LAW AND PRACTICE OF LEGISLATIVE ASSEMBLIES. PART THIRD. OF THE PRIVILEGES AND INCIDENTAL POWERS OF A LEGISLATIVE ASSEMBLY. 528. THE several subjects, embraced and treated of in this part of the work, may properly be considered under the following heads, namely:- I. Of the General Nature of the Privileges and Incidental Powers of a Legislative Assembly; II. Of the Personal Privileges of the Members; III. Of the Collective or Aggregate Privileges of the Assembly; IV. Of the Incidental Powers of a Legislative Assembly. CHAPTER FIRST. OF THE GENERAL NATURE OF THE PRIVILEGES AND INCIDENTAL POWERS OF A LEGISLATIVE ASSEMBLY. 529. The functions of a legislative assembly can only be exercised, when the members are assembled together, as a legislative body, that is, as a collective and representative body of the whole people, at the time and place, appointed and established for the purpose of such meeting; but singly or separately, or at any other time or place, the members have no legislative power or authority whatever. It is essential, therefore, in order to enable the members to assemble themselves, and to remain together, for the purposes for which they are constituted, that they should not be prevented or withdrawn from their attendance, by any causes of a less important character; but, that for a certain time, at least, they should be excused from obeying any other call, not so immediately necessary for the great services of the nation; and hence it has always been admitted, that the members of a legislative assembly, during their service and attendance, as such, were entitled to be exempted from several duties, and not considered as liable to some legal processes, to which other citizens were by law obliged to pay obedience.2 530. It is not enough, however, to secure the free attendance of the members merely; they must always be protected in the free enjoyment of the rights of speech, debate, and determination, in reference to all subjects upon which they may be rightfully called to deliberate and act; and, hence, it is established as a general principle of parliamentary law, that no member of a legislative assembly can be questioned or punished by any other court or authority, but only by the assembly itself of which he is a member, for any thing said or done by him in that capacity. 3 531. The rights and immunities alluded to in the foregoing paragraphs belong principally to the individual members, and only secondarily and indirectly to the assembly itself; but there are also other legislative rights and immunities, equally essential to enable the assembly to perform the functions with which it is invested, which, being directed rather to the maintenance of its collective authority than to the security of the individual members, may be properly said to belong primarily to the assembly itself, and only secondarily and by relation to the members of which it is composed.1 532. All these rights and immunities, both of the members, individually, and of the assembly in its collective capacity, are known by the general name of privileges; and when they are disregarded by any individual or authority, whose duty it is to take notice of 1 Whitelocke, II. 192; Mass. Reports, II. 27. 2" When you violate the privilege of one member of this house, you do it to the whole house." Grey, III. 58. By Mr. Speaker. 3 Hatsell, I. 2. 4 The personal privileges cannot be waived. by the members themselves, without the consent of the assembly. Dwarris, I. 103; D'Ewes, 436; Fortam v. Lord Rokeby, Taunton's Reports, IV. 668; Taunt. Rep. VII. 172. and observe them, or when they are directly attacked in any way, or, in general, when any impediment or obstruction is interposed to the free proceeding of a legislative assembly or its members, the offence is denominated a breach of privilege. 533. The privileges of a legislative assembly would be entirely ineffectual to enable it to discharge its functions, if it had no power to punish offenders, to impose disciplinary regulations upon its members, or to enforce obedience to its commands. These powers are so essential to the authority of a legislative assembly, that it cannot well exist without them; and they are consequently entitled to be regarded as belonging to every such assembly as a necessary incident. The privileges and the powers of a legislative assembly are therefore so far connected together that the latter are the necessary complement of the former. 534. The privileges and powers which were claimed and exercised in ancient times by the two houses of the British parliament, embraced a wide extent of jurisdiction, legislative, judicial, and administrative, and were to a considerable extent vague, indefinite, and anomalous. Their nature and extent formed a fruitful and frequent subject of inquiry, and gave rise to numerous controversies, sometimes between the two houses themselves, and sometimes between them or one of them, on the one hand, and the king, or some of the courts on the other. In consequence of these controversies, the privileges and powers of parliament have gradually assumed a more distinct form and become more definite in their object; so that in modern times, those only remain which are essential to enable each branch to perform its appropriate constitutional functions; and these are now as well recognized and established, and as accurately defined, partly by usage, partly by law, and partly by the admission of coördinate authorities, as are any of the rules and principles of the common law. 535. During the reigns of George I. and II. and for some time afterwards, it appears to have been the established principle, that any illegal or wrongfully injurious act, which subjected a member to any inconvenience, or had a tendency to divert his mind or his attention from his parliamentary duties, was a breach of privilege and punishable as such. Thus, there is a great number of cases of complaints in the house of commons for breaches of privilege which were nothing more than trespasses upon the real or personal estates of members, and in no way affected their persons. Some of these complaints are sufficiently curious. One member complained, that several men, who were at work upon his tenant's land had been turned out; another that several persons had taken and carried away timber-trees, and quantities of fagots belonging to him; another that several persons had dug quantities of lead ore out of his mines; another, that a person had made a forcible entry into and a lease of part of his estate; another, that several persons had broken open his gate, and drove a great number of waggons over his field; another, that several persons had killed a great number of his rabbits. In these cases, after the offending parties had been sent for in custody, further proceedings were usually stayed, on the house being informed that the party had made satisfaction. It was with such precedents as these before him, that Blackstone lays down the doctrine of the large and indefinite nature of privilege. "Privilege of parliament was principally established, in order to protect its members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown. If therefore 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. The dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges indefinite." This doctrine went upon the ground, that the house of commons by a declaratory resolution, operating retrospectively, could make any thing a breach of privilege, which it might think fit to bring within its jurisdiction. This right, lately, if not now claimed in theory, appears to be abandoned in practice.1 536. In both branches of the British parliament, the privileges of the members are doubtless founded in the same general reason, namely, the necessity of their existence to enable a legislative body to perform its appropriate functions; but in the house of commons a custom has prevailed from a very early period, which seems also to imply the necessity of a special grant from the king, at the commencement of every new parliament. When the house of commons first assembles after a general election, the speaker elect, on being presented to the king, in the house of lords, and confirmed, makes a claim, on behalf of the commons, of their ancient privileges, which are thereupon recognized and allowed by the king. The origin of this practice, or the reason of it, cannot now be ascer 1 May, 108; see also Thorpe's Case, Comm. Jour. X. 402. |