The persona 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 do not 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 criminal 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 Commons extends to its members lu such cases. Lord Cochrane, having been Indicted and convicted for a conspiracy, was committed to the King's Bench prison. Ile 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 member present, prayers not having been read. The committee of privileges declared that by this proceeding of the marshal of the 1Ciug'a Bench " the privileges of parliament did not appear to have been violated eo 113 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 order of the }louse of Lords, 8th June, 1757, it was declared "that no peer or lord of parliament bath 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 corpses directed to him ;" and iu the case of Earl Ferrero, It was decided that an attachment may be granted if a peer refuses obedience to the writ of habeas corpus. There have been two more recent oases, that of Mr. Long Wellesley In 1831, and that of Mr. Lechmere Charlton hi 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 are always free from arrest; 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 Matters of Privilege.—In connection with the exercise of privilege, an important point of law arises as to the jurisdiction of courts of justice. Each house of parliament is acknowledged to be the judge of its own privileges. Sir Edward Coke affirms, " whatever matter arises concerning eitber house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere." (4 Inst.') But again, in the disputes 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 declara tion to create to themselves new privileges not warranted by the known laws and customs of parliament," which was assented to by the common's. (14 ' Commons' Journals,' 555, 580.) The degree of juris diction to be exercised by the courts, and the proper mode of dealing with actions involving matters of privilege, it would indeed be difficult to determine, after the inconsistencies 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 inquire 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 secundunt !eyes et consuetudinem parliamenti ; and so the judges in divers parliaments 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 may judge of privilege, but not contrary to the judgment of the House of Com mons :" 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 " debate 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 wcro always taken of the question, little difference between parliament and the courts of law would arise. The course would be simple. Whatever action might be brought would be determined in a manner agreeable to the house whose privileges 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 juris dictions which nothing probably but a statute can prevent for the future.
A judgment was obtained against Sir W. Williams, the Speaker of the House of Commons, in the second year of James II., for having caused a paper entitled ' Narrative' to be by order of the house. This the house declared to be " an illegal judgment," and against the freedom of parliament. A bill was also brought in to reverse the judgment, but it miscarried in three different sessions. (10 ' Commons' Journals,' 177, 205.) The denial of the exclusive jurisdiction claimed by the commons In 1704, in respect of the right of elections, as stated above, is another important occasion in which the privilege of the commons has clashed with the judgments of legal tribunals.
The only other case which need be mentioned in this place is that of Stockdale v. Hansard. In this case an action was brought against the printers for a libel published in the papers printed by the order of the house. The litigation was long and intricate. The house passed certain resolutions, declaring that no court of law had power to decide as to their privileges, but the courts did not hold themselves bound by resolutions only. At length a bill was brought in and passed, by which proceedings, criminal or civil, against persons for publication of papers printed by order of either house of parliament, are to be stayed by the courts, upon delivery of the certificate and affidavit to the effect that such publication is by order of parliament.