and customs of parlia ment," which was assented to by the commons. (14 Commons' Journals, 555, 560.) The degree of jurisdiction to be exercised by the courts and the pro per mode of dealing with actions involv ing matters of privilege, it would indeed be difficult to determine, after the incon sistencies which have been shown in practice and the great variety of opinions expressed by learned men. No more than a concise statement of a few cases will be needed to show the difficulties in which the question is involved.
First, as to the right of courts to in quire into the existence and nature of privileges claimed by either House of Parliament. Coke lays it down that " judges ought not to give any opinion of a matter of parliament, because it is not to be decided by the common laws, but secundum leges et consuetudinem parities menti; and so the judges in divers par liaments have confessed." (4 Inst., 15.) When Paty, one of the Aylesbury men, was brought before the Queen's Bench on a writ of habeas corpus, Mr. Justice Powell said "this court mayjudge of privilege, but not contrary to the judg ment of the House of Commons ;" and again, "this court judges of privilege only incidentally : for when an action is brought in this court, it must be given one way or other." (2 Lord Raymond, 1105.) The opinions of other judges to the same effect, expressed at different times, might also be given. The words contained in the Bill of Rights, that the " debates and proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament," are generally relied upon in confirmation of this doctrine. If this view were al ways taken of the question, little differ ence between parliament and the courts of law would arise. The course would be simple. Whatever action might be brought would be determined in a man ner agreeable to the house whose privi leges were questioned ; and if the lords, in case of appeal, were to abide by the same rule, there would be no dissensions. But as such unanimity of opinion has not always existed, there has been a clashing of jurisdictions which nothing probably but a statute can prevent for the future.