Tuesday, April 29, 2008

Blackstone, ch 2 p 5

"Section 19. Part 5 of Chapter 2 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 2, Part 5"

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
, 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.

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 desirè, 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].

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.

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.

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.

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[**sic] 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

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
) 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

"End of Section 19"