The Sun.
London, England, 1862-04-21 00:00:00

PRIVILEGE OF PARLIAMENT.

(From he Gazette of Bankruptcy.)
The 66th section of the Bankrupt Law Consolidation
Act, 1849, which remains unrepealed, runs thus : " If any
such trader having privilege of Parliament shall commit
any act of bankruptcy, he may be dealt with under this Act 1
in like manner as any other trader , but such person shall
not be subject to be arrested or imprisoned during the 6:DC
of such privilege, except in cases made felonies or misde-
meanors by this Act." And the 77th section of the same
Act sets forth the exceptional process by which a member
of Parliament may be made bankrupt. When the laws cf
bankruptcy shall come to be consolidated, it may be expe-
dient to have no exceptional process whatever as regards
members of Parliament, whether traders or non-traders.
The ability to pay, in our " nation of shopkeepers," is a
very prominent merit, an operative title to respect; and,
of all classes of society, our lawmakers should be the
least open to exception under this important head.
These exceptional privileges should all cease with the cir-
cumstances which originally justified them.
The exemption from arrest on civil process, for example-7
enjoyed by Members of Parliament is of very ancient date,
there being a law of Canute, cap. 107—Omnis homo paten
habeat, eundo ad Geniotum, et redeundo a Gemoto"—con-
firmed a few years later by Edward the Confessor, who ex-
tended the privilege to all persons coming to the Groat
Council, whether summoned as members or coming on their
own affairs. Such protection, indeed, was accorded by the
State, and, in those rude times necessarily, to all persons
coming to or going from any court of justice, "unless he
were a thief." Tho duration of this privilege, however it
may have been later enlarged by Parliament, with its own
entire satisfaction, was certainly, at first limited to the

duration of the actual session, with reasonable time allowed
for the journey to the house, and home again, when the
business of the session was finished—" In veniendo ad Par-
liamenta, et ibidem rnorando, et exinde redeundo," to adopt
the language of a writ of the 9th year of Edward 11. What
may have been deemed a reasonable time for veniens and
recleuns in those earlier days, and whether the creditor of
A., who lived in Surrey, was kept out of his rights as long
as the creditor of 8., who lived in Northumberland, cannot
now be determined, there being, as Mr. Hatsell reports, so
great a variety of opinions upon the subject that he regare
ded the question touching the real duration of "coming,
staying, and returning to their homes," as having been
nowhere precisely defined and determined. The Committee
of Privileges of the House of Lords reported on the 14th
December, 1621, that—" The freedom from arrests doth
continue 20 days before and after every session, in which
time the Lords may conveniently go home to their houses in
the most remote parts of the kingdom ;" and the resolution
then adopted was, on the 28th May, 1624, again read, and
ordered to be observed, with this alteration—" This free-
dom [from arrest] to begin with the date of the writ
of summons, and to continue 20 days after every session of
Parliament." As the facilities for travelling improved, one
might have anticipated th& our legislators, anxious to place
their character in the most favourable aspect, would have
diminished the period during which, under pretence of
coming to or going from the despatch of divers urgent and
important public business, they evaded their private respon-
sibility to divers urgent and importunate creditors; but,
instead of this, matters grow worse, so that at this present
moment the person of a member of Parliament is in a peer,
by the privilege of peerage, for ever sacred and inviolable,
and in a commoner, by the privilege of Parliament) is so
for 40 days after every prorogation, and 40 days before the
next appointed meeting, which, as Parliament is always
prorogued (hiring vacation, from six weeks to six weeks
means practically throughout the whole ox istence of the
Parliament, and thereafter as may be.
Nor were members only hedged by this legislative divi-
nity, "Their mesnial servants, or familiares, present
with them in their attendance in Parliament" were also
privileged to run up their little bills with :impunity " eundo,
morando, et inde redeundo;" any unlucky creditor who, in
ignorance or desperation, ventured then to arrest one of
these " familiares," being forthwith had up to the bar of
house, and but too grateful to be "pardoned" for his inso-
lence, upon discharging the suit, and with it the costs of
the arrest, &c., and paying hig own fees to the officers of
the house. The creditor and bailiff who audaciously ar-
rested Johnson, Sir James IN hillock's man, did not get off
so easy, for it was further ordered that, mimic curia, they
shall both ride on one horse bare-backed, back to back, from
Westminster to the Exchange, with papers on their breasts
with this inscription, " For arresting a servant to a mem-
ber of the Commons' House of Parliament." Yet both parties
had " acknowledged their fault, and craved forgiveness of
the house of Sir James Whitlock." Perhaps they had re-
fused to include " Johnson, Sir James Whitlock's man," in
their submission, It is not improbable that this little pro-
cession was remembered " from Westminster to the Ex-
change" a few years later. Even " Sayre, servant t.'n.d bag-
bearer to the clerk," was discharged by the house in 1606
from an arrest. The horses also of the member, " and la.'s
other goodes and catalles [chattels] necessarye to be had
with him," were exempt from attachment during his own
privilege, " saving alwey to the forseid John Tayllour, his
forseid jugement and executions, and every of them, to be
hadde and sued atte his pleasure agenst the said John At-
wyll at any tyme efter the ends of this present Parliament,"
John Taylor,being a creditor who had, " contrare to the pry-
vylege," executed judgment upon John Atwyll, one of the
members for Exeter-17 Ed ward IV. The same case presents
the first instance in which the Commons themselves claimed
the privilege of not being impleaded in any personal action,
" veniendo, morando, et inde redeundo," although, on the
roll, it is set forth as " amonges other liberties and fraun-
chises that, wheroef tyme that mannys mynde is not the
contrarye, hath been used. It might have been pointed
out to the house that the judges of the land had only five
years before unanimously decided that " no suck custom
existed to prevent their being impleaded," and had there-
upon disallowed a writ based upon the alleged " fraun-
chise," foreshadowing the later dictum of Mr. Justice
Coleridge that " the law is supreme over the House of
Commons." The freedom from arrest, it may be added,
was entirely limited to civil causes, not extending to
arrests for treason, or felony, or breach of the peace ; and,
indeed, as to civil causes, various instances cited by Hatsell
indicated that originally, at all events, it only applied to
arrest on mesne process, and not to arrest in execution.
The various privileges which from time to t me, and
more or less justified by the motive circumstances; Perna.
ment has enacted for its members, in derogation frau the
common law, and in obstruction of the ordinary course Pf
justice, are now limited to the personal exemption of the
member from arrest. Under 10 Geo. 111., c. 50, any suit
brought against a peer or member of Parliament, or their
servants, may not be impeached or delayed by any pretence
of privilege; and under 52 Geo. 111., c. 144, members of
the House of Commons declared bankrupt are incapable of
sitting or voting for 12 months thereafter ; and if at the
end of the 12 months the bankruptcy is not annulled or the
debts paid in full, the member's seat is declared vacant. And
so, under the section of the Bankruptcy Act of 1849, already
cited, any trader. having privilege of Parliament may be
dealt with as any other trader ; but still " such person shall
not be subject to be arrested or imprisoned during the
time of such privilege except in eases made felonies or
misdemeanours by this Act." As the exemption from
arrest was based upon the principle enunciated by Hat-
sell of its being " peculiarly essential that the mem-
bers of the Court of Parliament should not be prevented
by trifling interruptions from their attendance on this
important duty," and as the trifling interruption of bank-
ruptcy process does now prevent such attendance, it seems
scarcely necessary to keep up the remaining distinction be-
tween the ALP. bankrupt and the non-M.P. bankrupt;
more especially since the former, equally with the latter, if
equally entitled, may claim the protection of the Court, and
so still be as exempt from arrest, though less invidiously.
Adjudication of bankruptcy, if not appealed against
and duly prosecuted within the assigned time, or if, upon
appeal, confirmed, should vacate the seat of the M.P. bank-
rupt, and enable his constituents at once to proceed to a
new and more judicious election, so as not to remain for
twelve months without their due representation in Parlia-
ment. We are far from suggesting that no man who has
not a large balance at his banker's should be allowed a seat
in the house. Such a principle would have cost
the country many, not merely of its most brilliant, but,
still more to be lamented, many of its most practically
beneficial representatives. We merely contend that it is
alike unnecessary and inexpedient to occupy the benches on
either side of the house with men who cannot, still less with
men who will not, pay their debts.