Commentaries on the Laws of England Part 13

[Footnote r: Co. Litt. 97.]

[Footnote s: Gilb. Hist. Exch. 55. Spelm. W.I. 291.]

[Footnote t: Glanv. 7. 1. Co. Litt. 97. Seld. t.i.t. hon. 2. 5. 19.]

[Footnote u: Baronage. p. 1. c. 6.]

[Footnote w: 2 Inst. 585, 6, 7.]

[Footnote x: 4 Inst. 25.]

THE lords temporal consist of all the peers of the realm (the bishops not being in strictness held to be such, but merely lords of parliament[y]) by whatever t.i.tle of n.o.bility distinguished; dukes, marquisses, earls, viscounts, or barons; of which dignities we shall speak more hereafter. Some of these sit by descent, as do all antient 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 n.o.bility. Their number is indefinite, and may be encreased 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 pa.s.sed 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 const.i.tution, by restraining the prerogative from gaining the ascendant in that august a.s.sembly, 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.

[Footnote y: Staunford. P.C. 153.]

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 burthen to the community; exciting thereby an ambitious yet laudable ardor, and generous emulation in others. And emulation, or virtuous ambition, is a spring of action which, however dangerous or invidious in a mere republic or under a despotic sway, will certainly be attended with good effects under a free monarchy; where, without destroying it's existence, it's 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, 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 princ.i.p.ally means to promote his own particular views. A body of n.o.bility is also more peculiarly necessary in our mixed and compounded const.i.tution, 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 diminis.h.i.+ng 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 p.r.o.nounce that state to be precarious. The n.o.bility 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 it's 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 t.i.tles of n.o.bility 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 ma.s.s 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 n.o.bles should have a distinct a.s.sembly, distinct deliberations, and distinct powers from the commons.

THE commons consist of all such men of any property in the kingdom as have not seats in the house of lords; every one of which 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 it's citizens easily known, should be exercised by the people in their aggregate or collective capacity, as was wisely ordained in the petty republics of Greece, and the first rudiments of the Roman state. But this will be highly inconvenient, when the public territory is extended to any considerable degree, and the number of citizens is encreased. 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 a.s.semblies, it became impossible to distinguish the spurious from the real voter, and from that time all elections and popular deliberations grew tumultuous and disorderly; which paved the way for Marius and Sylla, Pompey and Caesar, to trample on the liberties of their country, and at last to 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 cities and boroughs are represented by citizens and burgesses, chosen by the mercantile part or supposed trading interest of the nation; much in the same manner as the burghers in the diet of Sweden are chosen by the corporate towns, Stockholm sending four, as London does with us, other cities two, and some only one[z]. The number of English representatives is 513, and of Scots 45; in all 558. And every member, though chosen by one particular district, when elected and returned serves for the whole realm. For the end of his coming thither is not particular, but general; not barely to advantage his const.i.tuents, but the _common_ wealth; to advise his majesty (as appears from the writ of summons[a]) "_de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum et defensionem regni Angliae et ecclesiae Anglicanae concernentibus_." And therefore he is not bound, like a deputy in the united provinces, to consult with, or take the advice, of his const.i.tuents upon any particular point, unless he himself thinks it proper or prudent so to do.

[Footnote z: Mod. Un. Hist. x.x.xiii. 18.]

[Footnote a: 4 Inst. 14.]

THESE are the const.i.tuent 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 pa.s.sed a vote[b], "that whatever is enacted or declared for law by the commons in parliament a.s.sembled 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 const.i.tution was restored in all it's forms, it was particularly enacted by statute 13 Car. II. c. 1. that if any person shall maliciously or advisedly affirm, that both or either of the houses of parliament have any legislative authority without the king, such person shall incur all the penalties of a praemunire.

[Footnote b: 4 Jan. 1648.]

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 c.o.ke[c], 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 juridictionem, est capacissima_." It hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the const.i.tution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of king Henry VIII and his three children. It can change and create afresh even the const.i.tution 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 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 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 fort.i.tude, and their knowlege; for it was a known apothegm of the great lord treasurer Burleigh, "that England could never be ruined but by a parliament:"

and, as sir Matthew Hale observes[d], 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[e]; that as Rome, Sparta, and Carthage have lost their liberty and perished, so the const.i.tution of England will in time lose it's liberty, will perish: it will perish, whenever the legislative power shall become more corrupt than the executive.

[Footnote c: 4 Inst. 36.]

[Footnote d: of parliaments, 49.]

[Footnote e: Sp. L. 11. 6.]

IT must be owned that Mr Locke[f], and other theoretical writers, have held, that "there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for when such trust is abused, it is thereby forfeited, and devolves to those who gave it." But however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a 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. So long therefore as the English const.i.tution lasts, we may venture to affirm, that the power of parliament is absolute and without control.

[Footnote f: on Gov. p. 2. --. 149, 227.]

IN order to prevent the mischiefs that might arise, by placing this extensive authority in hands that are either incapable, or else improper, to manage it, it is provided that no one shall sit or vote in either house of parliament, unless he be twenty one years of age.

This is expressly declared by statute 7 & 8 W. III. c. 25. with regard to the house of commons; though a minor was incapacitated before from sitting in either house, by the law and custom of parliament[g]. To prevent crude innovations in religion and government, it is enacted by statute 30 Car. II. st. 2. and 1 Geo. I. c. 13. that no member shall vote or sit in either house, till he hath in the presence of the house taken the oaths of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation, and invocation of saints, and the sacrifice of the ma.s.s. To prevent dangers that may arise 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, shall be capable of being a member of either house of parliament.

[Footnote g: 4 Inst. 47.]

FARTHER: as every court of justice hath laws and customs for it's 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 it's own peculiar law, called the _lex et consuetudo parliamenti_; a law which sir Edward c.o.ke[h] observes, is "_ab omnibus quaerenda, a multis ignorata, a paucis cognita_." It will not therefore be expected that we should enter into the examination of this law, with any degree of minuteness; since, as the same learned author a.s.sures 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 expressed by any one man. It will be sufficient to observe, that the whole of the law and custom of parliament has it's 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." Hence, for instance, the lords will not suffer the commons to interfere in settling a claim of peerage; the commons will not allow the lords to judge of the election of a burgess; nor will either house permit the courts of law to examine the merits of either case. But the maxims upon which they proceed, together with their method of proceeding, rest entirely in the breast of the parliament itself; and are not defined and ascertained by any particular stated laws.

[Footnote h: 1 Inst. 11.]

[Footnote i: 4 Inst. 50.]

THE _privileges_ of parliament are likewise very large and indefinite; which has occasioned an observation, that the princ.i.p.al privilege of parliament consisted in this, that it's privileges were not certainly known to any but the parliament itself. And therefore when in 31 Hen.

VI the house of lords propounded a question to the judges touching the privilege of parliament, the chief justice, in the name of his brethren, declared, "that they ought not to make answer to that question; for it 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 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 justices[k]." [Transcriber's Note: missing end quotation mark added] Privilege of parliament was princ.i.p.ally established, in order to protect it's 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 hara.s.s any refractory member and violate the freedom of parliament. The dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges indefinite. Some however of the more notorious privileges of the members of either house are, privilege of speech, of person, of their domestics, and of their lands and goods. As to the first, privilege of speech, it is declared by the statute 1 W. & M. st. 2. c. 2. as one of the liberties of the people, "that the freedom of speech, and debates, and proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament." And this freedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every new parliament. So likewise are the other privileges, of person, servants, lands and goods; which are immunities as antient as Edward the confessor, in whose laws[l] we 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 const.i.tutions, "_extenditur haec pax et securitas ad quatuordecim dies, convocato regni senatu_[m]." This includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law. To a.s.sault by violence a member of either house, or his menial servants, is a high contempt of parliament, and there punished with the utmost severity. It has likewise peculiar penalties annexed to it in the courts of law, by the statutes 5 Hen. IV. c. 6. and 11 Hen. VI. c. 11. Neither can any member of either house be arrested and taken into custody, nor served with any process of the courts of law; nor can his menial servants be arrested; nor can any entry be made on his lands; nor can his goods be distrained or seised; without a breach of the privilege of parliament.

These privileges however, which derogate from the common law, being only indulged to prevent the member's being diverted from the public business, endure no longer than the session of parliament, save only as to the freedom of his person: which in a peer is for ever sacred and inviolable; and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting[n]; which is now in effect as long as the parliament subsists, it seldom being prorogued for more than fourscore days at a time. But this privilege of person does not hold in crimes of such public malignity as treason, felony, or breach of the peace[o]; or rather perhaps in such crimes for which surety of the peace may be required. As to all other privileges which obstruct the ordinary course of justice, they cease by the statutes 12 W. III. c. 3. and 11 Geo. II. c. 24.

immediately after the dissolution or prorogation of the parliament, or adjournment of the houses for above a fortnight; and during these recesses a peer, or member of the house of commons, may be sued like an ordinary subject, and in consequence of such suits may be dispossessed of his lands and goods. In these cases the king has also his prerogative: he may sue for his debts, though not arrest the person of a member, during the sitting of parliament; and by statute 2 & 3 Ann. c. 18. a member may be sued during the sitting of parliament for any misdemesnor or breach of trust in a public office. Likewise, for the benefit of commerce, it is provided by statute 4 Geo. III. c.

33, that any trader, having privilege of parliament, may be served with legal process for any just debt, (to the amount of 100_l._) and unless he makes satisfaction within two months, it shall be deemed an act of bankruptcy; and that commissions of bankrupt may be issued against such privileged traders, in like manner as against any other.

[Footnote k: Seld. Baronage. part. 1. c. 4.]

[Footnote l: _cap._ 3.]

[Footnote m: Stiernh. _de jure Goth._ _l._ 3. _c._ 3.]

[Footnote n: 2 Lev. 72.]

[Footnote o: 4 Inst. 25.]

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 antient privilege is that declared by the charter of the forest[p], confirmed in parliament 9 Hen. III; viz. that every lord spiritual or temporal summoned to parliament, and pa.s.sing through the king's forests, may, both in going and returning, kill one or two of the king's deer without warrant; in view of the forester, if he be present; or on blowing a horn if he be absent, that he may not seem to take the king's venison by stealth.

[Footnote p: cap. 11.]

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 commonpleas, 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 masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings. The secretaries of state, the attorney and solicitor general, and the rest of the king's learned counsel being serjeants, were also used to attend the house of peers, and have to this day their regular writs of summons issued out at the beginning of every parliament[q]: but, as many of them have of late years been members of the house of commons, their attendance is fallen into disuse.

[Footnote q: Stat. 31 Hen. VIII. c. 10. Smith's commonw. b. 2. c. 3.

Moor. 551. 4 Inst. 4. Hale of parl. 140.]

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 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 mult.i.tude of other people[s].

[Footnote r: Seld. baronage. p. 1. c. 1.]

[Footnote s: 4 Inst. 12.]

EACH peer has also a right, by leave of the house, when a vote pa.s.ses contrary to his sentiments, to enter his dissent on the journals of the house, with the reasons for such dissent; which is usually stiled his protest.

ALL bills likewise, that may in their consequences any way affect the rights of the peerage, are by the custom of parliament to have their first rise and beginning in the house of peers, and to suffer no changes or amendments in the house of commons.

THERE is also one statute peculiarly relative to the house of lords; 6 Ann. c. 23. which regulates the election of the sixteen representative peers of North Britain, in consequence of the twenty second and twenty third articles of the union: and for that purpose prescribes the oaths, &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 a.s.sembly, save only the election, on pain of incurring a praemunire.

V. THE peculiar laws and customs of the house of commons relate princ.i.p.ally to the raising of taxes, and the elections of members to serve in parliament.

FIRST, with regard to taxes: it is the antient 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 a.s.sent of the other two branches of the legislature. The general reason, given for this exclusive privilege of the house of commons, is, that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. This reason would be unanswerable, if the commons taxed none but themselves: but it is notorious, that a very large share of property is in the possession of the house of lords; that this property is equally taxable, and taxed, as the property of the commons; and therefore the commons not being the _sole_ persons taxed, this cannot be the reason of their having the _sole_ right of raising and modelling the supply. The true reason, arising from the spirit of our const.i.tution, seems to be this. The lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced to continue so, than the commons, who are a temporary elective body, freely nominated by the people. It would therefore be extremely dangerous, to give them any power of framing new taxes for the subject: it is sufficient, that they have a power of rejecting, if they think the commons too lavish or improvident in their grants. But so reasonably jealous are the commons of this valuable privilege, that herein they will not suffer the other house to exert any power but that of rejecting; they will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; under which appellation are included all bills, by which money is directed to be raised upon the subject, for any purpose or in any shape whatsoever; either for the exigencies of government, and collected from the kingdom in general, as the land tax; or for private benefit, and collected in any particular district; as by turnpikes, parish rates, and the like. 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 a.s.sent without farther ceremony; for the alteration of the lords is consistent with the grant of the commons. But such an experiment will hardly be repeated by the lords, under the present improved idea of the privilege of the house of commons: and, in any case where a money bill is remanded to the commons, all amendments in the mode of taxation are sure to be rejected.