Article 1, Section 6, Clause 1
Holiday v. Pitt93 Eng. Rep. 984 K.B. 1734
After the matter had been spoken to in B. R. it was adjourned to Serjeants-Inn, to be argued before all the Judges. And the counsel for Mr. Pitt applied themselves to three points. 1. To shew that there was a privilege redeundo after a dissolution, as well as after prorogation, which was not disputed. 2. To shew that Mr. Pitt was arrested within that time of privilege. And 3. That this application for his discharge by way of motion was proper.
As to the first point: it was said, that all privilege arises by prescription time out of mind, and no new privilege can be created but by Act of Parliament. Sir Robert Atkins in his treatise of the Power of Parliament 38, 39. That prorogations are modern, in comparison with the antiquity of Parliaments; and it was not till the time of Henry 8 that the present frequent prorogations were made. Formerly two or three new Parliaments were summoned in one year, and dissolved; and therefore the privilege redeundo (which it is agreed there is) must be after a dissolution as well as a prorogation. It is the duty of members to stay the whole session; and in 6 H. 8, c. 16, departing before the end of the session is a loss of wages; and in 4 Inst. 44, there are many instances of informations by the Attorney General for departing from Parliament. In Scobel's Memorials 88, it is mentioned to be a privilege, eundo morando et redeundo for themselves and servants, which is likewise mentioned page 103, 108, and in Dewe's Journal 414, Dodderidge's Preface to the Opinions of Learned Antiquaries, and Sir R. Atkins 38, 39. So in the article of wages, they were paid for some days after the dissolution; 4 Inst. 46, wages are due for every day, veniendo, morando et exinde ad propria redeundo, and the 35 H. 8, c. 11, gives them for as many days as may be reasonably taken up in coming and returning. In the Register 192 a. there is a writ to the sheriff to levy 19l. 4s. pro expensis militum veniendo ad Parliamentum, ibidem morando, et exinde ad propria redeundo, pro 48 diebus.
Another authority to shew that equal privilege subsists in returning as in coming, was from Charta de Foresta, c. 11, Quicunque Archiepiscopus, episcopus, comes vel baro veniens ad nos ad mandatum nostrum, transierit per forestam nostram, liceat ei capere unam bestiam vel duas per visum forestarii si praesens fuerit; sin autem, faciat cornare, ne videatur hoc furtive facere. Hoc idem liceat eis redeundo facere sicut praedictum est. And 4 Inst. 308, was cited to prove that the words veniens ad nos ad mandatum nostrum, were to be understood of coming to Parliament.
Another argument was drawn from 1 Jac. 1, c. 3, which was made to cure an inconvenience arising from this privilege as to members taken in execution out of the time of privilege, and to give the plaintiff a new writ of execution, when the time of privilege was over.
It may be objected, that these are not rights inherent in the Commons, but what flow from the grace and favour of the Crown, and on the beginning of a Parliament is asked by the Speaker as such. To which it is answered, that this is done rather by way of recognition, and keeping up their right, than acknowledging it as a favour. And it appears in Dewe's Journal 122, and Sir R. Atkins 40, that Mr. Onslow, who was elected Speaker in 1566, neglected on his being presented to Queen Elizabeth to demand this freedom from arrests; and it was resolved that such demand was not necessary, and the privilege subsisted notwithstanding.
They likewise compared this to the case of witnesses, who are protected eundo et redeundo. 1 Mod. 66. 2 Roll. Abr. 272. The same as to the parties to the suit; and Rastal, tit. Privilege, uses the words in the writ for wages, et exinde ad propria redeundo. And this returning has never been very nicely scanned, so as to require a man to go the direct road. Bro. Privilege 4, allows that the protection is not forfeited by the plea of extra viam, because it may be he went to buy a horse, victuals, or other necessaries for his journey. Neither is the law so strict in point of time, as to require the party to set out immediately after the trial is over; and for that was cited the case of Hatch against Blisset, vide Trin. 13 Ann. in B. R. She had a trial at Winchester Assizes, which was over on Friday at four in the afternoon: she staid there till after dinner on Saturday, and in the evening at seven was arrested going home to Portsmouth, which is twenty miles: and the Court held, that she ought to be discharged, her protection not being expired, and a little deviation or loitering would not alter it.
The statute 12 & 13 W. 3, c. 3, was also mentioned, as taking notice of this privilege of freedom from arrests, and as making no distinction between a prorogation and a dissolution.
2. The next point was to shew that Colonel Pitt was arrested within this time of privilege; and for this were cited 2 Lev. 72. 1 Brownl. 91, which speak of it as subsisting for forty days after the Parliament. And in the Irish Acts 3 Ed. 4 (which were generally transcripts of laws enacted here) it is expressly recited to have continuance for forty days before and after the Parliament finished. However this point was not much insisted on, it appearing that the House of Commons had always avoided determining this question, and had left it at large to a convenient time, of which themselves were the Judges: and therefore in the case of Mr. Martin in 1586, who was arrested twenty days before the meeting of the Parliament, the question was put whether the House would limit the time, and resolved they would not; but they held that the twenty days were within a convenient time, and that therefore Mr. Martin should be discharged. Scobel 109, 110.
It doth not appear, they ever entered into the consideration of the nearness or distance of each gentleman's borough; but hold the same general rule, as it is done in testes and returns of writs at common law; which are the same near, as in the remotest counties.
This gentleman was arrested two days after the dissolution, before he had time to settle his private affairs and prepare for his journey. And the cases before cited of parties to a suit and witnesses were again relied on, to shew there was no occasion for him to set out immediately upon his return.
3. The third point (and indeed the only one the Court doubted of) was whether he could be discharged by motion. And for this Nalson's Collections, vol. 2, page 450, was cited, where it is said, that privilege of Parliament is a restraint to the proceedings of Inferior Courts. That the Courts of Westminster-Hall are bound to take notice of this privilege, and allow the time out of the Statute of Limitations. That it is ex necessitate, else he must lie till the next Parliament, which may be sooner or later. That for expedition many things are now done in a summary way by motion, for which formerly the party used to be put to his audita querela; and in the case cited of Hatch v. Blisset, she was discharged by motion. So on 7 Ann. c. 12, the servants of ambassadors are every day discharged on motion; and yet there are exceptions in that Act, as to merchants and traders, which might be very proper for special pleading. And the statute 29 Car. 2, c. 7, against arrests upon Sundays was mentioned where no doubt the party would be discharged on motion.
The counsel for the plaintiffs offered very little on the two first points; but applied themselves chiefly to the last, to shew that the discharge ought not to be on motion, and mentioned the case in Salk. 544, where it was held, that an attorney must plead his privilege: and Carth. 131, as to the Act of Oblivion. That the proper way would be to bring his writ of privilege, the suggestions whereof might be pleaded to, and this great point determined upon record. If there be no addition in an outlawry, it is bad; but must be avoided by writ of error. And wherever it has been intended to give a power of discharging on motion, it is mentioned particularly, as to bankrupts and seamen.
There was nothing said upon the argument by the Judges at Serjeants'-Inn. But the last day of the term the Chief Justice declared, that all the Judges were of opinion Mr. Pitt was intitled to privilege redeundo for a convenient time, and that within that time he was arrested.
And as to the third point he declared, that there was great doubt amongst the Judges; who however did all agree, that if a writ of privilege was procured, that would remove all difficulties: and therefore the rule was enlarged till next term without prejudice to the question, whether it could be done by way of motion or writ.
Early in the next term a petition was presented to the Lord Chancellor, with an affidavit to verify it. And upon presenting it, his Lordship said, that in so untrodden a path as this, he should be very careful what he did; and as it was not his business to draw the writ, he expected Mr. Pitt's counsel should prepare one, and send him and the Master of the Rolls a copy of it: which was done, from Pryn's 4th vol. of Parliamentary Writs, 722, 755, 759, 776, 784, and a day appointed to speak to it before them both. There were no counsel attended on behalf of the plaintiffs, the main point being determined against them. But several objections being taken to the manner of verifying the petition, and to the draft of the writ, the matter was put off, with an intimation that it was hardly probable any determination would be made within the term; and therefore recommending it to Mr. Pitt's counsel, whether they would not try what they could do in B. R. upon their motion, before the term was over. Upon this the petition was withdrawn, and mention made to the Judges of the King's Bench, that their opinion was desired upon the motion.
Whereupon the evening before the end of the term, the Judges all met again at Serjeants'-Inn. And the last day of the term the Chief Justice delivered their opinions.
That all the Judges, except the Chief Baron Reynolds, and Baron Thompson, were of opinion, that Mr. Pitt ought to be discharged on motion: that the Chief Baron did not say it would be wrong to do so, but was doubtful; and as for Mr. Baron Thompson he was strongly against it.
As what is to be done is therefore clearly the opinion of ten Judges, I will briefly state the ground they go upon. For that purpose they have taken two things into consideration. 1. How the law stood before the 12 & 13 W. 3, c. 3, and, 2. Whether that has altered the law, and how far.
As to the first we think that before the Statute 12 & 13 W. 3, the method in Westminster-Hall was, to discharge by writ of privilege, which was in nature of a supersedeas to the proceedings, and the pleading concluded, si curia Domini Regis placitum praed' cognoscere velit aut debeat. 1 Pryn's Register 660.
And as to the Statute 12 & 13 W. 3, we think it has made two alterations. 1. That it has taken away the old plea of privilege; and, 2. By making the arrest irregular and illegal.
The Act was designed to abridge the privilege, and to give leave to proceed after a prorogation. Then comes an enacting clause with negative words, that the body of a member shall not be arrested during the time of privilege. The old plea therefore of not proceeding is taken away, for it is made lawful to proceed, and he cannot plead to the process though irregularly arrested; agreeable to what was held in the case of Widrington v. Charlton, Hil. 11 Ann. in an appeal. If he cannot take advantage of this the old way, there is no other left but by motion; and it being rendered illegal to arrest the body, it is an irregular execution of the process. In Sir Richard Temple's case in 1 Sid. 192, and 1 Keb. 727, the Judges told Sir Richard he must shew his return, or writ of privilege. Here the defendant has complied with the first part, by producing the original return. In Lord Banbury's case in Salk. 512, it is said, they would not proceed to try his peerage by motion; but I have seen a manuscript report of that case, where Holt says, if there had been no dispute of the identity of the person, and the summons to Parliament had been shewn, he would have discharged him on motion. There was My Lord Mordington's case in C. B. in my Lord King's time: and he being a Scotch peer was arrested, and the Act of Union having given them the privilege of English peers, he was discharged upon motion.
In the present case here is matter of record produced to warrant the discharge, and if we have proper evidence, why should not the remedy be speedily applied?
It is certainly so, as mentioned at the Bar, that ambassadors' servants, and persons arrested on a Sunday, are discharged on motion. There are many writs in Rastal for discharging jurors, and witnesses, and yet it is done every day by motion; and those writs only prove, that it may be done another way. And the inclination of Courts to discharge on motion has been so great, that the party arrested may apply to the Court under whose protection he is, or the Court out of which the process issues, which ever happens to sit first.
And if in Blisset's case the Court above took notice of the privilege of the Court of Nisi Prius, and discharged her; what reason is there we should not pay the same regard to a superior privilege?
There must be a rule to discharge the defendant out of the custody of the marshal.
The Founders' Constitution
Volume 2, Article 1, Section 6, Clause 1, Document 2
The University of Chicago Press
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