people," that the freedom of speech, and debates, or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parlia ment." And this freedom of speech is particularly demanded of the sovereign in person, by the speaker of the house of commons, at the opening of every new parliament. The privilege, so far as it involves immunity from legal liability, extends only to speeches uttered within the walls of parliament (c). The privilege of person is an immunity referable to very early times, for we find in the laws of Edward the *Confessor(d) this precept, " pax sit ad synodos euntibus, sive summoniti sint, sive per se ibi quid agendum [*198] habeant," and so in the old Gothic constitutions, "extenditur hæc pax et securitas ad quatuordecim dies, convocato regni senatu "(e). This included formerly not only privilege from illegal violence, but also from legal arrests, and seizures by process from the courts of law. And still to assault by violence a member of either house is a high contempt of parliament, and there punished with the utmost severity. It had formerly peculiar penalties annexed to it in the courts of law, by the statutes 5 Hen. 4, c. 6, and 11 Hen. 6, c. 11. Neither can any member of either house be arrested and taken into custody, unless for treason, felony, or breach of the peace, i.e., as now established, for an indictable offence(f), without infringing the privilege of parliament. The person of a peer is by the privilege of peerage inviolable(g); and a commoner, by privilege of parliament resting upon usage and recognised by courts of law(h), is protected from arrest for forty days after every *prorogation, and forty days before the next appointed meeting: which is now [ *199] in effect as long as the parliament subsists, it seldom being prorogued for more than four-score days at a time. A member of the lower house is also protected before the first meeting and after the final dissolution of parliament for a convenient time sufficient to allow of his coming from or returning to any part of the kingdom(i). As to other privileges, which obstruct the ordinary course of justice, they were restrained by the statutes 12 Will. 3, c. 3, 2 & 3 Änn. c. 18, and 11 Geo. 2, c. 24, and were abolished by statute 10 Geo. 3, c. 50, which enacts, that any suit may at any time be brought against any peer or member of parliament, or any other person entitled to privilege of parliament; which shall not be impeached or delayed by pretence of any such privilege; except that the person of a member of the house of commons shall not thereby be subjected to any arrest or imprisonment. Likewise by force of the statutes 52 Geo. (c) R. v. Lord Abingdon, 1 Esp. 226; R. v. afterwards intermarry with commoners. Co. Creevey, 1 M. & S. 273. Litt. 16; 2 Inst. 50; Acton's case, 4 Rep. 118 b. (d) Cap. 2. (e) Stiernh. de jure Goth. 1. 3, c. 3. (f) May, Parl. Pract. 5th ed., p. 143. (9) At common law peers of the realm and peeresses, whether by birth, creation, or marriage, are privileged from arrest in civil suits, on account of their dignity, and because they are supposed to have sufficient property, by which they may be compelled to appear; and this privilege is extended by the act of union with Scotland (5 Anne, c. 8, art. 23) to Scotch peers and peeresses; and by the act of union with Ireland (39 & 40 Geo. 3, c. 67, art. 4), to does not extend to peeresses by marriage who Irish peers and peeresses. But this privilege VOL. I.-18 (h) Goudy v. Duncombe, 1 Exch. 430, where the court observed: "We think that the conclusion to be drawn from all that is to be found in the books on the subject is this: that, whether the rule was originally for a convenient time or for a time certain, the period of forty days before and after the meeting of parliament has for about two centuries at least been considered either a convenient time or the actual time to be allowed. Such has been the usage, the universally prevailing opinion, on the subject; and such, we think, is the law." (i) See 10 Geo. 3, c. 50; Fortes. 159. 3, c. 144, and 12 & 13 Vict. c. 106, s. 77(k), a bankrupt is incapable of sitting in the house of commons. The only way by which courts of justice could anciently take cognizance of privilege of parliament was by writ of privilege, in the nature of a supersedeas, to deliver the party out of custody when arrested in a civil suit(1). For when a letter was written by the speaker to the judges, to stay proceedings against a privileged person, they rejected it as contrary to their oath of office(m). But since the statute 12 Will. 3, c. 3, which enacts that no privileged person shall be subject to arrest or imprisonment, it has been held that such arrest is irregular ab initio, and that the party may be discharged upon motion(n) in the court out of which the process issued. It is to be observed, that there is no precedent of any *such writ of privilege, save only in civil suits; [*200] and that the statute 1 Jac. 1, c. 13, and that of king William (which remedy some inconveniences arising from privilege of parliament) speak only of civil actions. And therefore the claim of privilege has been usually guarded with an exception as to the case of indictable crimes(0); or, as it has been frequently expressed, of treason, felony, and breach (or surety) of the peace(p). Whereby it seems to have been understood that no privilege was allowable to members of parliament in respect of any crime whatsoever: for all crimes are treated by the law as being contra pacem domini regis. And instances have not been wanting, wherein privileged persons have been convicted of misdemeanors, and committed, or prosecuted to outlawry, even in the middle of a session (q); which proceeding has afterwards received the sanction and approbation of parliament(r). To which may be added, that about a century ago, the case of writing and publishing seditious libels was resolved by both houses(s), not to be entitled to privilege (although the court of common pleas had otherwise decided()); and that the reasons upon which that case proceeded (u), extended equally to every indictable offence. So that the chief, if not the only, privilege of parliament, in such cases, seems to be the right of receiving immediate information of the imprisonment or detention of any member, with the reason for which he is detained: a practice which has been recognised by temporary statutes suspending the habeas corpus act(x); and providing that no member of either house shall be detained till the matter of which he stands suspected be first communicated to the house of *which [*201] he is a member, and the consent of the said house be obtained for his commitment or detention. If a member of either house be attached for contempt of court, it would be for the house to consider, regard being had to the circumstances of the case, whether the parliamentary privilege of freedom from arrest should be asserted or be waived(y). These are the general heads of the laws and customs relating to parliament, considered as one aggregate body. We will next proceed to — (k) And see s. 66. As to the effect of bank- (n) Holiday v. Pitt, Stra. 989. (g) Mich. 16 Edw. 4, in Scacch. (t) Wilkes's case, 2 Wils. 151. (x) 17 Geo. 2, c. 6; 45 Geo. 3, c. 4, s. 2; 57 Geo. 3, c. 3, s. 4, and c. 55, s. 4; 3 Geo. 4, c. 2, s. 4. (y) May, Parl. Pract. 5th ed., p. 149. IV. The laws and customs relating to the house of lords in particular. IV. The laws and 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. customs of the house of lords in particular. One privilege, which by reason of its antiquity may be mentioned, is that declared by the charter of the forest (2), confirmed in parliament 9 Hen. 3; 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. In the next place the lords in parliament assembled have a right to be, and constantly are, attended by the judges of the court of queen's bench and common pleas, and such of the barons of the exchequer as are of the degree of the coif, i.e., have been made serjeants at law; by the master of the rolls, the attorney-general, solicitor-general, as likewise by the queen's counsel, being serjeants; for their advice in point of law, and for the greater dignity of their proceedings. And the above-mentioned learned persons are still summoned by writs under the great seal *to attend the house(a) though the judges alone are consulted on points of law. [*202] Another privilege is, that every peer, by licence from the crown(b), may make any other lord of parliament his proxy, to vote for him in his absence(c). 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(d). A 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. All bills likewise, that may in their consequences any way affect the right 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, in whom nevertheless is vested the power of rejecting them altogether. One statute peculiarly relative to the house of lords is the 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 præmunire(e). The election of the Irish representative peers is regulated by the fourth article of the union(ƒ). (2) C. 11. (a) Stat. 31 Hen. 8, c. 10; Smith's Commonw. b. 2. c. 3; Egerton's case, Moor. 551; 4 Inst. 4; Hale of Parl. 140. (b) Hence arose a doubt in Nov. 1788, whether the proxies in that parliament were legal on account of the king's illness? (1 Ld. Mountm. 342.) Proxies cannot be used in a committee (b. 106.) A proxy cannot sign a protest. If a peer after appointing a proxy appear personally in parliament, his proxy [*203] customs of the V. The laws and V. The peculiar laws and customs of the house of commons house of com- relate principally to the raising of taxes, and the election of mons in par ticular. members to serve in parliament. First, with regard to taxes: it is the ancient indisputable privilege and right of the house of commons, that all grants of subsidies or parliamentary aids begin in their house, and are first bestowed by them (g); although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature. (71) 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 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 them, if they *think the commons too [ *204] 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 in the mode of taxing the people by a money bill; under which appellation is included every bill 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. And in bills by which pecuniary burthens are imposed upon the people it is not competent to the lords to make any amendments altering the intention of the commons with regard to the amount of the rate or charge to be imposed, its duration, mode of assessment, levy, collection, appropriation, or management, or the persons who shall pay, receive, manage, or control it, or the limits. within which it shall be levied (h). Next with regard to the elections of knights, citizens, burgesses, and members for the universities, we may observe that herein consists the exercise of the democrátical 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 (g) 4 Inst. 29. (h)May, Parl. Pract. 5th ed. 536-7. The rule stated supra has been somewhat re laxed, when a pecuniary penalty originating with the Commons has been varied by the Lords. Id. 541. (71) Under the government of the United States, "All bills for raising revenue shall originate in the house of representatives; but the senate may propose, or concur with, amendments as on other bills." U. S. Const., art. 1, § 7. 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 [*205] 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. The qualifications of the electors seem susceptible of a twofold division1, as regards property; 2, as regards knowledge and mental cultivation. 1. The reason assigned for requiring a property qualification in voters Qualification of electors. has been to exclude such persons are in so needy and impoverished a condition that they are esteemed to have no will of their own. If these persons had votes, it has been said, they would be tempted to dispose of them under some undue influence or other. This might give a great landed proprietor, an artful, or a wealthy man, a larger share in elections than would be 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 those individuals, whose wills may be supposed independent, more thoroughly upon a level with each other. Another argument in favour of some property qualification for exercising the franchise is that manhood suffrage would give a great, perhaps a dangerous, preponderance to the ignorant over the educated classes, and might so *jeopardize in times of political excitement the stability of the commonwealth. [*206] The constitution of suffrages is indeed 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, 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 was 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 has endeavoured to steer between the two extremes by requiring, 1, a moderate qualification in property for the franchise; or, 2, a degree of knowledge and mental cultivation, as vouched for instance by a certain academical status in the voter. 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 may be said to have several representatives. |