Page images
PDF
EPUB

[branch of the legislature, because otherwise their privileges might be overborne in some popular tumult, or (what is perhaps more probable) their social pre-eminence might end by corrupting the popular representation.

Thirdly, the "commons" consist of the representatives of the nation at large, exclusive of the peerage; and they are elected by the means that we shall presently have occasion to explain. Formerly the counties were represented by knights, and the cities and boroughs by citizens or burgesses;] but the distinction between knights and burgesses (which had long been merely social) has now entirely ceased, as a consequence of the assimilation of the county with the borough franchise, under the Representation of the People Act, 1884, and the Redistribution of Seats Act, 1885. In addition, the Universities of Oxford, Cambridge, and London, are represented by persons chosen by their respective graduates; as are also the Scottish Universities, and the University of Dublin.

The collective number of English and Welsh representatives prior to the changes made by the Redistribution of Seats Act, 1885, was 493, of Scottish Representatives 60, and of Irish representatives 105,-in all 658; but under and in consequence of the last-mentioned Act, the aggregate number of representatives is now 670, of whom 495 represent English, 72 Scottish, and 103 Irish, constituencies. [But every member, though chosen by one particular district, once he is elected and returned, serves for the whole realm; the end of his coming thither being not particular, but general, not barely to advantage his constituents, but the commonwealth as a whole, to advise the Crown (as appears from the writ of summons)" de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum, defensionem regni Angliæ et ecclesiæ Anglicanæ concernentibus" (b). And therefore he is not bound to consult with, or to take the advice of, his constituents

[blocks in formation]

[upon any particular point, unless he himself thinks proper and prudent so to do.

66

[ocr errors]
[ocr errors]

These are the several parts of parliament; and the consent of all three is required to make any new law that shall bind the subject. For though, in the time of the Great Rebellion, the commons once passed a vote (c), "that whatsoever is enacted or declared for law by the "commons of England in parliament assembled, hath "the force of law, although the consent and concurrence of king or house of peers be not had "thereto," yet when the constitution was restored in all its forms, it was particularly enacted, by the 13 Car. II. (1661), st. 1, c. 1, that if any person should advisedly affirm that both or either of the houses of parliament have any legislative authority without the king, such person should incur all the penalties of a pramunire, that is to say, should forfeit all his lands and goods, and should suffer imprisonment and lose all civil rights.

III. The laws and customs of the parliament.-The power and jurisdiction of parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds (d). It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal. All mischiefs and grievances that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal; and, in its omnipotence, it can even regulate or new model the succession to the Crown, alter the established religion, change the constitution, and, in short, do everything that is not naturally impossible.

In order to prevent the mischiefs which might arise by placing this extensive authority in hands that are either (c) 4th Jan. 1649. (d) 4 Inst. 36.

[unfitted or improper to manage it, it was part of the custom and law of parliament, that no one should sit or vote in either house, unless he were twenty-one years of age (e). The rule, however, was not infrequently broken, till it was expressly declared in 1695 by the 7 & 8 Will. III. c. 25 (ƒ). Further, an alien, unless naturalized, cannot serve in parliament (g); and an alien, even although naturalized, was disqualified in 1700 from so serving (h), but since 1870, this too stringent rule has been relaxed (i). Also, by the 30 Car. II. (1678), st. 2, 13 & 14 Will. III. (1701), c. 6, and 1 Geo. I. (1714), st. 2, c. 13, no member could at one time either vote or sit in either house till he had taken the several oaths of allegiance, of supremacy, and of abjuration, and made a declaration against transubstantiation.] However, in place of these, a single oath was provided by the Parliamentary Oaths Act, 1866; and under that Act, and the Promissory Oaths Act, 1868, the oath was so framed as to suit (it was hoped) all members whether they belonged to the Church of England or not, and the more especially so, as any members who (as being Quakers, Moravians, or Separatists) were permitted by law to affirm (k), might on taking their seats make and subscribe their "affirmation" in the same form as, but in lieu of taking, the oath (1). But inasmuch as the relaxation. in question did not extend to openly professed atheists (m), it has now been provided by the Oaths Act, 1888, that anyone objecting to be sworn, and stating, as the ground of his objection, either that he has no religious belief, or

(e) Whitelocke, ch. 50; 4 Inst. 47.

(f) Com. Journ. 16 Dec. 1690. (g) Ibid. 10 March, 1623. (h) Act of Settlement, 1700. (i) Naturalisation Act, 1870. (k) See (as to Quakers and Morarians), the Quakers and Moravians Act, 1833; and (as to Separatists) 3 & 4 Will. 4 (1833),

c. 82 (since repealed); also the Quakers and Moravians Act, 1838.

(1) Parliamentary Oaths Act, 1866, s. 4 (since repealed); Promissory Oaths Act, 1868, s. 11.

(m) Clarke v. Bradlaugh (1881), 7 Q. B. D. 38; 8 Q. B. D. 63; (1883), L. R. 8 App. Ca. 354.

that the taking of an oath is contrary to his religious belief, may make a solemn affirmation to the effect of the appropriate oath, and in lieu of such oath. This provision is clearly applicable to parliament as well as to courts of justice.

It is also law, that [if any person is made a peer, or is elected to serve in the commons, yet the respective houses, upon complaint and proof of any crime in such person, may adjudge him incapable of sitting as a member; and this, by the custom of parliament (n). For, as every court of justice hath laws and customs for its governance, so the high court of parliament has also its own peculiar law, called the lex et consuetudo parliamenti (o), and matters appropriate exclusively to either house are determined by that house alone (p). Wherefore, the lords will not suffer the commons to interfere in settling the election of a peer of Scotland; and the commons do not allow the lords to judge of the election of a burgess.

The privileges of parliament are very considerable, and were originally established for the protection of its members, as well from being molested by their fellow subjects, as from being oppressed by the Crown. Regarding these privileges, Sir John Fortescue, in the thirty-first year of Henry the Sixth, declared, "that it

66

hath not been used aforetime that the judges should in "anywise determine the privileges of the High Court of "Parliament" (y).] But Lord Holt was of opinion, "that the authority of parliament being from the law, is "circumscribed by the law; and if the privilege is "exceeded, the act is wrongful equally with the act of a

(n) Whitelocke, Parliament, ch. 102; Lords' Journ. 3. May, 1620; 13 May, 1624; 26 May, 1725; Com. Journ. 14 Feb. 1580; 21 Jun. 1628; 21 Jan., 9 Nov. 1640; 6 Mar. 1676; 6 Mar. 1711; 3 Feb. 1769; 17 Feb. 1769; 3 May, 1783; and ride post, p. 397.

(0) 1 Inst. 11; 4 Inst. 50.

(p) 4 Inst. 15; Burdett v. Abbot (1811), 14 East, 150; Stockdale v. Hansard (1839), 9 A. & E. 1; Bradlaugh V. Gossett (1884), 12 Q. B. D. 271.

(7) Selden, Baronage, pt. 1,

c. 4.

"private individual" (r). Which opinion is the one latterly accepted (8).

66

[The two best-known privileges of parliament are privilege of speech and privilege from arrest. As regards privilege of speech, the Bill of Rights of 1689 declared, that it was 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 accordingly this privilege is specifically demanded of the Crown by the speaker of the house of commons, at the opening of every new parliament (t).] And as regards privilege from arrest, a peer is, by virtue of his dignity, exempt from arrest in civil cases at all times (u); and a member of the house of commons is, by the privilege of parliament, so exempt while the house is sitting, and also for such a period before the first meeting, and after the dissolution of a parliament, as may enable him conveniently to come to the house from, and to return to, any part of the kingdom (). [This immunity continues also for forty days after every prorogation, and for forty days before the next appointed meeting (y), which is often, in effect, so long as the parliament subsists, parliament not seldom being prorogued for less than fourscore days at a time.

The courts antiently took cognizance of the privilege from arrest, by issuing a writ of privilege in the nature of a supersedeas, to deliver the member out of custody when arrested in a civil suit (~).

(r) Paty's Case (1705), 2 Ld Raym. 1114.

(8) Stockdale v. Hansard (1839), 9 A. & E. 1; (1840), 11 A. & E. 253; Howard v. Gosset (1845), 10 Q. B. 359.

(t) May, Law of Parl., 10th ed.,

p. 57.

(u) 6 Rep. 52 a ; 9 Rep. 49 a, 68 a; Couche v. Lord Arundel (1802), 3 East, 127; Countess of Huntingdon's Case (1675), 1 Vent. 298;

For when a letter was

Daris v. Lord Rendlesham (1817), 7 Taunt. 679; R. v. Bishop of St. Asaph (1752), Wils. 332 (K. B.). (x) Cassidy v. Steuart (1841), 2 Man. & G. 437.

(y) E. of Athol v. Derby (1672), 2 Lev. 72; Goudy v. Duncombe (1847), 1 Exch. 430.

(z) Skewys (executors) v. Shamond (1545), Dy. 59; 4 Pryn. Brev. Parl. 757.

« EelmineJätka »