with Notes of Reference (1803)
St. George Tucker
Of The Parliament
WE are next to treat of the rights and duties of persons, as they are members of society, and stand in various relations to each other. These relations are either public or private: and we will first consider those that are public.
THE most universal public relation, by which men are connected together, is that of government; namely, as governors and governed, or in other words, as magistrates and people. Of magistrates also some are supreme, in whom the sovereign power of the state resides; others are subordinate, deriving all their authority from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary sphere.
IN all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of its own independence, and therewith of the liberty of the subject. With us therefore in England this supreme power is divided into two branches; the one legislative, to wit, the parliament, consisting of king, lords, and commons; the other executive, consisting of the king alone. It will be the business of this chapter to consider the British parliament; in which the legislative power, and (of course) the supreme and absolute authority of the state, is vested by our constitution.
THE original or first institution of parliaments is one of those matters that lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. The word, parliament, itself (or colloquium, as some of our historians translate it) is comparatively of modern date, derived from the French, and signifying the place where they met and conferred together. It was first applied to general assemblies of the states under Louis VII in France, about the middle of the twelfth century.1 But it is certain that, long before the introduction of the Norman language into England, all matters of importance were debated and settled in the great councils of the realm. A practice, which seems to have been universal among the northern nations, particularly the Germans;2 and carried by them into all the countries of Europe, which they overran at the dissolution of the Roman empire. Relics of which constitution, under various modifications and changes, are still to be met with in the diets of Poland, Germany, and Sweden, and the assembly of the estates in France;3 for what is there now called the parliament is only the supreme court of justice, composed of judges and advocates; which neither is in practice, nor is supposed to be in theory, a general council of the realm.
WITH us in England this general council has been held immemorially, under the several names of michel-synoth, or great council, michel-gemote or great meeting, and more frequently wittena-gemote or the meeting of wise men. It was also styled in Latin, commune concilium regni, magnum concilium regis, curia magna, conventus magnatum vel procerum, assisa generalis, and sometimes communitas regni Angliae4. We have instances of its meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as Fleta5 expresses it, “novis injuriis emersis nova constituere remedia“, so early as the reign of Ina king of the west Saxons, Offa king of the Mercians, and Ethelbert king of Kent, in the several realms of the heptarchy. And, after their union, the mirrour6 informs us, that king Alfred ordained for a perpetual usage, that these councils should meet twice in the year, or oftener, if need be, to treat of the government of God’s people; how they should keep themselves from sin, should live in quiet, and should receive right. Our succeeding Saxon and Danish monarchs held frequent councils of this sort, as appears form their respective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wise men, as, “haec sunt instituta, quae Edgarus Rex consilio sapientum suorum instituit“; or to be enacted by those sages with the advice of the king, as, “haec sunt judicia, qua sapientes consilio regis Ethelstani instituerunt“; or lastly, to be enacted by them both together, as, “haec sunt institutiones, quas Rex Edmundus et episcopi sui cum sapientibus suis instituerunt“.
THERE is also no doubt but these great councils were held regularly under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry the second, speaking of the particular amount of an amercement in the sheriff’s court, says, it had never yet been ascertained by the general assize, or assembly, but was left to the custom of particular counties.7 Here the general assize is spoken of as a meeting well known, and its statutes or decisions are put in a manifest contradistinction to customs, or the common law. And in Edward the third’s time an act of parliament, made in the reign of William the conqueror, was pleaded in the case of the abbey of St Edmund’s-bury, and judicially allowed by the court.8
HENCE it indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. How those parliaments were constituted and composed, is another question, which has been matter of great dispute among our leaned antiquarians; and, particularly, whether the commons, were summoned at all; or, if summoned, at what period they began to form a distinct assembly. But it is not my intention here to enter into controversies of this sort. I hold it sufficient that it is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of king John, A. D. 1215, in the great charter granted by that prince; wherein he promises to summon all arch-bishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with forty days notice, to assess aids and scutages when necessary. And this constitution has subsisted in fact at least from the year 1266, 49 Hen. III: there being still extant writs of that date, to summon knights, citizens, and burgesses to parliament. I proceed therefore to inquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of five hundred years. And in the prosecution of this inquiry, I shall consider, first, the manner and time of its assembling: secondly, its constituent parts: thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and distinctly taken: sixthly, the methods of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament’s adjournment, prorogation, and dissolution.
I. AS to the manner and time of assembling. The parliament is regularly to be summoned by the king’s writ or letter, issued out of chancery by advice of the privy council, at least forty days before it begins to sit. It is a branch of the royal prerogative, that no parliament can be convened by its own authority, or by the authority of any, except the king alone. And this prerogative is founded upon very good reason. For, supposing it had a right to meet spontaneously, without being called together, it is impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting: and if half of the members met, and half absented themselves, who shall determine which is really the legislative body, the part assembled, or that which stays away? It is therefore necessary that the parliament should be called together at a determinate time and place; and highly becoming its dignity and independence, that it should be called together by none but one of its own constituent parts; and, of the three constituent parts, this office can only appertain to the king; as he is a single person, whose will may be uniform and steady; the first person in the nation, being superior to both houses in dignity; and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being.9 Nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and is to sit again for six months, unless dissolved by the successor: for this revived parliament must have been originally summoned by the crown.
IT is true, that by a statute, 16 Car. I. c. 1. it was enacted, that if the king neglected to call a parliament for three years, the peers might assemble and issue out writs for the choosing one; and, in case of neglect of the peers, the constituents might meet and elect one themselves. But this, if ever put in practice, would have been liable to all the inconveniences I have just now stated; and the act itself was esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed by statute 16 Car. II. c. 1. From thence therefore no precedent can be drawn.
IT is also true, that the convention-parliament, which restored king Charles the second, met above a month before his return; the lords by their own authority, and the commons in pursuance of writs issued in the name of the keepers of the liberty of England by authority of parliament: and that the said parliament sat till the twenty-ninth of December, full seven months after the restoration; and enacted many laws, several of which are still in force. But this was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have been settled in peace. And the first thing done after the king’s return, was to pass an act declaring this to be a good parliament, notwithstanding the defect of the king’s writs.10 So that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Besides we should also remember, that it was at that time a great doubt among the lawyers,11 whether even this healing act made it a good parliament; and held by very many in the negative: though it seems to have been too nice a scruple. And yet, out of abundant caution, it was thought necessary to confirm its acts in the next parliament, by stat. 13 Car. II. c. 7. & c. 14.
IT is likewise true, that at time of the revolution, A. D. 1688, the lords and commons by their own authority, and upon the summons of the prince of Orange, (afterwards king William) met in a convention and therein disposed of the crown and kingdom. But it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon an apprehension that king James the second had abdicated the government, and that the throne was thereby vacant: which apprehension of theirs was confirmed by their concurrent resolution, when they actually came together. And in such a case as the palpable vacancy of a throne, it follows ex necessitate rei, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. For, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail, and become extinct, which would indisputably vacate the throne: in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government, otherwise there must be no government at all. And upon this and no other principle did the convention in 1688 assemble. The vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. They did not assemble without writ, and then make the throne vacant; but the throne being previously vacant by the king’s abdication, they assembled without writ, as they must do if they assembled at all. Had the throne been full, their meeting would not have been regular; but, as it was really empty, such meeting became absolutely necessary. And accordingly it is declared by statute 1 W. & M. St. 1. c. 1. that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. So that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in the government) the rule laid down is in general certain, that the king, only, can convoke a parliament.
AND this by the ancient statutes of the realm,12 he is bound to do every year, or oftener, if need be. Not that he is, or ever was, obliged by these statutes to call a new parliament every year; but only to permit a parliament to sit annually for the redress of grievances, and dispatch of business, if need de. These last words are so loose and vague, that such of our monarchs as were inclined to govern without parliaments, neglected the convoking them, sometimes for a very considerable period, under pretense that there was no need of them. But, to remedy this, by the statute 16 Car. II. c. 1. it is enacted, that the sitting and holding of parliaments shall not be intermitted above three years at the most. And by the statute 1. W. & M. St. 2. c. 2. it is declared to be one of the rights of the people, that for redress of all grievances, and for the amending, strengthening, and preserving the laws, parliaments ought to be held frequently. And this indefinite frequency is again reduced to a certainty by statute 6 W. & M. c. 2. which enacts, as the statute of Charles the second had done before, that a new parliament shall be called within three years13 after the determination of the former.
II. THE constituent parts of a parliament are the next objects of our inquiry. And these are, the king’s majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal, (who sit, together with the king, in one house) and the commons, who sit by themselves in another.14 And the king and these three estates, together, form the great corporation or body politic of the kingdom, of which the king is said to be caput, principium, et finis. For upon their coming together the king meets them, either in person or by representation; without which there can be no beginning of a parliament;15 and he also has alone the power of dissolving them.
IT is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not be whole, of the legislature. The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide. The legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power. Thus the long parliament of Charles the first, while it acted in a constitutional manner, with the royal concurrence, redressed many heavy grievances and established many salutary laws. But when the two houses assumed the power of legislation, in exclusion of the royal authority, they soon after assumed likewise the reins of administration; and, in consequence of these united powers, overturned both church and state, and established a worse oppressions than any they pretended to remedy. To hinder therefore any such encroachments, the king is himself a part of the parliament: and, as this is the reason of his being so, very properly therefore the share of legislation, which the constitution has placed in the crown, consists in the power of rejecting, rather than resolving; this being sufficient to answer the end proposed. For we may apply to the royal negative, in this instance, what Cicero observes of the negative of the Roman tribunes, that the crown has not any power of doing wrong, but merely of preventing wrong from being done.16 The crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses. The legislative therefore cannot abridge the executive power of any rights which it now has by law, without its own consent; since the law must perpetually stand as it now does, unless all the powers will agree to alter it. And herein indeed consists the true excellence of the English government, that all the parts of it form a mutual check upon each other. In the legislature, the people are a check upon the nobility, and the nobility a check upon the people; by the mutual privilege
of rejecting what the other has resolved: while the king is a check upon both, which preserves the executive power from encroachments. And this every executive power is again checked, and kept within due bounds by the two houses, through the privilege they have of inquiring into, impeaching, and punishing the conduct (not indeed of the king, which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counselors. Thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits; while the whole is prevented from separation, and artificially connected together by the mixed nature of the crown, which is a part of the legislative, and the sole executive magistrate. Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by themselves, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community.
LET us now consider these constituent parts of the sovereign power, or parliament, each in a separate view. The king’s majesty will be the subject of the next, and many subsequent chapters, to which we must a present refer.
THE next in order are the spiritual lords. These consist of two arch-bishops, and twenty-four bishops; and, at the dissolutions of monasteries by Henry VIII., consisted likewise of twenty-six mitred abbots, and two priors:17 a very considerable body, and in those times equal in number to the temporal nobility.18 All these hold, or are supposed to hold, certain ancient baronies under the king: for William the conqueror thought proper to change the spiritual tenure, of frankalmoign or free alms, under which the bishops held their lands during the Saxon government, into the feudal or Norman tenure by barony; which subjected their estates to all civil charges and assessments, from which they were before exempt:19 and, in right of succession to those baronies, the bishops obtained their seat in the house of lords.20 But though these lords spiritual are in the eye of the law a distinct estate from the lords temporal, and are so distinguished in all our acts of parliament, yet in practice they are usually blended together under the one name of the lords; they intermix in their votes; and the majority of such intermixture binds both estates. And, from this want of a separate Assembly and separate negative of the prelates, some writers have argued21 very cogently, that the lords spiritual and temporal are now in reality only one estate:22 which is unquestionably true in every effectual sense, though the ancient distinction between them still nominally continues. For if a bill should pass their house, there is no doubt of its being effectual, though every lord spiritual should vote against it; of which Selden,23 and Sir Edward Coke,24 give many instances: as, on the other hand, I presume it would be equally good, if the lords temporal present were inferior to the bishops in number, and every
one of those temporal lords gave his vote to reject the bill; though this Sir Edward Coke seems to doubt of.25
THE lords temporal consist of all the peers of the realm (the bishops not being in strictness held to be such, but merely lords of parliament26) by whatever title of nobility distinguished; dukes, marquises, earls, viscounts, or barons; of which dignities we shall speak more hereafter. Some of these sit by descent, as do all ancient peers; some by creation, as do all new-made ones; others, since the union with Scotland, by election, which is the case of the sixteen peers, who represent the body of the Scots nobility. Their number is indefinite, and may be increased at will by the power of the crown: and once, in the reign of queen Anne, there was an instance of creating no less than twelve together; in contemplation of which, in the reign of king George the first, a bill passed the house of lords, and was countenanced by the then ministry, for limiting the number of the peerage. This was thought by some to promise a great acquisition to the constitution, by restraining the prerogative from gaining the ascendant in that august assembly, by pouring in at pleasure an unlimited number of new created lords. But the bill was ill-relished and miscarried in the house of commons, whose leading members were then desirous to keep the avenues to the other house as open and easy as possible.
THE distinction of rank and honors is necessary in every well-governed state; in order to reward such as are eminent for their services to the public, in a manner the most desirable to individuals, and yet without burden to the community; exciting thereby an ambitious yet laudable ardor, and generous emulation in others. And emulation, or virtuous ambition, is a spring of action which, however dangerous or invidious in a mere republic or under a despotic sway, will certainly be attended with good effects under a free monarchy; where, without destroying its existence, its excesses may be continually restrained by that superior power, from which all honor is derived. Such a spirit, when nationally diffused gives life and vigor to the community; it sets all the wheels of government in motion, which under a wise regulator, may be directed to any beneficial purpose; and thereby every individual may be made subservient to the public good, while he principally means to promote his own particular views. A body of nobility is also more peculiarly necessary in our mixed and compounded constitution, in order to support the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. It creates and preserves that gradual scale of dignity, which proceeds from the peasant to the prince; rising like a pyramid from a broad foundation, and diminishing to a point as it rises. It is this ascending and contracting proportion that adds stability to any government; for when the departure is sudden from one extreme to another, we may pronounce that state to be precarious. The nobility therefore are the pillars, which are reared from among the people, more immediately to support the throne; and if that falls, they must also be buried under its ruins. Accordingly, when in the last century the commons had determined to extirpate monarchy, they also voted the house of lords to be useless and dangerous. And since titles of nobility are thus expedient in the state, it is also expedient that their owners should form an independent and separate branch of the legislature. If they were confounded with the mass of the people, and like them had only a vote in electing representatives, their privileges would soon be borne down and overwhelmed by the
popular torrent, which would effectually level all distinctions. It is therefore highly necessary that the body of nobles should have a distinct assembly, distinct deliberations, and distinct powers from the commons.
THE commons consist of all such men of any property in the kingdom as have not seats in the house of lords; every one of which as a voice in parliament, either personally, or by his representatives. In a free state, every man, who is supposed a free agent, ought to be, in some measure, his own governor; and therefore a branch at least of the legislative power should reside in the whole body of the people. And this power, when the territories of the state are small and its citizens easily known, should be exercised by the people in their aggregate or collective capacity, as was wisely ordained in the petty republics of Greece, and the first rudiments of the Roman state. But this will be highly inconvenient, when the public territory is extended to any considerable degree, and the number of citizens is increased. Thus when, after the social war, all the burghers of Italy were admitted free citizens of Rome, and each had a vote in the public assemblies, it became impossible to distinguish the spurious from the real voter, and from that time all elections and popular deliberations grew tumultuous and disorderly; which paved the way for Marius and Sylla, Pompey and Caesar, to trample on the liberties of their country, and at last to dissolved the commonwealth. In so large a state as ours it is therefore every wisely contrived, that the people should do that by their representatives, which it is impracticable to perform in person: representatives, chosen by a number of minute and separate districts, wherein all the voters are, or easily may be, distinguished. The counties are therefore represented by knights, elected by the proprietors of lands; the cities and boroughs are represented by citizens and burgesses, chosen by the mercantile part or supposed trading interest of the nation; much in the same manner as the burghers in the diet of Sweden are chosen by the corporate towns, Stockholm sending four, as London does with us, other cities two, and some only one.27 The number of English representatives is 513, and of Scots 45; in all 558. And every member, though chosen by one particular district, when elected and returned serves for the whole realm. For the end of his coming thither is not particular, but general; not
barely to advantage his constituents, but the common wealth; to advise his majesty (as appears from the writ of summons28) “de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum, et defensionem regni Angliae et ecclesiae Anglicanae concernentibus“. And therefore he is not bound, like a deputy in the united provinces, to consult with, or take the advice, of his constituents upon any particular point, unless he himself thinks it proper or prudent so to do.
THESE are the constituent parts of a parliament, the king, the lords spiritual and temporal, and the commons. Parts, of which each is so necessary, that the consent of all three is required to make any new law that shall bind the subject. Whatever is enacted for law by one, or by two only, of the three is no statute; and to it no regard is due, unless in matters relating to their own privileges. For though, in the times of madness and anarchy, the commons once passed a vote,29 “that whatever is enacted or declared for law by the commons in parliament assembled has the thereby, although the consent and concurrence of the king or house of peers be not had thereto;” yet, when the constitution was restored in all its forms, it was particularly enacted by statute 13 Car. II. c. 1. that if any person shall maliciously or advisedly affirm, that both or either of the houses of parliament have any legislative authority without the king, such person shall incur all the penalties of a praemunire.
III. WE are next to examine the laws and customs relating to parliament, thus united together and considered as one aggregate body.
THE power and jurisdiction of parliament, says Sir Edward Coke,30 is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high court he adds, it may be truly said “si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima“. It has sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: the being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of king Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament. True it is, that what they do, no authority upon earth can undo. So that it is a matter most essential to the liberties of this kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, and their knowledge; for it was a known apothegm of the great lord treasurer Burleigh, “that England could never be ruined but by a parliament:” and, as Sir Matthew Hale observes,31 this being the highest and greatest court, over which none other an have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom
are left without all manner of remedy. To the same purpose the president Montesquieu, though I trust too hastily, presages;32 that as Rome, Sparta, and Carthage have lost their liberty and perished, so the constitution of England will in time lose its liberty, will perish: it will perish, whenever the legislative power shall become more corrupt that the executive.
IT must be owned that Mr. Locke,33 and other theoretical writers, have held, that “there remains still inherent in the people ‘a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for when such trust is abused; it is thereby forfeited, and devolves to those who gave it.” But however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a dissolutions of the power, to the people at large, includes in it a dissolutions of the whole form of government established by that people, reduces all the members of their original state of equality, and by annihilating the sovereign power repeals all positive laws whatsoever before enacted. No human laws will therefore supposed a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.
IN order to prevent the mischiefs that might arise, by placing this extensive authority in hands that are either incapable, or else improper, to manage it, it is provided that no one shall sit or vote in either house of parliament, unless he be twenty-one years of age. This is expressly declared by statute 7 & 8 W. III. c. 25. with regard to the house of commons; though a minor was incapacitated before from sitting in either house, by the law and custom of parliament.34 To prevent crude innovations in religion and government, it is enacted by statute 30 Car. II. St. 2. and 1 Geo. I. c. 13. that no member shall vote or sit in either house, till he has in the presence of the house taken the oaths of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation, and invocation of saints, and the sacrifice of the mass. To prevent dangers that may arise to the kingdom from foreign attachments, connections, or dependencies, it is enacted by the 12 & 13 W. III. c. 2. that no alien, born out of the dominions of the crown of Great Britain, even though he be naturalized, shall be capable of being a member of either house of parliament.
FARTHER: as every court of justice has laws and customs for its direction, some the civil and canon, some the common law, others their own peculiar laws and customs, so the high court of parliament has also its own peculiar law, called the lex et consuetudo parliamenti; a law which Sir Edward Coke35 observes, is “ab omnibus quaerenda, a multis ignorata, a paucis cognita“. It will not therefore be expected that we should enter into the examination of this law, with any degree of minuteness; since, as the same learned author assures us,36 it is much better to be learned out of the rolls of parliament, and other records, and by precedents, and continual experience, than can be expressed by any one man. It will be sufficient to observe, that the whole of the law and custom of parliament has its original from this one maxim; “that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere.”
THE privileges of parliament are likewise very large and indefinite; which has occasioned an observation, that the principal privilege of parliament consisted in this, that its privileges were not certainly known to any but the parliament itself. And therefore when in 31 Hen. VI the house of lords propounded a question to the judges touching the privilege of parliament, the chief justice, in the name of his brethren, declared, “that they ought not to make answer to that question; for it has not been used aforetime that the justices should in any wise determine the privileges of the high court of parliament; for it is so high and mighty in his nature, that it may make law; and that which is law, it may make no law; and the determination and knowledge of that privilege belongs to the lords of parliament, and not to the justices.”37 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. It 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 pretense 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. Some however of the more notorious privileges of the members of either house are, privilege of speech, of person, of their domestics, and of their lands and goods. As to the first, privilege of speech, it is declared by the statute 1 W. & M. St. 2. c. 2. as one of the liberties of the people, “that the freedom of speech, and debates, and proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.” And this freedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every new parliament. So likewise are the other privileges, of person, servants, lands and good; which are immunities as ancient as
Edward the confessor, in whose laws38 we find this precept, “ad synodus venientibus, sive summoniti sint, sive per se quid agendum habuerint, sit summa pax“: and so too, in the old Gothic constitutions, “extenditur haec pax et securitas ad quatuordecim dies, convocato regni senatu.“39 This includes not only privilege from illegal violence, but also from legal arrests, and seizures by process from the courts of law. To assault by violence a member of either house, or his menial servants, is a high contempt of parliament, and there punished with the utmost severity. It has likewise peculiar penalties annexed to it in the courts of law, by the statutes 5 Hen. IV. c. 6. and 11 Hen. VI. c. 11. Neither can any members of either house be arrested and taken into custody, nor served with any process of the courts of law; nor can his menial servants be arrested; nor can any entry be made on his lands; nor can his goods be distrained or seized; without a breach of the privilege of parliament. These privileges however, which derogate from the common law, being only indulged to prevent the member’s being diverted from the public business, endure no longer than the session of parliament, save only as to the freedom of his person: which in a peer is for ever sacred and inviolable; and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting;40 which is now in effect as long as the parliament subsists, it seldom being prorogued for more than fourscore days at a time. As to all other privileges which obstruct the ordinary course of justice, they cease by the statutes 12 W. III. c. 3. and 11 Geo. II. c. 24. immediately after the dissolutions or prorogation of the parliament, or adjournment of the houses for above a fortnight; and during these recesses a peer, or member of the house of commons, may be sued like an ordinary subject, and in consequence of such suits may be dispossessed of his lands and goods. In these cases the king has also his prerogative: he may sue for his debts, though not arrest the person of a member, during the sitting of
parliament; and by statute 2 & 3 Ann. c. 18. a member may be sued during the sitting of parliament for any misdemeanor or breach of trust in a public office. Likewise, for the benefit of commerce, it is provided by statute 4 Geo. III. c. 33, that any trader, having privilege of parliament, may be served with legal process for any just debt, (to the amount of 100£) and unless he makes satisfaction within two months, it shall be deemed an act of bankruptcy; and that commissions of bankrupt may be issued against such privileged traders, in like manner as against any other.
The only way by which courts of justice could anciently take cognizance of privilege of parliament was by writ of privilege, in the nature of a supersedeas, to deliver the party out of custody when arrested in a civil suit.41 For when a letter was written by the speaker to the judges, to stay proceedings against a privileged person, they rejected it as contrary to their oath of office.42 But since the statute 12 W. III. c. 3. which enacts, that no privileged person shall be subject to arrest or imprisonment, it has been held that such arrest is irregular ab initio, and that the party may be discharged upon motion.43 It is to be observed, that there is no precedent of any such writ of privilege, but only in civil suits; and that the statute of 1 Jac. I. c. 13. and that of king William (which remedy some inconveniences arising from privilege of parliament) speak only of civil actions. And therefore the claim of privilege has been usually guarded with an exception as to the case of indictable crimes;44 or, as it has been frequently expressed, of treason, felony, and breach (or surety) of the peace.45 Whereby it seems to have been understood that no privilege was allowable to the members, their families, or servants in any crime whatsoever; for all crimes are treated by the law as being contra pacem domini regis. And instances have not been wanting, wherein privileged persons have been convicted of misdemeanors, and committed, or prosecuted to outlawry, even in the middle of a session;46 which proceeding has afterwards received the sanction and approbation of parliament.47 To which may be added, that, a few years ago, the case of writing and publishing seditious libels was resolved by both houses 48 not to be entitled to privilege, and that the reasons, upon which
that case proceeded,49 extended equally to every indictable offense. So that the chief, if not the only, privilege of parliament, in such cases, seems to be the right of receiving immediate information of the imprisonment or detention of any member, with the reason for which he is detained: a practice that is daily used upon the slightest military accusations, preparatory to a trial by a court martial;50 and which is recognized by the several temporary statutes for suspending the habeas corpus act,51 whereby it is provided, that no member of either house shall be detained, till the matter of which he stands suspected, be first communicated to the house of which he is a member, and the consent of the said house obtained for his commitment or detaining. But yet the usage has uniformly been, ever since the revolution, that the communication has been subsequent to the arrest.
THESE are the general heads of the laws and customs relating to parliament, considered as one aggregate body. We will next proceed to:
IV. THE laws and customs relating to the house of lords in particular. These, if we exclude their judicial capacity, which will be more properly treated of in the third and fourth books of these commentaries, will take up but little of our time.
ONE very ancient privilege is that declared by the charter of the forest,52 confirmed in parliament 9 Hen. III.; viz, that every lord spiritual or temporal summoned to parliament, and passing through the king’s forests, may both in going and returning, kill one or two of the king’s deer without warrant; in view of the forester, if he be present; or on blowing a horn if he be absent, that he may not seem to take the king’s venison by stealth.
IN the next place they have a right to be attended, and constantly are, by the judges of the court of king’s bench and common pleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made sergeants at law; as likewise by the masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings. The secretaries of state, the attorney and solicitor general, and the rest of the king’s learned counsel being sergeants, were also used to attend the house of peers, and have to this day their regular writs of summons issued out at the beginning of every parliament:53 but, as many of them have of late years been members of the house so commons, their attendance is fallen into disuse.
ANOTHER privilege is, that every peer, by license obtained from the king, may make another lord of parliament his proxy, to vote for him in his absence.54 A privilege which a member of the other house can by no means have, as he is himself but a proxy for a multitude of people.55
EACH peer has also a right, by leave of the house, when a vote passes contrary to his sentiments, to enter his dissent on the journals of the house, with the reasons for such dissent on the journals of the house, with the reasons for such dissent; which is usually styled his protest.
ALL bills likewise, that may in their consequences any way affect the rights of the peerage, are by the custom of parliament to have their first rise and beginning in the house of peers, and to suffer no changes or amendments in the house of commons.
THERE is also one statute peculiarly relative to the house of lords; 6 Ann. c. 23. which regulates the election of the sixteen representative peers of North Britain, in consequence of the twenty-second and twenty-third articles of the union: and for that purpose prescribes the oaths, etc, to be taken by the electors; directs the mode of balloting; prohibits the peers electing from being attended in an unusual manner; and expressly provides, that no other matter shall be treated of in that assembly, save only the election, on pain of incurring a praemunire.
V. THE peculiar laws and customs of the house of commons relate principally to the raising of taxes, and the elections of members to serve in parliament.
FIRST, with regard to taxes: it is the ancient indisputable privilege and right of the house of commons, that all grants of subsidies or parliamentary aids do begin in their house, and are first bestowed by them;56 although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature. The general reason, given for this exclusive privilege of the house of commons, is, that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. This reason would be unanswerable, if the commons taxed none but themselves: but it is notorious, that a very large share of property is in the possession of the house of lords; that this property is equally taxable, and taxed, as the property of the commons; and therefore the commons not being the sole persons taxed, this cannot be the reason of their having the sole right of raising and modeling the supply. The true reason, arising from the spirit of our constitution, seems to be this. The lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced to continue so, than the commons, who are a temporary elective body, freely nominated by the people. It would therefore be extremely dangerous, to give them any power of framing new taxes for the subject; it is sufficient, that they have a power of rejecting, if they think the commons too lavish or improvident in their grants. But so reasonably jealous are the commons of this valuable privilege, that herein they will not suffer the other house to exert any power but that of rejecting; they will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; under which appellation are included all bills, by which money is directed to be raised upon the subject, for any purpose or in any shape whatsoever; either for the exigencies of government, and collected from the kingdom in general, as the land tax; on for private benefit, and collected in any particular district; as by turnpikes, parish rates, and the like. Yet Sir Matthew Hale57 mentions one case, founded on the practice of parliament in the reign of Henry VI,58 wherein he thinks the lords may alter a money bill; and that is, if the commons grant a tax, as that of tonnage and poundage, for four years; and the lords alter it to a less time, as for two years; here, he says, the bill need not be sent back to the commons for their concurrence, but may receive the royal assent without farther ceremony; for the alteration of the lords is consistent with the grant of the commons. But such an experiment will hardly be repeated by the lords, under the present improved idea of the privilege of the house of commons: and, in any case where a money bill is remanded to the commons, all amendments in the mode of taxation are sure to be rejected.
NEXT, with regard to the elections of knights, citizens, and burgesses; we may observe that herein consists the exercise of the democratical part of our constitution: for in a democracy there can be no exercise of sovereignty but by suffrage, which is the declaration of the people’s will. In all democracies therefore it is of the utmost importance to regulate by whom, and in what manner, the suffrages are to be given. And the Athenians were so justly jealous of this prerogative, that a stranger, who interfered in the assemblies of the people, was punished by their laws with death: because such a man was esteemed guilt of high treason, by usurping those rights of sovereignty, to which he had no title. In England, where the people do not debate in a collective body buy by representation, the exercise of this sovereignty consists in the choice of representatives. The laws have therefore very strictly guarded against usurpation or abuse of this power, by many salutary provisions; which may be reduced to these three points, 1. The qualifications of the electors. 2. The qualifications of the elected. 3. The proceedings at elections.
1. AS to the qualifications of the electors. The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. But, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.
AND this constitution of suffrages is framed upon a wiser principle than either of the methods of voting, by centuries, or by tribes, among the Romans. In the method by centuries, instituted by Servius Tullius, it was principally property, and not numbers that turned the scale: in the method by tribes, gradually introduced by the tribunes of the people, numbers only were regarded and property entirely overlooked. Hence the laws passed by the former method had usually too great a tendency to aggrandize the patricians or rich nobles; and those by the latter had too much of a leveling principle. Our constitution steers between the two extremes. Only such as are entirely excluded, as can have no will of their own: there is hardly a free agent to be found, but what is entitled to a vote in some place or other in the kingdom. Nor is comparative wealth, or property, entirely disregarded in elections; for though the richest man has only one vote at one place, yet if his property be at all diffused, he has probably a right to vote at more places than one, and therefore has many representatives. This is the spirit of our constitution: not that I assert it is in fact quite so perfect as I have here endeavored to describe it; for, if any alteration might be wished or suggested in the present frame of parliaments, it should de in favor of a more complete representation of the people.
BUT to return to our qualifications; and first those of electors for knights of the shire. 1. By statute 8 Hen. VI. c. 7. and 10 Hen. VI. c. 2. The knights of the shires shall be chosen of people dwelling in the same counties; whereof every man shall have freehold to the value of forty shillings by the year within the county; which by subsequent statutes is to be clear of all charges and deductions, except parliamentary and parochial taxes. The knights of shires are the representatives of the landholders, or landed interest, of the kingdom: their electors must therefore have estates in lands or tenements, within the county represented: these estates must be freehold, that is, for term of life at least; because beneficial leases for long terms of years were not in use at the making of these statutes, and copyholders were then little better than villains, absolutely dependent upon their lord: this freehold must be of forty shillings annual value; because that sum would then, with proper industry, furnish all the necessaries of life, and render the freeholder, if he pleased, an independent man. For bishop Fleetwood, in his chronicon preciosum written about sixty years since, has fully proved forty shillings in the reign of Henry IV to have been equal to twelve pounds per annum in the reign of queen Anne; and, as the value of money is every considerably lowered since the bishop wrote, I think we may fairly conclude, from this and other circumstances, that what was equivalent to twelve pounds in his days is equivalent to twenty at present. The other less important qualifications of the electors for counties in England and Wales may be collected from the statutes cited in the margin;59 which direct, 2. That no person under twenty-one years of age shall be capable of voting for any member. This extends to all sorts of members, as well for boroughs as counties; as does also the next, viz. 3. That no person convicted of perjury, or subornation of perjury, shall be capable of voting in any election. 4. That no person shall vote in right of any freehold, granted to him fraudulently to qualify him to vote. Fraudulent grants are such as contain an agreement to reconvey, or to defeat the estate granted; which agreements are
made void, and the estate is absolutely vested in the person to whom it is so granted. And, to guard the better against such frauds, it is farther provided, 5. That every voter shall have been in the actual possession, or receipt of the profits, of his freehold to his own use for twelve calendar months before; except it came to him by descent, marriage, marriage settlement, will, or promotion to a benefice or office. 6. That no person shall vote in respect of an annuity or rentcharge, unless registered with the clerk of the peace twelve calendar months before. 7. That in mortgaged or trust-estates, the person in possession, under the abovementioned restrictions, shall have the vote. 8. That only one person shall be admitted to vote for any one house or tenement, to prevent the splitting of freeholds. 9. That no estate shall qualify a voter, unless the estate has been assessed to some land tax aid, at least twelve months before the election. 10. That no tenant by copy of court roll shall be permitted to vote as a freeholder. Thus much for the electors in countries.
AS for the electors of citizens and burgesses, these are supposed to be that mercantile part or trading interest of this kingdom. But as trade is of a fluctuating nature, and seldom long fixed in a place, it was formerly left to the crown to summon, pro re nata, the most flourishing towns to send representatives to parliament. So that as towns increased in trade, and grew populous, they were admitted to a share in the legislature. But the misfortune is, that the deserted boroughs continued to be summoned, as well as those to whom their trade and inhabitants were transferred; except a few which petitioned to be eased of the expense, then usual, of maintaining their members: four shillings a day being allowed for a knight of the shire, and two shillings for a citizen or burgess; which was the rate of wages established in the reign of Edward III.60 Hence the members for boroughs now bear above a quadruple proportion to those for counties, and the number of parliament men is increased since Fortescue’s time, in the reign of Henry the sixth, from 300 to upwards of 500, exclusive of those for Scotland. The universities were in general not empowered to send burgesses to parliament; though once, in 28 Edw. I. when a parliament was summoned to consider of the king’s right to Scotland, there were issued writs, required the university of Oxford to send up four or five, and that of Cambridge two or three, of their most discreet and learned lawyers for that purpose.61 But it was king James the first, who indulged them with the permanent privilege to send constantly two of their own body; to serve for those students who, though useful members of the community, were neither concerned in the landed nor the trading interest; and to protect in the legislature the rights of the republic of letters. The right of election in boroughs is various, depending entirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes; though now by statute 2 Geo. II. c. 24. the right of voting for the future shall be allowed according to the last determination of the house of commons concerning it. And by statute 3
Geo. III. c. 15. no freeman of any city or borough (other than such as claim by birth, marriage, or servitude) shall be entitled to vote therein unless he has been admitted to his freedom twelve calendar months before.
2. OUR second point is the qualification of persons to be elected members of the house of commons. This depends upon the law and custom of parliaments,62 and the statutes referred to in the margin.63 And from these it appears, 1. That they must not be aliens born, or minors. 2. That they must not be any of the twelve judges, because they sit in the lords house; nor of the clergy, for they sit in the convocation; nor persons attainted of treason or felony, for they are unfit to sit any where.64 3. That sheriffs of counties, and mayors and bailiffs of boroughs, are not eligible in their respective jurisdictions, as being returning officers;65 but that sheriffs of one county are eligible to be knights of another.66 4. That, in strictness, all members ought to be inhabitants of the places for which they are chosen: but this is entirely disregarded. 5. That no persons concerned in the management of any duties or taxes created since 1692, except the commissioners of the treasury, nor any of the officers following, (viz. commissioners of prizes, transports, sick and wounded, wine licenses, navy, and victualing; secretaries or receivers of prizes; comptrollers of the army accounts; agents for regiments; governors of plantations and their deputies; officers of Minorca or Gibraltar; officers of the excise and customs; clerks or deputies in the several offices of the treasury, exchequer, navy, victualing, admiralty, pay of the army or navy, secretaries of state, salt, stamps, appeals, wine licenses, hackney coaches, hawkers and peddlers) nor any persons that hold any new office under the crown created since 1705, are capable of being elected members. 6. That no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected. 7. That if any member accepts an office under the crown, except an officer in the army or navy accepting a new commission, his seat is void; but such member is capable of being re-elected. 8. That all knights
of the shire shall be actual knights, or such notable esquires and gentlemen, as have states sufficient to be knights, and by no means of the degree of yeomen. This is reduced to a still greater certainty, by ordaining, 9. That every knight of a shire shall have a clear estate of freehold or copyhold to the value of six hundred pounds per annum, and every citizen and burgess to the value of three hundred pounds; except the eldest sons of peers, and of persons qualified to be knights of shires, and except the members for the two universities: which somewhat balances the ascendant which the boroughs have gained over the counties, by obliging the trading interest to make choice of landed men: and of this qualification the member must make oath, and give in the particulars in writing, at the time of his taking his seat. But, subject to these restrictions and disqualifications, every subject of the realm is eligible of common right. It was therefore an unconstitutional prohibition, which was inserted in the king’s writs, for the parliament held at Coventry, 6 Hen. IV, that no apprentice or other man of the law should be elected a knight of the shire therein:67 in return for which, our law books and historians68 have branded this parliament with the name of parliamentum indoctum, or the lack-learning parliament; and Sir Edward Coke observes with some spleen,69 that there was never a good law made thereat.
3. THE third point regarding elections, is the method of proceeding therein. This is also regulated by the law of parliament, and the several statutes referred to in the margin;70 all which I shall endeavor to blend together, and extract out of them a summary account of the method of proceeding to elections.
AS soon as the parliament is summoned, the lord chancellor, (or if a vacancy happens during parliament, the speaker, by order of the house) sends his warrant to the clerk of the crown in chancery; who thereupon issues out writs to the sheriff of every county, for the election of all the members to serve for that county, and every city and borough therein. Within three days after the receipt of this writ, the sheriff is to send his precept, under his seal, to the proper returning officers of the cities and boroughs, commanding them to elect their members; and the said returning officers are to proceed to election within eight days from the receipt of the precept, giving four days notice of the same; and to return the persons chosen, together with the precept, to the sheriff.
BUT elections of knights of the shire must be proceeded to by the sheriffs themselves in person, at the next county court that shall happen after the delivery of the writ. The county is a court held every month or oftener by the sheriff, intended to try little causes not exceeding the value of forty shillings, in what part of the county he pleases to appoint for that purpose: but for the election of knights of the shire, it must be held at the most usual place. If the county court falls upon the day of delivering the writ, or within six days after, the sheriff may adjourn the court and election to some other convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place, without the consent of all the candidates; and in all such cases ten days public notice must be given of the time and place of the election.
AND as it is essential to the very being of parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited. For Mr. Locke71 ranks it among those breaches of trust in the executive magistrate, which according to his notions amount to a dissolution of the government, “if he employs the force, treasure, and offices of the society to corrupt the representatives, or openly to preengage the electors, and prescribe what manner of persons shall be chosen. For thus to regulate candidates and electors, and new model the ways of election, what is it, says he, but to cut up the government by the roots, and poison the very fountain of public security?” As soon therefore as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not return till one day after the poll is ended. Riots likewise have been frequently determined to make an election void. By vote also of the house of commons, to whom alone belongs the power of determining contested elections, no lord of parliament, or lord lieutenant of a county, has any right to interfere in the election of commoners; and, by statute, the lord warden of the cinque ports shall not recommend any members there. If any officer of the excise, customs, stamps, or certain other branches of the revenue, presumes to intermeddle in elections, by persuading any voter or dissuading him, he forfeits 100£, and is disabled to hold any office.
THUS are the electors of one branch of the legislature secured from any undue influence from either of the other two, and from all external violence and compulsion. But the greatest danger is that in which themselves co-operate, by the infamous practice of bribery and corruption. To prevent which it is enacted that no candidate shall, after the date (usually called the teste) of the writs, or after the vacancy, give any money or entertainment to his electors, or promise to give any, either to particular persons, or to the place in general, in order to his being elected; on pain of being incapable to serve for that place in parliament. And if any money, gift, office, employment, or reward be given or promised to be given to any voter, at any time, in order to influence him to give or withhold his vote, both he that takes and he that offers such bribe forfeits 500 l, and is for ever disabled from voting and holding any office in any corporation; unless, before conviction, he will discover some-other offender of the same kind, and then he is indemnified for his own offense.72 The first instance that occurs of election bribery, was so early as 13 Eliz. when one Thomas Longe (being a simple man and of small capacity to serve in parliament) acknowledged that he had given the returning officer and other of the borough of Westbury four pounds to be returned member, and was for that premium elected. But for this offense the borough was amerced, the member was removed, and the officer fined and imprisoned.73 But, as this practice has since taken much deeper and more universal root, it has occasioned the making of these wholesome statutes; to complete the efficacy of which, there is nothing wanting but resolution and integrity to put them in strict execution.
UNDUE influence being thus (I wish the depravity of mankind would permit me to say, effectually) guarded against, the election is to be proceeded to on the day appointed; the sheriff or other returning officer first taking an oath against bribery, and for the due execution of his office. The candidates likewise, if required, must swear to their qualification; and the electors in counties to theirs; and the electors both in counties and boroughs are also compellable to take the oath of abjuration and that against bribery and corruption. And it might not be amiss, if the members elected were bound to take the latter oath, as well as the former; which in all probability would be much more effectual, than administering it only to the electors.
THE election being closed, the returning officer in boroughs returns his precept to the sheriff, with the persons elected by the majority: and the sheriff returns the whole, together with the writ for the county and the knights elected thereupon, to the clerk of the crown in chancery; before the day of meeting, if it be a new parliament, or within fourteen days after the election, if it be an occasional vacancy; and this under penalty of 500£ If the sheriff does not return such knights only as are duly elected, he forfeits, by the old statutes of Henry VI, 100£; and the returning officer in borough for a like false return 40 l; and they are besides liable to an action, in which double damages shall be recovered, by the later statutes of king William: and any person bribing the returning officer shall also forfeit 300£ But the members returned by him are the sitting members, until the house of commons, upon petition, shall adjudge the return to be false and illegal. And this abstract of the proceedings at elections of knights, citizens, and burgesses, concludes our inquiries into the laws and customs more peculiarly relative to the house of commons.
VI. I PROCEED now, sixthly, to the method of making laws; which is much the same in both houses: and I shall touch it very briefly, beginning in the house of commons. But first I must premise, that for dispatch of business each house of parliament has its speaker. The speaker of the house of lords is the lord chancellor, or keeper of the king’s great seal, or any other appointed by the king’s commission: and, if none be so appointed, the house of lords (it is said) may elect; whose office it is to preside there, and manage the formality of business. The speaker of the house of commons is chosen by the house; but must be approved by the king. And herein the usage of the two houses differs, that the speaker of the house of commons cannot give his opinion or argue any question in the house; but the speaker of the house of lords may. In each house the act of the majority binds the whole; and this majority is declared by votes openly and publicly given: not as at Venice, and many other senatorial assemblies, privately or by ballot. This latter method may be serviceable, to prevent intrigues and unconstitutional combinations: but is impossible to be practiced with us; at least in the house of commons, where every member’s conduct is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection.
TO bring a bill into the house, if the relief sought by it is of a private nature, it is first necessary to prefer a petition; which must be presented by member, and usually sets forth the grievance desired to be remedied. This petition (when founded on facts that may be in their nature disputed) is referred to a committee of members, who examine the matter alleged, and accordingly report it to the house; and then (or, otherwise, upon the mere petition) leave is given to bring in the bill. In public matters the bill is brought in upon motion made to the house, without any petition at all. formerly, all bills were drawn in the form of petitions, which were entered upon the parliament rolls, with the king’s answer thereunto subjoined; not in any settled form of words, but as the circumstances of the case required:74 and at the end of each parliament the judges drew them into the form of a statute, which was entered on the statute-rolls. In the reign of Henry V, to prevent mistakes and abuses, the statutes were drawn up by the judges before the end of the parliament; and, in the reign of Henry VI, bills in the form of acts, according to the modern custom, were first introduced.
THE persons, directed to bring in the bill, present it in a competent time to the house, drawn out on paper, with a multitude of blanks, or void spaces, where anything occurs that is dubious, or necessary to be settled by the parliament itself; (such, especially, as the precise date of times, the nature and quantity of penalties, or of any sums of money to be raised) being indeed only the skeleton of the bill. In the house of lords, if the bill begins there, it is (when of a private nature) perused by two of the judges, who settle all points of legal propriety. This is read a first time, and at a convenient distance a second time; and after each reading the speaker opens to the house the substance of the bill, and puts the question, whether it shall proceed any farther. The introduction of the bill may be originally opposed, as the bill itself may at either of the readings; and, if the opposition succeeds, the bill must be dropped for that sessions; as it must also, if opposed with success in any of the subsequent stages.
AFTER the second reading it is committed, that is, referred to a committee; which is either selected by the house in matters of final importance, or else, upon a bill of consequence, the house resolves itself into a committee of the whole house. A committee of the whole house is composed of every member; and, to form it, the speaker quits the chair, (another member being appointed chairman) and may sit and debate as a private member. In these committees the bill is debated clause by clause, amendments made, the blanks filled up, the sometimes the bill entirely new modeled. After it has gone through the committee, the chairman reports it to be house with such amendments as the committee have made; and then the house reconsider the whole bill again, and the question is repeatedly put upon every clause and amendment. When the house have agreed or disagreed to the amendments of the committee, and sometimes added new amendments of their own, the bill is then ordered to be engrossed, or written in a strong gross hand, on one or more long rolls of parchment sewed together. When this is finished, it is read a third time, and amendments are sometimes then made to it; and, if a new clause be added, it is done by tacking a separate piece of parchment on the bill, which is called a rider. The speaker then again opens the contents; and, holding it up in his hands, pus the question, whether the bill shall pass. If this is agreed to, the title to it is then settled; which used to be a general one for all the acts passed in the session, till in the fifth year of Henry VIII distinct titles were introduced for each chapter.75 After this, one of the members is directed to carry it to the lords, and desire their concurrence; who, attended by several more, carries it to the bar of the house of peers, and there delivers it to their speaker, who comes down from his woolsack to receive it.
IT there passes through the same forms as in the other house, (except engrossing, which is already done) and, if rejected, no more notice is taken, but it passes sub silentio, to prevent unbecoming altercations. But if it is agreed to, the lords send a message by two masters in chancery (or sometimes two of the judges) that they have agreed to the same: and the bill remains with the lords, if they have made no amendment to it. But if any amendments are made, such amendments are sent down with the bill to receive the concurrence of the commons. If the commons disagree to the amendments, a conference usually follows between members deputed from each house; who for the most part settle and adjust the difference: but, if both houses remain inflexible, the bill is dropped. If the commons agree to the amendments, the bill is sent back of the lords by one of the members, with a message to acquaint them therewith. The same forms are observed, mutates mutandis, when the bill begins in the house of lords. But, when an act of grace or pardon is passed, it is first signed by his majesty, and then read once only in each of the houses, without any new engrossing or amendment.76 And when both houses have done with the bill, it always is deposited in the house of peers, to wait the royal assent.77
THIS may be given two ways: 1. In person; when the king comes to the house of peers, in his crown and royal robes, and sending for the commons to the bar, the titles of all bills that have passed both houses are read; and the king’s answer is declared by the clerk of the parliament in Norman-French: a badge, it must be owned, (now the only one remaining) of conquest; and which one could wish to see fall into total oblivion; unless it be reserved as a solemn memento to remind us that our liberties are mortal, having once been destroyed by a foreign force. If the king consents to a public bill, the clerk usually declares, “le roy le veut, the king wills it so to be;” if to a private bill. “soit fait come il est desirè, be it as it is desired.” If the king refuses his assent, it is in the gentle language of “le roy s’avisera, the king will advise upon it.” When a money bill is passed, it is carried up and presented to the king by the speaker of the house of commons;78 and the royal assent is thus expressed, “le roy remercie ses loyal subjects, accepte lour benevolence, et aussi le vent, the king thanks his loyal subjects, accepts their benevolence, and wills it so to be.” In case of an act of grace, which originally proceeds from the crown and has the royal assent in the first stage of it, the clerk of the parliament thus pronounces the gratitude of the subject; “les prelates, seigneurs, et commons, en ce present parliament assemblies, au nom de touts vous autres subjects, remercient tres humblement votre majeste, et prient a Diex vous donner en sante bone vie et longue; the prelates, lords, and commons, in this present parliament assembled, in the name of all your other subjects, most humbly thank your majesty, and pray to God to grant you in health and wealth long to live.”79 2. By statute 33 Hen. VIII. c. 21 the king may give his assent by letters patent under his great seal, signed with his hand, and notified, in his absence, to both houses assembled together in the high house. And, when the bill has received the royal assent in either of these ways, it is then, and not before, a statute or act of parliament.
THIS statute or act is placed among the records of the kingdom; there needing no formal promulgation to give it the force of a law, as was necessary by the civil law with regard to the emperors edicts: because every man in England is, in judgment of law, party to the making of an act of parliament, being present thereat by his representatives. However, a copy thereof is usually printed at the king’s press, for the information of the whole land. And formerly, before the invention of printing, it was used to be published by the sheriff of every county; the king’s writ being sent to him at the end of every session, together with a transcript of all the acts made at that session, commanding him “ut statuta illa, et omnes articulos in eisdem contentos, in singulis locis ubi expedire viderit, publice proclamari, et firmiter teneri et observari faciat.” And the usage was to proclaim them at his county court, and there to keep them, that whoever would might read or take copies thereof; which custom continued till the reign of Henry the seventh.80
AN act of parliament, thus made, is the exercise of the highest authority that this kingdom acknowledges upon earth. It has power to bind every subject in the land, and the dominions thereunto belonging; nay, even the king himself, if particularly named therein. And it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament: for it is a maxim in law, that it requires the same strength to dissolved, as to create an obligation. It is true it was formerly held, that the king might in many cases dispense with penal statutes:81 but now by statute 1 W. & M. St. 2. c. 2. it is declared, that the suspending or dispensing with laws by regal authority, without consent of parliament, is illegal.
VII. THERE remains only, in the seventh and last place, to add a word or two concerning the manner in which parliaments may be adjourned, prorogued, or dissolved.
AN adjournment is no more than a continuance of the session from one day to another, as the word itself signifies: and this is done by the authority of each house separately every day; and sometimes for a fortnight or a month together, as at Christmas or Easter, or upon other particular occasions. But the adjournment of one house is no adjournment of the other.82 It has also been usual, when his majesty has signified his pleasure that both or either of the houses should adjourn themselves to a certain day, to obey the king’s pleasure so signified, and to adjourn accordingly.83 Otherwise, besides the indecorum of a refusal, a prorogation would assuredly follow; which would often be very inconvenient to both public and private business. For prorogation puts an end to the session; and then such bills, as are only begun and not perfected, must be resumed de novo (if at all) in a subsequent session: whereas, after an adjournment, all things continue in the same state as at the time of the adjournment made, and may be proceeded on without any fresh commencement.
A PROROGATION is the continuance of the parliament from one session to another, as an adjournment is a continuation of the session from day to day. This is done by the royal authority, expressed either by the lord chancellor in his majesty’s presence, or by commission from the crown, or frequently by proclamation. Both houses are necessarily prorogued at the same time; it not being a prorogation of the house of lords, or commons, but of the parliament. The session is never understood to be at an end, until a prorogation: though, unless some act be passed or some judgment given in parliament, it is in truth no session at all. And formerly the usage was, for the king to give the royal assent to all such bills as he approved, at the end of every session, and then to prorogue the parliament;84 though sometimes only for a day or two:85 after which all business then depending in the houses was to be begun again. Which custom obtained so strongly, that it once became a question,86 whether giving the royal assent to a single bill did not of course put an end to the session. And, though it was then resolved in the negative, yet the notion was so deeply rooted, that the statute 1 Car. I. c. 7. was passed to declare, that the king’s assent to that and some other acts should not put an end to the session; and even so late as the restoration of Charles II, we find a proviso tacked to the first bill then enacted,87 that his majesty’s assent thereto should not determine the session of parliament. But it now seems to be allowed, that a prorogation must be expressly made, in order to determine the session. And, if at the time of an actual rebellion, or imminent danger of invasion, the parliament shall be separated by adjournment or prorogation, the king is empowered88 to call them together by proclamation, with fourteen days notice of the time appointed for their reassembling.
A DISSOLUTION is the civil death of the parliament; and this may be effected three ways: 1. By the king’s will, expressed either in person or by representation. For, as the king has the sole right of convening the parliament, so also it is a branch of the royal prerogative, that he may (whenever he pleases) prorogue the parliament for a time, or put a final period to its existence. If nothing had a right to prorogue or dissolve a parliament but itself, it might happen to become perpetual. And this would be extremely dangerous, if at any time it should attempt to encroach upon the executive power: as was fatally experienced by the unfortunate king Charles the first; who, having unadvisedly passed an act to continue the parliament then in being till such time as it should please to dissolved itself, at last fell a sacrifice to that inordinate power, which he himself had consented to give them. It is therefore extremely necessary that the crown should be empowered to regulate the duration of these assemblies, under the limitations which the English constitution has prescribed: so that, on the one hand, they may frequently and regularly come together, for the dispatch of business and redress of grievances; and may not, on the other, even with the consent of the crown, be continued to an inconvenient or unconstitutional length.
2. A PARLIAMENT may be dissolved by the demise of the crown. This dissolution formerly happened immediately upon the death of the reigning sovereign, for the being considered in law as the head of the parliament, (caput, principium, et finis) that failing, the whole body was held to be extinct. But, the calling a new parliament immediately on the inauguration of the successor being found inconvenient, and dangers being apprehended from having no parliament in being in case of a disputed succession, it was enacted by the statutes 7 & 8 W. III. c. 15, and 6 Ann. c. 7. that the parliament in being shall continue for six months after the death of any king or queen, unless sooner prorogued or dissolved by the successor: that, if the parliament be, at the time of the king’s death, separated by adjournment or prorogation, it shall notwithstanding assemble immediately: and that, if no parliament is then in being, the members of the last parliament shall assemble, and be again a parliament.
3. LASTLY, a parliament may be dissolved or expire by length of time. For if either the legislative body were perpetual; or might last for the life of the prince who convened them, as formerly; and were so to be supplied, by occasionally filling the vacancies with new representatives; in these cases, if it were once corrupted, the evil would be past all remedy: but when different bodies succeed each other, if the people see cause to disapprove of the present, they may rectify its faults in the next. A legislative assembly also, which is sure to be separated again, (whereby its members will themselves become private men, and subject to the full extent of the laws which they have enacted for others) will think themselves bound, in interest as well as duty, to make only such laws as are good. The utmost extent of time that the same parliament was allowed to sit, by the statute 6 W. & M. c. 2. was three years; after the expiration of which, reckoning from the return of the first summons, the parliament was to have no longer continuance. But by the statute 1 Geo. I. St. 2. c. 38. (in order, professedly, to prevent the great and continued expenses of frequent elections, and the violent heats and animosities consequent thereupon, and for the peace and security of the government then just recovering from the late rebellion) this term was prolonged to seven years; and, what alone is an instance of the vast authority of parliament, the very same house, that was chosen for three years, enacted its own continuance for seven. So that, as our constitution now stands, the parliament must expire, or die a natural death, at the end of every seventh year; if not sooner dissolved by the royal prerogative.
1. Mod. Un. hist. xxiii. 307; The first mention of it in our statute law is in the preamble to the statute of Westm. 1. 3. Edw. I. A. D. 1272.
2. De minoribus rebus principes consultant, de majoribus omnes. Tac, de mor, Germ. c. 11.
3. These were assembled for the last time, A. D. 1561. See Whitelocke of Parl. c. 72.
4. Glanvil. L. 13. c. 32. l. 9. c. 10. Pref. 9 Rep. 2 Inst. 526.
5. l. 2. c. 2.
6. c. 1. §. 3.
7. Quanta esse debeat per nullam assissam generalem determinatum est, sed pro consuetudire su galorum comitatuum debetum. L. 9. c. 10.
8. Year book, 21 Edw. III. 60.
9. By motives somewhat similar to these the republic of Venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chosen by the several districts of the Venetian territory, and constituted a doge in their stead; in whom the executive power of the state at present resides. For which their historians have assigned these, as the principal reasons. 1. The propriety of having the executive power a part of the legislative, or senate; to which the former annual magistrates were not admitted. 2. The necessity of having a single person to convoke the great council when separated. Mod. Un. hist. xxvii. 15.
10. Stat, 12 Car. II. C. 1.
11. 1 Sid. 1. See Stat. 13 Car. II. c. 7.
12. 4 Edw. III. c. 14. and 36 Edw. III. c. 10.
13. This is same period, that is allowed in Sweden for intermitting their general diets, or parliamentary assemblies. Mod. Un. hist. xxxiii. 15.
14. 4 Inst. 1.
15. 4 Inst. 6.
16. Sulla .. tribunis plebis sua lege injuriae faciendae potestatem ademit, auxilii ferendi reliquit. de LL. 3. 9.
17. Seld. tit. hon. 2. 5. 27.
18. Co. Litt. 97.
19. Gilb. hist. Exch 55. Spelm. W. I. 291.
20. Glanv. 7. 1. Co. Litt. 97. Seld. tit. hon. 2. 5. 19.
21. Whitelocke on Par. c. 72. Warburt. Alliance. b. 2. c. 3.
22. Dyer. 60.
23. Baronage. p. 1. c. 6. The act of uniformity, 1 Eliz. c. 2. was passed with the dissent of all the bishops; (Gibs. Cod. 268.) and therefore the style of lords spiritual is omitted throughout the whole.
24. 2 Inst. 585, 6, 7. See Keilw. 184; where it is held by the judges, 7 Hen. VIII, that the king may hold a parliament without any spiritual lords. This was also exemplified in fact in the two first parliaments of Charles II; wherein no bishops were summoned, till after the repeal of the stat. 16 Car. I. c. 27. by stat. 13 Car. II. St. 1. c. 2.
25. 4 Inst. 25.
26. Staunford. P. C. 153.
27. Mod. Un. hist. xxxiii. 18.
28. 4 Inst. 14.
29. 4 Jan. 1648.
30. 4 Inst. 36.
31. of parliaments. 49.
32. Sp. L. 11. 6.
33. on Gov. p. 2. §. 149, 227.
34. 4 Inst. 47.
35. 1 Inst. 11.
36. 4 Inst. 50.
37. Seld. Baronage. part. 1. c. 4.
38. cap. 3.
39. Stiernh. de jure Goth. l. 3. c. 3.
40. 2 Lev. 72.
41. Dyer. 59. 4. Pryn. Brev. Parl. 757.
42. Latch. 48. Noy. 83.
43. Stra. 989.
44. Com. Journ. 17 Aug. 1641.
45. 4 Inst. 25. Com. Journ. 20. May. 1675.
46. Mich. 16 Edw. IV. In Soacob. - Lord Raym. 146.
47. Com. Journ. 16 May. 1726.
48. Com. Journ. 24 Nov. Lord’s Journ. 29 Nov. 1763.
49. Lords Protest. Ibid.
50. Com, Jour. 20 Apr. 1762.
51. particularly 17 Geo. II. c. 6.
52. cap. 11.
53. Stat. 3. Hen. VIII. c. 10. Smith’s common w. b. 2. c. 3. Moor. 551. 4 Inst. 4. Hale of parl. 140.
54. Seld. baronage. p. 1. c. 1.
55. 4 Inst. 12.
56. 4 Inst. 29.
57. on parliaments, 65, 66.
58. Year book, 33 Hen. VI. 17. See the answer to this case by Sir Heneage Finch, Com. Journ. 22 Apr. 1671.
59. 7 & 8 W. III. c. 25. 10 Ann. c. 23. 2 Geo. II. c. 21. 18 Geo. II. c. 18. 31 Geo. II. c. 14. 3 Geo. III. c. 24.
60. 4 Inst. 16.
61. Prynne parl. writs. I. 345.
62. 4 Inst. 47.
63. 1. Hen. V. c. 1. 23 Hen. IV. c. 15. 1 W. & M. St. 2. c. 2. 5 & 6 W. & M. c. 7. 11 & 12 W. III. c. 2. 12 & 13 W. III. c. 10. 6 Ann c. 7. 7. 9 Ann. c. 5. 1 Geo. I. c. 56. 15 Geo. II. c. 22. 33. Geo. II. c. 20.
64. 4 Inst. 47.
65. Hale of parl. 114.
66. 4 Inst. 48.
67. Pryn. on 4 Inst. 13.
68. Walfingh. A. D. 1405.
69. 4 Inst. 48.
70. 7 Hen. IV. c. 15. 8 Hen. VI. c. 7. 13 W. III. c. 10. 6 Ann. c. 23. 9 Ann. 23 Hen. VI. c. 15. 1 W. & M. St. 1. c. 2. c. 5. 10 Ann. c. 19. and c. 23. 2. Geo. II. 2 W. & M. St. 1. c. 7. 5 & 6 W. & M. c. 24. 8 Geo. II. c. 30. 18 Geo. II. c. 18. c. 20. 7 W. III. c. 4. 7 & 8 W. III. c. 7. 19 Geo. II. c. 28. and c. 25. 10 & 11 W. III. c. 7. 12 &
71. on Gov. part 2. §. 222.
72. In like manner the Julian law de ambitu inflicts fines and infamy upon all who were guilty of corruption at elections; but, if the person guilty convicted another offender, he was restored to his credit again. Ff. 48. 14. 1.
73. 4 Inst. 23. Hale of parl. 112. Com. Journ. 10 & 11 may 1571.
74. See, among numberless other instances, the articuli cleri, 9 Edw. II.
75. Lord Bacon on uses. 80. 326.
76. D’ewes journ. 20. 73. Com. journ. 17 June. 1747.
77. Com. journ. 24 Jul. 1660.
78. Rot. Parl. 9 Hen. IV. in Pryn. 4 Inst. 30, 31.
79. D’ewes journ. 35.
80. 3 Inst. 41. 4 Inst. 26.
81. Finch L. 81. 234.
82. 4 Inst. 28.
83. Com. Journ. passim: e. g. 11 11 Jun. 1572. 5 Par. 1604. 4. Jun. 14 Nov. 18 Dec. 1621. 11 Jul. 1625. 13 Sept. 1660. 25 Jul. 1667. 4 Aug. 1685. 24 Febr. 1691. 21 Jun. 1712. 16 Apr. 1717. 3 . 1741. 10 Dec. 1745.
84. 4 Inst. 28. Hale of parl. 38.
85. Com. Journ. 21 Oct. 1553.
86. Ibid. 21 Nov. 1554.
87. Stat. 12 Car. II. c. 1.
88. Stat. 30 Geo. II. c. 25.