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CHAPTER THE SECOND.
OF THE PARLIAMENT.
WE are next to treat of the rights and duties of perfons, as they are members of fociety, and ftand in various relations to each other. Thefe relations are either public or private : and we will firft confider thofe that are public.
THE moft univerfal public relation, by which men are connected together, is that of government ; namely, as governors and governed, or in other words, as magiftrates and people. Of magiftrates alfo fome are fupreme, in whom the fovereign power of the ftate refides; others are fubordinate, deriving all their authority from the fupreme magiftrate, accountable to him for their conduct, and acting in an inferior fecondary fphere.
IN all tyrannical governments the fupreme magiftracy, or the right both of making and of enforcing the laws, is vefted in one and the fame man, or one and the fame body of men ; and wherever thefe two powers are united together, there can be no public liberty. The magiftrate may enact tyrannical laws, and execute them in a tyrannical manner, fince he is poffeffed, in quality of difpenfer of juftice, with all the power which he as legiflator thinks proper to give himfelf. But, where the legiflative and executive authority are in diftinct hands, the former will take care not to entruft the latter with fo large a power, as may tend to the fubverfion of it's own independence, and therewith of the liberty of the fubject. With us therefore in England this
fupreme
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fupreme power is divided into two branches ; the one legiflative, to wit, the parliament, confifting of king, lords, and commons ; the other executive, confifting of the king alone. It will be the bufinefs of this chapter to confider the Britifh parliament ; in which the legiflative power, and (of courfe) the fupreme and abfolute authority of the ftate, is vefted by our conftitution.
THE original or firft inftitution of parliaments is one of thofe matters that lie fo far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. The word, parliament, itfelf (or colloquium, as fome of our hiftorians tranflate it) is comparatively of modern date, derived from the French, and fignifying the place where they met and conferred together. It was firft applied to general affemblies of the ftates 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 fettled in the great councils of the realm. A practice, which feems to have been univerfal among the northern nations, particularly the Germans b; and carried by them into all the countries of Europe, which they overran at the diffolution of the Roman empire. Relics of which conftitution, under various modifications and changes, are ftill to be met with in the diets of Poland, Germany, and Sweden, and the affembly of the eftates in France ; for what is there now called the parliament is only the fupreme court of juftice, compofed of judges and advocates; which neither is in practice, nor is fuppofed to be in theory, a general council of the realm.
WITH us in England this general council hath been held immemorially, under the feveral names of michel-fynoth, or great council, michel-gemote or great meeting, and more frequently wittena-gemote or the meeting of wife men. It was alfo ftiled in Latin, commune concilium regni, magnum concilium regis, curia.
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a Mod. Un. Hift. xxiii. 307.
b De minoribus rebus principes confultant, de majoribus omnes. Tac, de mer, Germ. c. 11.
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magna.
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magna, conventus magnatum vel procerum, affifa generalis, and fometimes communitas regni Angliaec. We have inftances of it's meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as Fleta d expreffes it, “novis injuriis “emerfis nova conftituere remedia,” fo early as the reign of Ina king of the weft Saxons, Offa king of the Mercians, and Ethelbert king of Kent, in the feveral realms of the heptarchy. And, after their union, the mirrour e informs us, that king Alfred ordained for a perpetual ufage, that thefe councils fhould meet twice in the year, or oftener, if need be, to treat of the government of God's people ; how they fhould keep themfelves from fin, fhould live in quiet, and fhould receive right. Our fucceeding Saxon and Danifh monarchs held frequent councils of this fort, as appears form their refpective codes of laws ; the titles whereof ufually fpeak them to be enacted, either by the king with the advice of his wittena-gemote, or wife men, as, “haec “funt inftituta, quae Edgarus rex confilio fapientum fuorum infti- “tuit ;” or to be enacted by thofe fages with the advice of the king, as, “haec funt judicia, quae fapientes confilio regis Ethelftani “inftituerunt;” or laftly, to be enacted by them both together, as, “bae funt inftitutiones, qu s rex Edmundus et epifcopi fui cum “fapientibus fuis inftituerunt.”
THERE is alfo no doubt but thefe great councils were held regularly under the firft princes of the Norman line. Glanvil, who wrote in the reign of Henry the fecund, fpeaking of the particular amount of an amercement in the fheriff's court, fays, it had never yet been afcertained by the general affife, or affembly, but was left to the cuftom of particular counties f. Here the general affife is fpoken of as a meeting well known, and it's ftatutes or decifions are put in a manifeft contradiftinction to cuftoms, or the common law. And in Edward the third's time an
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c Glanvil. L. 13. c. 32. l. 9. c. 10. – Pref. 9 Rep. – 2 Inft. 526.
d l. 2. c. 2.
e c. 1. §. 3.
f 2 uanta effe debeat per nullam affifam generalem determinatum eft, fed pro confuctxdine fingulorum contitatuum debetur. L. 9. c. 10.
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act
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act of parliament, made in the reign of William the conqueror, was pleaded in the café of the abbey of St Edmund's-bury, and judicially allowed by the court g.
HENCE it indifputably appeas, that parliaments, or general councils, are coeval with the kingdom itfelf. How thofe parliaments were conftituted and compofed, is another queftion, which has been matter of great difpute among our leaned antiquarians ; and, particularly, whether the commons, were fummoned at all ; or, if fummoned, at what period they began to form a diftinct affembly. But it is not my intention here to enter into controverfies of this fort. I hold it fufficient that it is generally agreed, that in the main the conftitution of parliament, as it now ftands, was marked out fo long ago as the feventeenth year of king John, A. D. 1215, in the great charter granted by that prince ; wherein he promifes to fummon all arch-bifhops, bifhops, abbots, earls, and greater barons, perfonally ; and all other tenants in chief under the crown, by the fheriff and bailiffs ; to meet at a certain place, with forty days notice, to affefs aids and fcutages when neceffary. And this conftitution has fubfifted in fact at leaft from the year 1266, 49 Hen. III : there being ftill extant writs of that date, to fummon knights, citizens, and burgeffes to parliament. I proceed therefore to enquire wherein confifts this conftitution of parliament, as it now ftands, and has ftood for the fpace of five hundred years. And in the profecution of this enquiry, I fhall confider, firft, the manner and time of it's affembling : fecondly, it's conftituent parts : thirdly, the laws and couftoms relating to parliament, confidered as one aggregate body : fourthly and fifthly, the laws and cuftoms relating to each houfe, feparately and diftinctly taken : fixthly, the methods of proceeding, and of making ftatutes, in both houfes : and laftly, the manner of the parliament's adjournment, prorogation, and diffolution.
I. AS to the manner and time of affembling. The parliament is regularly to be fummoned by the king's writ or letter, iffued
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g Year book, 21 Edw. III. 60.
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T
out
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out of chancery by advice of the privy council, at leaft forty days before it begins to fit. It is a branch of the royal prerogative, that no parliament can be convened by it's own authority, or by the authority of any, except the king alone. And this prerogative is founded upon very good reafon. For, fuppofing it had a right to meet fpontaneoufly, without being called together, it is impoffible to conceive that all the members, and each of the houfes, would agree unanimoufly upon the proper time and place of meeting : and if half of the members met, and half abfented themfelves, who fhall determine which is really the legiftative body, the part affembled, or that which ftays away ? It is therefore neceffary that the parliament fhould be called together at a determinate time and place ; and highly becoming it's dignity and independence, that it fhould be called together by none but one of it's own conftituent parts; and, of the three conftituent parts, this office can only appertain to the king ; as he is a fingle perfon, whofe will may be uniform and fteady ; the firft perfon in the nation, being fuperior to both houfes in dignity; and the only branch of the legiflature that has a feparate exiftence, and is capable of performing any act at a time when no parliament is in being h. Nor is it an exception to this rule that, by fome modern ftatutes, on the demife of a king or queen, if there be then no parliament in being, the laft parliament revives, and is to fit again for fix months, unlefs diffolved by the fucceffor : for this revived parliament muft have been originally fummoned by the crown.
IT is true, that by a ftatute , 16 Car. I. c. 1. it was enacted, that if the king neglected to call a parliament for three years,
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h By motives fomewhat fimilar to thefe the republic of Venice was actuated, when towards the end of the feventh century it abolifhed the tribunes of the people, who were annually chofen by the feveral diftricts of the Venetian territory, and conftituted a doge in their ftead ; in whom the executive power of the ftate at prefent refides. For which their hiftorians have affigned thefe, as the principal reafons. 1. The propriety of having the executive power a part of the legiflative, or fenate ; to which the former annual magiftrates were not admitted. 2. The neceffity of having a fingle perfon to convoke the great council when feparated. Mod. Un. Hift. xxvii. 15.
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the
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the peers might affemble and iffue out writs for the choofing one ; and, in café of neglect of the peers, the conftituents might meet and elect one themfelves. But this , if ever put in practice, would have been liable to all the inconveniences I have juft now ftated ; and the act itfelf was efteemed fo highly detrimental and injurious to the royal prerogative, that it was repealed by ftatute 16 Car. II. c. 1. From thence therefore no precedent can be drawn.
IT is alfo true, that the convention-parliament, which reftored king Charles the fecund, met above a month before his return ; the lords by their own authority, and the commons in purfuance of writs iffued in the name of the keepers of the liberty of England by authority of parliament : and that the faid parliament fat till the twenty ninth of December, full feven months after the reftoration ; and enacted many laws, feveral of which are ftill in force. But this was for the neceffity of the thing, which fuperfedes all law ; for if they had not fo met, it was morally impoffible that the kingdom fhould have been fettled in peace. And the firft thing done after the king's return, was to pafs an act declaring this to be a good parliament, notwithftanding the defect of the king's writs i. So that, as the royal prerogative was chiefly wounded by their fo meeting, and as the king himfelf, who alone had a right to object, confented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Befides we fhould alfo remember, that it was at that time a great doubt among the lawyers k, whether even this healing act made it a good parliament ; and held by very many in the negative : though it feems to have been too nice a fcruple.
IT is likewife true, that at time of the revolution, A. D. 1688, the lords and commons by their own authority, and upon the fummons of the prince of Orange, (afterwards king William) met in a convention and therein difpofed of the crown and kingdom. But it muft be remembered, that this affembling was upon
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i Stat, 12 Car. II. C. 1.
k 1 Sid. 1.
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T 2
a like
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a like principle of neceffity as at the reftoration ; that is, upon an apprehenfion that king James the fecond had abdicated the government, and that the throne was thereby vacant : which apprehenfion of theirs was confirmed by their concurrent refolution, when they actually came together. And in fuch a cafe as the palpable vacancy of a throne, it follows ex neceffitate rei, that the form of the royal writs muft be laid afide, otherwife no parliament can ever meet again. For, let us put another poffible café, and fuppofe, for the fake of argument, that the whole royal line fhould at any time fail, and become extinct, which would indifputably vacate the throne : in this fituation it feems reafonable to prefume, that the body of the nation, confifting of lords and commons, would have a right to meet and fettle the government, otherwife there muft be no government at all. And upon this and no other principle did the convention in 1688 affemble. The vacancy of the throne was precedent to their meeting without any royal fummons, not a confequence of it. They did not affemble without writ, and then make the throne vacant; but the throne being previoufly vacant by the king's abdication, they affembled without writ, as they muft do if they affembled at all. Had the throne been full, their meeting would not have been regular ; but, as it was really empty, fuch meeting became abfolutely neceffary. And accordingly it is declared by ftatute 1 W. & M. ft. 1. c. 1. that this convention was really the two houfes of parliament, notwithftanding the want of writs or other defects of form. So that, notwithftanding thefe two capital exceptions, which were juftifiable only on a principle of neceffity, (and each of which, by the way, induced a revolution in the government) the rule laid down is in general certain, that the king, only, can convoke a parliament.
AND this by the antient ftatutes of the realm l, he is bound to do every year, or oftener, if need be. Not that he is, or ever was, obliged by thefe ftatutes to call a new parliament every year ; but only to permit a parliament to fit annually for the redrefs of
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l 4 Edw. III. c. 14. and 36 Edw. III. c. 10.
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grievances,
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grievances, and difpatch of bufinefs, if need de. Thefe laft words are fo loofe and vague, that fuch of our monarchs as were enclined to govern without parliaments, neglected the convoking them, fometimes for a very confiderable period, under pretence that there was no need of them. But, to remedy this, by the ftatute 16 Car. II. c. 1. it is enacted, that the fitting and holding of parliaments fhall not be intermitted above three years at the moft. And by the ftatute 1. W. & M. ft. 2. c. 2. it is declared to be one of the rights of the people, that for redrefs of all grievances, and for the amending, ftrengthening, and preferving the laws, parliaments ought to be held frequently. And this indefinite frequency is again reduced to a certainty by ftatute 6 W. & M. c. 2. which enacts, as the ftatute of Charles the fecond had done before, that a new parliament fhall be called within three years m after the determination of the former.
II.. THE conftituent parts of a parliament are the next objects of our enquiry. And thefe are, the king's majefty, fitting there in his royal political capacity, and the three eftates of the realm ; the lords fpiritual, the lords temporal, (who fit, together with the king, in one houfe) and the commons, who fit by themfelves in another n. And the king and thefe three eftates, together, form the great corporation or body politic of the kingdom, of which the king is faid to be caput, principium, et finis. For upon their coming together the king meets them, either in perfon or by reprefentation ; without which there can be no beginning of a parliament o ; and he alfo has alone the power of diffolving them.
IT is highly neceffary for preferving the balance of the conftitution, that the executive power fhould be a branch, though not be whole, of the legiflature. The total union of them, we have feen, would be productive of tyranny ; the total disjunction of them for the prefent, would in the end produce the fame
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m This is fame period, that is allowed in Sweden for intermitting their general diets, or parliamentary affemblies. Mod. Un. Hift. xxxiii. 15.
n 4 Inft. 1.
o 4 Inft. 6.
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effects.
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effects, by caufing that union, againft which it feems to provide. The legiflature would foon become tyrannical, by making continual encroachments, and gradually affuming to itfelf the rights of the executive power. Thus the long parliament of Charles the firft, while it acted in a conftitutional manner , with the royal concurrence, redreffed many heavy grievances and eftablifhed many falutary laws. But when the two houfes affumed the power of legiflation, in exclufion of the royal authority, they foon after affumed likewife the reins of adminiftration ; and, in confequence of thefe united powers, overturned both church and ftate, and eftablifhed a worfe oppreffions than any they pretended to remedy. To hinder therefore any fuch encroachments, the king is himfelf a part of the parliament : and, as this is the reafon of his being fo, very properly therefore the fhare of legiflation, which the conftitution has placed in the crown, confifts in the power of rejecting, rather than refolving ; this being fufficient to anfwer the end propofed. For we may apply to the royal negative, in this inftance, what Cicero obferves 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 p. The crown cannot begin of itfelf any alterations in the prefent eftablifhed law ; but it may approve or difapprove of the alterations fuggefted and confented to by the two houfes. The legiflative therefore cannot abridge the executive power of any rights which it now has by law, without it's own confent; fince the law muft perpetually ftand as it now does, unlefs all the powers will agree to alter it. And herein indeed confifts the true excellence of the Englifh government, that all the parts of it form a mutual check upon each other. In the legiflature, 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 refolved : while the king is a check upon both, which preferves the executive power from encroachments. And this every executive power is again checked, and kept within due bounds by the two houfes,
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p Sulla- tribunes plebes fua lege injuriae faciendae poteftatem ademit, auxilii ferendi reliquit. de LL. 3. 9.
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through
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through the privilege they have of enquiring into, impeaching, and punifhing the conduct (not indeed of the king, which would deftroy his conftitutional independence ; but, which is more beneficial to the public ) of his evil and pernicious counfellors. Thus every branch of our civil polity fupports and is fupported, regulates and is regulated, by the reft ; for the two houfes naturally drawing in two directions of oppofite intereft, and the prerogative in another ftill different from them both, they mutually keep each other from exceeding their proper limits ; while the whole is prevented from feparation, and artificially connected together by the mixed nature of the crown, which is a part of the legiflative, and the fole executive magiftrate. Like three diftinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by themfelves, would have done ; but at the fame time in a direction partaking of each, and formed out of all ; a direction which conftitutes the true line of the liberty and happinefs of the community.
LET us now confider thefe conftitutent parts of the fovereign power, or parliament, each in a feparate view. The king's majefty will be the fubject of the next, and many fubfequent chapters, to which we muft a prefent refer.
THE next in order are the fpiritual lords. Thefe confift of two arch-bifhops, and twenty four bifhops ; and, at the diffolutions of monafteries by Henry VIII., confifted likewife of twenty fix mitred abbots, and two priors q: a very confiderable body, and in thofe times equal in number to the temporal nobility r. All thefe hold, or are fuppofed to hold, certain antient baronies under the king : for William the conqueror thought proper to change the fpiritual tenure, of frankalmoign or free alms, under which the bifhops held their lands during the Saxon government, into the feodal or Norman tenure by barony ; which fubjected their eftates to all civil charges and affeffments, from which they
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q Seld. tit. hon. 2. 5. 27.
r Co. Litt. 97.
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were
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were before exempt s : and, in right of fucceffion to thofe baronies, the bifhops obtained their feat in the houfe of lords t. But though thefe lords fpiritual are in the eye of the law a diftinct eftate from the lords temporal, and are fo diftinguifhed in all our acts of parliament, yet in practice they are ufually blended together under the one name of the lords ; they intermix in their votes ; and the majority of fuch intermixture binds both eftates. For if a bill fhould pafs their houfe, there is no doubt of it's being effectual, though every lord fpiritual fhould vote againft it ; of which Selden u, and fir Edward Coke w , give many inftances : as, on the other hand, I prefume it would be equally good, if the lords temporal prefent were inferior to the bifhops in number, and every one of thofe temporal lords gave his vote to reject the bill ; though this fir Edward Coke feems to doubt of x.
THE lords temporal confift of all the peers of the realm (the bifhops not being in ftrictnefs held to be fuch, but merely lords of parliament y) by whatever title of nobility diftinguifhed ; dukes, marquiffes, earls, vifcouns, or barons ; of which dignities we fhall fpeak more hereafter. Some of thefe fit by defcent, as do all antient peers ; fome by creation, as do all new-made ones ; others, fince the union with Scotland, by election, which is the café of the fixteen peers, who reprefent the body of the Scots nobility. Their number is indefinite, and may be encreafed at will by the power of the crown : and once, in the reign of queen Anne, there was an inftance of creating no lefs than twelve together ; in contemplation of which, in the reign of king George the firft, a bill paffed the houfe of lords, and was countenanced by the then miniftry, for limiting the number of the peerage. This was thought by fome to promife a great acquifition to the conftitution, by reftraining the prerogative from gaining the afcendant in that auguft affembly, by pouring in at pleafure an un-
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s Gilb. Hift. Exch 55. Spelm. W. I. 291.
t Glanv. 7. 1. Co. Litt. 97. Seld. tit. hon. 2. 5. 19.
u Baronage. p. 1. c. 6.
w 2 Inft. 585, 6, 7.
x 4 Inft. 25.
y Staunford. P. C. 153.
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limited
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limited number of new created lords. But the bill was ill-relifhed and mifcarried in the houfe of commons, whofe leading members were then defirous to keep the avenues to the other houfe as open and eafy as poffible.
THE diftinction of rank and honours is neceffary in every well-governed ftate ; in order to reward fuch as are eminent for their fervices to the public, in a manner the moft defirable to individuals, and yet without burthen to the community ; exciting thereby an ambitious yet laudable ardor, and generous emulation in others. And emulation, or virtuous ambition, is a fpring of action which, however dangerous or invidious in a mere republic or under a defpotic fway, will certainly be attended with good effects under a free monarchy ; where, without deftroying it's exiftence, it's exceffes may be continually reftrained by that fuperior power, from which all honour is derived. Such a fpirit, when nationally diffufed gives life and vigour to the community ; it fets all the wheels of government in motion, which under a wife regulator, may be directed to any beneficial purpofe ; and thereby every individual may be made fubfervient to the public good, while he principally means to promote his own particular views. A body of nobility is alfo more peculiarly neceffary in our mixed and compounded conftitution, in order to fupport the rights of both the crown and the people, by forming a barrier to withftand the encroachments of both. It creates and preferves that gradual fcale of dignity, which proceeds from the peafant to the prince ; rifing like a pyramid from a broad foundation, and diminifhing to a point as it reifes. It is this afcending and contracting proportion that adds ftability to any government ; for when the departure is fudden from one extreme to another, we may pronounce that ftate to be precarious. The nobility therefore are the pillars, which are reared from among the people, more immediately to fupport the throne ; and if that falls, they muft alfo be buried under it's ruins. Accordingly, when in the laft century the commons had determined to extirpate monarchy, they alfo voted the houfe of lords to be ufelefs and dangerous. And
U
fince
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fince titles of nobility are thus expedient in the ftate, it is alfo expedient that their owners fhould form an independent and feparate branch of the legiflature. If they were confounded with the mafs of the people, and like them had only a vote in electing reprefentatives, their privileges would foon be borne down and overwhelmed by the popular torrent, which would effectually level all diftinctions. It is therefore highly neceffary that the body of nobles fhould have a diftinct affembly, diftinct deliberations, and diftinct powers from the commons.
THE commons confift of all fuch men of any property in the kingdom as have not feats in the houfe of lords ; every one of which as a voice in parliament, either perfonally, or by his reprefentatives. In a free ftate, every man, who is fuppofed a free agent, ought to be, in fome meafure, his own governor ; and therefore a branch at leaft of the legiflative power fhould refide in the whole body of the people. And this power, when the territories of the ftate are fmall and it's citizens eafily known, fhould be exercifed by the people in their aggregate or collective capacity, as was wifely ordained in the petty republics of Greece, and the firft rudiments of the Roman ftate. But this will be highly inconvenient, when the public territory is extended to any confiderable degree, and the number of citizens is encreafed. Thus when, after the focial war, all the burghers of Italy were admitted free citizens of Rome, and each had a vote in the public affemblies, it became impoffible to diftinguifh the fpurious from the real voter, and from that time all elections and popular deliberations grew tumultuous and diforderly ; which paved the way for Marius and Sylla, Pompey and Caefar, to trample on the liberties of their country, and at laft to diffolved the commonwealth. In fo large a ftate as ours it is therefore every wifely contrived, that the people fhould do that by their reprefentatives, which it is impracticable to perform in perfon : reprefentatives, chofen by a number of minute and feparate diftricts, wherein all the voters are, or eafily may be, diftinguifhed. The counties are therefore reprefented by knights, elected by the proprietors of
lands ;
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lands; the cities and boroughs are reprefented by citizens and burgeffes, chofen by the mercantile part or fuppofed trading intereft of the nation ; much in the fame manner as the burghers in the diet of Sweden are chofen by the corporate towns, Stockholm fending four, as London does with us, other cities two, and fome only one z. The number of Englifh reprefentatives is 513, and of Scots 45; in all 558. And every member, though chofen by one particular diftrict, when elected and returned ferves for the whole realm. For the end of his coming thither is not particular, but general ; not barely to advantage his conftituents, but the common wealth ; to advife his majcfty (as appears from the writ of fummons a) “de communi confilio fuper negotiis quibuf- “dam arduis et urgentibus, regem, ftatum et defenfionem regni An- “gliae et ecclefiae Anglicanae concernentibus.” And therefore he is not bound, like a deputy in the united provinces, to confult with, or take the advice, of his conftituents upon any particular point, unlefs he himfelf thinks it proper or prudent fo to do.
THESE are the conftituent parts of a parliament, the king, the lords fpiritual and temporal, and the commons. Parts, of which each is fo neceffary, that the confent of all three is required to make any new law that fhall bind the fubject. Whatever is enacted for law by one, or by two only, of the three is no ftatute ; and to it no regard is due, unlefs in matters relating to their own privileges. For though, in the times of madnefs and anarchy, the commons once paffed a vote b, “that whatever is enacted or “declared for law by the commons in parliament affembled hath “the thereby, although the confent and concurrence of the king “or houfe of peers be not had thereto ;” yet, when the conftitution was reftored in all it's forms, it was particularly enacted by ftatute 13 Car. II. c. 1. that if any perfon fhall malicioufly or advifedly affirm, that both or either of the houfes of parliament have anylegiflative authority without the king, fuch perfon fhall incur all the penalties of a praemunire.
.{FS}
z Mod. Un. Hift. xxxiii. 18.
a 4 Inft. 14.
b 4 Jan. 1648.
.{FE}
U 2
III. WE
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III. WE are next to examine the laws and cuftoms relating to parliament, thus united together and confidered as one aggregate body.
THE power and jurifdiction of parliament, fays fir Edward Coke c, is fo tranfcendent and abfolute, that it cannot be confined, either for caufes or perfons, within any bounds. And of this high court he adds, it may be truly faid “fi antiquitatem fpectes, “eft vetuftiffima; fi dignitatem, eft honoratiffima ; fi juridictionem, “eft capaciffima.” It hath fovereign and uncontrollable authority in making, confirming, enlarging, reftraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all poffible denominations, ecclefiaftical, or temporal, civil, military, maritime, or criminal : the being the place where that abfolute depotice power, which muft in all governments refide fomewhere, is entrufted by the conftitution of thefe kingdoms. All mifchiefs and grievances, operations and remedies, that tranfcend the ordinary courfe of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the fucceffion to the crown ; as was done in the reign of Henry VIII. and William III. It can alter the eftablifhed religion of the land ; as was done in a variety of inftances, in the reigns of king Henry VIII. and his three children. It can change and create afrefh even the conftitution of the kingdom and of parliaments themfelves ; as was done by the act of union, and the feveral ftatutes for triennial and feptennial elections. It can, in fhort, do every thing that is not naturally impoffible; and therefore fome have not fcrupled to call it's power, by a figure rather too bold, the omnipotence of parliament. True it is, that what they do, no authority upon earth can undo. So that it is a matter moft effential to the liberties of this kingdom, that fuch members be delegated to this important truft, as are moft eminent for their probity, their fortitude, and their knowlege ; for it was a known apothegm of the great lord treafurer Burleigh, “that
.{FS}
c 4 Inft. 36.
.{FE}
“ England
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“England could never be ruined but by a parliament :” and, as fir Matthew Hale obferves d , this being the higheft and greateft court, over which none other an have jurifdiction in the kingdom, if by any means a mifgovernment fhould any way fall upon it, the fubjects of this kingdom are left without all manner of remedy. To the fame purpofe the prefident Montefquieu, though I truft too haftily, prefages e; that as Rome, Sparta, and Carthage have loft their liberty and perifhed, fo the conftitution of England will in time lofe it's liberty, will perifh : it will perifh, whenever the legiflative power fhall become more corrupt that the executive.
IT muft be owned that Mr Locke f, and other theoretical writers, have held, that “there remains ftill inherent in the people 'a fupreme power to remove or alter the legiflative, when they 'find the legiflative act contrary to the truft repofed in them : 'for when fuch truft is abufed ; it is thereby forfeited, and de- “volves to thofe who gave it.” But however juft this conclufion may be in theory, we cannot adopt it, nor argue from it, under any difpenfation of government at prefent actually exifting. For this devolution of power, to the people at large, includes in it a diffolutions of the power, to the people at large, includes in it a diffolutions of the whole form of government eftablifhed by that people, reduces all the members of their original ftate of equality, and by annihilating the fovereign power repeals all pofitive laws whatfoever before enacted. No human laws will therefore fuppofed a café, which at once muft deftroy all law, and compel men to build afrefh upon a new foundation ; nor will they make provifion for fo defperate an event, as muft render all legal provifions ineffectual. So long therefore as the Englifh conftitution lafts, we may venture to affirm, that the power of parliament is abfolute and without control.
IN order to prevent the mifchiefs that might arife, by placing this extenfive authority in hands that are either incapable, or elfe
.{FS}
d of parliaments. 49.
e Sp. L. 11. 6.
f on Gov. p. 2. §. 149, 227.
.{FE}
improper,
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improper, to manage it, it is provided that no one fhall fit or vote in either houfe of parliament, unlefs he be twenty one years of age. This is expreffly declared by ftatute 7 & 8 W. III. c. 25. with regard to the houfe of commons ; though a minor was incapacitated before from fitting in either houfe, by the law and cuftom of parliament g. To prevent crude innovations in religion and government, it is enacted by ftatute 30 Car. II. ft. 2. and 1 Geo. I. c. 13. that no member fhall vote or fit in either houfe, till he hath in the prefence of the houfe taken the oaths of allegiance, fupremacy, and abjuration, and fubfcribed and repeated the declaration againft tranfubftantiation, and invocation of faints, and the facrifice of the mafs. To prevent dangers that may arife to the kingdom from foreign attachments, connexions, or dependencies, it is enacted by the 12 & 13 W. III. c. 2. that no alien, born out of the dominions of the crown of Great Britain, even though he be naturalized, fhall be capable of being a member of either houfe of parliafhent.
FARTHER : as every court of juftice hath laws and cuftoms for it's direction, fome the civil and canon, fome the common law, others their own peculiar laws and cuftoms, fo the high court of parliament hath alfo it's own peculiar law, called the lex et confuetudo parliamenti ; a law which fir Edward Coke h obferves, is “ab omnibus quaerenda, a multis ignorata, a paucis cog- “nita.” It will not therefore be expected that we fhould enter into the examination of this law, with any degree of minutenefs; fince, as the fame learned author affures us I, 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 expreffed by any one man. It will be fufficient to obferve, that the whole of the law and cuftom of parliament has it's original from this one maxim ; “that whatever matter arfes concerning “either houfe of parliament, ought to be examined, difcuffed, 'and adjudged in that houfe to which it relates, and not elfe-
.{FS}
g 4 Inft. 47.
h 1 Inft. 11.
I 4 Inft. 50.
.{FE}
“where.”
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“where.” Hence, for inftance, the lords will not fuffer the commons to interfere in fettling a claim of peerage ; the commons will not allow the lords to judge of the election of a burgefs ; nor will either houfe permit the courts of law to examine the merits of either café. But the maxims upon which they proceed, together with their method of proceeding, reft entirely in the breaft of the parliament itfelf ; and are not defined and afcertained by any particular ftated laws.
THE privileges of parliament are likewife very large and indefinite ; which has occafioned an obfervation, that the principal privilege of parliament confifted in this, that it's privileges were not certainly known to any but the parliament itfelf. And therefore when in 31 Hen. VI the houfe of lords propounded a queftion to the judges toughing the privilege of parliament, the chief juftice, in the name of his brethren, declared, “that they ought “not to make anfwer to that queftion; for it hath not been ufed “aforetime that the juftices fhould in any wife determine the “privileges of the high court of parliament ; for it is fo high “and mighty in his nature, that it may make law ; and that “which is law, it may make no law ; and the determination and “knowlege of that privilege belongs to the lords of parliament, “and not to the juftices k. Privilege of parliament was principally eftablifhed, in order to protect it's members not only from being molefted by their fellow-fubjects, but alfo more efpecially from being oppreffed by the power of the crown. It therefore all the privileges of parliament were once to be fet down and afcertained, and no privilege to be allowed but what was fo defined and determined, it were eafy for the executive power to devife fome new café, not within the line of privilege, and under pretence thereof to harafs any refractory member and violate the freedom of parliament. The dignity and independence of the two houfes are therefore in great meafure preferved by keeping their privileges indefinite. Some however of the more notorious privileges of the members of either houfe are, privilege of fpeech,
.{FS}
k Seld. Baronage. part. 1. c. 4.
.{FE}
of
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of perfon, of their domeftics, and of their lands and goods. As to the firft, privilege of fpeech, it is declared by the ftatute 1 W. & M. ft. 2. c. 2. as one of the liberties of the people, “that the freedom of fpeech, and debates, and proceedings in “parliament, ought not to be impeached or queftioned in any “court or place out of parliament.” And this freedom of fpeech is particularly demanded of the king in perfon, by the fpeaker of the houfe of commons, at the opening of every new parliament. So likewife are the other privileges, of perfon, fervants, lands and good ; which are immunities as antient as Edward the confeffor, in whofe laws l we find this precept. “Ad fynodos venien- “tibus, five fummoniti fint, five per .{FE} quid agendum habuerint, fit “fumma pax :” and fo too, in the old Gothic conftitutions, “ex- “tenditur baec pax et fecuritas ad quatuordecim dies, convocato “regni fenatu m.” This includes not only privilege from illegal violence, but alfo from legal arrefts, and feifures by procefs from the courts of law. To affault by violence a member of either houfe, or his menial fervants, is a high contempt of parliament, and there punifhed with the utmoft feverity. It has likewife peculiar penalties annexed to it in the courts of law, by the ftatutes 5 Hen. IV. c. 6. and 11 Hen. VI. c. 11. Neither can any members of either houfe be arrefted and taken into cuftody, nor fervid with any procefs of the courts of law ; nor can his menial fervants be arrefted ; nor can any entry be made on his lands ; nor can his goods be diftreined or feifed ; without a breach of the privilege of parliament. Thefe privileges however, which derogate from the common law, being only indulged to prevent the member's being diverted from the public bufinefs, endure no longer than the feffion of parliament, fave only as to the freedom of his perfon : which in a peer is for ever facred and inviolable ; and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting n; which is now in effect as long as the parliament fubfifts, it feldom being prorogued for more than fourfcore days at a time. But this privilege
.{FS}
l cap. 3.
m Stiernh. de jure Goth. l. 3. c. 3.
n 2 Lev. 72.
.{FE}
of
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of perfon does not hold in crimes of fuch public malignity as treafon, felony, or breach of the peace o ; or rather perhaps in fuch crimes for which furety of the peace may be required. As to all other privileges which obftruct the ordinary courfe of juftice, they ceafe by the ftatutes 12 W. III. c. 3. and 11 Geo. II. c. 24. immediately after the diffolutions or prorogation of the parliament, or adjournment of the houfes for above a fortnight ; and during thefe receffes a peer, or member of the houfe of commons, may be fued like an ordinary fubject, and in confequence of fuch fuits may be difpoffeffed of his lands and goods. In thefe cafes the king has alfo his prerogative : he may fue for his debts, though not arreft the perfon of a member, during the fitting of parliament ; and by ftatute 2 & 3 Ann. c. 18. a member may be fued during the fitting of parliament for any mifdemefno or breach of truft in a public office. Likewife, for the benefit of commerce, it is provided by ftatute 4 Geo. III. c. 33, that any trader, having privilege of parliament, may be fervid with legal procefs for any juft debt, (to the amount of 100 l.) and unlefs he makes fatisfaction within two months, it fhall be deemed an act of bankruptcy ; and that commiffions of bankrupt may be iffued againft fuch privileged traders, in like manner as againft any other.
THESE are the general heads of the laws and cuftoms relating to parliament, confidered as one aggregate body. We will next proceed to
IV. THE laws and cuftoms relating to the houfe of lords in particular. Thefe, if we exclude their judicial capacity, which will be more properly treated of in the third and fourth books of thefe commentaries, will take up but little of our time.
ONE very antient privilege is that declared by the charter of the foreft p, confirmed in parliament 9 Hen. III. ; viz, that every lord fpiritual or temporal fummoned to parliament, and paffing
.{FS}
o 4 Inft. 25.
p cap. 11.
.{FE}
W
through
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through the king's forefts, may both in going and returning, kill one or two of the king's deer without warrant ; in view of the forefter, if he be prefent ; or on blowing a horn if he be abfent, that he may not feem to take the king's venifon by ftealth.
IN the next place they have a right to be attended, and conftantly are, by the judges of the court of king's bench and commonpleas, and fuch of the barons of the exchequer as are of the degree of the coif, or have been made ferjeants at law ; as likewife by the mafters of the court of chancery ; for their advice in point of law, and for the greater dignity of their proceedings. The fecretaries of ftate, the attorney and folicitor general, and the reft of the king's learned counfel being ferjeants, were alfo ufed to attend the houfe of peers, and have to this day their regular writs of fummons iffued out at the beginning of every parliament q: but, as many of them have of late years been members of the houfe fo commons, their attendance is fallen into difufe.
ANOTHER privilege is, that every peer, by licence obtained from the king, may make another lord of parliament his proxy, to vote for him in his abfence r. A privilege which a member of the other houfe can by no means have, as he is himfelf but a proxy for a multitude of people s.
EACH peer has alfo a right, by leave of the houfe, when a vote paffes contrary to his fentiments, to enter his diffent on the journals of the houfe, with the reafons for fuch diffent on the journals of the houfe, with the reafons for fuch diffent ; which is ufually ftiled his proteft.
ALL bills likewife, that may in their confequences any way affect the rights of the peerage, are by the cuftom of parliament to have their firft rife and beginning in the houfe of peers, and to fuffer no changes or amendments in the houfe of commons.
.{FS}
q Stat. 3. Hen. VIII. c. 10. Smith's common w. b. 2. c. 3. Moor. 551. 4 Inft. 4. Hale of parl. 140.
r Seld. baronage. p. 1. c. 1.
s 4 Inft. 12.
.{FE}
THERE
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THERE is alfo one ftatute peculiarly relative to the houfe of lords ; 6 Ann. c. 23. which regulates the election of the fixteen reprefentative peers of North Britain, in confequence of the twenty fecond and twenty third articles of the union : and for that purpofe prefcribes the oaths, & c, to be taken by the electors ; directs the mode of balloting ; prohibits the peers electing from being attended in an unufual manner ; and expreffly provides , that no other matter fhall be treated of in that affembly, fave only the election, on pain of incurring a praemunire.
V. THE peculiar laws and cuftoms of the houfe of commons relate principally to the raifing of taxes, and the elections of members to ferve in parliament.
FIRST, with regard to taxes : it is the antient indifputable privilege and right of the houfe of commons, that all grants of fubfidies or parliamentary aids do begin in their houfe, and are firft beftowed by them t ; although their grants are not effectual to all intents and purpofes, until they have the affent of the other two branches of the legiflature. The general reafon, given for this exclufive privilege of the houfe of commons, is, that the fupplies are raifed upon the body of the people, and therefore it is proper that they alone fhould have the right of taxing themfelves. This reafon would be unanfwerable, if the commons taxed none but themfelves : but it is notorious, that a very large fhare of property is in the poffeffion of the houfe of lords ; that this property is equally taxable, and taxed, as the property of the commons ; and therefore the commons not being the fole perfons taxed, this cannot be the reafon of their having the fole right of raifing and modeling the fupply. The true reafon, arifing from the fpirit of our conftitution, feems to be this. The lords being a permanent hereditary body, created at pleafure by the king, are fuppofed more liable to be influenced by the crown, and when once influenced to continue fo, than the commons, who are a
.{FS}
t 4 Inft. 29.
.{FE}
W 2
temporary
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temporary elective body, freely nominated by the people. It would therefore be extremely dangerous, to give them any power of framing new taxes for the fubject ; it is fufficient, that they have a power of rejecting, if they think the commons too lavifh or improvident in their grants. But fo reafonably jealous are the commons of this valuable privilege, that herein they will not fuffer the other houfe to exert any power but that of rejecting ; they will not permit the leaft 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 raifed upon the fubject, for any purpofe or in any fhape whatfoever ; either for the exigencies of government, and collected from the kingdom in general, as the land tax ; on for private benefit, and collected in any particular diftrict ; as by turnpikes, parifh rates, and the like. Yet fir Matthew Hale u mentions one café, 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 lefs time, as for two years ; here, he fays , the bill need not be fent back to the commons for their concurrence, but may receive the royal affent without farther ceremony ; for the alteration of the lords is confiftent with the grant of the commons. But fuch an experiment will hardly be repeated by the lords, under the prefent improved idea of the privilege of the houfe of commons : and, in any café where a money bill is remanded to the commons, all amendments in the mode of taxation are fure to be rejected.
NEXT, with regard to the elections of knights, citizens, and burgeffes ; we may obferve that herein confifts the exercife of the democratical part of our conftitution : for in a democracy there can be no exercife of fovereignty but by fuffrage, which is the declaration of the people's will. In all democracies therefore it is of the utmoft importance to regulate by whom, and in what manner, the fuffrages are to be given. And the Athenians were
.{FS}
u on parliaments, 65, 66.
w Year book, 33 Hen. VI. 17.
.{FE}
fo
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fo juftly jealous of this prerogative, that a ftranger, who interfered in the affemblies of the people, was punifhed by their laws with death : becaufe fuch a man was efteemed guilt of high treafon, by ufurping thofe rights of fovereignty, to which he had no title. In England, where the people do not debate in a collective body buy by reprefentation, the exercife of this fovereignty confifts in the choice of reprefentatives. The laws have therefore very ftrictly guarded againft ufurpation or abufe of this power, by many falutary provifions; which may be reduced to thefe 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 reafon of requiring any qualification, with regard to property, in voters, is to exclude fuch perfons as are in fo mean a fituation that they are efteemed to have no will of their own. If thefe perfons had votes, they would be tempted to difpofe of them under fome undue influence or other. This would give a great, an artful, or a wealthy man, a larger fhare in elections than is confiftent 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, fhould have a vote in electing thofe delegates, to whofe charge is committed the difpofal of his property, his liberty, and his life. But, fince that can hardly be expected in perfons of indigent fortunes, or fuch as are under the immediate dominion of others, all popular ftates have been obliged to eftablifh certain qualifications ; whereby fome, who are fufpected to have no will of their own, are excluded from voting, in order to fet other individuals, whofe wills may be fuppofed independent, more thoroughly upon a level with each other.
AND this conftitution of fuffrages is framed upon a wifer principle than either of the methods of voting, by centuries, or by tribes, among the Romans. In the method by centuries, inftituted by Servius Tullius, it was principally property, and not
numbers
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numbers that turned the fcale : in the method by tribes, gradually introduced by the tribunes of the people, numbers only were regarded and property entirely overlooked. Hence the laws paffed by the former method had ufually too great a tendency to aggrandize the patricians or rich nobles ; and thofe by the latter had too much of a leveling principle. Our conftitution fteers between the two extremes. Only fuch as are entirely excluded, as can have no will of their own : there is hardly a free agent to be found, but what is entitled to a vote in fome place or other in the kingdom. Nor is comparative wealth, or property, entirely difregarded in elections ; for though the richeft man has only one vote at one place, yet if his property be at all diffufed, he has probably a right to vote at more places than one, and therefore has many reprefentatives. This is the fpirit of our conftitution : not that I affert it is in fact quite fo perfect as I have here endeavoured to defcribe it ; for, if any alteration might be wifhed or fuggefted in he prefent frame of parliaments, it fhould de in favour of a more complete reprefentation of the people.
BUT to return to our qualifications; and firft thofe of electors for knights of the fhire. 1. By ftatute 8 Hen. VI. c. 7. and 10 Hen. VI. c. 2. The knights of the fhires fhall be chofen of people dwelling in the fame counties ; whereof every man fhall have freehold to the value of forty fhillings by the year within the county ; which by fubfequent ftatutes is to be clear of all charges and deductions, except parliamentary and parochial taxes. The knights of fhires are the reprefentatives of the landholders, or landed intereft, of the kingdom : their electors muft therefore have eftates in lands or tenements, within the county reprefented : thefe eftates muft be freehold, that is, for term of life at leaft ; becaufe beneficial leafes for long terms of years were not in ufe at the making of thefe ftatutes, and copyholders were then little better than villains, abfolutely dependent upon their lord : this freehold muft be of forty fhillings annual value ; becaufe that fum would then, with proper induftry, furnifh all the neceffaries of life, and render the freeholder, if he pleafed, in
independent
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independent man. For bifhop Fleetwood, in his chronicon pretifum written about fixty years fince, has fully proved forty fhillings in the reign of Henry IV to have been equal to twelve pounds per annum in the reign of queen Anne ; and, as the value of money is every confiderably lowered fince the bifhop wrote, I think we may fairly conclude, from this and other circumftances, that what was equivalent to twelve pounds in his days is equivalent to twenty at prefent. The other lefs important qualifications of the electors for counties in England and Wales may be collected from the ftatutes cited in the margin x; which direct, 2. That no perfon under twenty one years of age fhall be capable of voting for any member. This extends to all forts of members, as well for boroughs as counties ; as does alfo the next, viz. 3. That no perfon convicted of perjury, or fubomation of perjury, fhall be capable of voting in any election. 4. That no perfon fhall vote in right of any freehold, granted to him fraudulently to qualify him to vote. Fraudulent grants are fuch as contain an agreement to reconvey, or to defeat the eftate granted ; which agreements are made void, and the eftate is abfolutely vefted in the perfon to whom it is fo granted. And, to guard the better againft fuch frauds, it is farther provided, 5. That every voter fhall have been in the actual poffeffion, or receipt of the profits, of his freehold to his own ufe for twelve calendar months before ; except it came to him by defcent, marriage, marriage fettlement, will, or promotion to a benefice or office. 6. That no perfon fhall vote in refpect of an annuity or rentcharge, unlefs regiftered with the clerk of the peace twelve calendar months before. 7. That in mortgaged or truft-eftates, the perfon in poffeffion, under the abovementioned reftrictions, fhall have the vote. 8. That only one perfon fhall be admitted to vote for any one houfe or tenement, to prevent the fplitting of freeholds. 9. That no eftate fhall qualify a voter, unlefs the eftate has been affeffed to fome land tax aid, at leaft twelve months before the election. 10. That
.{FS}
x 7 & 8 W. III. c. 25. 10 Ann. c. 23. 2 Geo. II. c. 21. 18 Geo. II. c. 18. 31 Geo. II. c. 14. 3 Geo. III. c. 24.
.{FE}
no
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no tenant by copy of court roll fhall be permitted to vote as a freeholder. Thus much for the electors in countries.
AS for the electors of citizens and burgeffes, thefe are fuppofed to be that mercantile part or trading intereft of this kingdom. But as trade is of a fluctuating nature, and feldom long fixed in a place, it was formerly left to the crown to fummon, pro e nata, the moft flourifhing towns to fend reprefentatives to parliament. So that as towns encreafed in trade, and grew populous, they were admitted to a fhare in the legiflature. But the misfortune is , that the deferted boroughs continued to be fummoned, as well as thofe to whom their trade and inhabitants were transferred ; except a few which petitioned to be eafed of the expence, then ufual, of maintaining their members : four fhillings a day being allowed for a knight of the fhire, and two fhillings for a citizen or burgefs ; which was the rate of wages eftablifhed in the reign of Edward III. y. Hence the members for boroughs now bear above a quadruple proportion to thofe for counties, and the number of parliament men is increafed fince Fortefcue's time, in the reign of Henry the fixth, from 300 to upwards of 500, exclufive of thofe for Scotland. The univerfities were in general not empowered to fend burgeffes to parliament ; though once, in 28 Edw. I. when a parliament was fummoned to confider of the king's right to Scotland, there were iffued writs, required the univerfity of Oxford to fend up four or five, and that of Cambridge two or three, of their moft difcreet and learned lawyers for that purpofe z. But it was king James the firft, who indulged them with the permanent privilege to fend conftantly two of their own body; to ferve for thofe ftudents who, though ufeful members of the community, were neither concerned in the landed nor the trading intereft ; and to protect in the legiflature the rights of the republic of letters. The right of election in boroughs is various, depending intirely on the feveral charters, cuftoms, and conftitutions of the refpective places, which has occafioned infinite difputes ; though now by ftatute 2 Geo. II. c. 24. the right
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y 4 Inft. 16.
z Prynne parl. writs. I. 345.
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of voting for the future fhall be allowed according to the laft determination of the houfe of commons concerning it. And by ftatute 3 Geo. III. c. 15. no freeman of any city or borough (other than fuch as claim by birth, marriage, or fervitude) fhall be intitled to vote therein unlefs he hath been admitted to his freedom twelve calendar months before.
2. OUR fecond point is the qualification of perfons to be elected members of the houfe of commons. This depends upon the law and cuftom of parliaments a, and the ftatutes referred to in the margin b. And from thefe it appears, 1. That they muft not be aliens born, or minors. 2. That they muft not be any of the twelve judges, becaufe they fit in the lords houfe ; nor of the clergy, for they fit in the convocation ; nor perfons attainted of treafon or felony, for they are unfit to fit any where c. 3. That fheriffs of counties, and mayors and bailiffs of boroughs, are not eligible in their refpective jurifdictions, as being returning officers d; but that fheriffs of one county are eligible to be knights of another e. 4. That, in ftrictnefs, all members ought to be inhabitants of the places for which they are chofen : but this is intirely difregarded. 5. That no perfons concerned in the management of any duties or taxes created fince 1692, except the commiffioners of the treafury, nor any of the officers following, (viz. commiffioners of prizes, tranfports, fick and wounded, wine licences, navy, and victualling ; fecretaries 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 excife and cuftoms ; clerks or deputies in the feveral offices of the treafury, exchequer, navy, victualling, admiralty, pay of the army or navy, fecretaries of ftate, falt, ftamps, appeals, wine licences, hackney coaches, hawkers and pedlars) nor any perfons that hold any new office under the
.{FS}
a 4 Inft. 47.
b 1. Hen. V. c. 1. 23 Hen. IV. c. 15. 1 W. & M. ft. 2. c. 2. 5 & 6 W. & M. c. 7. 11 & 12 W. III. c. 2. 12 & 13 W. III. c. 10. 6 Ann c. 7. 7. 9 Ann. c. 5. 1 Geo. I. c. 56. 15 Geo. II. c. 22. 33. Geo. II. c. 20.
c 4 Inft. 47.
d Hale of parl. 114.
e 4 Inft. 48.
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crown created fince 1705, are capable of being elected members. 6. That no perfon having a penfion under the crown during pleafure, or for any term of years, is capable of being elected. 7. That if any member accepts an office under the crown, except an officer in the army or navy accepting a new commiffion, his feat is void ; but fuch member is capable of being re-elected. 8. That all knights of the fhire fhall be actual knights, or fuch notable efquires and gentlemen, as have ftates fufficient to be knights, and by no means of the degree of yeomen. This is reduced to a ftill greater certainty, by ordaining, 9. That every knight of a fhire fhall have a clear eftate of freehold or copyhold to the value of fix hundred pounds per annum, and every citizen and burgefs to the value of three hundred pounds ; except the eldeft fons of peers, and of perfons qualified to be knights of fhires, and except the members for the two univerfities : which fomewhat balances the afcendant which the boroughs have gained over the counties , by obliging the trading intereft to make choice of landed men : and of this qualification the member muft make oath, and give in the particulars in writing, at the time of his taking his feat. But, fubject to thefe reftrictions and difqualifications, every fubject of the realm is eligible of common right. It was therefore an unconftitutional prohibition, which was inferted in the king's writs, for the parliament holden at Coventry, 6 Hen. IV, that no apprentice or other man of the law fhould be elected a knight of the fhire therein f: in return for which, our law books and hiftorians g have branded this parliament with the name of parliamentum indoctum, or the lack-learning parliament ; and fir Edward Coke obferves with fome fpleen h, that there was never a good law made thereat.
3. THE third point regarding elections, is the method of proceeding therein. This is alfo regulated by the law of parliament, and the feveral ftatutes referred to in the mar-
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f Pryn. on 4 Inft. 13.
g Walfingh. A. D. 1405.
h 4 Inft. 48.
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gin i; all which I fhall endeavour to blend together, and extract out of them a fummary account of the method of proceeding to elections.
AS foon as the parliament is fummoned, the lord chancellor, (or if a vacancy happens during parliament, the fpeaker, by order of the houfe) fends his warrant to the clerk of the crown in chancery ; who thereupon iffues out writs to the fheriff of every county, for the election of all the members to ferve for that county, and every city and borough therein. Within three days after the receipt of this writ, the fheriff is to fend his precept, under his feal, to the proper returning officers of the cities and boroughs, commanding them to elect their members ; and the faid returning officers are to proceed to election within eight days from the receipt of the precept, giving four days notice of the fame ; and to return the perfons chofen, together with the precept, to the fheriff.
BUT elections of knights of the fhire muft be proceeded to by the fheriffs themfelves in perfon, at the next county court that fhall happen after the delivery of the writ. The county is a court held every month or oftener by the fheriff, intended to try little caufes not exceeding the value of forty fhillings, in what part of the county he pleafes to appoint for that purpofe : but for the election of knights of the fhire, it muft be held at the moft ufual place. If the county court falls upon the day of delivering the writ, or within fix days after, the fheriff may adjourn the court and election to fome other convenient time, not longer than fixteen days, nor fhorter than ten ; but he cannot alter the place, without the confent of all the candidates ; and in all fuch cafes ten days public notice muft be given of the time and place of the election.
.{FS}
i 7 Hen. IV. c. 15. 8 Hen. VI. c. 7. 13 W. III. c. 10. 6 Ann. c. 23. 9 Ann. 23 Hen. VI. c. 15. 1 W. & M. ft. 1. c. 2. c. 5. 10 Ann. c. 19. and c. 23. 2. Geo. II. 2 W. & M. ft. 1. c. 7. 5 & 6 W. & M. c. 24. 8 Geo. II. c. 30. 18 Geo. II. c. 18. c. 20. 7 W. III. c. 4. 7 & 8 W. III. c. 7. 19 Geo. II. c. 28. and c. 25. 10 & 11 W. III. c. 7. 12 &
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AND as it is effential to the very being of parliament that elections fhould be abfolutely free, therefore all undue influences upon the electors are illegal, and ftrongly prohibited. For Mr Locke k ranks it among thofe breaches of truft in the executive magiftrate, which according to his notions amount to a diffolution of the government, “if he employs the force, treafure, “and offices of the fociety to corrupt the reprefentatives, or openly “to preingage the electors, and prefcribe what manner of perfons “fhall be chofen. For thus to regulate candidates and electors, “and new model the ways of election, what is it, fays he, but 'to cut up the government by the roots, and poifon the very “fountain of public fecurity ?” As foon therefore as the time and place of election, either in counties or boroughs, are fixed, all foldiers quartered in the place are to remove, at leaft one day before the election, to the diftance of two miles or more ; and not return till one day after the poll is ended. Riots likewife have been frequently determined to make an election void. By vote alfo of the houfe of commons, to whom alone belongs the power of determining contefted elections, no lord of parliament, or lord lieutenant of a county, hath any right to interfere in the election of commoners ; and, by ftatute , the lord warden of the cinque ports fhall not recommend any members there. If any officer of the excife, cuftoms, ftamps, or certain other branches of the revenue, prefumes to intermeddle in elections, by perfuading any voter or diffuading him, he forfeits 100 l, and is difabled to hold any office.
THUS are the electors of one branch of the legiflature fecured from any undue influence from either of the other two, and from all external violence and compulfion. But the greateft danger is that in which themfelves co-operate, by the infamous practice of bribery and corruption. To prevent which it is enacted that no candidate fhall, after the date (ufually called the tefte) of the writs, or after the vacancy, give any money or entertainment
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k on Gov. part 2. §. 222.
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to his electors, or promife to give any, either to particular perfons, or to the place in general, in order to his being elected ; on pain of being incapable to ferve for that place in parliament. And if any money, gift, office, employment, or reward be given or promifed to be given to any voter, at any time, in order to influence him to give or withhold his vote, both he that takes and he that offers fuch bribe forfeits 500 l, and is for ever difabled from voting and holding any office in any corporation ; unlefs, before conviction, he will difcover fome-other offender of the fame kind, and then he is indemnified for his own offence l. The firft inftance that occurs of election bribery, was fo early as 13 Eliz. when one Thomas Longe ( being a fimple man and of fmall capacity to ferve in parliament) acknowleged that he had given the returning officer and other of the borough of Weftbury four pounds to be returned member, and was for that premium elected. But for this offence the borough was amerced, the member was removed, and the officer fined and imprifoned m. But, as this practice hath fince taken much deeper and more univerfal root, it hath occafioned the making of thefe wholefome ftatutes ; to complete the efficacy of which, there is nothing wanting but refolution and integrity to put them in ftrict execution.
UNDUE influence being thus (I wifh the depravity of mankind would permit me to fay, effectually) guarded againft, the election is to be proceeded to on the day appointed ; the fheriff or other returning officer firft taking an oath againft bribery, and for the due execution of his office. The candidates likewife, if required, muft fwear to their qualification ; and the electors in counties to theirs ; and the electors both in counties and boroughs are alfo compellable to take the oath of abjuration and that againft bribery and corruption. And it might not be amifs, if the members elected were bound to take the latter oath, as well as the
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l In like manner the Julian law de ambitu inflicts fines and infamy upon all who were guilty of corruption at elections ; but, if the perfon guilty convicted another offender, he was reftored to his credit again. Ff. 48. 14. 1.
m 4 Inft. 23. Hale of parl. 112. Com. Journ. 10 & 11 may 1571.
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former ; which in all probability would be much more effectual, than adminiftring it only to the electors.
THE election being clofed, the returning officer in boroughs returns his precept to the fheriff, with the perfons elected by the majority : and the fheriff 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 occafional vacancy ; and this under penalty of 500 l. If the fheriff does not return fuch knights only as are duly elected, he forfeits, by the old ftatutes of Henry VI, 100 l; and the returning officer in borough for a like falfe return 40 l ; and they are befides liable to an action, in which double damages fhall be recovered, by the later ftatutes of king William : and any perfon bribing the returning officer fhall alfo forfeit 300 l. But the members returned by him are the fitting members, until the houfe of commons, upon petition, fhall adjudge the return to be falfe and illegal. And this abftract of the proceedings at elections of knights, citizens, and burgeffes, concludes our enquiries into the laws and cuftoms more peculiarly relative to the houfe of commons.
VI. I PROCEED now, fixthly, to the method of making laws ; which is much the fame in both houfes : and I fhall touch it very briefly, beginning in the houfe of commons. But firft I muft premife, that for difpatch of bufinefs each houfe of parliament has it's fpeaker. The fpeaker of the houfe of lords is the lord chancellor, or keeper of the king's great feal ; whofe office it is to prefide there, and manage the formality of bufinefs. The fpeaker of the houfe of commons is chofen by the houfe; but muft be approved by the king. And herein the ufage of the two houfes differs, that the fpeaker of the houfe of commons cannot give his opinion or argue any queftion in the houfe ; but the fpeaker of the houfe of lords may. In each houfe the act of the majority binds the whole ; and this majority is declared by votes
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openly and publickly given : not as at Venice, and many other fenatorial affemblies, privately or by ballot. This latter method may be ferviceable, to prevent intrigues and unconftitutional combinations : but is impoffible to be practiced with us ; at leaft in the houfe of commons, where every member's conduct is fubject to the future cenfure of his conftituents, and therefore fhould be openly fubmitted to their infpection.
TO bring a bill into the houfe, if the relief fought by it is of a private nature, it is firft neceffary to prefer a petition ; which muft be prefented by member, and ufually fets forth the grievance defired to be remedied. This petition (when founded on facts that may be in their nature difputed) is referred to a committee of members, who examine the matter alleged, and accordingly report it to the houfe ; and then (or, otherwife, 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 houfe, without any petition at all. formerly, all bills were drawn in the form of petitions, which were entered upon the parliament rolls, with the king's anfwer thereunto fubjoined ; not in any fettled form of words, but as the circumftances of the café required n : and at the end of each parliament the judges drew them into the form of a ftatute, which was entered on the ftatute-rolls. In the reign of Henry V, to prevent miftakes and abufes, the ftatutes 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 cuftom, were firft introduced.
THE perfons, directed to bring in the bill, prefent it in a competent time to the houfe, drawn out on paper, with a multitude of blanks, or void fpaces, where any thing occurs that is dubious, or neceffary to be fettled by the parliament itfelf ; (fuch, efpecially, as the precife date of times, the nature and quantity of penalties, or of any fums of money to be raifed) being indeed only the fceleton of the bill. In the houfe of lords, if the bill
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n See, among numerlefs other inftances, the articuli cleri, 9 Edw. II.
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begins there, it is (when of a private nature) perufed by two of the judges, who fettle all points of legal propriety. This is read a firft time, and at a convenient diftance a fecond time ; and after each reading the fpeaker opens to the houfe the fubftance of the bill, and puts the queftion, whether it fhall proceed any farther. The introduction of the bill may be originally oppofed, as the bill itfelf may at either of the readings ; and, if the oppofition fucceeds, the bill muft be dropt for that feffions ; as it muft alfo, if oppofed with fuccefs in any of the fubfequent ftages.
AFTER the fecond reading it is committed, that is, referred to a committee ; which is either felected by the houfe in matters of finall importance, or elfe, upon a bill of confequence, the houfe refolves itfelf into a committee of the whole houfe. A committee of the whole houfe is compofed of every member ; and, to form it, the fpeaker quits the chair, (another member being appointed chairman) and may fit and debate as a private member. In thefe committees the bill is debated claufe by claufe, amendments made, the blanks filled up, the fometimes the bill entirely new modelled. After it has gone through the committee, the chairman reports it to be houfe with fuch amendments as the committee have made ; and then the houfe reconfider the whole bill again, and the queftion is repeatedly put upon every claufe and amendment. When the houfe have agreed or difagreed to the amendments of the committee, and fometimes added new amendments of their own, the bill is then ordered to be engroffed, or written in a ftrong grofs hand, on one or more long rolls of parchment fewed together. When this is finifhed, it is read a third time, and amendments are fometimes then made to it ; and, if a new claufe be added, it is done by tacking a feparate piece of parchment on the bill, which is called a ryder. The fpeaker then again opens the contents ; and, holding it up in his hands, pus the queftion, whether the bill fhall pafs. If this is agreed to, one of the members is directed to carry it to the lords, and defire their concurrence ; who, attended by feveral more, carries it to
the
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the bar of the houfe of peers, and there delivers it to their fpeaker, who comes down from his woolfack to receive it.
IT there paffes through the fame forms as in the other houfe, (except engroffing, which is already done) and, if rejected, no more notice is taken, but it paffes fub filentio, to prevent unbecoming altercations. But if it is agreed to, the lords fend a meffage by two mafters in chancery (or fometimes two of the judges) that they have agreed to the fame : and the bill remains with the lords, if they have made no amendment to it. But if any amendments are made, fuch amendments are fent down with the bill to receive the concurrence of the commons. If the commons difagree to the amendments, a conference ufually follows between members deputed from each houfe ; who for the moft part fettle and adjuft the difference : but, if both houfes remain inflexible, the bill is dropped. If the commons agree to the amendments, the bill is fent back of the lords by one of the members, with a meffage to acquaint them therewith. The fame forms are obferved, mutates mutandis, when the bill begins in the houfe of lord. And when both houfes have done with the bill, it always is depofited in the houfe of peers, to wait the royal affent.
THIS may be given two ways : 1. In perfon ; when the king comes to the houfe of peers, in his crown and royal robes, and fending for the commons to the bar, the titles of all bills that have paffed both houfes are read ; and the king's anfwer is declared by the clerk of the parliament in Norman-French : a badge, it muft be owned, (now the only one remaining) of conqueft; and which one could wifh to fee fall into total oblivion ; unlefs it be referved as a folemn memento to remind us that our liberties are mortal, having once been deftroyed by a foreign force. If the king confents to a public bill, the clerk ufually declares, “le roy le veut, the king wills it fo to be;” if to a private bill. “foit fait come il defire, be it as it is defired.” If the king refufes his affent, it is in the gentle language of “le roy favifera. “the king will advife upon it.” 2. By ftatute 33 Hen. VIII. c. 21
Y
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the king may give his affent by letters patent under his great feal, figned with his hand, and notified, in his abfence, to both houfes affembled together in the high houfe. And, when the bill has received the royal affent in either of thefe ways, it is then, and not before, a ftatute or act of parliament.
THIS ftatute 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 neceffary by the civil law with regard to the emperors edicts : becaufe every man in England is, in judgment of law, party to the making of an act of parliament, being prefent thereat by his reprefentatives. However, a copy thereof is ufually printed at the king's prefs, for the information of the whole land. And formerly, before the invention of printing, it was ufed to be publifhed by the fheriff of every county ; the king's writ being fent to him at the end of every feffion, together with a tranfcript of all the acts made at that feffion, commanding him “ut ftatuta illa, et omnes articulos in eifdem contentos, in fin- “gulis locis ubi expedire viderit, publice proclamari, et firmiter te- “neri et obfervari faciat.” And the ufage was to proclaim them at his county court, and there to keep them, that whoever would might read or take copies thereof ; which cuftom continued till the reign of Henry the feventh o.
AN act of parliament, thus made, is the exercife of the higheft authority that this kingdom acknowleges upon earth. It hath power to bind every fubject in the land, and the dominions thereunto belonging ; nay, even the king himfelf, if particularly named therein. And it cannot be altered, amended, difpenfed with, fufpended, or repealed, but in the fame forms and by the fame authority of parliament : for it is a maxim in law, that it requires the fame ftrength to diffolved, as to create an obligation. It is true it was formerly held, that the king might in many cafes difpenfe with penal ftatutes p: but now by ftatute 1 W. & M.. ft. 2. c. 2. it is declared, that the fufpending or difpenfing with
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o 3 Inft. 41. 4 Inft. 26.
p Finch L. 81. 234.
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laws by regal authority, without confent of parliament, is illegal.
VII. THERE remains only, in the feventh and laft place, to add a word or two concerning the manner in which parliaments may be adjourned, prorogued, or diffolved.
AN adjournment is no more than a continuance of the feffion from one day to another, as the word itfelf fignifies : and this is done by the authority of each houfe feparately every day ; and fometimes for a fortnight or a month together, as at Chriftmas or Eafter, or upon other particular occafions. But the adjournment of one houfe is no adjournment of the other q. It hath alfo been ufual, when his majefty hath fignified his pleafure that both or either of the houfes fhould adjourn themfelves to a certain day, to obey the king's pleafure fo fignified, and to adjourn accordingly r. Otherwife, befides the indecorum of a refufal, a prorogation would affuredly follow ; which would often be very inconvenient to both public and private bufinefs. For prorogation puts an end to the feffion ; and then fuch bills, as are only begun and not perfected, muft be refumed de novo (if at all) in a fubfequent feffion : whereas, after an adjournment, all things continue in the fame ftate as at the time of the adjournment made, and may be proceeded on without any frefh commencement.
A PROROGATION is the continuance of the parliament from one feffion to another, as an adjournment is a continuation of the feffion from day to day. This is done by the royal authority, expreffed either by the lord chancellor in his majefty's prefence, or by commiffion from the crown, or frequently by proclamation. Both houfes are neceffarily prorogued at the fame time ; it not being a prorogation of the houfe of lords, or commons, but of the parliament. The feffion is never underftood
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q 4 Inft. 28.
r Com. Journ. paffim : e. g. 11 11 Jun. 1572. 5 Par. 1604. 4. Jun. 14 Nov. 18 Dec. 1621. 11 Jul. 1625. 13 Sept. 1660. 25 Jul. 1667. 4 Aug. 1685. 24 Febr. 1691. 21 Jun. 1712. 16 Apr. 1717. 3 . 1741. 10 Dec. 1745.
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to be at an end, until a prorogation : though, unlefs fome act be paffed or fome judgment given in parliament, it is in truth no feffion at all. And formerly the ufage was, for the king to give the royal affent to all fuch bills as he approved, at the end of every feffion, and then to prorogue the parliament ; though fometimes only for a day or two t: after which all bufinefs then depending in the houfes was to be begun again. Which cuftom obtained fo ftrongly, that it once became a queftion u, whether giving the royal affent to a fingle bill did not of courfe put an end to the feffion. And, though it was then refolved in the negative, yet the notion was fo deeply rooted, that the ftatute 1 Car. I. c. 7. was paffed to declare, that the king's affent to that and fome other acts fhould not put an end to the feffion ; and even fo late as the reftoration of Charles II, we find a provifo tacked to the firft bill then enacted w, that his majefty's affent thereto fhould not determine the feffion of parliament. But it now feems to be allowed, that a prorogation muft be expreffly made, in order to determine the feffion. And, if at the time of an actual rebellion, or imminent danger of invafion, the parliament fhall be feparated by adjournment or prorogation, the king is empowered x to call them together by proclamation, with fourteen days notice of the time appointed for their reaffembling.
A DISSOLUTION is the civil death of the parliament ; and this may be effected three ways : 1. By the king's will, expreffed either in perfon or by reprefentation. For, as the king has the fole right of convening the parliament, fo alfo it is a branch of the royal prerogative, that he may (whenever he pleafes) prorogue the parliament for a time, or put a final period to it's exiftence. If nothing had a right to prorogue or diffolve a parliament but itfelf, it might happen to become perpetual. And this would be extremely dangerous, if at any time it fhould attempt to encroach upon the executive power : as was fatally experien-
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s 4 Inft. 28. Hale of parl. 38.
t Com. Journ. 21 Oct. 1553.
u Ibid. 21 Nov. 1554.
w Stat. 12 Car. II. c. 1.
x Stat. 30 Geo. II. c. 25.
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Ch. 2.
ced by the unfortunate king Charles the firft; who, having unadvifedly paffed an act to continue the parliament then in being till fuch time as it fhould pleafe to diffolved itfelf, at laft fell a facrifice to that inordinate power, which he himfelf had confented to give them. It is therefore extremely neceffary that the crown fhould be empowered to regulate the duration of thefe affemblies, under the limitations which the Englifh conftitution has prefcribed : fo that, on the one hand, they may frequently and regularly come together, for the difpatch of bufinefs and redrefs of grievances ; and may not, on the other, even with the confent of the crown, be continued to an inconvenient or unconftitutional length.
2. A PARLIAMENT may be diffolved by the demife of the crown. This diffolution formerly happened immediately upon the death of the reigning fovereign, for the being confidered 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 fucceffor being found inconvenient, and dangers being apprehended from having no parliament in being in café of a difputed fucceffion, it was enacted by the ftatutes 7 & 8 W. III. c. 15, and 6 Ann. c. 7. that the parliament in being fhall continue for fix months after the death of any king or queen, unlefs fooner prorogued or diffolved by the fucceffor : that, if the parliament be, at the time of the king's death, feparated by adjournment or prorogation, it fhall notwithftanding affemble immediately : and that, if no parliament is then in being, the members of the laft parliament fhall affemble, and be again a parliament.
3. LASTLY, a parliament may be diffolved or expire by length of time. For if either the legiflative body were perpetual ; or might laft for the life of the prince who convened them, as formerly ; and were fo to be fupplied, by occafionally filling the vacancies with new reprefentatives ; in thefe cafes, if it were once corrupted, the evil would be paft all remedy : but
when
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The RIGHTS OF PERSONS.
BOOK I.
Ch. 2.
when different bodies fucceed each other, if the people fee caufe to difapprove of the prefent, they may rectify it's faults in the next. A legiflative affembly alfo, which is fure to be feparated again, (whereby it's members will themfelves become private men, and fubject to the full extent of the laws which they have enacted for others) will think themfelves bound, in intereft as well as duty, to make only fuch laws as are good. The utmoft extent of time that the fame parliament was allowed to fit, by the ftatute 6 W. & M. c. 2. was three years ; after the expiration of which, reckoning from the return of the firft fummons, the parliament was to have no longer continuance. But by the ftatute 1 Geo. I. ft. 2. c. 38. (in order, profeffedly, to prevent the great and continued expenfes of frequent elections, and the violent heats and animofities confequent thereupon, and for the peace and fecurity of the government then juft recovering from the late rebellion) this term was prolonged to feven years ; and, what alone is an inftance of the vaft authority of parliament, the very fame houfe, that was chofen for three years, enacted it's own continuance for feven. So that, as our conftitution now ftands, the parliament muft expire, or die a natural death, at the end of every feventh year ; if not fooner diffolved by the royal prerogative.