which has occasioned an observation, that the principal 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 principally 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 harass any refractory member and violate the
freedom of parliament. The dignity and independence of the two houses
are therefore in great measure preserved by keeping their privileges
indefinite. 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 constitutions, "_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 assault 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 passing 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 multitude 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 passes
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 assembly, save only the election, on pain of incurring a
praemunire.
V. THE peculiar laws and customs of the house of commons relate
principally 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 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. This reason would be unanswerable, if
the commons taxed none but themselves: but it is notorious, that a
very large share of property is in the possession of the house of
lords; that this property is equally taxable, and taxed, as the
property of the commons; and therefore the commons not being the
_sole_ persons taxed, this cannot be the reason of their having the
_sole_ right of raising and modelling the supply. The true reason,
arising from the spirit of our constitution, seems to be this. The
lords being a permanent hereditary body, created at pleasure by the
king, are supposed more liable to be influenced by the crown, and when
once influenced to continue so, than the commons, who are a temporary
elective body, freely 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 assent 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.
[Footnote t: 4 Inst. 29.]
[Footnote u: on parliaments, 65, 66.]
[Footnote w: Year book, 33 Hen. VI. 17.]
NEXT, with regard to the elections of knights, citizens, and
burgesses; we may observe that herein consists the exercise of the
democratical part of our constitution: for in a democracy there can be
no exercise of sovereignty but by suffrage, which is the declaration
of the people's will. In all democracies therefore it is of the utmost
importance to regulate by whom, and in what manner, the suffrages are
to be given. And the Athenians were so justly jealous of this
prerogative, that a stranger, who interfered in the assemblies of the
people, was punished by their laws with death: because such a man was
esteemed guilty of high treason, by usurping those rights of
sovereignty, to which he had no title. In England, where the people do
not debate in a collective body but by representation, the exercise of
this sovereignty consists in the choice of representatives. The laws
have therefore very strictly guarded against usurpation or abuse of
this power, by many salutary provisions; which may be reduced to these
three points, 1. The qualifications of the electors. 2. The
qualifications of the elected. 3. The proceedings at elections.
1. AS to the qualifications of the electors. The true reason of
requiring any qualification, with regard to property, in voters, is to
exclude such persons as are in so mean a situation that they are
esteemed to have no will of their own. If these persons had votes,
they would be tempted to dispose of them under some undue influence or
other. This would give a great, an artful, or a wealthy man, a larger
share in elections than is consistent with general liberty. If it were
probable that every man would give his vote freely, and without
influence of any kind, then, upon the true theory and genuine
principles of liberty, every member of the community, however poor,
should have a vote in electing those delegates, to whose charge is
committed the disposal of his property, his liberty, and his life.
But, since that can hardly be expected in persons of indigent
fortunes, or such as are under the immediate dominion of others, all
popular states have been obliged to establish certain qualifications;
whereby some, who are suspected to have no will of their own, are
excluded from voting, in order to set other individuals, whose wills
may be supposed independent, more thoroughly upon a level with each
other.
AND this constitution of suffrages is framed upon a wiser principle
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: in the method by tribes, gradually introduced by the tribunes
of the people, numbers only were regarded and property entirely
overlooked. Hence the laws passed by the former method had usually too
great a tendency to aggrandize the patricians or rich nobles; and
those by the latter had too much of a levelling principle. Our
constitution steers between the two extremes. Only such 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 some place
or other in the kingdom. Nor is comparative wealth, or property,
entirely disregarded in elections; for though the richest man has only
one vote at one place, yet if his property be at all diffused, he has
probably a right to vote at more places than one, and therefore has
many representatives. This is the spirit of our constitution: not that
I assert it is in fact quite so perfect as I have here endeavoured to
describe it; for, if any alteration might be wished or suggested in
the present frame of parliaments, it should be in favour of a more
complete representation of the people.
BUT to return to our qualifications; and first those of electors for
knights of the shire. 1. By statute 8 Hen. VI. c. 7. and 10 Hen. VI.
c. 2. The knights of the shires shall be chosen of people dwelling in
the same counties; whereof every man shall have freehold to the value
of forty shillings by the year within the county; which by subsequent
statutes is to be clear of all charges and deductions, except
parliamentary and parochial taxes. The knights of shires are the
representatives of the landholders, or landed interest, of the
kingdom: their electors must therefore have estates in lands or
tenements, within the county represented: these estates must be
freehold, that is, for term of life at least; because beneficial
leases for long terms of years were not in use at the making of these
statutes, and copyholders were then little better than villeins,
absolutely dependent upon their lord: this freehold must be of forty
shillings annual value; because that sum would then, with proper
industry, furnish all the necessaries of life, and render the
freeholder, if he pleased, an independent man. For bishop Fleetwood,
in his _chronicon pretiosum_ written about sixty years since, has
fully proved forty shillings in the reign of Henry VI to have been
equal to twelve pounds _per annum_ in the reign of queen Anne; and, as
the value of money is very considerably lowered since the bishop
wrote, I think we may fairly conclude, from this and other
circumstances, that what was equivalent to twelve pounds in his days
is equivalent to twenty at present. The other less important
qualifications of the electors for counties in England and Wales may
be collected from the statutes cited in the margin[x]; which direct,
2. That no person under twenty one years of age shall be capable of
voting for any member. This extends to all sorts of members, as well
for boroughs as counties; as does also the next, viz. 3. That no
person convicted of perjury, or subornation of perjury, shall be
capable of voting in any election. 4. That no person shall vote in
right of any freehold, granted to him fraudulently to qualify him to
vote. Fraudulent grants are such as contain an agreement to reconvey,
or to defeat the estate granted; which agreements are made void, and
the estate is absolutely vested in the person to whom it is so
granted. And, to guard the better against such frauds, it is farther
provided, 5. That every voter shall have been in the actual
possession, or receipt of the profits, of his freehold to his own use
for twelve calendar months before; except it came to him by descent,
marriage, marriage settlement, will, or promotion to a benefice or
office. 6. That no person shall vote in respect of an annuity or
rentcharge, unless registered with the clerk of the peace twelve
calendar months before. 7. That in mortgaged or trust-estates, the
person in possession, under the abovementioned restrictions, shall
have the vote. 8. That only one person shall be admitted to vote for
any one house or tenement, to prevent the splitting of freeholds. 9.
That no estate shall qualify a voter, unless the estate has been
assessed to some land tax aid, at least twelve months before the
election. 10. That no tenant by copy of court roll shall be permitted
to vote as a freeholder. Thus much for the electors in counties.
[Footnote 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.]
AS for the electors of citizens and burgesses, these are supposed to
be the mercantile part or trading interest of this kingdom. But as
trade is of a fluctuating nature, and seldom long fixed in a place, it
was formerly left to the crown to summon, _pro re nata_, the most
flourishing towns to send representatives to parliament. So that as
towns encreased in trade, and grew populous, they were admitted to a
share in the legislature. But the misfortune is, that the deserted
boroughs continued to be summoned, as well as those to whom their
trade and inhabitants were transferred; except a few which petitioned
to be eased of the expence, then usual, of maintaining their members:
four shillings a day being allowed for a knight of the shire, and two
shillings for a citizen or burgess; which was the rate of wages
established in the reign of Edward III[y]. Hence the members for
boroughs now bear above a quadruple proportion to those for counties,
and the number of parliament men is increased since Fortescue's time,
in the reign of Henry the sixth, from 300 to upwards of 500, exclusive
of those for Scotland. The universities were in general not empowered
to send burgesses to parliament; though once, in 28 Edw. I. when a
parliament was summoned to consider of the king's right to Scotland,
there were issued writs, which required the university of Oxford to
send up four or five, and that of Cambridge two or three, of their
most discreet and learned lawyers for that purpose[z]. But it was king
James the first, who indulged them with the permanent privilege to
send constantly two of their own body; to serve for those students
who, though useful members of the community, were neither concerned in
the landed nor the trading interest; and to protect in the legislature
the rights of the republic of letters. The right of election in
boroughs is various, depending intirely on the several charters,
customs, and constitutions of the respective places, which has
occasioned infinite disputes; though now by statute 2 Geo. II. c. 24.
the right of voting for the future shall be allowed according to the
last determination of the house of commons concerning it. And by
statute 3 Geo. III. c. 15. no freeman of any city or borough (other
than such as claim by birth, marriage, or servitude) shall be intitled
to vote therein unless he hath been admitted to his freedom twelve
calendar months before.
[Footnote y: 4 Inst. 16.]
[Footnote z: Prynne parl. writs. I. 345.]
2. OUR second point is the qualification of persons to be elected
members of the house of commons. This depends upon the law and custom
of parliaments[a], and the statutes referred to in the margin[b]. And
from these it appears, 1. That they must not be aliens born, or
minors. 2. That they must not be any of the twelve judges, because
they sit in the lords' house; nor of the clergy, for they sit in the
convocation; nor persons attainted of treason or felony, for they are
unfit to sit any where[c]. 3. That sheriffs of counties, and mayors
and bailiffs of boroughs, are not eligible in their respective
jurisdictions, as being returning officers[d]; but that sheriffs of
one county are eligible to be knights of another[e]. 4. That, in
strictness, all members ought to be inhabitants of the places for
which they are chosen: but this is intirely disregarded. 5. That no
persons concerned in the management of any duties or taxes created
since 1692, except the commissioners of the treasury, nor any of the
officers following, (viz. commissioners of prizes, transports, sick
and wounded, wine licences, navy, and victualling; secretaries or
receivers of prizes; comptrollers of the army accounts; agents for
regiments; governors of plantations and their deputies; officers of
Minorca or Gibraltar; officers of the excise and customs; clerks or
deputies in the several offices of the treasury, exchequer, navy,
victualling, admiralty, pay of the army or navy, secretaries of state,
salt, stamps, appeals, wine licences, hackney coaches, hawkers and
pedlars) nor any persons that hold any new office under the crown
created since 1705, are capable of being elected members. 6. That no
person having a pension under the crown during pleasure, 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 commission, his seat is void; but such member is
capable of being re-elected. 8. That all knights of the shire shall be
actual knights, or such notable esquires and gentlemen, as have
estates sufficient to be knights, and by no means of the degree of
yeomen. This is reduced to a still greater certainty, by ordaining, 9.
That every knight of a shire shall have a clear estate of freehold or
copyhold to the value of six hundred pounds _per annum_, and every
citizen and burgess to the value of three hundred pounds; except the
eldest sons of peers, and of persons qualified to be knights of
shires, and except the members for the two universities: which
somewhat ballances the ascendant which the boroughs have gained over
the counties, by obliging the trading interest to make choice of
landed men: and of this qualification the member must make oath, and
give in the particulars in writing, at the time of his taking his
seat. But, subject to these restrictions and disqualifications, every
subject of the realm is eligible of common right. It was therefore an
unconstitutional prohibition, which was inserted in the king's writs,
for the parliament holden at Coventry, 6 Hen. IV, that no apprentice
or other man of the law should be elected a knight of the shire
therein[f]: in return for which, our law books and historians[g] have
branded this parliament with the name of _parliamentum indoctum_, or
the lack-learning parliament; and sir Edward Coke observes with some
spleen[h], that there was never a good law made thereat.
[Footnote a: 4 Inst. 47.]
[Footnote b: 1 Hen. V. c. 1. 23 Hen. VI. c. 15. 1 W. & M. st. 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. 9 Ann. c. 5. 1 Geo. I. c. 56. 15 Geo. II. c. 22. 33 Geo.
II. c. 20.]
[Footnote c: 4 Inst. 47.]
[Footnote d: Hale of parl. 114.]
[Footnote e: 4 Inst. 48.]
[Footnote f: Pryn. on 4 Inst. 13.]
[Footnote g: Walsingh. _A.D._ 1405.]
[Footnote h: 4 Inst. 48.]
3. THE third point regarding elections, is the method of proceeding
therein. This is also regulated by the law of parliament, and the
several statutes referred to in the margin[i]; all which I shall
endeavour to blend together, and extract out of them a summary account
of the method of proceeding to elections.
[Footnote i: 7 Hen. IV. c. 15. 8 Hen. VI. c. 7. 23 Hen. VI. c. 15. 1
W. & M. st. 1. c. 2. 2 W. & M. st. 1. c. 7. 5 & 6 W. & M. c. 20. 7 W.
III. c. 4. 7 & 8 W. III. c. 7. and c. 25. 10 & 11 W. III. c. 7. 12 &
13 W. III. c. 10. 6 Ann. c. 23. 9 Ann. c. 5. 10 Ann. c. 19. and c. 23.
2 Geo. II. c. 24. 8 Geo. II. c. 30. 18 Geo. II. c. 18. 19 Geo. II. c.
28.]
AS soon as the parliament is summoned, the lord chancellor, (or if a
vacancy happens during parliament, the speaker, by order of the house)
sends his warrant to the clerk of the crown in chancery; who thereupon
issues out writs to the sheriff of every county, for the election of
all the members to serve for that county, and every city and borough
therein. Within three days after the receipt of this writ, the sheriff
is to send his precept, under his seal, to the proper returning
officers of the cities and boroughs, commanding them to elect their
members; and the said returning officers are to proceed to election
within eight days from the receipt of the precept, giving four days
notice of the same; and to return the persons chosen, together with
the precept, to the sheriff.
BUT elections of knights of the shire must be proceeded to by the
sheriffs themselves in person, at the next county court that shall
happen after the delivery of the writ. The county court is a court
held every month or oftener by the sheriff, intended to try little
causes not exceeding the value of forty shillings, in what part of the
county he pleases to appoint for that purpose: but for the election of
knights of the shire, it must be held at the most usual place. If the
county court falls upon the day of delivering the writ, or within six
days after, the sheriff may adjourn the court and election to some
other convenient time, not longer than sixteen days, nor shorter than
ten; but he cannot alter the place, without the consent of all the
candidates; and in all such cases ten days public notice must be given
of the time and place of the election.