Such are the reasons urged in favour of the principle upon which our representative system is at present founded. An account of the existing state of the franchise is necessarily, owing to projected changes, reserved for the Appendix(i), to which the reader is likewise referred for an account of the proceedings at an election. Any person(k) may be elected a member of the house of commons if not affected by one or other of certain disqualifications which depend upon the law Disqualifications and custom of parliament, or upon the statute law. Whence for serving in parliament. it appears that no person included in the subjoined list [ *207] *is eligible to sit amongst the commons: an alien born (7) or naturalized(m), an idiot or lunatic, if incurable(n), a person attainted of treason or convicted of felony(0), a peer of the realm or of Scotland or a representative peer of Ireland(p), a judge of a superior court in England(q) (except the master of the rolls), or of the court of admiralty(r), or in bankruptcy(s), or of a county court(t). The following officials likewise are disqualified: a metropolitan police magistrate(u), a recorder for the borough for which he is appointed (x), a revising barrister for any place within his district(y), a judge of Scotland(z) or Ireland (a), any one ordained to the office of priest or deacon of the church of England (b), a minister of the church of Scotland (c), or any one in holy orders in the church of Rome(d). Sheriffs of counties, and mayors and bailiffs of boroughs, are not eligible in their respective jurisdictions, as being returning officers(e); but the sheriff of one county is eligible to serve as knight for another(ƒ), or for any county *of a city or borough within his county, provided the writ for the elec[ *208] tion is directed not to himself but to some other returning officer(g). No government contractor (h) nor person having a pension under the crown during pleasure or for any term of years(i) is qualified to be elected or to sit. Nor is any person holding an office under the crown created since 1705(j) capable of being elected or of sitting; though, should he do so, an act of indemnity may perhaps be passed by the legislature(). Innovations on the above rule have, however, been made by successive statutes with a view to the requirements of the government and the conduct of the public service, ex. gr. as regards the vice-president of the board of trade(l), (i) No. II. mittee of the House of Commons was ap (k) The property qualification was abol- pointed to search for precedents respecting ished by stat. 21 & 22 Vict. c. 26. (1) Ante, p. 193. (m) 12 & 13 Will. 3, c. 2; 1 Geo. 1, st. 2, c. 4, s. 2. (n) D'Ewes, 126; May, Parl. Pr. 5th ed. 33. (g) 1 Com. Journ. 257. (r) 3 & 4 Vict. c. 66. (8) 1 & 2 Will. 4, c. 56, ss. 60-70. (t) 25 & 26 Vict. c. 99, s. 4. the eligibility of the clergy to be returned to parliament; and it being found that persons had been returned with the addition" clericus" to their names, the above statute was passed. (c) 41 Geo. 3, c. 63. (d) 10 Geo. 4, c. 7, s. 9. (e) Bro. Abr. tit. parliament, 7; Com. Journ. 25 June, 1604; 14 Apr. 1614; 22 Mar. 1620 ; 15 Jun. and 17 Nov. 1685. Hale of parl. 114. (f) 4 Inst. 48; Whitelocke of parl. ch. 99, the president of the poor law board (m), the first commissioner of works(n), the vice-president of the committee of the privy council on education (0), and the postmaster-general(p). It has been further enacted that not more than four of the principal and four of the under-secretaries of state shall sit at the same time in the house of commons(); that the seat of any member accepting the office of under-secretary to a principal secretary of state, there being four under-secretaries then in the house, shall be thereupon vacated(r); that if at any general election there are returned as members to serve in parliament a greater number of persons holding such office of principal or under-secretary than are permitted to sit and vote in the house, no one of such persons shall be capable of sitting *until the number of persons returned as members and holding the [ *209] same office as himself has, by death, resignation, or otherwise, been reduced to the number permitted by law to sit in the house(r); and that the like rules shall apply in all cases in which a limit is imposed upon the number of persons holding any other office who may at the same time sit and vote as members of the house of commons(s). Lastly, 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, provided the office be one created prior to the year 1705(t). Subject to the above-mentioned restrictions and disqualifications, and likewise to many others which cannot here conveniently be noticed, every subject of the realm is eligible of common right to serve as a member of the lower house, though there are instances wherein persons under particular circumstances have forfeited that common right, and have been declared ineligible, for that parliament by a vote of the house of commons (u), or for ever by an act of the legislature(x). But it was an unconstitutional prohibition, grounded on an ordinance of the house of lords(y), and inserted in the king's writs, for the parliament holden at Coventry, 6 Hen. 4, that no apprentice or other man of the law should be elected a knight of the shire therein (z): in return for which, our law books and historians (a) have branded this parliament with the name of parliamentum indoctum, or the lack-learning parliament; and sir Edward Coke observes with some spleen (b), that there never was a good law made thereat(c). *VI. I proceed, sixthly, to the method of making laws; which is much the same in both houses: and I shall touch it very briefly, (m) 10 & 11 Vict. c. 109. (p) 29 & 30 Vict. c. 55. (q) 21 & 22 Vict. c. 106, s. 4. (t) 6 Anne, c. 7. (u) Ante, p. 194. (x) Stat. 7 Geo. 1, c. 28. [ *210] been made to exclude lawyers from parliament. In the 47 Edw. 3, the clause, known by the name of the nolumus clause, was first inserted in the writs; and on subsequent oc casions attempts have been made to put it into force. It ran thus: "Nolumus autem quod tu aut aliquis alius vicecomes regni nostri aut apprenticius aut aliquis alius homo ad legem aliqualiter sit electus." Rogers, Elect. 10th ed. 201 n. (2). In the year 1649, a motion was made to ex (y) 4 Inst. 10, 48; Pryn. plea for lords, 379; clude lawyers from the parliament, by enforc 2 Whitelocke, 359, 368. (2) Pryn. on 4 Inst. 13. (a) Walsing. A. D. 1405. (b) 4 Inst. 48. (c) This is not the only attempt which has ing the nolumus clause, and the speech of Whitelocke, in opposition thereto, contains much curious information on the subject. Parl. Hist. i. 1341. VI. The method beginning in the house of commons. But first I must premise, that for dispatch of business each house of parliament has its speaker. The speaker of the house of lords, whose office is to preside there, and manage the of making laws. formality of business, is the lord chancellor, or keeper of the king's great seal, or in his absence one of the deputy-speakers appointed by the king's commission: and, if none such be present, the house of lords may elect a speaker pro tempore. The speaker of the house of commons is chosen by the house; but must be approved by the crown(d).(72) 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; though he may vote and assign reasons for his vote if the members pro and con. are equal. Moreover when the house of commons resolves itself into a committee, the chairman of the committee (who in the lords is appointed at the commencement of each session, and in the commons is in general the chairman of the committee of ways and means) presides, and then the speaker may for the time speak and vote as any ordinary member. The speaker of the upper house may, if a lord of parliament, address it, but he [ *211] has no casting vote, his vote being counted with *the rest of the house; and in the case of an equality of votes, the rule is, semper præsumitur pro negante(e). In each house the act of the majority binds the whole; and this majority is declared by votes openly and publicly given: not privately or by ballot. The latter method may be serviceable in some assemblages, to prevent intrigues and unconstitutional combinations, but cannot possibly be practised 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. Before bringing into the house a private bill(ƒ), i. e., a bill by which relief is sought of a private nature for the benefit of some particular person or persons, Mode of bring the requirements of the standing orders, which are minute and ing in a bill. peremptory, must be complied with. The bill is then brought in upon 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. (d) This approval has not been withheld since the 30 Car. 2. In that year the House of Commons having elected Sir Edw.Seymour speaker, in opposition to the nominee of the court party, the king refused his approbation of their choice. After a short prorogation of parliament, the house elected a third person, whose election the court thought proper to confirm. Parl. Hist. iv. 1091-1113; Burnet. Hist. own Times, i. 275. (e) Lords' Journ. 25 June, 1661. (f) In passing private bills parliament exercises legislative functions, but its proceedings partake also of a judicial character. "The persons whose private interests are to be promoted appear as suitors for the bill; while those who apprehend injury are admitted as adverse parties in the suit." Although "private bills are examined and contested before committees and officers of the house like private suits, and are subject to notices, forms, and intervals unusual in other bills, yet in every separate stage, when they come before either house, they are treated precisely as if they were public bills: they are read as many times, and similar questions are put, except when any proceeding is specially directed by the standing orders; and the same rules of debate and procedure are maintained throughout." May, Parl. Pract. 5th ed. pp. 660, 662. (72) In the congress of the United States, the house of representatives chooses its own speaker and other officers. U. S. Const., art. 1, § 2. The vice-president of the United States is president of the senate, but he has no vote unless the senate is equally divided. Ib., § 3. [ *212] *In public matters the bill is brought in upon motion made to the house, without any petition, or is founded upon a resolution, or in the upper house is brought in without leave. Formerly, all bills were drawn in the form of petitions from the commons, 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(g); and at the end of each parliament the judges drew the petitions and the answers to 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(h), the statutes *were [*213] 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. The enacting words inserted in an act of parliament expressing the consent of the three branches of the legislature have much varied (i); the form, however, now used is as follows: "be it enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal and commons in this present parliament assembled, and by the authority of the same." The persons directed to bring in the bill, present it in a printed form to the house, italics being used where anything occurs that is dubious, or necessary to The first and sec- be settled by the parliament itself, such especially as the precise ond readings. date of times, the nature and amount of penalties, or of sums of money to be raised. In the house of lords, if the bill begins there, it is (when of a private nature) sometimes—as in the case of an estate bill-referred to two of the judges, to examine and report the state of the facts alleged, to see that all necessary parties consent to its provisions, and to settle in it points of technical propriety(k). This is read a first time, and after a convenient inter (g) See, for instance, the articuli cleri, 9 Edw. 2. (h) So early as the reign of Edward II. laws had found their way on to the statuteroll of which one branch or other of the legislature afterwards complained as being without, or even against, their consent. In 1322 (15 Edw. 2) an explicit declaration, commonly called the Revocation of Ordinances, was made by statute of the necessity for the uncontrolled consent of the king and the three estates to every law and ordinance. It declares that "all matters to be established for the estate of our lord the king, and of his heirs, and for the estate of the realm, and of the people, shall be treated, accorded, and established in parliament, by our lord the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, according as it hath been heretofore accustomed." Notwithstanding this statutory declaration, laws were still promulgated of which the commons had not approved, or which they had actually rejected. And against this practice the commons remonstrated: temp. Edw. 3, and in the Petition of Right (anno 5 Rich. 2), which states that "it had ever been their liberty and freedom that there should no statute or law be made, unless they gave thereto their assent;-that they are, and have ever been, part of the VOL. I.-19 king's parliament, and be as well assenters as petitioners." The commons then petition the king that from that time forward, on complaint from them of any mischief asking remedy thereof by their speaker, or by petition written, there never should be any law made thereon and engrossed as statute, nor any additions, diminutions, or any manner of term or terms made in the same, whereby it should be changed from the intent and meaning asked by the speaker's mouth or the petitions aforesaid, without the assent of the said commons. To this the king of his grace especial granted, that from thenceforth nothing should be enacted to the petitions of his commons that be contrary to their asking, whereby they should be bound without their own assent. (i) Broom, Const. L. pp. 382 et seq. (k) "A public bill being founded on reasons of state policy, the house, in agreeing to its second reading, accepts and affirms those reasons; but the expediency of a private bill being mainly founded upon allegations of fact, which have not yet been proved, the house, in agreeing to its second reading, affirms the principle of the bill conditionally, and subject to the proof of such allegations before the committee." May, Parl. Pract. 5th ed. p. 701. val a second time. The introduction of the bill may be originally opposed, as the bill itself may be at either of the readings; and, if the opposition succeeds, the bill must be dropped for that session: as it must also be if opposed with success in any of its subsequent stages in either house, or if the royal assent to it be refused. [ *214] The committee. *After the second reading the bill is committed, that is, referred to a committee, which is either selected by the house, 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 or italics filled up, and sometimes the bill is entirely new-modelled. After it has gone through committee, the chairman reports it to the house with such amendments as the committee have made in it; and then the house reconsiders the whole bill again, and the question is repeatedly put upon every clause and amendment. When the house has agreed or disagreed to the amendments of the committee, and sometimes added new amendments of its own, the bill was formerly engrossed, but is now reprinted in its amended form. Afterwards the motion for the third reading of the bill is made, though, should material amendments even at this advanced stage be needed in it, the usual course is to discharge the order for the third reading in order that the bill may be recommitted and the necessary amendments be made in it. The speaker then puts the question that this bill do pass, and if this is agreed to, the title of it is settled; which used to be a general one for all the acts passed in the session, till in the first year of Henry VIII. a distinct title was used for each chapter. After this, the bill is sent to the lords by a clerk of the house of commons. Proceedings in The bill passes through the same forms in the upper as in the lower house, and, if rejected, no more notice is taken of the matter, but it passes sub If the bill is silentio, to prevent unbecoming altercations. the upper house. agreed to, the lords send a message to the commons 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 [ *215] amendments are sent down with the bill, to receive the concurrence of the commons. If the commons disagree to, and the lords insist upon, 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 with a message to acquaint them therewith. The same forms are observed, mutatis mutandis, when the bill begins in the house of lords. But, when an act of grace or pardon is passed, it is first signed by the sovereign, and then read once only in each house, without amendment(). And when both houses have done with any bill, it is always deposited in the house of peers, to await the royal assent: except in the case of a bill of supply, which after receiving the concurrence of the lords is sent back to the house of commons (m). (1) D'Ewes' Journ. 20, 73; Com. Journ. 17 (m) Com. Journ. 24 July, 1662. June, 1747. |