should be absolutely free, therefore all undue influences upon the
electors are illegal, and strongly prohibited. For Mr Locke[k] ranks
it among those breaches of trust in the executive magistrate, which
according to his notions amount to a dissolution of the government,
"if he employs the force, treasure, and offices of the society to
corrupt the representatives, or openly to preingage the electors, and
prescribe what manner of persons shall be chosen. For thus to regulate
candidates and electors, and new model the ways of election, what is
it, says he, but to cut up the government by the roots, and poison the
very fountain of public security?" As soon therefore as the time and
place of election, either in counties or boroughs, are fixed, all
soldiers quartered in the place are to remove, at least one day before
the election, to the distance of two miles or more; and not return
till one day after the poll is ended. Riots likewise have been
frequently determined to make an election void. By vote also of the
house of commons, to whom alone belongs the power of determining
contested elections, no lord of parliament, or lord lieutenant of a
county, hath any right to interfere in the election of commoners; and,
by statute, the lord warden of the cinque ports shall not recommend
any members there. If any officer of the excise, customs, stamps, or
certain other branches of the revenue, presumes to intermeddle in
elections, by persuading any voter or dissuading him, he forfeits
100_l_, and is disabled to hold any office.
[Footnote k: on Gov. part. 2. Sec. 222.]
THUS are the electors of one branch of the legislature secured from
any undue influence from either of the other two, and from all
external violence and compulsion. But the greatest danger is that in
which themselves co-operate, by the infamous practice of bribery and
corruption. To prevent which it is enacted that no candidate shall,
after the date (usually called the _teste_) of the writs, or after the
vacancy, give any money or entertainment to his electors, or promise
to give any, either to particular persons, or to the place in general,
in order to his being elected; on pain of being incapable to serve for
that place in parliament. And if any money, gift, office, employment,
or reward be given or promised 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 such bribe forfeits 500_l_, and is for ever
disabled from voting and holding any office in any corporation;
unless, before conviction, he will discover some other offender of the
same kind, and then he is indemnified for his own offence[l]. The
first instance that occurs of election bribery, was so early as 13
Eliz. when one Thomas Longe (being a simple man and of small capacity
to serve in parliament) acknowleged that he had given the returning
officer and others of the borough of Westbury 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 imprisoned[m]. But, as this practice hath since
taken much deeper and more universal root, it hath occasioned the
making of these wholesome statutes; to complete the efficacy of which,
there is nothing wanting but resolution and integrity to put them in
strict execution.
[Footnote 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 person guilty convicted another offender, he was restored to
his credit again. _Ff._ 48. 14. 1.]
[Footnote m: 4 Inst. 23. Hale of parl. 112. Com. Journ. 10 & 11 May
1571.]
UNDUE influence being thus (I wish the depravity of mankind would
permit me to say, effectually) guarded against, the election is to be
proceeded to on the day appointed; the sheriff or other returning
officer first taking an oath against bribery, and for the due
execution of his office. The candidates likewise, if required, must
swear to their qualification; and the electors in counties to theirs;
and the electors both in counties and boroughs are also compellable to
take the oath of abjuration and that against bribery and corruption.
And it might not be amiss, if the members elected were bound to take
the latter oath, as well as the former; which in all probability
would be much more effectual, than administring it only to the
electors.
THE election being closed, the returning officer in boroughs returns
his precept to the sheriff, with the persons elected by the majority:
and the sheriff 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 occasional
vacancy; and this under penalty of 500_l_. If the sheriff does not
return such knights only as are duly elected, he forfeits, by the old
statutes of Henry VI, 100_l_; and the returning officer in boroughs
for a like false return 40_l_; and they are besides liable to an
action, in which double damages shall be recovered, by the later
statutes of king William: and any person bribing the returning officer
shall alio forfeit 300_l_. But the members returned by him are the
sitting members, until the house of commons, upon petition, shall
adjudge the return to be false and illegal. And this abstract of the
proceedings at elections of knights, citizens, and burgesses,
concludes our enquiries into the laws and customs more peculiarly
relative to the house of commons.
VI. I PROCEED now, sixthly, to the method of making laws; which is
much the same in both houses: and I shall touch it very briefly,
beginning in the house of commons. But first I must premise, that for
dispatch of business each house of parliament has it's speaker. The
speaker of the house of lords is the lord chancellor, or keeper of the
king's great seal; whose office it is to preside there, and manage the
formality of business. The speaker of the house of commons is chosen
by the house; but must be approved by the king. And herein the usage
of the two houses differs, that the speaker of the house of commons
cannot give his opinion or argue any question in the house; but the
speaker of the house of lords may. In each house the act of the
majority binds the whole; and this majority is declared by votes
openly and publickly given: not as at Venice, and many other
senatorial assemblies, privately or by ballot. This latter method may
be serviceable, to prevent intrigues and unconstitutional
combinations: but is impossible to be practiced with us; at least in
the house of commons, where every member's conduct is subject to the
future censure of his constituents, and therefore should be openly
submitted to their inspection.
TO bring a bill into the house, if the relief sought by it is of a
private nature, it is first necessary to prefer a petition; which must
be presented by a member, and usually sets forth the grievance desired
to be remedied. This petition (when founded on facts that may be in
their nature disputed) is referred to a committee of members, who
examine the matter alleged, and accordingly report it to the house;
and then (or, otherwise, 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 house, 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 answer thereunto subjoined; not in
any settled form of words, but as the circumstances of the case
required[n]: and at the end of each parliament the judges drew them
into the form of a statute, which was entered on the _statute-rolls_.
In the reign of Henry V, to prevent mistakes and abuses, the statutes
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 custom, were first introduced.
[Footnote n: See, among numberless other instances, the _articuli
cleri_, 9 Edw. II.]
THE persons, directed to bring in the bill, present it in a competent
time to the house, drawn out on paper, with a multitude of blanks, or
void spaces, where any thing occurs that is dubious, or necessary to
be settled by the parliament itself; (such, especially, as the precise
date of times, the nature and quantity of penalties, or of any sums of
money to be raised) being indeed only the sceleton of the bill. In the
house of lords, if the bill begins there, it is (when of a private
nature) perused by two of the judges, who settle all points of legal
propriety. This is read a first time, and at a convenient distance a
second time; and after each reading the speaker opens to the house the
substance of the bill, and puts the question, whether it shall proceed
any farther. The introduction of the bill may be originally opposed,
as the bill itself may at either of the readings; and, if the
opposition succeeds, the bill must be dropt for that sessions; as it
must also, if opposed with success in any of the subsequent stages.
AFTER the second reading it is committed, that is, referred to a
committee; which is either selected by the house in matters of small
importance, or else, upon a bill of consequence, the house resolves
itself into a committee of the whole house. A committee of the whole
house is composed of every member; and, to form it, the speaker quits
the chair, (another member being appointed chairman) and may sit and
debate as a private member. In these committees the bill is debated
clause by clause, amendments made, the blanks filled up, and sometimes
the bill entirely new modelled. After it has gone through the
committee, the chairman reports it to the house with such amendments
as the committee have made; and then the house reconsider the whole
bill again, and the question is repeatedly put upon every clause and
amendment. When the house have agreed or disagreed to the amendments
of the committee, and sometimes added new amendments of their own, the
bill is then ordered to be engrossed, or written in a strong gross
hand, on one or more long rolls of parchment sewed together. When this
is finished, it is read a third time, and amendments are sometimes
then made to it; and, if a new clause be added, it is done by tacking
a separate piece of parchment on the bill, which is called a ryder.
The speaker then again opens the contents; and, holding it up in his
hands, puts the question, whether the bill shall pass. If this is
agreed to, one of the members is directed to carry it to the lords,
and desire their concurrence; who, attended by several more, carries
it to the bar of the house of peers, and there delivers it to their
speaker, who comes down from his woolsack to receive it.
IT there passes through the same forms as in the other house, (except
engrossing, which is already done) and, if rejected, no more notice is
taken, but it passes _sub silentio_, to prevent unbecoming
altercations. But if it is agreed to, the lords send a message by two
masters in chancery (or sometimes two of the judges) that they have
agreed to the same: and the bill remains with the lords, if they have
made no amendment to it. But if any amendments are made, such
amendments are sent down with the bill to receive the concurrence of
the commons. If the commons disagree to the amendments, a conference
usually follows between members deputed from each house; who for the
most part settle and adjust the difference: but, if both houses remain
inflexible, the bill is dropped. If the commons agree to the
amendments, the bill is sent back to the lords by one of the members,
with a message to acquaint them therewith. The same forms are
observed, _mutatis mutandis_, when the bill begins in the house of
lords. And when both houses have done with the bill, it always is
deposited in the house of peers, to wait the royal assent.
THIS may be given two ways: 1. In person; when the king comes to the
house of peers, in his crown and royal robes, and sending for the
commons to the bar, the titles of all the bills that have passed both
houses are read; and the king's answer is declared by the clerk of the
parliament in Norman-French: a badge, it must be owned, (now the only
one remaining) of conquest; and which one could wish to see fall into
total oblivion; unless it be reserved as a solemn memento to remind us
that our liberties are mortal, having once been destroyed by a foreign
force. If the king consents to a public bill, the clerk usually
declares, "_le roy le veut_, the king wills it so to be;" if to a
private bill, "_soit fait come il est desire_, be it as it is
desired." If the king refuses his assent, it is in the gentle language
of "_le roy s'avisera_, the king will advise upon it." 2. By statute
33 Hen. VIII. c. 21. the king may give his assent by letters patent
under his great seal, signed with his hand, and notified, in his
absence, to both houses assembled together in the high house. And,
when the bill has received the royal assent in either of these ways,
it is then, and not before, a statute or act of parliament.
THIS statute 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
necessary by the civil law with regard to the emperors edicts: because
every man in England is, in judgment of law, party to the making of an
act of parliament, being present thereat by his representatives.
However, a copy thereof is usually printed at the king's press, for
the information of the whole land. And formerly, before the invention
of printing, it was used to be published by the sheriff of every
county; the king's writ being sent to him at the end of every session,
together with a transcript of all the acts made at that session,
commanding him "_ut statuta illa, et omnes articulos in eisdem
contentos, in singulis locis ubi expedire viderit, publice proclamari,
et firmiter teneri et observari faciat_." And the usage was to
proclaim them at his county court, and there to keep them, that
whoever would might read or take copies thereof; which custom
continued till the reign of Henry the seventh[o].
[Footnote o: 3 Inst. 41. 4 Inst. 26.]
AN act of parliament, thus made, is the exercise of the highest
authority that this kingdom acknowleges upon earth. It hath power to
bind every subject in the land, and the dominions thereunto belonging;
nay, even the king himself, if particularly named therein. And it
cannot be altered, amended, dispensed with, suspended, or repealed,
but in the same forms and by the same authority of parliament: for it
is a maxim in law, that it requires the same strength to dissolve, as
to create an obligation. It is true it was formerly held, that the
king might in many cases dispense with penal statutes[p]: but now by
statute 1 W. & M. st. 2. c. 2. it is declared, that the suspending or
dispensing with laws by regal authority, without consent of
parliament, is illegal.
[Footnote p: Finch. L. 81. 234.]
VII. THERE remains only, in the seventh and last place, to add a word
or two concerning the manner in which parliaments may be adjourned,
prorogued, or dissolved.
AN adjournment is no more than a continuance of the session from one
day to another, as the word itself signifies: and this is done by the
authority of each house separately every day; and sometimes for a
fortnight or a month together, as at Christmas or Easter, or upon
other particular occasions. But the adjournment of one house is no
adjournment of the other[q]. It hath also been usual, when his majesty
hath signified his pleasure that both or either of the houses should
adjourn themselves to a certain day, to obey the king's pleasure so
signified, and to adjourn accordingly[r]. Otherwise, besides the
indecorum of a refusal, a prorogation would assuredly follow; which
would often be very inconvenient to both public and private business.
For prorogation puts an end to the session; and then such bills, as
are only begun and not perfected, must be resumed _de novo_ (if at
all) in a subsequent session: whereas, after an adjournment, all
things continue in the same state as at the time of the adjournment
made, and may be proceeded on without any fresh commencement.
[Footnote q: 4 Inst. 28.]
[Footnote r: Com. Journ. _passim_: _e.g._ 11 Jun. 1572. 5 Apr. 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 Feb. 1741.
10 Dec. 1745.]
A PROROGATION is the continuance of the parliament from one session to
another, as an adjournment is a continuation of the session from day
to day. This is done by the royal authority, expressed either by the
lord chancellor in his majesty's presence, or by commission from the
crown, or frequently by proclamation. Both houses are necessarily
prorogued at the same time; it not being a prorogation of the house of
lords, or commons, but of the parliament. The session is never
understood to be at an end, until a prorogation: though, unless some
act be passed or some judgment given in parliament, it is in truth no
session at all[s]. And formerly the usage was, for the king to give
the royal assent to all such bills as he approved, at the end of every
session, and then to prorogue the parliament; though sometimes only
for a day or two[t]: after which all business then depending in the
houses was to be begun again. Which custom obtained so strongly, that
it once became a question[u], whether giving the royal assent to a
single bill did not of course put an end to the session. And, though
it was then resolved in the negative, yet the notion was so deeply
rooted, that the statute 1 Car. I. c. 7. was passed to declare, that
the king's assent to that and some other acts should not put an end to
the session; and, even so late as the restoration of Charles II, we
find a proviso tacked to the first bill then enacted[w] that his
majesty's assent thereto should not determine the session of
parliament. But it now seems to be allowed, that a prorogation must be
expressly made, in order to determine the session. And, if at the time
of an actual rebellion, or imminent danger of invasion, the parliament
shall be separated 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 reassembling.
[Footnote s: 4 Inst. 28. Hale of parl. 38.]
[Footnote t: Com. Journ. 21 Oct. 1553.]
[Footnote u: _Ibid._ 21 Nov. 1554.]
[Footnote w: Stat. 12 Car. II. c. 1.]
[Footnote x: Stat. 30 Geo. II. c. 25.]
A DISSOLUTION is the civil death of the parliament; and this may be
effected three ways: 1. By the king's will, expressed either in person
or by representation. For, as the king has the sole right of convening
the parliament, so also it is a branch of the royal prerogative, that
he may (whenever he pleases) prorogue the parliament for a time, or
put a final period to it's existence. If nothing had a right to
prorogue or dissolve a parliament but itself, it might happen to
become perpetual. And this would be extremely dangerous, if at any
time it should attempt to encroach upon the executive power: as was
fatally experienced by the unfortunate king Charles the first; who,
having unadvisedly passed an act to continue the parliament then in
being till such time as it should please to dissolve itself, at last
fell a sacrifice to that inordinate power, which he himself had
consented to give them. It is therefore extremely necessary that the
crown should be empowered to regulate the duration of these
assemblies, under the limitations which the English constitution has
prescribed: so that, on the one hand, they may frequently and
regularly come together, for the dispatch of business and redress of
grievances; and may not, on the other, even with the consent of the
crown, be continued to an inconvenient or unconstitutional length.
2. A PARLIAMENT may be dissolved by the demise of the crown. This
dissolution formerly happened immediately upon the death of the
reigning sovereign, for he being considered 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 successor being found
inconvenient, and dangers being apprehended from having no parliament
in being in case of a disputed succession, it was enacted by the
statutes 7 & 8 W. III. c. 15. and 6 Ann. c. 7. that the parliament in
being shall continue for six months after the death of any king or
queen, unless sooner prorogued or dissolved by the successor: that, if
the parliament be, at the time of the king's death, separated by
adjournment or prorogation, it shall notwithstanding assemble
immediately: and that, if no parliament is then in being, the members
of the last parliament shall assemble, and be again a parliament.
3. LASTLY, a parliament may be dissolved or expire by length of time.
For if either the legislative body were perpetual; or might last for
the life of the prince who convened them, as formerly; and were so to
be supplied, by occasionally filling the vacancies with new
representatives; in these cases, if it were once corrupted, the evil
would be past all remedy: but when different bodies succeed each
other, if the people see cause to disapprove of the present, they may
rectify it's faults in the next. A legislative assembly also, which is
sure to be separated again, (whereby it's members will themselves
become private men, and subject to the full extent of the laws which
they have enacted for others) will think themselves bound, in interest
as well as duty, to make only such laws as are good. The utmost extent
of time that the same parliament was allowed to sit, by the statute 6
W. & M. c. 2. was _three_ years; after the expiration of which,
reckoning from the return of the first summons, the parliament was to
have no longer continuance. But by the statute 1 Geo. I. st. 2. c. 38.
(in order, professedly, to prevent the great and continued expenses of
frequent elections, and the violent heats and animosities consequent
thereupon, and for the peace and security of the government then just
recovering from the late rebellion) this term was prolonged to _seven_
years; and, what alone is an instance of the vast authority of
parliament, the very same house, that was chosen for three years,
enacted it's own continuance for seven. So that, as our constitution
now stands, the parliament must expire, or die a natural death, at the
end of every seventh year; if not sooner dissolved by the royal
prerogative.
CHAPTER THE THIRD.
OF THE KING, AND HIS TITLE.
THE supreme executive power of these kingdoms is vested by our laws in
a single person, the king or queen: for it matters not to which sex
the crown descends; but the person entitled to it, whether male or
female, is immediately invested with all the ensigns, rights, and
prerogatives of sovereign power; as is declared by statute 1 Mar. st.
3. c. 1.
IN discoursing of the royal rights and authority, I shall consider the
king under six distinct views: 1. With regard to his title. 2. His
royal family. 3. His councils. 4. His duties. 5. His prerogative. 6.
His revenue. And, first, with regard to his title.
THE executive power of the English nation being vested in a single
person, by the general consent of the people, the evidence of which
general consent is long and immemorial usage, it became necessary to
the freedom and peace of the state, that a rule should be laid down,
uniform, universal, and permanent; in order to mark out with
precision, _who_ is that single person, to whom are committed (in
subservience to the law of the land) the care and protection of the
community; and to whom, in return, the duty and allegiance of every
individual are due. It is of the highest importance to the public
tranquillity, and to the consciences of private men, that this rule
should be clear and indisputable: and our constitution has not left us
in the dark upon this material occasion. It will therefore be the
endeavour of this chapter to trace out the constitutional doctrine of
the royal succession, with that freedom and regard to truth, yet mixed
with that reverence and respect, which the principles of liberty and
the dignity of the subject require.
THE grand fundamental maxim upon which the _jus coronae_, or right of
succession to the throne of these kingdoms, depends, I take to be
this: "that the crown is, by common law and constitutional custom,
hereditary; and this in a manner peculiar to itself: but that the
right of inheritance may from time to time be changed or limited by
act of parliament; under which limitations the crown still continues
hereditary." And this proposition it will be the business of this
chapter to prove, in all it's branches: first, that the crown is
hereditary; secondly, that it is hereditary in a manner peculiar to
itself; thirdly, that this inheritance is subject to limitation by
parliament; lastly, that when it is so limited, it is hereditary in
the new proprietor.