Of Of the Privileges of Peers and Members of Parliament. privileges of peers of Great Britain, except the right and privilege of fitting in the House of Lords, and the privileges depending thereon. Now, as every privilege, claimed by a peer, folely depends, and is in confequence of his fitting in parliament, that is, being an actual lord of parliament, it seems, that the allowing all the Scotch peers the privilege from arrests, is not within the words of the act of union, the only law under which the Scotch peers to this day, can claim any privilege here at all. A peerefs by birth, is entitled to privilege. 2 Inft. 50. Stili. 222, 234, 252. Fort. 162. Vent. 298. Eq. Caf. Abr. 349: Co. Lit. 16. a. 6 Rep. 53. b. Dy. 79. pl. 51. Order of the House of Peers, 21 Feb. 1692. But it was doubted, whether a peerefs by patent only for life, is entitled to this privilege. Styl. 234, 252. Held that she is not entitled, Sty. 254. but adjourned. A peerefs by marriage, is entitled to privilege, and that as well during the coverture, as after: But as a peeress by marriage lofes the dignity by marrying a commoner, after fuch marriage fhe is not entitled to any privilege. Co. Lit. 16. 6 Co. 53. Dyer 79. In lord Banbury's cafe, it was holden by Holt ch. just. that where a perfon is called by writ to the House of Peers, he is no peer till he fits in parliament, the writ giving him no nobility or honour; but that it was fitting in the Houfe of Lords, and affociating with them, that ennobled his blood; and that therefore, if the king or he dies before the parliament meets, the writ is determined, and the party remains a commoner: but he held it otherwise in a creation by letters patent, by which the party is immediately noble without any other act or ceremony; and though the parliament never meets, or the king dies, the nobility remains to him and his pofterity, according to the limitations in the patent. Formerly, the privilege from arrefts extended to the fervants of peers; and was alfo claimed by their tenants in old times. And the horses, &c. of peers, and other goods, were privileged from diftreffes: but thefe privileges have been taken away, as will be fhewn hereafter. Note, The privilege of parliament does not extend to high treason, felony, breach of the peace, or furety of the peace. 4 Inftit. 25. 2 Hawk. P. C. 424. By Of the privileges of Peers and Members of Parliament. By 12 & 13 W. 3. c. 3. An act for preventing any inconveniences that may happen by privilege of parliament, it is enacted, "That any perfon or perfons may commence or profecute any action or fuit, in any of his majesty's courts of record, at Westminster, &c. against any peer of the realm, or lord of parliament; or against any of the knights, citizens, and burgeffes of the House of Commons, for the time being; or against their or any of their menial, or other fervants, or any other perfon entitled to the privilege of parliament, at any time from and immediately after the diffolution or prorogation of any parliament, until a new parliament fhall meet, or the fame be re-affembled; and from and immediately after any adjournment of both houfes of parliament, for above the space of fourteen days, until both houfes fhall meet or re-affemble: And that the faid respective courts fhall and may, after fuch diffolution, prorogation, or adjournment as aforefaid, proceed to give judgment, and to make final orders, decrees, and fentences, and award execution thereupon; any privilege to the contrary, &c." Provided, "That this act fhall not extend to fubject the perfon of any of the knights, citizens, and burgeffes of the Houfe of Commons, or any other perfon entitled to the privilege of parliament, to be arrested during the time of privilege. Nevertheless, if any perfon or perfons, having caufe of action or complaint against any peer of this realm, or lord of parliament, fuch person or persons, after any diffolution, prorogation, or adjournment as aforefaid; or before any feffion of parliament, or meeting of both houses as aforesaid, may have fuch procefs cut of his majesty's courts of King's Bench, Common Pleas, and Exchequer, against fuch peer or lord of parliament, as he or they might have had against him, out of the time of privilege. And if any perfon or perfons, having caufe of action against any of the faid knights, citizens, or burgeffes, or any other perfon entitled to the privilege of parliament, after any diffolution, prorogation, or adjournment as aforefaid; or before any feffions of parliament, or meeting of both houfes as aforefaid, fuch perfon or perfons, may profecute fuch knight, citizen, or burgess, or cther perfon entitled to the privilege of parliament, in his majefty's courts of King's Bench, Common Pleas, or Exchequer, by fummons and diftrefs in finite, Of the Privileges of Peers and Members of Parliament. finite, or by original bill, and fummons, attachment and diftrefs infinite thereupon, to be iffued out of any of the faid courts of record, which the faid refpective courts are hereby empowered to iffue against them, or any of them, until he or they fhall enter a common appearance, or file common bail to the plaintiff's action, according to the course of each respective court. And any perfon or perfons, having caufe of fuit or complaint, may, in the times aforefaid, exhibit any bill or complaint, against any peer of this realm, or lord of parliament; or against any of the faid knights, citizens, or burgeffes, or other perfon entitled to the privilege of parliament, in the high court of Chancery, court of Exchequer, or duchy court of Lancaster, and may proceed thereon, by letter or fubpoena, as is ufual, &c. But not to arreft the body of any knight, &c." By fect. 3. "That where any plaintiff fhall, by reafon or occafion of any privilege of parliament, be stayed or prevented from profecuting any fuit by him commenced, fuch plaintiff fhall not be barred by any ftatute of limitation, or nonfuited, difmiffed, or his fuit difcontinued, for want of profecution of the fuit by him begun; but shall, from time to time, upon the rising of the parliament, be at liberty to proceed to judgment and execution." By fect. 4. "No action, fuit, &c. commenced against the king's original and immediate debtor for the recovery of any debt, &c. to the crown, fhall be ftayed or delayed by or under the colour or pretence of any privilege of parliament;" yet fo nevertheless, "that the perfon or perfons, of any fuch debtor or accountant, or perfon anfwerable or liable to account, being a peer of this realm, or lord of parliament, fhall not be liable to be arrested or imprifoned, by or upon any fuch fuit, order, &c. or being a member of the House of Commons, fhall not, during the continuance of the privilege of parliament, be arrested or imprifoned by or upon any fuch order, decree, judgment, process, or proceedings." By the 23 of Anne, c. 18. An act for the further ex-" planation and regulation of privilege of parliament, in relation to perfons in publick offices, it is enacted, "That any action or fuit may be commenced or profecuted againft any officer or perfon entrusted or employed in the revenue, c. for any forfeiture, mifdemeanour, or breach of truft, &c. and fhall not be ftayed or delayed by or under colour VOL. II. K or Of the Privileges of Peers and Members of Parliament. or pretence of any privilege of parliament, although fuch officer or perfon be a peer of the realm, or lord of parliament, or one of the knight's, &c." Provided, "that nothing therein fhall extend to subject the person of such officer, being a peer of the realm, or lord of parliament, to be arrested or imprisoned: but that all procefs fhall iffue againft fuch officer or perfon, being a peer of the realm, or lord of parliament, as fhould have iffued against him out of the time of privilege: nor fhall extend to the perfon of fuch officer, being a knight, citizen, or burgess of the House of Commons, to be arrested or imprifoned, during the time of privilege of parliament; and that against fuch officer or other perfon, being a knight, citizen, or burgefs of the Houfe of Commons, entitled to privilege, fhall be iffued fummons and diftreffes infinite ; which the faid refpective courts are hereby empowered to iffue in fuch cafe, until the party fhall appear upon fuch procefs, according to the course of fuch refpective courts." The act of 12 & 13 W. 3. c. 3. reftraining only the privilege of parliament, in actions or fuits commenced in the courts therein fpecified, by the 11 Geo. 2. c. 24. in amendment of the act of king William, it is enacted, "That any perfon and perfons fhall and may commence and profecute, in Great Britain or Ireland, any action or fuit in any court of Record, or court of Equity, or court of Admiralty; and in all causes matrimonial and teftamentary, in any court having cognizance of caufes matrimonial and teftamentary, against any peer or lord of parliament of Great Britain; or against any of the knights, citizens, and burgeffes of the House of Commons of Great Britain, for the time being, or against them and any of their menial and other fervants, or any other perfon entitled to the privilege of the parliament of Great Britain, at any time from, and immediately after the diffolution or prorogation of any parliament, until a new parliament fhall meet, or the fame be reaffembled; and from and immediately after any adjournment of both houses of parliament, for above the space of fourteen days, until both houfes fhall meet or re-affemble; and the faid refpective courts may proceed, &c. Provided, "That the faid act shall not extend to fubject the perfon of any knight, &c. to be arrefted during the time of privilege. And fect. 2. authorizes proceed Of the Privileges of Peers and Members of Parliament. ing as above in any of the courts of great feffions in Wales, courts of feffion in the counties palatine of Chester, Lancaster, and Durham; the courts of King's Bench, Common Pleas, and Exchequer, in Ireland, after any fuch diffolution, &c. And, the court of Chancery in Ireland, and equity of Exchequer, are authorized to proceed in like manner as the court of Chancery, and equity court of Exchequer in England may, against any peer, knight, &c. after fuch diffolution, &c." Sect. 3. faves the ftatute of limitations in like manner as the act of king William. And by fect. 4. No action or fuit commenced against the king's debtor, &c. to be ftayed in any court in England or Ireland [as by fect. 4. in the act of king William]. And laftly, by the ftat. 10 Geo. 3. c. 50. The preamble of which ftates, that the acts already in being are infufficient to obviate the inconveniences arifing from delay of fuits, by reafon of the privilege of parliament, it is enacted, "That any perfon or perfons fhall and may, at any time, commence and profecute any action or fuit, in any court of Record, or court of Equity, or of Admiralty; and in all caufes matrimonial and teftamentary, in any court having cognizance of causes matrimonial and teftamentary, against any peer, or lord of parliament of Great Britain; or against any of the knights, citizens, or burgeffes, and the comiffioners for fhires and burghs of the House of Commons of Great Britain, for the time being; or against their or any of their menial or any other fervants, or any other person entitled to the privilege of parliament of Great Britain; and no such action, fuit, or any other process or proceeding thereupon, fhall, at any time, be impeached, ftayed, or delayed, by or under colour or pretence of any privilege of parliament." 2. Provided, that "Nothing in this act fhall extend to fubject the perfon of any of the knights, citizens, and burgeffes, or the commiffioners, &c. for the time being, to be arrested or imprisoned upon any such fuit or proceedings." 3. And whereas the procefs by diftringas is dilatory and expenfive: For remedy thereof, be it enacted, "That the court out of which the writ proceeds, may order the iffues levied, from time to time, to be fold; and the money, arifing thereby to be applied to pay fuch cofts to the plaintiff as the faid court fhall think juft, under all the cir K 2 -cum |