[consentiendum; but whenever of late years they have been members of the house of commons (q), their attendance here hath fallen into disuse (r). Another privilege is, that every peer, by licence obtained from the Crown, may make another lord of parliament his proxy (s), to vote for him in his absence (t). A privilege which a member of the other house can by no means have, as he is himself but a proxy for a multitude of other people (u). Each peer has also a right, by leave of the house, when a vote passes contrary to his sentiments, to enter his dissent on the journals of the house, with the reasons for such dissent; which is usually styled his protest (x). 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,] which has, however, the power of rejecting them altogether. (q) See Com. Journ. 11th April, 1614; 8th Feb. 1620; 10th Feb. 1625; 4 Inst. 48. (r) On account of this attendance there are several resolutions before the Restoration, declaring the attorney-general incapable of sitting among the commons. Sir Heneage Finch, member for the University of Oxford, afterwards Lord Nottingham and chancellor, was the first attorney-general who enjoyed that privilege. Sim. 28. To the functionaries mentioned in the text as attendants of the house of lords, Mr. May, in his Parliamentary Practice (3rd edit. p. 205), adds the Master of the Rolls. (s) If a peer, after appointing a proxy, appears personally in parliament, his proxy is revoked and annulled. (4 Inst. 13.) By the orders of the house, no proxy shall vote upon VOL. II. a question of guilty or not guilty; (t) Seld. Baronage, p. 1, c. 1. (x) Lord Clarendon relates, that the first instances of protests with reasons, in England, were in 1641, before which time they usually only set down their names as dissentient to a vote; the first regular protest in Ireland was in 1662. 1 Ld. Mountm. 402. (Chit. Blackstone.) A A There is also a statute peculiarly relative to the house of lords, viz. 6 Anne, c. 23 (y), [which regulates the election of the sixteen representative peers of North Britain, in consequence of the twenty-second and twenty-third articles of the Union; and for that purpose prescribes the oaths, &c. to be taken by the electors; directs the mode of balloting; prohibits the peers electing from being attended in an unusual manner and expressly provides that no other matter shall be treated of in that assembly, save only the election, on pain of incurring a præmunire.] Similar provisions are also made by 39 & 40 Geo. III. c. 67, and 20 & 21 Vict. c. 33, as to the manner of electing the Irish representative peers. V. [The peculiar laws and customs of the house of commons, relate principally to the raising of taxes, and the election of members to serve in parliament (≈). First, with regard to taxes; it is the 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 (a); although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature. The general reason given for this exclusive privilege of the house of commons, is, that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves,] through their representatives in that house. [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: (y) This Act has been amended by 10 & 11 Vict. c. 52; 14 & Vict. c. 87; and 15 & 16 Vict. c. 35. See also 2 & 3 Will. 4, c. 63. (z) The offices of the house of commons, and the salaries of the different officers, are regulated by 52 [and therefore the commons not being the sole persons taxed, this cannot be the reason of their having the sole right of raising and modelling the supply. The true reason, arising from the spirit of our constitution, seems to be this: The lords being a permanent hereditary body, created at pleasure by the sovereign, 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 the lords any power of framing new taxes for the subject; it is sufficient that they have a power of rejecting, if they think the commons too lavish or improvident in their grants. But so reasonably jealous are the commons of this valuable privilege, that herein they will not suffer the other house to exert any power but that of rejecting. They will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill: under which appellation are included all bills by which money is directed to be raised upon the subject, for any purpose or in any shape whatsoever; either for the exigencies of government, and collected from the kingdom in general; or for private benefit, and collected in any particular district, as by turnpikes, parish rates, and the like (b).] And the rule is even extended to all bills in which pecuniary penalties and fines are imposed for offences. But it should seem it is carried beyond its original principle, when the money raised is not granted to the crown (c). [Sir Matthew Hale (d) men (b) Upon the application of this rule, there have been many warm contests between the lords and commons, in which the latter seem always to have prevailed. See many conferences collected by Mr. Hatsel, in his Appendix to the third volume. In the conference of April, 1671, the general question is debated with infinite ability on both sides, but particularly on the part of the commons, by Sir Heneage Finch. Christian's Blackstone. (c) Accordingly some relaxation of this rule in regard to penalties has been made by the commons; its too strict enforcement having been found to be attended with unnecessary inconvenience. 86 Com. J. 477; 104 Com. J. 23. A A. 2. (d) On Parliaments, 65, 66. [tions one case founded on the practice of parliament in the reign of Henry the sixth (d), wherein he thinks the lords may alter a money bill: and that is, if the commons grant a tax, as that of tonnage and poundage for four years; and the lords alter it to a less time, as for two years; here, he says, the bill need not be sent back to the commons for their concurrence, but may receive the royal assent without further ceremony; for the alteration of the lords is consistent with the grant of the commons. But such an experiment will hardly be repeated by the lords, under the present improved idea of the privilege of the house of commons; and in any case where a money bill is remanded to the commons, all amendments in the mode of taxation are sure to be rejected (e).] Next, with regard to the election of the members, that is, the knights, citizens, and burgesses, of whom the house of commons consists, it is (in a general sense, and subject to certain regulations and restrictions) the act of the people. For in our mixed and free constitution, the law concedes to the people (as before explained), not only the right of being represented in the legislative body, but also the choice of their own representatives (ƒ). And this being a prerogative of the highest importance (g), it has been guarded with great anxiety from usurpation or abuse [by many salutary provisions, which may be reduced to these three points: 1. The qualifications of the electors. 2. The qualifications of the elected. 3. The proceedings at elections.] These points (so far at least as regards England and Wales, to the law of which the present Commentaries are confined) shall here be considered in detail. (d) Year Book, 33 Hen. 6, 17. But see the answer to this case by Sir Heneage Finch, Com. Journ. 22nd April, 1671. (e) See May's Parliamentary Practice, p. 426 (3rd edit.) (f) Vide sup. p. 340; et vide vol. 1. p. 33. (g) Blackstone remarks (vol. i. p. 171), that the Athenians were so justly jealous of the popular right of legislation, that a stranger who interfered in the assemblies of the people, was punished by their laws with death; because such a man was esteemed guilty of high treason, by usurping those rights of sovereignty to which he had no title. 1. [As to the qualifications of the electors. The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. If it were probable that every man would give his vote freely and without influence of any kind, then upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. But since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other. And this constitution of suffrages is framed upon a wiser principle with us than either of the methods of voting, by centuries or by tribes, among the Romans. In the method by centuries, instituted by Servius Tullius, it was principally property, and not numbers, that turned the scale (h); in the method by tribes, gradually introduced by the tribunes of the people, numbers only were regarded, and property entirely overlooked. Hence the laws passed by the former method had usually too great a tendency to aggrandize the patricians or rich nobles; and those by the latter had too much of a levelling principle. Our constitution (h) The whole body of citizens was divided into 193 centuries, and the centuries into classes, according to a census of estates, assigning to the first or richest class 97 centuries, which gave it a majority of the whole. All but the first class were said to be infra classem, whence our term classical. Middleton's Cicero, vol. i. p. 131. |
