Front Page Titles (by Subject) CHAPTER II.: OF THE PARLIAMENT. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER II.: OF THE PARLIAMENT. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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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 or governed; or, in other words, as magistrates and people. Of magistrates, some also 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 of both 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 intrust 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 **147]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.1
The original or first institution of parliament is one of those matters which 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, (parlement or colloquium, as some of our historians translate it,) is comparatively of modern date; derived from the French, and signifying an assembly that met and conferred together.2 It was first applied to general assemblies of the states under Louis VII. in France, about the middle of the twelfth century.(a) 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,(b) 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;(c) for what is there now called the parliament is only the supreme court of justice, consisting of the peers, certain dignified ecclesiastics, and judges, 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 hath been held immemorially, under the several names of michel-synoth, or great council, michel-gemote, or great meeting, and more **148]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 Angliæ.(d) We have instances of its meeting to order the affairs of the kingdom, to make new laws, and to mend the old; or, as Fleta(e) 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 Mirror(f) 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 from 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 “hæc sunt instituta quæ Edgarus rex consilio sapientum suorum instituit;” or to be enacted by those sages with the advice of the king, as, “hæc sunt judicia, quæ sapientes consilio regis Ethelstani instituerunt;” or lastly, to be enacted by them both together, as, “hæc sunt institutiones, quas rex Edmundus et episcopi sui cum sapientibus suis instituerunt.”
There is also no doubt but these great councils were occasionally held 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 been yet ascertained by the general assize, or assembly, but was left to the custom of particular counties.(g) Here the general assize is spoken of as a meeting well known, and its statutes or decisions are put in **149]a manifest contradistinction to custom, 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. Edmunds-bury, and judicially allowed by the court.(h)
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 learned antiquaries; 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, ad 1215, in the great charter granted by that prince; wherein he promises to summon all archbishops, 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 at least 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.
**150]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.3 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.(i) 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 it is to sit again for six months, unless dissolved by the successor: for this revived parliament must have been originally summoned by the crown.
*[*151It 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 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.(k) 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 waive 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,(l) 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.4 And yet out of abundant caution, it was thought necessary to confirm its acts in the next parliament, by statute 13 Car. II. c. 7, and c. 14.
**152]It is likewise true, that at the time of the revolution, ad 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 a full conviction that king James the Second had abdicated the government, and that the throne was thereby vacant: which supposition of the individual members 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. and 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.
**153]And this, by the ancient statutes of the realm,(m) 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 despatch of business, if need be.5 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 pretence 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. and 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. and M. c. 2, which enacts, as the statute of Charles the Second had done before, that a new parliament shall be called within three years(n) after the determination of the former.6
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. And the king and these three estates, together, form the great corporation or body politic of the kingdom,(o) 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;(p) and he also has alone the power of dissolving them.
**154]It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislative. 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 legislative 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 oppression 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.(q) 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 **155]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 very 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,(r) which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors. 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 itself, 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.7
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 at present refer.
The next in order are the spiritual lords. These consist of two archbishops and twenty-four bishops,8 and, at the dissolution of monasteries by Henry VIII., consisted likewise of twenty-six mitred abbots, and two priors:(s) a very considerable body, and in those times equal in number to the temporal nobility.(t)9 All these hold, or are supposed to hold, **156]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 feodal or Norman tenure by barony, which subjected their estates to all civil charges and assessments, from which they were before exempt:(u) and, in right of succession to those baronies, which were unalienable from their respective dignities, the bishops and abbots were allowed their seats in the house of lords.(x)10 But though these lords spiritual are, in the eye of the law, a distinct estate from the lords temporal, and are so distinguished in most of 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 argued(y) very cogently, that the lords temporal and spiritual are now, in reality, only one estate,(z) 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 validity, though every lord spiritual should vote against it; of which Selden,(a) and Sir Edward Coke,(b) 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 Sir Edward Coke seems to doubt(c) whether this would not be an ordinance, rather than an act, of parliament.
*[*157The lords temporal consist of all the peers of the realm,11 (the bishops not being in strictness held to be such, but merely lords of parliament,)(d) by whatever title of nobility distinguished, dukes, marquisses, earls, vicounts, 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.12
The distinction of rank and honours 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 ardour, 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 honour is derived. Such a spirit, when nationally diffused, gives life and vigour to the community; it sets all the wheels of government in motion, **158]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 property in the kingdom as have not seats in the house of lords; every one of whom has 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 **159]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 Cæsar, to trample on the liberties of their country, and at last to dissolve the commonwealth. In so large a state as ours, it is therefore very 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 citizens 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.(e) The number of English representatives is 513, and of Scots 45; in all, 558.13 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 summons)(f) “de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum, defensionem regni Angliæ et ecclesiæ Anglicanæ 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.
*[*160These 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,(g) “that whatever is enacted or declared for law by the commons in parliament assembled hath the force of law; and all the people of this nation are concluded 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 præmunire.14
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,(h) 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 hath sovereign and uncontrollable authority in the 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: this being the place where that absolute despotic power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms. All mischiefs and **161]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 reign 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 every thing 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 the parliament doth, 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 apophthegm of the great lord treasurer Burleigh, “that England could never be ruined but by a parliament;” and, as Sir Matthew Hale observes,(i) “this being the highest and greatest court, over which none other can 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(k) 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 than the executive.
It must be owned that Mr. Locke,(l) 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 **162]reposed in them; for, when such trust is absued, it is thereby forfeited, and devolves to those who gave it.” But however just this conclusion may be in theory, we cannot practically adopt it, nor take any legal steps for carrying it into execution, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people; reduces all the members to their original state of equality; and, by annihilating the sovereign power, repeals all positive laws whatsoever before enacted. No human laws will therefore suppose 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.(m) So long therefore as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.15
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 by the custom and law of parliament,(n) that no one shall sit or vote in either house, unless he be twenty-one years of age. This is also expressly declared by statute 7 and 8 W. III. c. 25, with regard to the house of commons; doubts having arisen from some contradictory adjudications, whether or no a minor was incapacitated from sitting in that house.(o)16 It is also enacted, by statute 7 Jac. I. c. 6, that no member be permitted to enter into the house of commons, till he hath taken the oath of allegiance before the lord steward or his deputy; and, by 30 Car. II. st. 2, and 1 Geo. I. c. 13,17 that no member shall vote or sit in either house, till he hath in the presence of the house taken the oath of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation, and invocation of saints, and the sacrifice of the mass.18 Aliens, unless naturalized, were likewise by the law of parliament incapable to serve therein:(p) and now it is enacted, by statute 12 and 13 W. III. c. 3, that no alien, **163]even though he be naturalized, shall be capable of being a member of either house of parliament. And there are not only these standing incapacities; but if any person is made a peer by the king, or elected to serve in the house of commons by the people, yet may the respective houses, upon complaint of any crime in such person, and proof thereof, adjudge him disabled and incapable to sit as a member:(q) and this by the law and custom of parliament.19
For, as every court of justice hath 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 hath also its own peculiar law, called the lex et consuetudo parliamenti; a law which, Sir Edward Coke(r) observes, is “ab omnibus quærenda a multis ignorata,20a paucis cognita.”(s) 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,(t) 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.”(u) Hence, for instance, the lords will not suffer the commons to interfere in settling the election of a peer of Scotland; the commons will not allow the lords to judge of the election of a burgess; nor will either house permit the subordinate courts of law to examine the merits of either case.21 But the maxims upon which they proceed, together with the method of proceeding, rest entirely in the breast of the parliament itself; and are not defined and ascertained by any particular stated laws.22
**164]The privileges of parliament are likewise very large and indefinite. And therefore when in 31 Hen. VI. the house of lords propounded a question to the judges concerning them, the chief justice, Sir John Fortescue, in the name of his brethren, declared, “that they ought not to make answer to that question: for it hath 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 its 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.”(x) 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. If 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 pretence 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.23 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.24 As to the first, privilege of speech, it is declared by the statute 1 W. and 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.25 So likewise are the other privileges, of persons, servants, lands, and goods: which are immunities as ancient as Edward the Confessor; in whose laws(z) *[*165we find this precept, “ad synodos venientibus sive summoniti sint, sive per se quid agendum habuerint, sit summa pax; and so too, in the old Gothic constitutions, “extenditur hæc pax et securitas ad quatuordecim dies, convocato regni senatu.”(a) This included formerly not only privilege from illegal violence, but also from legal arrests, and seizures by process from the courts of law. And still, to assault by violence a member of either house, or his menial servant, 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 Henry IV. c. 6, and 11 Hen. VI. c. 11. Neither can any member of either house be arrested and taken into custody, unless for some indictable offence, without a breach of the privilege of parliament.26
But all other privileges which derogate from the common law in matters of civil right are now at an end, save only as to the freedom of the member’s person: which in a peer (by the privilege of peerage) is forever sacred and inviolable; and in a commoner (by the privilege of parliament) for forty days after every prorogation, and forty days before the next appointed meeting;(b) 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 were restrained by the statutes 12 W. III. c. 3, 2 and 3 Anne, c. 18, and 11 Geo. II. c. 24, and are now totally abolished by statute 10 Geo. III. c. 50, which enacts that any suit may at any time be brought against any peer or member of parliament, their servants, or any other person entitled to privilege of parliament; which shall not be impeached or delayed by pretence of any such privilege; except that the person of a member of the house of commons shall not thereby be subjected to any arrest of imprisonment. Likewise, for the benefit of commerce, it is provided by statute 4 Geo. III. c. 34, that any trader, having privilege of parliament, may be served **166]with legal process for any just debt to the amount of 100l., and unless he make 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.(c) 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.(d) But since the statute 12 W. III. c. 3, which enacts that no privileged person shall be subject to arrest or imprisonment, it hath been held that such arrest is irregular ab initio, and that the party may be discharged upon motion.(e) 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 hath been usually guarded with an exception as to the case of indictable crimes;(f) or, as it has been frequently expressed, of treason, felony, and breach (or surety) of the peace.(g) 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 misdemesnors, and committed, or prosecuted to outlawry: even in the middle of a session;(h) which proceeding has afterwards received the sanction and approbation of parliament.(i) *[*167To which may be added, that a few years ago the case of writing and publishing seditious libels was resolved by both houses(k) not to be entitled to privilege;27 and that the reasons upon which that case proceeded(l) extended equally to every indictable offence.28 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 accusation, preparatory to a trial by a court martial;(m) and which is recognised by the several temporary statutes for suspending the habeas corpus act;(n) 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,(o) 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 *[*168warrant; 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 serjeants at law; as likewise by the king’s learned counsel, being serjeants, and 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, with the attorney and solicitor general, were also used to attend the house of peers, and have to this day (together with the judges, &c.) their regular writs of summons issued out at the beginning of every parliament,(p)ad tractandum et consilium impendendum, though not ad consentiendum; but, whenever of late years they have been members of the house of commons,(q) their attendance here hath fallen into disuse.29
Another privilege is, that every peer, by license obtained from the king,30 may make another lord of parliament his proxy, to vote for him in his absence.(r) 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 other people.(s)
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; which is usually styled his protest.31
All bills likewise, that may in their consequences any way affect the right 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.
**169]There is also one statute peculiarly relative to the house of lords; 6 Anne, 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, &c. 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 præmunire.
V. The peculiar laws and customs of the house of commons relate principally to the raising of taxes, and the election 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;(t) although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature.32 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 modelling 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 *[*170nominated by the people. It would therefore be extremely dangerous to give the lords 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; or for private benefit, and collected in any particular district, as by turnpikes, parish rates, and the like.33 Yet Sir Matthew Hale(u) mentions one case, founded on the practice of parliament in the reign of Henry VI.,(w) 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 further 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 election 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 *[*171be 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 guilty 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, but by representation, the exercise of his 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, with us, than either of the methods of voting, by centuries or by tribes, among the Romans. In the method **172]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 levelling principle. Our constitution steers between the two extremes. Only such are entirely excluded, as can have no will of their own: there is hardly a free agent to be found, who is not 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(x) as I have here endeavoured to describe it; for, if any alteration might be wished or suggested in the present frame of parliaments, it should be in favour of a more complete representation of the people.34
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, (amended by 14 Geo. III. c. 58,35 ) the knights of the shire shall be chosen of people 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.36 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 villeins, absolutely dependent upon their lords: this freehold must be of forty shillings annual value; because that sum would then, with proper industry, furnish all the *[*173necessaries of life, and render the freeholder, if he pleased, an independent man. For Bishop Fleetwood, in his chronicon preciosum, written at the beginning of the present century, has fully proved forty shillings in the reign of Henry VI. to have been equal to twelve pounds per annum in the reign of Queen Anne; and, as the value of money is very 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,(y) 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 further 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 rent-charge, unless registered with the clerk of the peace twelve calendar months before.37 7. That in mortgaged or trust estates, the person in possession, under the above-mentioned 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.38 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.39 10. That no tenant by copy of court-roll shall **174]be permitted to vote as a freeholder. Thus much for the electors in counties.40
As for the electors of citizens and burgesses, these are supposed to be the 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.(z)41 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 which 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.(a) 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 *[*1752 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.42 And by the 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 admitted to vote therein, unless he hath been admitted to his freedom twelve calendar months before.43
2. Next, as to the qualifications of persons to be elected members of the house of commons. Some of these depend upon the law and custom of parliament, declared by the house of commons;(b) others upon certain statutes. And from these it appears, 1. That they must not be aliens born,(c) or minors.(d) 2. That they must not be any of the twelve judges,(e) because they sit in the lords’ house; nor the clergy,(f) for they sit in the convocation;44 nor persons attainted of treason or felony,(g) for they are unfit to sit anywhere. 3. That sheriffs of counties, and mayors and bailiffs of boroughs, are not eligible in their respective jurisdictions, as being returning officers;(h) but that sheriffs of one county are eligible to be knights of another.(i)45 4. That, in strictness, all members ought to have been inhabitants of the places for which they are chosen;(k) but this, having been long disregarded, was at length entirely repealed by statute 14 Geo. III. c. 58. 5. That no persons concerned in the management of any duties or taxes created since 1692, except the commissioners of the treasury,(l) nor any of the officers following,(m) (viz., commissioners of prizes, transports, sick and wounded, wine licenses, navy, and victualling; 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; **176]clerks or deputies in the several offices of the treasury, exchequer, navy, victualling, admiralty, pay of the army or navy, secretaries of state, salt, stamps, appeals, wine licenses, hackney coaches, hawkers, and pedlars,) nor any persons that hold any new office under the crown created since 1705,(n) are capable of being elected or sitting as members.46 6. That no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected or sitting.(o) 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.(p) 8. That all knights of the shire shall be actual knights, or such notable esquires and gentlemen as have estates sufficient to be knights, and by no means of the degree of yeomen.(q) This is reduced to a still greater certainty, by ordaining, 9. That every knight of a shire shall have a clear estate of freehold 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:(r) 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 the particulars in writing, at the time of his taking his seat.(s) But, subject to these standing restrictions and disqualifications, every subject of the realm is eligible of common right; though there are instances wherein persons in particular circumstances have forfeited the common right, and have been declared ineligible for that parliament by vote of the house of commons,(t) or forever by an act of the legislature.(u)47 But it was an unconstitutional prohibition, which was grounded on an ordinance of the house of lords,(w) and inserted in the king’s writs for the parliament holden at Coventry, 6 Hen. IV., that no apprentice or *[*177other man of the law should be elected a knight of the shire therein:(x) in return for which, our law books and historians(y) have branded this parliament with the name of parliamentum indoctum, or the lack-learning parliament; and Sir Edward Coke observes, with some spleen,(z) 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;(a) all which I shall 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 the sitting of parliament, the speaker, by order of the house, and without such order, if a vacancy happens by death, or the member’s becoming a peer,48 in the time of a recess for upwards of twenty days) 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;(b) 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 **178]that shall happen after the delivery of the writ. The county court 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.49 For Mr. Locke(c) 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 pre-engage 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 to 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, hath any right to interfere in the elections 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, *[*179or certain other branches of the revenue, presume to intermeddle in elections, by persuading any voter or dissuading him, he forfeits 100l. 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.50 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, as well he that takes as he that offers such bribe forfeits 500l., and is forever 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 offence.(d)51 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 others of the borough for which he was chosen, four pounds to be returned member, and was for that premium elected. But for this offence the borough was amerced,52 the member was removed, and the officer fined and imprisoned.(e) But as this practice hath since taken much deeper and more universal root, it hath 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.53
**180]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.54
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 500l. If the sheriff does not return such knights only as are duly elected, he forfeits, by the old statutes of Hen. VI., 100l., and the returning officer in boroughs for a like false return 40l.; and they are besides liable to an action, in which double damages shall be recovered, by the latter statutes of king William: and any person bribing the returning officer shall also forfeit 300l. 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. The form and manner of proceeding upon such petition are now regulated by statute 10 Geo. III. c. 10,55 (amended by 11 Geo. III. c. 42, and made perpetual by 14 Geo. III. c. 15,) which directs the method of choosing by lot a select committee of fifteen members, who are sworn well and truly to try the same, and a true judgment to give according to the evidence. 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.
**181]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, ginning in the house of commons. But first I must premise, that for despatch of business each house of parliament has its speaker. The speaker of the house of lords, whose office it is to preside there, and manage the formality of business, 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. The speaker of the house of commons is chosen by the house;56 but must be approved by the king.57 And herein the usage of the two houses differ, 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, if a lord of parliament, may. In each house the act of the majority58 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 it is impossible to be practised 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 a 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,59 which were entered upon the parliament rolls, with the king’s answer thereunto subjoined; not in any settled forms of words, but **182]as the circumstances of the case required:(f) 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 customs, 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 any thing 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) referred to two of the judges, to examine and report the state of the facts alleged, to see that all necessary parties consent, and to settle all points of technical 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 further. 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 session; 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 small 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, and sometimes the bill entirely new-modelled. After it **183]has gone through the committee, the chairman reports it to the house, with such amendments as the committee have made; and then the house reconsiders the whole bill again, and the question is repeatedly put upon every clause and amendment. When the house hath agreed or disagreed to the amendments of the committee, and sometimes added new amendments of its own, the bill is then ordered to be engrossed, or written in a strong gross hand, on one or more long rolls (or presses) 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.(g) The speaker then again opens the contents; and, holding it up in his hands, puts 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 first year of Henry VIII., distinct titles were introduced for each chapter. 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, upon matters of high dignity or importance, by 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 to the lords by one of the members, *[*184with a message to acquaint them therewith. The same forms are observed, mutatis 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.(h) And when both houses have done with any bill, it always is deposited in the house of peers, to wait the royal assent; except in the case of a bill of supply, which, after receiving the concurrence of the lords, is sent back to the house of commons.(i)
The royal assent 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 the bills that have passed both houses are read; and the king’s answer is declared by the clerk of the parliament in Norman-French:60 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 comme il est desiré, be it as it is desired.” If the king refuses his assent, it is in the gentle language of “le roy s’avisera,61 the king will advise upon it.” When a bill of supply is passed, it is carried up and presented to the king by the speaker of the house of commons;(k) and the royal assent is thus expressed, “le roy remercie ses loyal subjects, accepte lour benevolence, et aussi le veut, 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 prelats, seigneurs, et commons, en ce present parliament assembleés, au nom de touts vous autres subjects, **185]remercient tres humblement votre majesté, et prient a Dieu vous donner en santé 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.”(l) 2. By the 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.62
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 emperor’s 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.(m)
An act of parliament, thus made, is the exercise of the highest authority that this kingdom acknowledges upon earth. It hath 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, *[*186amended, 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 dissolve, as to create, an obligation. It is true it was formerly held, that the king might, in many cases, dispense with penal statutes:(n) but now, by statute 1 W. and 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.(o) It hath also been usual, when his majesty hath 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.(p) 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.63
A prorogation is the continuance of the parliament from one session to another, as an adjournment is a *[*187continuation 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.64 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.(q) 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; though sometimes only for a day or two;(r) 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,(s) 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 reign of Charles II. we find a proviso frequently tacked to a bill,(t) 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 empowered(u) to call them together by proclamation, with fourteen days’ notice of the time appointed for their reassembling.65
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 **188]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 dissolve 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 despatch 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 he 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 Anne, 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.
**189]3. Lastly, a parliament may be dissolved or expire by length or 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. and 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.66 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 ] It will not, of course, be forgotten by the American student that in the government under which it is his privilege to live, “legislative power,” and “the supreme and absolute authority of the state,” are not convertible terms. The people of every state alone possess, and can exercise, supreme and absolute authority; the legislature, as the other departments of government, are but the depositaries of delegated powers, more or less limited according to the terms of the letter of attorney, the constitution: their acts, if they transcend their powers or violate their written instructions, are null and void.—Sharswood.
[2 ] The word parliamentum was not used in England till the reign of Henry III. (Prynne on 4 Inst. 2.) Sir Henry Spelman, in his Glossary, (voc. Parl.,) says, Johannes rex haud dicam parliamentum, nam hoc nomen non tum emicuit, sed communis concilii regni formam et coactionem perspicuam dedit.
It was from the use of the word parliamentum that Prynne discovered Lord Coke’s manuscript, Modus tenendi parliamentum tempore regis Edwardi, filii regis Etheldredi, &c. to be spurious. Lord Coke set a high value upon it, and has assured us, “that certain it is, this modus was rehearsed and declared before the conqueror at the conquest, and by him approved.” (4 Inst. 13.) But for many reigns after this word was introduced, it was indiscriminately applied to a session, and to the duration of the writ of summons: we now confine it to the latter, viz. to the period between the meeting after the return of the writ of summons and the dissolution. Etymology is not always frivolous pedantry; it sometimes may afford a useful comment upon the original signification of a word. No inconsiderable pains have been bestowed by learned men in analyzing the word parliament; though the following specimens will serve rather to amuse than to instruct. “The word parliament,” saith one, “is compounded of parium lamentum, because,” as he thinks, “the peers of the realm did at these assemblies lament and complain each to the other of the enormities of the country, and thereupon provide redress for the same.” (Lamb. Arch. 235.) Whitelocke, in his notes (174) declares, “that this derivation of parliament is a sad etymology.” Lord Coke, and many others, say, “that it is called parliament, because every member of that court should sincerely and discreetly parler la ment, speak his mind for the general good of the commonwealth.” (Co. Litt. 110.) Mr. Lambard informs us, that “Lawrence Vallo misliketh this derivation.” (Arch. 236.) And Lawrence Vallo is not singular; for Mr. Barrington assures us, that “Lord Coke’s etymology of the word parliament, from speaking one’s mind, has been long exploded. If one might presume,” adds he, “to substitute another in its room, after so many guesses by others, I should suppose it was a compound of the two Celtic words parly and ment or mend. Both these words are to be found in Bullet’s Celtic Dictionary, published at Besançon in 1754, 3d vol. fol. He renders parly by the French infinitive parler; and we use the word in England as a substantive, viz. parley; ment or mend is rendered quantite, abondance. The word parliament, therefore, being resolved into its constituent syllables, may not improperly be said to signify what the Indians of North America call a Great Talk.” I shall leave it to the reader to determine which of these derivations is most descriptive of a parliament; and perhaps after so much recondite learning, it may appear presumptuous in me to observe, that parliament imported originally nothing more than a council or conference, and that ment in parliament has no more signification than it has in impeachment, engagement, imprisonment, hereditament, and ten thousand others of the same nature, though the civilians have adopted a similar derivation, viz. testament from testari mentem. Tay. Civ. Law, 70.—Christian.
[(a) ] 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. ad 1272.
[(b) ]De minoribus rebus principes consultant, de majoribus omnes. Tac. de mor. Germ. c. 11.
[(c) ] These were assembled for the last time, ad 1561. (see Whitelocke of Parl. c. 72,) or, according to Robertson, ad 1614. (Hist. Cha. V. i. 369.)
[(d) ] Glanvil. l. 13, c. 32, l. 9, c. 10. Pref. 9 Rep. 2 Inst. 426 [Editor: Illegible character].
[(e) ]L. 2, c. 2.
[(f) ] C. 1, 3.
[(g) ]Quanta esse debeat per nullam assisam generalem determinatum est, sed pro consuetudine singulorum comitatum tatum debetur, l, 9, c. 10.
[(h) ] Year Book, 21 Edw. III. 60
[3 ] This is a provision of the Magna Charta of king John:—faciemus summoneri, &c., ad certum diem scilicet ad terminum quadraginta dierum ad minus et ad certum locum. (Black. Mag. Ch. Joh. 14.) It is enforced by 7 and 8 W. c. 25, which enacts that there shall be forty days between the teste and the return of the writ of summons; and this time is by the uniform practice since the union extended to fifty days. (2 Hats. 235.) This practice was introduced by the 22d article of the act of union, which required that time between the teste and the return of the writ of summons for the first parliament of Great Britain.—Christian.
Now, it is enacted by 37 Geo. III. c. 127, that his majesty may issue his proclamation for the meeting of parliament in fourteen days from the date thereof, notwithstanding a previous adjournment to a longer day. (39 and 40 Geo. III. c. 14.) And in case of the king’s demise after the dissolution of a parliament, and before the assembling of a new one, the last preceding parliament shall meet and sit. The same, also, if the successor to the crown die within six months without having dissolved the parliament, or after the same shall have been dissolved and before a new one shall have met. It is also enacted that, in case of the king’s demise on or after the day appointed for assembling a new parliament, such new parliament shall meet and sit.—Chitty.
By the 37 Geo. III. c. 127, fourteen days’ notice is sufficient, even though the parliament may have adjourned to a longer day. (39 and 40 Geo. III. c. 14.) And after a dissolution parliament may now meet within thirty-five days after the proclamation.—Stewart.
[(i) ] 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.
[(k) ] Stat. 12 Car. II. c. 1.
[(l) ] 1 Sid. 1.
[4 ] William Drake, a merchant of London, was impeached for writing a pamphlet, entitled “The Long Parliament Revived,” in which he maintained that there could be no legislative authority till that was legally and regularly dissolved by the king and the two houses of parliament, according to the 16 Car. I. c. 7. Com. Jour. 20 Nov. 1660.—Christian.
[(m) ] 4 Edw. III. c. 14. 36 Edw. III. c. 10.
[5 ] Mr. Granville Sharp, in a treatise published some years ago, argued ingeniously against this construction of the 4 Ed. III., and maintained that the words if need be referred only to the preceding word, oftener. So that the true signification was, that a parliament should be held once every year, at all events; and, if there should be any need to hold it oftener, then more than once. (See his “Declaration,” &c., p. 166.) The contemporary records of parliament, in some of which it is so expressed without any ambiguity, prove beyond all controversy that this is the true construction. In ancient times. many favourite laws were frequently re-enacted. In the 50 Edw. III. it is expressly and absolutely declared that a parliament should be held once a year. (Rot. Parl. No. 186.) In the 1 R. II. we find again another petition from the commons that a parliament should be held once a year at the least:—“Que plese a nre dit Sr de tenir parlement un foetz par an au meynz, et ceo en lieu convenable.” The king’s answer is, “As to that parliament shall be held every year, let the statutes thereupon be kept and preserved; but as to the place where the parliament shall be held, the king will therein do his pleasure.” (Rot. Parl. No. 95.) And, in the next year, the king declared he had summoned the parliament because it was ordained that parliament should be held once a year. (Rot. Parl. 2 R. II. No. 4.)
But I can by no means agree with Mr. Sharp and those who contend that it is the meaning of those records and statutes that there should be an election every year. The word “parliament” at that time did not necessarily include any such idea; for it is everywhere applied to a session, without any distinction, whether it was held after a prorogation or a dissolution. (Rot. Parl. passim.) It is true that, for some time after the House of Commons was regularly established, dissolutions were frequent; for at that time the electors were few, and a seat in parliament was considered rather a burden to be avoided than a distinction to be solicited; and the members were not enabled to receive their wages till the king had discharged them from further attendance by putting an end to the parliament. In the first reigns after the representation of the commons was established, the duration and intermissions of parliament were short; but, for several reigns preceding the revolution, both had become extended to such a length that it became necessary for the parliament to interpose its authority and fix some limits to its own existence.
In the following reigns, the longest durations and intermissions were nearly as follows:—Hen. VIII., dur. 6 years, int. 4 years. Edw. VI., dur. 4. Eliz., dur. 11, int. 4. Ja. I., dur. 9, int. 6. Ch. I., dur. 8, int. 12. Ch. II., dur. 17, int. 4. (See the printed report of the committee to examine precedents in impeachments, April 19, 1791, p. 16, et seq.) In Ireland, there was no regular meeting of the parliament from 1666 till 1692; and from the reign of Queen Anne, in 1703, it assembled only once in two years till 1783,—since which time it has sat every year, as in England. (Lord Mountmor. 419.)—Christian.
[(n) ] This is the same period that is allowed in Sweden for intermitting their general diets, or parliamentary assemblies. Mod. Un. Hist. xxxiii. 15.
[6 ] As the Mutiny Act, the Marine Forces Act, and other acts, are passed for one year only, parliament must necessarily be summoned for the despatch of business once in every year; and such has been the practice of the constitution since the revolution in 1688.
The Congress of the United States “shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.”—Const. U.S. art. 1, s. 4.
The President “may on extraordinary occasions convene both houses or either of them; and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.” (Ibid. art. 11. s. 3.)—Sharswood.
[(o) ] 4 Inst. 1, 2. Stat. Eliz. c. 3. Hale of Parl. 1.
[(p) ] 4 Inst. 6.
[(q) ]Sulla—tribunis plebis sua lege injuriæ faciendæ potestatem ademit, auxilii ferendi reliquit. De LL. 3, 9.
[(r) ] Stat. 12 Car. II. c. 30.
[7 ] These observations have been termed by Mr. Reeve, in his fourth letter, entitled “Thoughts on the English Government,” “a fabulous invention, contrived in order to round and finish more completely his mythological account of three co-equal and co-ordinate powers in the legislature.” But the truth and propriety of the learned commentators’ doctrine is admirably elucidated by the following extract from a work of considerable merit:—
“This security is sometimes called the balance of the constitution; and the political equilibrium, which this phrase denotes, consists in two contrivances, a balance of power and a balance of interest. By a balance of power is meant, that there is no power possessed by one part of the legislature, the abuse or excess of which is not checked by some antagonist power, residing in another part. Thus the power of the two houses of parliament to frame laws is checked by the king’s negative; that if laws subversive of real government should obtain the consent of parliament, the reigning prince, by interposing his prerogative, may save the necessary rights and authority of his station. On the other hand, the arbitrary application of this negative is checked by the privilege which parliament possesses, of refusing supplies of money to the exigencies of the king’s administration. The constitutional maxim, that the king can do no wrong, is balanced by another maxim, not less constitutional, that the illegal commands of the king do not justify those who assist or concur in carrying them into execution; and by a second rule, subsidiary to this, that the acts of the crown acquire not any legal force, until authenticated by the subscription of some of its great officers. The wisdom of this contrivance is worthy of observation. As the king could not be punished without a civil war, the constitution exempts his person from trial or account; but, lest this impunity should encourage a licentious exercise of dominion, various obstacles are opposed to the private will of the sovereign, when directed to illegal objects. The pleasure of the crown must be announced with certain solemnities, and attended by certain officers of state. In some cases, the royal order must be signified by a secretary of state; in others it must pass under the privyseal, and in many, under the great seal. And when the king’s command is regularly published, no mischief can be achieved by it, without the ministry and compliance of those to whom it is directed. Now, all who either concur in an illegal order, by authenticating its publication with their seal or subscription, or who in any manner assist in carrying it into execution, subject themselves to prosecution and punishment, for the part they have taken; and are not permitted to plead or produce the command of the king, in justification of their obedience. But further; the power of the crown to direct the military force of the kingdom is balanced by the annual necessity of resorting to parliament for the maintenance and government of that force. The power of the king to declare war is checked by the privilege of the house of commons to grant or withhold the supplies by which the war must be carried on. The king’s choice of his ministers is controlled by the obligation he is under of appointing those men to offices in the state, who are found capable of managing the affairs of his government with the two houses of parliament. This consideration imposes such a necessity upon the crown, as hath, in a great measure, subdued the idea of favouritism; insomuch, that it is become no uncommon spectacle in this country, to see men promoted by the king to the highest offices, and richest preferments which he has in his power to bestow, who have been distinguished by their opposition to his personal inclinations.
“By the balance of interest, which accompanies and gives efficacy to the balance of power, is meant this, that the respective interests of the three estates of the empire are so disposed and adjusted, that whichever of the three shall attempt any encroachment, the other two will unite in resisting it. If the king should endeavour to extend his authority, by contracting the power and privileges of the commons, the house of lords would see their own dignity endangered by every advance which the crown made to independency upon the resolutions of parliament. The admission of arbitrary power is no less formidable to the grandeur of the aristocracy, than it is fatal to the liberty of the republic; that is, it would reduce the nobility, from the hereditary share they possess in the national councils, in which their real greatness consists, to the being made a part of the empty pageantry of a despotic court. On the other hand, if the house of commons should intrench upon the distinct province or usurp the established prerogative of the crown, the house of lords would receive an instant alarm from every new stretch of popular power. In every contest in which the king may be engaged with the representative body, in defence of his established share of authority, he will find a sure ally in the collective power of the nobility. And attachment to the monarchy, from which they derive their own distinction; the allurement of a court, in the habits and with the sentiments of which they have been brought up; their hatred of equality, and of all levelling pretensions, which may ultimately affect the privileges, or even the existence, of their order; in short, every principle and every prejudice which are wont to actuate human conduct, will determine their choice to the side and support of the crown. Lastly, if the nobles themselves should attempt to revive the superiorities which their ancestors exercised under the feudal constitution, the king and the people would alike remember, how the one had been insulted and the other enslaved, by that barbarous tyranny. They would forget the natural opposition of their views and inclinations, when they saw themselves threatened with a return of domination which was odious and intolerable to both.”—Chitty.
By the constitution of the United States, the President “shall, from time to time, give to Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.” (Art. 2, s. 3.) “Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States: if he approve, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless Congress, by their adjournment, prevent its return, in which case it shall not be a law.” (Art. 1, s. 7.)
This qualified negative of the President upon the formation of laws is, theoretically at least, some additional security against the passage of improper laws through prejudice or want of due reflection; but it was principally intended to give to the President a constitutional weapon to defend the executive department, as well as the just balance of the constitution, against the usurpations of the legislative power. I Kent’s Com. 240.—Sharswood.
[8 ] On the union with Ireland, (stat. 39 and 40 Geo. III. c. 67,) an addition of four representative spiritual peers, one archbishop, and three supreme bishops, was made for Ireland, to sit by rotation of sessions.—Chitty.
[(s) ] Seld. tit. hon. 2, 5, 27.
[(t) ] Co. Litt. 97.
[9 ] In the place referred to Lord Coke says there were twenty-seven abbots and two priors; and he is there silent respecting the number of the temporal peers. But, in the first page of the 4th Institute, he says their number, when he is then writing, is 106, and the number of the commons 493.—Christian.
[(u) ] Gilb. Hist. Exch. 55. Spelm. W. I. 291.
[(x) ] Glanv. 7, 1. Co. Litt. 97. Seld. tit. hon. 2, 5, 19.
[10 ] The right by which these spiritual lords sit, whether derived under their alleged baronies or from usage, is discussed, Harg. Co. Litt. 135. b. n. 1. Mr. H. inclines to adopt Lord Hale’s position,—namely, that they sit by usage. Mr. Hallam has also adverted to the question (Middle Ages, c. viii.) and rendered it accessible to the general reader; but the student, if he have a turn for conjectural investigation, may consult Lord Hale’s MS. Jura Coronæ and Bishop Warburton’s Alliance between Church and State, 4th ed. p. 49.—Chitty.
[(y) ] Whitelocke on Parliam. c. 72. Warburt. Alliance, b. 2, c. 3.
[(z) ] Dyer, 60.
[(a) ] Baronage, p. 1, c. 60. The act of uniformity, 1 Eliz. c. 2, was passed with the dissent of all the bishops, (Gibs. Codex, 286,) and therefore the style of lords spiritual is omitted throughout the whole.
[(b) ] 2 Inst. 585, 6, 7. See Keilw. 184, where it is holden 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 statute 16 Car. I. c. 27, by statute 13 Car. II. stat. 1, c. 2.
[(c) ] 4 Inst. 25.
[11 ] By stat. 39 and 40 Geo. III. c. 67, art. 4, twenty-eight lords temporal of Ireland, elected for life by the peers of Ireland, shall sit and vote on the part of Ireland in the house of lords. The same article prescribes the mode of election, and refers the decision of any question arising thereon to the house of lords, where, if the votes be equal, the names of the candidates are to be put into a glass, and one drawn out by the clerk of the parliament during the sitting of the house. Until the peerage of Ireland be reduced to one hundred, the prerogative is limited to create one peer upon three extinctions; and, on the peerage being reduced to one hundred, the prerogative is limited to keeping up that number.—Chitty.
[(d) ] Staundford, P. C. 153.
[12 ] All experience has evinced the danger of vesting the entire legislative power in a single body. The legislatures of Pennsylvania and Georgia consisted originally of a single house. In the subsequent reforms of their constitutions, the people were so sensible of the defect, and of the inconvenience they had suffered from it, that in both States a senate was introduced. The history of the French Revolution will show that most of its excesses are to be traced to the same cause. In the constitution of the United States, and in all the State constitutions without exception, the legislature is divided into two branches,—the number of one body being less, and their term of office and, generally, their age, and, in some cases, mode of election, being different from the other.
“The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof for six years; and each senator shall have one vote.” (Const. U.S. art. 1, s. 3.) “If vacancies happen by resignation or otherwise during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.” No person shall be a senator who shall not have attained to the age of thirty years and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.”—Ibid.
It is settled in practice that the election of a senator may be by a joint convention of the two branches of a State legislature; though the opinion has been entertained that the original intention of the constitution was that each branch should possess its ordinary veto upon an election by the other.—Sharswood.
[(e) ] Mod. Un. Hist. xxxiii. 18.
[13 ] By stat. 39 and 40 Geo. III. c. 67, one hundred representatives of Ireland must be added to these.—Chitty.
[(f) ] 4 Inst. 14.
[(g) ] 4 Jan. 1648.
[14 ] By the constitution of the United States, “the House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.” “No person shall be a representative who shall not have attained to the age of twenty-five years and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons (including those bound to service for a term of years, and excluding Indians not taxed) three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand; but each State shall have at least one representative. When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies.” Art. 1, s. 2.
The rule of apportionment of the representatives among the several States according to numbers has been attended with great difficulties in the application, because the relative numbers in each State do not, and never will, bear such an exact proportion to the aggregate that a common divisor for all will leave no fraction in any State. Every decennial apportionment has raised and agitated the embarrassing question. As an absolute exact relative equality is impossible, the principle which has ultimately prevailed is the principle of approximation, by making the apportionment among the several States according to their numbers, as near as may be. This is done by allowing to every State a member for every fraction of its numbers exceeding a moiety of the ratio, and rejecting all representation of fractions less than a moiety. 1 Kent’s Com. 230.—Sharswood.
[(h) ] 4 Inst. 36.
[(i) ] Of parliaments, 49.
[(k) ] Sp. L. 11, 6.
[(l) ] On Govt. p. 2, 149, 227.
[(m) ] See page 244.
[15 ] As has been more than once said, the American student will bear in mind that the legislatures in the United States—both State and Federal—are not absolute and without control. In the ordinary course of administration, the validity of their acts may be examined by the judiciary. If they are not within the scope of or if they violate any of the provisions of the constitution, they are pronounced and treated as null and void. But over and beyond this, there is a power of amendment of the constitution reserved in most, if not all, instances, and the mode in which it shall be exercised is prescribed; so that the most fundamental changes may be effected without revolution. Indeed, it is the settled doctrine that, without any such reservation, the people of a State have the inherent and inalienable right to change their form of government. As to the constitution of the United States, it is equally clear that there is no such inherent power. It can only be peaceably and constitutionally changed in the mode prescribed, unless, indeed, by the unanimous consent of all the States composing the Union.
In every case in which a change may take place not under some existing provision, though it may be peaceable, it may nevertheless be properly termed revolutionary, applying that word to any change of fundamental law effected without the sanction of the existing constitution.
The constitution of Pennsylvania of 1790 contained no provision for its own amendment. By an act of the legislature, the question was at several times submitted to the people at the polls whether a convention should be called to amend that constitution. After having failed in this form, which was supposed to vest too absolute a power in a convention, the question submitted, and finally answered in the affirmative by a majority, was that a convention should be called to submit its proceedings to a vote of the people. This was done, and the amendments proposed submitted to the people and adopted by them. Among the amendments thus submitted and adopted was one providing a mode in which future amendments might be proposed by the legislature and submitted to the people at the polls. It is to be observed, however, that the amendments were submitted to the body of electors who had been ascertained by the previous constitution and laws. It was not, then, fully a revolutionary proceeding, as the former constitution was considered so far in force as to govern upon this important point. The decision was acquiesced in, and the amendments of 1838 went peaceably into operation as part of the fundamental law of the State.
A more difficult and intricate question arose in Rhode Island. When the separation from the mother-country took place, Rhode Island did not, like the other States, adopt a new constitution, but continued the form of government established by the charter of Charles II. in 1663, making only such alterations by acts of the legislature as were necessary to adapt it to their condition and rights as an independent State. In this form of government no mode of proceeding was pointed out by which amendments might be made. It authorized the legislature to prescribe the qualifications of voters; and, in the exercise of this power, they had confined the right of suffrage to freeholders. Many of the citizens became dissatisfied with the charter government, and particularly with the restrictions upon the right of suffrage. Memorials were addressed to the legislature upon this subject urging the justice and expediency of a more liberal rule. But they failed to produce the desired effect. Voluntary meetings were held, and a convention assembled. The convention framed a constitution in which the right of suffrage was extended to every male citizen of twenty-one years who had resided in the State for one year and in the town in which he offered to vote for six months next preceding the election. The convention also prescribed the manner in which this constitution should be submitted to the decision of the people, permitting every one to vote on that question who was an American citizen twenty-one years old and who had a permanent residence or home in the State, and directing the votes to be returned to the convention.
Upon the return of the votes, the convention declared that the constitution was adopted and ratified by a majority of the people of the State, and was the paramount law and constitution of Rhode Island. Elections were accordingly held under it, and the legislature under it assembled at Providence, May 3, 1842.
The charter government set itself in opposition to these proceedings. It is unnecessary to trace the history of the contest.
The charter government, at its session in January, 1842, had taken measures to call a convention, by which a new constitution was formed, submitted to the people and ratified by them at the polls; the times and places at which the votes were to be given, the persons who were to receive and return them, and the qualifications of the voters, having all been previously authorized and provided for by law passed by the charter government. This new constitution went into operation in May, 1843, at which time the old charter government formally surrendered all its powers; and this constitution has continued ever since to be the admitted and established fundamental law of Rhode Island.
In all probability, the result of this contest would have been different if the charter government had not, by the timely concession of a convention, yielded to the popular demand, and thus secured on their side all those friends of peace and order who, having thus obtained the substance of their wishes, refused to contend forcibly and by revolution for a mere abstraction.
An action orought against an officer of the charter government, after the adoption of the revolutionary constitution, for an arrest, raised the question of the legality of the authority under which he acted. It was carried, by writ of error, to the Supreme Court of the United States. That tribunal refused to decide the question, holding that it was not a judicial question, but rested solely with the political power of the State. If the question arise between two different governments organized under different constitutions, the courts of which are to decide the question? Judicial power presupposes an established government, capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived. And if the authority of that government is annulled and overthrown, the power of its courts and other offices is annulled with it. And if a State court should enter upon the inquiry proposed, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power. So far as the government of the United States can intervene for the protection of a State from domestic violence, on the application of the legislature, or of the executive, (when the legislature cannot be convened,) it rests with Congress alone to decide what government is the established one in a State. Luther vs. Borden et al. 7 Peters, 1.—Sharswood.
[(n) ] Whitelocke, c. 50, 4 Inst. 47.
[(o) ] Com. Jour. 16 Dec. 1690.
[16 ] According to ancient, principles, minors, unless actually knighted, must have been disqualified; for, in general, no one was capable of performing the feudal services till he had attained the age of twenty-one. And one of the most important of these services was attendance on the lord’s court. But if the king had conferred the honour of knighthood upon a minor, then it was held that the imbecility of minority ceased. See note to p. 68, 2d book.—Christian.
[17 ] The oath of abjuration was altered by 6 Geo. III. c. 53, upon the death of the Pretender.—Chitty.
[18 ] Instead of these oaths Roman Catholic members now take that prescribed by stat. 10 Geo. IV. c. 7, s. 2. It is enacted by stat. 7 & 8 Vict. c. 66, s. 6, that no alien, though naturalized under that act by the certificate of a secretary of state, shall be capable of becoming a member of either house of parliament or of the privy council. Jews cannot sit in either house of parliament unless they take the oath of abjuration 6 Geo. III. c. 53, containing the words “upon the true faith of a Christian,” which are part of the oath tself, and not merely of the ceremony of administering it.—Hargrave.
[(p) ] 1 Com. Jour. 16 Mar. 1623, 18 Feb. 1625.
[(q) ] Whitelocke of Parl. c. 102. See Lords’ Jour. 3 May, 1620; 13 May, 1624; 26 May, 1675. Com. Jour. 14 Feb. 1580; 21 June, 1628; 9 Nov. 21 Jan. 1640; 6 March. 1676; 6 March, 1711; 17 Feb. 1769.
[19 ] This sentence was not in the first editions, but was added, no doubt, by the learned judge, with an allusion to the Middlesex election. The circumstances of that case were briefly these. On the 19 Jan. 1764, Mr. Wilkes was expelled the house of commons for being the author of a paper called the North Briton, No. 45. At the next election, in 1768, he was elected for the county of Middlesex; and, on 3 Feb. 1769, it was resolved that John Wilkes, Esq. having published several libels specified in the Journals, be expelled this house; and a new writ having been ordered for the county of Middlesex, Mr. Wilkes was re-elected without opposition; and, on the 17 Feb. 1769, it was resolved, that “John Wilkes, Esq. having been in this session of parliament expelled this house, was and is incapable of being elected a member to serve in this present parliament;” and the election was declared void, and a new writ ordered. He was a second time re-elected without opposition, and, on 17 March, 1769, the house again declared the election void. and ordered a new writ. At the next election, Mr. Luttrel, who had vacated his seat by accepting the Chiltern Hundreds, offered himself as a candidate against Mr. Wilkes. Mr. Wilkes had 1143 votes, and Mr. Luttrel 296. Mr. Wilkes was again returned by the sheriff. On the 15 April, 1769, the house resolved that Mr. Luttrel ought to have been returned, and ordered the return to be amended. On the 29 April, a petition was presented by certain freeholders of Middlesex, against the return of Mr. Luttrel; and on the 8 May, the house resolved that Mr. Luttrel was duly elected. On the 3 May, 1783, it was resolved that the resolutions of the 17 Feb. 1769, should be expunged from the Journals of the house, as being subversive of the rights of the whole body of electors of this kingdom. And at the same time it was ordered, that all the declarations, orders, and resolutions respecting the election of John Wilkes, Esq. should be expunged. The history of England furnishes many instances of important constitutional questions that have deeply agitated the minds of the people of this country, which can raise little or no doubt in the minds of those who view them at a distance uninfluenced by interest or passion. It might, perhaps, be a violent measure in the house of commons to expel a member for the libels which he had published; but that the subsequent proceedings were agreeable to the law of parliament, that is, to the law of the land, the authorities here referred to by the learned Judge, I conceive, do most unanswerably prove. It is supposed that the resolution of the 17 Feb. 1769, was considered to be subversive of the rights of electors, because it assigned expulsion alone, without stating the criminality of the member to be the cause of his incapacity during that parliament. But as his offences were particularly described in the resolution by which he was expelled on the 3d of the same month, no one could possibly doubt but the latter resolution had as clear a reference to the former, as if it had been repeated in it word for word.—Christian.
“Each house shall be the judge of the elections, returns, and qualifications of its own members.” “Each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member.” (Const. U. S. art. 1, s. 5.) Some State constitutions, with the view of meeting expressly such a case as that of Wilkes, provide that a member shall not be expelled a second time for the same cause.—Sharswood.
[(r) ] 1 Inst. 11.
[20 ] Lord Holt has observed, that “as to what my Lord Coke says, that the lex parliamenti est a multis ignorata, is only because they will not apply themselves to understand it.” 2 Ld. Ray. 1114.—Chitty.
[(s) ] “To be sought by all, unknown by many, and known by few.”
[(t) ] 4 Inst. 50.
[(u) ] 4 Inst. 15.
[21 ] The house of commons merely avails itself, when thus sitting judicially, of the maxim, that all courts are final judges of contempts against themselves. (See the case of Brass Crosby, 3 Wils. 188. Bl. Rep. 754, and 7 State Trials, 437. 11 State Trials, 317. 2 Hawkins, ch. 14, s. 72, 73, 74.) And in conformity with this principle, it was determined in the cases of the King vs. Flower, 8 T. R. 314, and Burdett vs. Abbott, 14 East, 1; Boudell vs. Colman, id. 163; 4 Taunt. 401, S. C., that the privileges of parliament, whether in punishing a person, not one of their members, or in punishing one of their own body, are not amenable in a court of common law, that their adjudication of any offence is a sufficient judgment, the warrant of the speaker a sufficient commitment, and that outer doors may be broker open to have execution of their process. It is doubtless within the spirit of the constitution that parliament should have ample means within itself of enforcing its privileges; but that those privileges should be indefinite, presents an anomaly in our limited government, theoretically absurd, if not practically dangerous, to true liberty. Ex post facto laws are the resource of despotism, anxious to clothe itself with the semblance of legislative justice; and the operation of these indefinite privileges must sometimes partake of the same character. For a man may be convicted by the house for the infraction of a privilege, from which there was nothing to warn him, not even the declaration of its existence; and surely this is contrary both to the spirit and the practice of the constitution.
The courts at Westminster, however, may judge of the privilege of parliament, when it is incident to a suit of which the court is possessed, and may proceed to execution between the sessions, notwithstanding appeals lodged, &c. 2 St. Tr. 66, 209.—Chitty.
[22 ] This sentence seems to imply a discretionary power in the two houses of parliament, which surely is repugnant to the spirit of our constitution. The law of parliament is part of the general law of the land, and must be discovered and construed like all other laws. The members of the respective houses of parliament are in most instances the judges of that law; and, like the judges of the realm, when they are deciding upon past laws, they are under the most sacred obligation to inquire and decide what the law actually is, and not what, in their will and pleasure, or even in their reason and wisdom, it ought to be. When they are declaring what is the law of parliament, their character is totally different from that with which, as legislators, they are invested when they are framing new laws; and they ought never to forget the admonition of that great and patriotic Chief Justice Lord Holt,—viz., “That the authority of the parliament is from the law, and as it is circumscribed by law, so it may be exceeded; and if they do exceed those legal bounds and authority, their acts are wrongful, and cannot be justified any more than the acts of private men.” 1 Salk. 505.—Christian.
In the late case of Stockdale vs. Hansard, (7 Car. & Payne, 737; 9 Ad. & El. 1; 11 Ad. & El. 253,) the extent to which the courts of justice can take cognizance of, and even control, the privileges claimed by the house of commons, has undergone much discussion. The circumstances of that case were briefly as follows. The house of commons ordered a certain report to be printed containing matter reflecting upon Stockdale, which, if printed by any private person, would have been a libel. For this publication Stockdale brought an action against Messrs. Hansard, the printers to the house of commons. They pleaded that the documents in question had been published by them under the direction of the house of commons, and that the house had resolved that the power of publishing such of their reports, votes, and proceedings as they thought conducive to the public interest was an essential incident to the constitutional functions of parliament, more especially to the commons house of parliament, as the representative portion of it. Upon demurrer to this plea, the court of queen’s bench was called upon to decide whether a court of law is or is not excluded by the law of parliament from the consideration of a privilege claimed by a formal resolution of the house of commons and set up by their printer as a justification of an act otherwise unlawful. After a full and accurate examination of all the authorities on the subject, and the most anxious consideration of the arguments pressed upon them by the attorney-general, the four judges—Denman, C. J., Littledale, Patteson, and Coleridge—were unanimous in overruling the defence set up by Messrs. Hansard. The judgments delivered by these eminent judges carry conviction to every mind; and their legal correctness and the soundness of the constitutional principles on which they are based are now universally acknowledged. In consequence of this decision, a statute (3 & 4 Vict. c. 9) was passed for the special protection of all persons publishing parliamentary reports, votes, or other proceedings by order of either house of parliament.—Hargrave.
[(x) ] Seld. Baronage, part 1, c. 4.
[23 ] In the observations above, upon the privileges of parliament, the editor is obliged to differ from the learned judge. He cannot but think that clearness and certainty are essentially necessary to the liberty of Englishmen. Mystery and ignorance are the natural parents of superstition and slavery. How can rights and privileges be claimed and asserted, unless they are ascertained and defined? The privileges of parliament, like the prerogatives of the crown, are the rights and privileges of the people. They ought all to be limited by those boundaries which afford the greatest share of security to the subject and constituent, who may be equally injured by their extension as their diminution. The privileges of the two houses ought certainly to be such as will best preserve the dignity and independence of their debates and councils without endangering the general liberty. But if they are left uncertain and indefinite, may it not be replied with equal force, that, under the pretence thereof, the refractory members may harass the executive power and violate the freedom of the people?—Christian.
[24 ] The privileges of domestics, lands, and goods are taken away by 10 Geo. III. c. 50.—Christian.
The senators and representatives “shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place.” Const. U. S. art. 1, sect. 4.—Sharswood.
[25 ] But this privilege does not extend to publication of the speech. 1 Sand. 133. The king vs. Creery, 1 M. & S. 273. The king vs. Lord Abingdon, 1 Esp. R. 226.—Chitty.
[(z) ] Cap. 3.
[(a) ] Steirnh. de jure. Goth. 3, c. 3.
[26 ] By the common law, peers of the realm of England (6 Co. 52, 9 Co. 49, a. 68, a. Hob. 61. Sty. Rep. 222. 2 Salk. 512. 2 H. Blac. 272. 3 East, 127) and peeresses, whether by birth or marriage, (6 Co. 52. Sty. Rep. 252. 1 Vent. 298. 2 Chan. Cas. 224,) are constantly privileged from arrests in civil suits, on account of their dignity, and because they are supposed to have sufficient property, by which they may be compelled to appear; which privilege is extended by the act of union with Scotland (5 Anne, c. 8, art. 22, and see Fort. 165. 2 Str. 990) to Scotch peers and peeresses; and by the act of union with Ireland (39 & 40 Geo. III. c. 67, art 4. See 7 Taunt. 679. 1 Moore, 419, S. C.) to Irish peers and peeresses. And they are not liable to be attached for the non-payment of money, pursuant to an order of nisi prius, which has been made a rule of court. (Ld. Falkland’s case, E. 36 Geo. III. K. B. 7 Durnf. & East, 171, and see id. 448.) But this privilege will not exempt them from attachments for not obeying the process of the courts, (1 Wills. 332. Say. Rep. 50, S. C. 1 Bur. 631,) nor does it extend to peeresses by marriage, if they afterwards intermarry with commoners. (Co. Litt. 16. 2 Inst. 50. 4 Co. 118. Dyer, 79.)
Where a capias issues against a peer, the court will set aside the proceedings for irregularity. (4 Taunt. 668.) But it seems that the sheriff is not a trespasser for executing it. (Dough. 671.) However, all persons concerned in the arrest are liable to punishment by the respective houses of parliament. (Fortescue, 165, ante.)
By the law and custom of parliament, members of the house of commons are privileged from arrest, not only during the actual sitting of parliament, but for a convenient time, sufficient to enable them to come from and return to any part of the kingdom before the first meeting and after the final dissolution of it. (Stat. 10 Geo. III. c. 50. 2 Str. 985. Fort. 159. Com. Rep. 444, S. C. 1 Kenyon, 125.) And also for forty days (2 Lev. 72. 1 Chan. Cases, 221, S. C. But see 1 Sid. 29) after every prorogation, and before the next appointed meeting; which is now in effect as long as the parliament exists, it being seldom prorogued for more than fourscore days at a time. (1 Blac. Com. 165.) And the courts will not grant an attachment against a member of the house of commons for non-payment of money pursuant to an award. (6 Durnf. & East, 448.)
Mr. Christian has observed, that it does not appear that the privilege from arrest is limited to any precise time after a dissolution; but it has been determined by all the judges that it extends to a convenient time. (Col. Pit’s case, 2 Str. 988.) Prynne is of opinion that it continued for the number of days the members received wages after a dissolution, which were in proportion to the distance between his home and the place where the parliament was held. (4 Parl. Writs, 68.)—Chitty.
[(b) ] 2 Lev. 72.
[(c) ] Dyer, 59. 4 Pryn. Brev. Parl. 757.
[(d) ] Latch. 48. Noy. 83.
[(e) ] Stra. 989.
[(f) ] Com. Jour. 17 Aug. 1641.
[(g) ] 4 Inst. 25. Com. Jour. 20 May, 1675.
[(h) ]Mich. 16 Edw. IV. in Scacch.—Lord Raym. 1461.
[(i) ] Com. Jour. 16 May, 1726.
[(k) ] Com. Jour. 24 Nov. Lords’ Jour. 29 Nov. 1763.
[27 ] The contrary had been determined a short time before in the case of Mr. Wilkes by the unanimous judgment of Lord Camden and the court of Common Pleas. 2 Wils. 251.—Christian.
[(l) ] Lords’ Protest, ibid.
[28 ] The language of the protest upon this occasion is remarkably nervous; and the arguments in favour of privilege, even in the case of libel, are highly applicable to cases of privilege generally. See the extracts from the protest, p. 19, Howel’s St. Tr. 994.—Chitty.
[(m) ] Com. Jour. 20 Apr. 1762.
[(n) ] Particularly 17 Geo. II. c. 6.
[(o) ] C. 11.
[(p) ] Stat. 31 Hen. VIII. c. 10. Smith’s Commonw. b. 2, c. 3. Moor, 551. 4 Inst. 4. Hale of Parl. 140.
[(q) ] See Com. Jour. 11 Apr. 1614. 8 Feb. 1620. 10 Feb. 1625. 4 Inst. 48.
[29 ] On account of this attendance there are several resolutions before the restoration, declaring the attorney-general incapable of sitting among the commons. Sir Heneage Finch, member for the University of Oxford, afterwards Lord Nottingham and chancellor, was the first attorney-general who enjoyed that privilege. Sim. 28.—Christian.
[30 ] And which the king has sometimes refused. 6, 27, 39, E. III.—Chitty.
This license has long ceased in Ireland; but the proxies in the English house of lords are still entered in Latin ex licentia regis. This created a doubt in November, 1788, whether the proxies in that parliament were legal on account of the king’s illness. (1 Ld. Mountm. 342.) But this I conceive is now so much a mere form, that the license may be presumed. Proxies cannot be used in a committee. (Ib. 106. 2 Ib. 191.) A proxy cannot sign a protest in England, but he could in Ireland. (2 Ib. 191.)
The order that no lord should have more than two proxies was made 2 Car. I., because the Duke of Buckingham had no less than fourteen. 1 Rushw. 269.
A similar order was made in Ireland, during Lord Stafford’s lieutenancy, to correct a like abuse.
There is an instance in Wight, 50, where a proxy is called litera attornatûs ad parliamentum, which it is in effect. The peer who has the proxy is always called in Latin procurator. If a peer, after appointing a proxy, appears personally in parliament, his proxy is revoked and annulled. 4 Inst. 13. By the orders of the house, no proxy shall vote upon a question of guilty or not guilty; and a spiritual lord shall only be a proxy for a spiritual lord, and a temporal lord for a temporal. Two or more peers may be proxy to one absent peer; but Lord Coke is of opinion (4 Inst. 12) that they cannot vote unless they all concur. 1 Woodd. 41. In ancient times a commoner might have acted as the proxy of a peer in the house of lords. See the memorable case of Sir Thomas Naxey, clerk.—Christian.
[(r) ] Seld. Baronage, p. 1, c. 1.
[(s) ] 4 Inst. 12.
[31 ] Lord Clarendon relates, that the first instances of protests with reasons in England were in 1641, before which time they usually only set down their names as dissentient to a vote: the first regular protest in Ireland was in 1662. 1 Ld. Mountm. 402.—Christian.
[(t) ] 4 Inst. 29.
[32 ] “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.” Const U. S., art. 1, sect. 7.—Sharswood.
[33 ] This rule is now extended to all bills for canals, paving, provisions for the poor, and to every bill in which tolls, rates, or duties are ordered to be collected; and also to all bills in which pecuniary penalties and fines are imposed for offences. (3 Hats. 110.) But it should seem it is carried beyond its original spirit and intent, when the money raised is not granted to the crown.
Upon the application of this rule there have been many warm contests between the lords and commons, in which the latter seem always to have prevailed. See many conferences collected by Mr. Hatsel, in his Appendix to the 3d vol.
In Appendix D., the conference of 20 and 22 April, 1671, the general question is debated with infinite ability on both sides, but particularly on the part of the commons in an argument drawn up by Sir Heneage Finch, then attorney-general.—Christian.
[(u) ] On Parliaments, 65, 66.
[(w) ] Year Book. 33 Hen. vi. 17. But see the answer to this case by Sir Heneage Finch, Com. Jour. 22 Apr. 1671.
[(x) ] The candid and intelligent reader will apply this observation to many other parts of the work before him, wherein the constitution of our laws and government are represented as nearly approaching to perfection, without descending to the invidious task of pointing out such deviations and corruptions as length of time and a loose state of national morals have too great a tendency to produce. The incurvations of practice are then the most notorious when compared with the rectitude of the rule; and to elucidate the clearness of the spring conveys the strongest satire on those who have polluted or disturbed it.
[34 ] The representation of the people of England in the house of commons has been much improved by the Reform Act, 2 and 3 Wm. IV. c. 45. Many boroughs were disfranchised which, by lapse of time and loss of trade, had become depopulated, and were generally under the absolute control of the crown or some nobleman or private proprietor, and hence well termed “rotten,” and the right given to wealthy and populous places, such as Liverpool and Manchester. The elective franchise was also considerably extended. Much, however, still remains to be done in the way of reform before the house of commons can be truly said to represent the people of England.—Sharswood.
[35 ] The 14 Geo. III. c. 58 made the residence of the electors and the elected in their respective counties, cities, and boroughs no longer necessary. It had been required from both by a statute passed in the 1 Hen. V. c. 1, 8 Hen. VI. c. 7, and 23 Hen. VI. c. 14.
Yet in the year 1620 it was determined by the house of commons that these statutes are only directory, and not conclusory, and the high-sheriff of Leicestershire was censured for not returning one who had a majority of votes, because he was not resident within the county. The house declared him to be duly elected, and ordered the return to be amended. 6 Com. Jour. 515.—Christian.
[36 ] In Ashby vs. White, 2 Ld. Raym. 950, Lord Holt intimated that, before these statutes, to have freehold in the county was necessary.—Chitty.
The voter’s evidence of the value must be received at the poll; but it is not conclusive, and may be contradicted by other evidence, upon a scrutiny, or before a committee. The 7 & 8 W. III. c. 25 expressly declares that public taxes are not to be deemed charges payable out of the estate; and therefore one would think that the plain and obvious construction would be, that wherever a freeholder has an estate which would yield him 40s. before these taxes are paid, or for which he would receive a rent of 40s. if he paid the taxes himself, he would have a right to vote; yet a committee has decided that when a tenant paid a rent less than 40s., but paid parochial taxes which, added to the rent, amounted to more than 40s., the landlord had no right to vote. A strange decision! 2 Lud. 475.
Two committees have held that the interest of a mortgage is a charge which, if it reduces the value under 40s., takes away the vote,—though there is an intermediate decision of a committee, in which the contrary was held. Ib. 467.—Christian.
[(y) ] 7 and 8 W. III. c. 25. 10 Anne, c. 23. 31 Geo. II. c. 14. 3 Geo. III. c. 24. 2 Geo. II. c. 21. 18 Geo. II. c. 18.
[37 ] It must be an annuity or rent-charge issuing out of a freehold estate; and if it accrue or devolve by operation of law within a year of the election, a certificate of it must be entered with the clerk of the peace before the first day of the election. 3 Geo. III. c. 24, Heyw. 145.—Christian.
[38 ] This is true only when a freehold estate is split and divided by the grantor in order to multiply votes, and for election purposes. It would be highly unreasonable and absurd to suppose (though it has been so contended) that it extends to every case, where a person fairly, and without any particular view to an election, purchases a part of a greater estate. It is part of the freeholder’s oath that the estate has not been granted to him fraudulently on purpose to qualify him to give his vote. The one vote, I presume, was intended for the part retained by the grantor; for, if the whole had been granted out thus fraudulently, no vote at all could have been given for it. See this subject treated fully in Mr. Heywood’s Law of Elect. 99. It cannot, I should think, be considered a fraudulent grant under any statute if a person should purchase an estate merely for the sake of the vote, if he buys it absolutely, and without any reservation or secret agreement between the grantor and himself.
But it never has been supposed that this statute extends to cases which arise from operation of law, as devises, descents, &c., as if an estate should descend to any number of females, the husband of each would have a right to vote, if his interest amounted to 40s. a year.
A husband may vote for his wife’s right of dower, without an actual assignment of it by metes and bounds. 20 Geo. III. c. 17, 12.
Two or more votes may be given successively for the same estate or interest at the same election; as where a freeholder votes and dies, his heir or devisee may afterwards vote at the same election. And it seems to be generally true, that where no length of possession is required by any act of parliament, the elector may be admitted to vote, though his right accrued since the commencement of the election. 1 Doug. 272. 2 Lud. 427.—Christian.
[39 ] This is altered by 20 Geo. III. c. 17. The estate shall be assessed to the land-tax six months before the election, either in the name of the voter or his tenant; but, if he has acquired it by marriage, descent, or other operation of law, in that case it must have been assessed to the land-tax within two years before the election, either in the name of the predecessor, or person through whom the voter derives his title, or in the name of the tenant of such person.
This requisite of assessment was intended to prevent fraud and confusion, by having a ready proof of the existence of the estate of the voter, and some measure of its value; but it is itself perhaps a greater evil than it was intended to remove; for an omission or irregularity in the assessment operates as a disfranchisement. Every freeholder, who wishes to preserve the important privilege of voting, must carefully examine every year the assessment, when it is stuck upon the church-door, to see that he is duly assessed; and if he is not, he may appeal to the commissioners, and he may any time afterwards apply to the clerk of the peace, and upon payment of 1s. may examine the duplicate returned to the sessions: but it seems that he is then too late to correct an error, unless he has previously appealed to the commissioners; but from the judgment of the commissioners an appeal lies to the next quarter sessions.—Christian.
[40 ] By 22 Geo. III. c. 41, no person employed in managing or collecting the duties of excise, customs, stamps, salt, windows, or houses, or the revenue of the postoffice, or in conveying of mails, shall vote at any election, under a penatly of 100l. This act does not extend to commissioners of land-tax, or persons acting under them, nor to freehold offices held or granted by letters patent. By the 43 Geo. III. c. 25, no officer of revenue in Ireland shall vote at elections, under penalty of 100l. and be incapacitated, unless he hold by patent.
Any person receiving alms or parish relief within a year before the election, is thereby disqualified from voting, except he be a qualified freeholder. Sim. Elect. Law, 102. But charity donations, by will annually distributed, or otherwise, do not disqualify. 1 Peck. Elect Law, 510. Heyw. County Elect. Law, 186. And militia-men, if otherwise qualified, are not disqualified by their families receiving parish relief while they are on actual service. 18 Geo. III. c. 59, s. 25.
By the 51 Geo. III. c. 119, justices of the peace, and all other persons employed under the police act 51 Geo. III. c. 119, are incapacitated from voting, or within six months after they have quitted office.
Elections for cities and towns, which are counties of themselves, are under nearly the same regulations as elections for other counties. By the 19 Geo. II. c. 28, the voter must have been in the actual possession or receipt of the rents of 40s. or higher freehold, twelve calendar months next before the election, except such freehold came to him by descent, marriage, devise, presentation, or promotion, on pain of suffering the penalties ordained by the 10 Anne, c. 23. But this act does not extend to persons voting in right of any rents, messuages, or seats, belonging to any office, not usually charged to the land-tax. The statutes of W. III. and 10 Anne, respecting the splitting and multiplication of freeholds and fraudulent conveyances, extend to cities and towns which are counties of themselves. And all corrupt practices to carry such elections by means of grants of annuities and rent-charges issuing out of freeholds, have been put upon the same footing as if carried on to procure elections for counties.
Women, deaf, dumb, and blind persons, lunatics, peers, papists refusing the oaths of allegiance and abjuration, outlaws, persons excommunicated, guilty of felony or bribery, (2 Geo. II. c. 24,) and copyholders under 50l. a year (31 Geo. III. c. 14) are entirely excluded from the right to vote. But the Gloucestershire committee determined that customary freeholders are entitled to vote. Heyw. Elect. Law, 41.
Aliens become denizens by letters patent, or naturalized by act of parliament, if qualified in other respects, may enjoy the elective franchise. So by the 13 Geo. II. c. 3, foreign seamen serving two years in an English ship in time of war, by virtue of the king’s proclamation, and all foreign Protestants and Jews residing seven years in any of our American colonies without being absent two months at a time, and all foreign Protestants serving there two years in a military capacity, or being three years employed in the whalefishery, without afterwards absenting themselves from the king’s dominions for more than one year, (except those disabled by the 4 Geo. II. c. 21,) are ipso facto naturalized, and consequently may acquire the right to vote at elections of members of parliament in the same manner as natural born subjects. See further as to the qualification of electors, Com. Dig. Parliament, D. 5 to 10.—Chitty.
[(z) ] 4 Inst. 16.
[41 ] Lord Coke, in the page referred to by the learned judge, says that this rate of wages hath been time out of mind, and that it is expressed in many records; and, for example, refers to one in 46 Edw. III., where this allowance is made to one of the knights for the county of Middlesex. But Mr. Prynne’s fourth Register of Parliamentary Writs is confined almost entirely to the investigation of this subject, and contains a very particular chronological history of the writ de expensis militum, civium, et burgensium, which was framed to enforce the payment of these wages. Mr. Prynne is of opinion that these wages had no other origin than that principle of natural equity and justice qui sentit commodum, debet sentire et onus. (p. 5.)
And Mr. Prynne further informs us, “that the first writs of this kind extant in our records are coeval with our king’s first writs of summons to elect and send knights, citizens, and burgesses to parliament, both of them being first invented, issued, and recorded together in 49 Hen. III., before which there are no memorials nor evidences of either of those writs in our historians or records.” (p. 2.) The first writs direct the sheriff to levy from the community, i.e. the electors of the county, and to pay the knights, rationabiles expensas suas in veniendo ad dictum parliamentum, ibidem morando, et exinde ad propria redeundo. And when the writs of summons were renewed in the 23d of Edw. I., these writs issued again in the same form at the end of the parliament, and were continued in the same manner till the 16 Edw. II., when Mr. Prynne finds the “memorable writs,” which first reduced the expense of the representatives to a certain sum by the day, viz. 4s. a day for every knight, and 2s. for every citizen and burgess; and they specified also the number of days for which this allowance was to be made, being more or less according to the distance between the place of meeting in parliament and the member’s residence. When this sum was first ascertained in the writ, the parliament was held at York, and therefore the members for Yorkshire were only allowed their wages for the number of days the parliament actually sat, being supposed to incur no expense in returning to their respective homes; but, at the same time, the members for the distant counties had a proportionate allowance in addition. Though, from this time, the number of days and a certain sum are specifically expressed in the writ, yet Mr. Prynne finds a few instances after this where the allowance is a less sum; and, in one, where one of the county members had but 3s. a day, because he was not, in fact, a knight. But, with those few exceptions, the sum and form continued with little or no variation. Mr. Prynne conjectures, with great appearance of reason, that the members at that time enjoyed the privilege of parliament only for the number of days for which they were allowed wages, that being considered a sufficient time for their return to their respective dwellings. (p. 68.) But this allowance, from its nature and origin, did not preclude any other specific engagement or contract between the member and his constituents; and the editor of Glanville’s Reports has given in the preface, p. 23, the copy of a curious agreement between John Strange, the member for Dunwich, and his electors, in the 3 Edw. IV. 1463, in which the member covenants “whether the parliament hold long time or short, or whether it fortune to be prorogued, that he will take for his wages only a cade and half a barrel of herrings, to be delivered by Christmas.”
In Scotland the representation of the shires was introduced or confirmed by the authority of the legislature, in the seventh parliament of James I., anno 1427, and there it is at the same time expressly provided, that “the commissares sall have costage of them of ilk schire, that awe compeirance in parliament.”—Murray’s Stat.
It is said that Andrew Marvell, who was member for Hull in the parliament after the restoration, was the last person in this country that received wages from his constituents. Two shillings a day, the allowance to a burgess, was so considerable a sum in ancient times, that there are many instances where boroughs petitioned to be excused from sending members to parliament, representing that they were engaged in building bridges, or other public works, and therefore unable to bear such an extraordinary expense. (Pryn. on 4 Inst. 32.) And it is somewhat remarkable, that from the 33 Edw. III. and uniformly through the five succeeding reigns, the sheriff of Lancashire returned, non sunt aliquæ civitates seu burgi infra comitatum Lancastræ, de quibus aliqui cives vel burgenses ad dictum parliamentum venire debent seu solent, nec possunt propter eorum debilitatem et paupertatem. But, from these exemptions in ancient times, and the new creations by the king’s charter, which commenced in the reign of Edw. IV., who, in the seventeenth year of his reign, granted to the borough of Wenlock the right of sending one burgess to parliament, (Sim. 97,) the number of the members of the house of commons perpetually varied till the 29 Car. II. who in that year granted, by his charter, to Newark, the privilege of sending representatives to parliament, which was the last time that this prerogative of the crown was exercised. (1 Doug. El. 69.) Since the beginning of the reign of Henry VIII. the number of the representatives of the commons is nearly doubled; for, in the first parliament, the house consisted only of 298 members: 260 have since been added by act of parliament, or by the king’s charter, either creating new or reviving old boroughs. The legislature added twenty-seven for Wales, by 27 Hen. VIII. c. 26; four for the city and county of Chester, by 34 Hen. VIII. c. 13; four for the county and city of Durham, by 25 Car. II. c. 9; and forty-five for Scotland, by the act of union: in all, 80; and 180 have been added by charter.
To the first parliament of James I. the members of the upper house were 78, of the lower, 370. 5 Parl. Hist. 11.—Christian.
[(a) ] Prynne, Parl. Writs, i. 345.
[42 ] That statute was merely retrospective, or only made the last determination of the right prior to the statute conclusive, without having any influence over decisions subsequent to the 2 Geo. II. And this provision was omitted in Mr. Grenville’s excellent act, so that the same question, respecting the right of election in some places, was tried over again every new parliament; but, to supply this defect, it was enacted by the 28 Geo. III. c. 52, that whenever a committee shall be of opinion that the merits of a petition depend upon a question respecting the right of election, or the appointment of the returning officer, they shall require the counsel of the respective parties to deliver a statement of the right for which they contend, and the committee shall then report to the house those statements, with their judgment thereupon; and, if no person petition within a twelve-month, or within fourteen days after the commencement of next session, to oppose such judgment, it is final and conclusive forever. But, if such a petition be presented, then, before the day appointed for the consideration of it, any other person, upon his petition, may be admitted to defend the judgment; and a second committee shall be appointed, exactly in the same manner as the first, and the decision of that committee puts an end to all future litigation upon the point in question.—Christian.
[43 ] This is called the Durham act, and it was occasioned by the corporation of Durham having, upon the eve of an election, in order to serve one of the candidates, admitted 215 honorary freemen. Some corporations have the power of admitting honorary freemen, viz., persons who, without any previous claim or pretension, are admitted to all the franchises of the corporation. The Durham act is confined to persons of that description solely. It has frequently been contended, that if honorary freemen are created for the occasion, that is, merely for an election purpose, it is a fraud upon the rights of election; and that by the common law, as in other cases of fraud, the admission and all the consequences would be null and void; that within the year, by the statute, fraud was presumed; but that, after that time, the statute left the necessity of proving it upon those who imputed it. But, in the Bedford case, (2 Doug. 91,) the committee were clearly of opinion that the objection of occasionality did not lie against freemen made above a year before the election.
No length of possession is required from voters in burgage-tenure boroughs. There are about twenty-nine burgage-tenure boroughs in England. (1 Doug. 224.) In these the right of voting is annexed to some tenement, house, or spot of ground upon which a house in ancient times has stood. Any number of these burgage-tenure estates may be purchased by one person, which, at any time before a contested election, may be conveyed to so many of his friends, who would each, in consequence, have a right to vote.
By the 26 Geo. III. c. 100, in boroughs, where the householders or inhabitants of any description claim to elect, no person shall have a right to vote as such inhabitant, unless he has actually been resident in the borough six months previous to the day on which he tenders his vote.—Christian.
[(b) ] 4 Inst. 47, 48.
[(c) ] See page 162.
[(d) ] Ibid.
[(e) ] Com. Jour. 9 Nov. 1605.
[(f) ] Com. Jour. 13 Oct. 1553, 8 Feb. 1620, 17 Jan. 1661.
[44 ] In 1785, a committee of the house of commons decided that a person who had regularly been admitted to a deacon’s orders was capable of being a member of that house. (See 2 Lud. 269.) The celebrated case of Mr. Horne Tooke, who had taken priest’s orders early in life, but who had long given up the clerical character, brought this question fully before the house, and produced a legislative decision which sets it finally at rest. This gentleman having been returned for Old Sarum, and taken his seat, a committee was appointed to search for precedents respecting the eligibility of the clergy for admission into the house of commons, who reported that there are few instances of return with particular additions till the 8th of Hen. IV.; for then the practice of returning citizens and burgesses by indentures annexed to the writs first prevailed, yet they find five with the addition of clericus. In the course of the discussion on the question, the prime minister proposed that a bill should be brought in to declare the clergy ineligible, and by that means to remove all doubts in future. The statute 41 Geo. III. c. 73 was accordingly passed, by which it is enacted that no person having been ordained to the office of priest or deacon, is or shall be capable of being elected to serve in parliament as a member of the house of commons, and if any such person shall sit in the house he shall forfeit 500l. a day, and become incapable of holding any preferment or office under his majesty. But the statute was not to extend to members during that parliament.—Chitty.
[(g) ] Com. Jour. 21 Jan. 1580. 4 Inst. 47.
[(h) ] Bro. Abr. t. Parliament, 7. Com. Jour. 25 June, 1604; 11 April, 1614; 22 March, 1620; 2, 4, 15 June, 17 Nov. 1685. [Editor: Illegible word] of Parl. 114.
[(i) ] 4 Inst. 48. Whitelocke of Parl. ch. 99, 100, 101.
[45 ] Two decisions of committees are agreeable to what is advanced in the text. In the first, it was determined that the sheriff of Berkshire could not be elected for Abingdon, a borough within that county. (1 Doug. 419.) In the second, that the sheriff of Hampshire could be elected for the town of Southampton, within that county, because Southampton is a county of itself, and is as independent of Hampshire as of any other county. 4 Doug. 87.—Christian.
[(k) ] Stat. 1 Hen. V. c. 1. 23 Hen. VI. c. 15.
[(l) ] Stat. 5 & 6 W. and M. c. 7.
[(m) ] Stat. 11 & 12 W. III. c. 2. 12 & 13 W. III. c. 10. 6 Anne, c. 7. 15 Geo. II. c. 22.
[(n) ] Stat. 6 Anne, c. 7.
[46 ] That is, while they hold those offices. Persons holding contracts for the public service (22 Geo. III. c. 45) and commissioners for auditing public accounts (25 Geo. III. c. 53) are ineligible. But the former statute does not extend to corporations or companies, existing at the passing of the act, of ten partners, or to members of the house upon whom public contracts may devolve by descent, marriage, or will, until they have been in possession of the same for twelve months. The law is similar with regard to Ireland.
By the 51 Geo. III. c. 119, police magistrates appointed under that act are ineligible during the continuance of their office.
By the 52 Geo. III. c. 144, if a member of the house of commons become bankrupt, he is during twelve calendar months from the issuing of the commission, unless it be superseded, or he pay his creditors, incapable of exercising his parliamentary functions.
By the 6 Anne, c. 7, s. 26, if a member accept any office of profit from the crown (ii. existence prior to 1705) he thereby vacates his seat, but he may be re-elected.
A member cannot resign: the only way therefore of withdrawing from parliament is to obtain from the crown (which is a matter of course) the stewardship of the Chiltern Hundreds. This being considered an office of profit for this purpose, is a convenient expedient for the vacating of seats.—Chitty.
[(o) ] Stat. 6 Anne, c. 7. 1 Geo. c. 56.
[(p) ] Stat. 6 Anne, c. 7.
[(q) ] Stat. 23 Hen. VI. c. 15.
[(r) ] Stat. 9 Anne, c. 5.
[(s) ] Stat. 33 Geo. II. c. 20
[(t) ] See page 163.
[(u) ] Stat. 7, Geo. I. c. 28.
[47 ] This clause from the word though has been added since 1769, the time when the Middlesex election was discussed in the house of commons. The learned judge, upon that occasion, maintained the incapacity of Mr. Wilkes to be re-elected that parliament, in consequence of his expulsion; and, as he had not mentioned expulsion as one of the disqualifications of a candidate, the preceding sentence was cited against him in the house of commons; and he was afterwards attacked upon the same ground by Junius, (let. 18,) and, as I conceive, undeservedly; for hard would be the fate of authors, if, whilst they are laboaring to remove the errors of others, they should forever be condemned to retain their own.—Chitty.
[(w) ] 4 Inst. 10, 48. Pryn. Plea for Lords, 379. 2 Whitelocke, 359, 368.
[(x) ] Pryn. on 4 Inst. 13.
[(y) ] Walsingh. ad 1405.
[(z) ] 4 Inst. 48.
[(a) ] 7 Hen. IV. c. 15. 8 Hen. VI. c. 7. 23 Hen. VI. c. 14. 1 W. and M. st. 1, c. 2. 2 W. and M. st. 1, c. 7. 5 & 6 W. and M. c. 20. 7 W. III. c. 4. 7 & 8 W. III. c. 7, and c. 25. 10 & 11 W. III. c. 7. 12 & 13 W. III. c. 10. 6 Anne, c. 23. 9 Anne, c. 5, 10 Anne, c. 19 and c. 33. 2 Geo. II. c. 24. 8 Geo. II. c. 30. 18 Geo. II. c. 18. 19 Geo. II. c. 28. 10 Geo. III. c. 16. 11 Geo. III. c. 42. 14 Geo. III. c. 15. 15 Geo. III. c. 36. 28 Geo. III. c. 52. 32 Geo. III. c. 1. 36 Geo. III. c. 59. 42 Geo. III. c. 84. 47 Geo. III. c. 1, and 53 Geo. III. c. 71. Other statutes have been passed as to elections, the whole of which are enumerated in Mr. Shepherd’s “Sammary of Election Law,” lately published. But the latest is 7 & 8 Geo. IV. c. 37.
By sect. 1 of this statute, persons employed by candidates at elections are disqualified from voting
By sect. 5, voters are exempt from serving as constables during elections.
[48 ] With regard to a vacancy by death or a peerage during recess, stat. 24 Geo. III. 2, c. 26, which repeals the former statutes upon this subject, provides that if during any recess any two members give notice to the speaker by a certificate under their hands that there is a vacancy by death, or that a writ of summons has issued under the great seal to call up any member to the house of lords, the speaker shall forthwith give notice of it to be inserted in the Gazette, and at the end of fourteen days after such insertion he shall issue his warrant to the clerk of the crown, commanding him to make out a new writ for the election of another member. But this shall not extend to any case where there is a petition depending concerning such vacant seat, or where the writ for the election of the member so vacating had not been returned fifteen days before the end of the last sitting of the house, or where the new writ cannot issue before the next meeting of the house for the despatch of business. And to prevent any impediment in the execution of this act by the speaker’s absence from the kingdom, or by the vacancy of his seat, at the beginning of every parliament he shall appoint any number of members, from three to seven inclusive, and shall publish the appointment in the Gazette. These members, in the absence of the speaker, shall have the same authority as is given to him by this statute. These are the only cases provided for by act of parliament; so, for any other species of vacancy, no writ can issue during a recess.—Christian.
[(b) ] In the borough of New Shoreham, in Sussex, wherein certain freeholders of the county are entitled to vote by statute 11 Geo. III. c. 55, the election must be within twelve days, with eight days’ notice of the same.
[49 ] By the ancient common law of the land, and by the declaration of rights. 1 W. and M st. 2, c. 2. The 3d Ed. I. c. 5 is also cited; but Mr. Christian observes that it related to the election of sheriffs, coroners, &c., for parliamentary representation was then unknown. It has been decided that a wager between two electors upon the success of their respective candidates is illegal, because, if permitted, it would manifestly corrupt the freedom of elections. 1 T. R. 55.
The house of commons has also passed resolutions on the subject to the following effect:—“The sending of warrants or letters to constables or other officers to be communicated to electors when a member is to be chosen to serve in parliament, or threatening the electors, is unparliamentary, and a violation of the right of election.” 9 Jour. 191.
“It is highly criminal in any minister or servant under the crown, directly or indirectly, to use the powers of office to influence the election of representatives; and any attempt at such influence will always be resented by this house, as aimed at its own honour, dignity, and independence, as an infringement of the dearest rights of every subject throughout the empire, and tending to sap the basis of this free and happy constitution.” 17 Jour. 507.
“It is a high infringement of the liberties and privileges of the house of commons for any lord of parliament, or lord lieutenant of any county, to concern himself in the election of any member of parliament” This is passed at the commencement of every session.—Chitty.
[(c) ] On Govt. p. 2, 222.
[50 ] This incapacity arises from the 7 W. III. c. 4, commonly called the Treating act, and the 49 Geo. III. c. 118, passed for the better securing the independence and purity of parliament. These acts enact, that the candidate offending against these statutes shall be disabled and incapacitated to serve in that parliament for such county, &c. The obvious meaning of these words and of the rest of the statutes is, that treating vacates that election only, and that the candidate is no way disqualified from being re-elected and sitting upon a second return. See the second case of Norwich, 1787, 3 Lud. 455. Though the contrary was determined in the case of Honiton, 1782, ib. 162.
But after the general election in 1796, the return of one of the members for the borough of Southwark was declared void by a committee, because it was proved that he had treated during the election. Upon that vacancy he offered himself again a candidate, and having a majority of votes was returned as duly elected; but, upon the petition of the other candidate, the next committee determined that the sitting member was ineligible, and that the petitioner ought to have been returned. And he took his seat accordingly.
It has been supposed, that the payment of travelling expenses, and a compensation for loss of time, were not treating or bribery within this or any other statute; and a bill passed the house of commons to subject such cases to the penalties imposed by 2 Geo. II. c. 24 upon persons guilty of bribery. But this bill was rejected in the house of lords by the opposition of lord Mansfield, who strenuously maintained that the bill was superfluous; that such conduct, by the laws in being, was clearly illegal, and subject, in a court of law, to the penalties of bribery. (2 Lud. 67.) Indeed, it is so repugnant both to the letter and spirit of these statutes, that it is surprising that such a notion and practice should ever have prevailed; and that though it is certainly to be regretted that any elector should be prevented by his poverty from exercising a valuable privilege, yet it probably would be a much greater injury to the country at large if it were deprived of the services of all gentlemen of moderate fortune, by the legalizing of such a practice, even with the most equitable restrictions, not to mention the door that it might open to the grossest impurity and corruption.—Christian.
However, the 49 Geo. III. c. 118, s. 2, provides that nothing in that act contained shall extend or be construed to extend to any money paid or agreed to be paid to or by any person for any legal expense bona fide incurred at or concerning any election. And lord Ellenborough and Mr. Baron Thompson have held at nisi prius, that a reasonable compensation for the loss of time and travelling expenses is not illegal. 2 Peckw. 182.—Chitty.
In the sessions of 1806, Mr. Tierney brought in a bill to prevent the candidates from conveying the electors at their expense. That excellent bill was opposed by Mr. Fox, who argued that it would be injurious to the popular part of the government by reducing the number of electors.
But surely the popular part of the government sustains an infinitely greater loss from the diminution of the number of the eligible; for many, by the present practice, are totally precluded from serving their country in parliament, whom the resident electors, those who are best acquainted with their merits, would think the fittest objects of their choice.
If an innkeeper furnishes provisions to the voters, contrary to the 7 W. III. c. 4. though at the express request or order of one of the candidates, he cannot afterwards maintain an action against that candidate, as courts of justice will not enforce the performance of a contract made in direct violation of the general law of the country. 1 Bos. & Pull. 264.—Christian.
And according to the judgment of Eyre, Ch. J., in that case, and the decision in Lofhouse vs. Wharton, 1 Camb. 550, the acts made no difference between resident and non-resident voters, and the candidate cannot legally defray the travelling or other expenses of voters.—Chitty.
[(d) ] In like manner the Julian law de ambitu inflicted 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.
[51 ] This is enacted by 2 Geo. II. c. 24, explained and enlarged by 9 Geo. II. c. 38, and 16 Geo. II. c. 11; but these statutes do not create any incapacity of sitting in the house: that depends solely upon the Treating act mentioned in the note ante, 179, n. 50.
It has been held that it is bribery if a candidate gives an elector money to vote for him, though he afterwards votes for another. (3 Burr. 1235.) And it has been decided that such vote will not be available to the person to whom it may afterwards be given gratuitously. But the propriety of that decision has been questioned by respectable authority. (2 Doug. 416.) Besides the penalties imposed by the legislature, bribery is a crime at common law, and punishable by indictment or information, though the court of King’s Bench will not in ordinary cases grant an information within two years, the time within which an action may be brought for the penalties under the statute. (3 Burr. 1335, 1359.) But this rule does not affect a prosecution by an indictment, or by an information by the attorney-general, who in one case was ordered by the house to prosecute two gentlemen who had procured themselves to be returned by bribery: they were convicted, and sentenced by the court of King’s Bench to pay each a fine of 1000 marks, and to be imprisoned six months. (4 Doug. 292.) In an action for bribery, a person may be a witness to prove the bribery, although he admits that he intends to avail himself of the conviction in that action to protect himself as the first discoverer in an action brought against him for the same offence. 4 East. 180.—Christian.
[52 ] Lord Mansfield observed upon this, that there could be no fine set in the house of commons; it must have been in the starchamber, (3 Burr. 1336;) but the journals of the commons on the day referred to by the learned judge expressly state, that it is ordered by this house that a fine of twenty pounds be assessed upon the corporation for their said lewd and slanderous attempt.
[(e) ] 4 Inst. 23. Hale of Parl. 112. Com. Jour. 10 and 11 May, 1571.
[53 ] The legislature has exerted its utmost energies, especially of late years, but in effectually, to check these dangerous and demoralizing courses. At length, in the year 1854, all existing statutes on the subject were repealed, and other provisions substituted, together with an entirely new mode of conducting elections, by an act entitled “The Corrupt Practices and Prevention Act.” This statute defines carefully and comprehensively what constitutes Bribery, Treating, and Undue Influence; imposes serious penalties; totally prohibits acts formerly found to be modes of exercising corrupt influence; and strictly limits legitimate expenses, requiring them to be paid only through an officer called the election auditor, whose accounts are to be published; and finally disables a candidate, declared by an election-committee guilty, by himself or his agents, of bribery, treating, or undue influence, from being elected or sitting in the house of commons, for the place where the offence was committed, during the parliament then in existence. 17 & 18 Vict. c. 102.—Warren.
[54 ] All electors are compellable before they vote to take the oaths of allegiance and supremacy, 7 & 8 W. III. c. 27. And by the 25 Geo. III. c. 84, all electors for cities and boroughs shall swear to their name, condition, or profession, and place of abode; and also, like freeholders in counties, that they believe they are of the age of twenty-one, and that they have not been polled before at that election. And by the same statute it is enacted, that if a poll is demanded at any election for any county or place in England or Wales, it shall commence either that day, or at the farthest upon the next, and shall be continued from day to day (Sundays excepted) until it be finished; and it shall be kept open seven hours at the least each day, between eight in the morning and eight at night; but if it should be continued till the 15th day, then the returning officer shall close the poll at or before three in the afternoon, and shall immediately, or on the next day, publicly declare the names of the persons who have a majority of votes; and he shall forthwith make a return accordingly, unless a scrutiny is demanded by any candidate, or by two or more of the electors, and he shall deem it necessary to grant the same, in which case it shall be lawful for him to proceed thereupon; but so as that, in all cases of a general election, if he has the return of the writ, he shall cause a return of the members to be filed in the crown office on or before the day on which the writ is returnable. If he is a returning officer acting under a precept, he shall make a return of the members at least six days before the day of the return of the writ; but if it is not a general election, then, in case of a scrutiny, a return of the member shall be made within thirty days after the close of the poll. Upon a scrutiny, the returning officer cannot compel any witness to be sworn, though the statute gives him power to administer an oath to those who consent to take it.—Christian.
[55 ] This statute is better known by the name of Grenville’s act, and it has justly conferred immortal honour upon its author. The select committees appointed pursuant to this statute, have examined and decided the important rights of election with a degree of purity and judicial discrimination highly honourable to themselves; and which were still more satisfactory to the public, from the recollection of the very different manner in which these questions, prior to 1770, had been treated by the house at large.
But this act has been much improved by 25 Geo. III. c. 84, and 28 Geo. III. c. 52, 32 Geo. III. c. 1, 36 Geo. III. c. 59, 42 Geo. III. c. 84, all which provisions are made perpetual by 47 Geo. III. stat. 1, c. 1. By these statutes, any person may present a petition complaining of an undue election; but one subscriber of the petitioner must enter into a recognizance, himself in 200l. with two sureties of 100l. each, to appear and support his petition; and then the house shall appoint some day beyond fourteen days after the commencement of the session or the return of the writ, and shall give notice to the petitioner and the sitting members to attend the bar of the house on that day by themselves, their counsel or agents: this day, however, may be altered, but notice shall be given of the new day appointed. On the day fixed, if 100 members do not attend, the house shall adjourn from day to day, except over Sundays, and for any number of days over Christmas-day, Whitsunday, and Good Friday; and when 100 or more members are present, the house shall proceed to no other business except swearing in members, receiving reports from committees, amending a return, or attending his majesty or commissioners in the house of lords. And by the 32 Geo. III. c. 1 the house is enabled to receive a message from the lords, and to proceed to any business that may be necessary for the prosecution of an impeachment on the days appointed for the trial. Then the names of all the members belonging to the house are put into six boxes or glasses in equal numbers, and the clerk shall draw a name from each of the glasses in rotation, which name shall be read by the speaker, and if the person is present, and not disqualified, it is put down; and in this manner they proceed, till forty-nine such names are collected. But besides these forty-nine, each party shall select, out of the whole number present, one person, who shall be the nominee of that party. Members who have voted at that election, or who are petitioners, or are petitioned against, cannot serve; and persons who are sixty years of age, or who have served before, are excused if they require it; and others who can show any material reason may also be excused by the indulgence of the house. After 49 names are so drawn, lists of them shall be given to the respective parties, who shall withdraw, and shall alternately strike off one (the petitioners beginning) till they are reduced to 13; and these thirteen, with the two nominees, constitute the select committee. If there are three parties, they shall alternately strike off one; and in that case the thirteen shall choose the two nominees.
The members of the committee shall then be ordered by the house to meet within 24 hours, and they cannot adjourn for more than 24 hours, except over Sunday, Christmasday, and Good Friday, without leave of the house; and no member of the committee shall absent himself without the permission of the house. The committee shall not in any case proceed to business with fewer than thirteen members; and they are dissolved if for three successive days of sitting their number is less than that, unless they have sat 14 days, and then they may proceed, though reduced to 12; and if 25 days to 11; and they continue to sit notwithstanding a prorogation of the parliament. All the fifteen members of the committee take a solemn oath in the house, that they will give a true judgment according to the evidence; and every question is determined by a majority.
The committee may send for witnesses and examine them upon oath, a power which the house of commons does not possess; and if they report that the petition or defence is frivolous or vexatious, the party aggrieved shall recover costs.
By the 11 Geo. III. c. 52, if 100 or more members are present, but if, upon the drawing by lot 49 not set aside nor excused cannot be completed, the house shall then adjourn, as if 100 had not attended. And to prevent the public business being delayed by the want of a sufficient attendance to form a select committee, the 36 Geo. III. c. 59 has provided, that when a sufficient number of members are not present for that purpose, the house, before they adjourn, may proceed to the order for the call of the house, if it has been previously fixed for that day, or they may adjourn such call, or they may order it to be called on any future day, and may make such order relative thereto as they think fit for enforcing a sufficient attendance of the members.—Christian.
[56 ] Mr. Hume is mistaken, who says that Peter de la Mere, chosen in the first parliament of R. II., was the first speaker of the commons, (3 vol. 3;) for we find in the rolls of parliament, (51 Edw. III. No. 87,) that Sir Thomas Hungerford, chivalier, qui avoit les parolles des communes en cest parlement, addressed the king in the name of the commons, in that jubilee year, to pray that he would pardon several persons who had been convicted in impeachments.—Christian.
[57 ] Sir Edward Coke, upon being elected speaker in 1592, in his address to the throne, declared, “this is only as yet a nomination, and no election, until your majesty giveth allowance and approbation.” (2 Hats. 154.) But the house of commons at present would acarce admit their speaker to hold such language. Till Sir Fletcher Norton was elected speaker, 29 Nov. 1774, every gentleman who was proposed to fill that honourable office affected great modesty, and, if elected, was almost forced into the chair, and at the same time he requested permission to plead, in another place, his excuses and inability to discharge the office, which he used to do upon being presented to the king. But Sir Fletcher Norton was the first who disregarded this ceremony both in the one house and in the other. His successors, Mr. Cornewall and Mr. Addington, requested to make excuses to the throne, but were refused by the house, though Mr. Addington, in the beginning of the present parliament, 26 Nov. 1790, followed the example of Sir Fletcher Norton, and intimated no wish to be excused. (See 1 Woodd. 59.) Sir John Cust was the last speaker who addressed the throne in the language of diffidence, of which the following sentence may serve as a specimen:—“I can now be an humble suitor to your majesty, that you would give your faithful commons an opportunity of rectifying this the only inadvertent step which they can ever take, and be graciously pleased to direct them to present some other to your majesty, whom they may not hereafter be sorry to have chosen, nor your majesty to have approved.” (6 Nov. 1761.) The chancellor used to reply in a handsome speech of compliment and encouragement, but now he shortly informs the commons that his majesty approves of their speaker, who claims the ancient privileges of the commons, and then they return to their own house.
Some speakers upon this occasion have acquired great honour and distinction, particularly Thomas Nevile, germanus frater domini Burgavenny, qui electus prolocutor per communes sacræ regiæ majestati est præsentatus, et ita egregiè, eleganter, prudenter, et disertè in negotio sibi commisso se gessit, ut omnium præsentium plausu et lætitiû, maximam sibi laudem comparavit, cujus laudi sacra regia majestas non modicum eximium honoris cumulum adjecit, nam præsentibus et videntibus dominis spiritualibus et temporalibus et regni communibus eum equitis aurati honore et dignitate ad laudem Dei et sancti Georgii insignivit, quod nemini mortalium per ulla ante sæcula contigisse audivimus 6 Hen. VIII. 1 Lords’ Jour. 20.—Christian.
“The Vice-President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided. The Senate shall choose their other officers, and also a president pro tempore in the absence of the Vice-President, or when he shall exercise the office of President of the United States.” (Const. U. S. art. 1. s. 3.) “The House of Representatives shall choose their speaker and other officers.” Ib. art. 1. s. 2.—Sharswood.
[58 ] In the house of commons the speaker never votes but when there is an equality without his casting vote, which in that case creates a majority; but the speaker of the house of lords has no casting vote, but his vote is counted with the rest of the house; and in the case of an equality, the non-contents or negative voices have the same effect and operation as if they were in fact a majority. (Lords’ Jour. 25 June, 1661.) Lord Mountmorres says, that the house of lords in Ireland observes the same rule; and that in cases of equality, semper præsumitur pro negante. (1 Book, 105.) Hence the order in putting the question in appeals and writs of error is this, “Is it your lordships’ pleasure that this decree or judgment shall be reversed?” for if the votes are equal, the judgment of the court below is affirmed. (Ib. 2 Book, 81.) Here it may not be improper to observe that there is no casting voice in the courts of justice; but in the superior courts, if the judges are equally divided, there is no decision, and the cause is continued in court till a majority concur. At the sessions the justices, in case of equality, ought to respite the matter till the next sessions; but if they are equal one day and the matter is duly brought before them on another day in the same sessions, and if there is then an inequality, it will amount to a judgment; for all the time of the sessions is considered but as one day. A casting vote sometimes signifies the single vote of a person who never votes but in the case of an equality; sometimes the double vote of a person who first votes with the rest, and then, upon an equality, creates a majority by giving a second vote.
A casting vote neither exists in corporations nor elsewhere, unless it is expressly given by statute or charter, or, what is equivalent, exists by immemorial usage; and in such cases it cannot be created by a by-law. 6 T. R. 732.—Christian.
[59 ] The commons for near two centuries continued the style of very humble petitioners. Their petitions frequently began with “your poor commons beg and pray,” and concluded with “for God’s sake, and as an act of charity:”—Vos poveres communes prient et supplient, pur Dieu et en æuvre de charitè. (Rot. Parl. passim.) It appears that prior to the reign of Henry V. it had been the practice of the kings to add and enact more than the commons petitioned for. In consequence of this, there is a very memorable petition from the commons in 2 Hen. V. which states that it is the liberty and freedom of the commons that there should be no statute without their assent, considering that they have ever been as well assenters as petitioners, and therefore they pray that, for the future, there may be no additions or diminutions to their petitions. And in answer to this, the king granted that from henceforth they should be bound in no instance without their assent, saving his royal prerogative to grant and deny what he pleased of their petitions. (Ruff. Pref. xv. Rot. Parl. 2 Hen. V. No. 22.) It was long after its creation, or rather separation from the barons, before the house of commons was conscious of its own strength and dignity; and such was their modesty and diffidence, that they used to request the lords to send them some of their members to instruct them in their duty, “on account of the arduousness of their charge, and the feebleness of their own powers and understandings:”—pur l’arduitè de lour charge, et le feoblesce de lour poiars et sens. (Rot. Parl. 1 R. II. No. 4.) Christian.
[(f) ] See, among numberless other instances, the articuli cleri, 9 Edw. II.
[(g) ] Noy. 84.
[(h) ] D’Ewes’ Jour. 20, 73. Com. Jour. 17 June, 1747.
[(i) ] Com. Jour. 24 July, 1660.
[60 ] Until the reign of Richard III. all the statutes are either in French or Latin, but generally in French. I have never seen any reason assigned for this change in the language of the statutes.—Christian.
[61 ] The words le roi s’avisera correspond to the phrase formerly used by courts of justice, when they required time to consider of their judgment, viz.: curia advisare [Editor: Illegible character]ult And there can be little doubt but originally these words implied a serious intent to take the subject under consideration, and they only became in effect a negative when the bill or petition was annulled by a dissolution before the king communicated the result of his deliberation; for, in the rolls of parliament, the king sometimes answers that the petition is unreasonable, and cannot be granted: sometimes he answers, that he and his council will consider of it; as in 37 Ed. III. No. 33. Quant au ceste article, il demande grand avisement, et partant roi se ent avisera par son conseil.
This prerogative of rejecting bills was exercised to such an extent in ancient times, that D’Ewes informs us, that queen Elizabeth, at the close of one session, gave her assent to twenty-four public, and nineteen private bills; and, at the same time, rejected forty-eight, which had passed the two houses of parliament. (Jour. 596.) But the last time it was exerted was in the year 1692, by William III., who at first refused his assent to the bill for triennial parliaments, but was prevailed upon to permit it to be enacted two years afterwards. De Lolme, 404.—Christian.
[(k) ] Rot. Parl. 9 Hen. IV. in Pryn. 4 Inst. 30, 31.
[(l) ] D’Ewes’ Jour. 35.
[62 ] The 33 Geo. III. c. 13 directs the clerk of parliament to endorse on every act the time it receives the royal assent, from which day it becomes operative, if no other is specified. And by 48 Geo. III. c. 106, when a bill for continuing expiring acts shall not have passed before such acts expire, the bill, when passed into a law, shall have effect from the date of the expiration of the act intended to be continued.
“Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States. If he approve, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and, if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless Congress by their adjournment prevent its return, in which case it shall not be a law.” Const. U.S. art. 1, s. 7.—Sharswood.
[(m) ] 3 Inst. 41. 4 Inst. 26.
[(n) ] Finch, L. 81, 234. Bacon, Elem. c. 19.
[(o) ] 4 Inst. 28.
[(p) ] Com Jour. passim; e. g. 11 June, 1572; 5 Apr. 1604; 4 June, 14 Nov. 18 Dec. 1621; 11 July, 1625; 13 Sept. 1660; 25 July, 1667; 4 Aug. 1685; 24 Feb. 1691; 21 June, 1712; 16 Apr. 1717; 3 Feb. 1741; 10 Dec. 1745; 21 May, 1768.
[63 ] Orders of parliament also determine by prorogation, consequently all persons taken into custody under such orders may, after prorogation of parliament as well as after dissolution, be discharged on a habeas corpus; generally, however, that form is not observed, as the power of either house to hold in imprisonment expires, and the party may at once walk forth on the prorogation or dissolution of the parliament. Com. Dig. Parliament, O. 1. The state of an impeachment is not affected by the session terminating either one way or the other, (Raym. 120. 1 Lev. 384,) and appeals and writs of error remain, and are to be proceeded in, as they stood at the last session. 2 Lev. 93. Com. Dig. Parliament, O. 1.—Chitty.
“Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.” Const. U. S. art. 1, s. 3. “The President of the United States has power, in case of disagreement between the two houses with respect to the time of adjournment, to adjourn them to such time as he shall think proper.” Ib. art. 2, sect. 3.—Sharswood.
[64 ] At the beginning of a new parliament, when it is not intended that the parliament should meet at the return of the writ of summons for the despatch of business, the practice is to prorogue it by a writ of prorogation, as the parliament in 1790 was prorogued twice by writ: (Com. Jour. 26 Nov. 1790:) and the first parliament in this reign was prorogued by four writs. Ib. 3 Nov. 1761. On the day upon which the writ of summons is returnable, the members of the house of commons who attend do not enter their own house, or wait for a message from the lords, but go immediately up to the house of lords, where the chancellor reads the writ of prorogation. Ib. And when it is intended that they should meet upon the day to which the parliament is prorogued for despatch of business, notice is given by a proclamation.—Christian.
[(q) ] 4 Inst. 28. Hale of Parl. 38. Hut. 61.
[(r) ] Com. Jour. 21 Oct. 1553.
[(s) ] Ibid. 21 Nov. 1554.
[(t) ] Stat. 12 Car. II. c. 1. 22 & 23 Car. II. c. 1.
[(u) ] Stat. 30 Geo. II. c. 25.
[65 ] By statutes 37 Geo. III. c. 127 and 39, 40 Geo. III. c. 14, the king may at any time, by proclamation, appoint parliament to meet at the expiration of fourteen days from the date of the proclamation; and this without regard to the period to which parliament may stand prorogued or adjourned.—Chitty.
[66 ] This has been thought by many an unconstitutional exertion of their authority; and the reason given is, that those who had a power delegated to them for three years only could have no right to extend that term to seven years. But this has always appeared to me to be a fallacious mode of considering the subject. Before the triennial act 6 W. and M. the duration of parliament was only limited by the pleasure or death of the king; and it never can be supposed that the next, or any succeeding parliament, had not the power of repealing the triennial act; and if that had been done, then, as before, they might have sat seventeen or seventy years. It is certainly true that the simple repeal of the former statute would have extended their continuance much beyond what was done by the septennial act.—Christian.