dicial idea of Parliament. This, however, involved one great difficulty. He is trying to extend judicial privileges and immunities to all forms of parliamentary action.

But did not "Parliament" in the judicial sense mean the Lords alone? Appeals from the courts of law had been heard there exclusively for a long time, and though the Lords had abandoned their claim to try original cases where peers were not involved, they had lately vindicated their doubtful right in the case of appeals from the Court of Chancery. This difficulty Atkyns avoids in characteristic style: It must be remembered, he says, "that the parliament. . . is one entire body, and that their power in the right of it is entire, though as to the exercise of it, it is distributed into parts, and is divided: nor can the House of Lords exercise any power as an House of Parliament, or as a court for errors, without the House of Commons be in being at the same time. Both Houses must be prorogued together, and dissolved together; like the twins of Hippocrates, they live and die together, and the one cannot be in being, without the other also, at the same time be in being too."1

Statements of the judicial character of Parliament keep on recurring up to the nineteenth century, in cases of privilege.2

113 St. Tr., 1424. For other parts of this interesting argument bearing on this point, see columns 1410, 1411, 1422, 1423, 1429, 1433, 1437, and the valuable references there cited.

2 For example, in Ashby v. White (14 St. Tr., 728, 853, 855); in the Case of Brass Crosby in 1771, 19 St. Tr., 1147; Burdett v. Abbott, 14 East, 159, 160.

In fact, the whole question of the privileges of the House of Commons remained uncertain just so long as the judicial character of the house remained undefined, and that in turn remained undefined so long as there was uncertainty concerning the boundary between legislation and adjudication. The particular phase of the question concerning privilege was settled with a prospect of finality by the case of Stockdale v. Hansard. In that case Lord Chief Justice Denman said: "It can hardly be necessary to guard myself against being supposed to discuss the expediency of keeping the law in its present state, or introducing any and what alterations. It is no doubt susceptible of improvement; but the improvement must be a legislative act. If we held that any improvement, however desirable, could be effected under the name of privilege, we should be confounding truth, and departing from our duty; and if, on such considerations, either house should claim, as matter of privilege, what was neither necessary for the discharge of their proper functions, nor ever had been treated as a privilege before, this would be an enactment, not a declaration, or, if the latter name were more appropriate, it would be a declaration of a general law, to be disregarded by the courts, though never, I hope, treated with contempt. It would also be a declaration of a new law; and the word 'adjudge' can make no difference in the nature of the thing."

19 Adolphus & Ellis, 151-3. See also Howard v. Gossett, 10 Q. B., 359; Bradlaugh v. Gossett, 12 Q. B. D., 271.

L

For this period of some two hundred years there is a masterly summary of the cases on parliamentary privilege in Chapter VI of Sir Erskine May's Parliamentary Practice, and another equally good in Part III of Broom's Constitutional Law. To these the reader is referred for further proof of the point which it has been the object of this chapter to illustrate; namely, that the great doubt and uncertainty that so long clouded the decisions upon the important question of parliamentary privilege arose almost entirely from Parliament's character as a court; from the inability to see clearly the lines between its varied powers in that "judicial" capacity; and from the confusion of those judicial powers with the discretionary power which the theory of parliamentary legislative sovereignty necessarily implies.1

1On the general subject of Privilege in this connection, see the parts of Broom's Constitutional Law (2d ed.) and May's Parliamentary Practice, referred to above; also Hale, Jurisdiction of the Lords House, Hargrave's Preface, pp. ciii-cxxvi (for the case of Skinner v. The East India Co.); ibid., pp. cxxxiv-clxi (Shirley v. Fagg); ibid., pp. clxxxii-iv (Case of Charles Knollys); Dyer's Reports, 60 a; 13 Cobbett's State Trials, 1369-1442, passim (Sir William Williams's Case); 14 St. Tr., 695 et seq., passim (Ashby v. White); 8 St. Tr., 223 et seq., passim (Fitzharris's Case). Exhaustive references to other cases will be found in May and Broom, and in the great case of Stockdale v. Hansard, 9 Adolphus & Ellis, 1 et seq., especially in Lord Denman's opinion, p. 106 et seq. The most important source of all, of course, is to be found in the Journals of the houses themselves. See in index volumes under "Privilege," and especially the cases of Shirley v. Fagg, C. J., vol. ix. p. 329 et seq., passim; Fitzharris's Case, C. J., vol. ix. p. 711 et seq.; Fenwick's Case, C. J., vol. xi. p. 577 et seq., passim. See also Hatsell, Precedents (2d ed., vol. i.); 4 Inst., 1 et seq.; and the minute exhaustive chapter in Prynne's Brief Register (vol. iv. pp. 622-869); Lex Parliamentaria, by G— P—, Esq. (1698); Miscellania Parliamentaria, by William Petyt (1680).

NOTE A

JUDICIAL INTERpretation of EDWARD III'S Statute of TREASON

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In the third year of Richard II, John Imperial, ambassador from Genoa, was murdered by two citizens of London. The case was debated in both houses and declared to be treason. "This declaration," Hale says, "being by the king and both houses of parliament was a good declaration pursuant to the act of 25 E. 3." History of the Pleas of the Crown (1736), vol. i. p. 263. "Note it well," says Coke, "this case was not referred to the Judges, but declared in and by Parliament." (12 Reports, 16.) Hale clearly implies that this declaration in Imperial's case was an "act" which would not be valid unless made by both houses. This elastic clause in the Statute of Edward III came up for discussion in Strafford's Trial. (State Trials, vol. iii. p. 1475; Rushworth, Strafford's Trial, pp. 676, 677, 699, 700.) Again, in the Earl of Clarendon's Case, it was asked: “Hath the Parliament declaratory Power now? Yes, but it must be by King and Parliament, so it was in the case of the Genoua Ambassador. The Judges would not conclude the Articles Treason, nor would the Lords alone; and if you come to an equal declarative Power with them, you must examine witnesses, or go by a Bill.” (2 St. Tr., 565, Hargrave's ed.)

Hale, and Clarendon's judges, Mr. Holdsworth thinks, here mean to assert that a judgement of Parliament in pursuance of this clause of the statute of 25 Edward III is a legislative act. (H. E. L., vol. i. p. 188, note 3.) I can hardly think so, at least in Hale's case, for Hale goes on to say that the declaration is not in force in his own day." Because it was but a particular case, and extended not to any other case, as a binding law but only as a great authority." (Pleas of the Crown, vol. i. p. 263.) It is true, Hale does, as Mr. Justice Stephen points out (History of the Criminal Law of England, vol. ii. p. 252), declare that the case of Tresilian and others in 11 Richard II was not within this statute of 25 E. III, "because the king and commons did not consent per modum legis declarativae, for the judgment was only the lords." (P. C., vol. i. p. 264.) But this is by no means to declare that a proper declaration under the statute must be a "legislative" act. Hale only asserted that certain declarations were warranted by the

statute because made by both houses, and that other declarations and judgements were unwarranted by it because made by the Lords alone. He says nothing about "legislative" acts, and his argument in his Jurisdiction of the Lords House would indicate that he did not mean "legislative" acts. For him a valid judgement as well as a valid statute required the action of both houses. In the passage in question he is thinking of the judicial functions of Parliament rather than the legislative, though in fact it is apparent that he makes no clear distinction between them, as will be noted later. Mr. Justice Stephen himself believes the clause of the statute in question referred to judicial acts (H. C. L., vol. ii. p. 252), and Mr. Holdsworth seems to agree with him (H. E. L., vol. i. p. 188, n. 3). For the Case of John Imperial, see also Rot. Parl., vol. iii. p. 75 B., and 3 Inst., 8. These varying interpretations, if they serve no other purpose, show how hazy and indefinite the line of division between acts judicial and acts legislative remained even to the time of Lord Hale.

NOTE B. EARLY CASES DETERmined in ParlIAMENT

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BRACTON says: "Si autem aliqua nova et inconsueta emerserint, et quae prius usitata non fuerint in regno, si tamen similia evenerint, per simile judicentur, cum bona sit occasio a similibus procedere ad similia. Si autem talia nunquam prius evenerint, et obscurum et difficile sit eorum judicium, tunc ponantur judicia in respectum usq; ad magnam curiam, ut ibi per consilium curiae terminentur: licet sint nonnulli qui de propria scientia praesumentes, quasi nihil juris ignorent, nolunt alicuius consilium expetere: in quo casu honestius et consultius eis foret consilium habere quam aliquid temere definire, cum de singulis dubitare non sit inutile. Sedem quidem judicandi, quae est quasi thronus dei, non praesumat quis ascendere insipiens et indoctus, ne lucem ponat in tenebras, et tenebras in lucem, et ne in manu indocta, modo furientis, gladio feriat innocentem, et liberet nocentem, et ex alto corruat quasi a throno dei, qui volare inceperit antequam pennas assumat." Lib. i. cap. ii. secs. 7, 8.

There are many cases in the Year Books and Rolls of Parliament that show the practice. See, for example, Rot. Parl., 18 Edward I. (vol. i. p. 44); also vol. i. pp. 301, 307.