III.
parliament, thus united together and considered as one aggregate
body.
Coke[c], is so transcendent and absolute, that it cannot be confined,
either for causes or persons, within any bounds. And of this
high court he adds, it may be truly said "si antiquitatem spectes,
est vetustissima; si dignitatem, est honoratissima; si juridictionem,
est capacissima." It hath sovereign and uncontrolable[**uncontrollable ?] authority
in 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: this being the place where that
absolute despotic power, which must in all governments reside
somewhere, is entrusted by the constitution of these kingdoms.
All mischiefs and grievances, operations and remedies, that transcend
the ordinary course of the laws, are within the reach of
this extraordinary tribunal. It can regulate or new model the
succession to the crown; as was done in the reign of Henry VIII
and William III. It can alter the established religion of the land;
as was done in a variety of instances, in the reigns of king
Henry VIII and his three children. It can change and create
afresh even the constitution of the kingdom and of parliaments
themselves; as was done by the act of union, and the several
statutes for triennial and septennial elections. It can, in short,
do every thing that is not naturally impossible; and therefore
some have not scrupled to call it's power, by a figure rather too
bold, the omnipotence of parliament. True it is, that what
they do, no authority upon earth can undo. So that it is a matter
most essential to the liberties of this kingdom, that such members
be delegated to this important trust, as are most eminent for
their probity, their fortitude, and their knowlege; for it was a
known apothegm of the great lord treasurer Burleigh, "that
England could never be ruined but by a parliament:" and, as
sir Matthew Hale observes[d], this being the highest and greatest
court, over which none other can have jurisdiction in the kingdom,
if by any means a misgovernment should any way fall upon
it, the subjects of this kingdom are left without all manner of
remedy. To the same purpose the president Montesquieu, though
I trust too hastily, presages[e]; that as Rome, Sparta, and Carthage
have lost their liberty and perished, so the constitution of
England will in time lose it's liberty, will perish: it will perish,
whenever the legislative power shall become more corrupt than
the executive.
have held, that "there remains still inherent in the people
a supreme power to remove or alter the legislative, when they
find the legislative act contrary to the trust reposed in them:
for when such trust is abused, it is thereby forfeited, and devolves
to those who gave it." But however just this conclusion
may be in theory, we cannot adopt it, nor argue from it, under
any dispensation of government at present actually existing. For
this devolution of power, to the people at large, includes in it a
dissolution of the whole form of government established by that
people, reduces all the members to their original state of equality,
and by annihilating the sovereign power repeals all positive
laws whatsoever before enacted. No human laws will therefore
suppose a case, which at once must destroy all law, and compel
men to build afresh upon a new foundation; nor will they make
provision for so desperate an event, as must render all legal provisions
ineffectual. So long therefore as the English constitution
lasts, we may venture to affirm, that the power of parliament is
absolute and without control.
this extensive authority in hands that are either incapable, or else
improper, to manage it, it is provided that no one shall sit or
vote in either house of parliament, unless he be twenty one years
of age. This is expressly declared by statute 7 & 8 W. III. c. 25.
with regard to the house of commons; though a minor was incapacitated
before from sitting in either house, by the law and
custom of parliament[g]. To prevent crude innovations in religion
and government, it is enacted by statute 30 Car. II. st. 2. and
1 Geo. I. c. 13. that no member shall vote or sit in either house,
till he hath in the presence of the house taken the oaths of allegiance,
supremacy, and abjuration, and subscribed and repeated
the declaration against transubstantiation, and invocation of saints,
and the sacrifice of the mass. To prevent dangers that may arise
to the kingdom from foreign attachments, connexions, or dependencies,
it is enacted by the 12 & 13 W. III. c. 2. that no alien,
born out of the dominions of the crown of Great Britain, even
though he be naturalized, shall be capable of being a member of
either house of parliament.
for it's direction, some the civil and canon, some the common
law, others their own peculiar laws and customs, so the high
court of parliament hath also it's own peculiar law, called the
lex et consuetudo parliamenti; a law which sir Edward Coke[h] observes,
is "ab omnibus quaerenda, a multis ignorata, a paucis cognita."
It will not therefore be expected that we should enter
into the examination of this law, with any degree of minuteness;
since, as the same learned author assures us[i], it is much
better to be learned out of the rolls of parliament, and other records,
and by precedents, and continual experience, than can be
expressed by any one man. It will be sufficient to observe, that
the whole of the law and custom of parliament has it's original
from this one maxim; "that whatever matter arises concerning
either house of parliament, ought to be examined, discussed,
and adjudged in that house to which it relates, and not elsewhere." Hence, for instance, the lords will not suffer the
commons to interfere in settling a claim of peerage; the commons
will not allow the lords to judge of the election of a burgess;
nor will either house permit the courts of law to examine
the merits of either case. But the maxims upon which they proceed,
together with their method of proceeding, rest entirely in
the breast of the parliament itself; and are not defined and ascertained
by any particular stated laws.
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].[**missing "] 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 100l.) 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.
to parliament, considered as one aggregate body. We will
next proceed to
[note: the above is correct. ~jc]
IV.
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.
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.
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.
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].
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.
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.
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.
"End of Section 17"
