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represented by citizens and burgesses, chosen for the most part by owners and occupiers of tenements, or by *persons having a property qualifica[*190] tion(x); the franchise enjoyed sub modo by graduates of our principal Universities resting however upon another basis.

Each member of the house of commons, though chosen by one particular district, when elected and returned serves for the whole realm and for both classes of the commonalty, for those who have not as well as for those who have the franchise. For the end of his coming to parliament is not particular, but general: not barely to advantage his constituents, but to promote the interests of the commonwealth; to advise his sovereign (as appears from the writ of summons (y)) "de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum, et defensionem regni Angliæ et ecclesiæ Anglicana concernentibus." And therefore a member is not bound to consult with, or take the advice of, his constituents upon any particular point, unless he himself thinks it proper or prudent so to do.

These are the constituent parts of a parliament; the sovereign, the lords spiritual and temporal, and the commons.(67) Parts, of which each is so necessary, that the consent of all three is required to make any new law that shall bind the subject. Whatever is enacted for law by one, or by two only, of the three is no statute; and to it, unless in matters concerning privilege, or where a royal proclamation has been issued (z), no regard is due. For though, in times of madness and anarchy, the commons once passed a vote(a), “that whatever is enacted or declared for law by the commons in parliament assembled hath the force of law; and as such the people of this nation are concluded thereby, although the consent and concurrence of the king or house of peers be not had thereto:" yet, when the constitution was restored, it was *enacted by statute 13 Car. 2, c. 1, that if any person shall maliciously [*191] or advisedly affirm, that both or either of the houses of parliament have any legislative authority without the king, such person shall incur the penalties of a præmunire(b).

III. Laws and cus- III. We are next to examine the laws and customs relating to toms of parliament collectively. parliament, united together and considered as one aggregate body. The power and jurisdiction of parliament, says sir Edward 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 jurisdictionem, est capacissima." It has sovereign and uncontrollable powers in the making, confirming, enlarging, restraining, abrogating, repealing, reviving,

(r) The existing state of the franchise is set forth in the Appendix, No. II.

(y) 4 Inst. 14.

(2) As to the authority of a royal proclamation, post, chap. 7.

(a) 4 Jan. 1648.

(b) As to which, post, vol. 4.
(c) 4 Inst. 36.

(67) The congress of the United States consists of a senate and a house of representatives. U. S. Const., art. 1, § 1.

The house of representatives is composed of members chosen every second year by the people of the several states. Ib., § 2. Every representative must be twenty-five years of age, have been a citizen for seven years, and a resident of the state in which he is chosen. Ib.

The senate of the United States is composed of two senators from each state chosen by the legislature thereof for six years. Ib., § 3.

and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal: to parliament a supreme authority is intrusted 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(d). 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 acts of union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the [*192] omnipotence of parliament. True it is, that what the parliament does, no authority upon earth can undo. So that it is a matter most essential to the liberties of the kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, and their knowledge; for it was a known apophthegm of the great lord treasurer Burleigh, "that England could never be ruined but by a parliament;" and, as sir Matthew Hale observes(e), 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(ƒ), that as Rome, Sparta, and Carthage have lost their liberty and perished, so the constitution of England will in time lose its liberty, will perish: it will perish, he says, whenever the legislative power shall become more corrupt than the executive.

It must be owned that Mr. Locke(g), and other theoretical writers, 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." Without anticipating what will hereafter be said upon this subject(h), we must observe that however just Mr. Locke's conclusion may be in theory, legal steps cannot be taken for carrying it into execution, for the devolution of power, to the people at large, if literally effected, would include in it a dissolution of the whole form of government established by that people; would reduce all the members of the community to their original state of equality; and, by annihilating the sovereign power, [ *193] would jeopardise the authority of all positive laws before enacted. No human laws therefore will suppose a case, which at once must destroy or shake the foundations of all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event. So long therefore as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.(68)

(d) Such also was anciently one important function of parliament. Palgrave, Orig. Auth. of King's Council, 21, et seq.

(e) Of parliaments, 49.

(f) Sp. L. 11, 6.

(g) On Gov. p. 2, s. 149, 227.
(h) Post, chap. 3.

(68) The limitations imposed upon legislative power have been noticed, ante, 33 (*43), note 10; ante, 69 (*94), note 34; and see Cooley on Const. Lim. 85 to 90.

members of

both houses.

In order to prevent the mischiefs that might arise, by placing this extensive authority in hands that are either incapable, or else improper to manage it, Qualification of certain qualifications are needed in the members of both houses. According to the law and custom of parliament (i), notwithstanding some contradictory adjudications and some deviations from an observance of it(k), no one can sit or vote in either house, unless he be twentyone years of age. This is expressly declared by statute 7 & 8 Will. 3, c. 25, s. 8, with regard to the house of commons, and by resolution A.D. 1667 with regard to the house of lords(). No member can vote or sit in either house till, if a Protestant, he has taken the oath prescribed by the 29 & 30 Vict. c. 19(m); or (if a Quaker or other person by law permitted to make a solemn affirmation or declaration instead of taking an oath) till he has made and subscribed a solemn affirmation as thereby appointed(n). An alien, although naturalized or made a denizen, unless he be born of English parents(o), is incapable to serve in parliament (p). There are not only these standing incapacities: but if any person is made a peer by the sovereign, or is elected to serve in the house of commons by the people, yet may the respective houses upon complaint of *any crime in such person, and proof thereof, [ *194] adjudge him disabled and incapable to sit as a member(q), although expulsion from the house of commons does not create any disability to serve again in parliament (r).(69)

(i) Whitelocke, c. 50; 4 Inst. 47.

(k) Com. Journ. 10 Mar. 1623; 18 Feb. 1625.

() 12 Lords' Journ. 174. (m) S. 1.

(n) S. 4. The parliamentary oath is now in the form prescribed by the Promissory Oaths Act, 1868, 31 & 32 Vict. c. 72. See § 8. (0) 12 & 13 Will. 3, c. 2. (p) 7 & 8 Vict. c. 66, s. 6.

(9) Whitelocke of Parl. c. 102. See Lords' Journ. 3 May, 1620; 13 May, 1624; 26 May, 1725. Com. Journ. 14 Feb. 1580; 21 June, 1628; 9 Nov. and 21 Jan. 1640; 6 Mar. 1676; 6 Mar. 1711; 7 Feb. 1769.

(r) In 1764, the House of Commons expelled Mr. Wilkes from their body, on the ground of his having been the author of a libel contained in No. 45 of the North Briton. In 1768 he became a candidate for the representation of Middlesex, and was duly returned to parliament, but the house again

expelled him, alleging and recording as their reason for so doing the libels he had published. The county again elected him their representative, and the house then resolved (17 Feb. 1769) that he was incapable of sitting in that parliament on the ground of having been expelled from the house. A third time he was elected by the county, and again his election was declared void by the House of Commons. Mr. Luttrell then became a candidate for Middlesex, in opposition to Mr. Wilkes; and though the votes for Mr. Wilkes were nearly four times the number of those for Mr. Luttrell, the house resolved that Mr. Wilkes was unduly returned, and Mr. Luttrell took his seat. However, in May, 1782, the resolution of 17th Feb. 1769 was ordered to be expunged from the journals as "subversive of the rights of the whole body of electors of this kingdom," expulsion from the house being not sufficient of itself to disqualify from sitting in parliament.

(69) In the United States each house of congress is the judge of the elections, returns and qualifications of its own members. U. S. Const., art. 1, § 5. Each house may determine the rule of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. Ib. The decisions of either house as to the election, return or qualification of a member are conclusive. State v. Jarrett, 17 Md. 309; People v. Mahaney, 13 Mich. 481; Lamb v. Lynd, 44 Penn. St. 336; see Bowman v. Coffroth, 59 id. 19.

Every legislative body has power to punish contempts which tend to obstruct legislation, whether committed by members or by third persons. Anderson v. Dunn, 6 Wheat. 204; Hiss v. Bartlett, 3 Gray, 468; Burnham v. Morrissey, 14 id. 226; State v. Matthews, 37 N. H 450; see Matter of Hon. Platt Potter, Dwarris on Statutes, 573, Potter's ed.; 55 Barb. 625.

The law of parliament.

As every court of justice has laws and customs for its direction, some the civil or canon, some the common law, others their own peculiar laws and customs, so the high court of parliament has also its own peculiar law, called the lex et consuetudo parliamenti; a law which sir Edward Coke(s) observes is "ab omnibus quærenda, a multis ignorata(t), 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(u), it is much better to be learned out of the rolls of parliament, and other records, and by precedents, and continual experience than expressed by any one man.

The privileges

[*195] The privileges of parliament are large, and at one time were supposed to be indefinite, at least in this sense, it was maintained that parliament could assert new privileges. Accordingly, when, in 31 Henry 6, a question of parliament. was propounded to the judges by the house of lords concerning their privileges, the chief justice, sir John Fortescue, 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 way determine the privileges of the high court of parliament. For it is so high and mighty in its nature, that it may make law: and that which is law, it may make no law: and the determination and knowledge of that privilege belongs to the lords of parliament and not to the justices "(x).

The primary maxim insisted on by parliament has on some notable occasions been impugned. It may be thus stated: 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(y). For instance, the lords will not suffer the commons to interfere in settling the election of a peer of Scotland; the commons will not allow the lords to judge of the election of a burgess, and have more than once evinced remarkable jealousy of any interference by the upper house or by the superior courts of law with their *asserted privileges; for example, in the famous case of the Aylesbury [*196] election(z), and in that of Stockdale v. Hansard(a).

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elected. A majority of the Court of Queen's Bench (contrary to the opinion of Lord Holt) held that the action would not lie, on the ground, inter alia, that it was in breach of the privileges of the House of Commons. This judgment was reversed in the House of Lords. Consequent on these proceedings occurred a celebrated debate in the lower house, and the passing of resolutions in assertion of the exclusive privilege of the Commons "to examine and determine all matters relating to the right of election of their own members," and the qualification of electors, and declaring guilty of a breach of privilege any person who should presume to commence or prosecute any action which might bring the right of electors, or persons elected to serve in parlia ment, to the determination of any other jurisdiction than that of the House of Commons. Further legal proceedings having, in the face of the above resolutions, been taken, and a collision between the lords who took part with the Aylesbury men, and the lower house, being imminent, Queen Anne prorogued parlia

ment. 14 St. Tr. 695-888.

(a) In Stockdale v. Hansard, 9 A. & E. 1; 11

[*197]

*Privilege of parliament was principally established, in order to protect its members not only from being molested by their fellow subjects, but from being oppressed by the power of the crown; and it has been contended that if the privileges of parliament were ascertained the attainment of the objects specified could not be adequately assured, nay, further, that it is competent to either house to claim and assert by resolution a new privilege. Such a doctrine is fraught with danger to the community. No declaration of either house, said Lord Holt(b), can bind the subject or create any new privilege, for then it would have the force of an act of parliament, and bind the person and property of the subject, which are free, unless restrained or limited by the legislature of the kingdom. The lords and the commons respectively are judges of their own privileges, but they have not power to enlarge nor to create them.

Some of the more notorious privileges of the members of either house are, privilege of speech and of person. (70) As to the first, privilege of speech, it is declared by the statute 1 Will. & M. sess. 2, c. 2, as one of the liberties of the

Id. 253, the extent to which the courts of justice can take cognisance of, or even control, the privileges claimed by the House of Commons underwent much discussion. The circumstances of that case were briefly as follows: The House of Commons ordered a certain report to be printed, containing matter reflecting upon Stockdale, which, if printed by any private person, would have been a libel. For this publication, Stockdale brought an action against Messrs. Hansard, the printers to the House of Commons. They pleaded that the documents in question had been published by them under the direction of the House of Commons, and that the house had resolved that the power of publishing such of their reports, votes, and proceedings as they thought conducive to the public interest, was an essential incident to the constitutional functions of parliament, more especially to

the Commons' House of Parliament as the representative portion of it. Upon demurrer to this plea, the Court of Queen's Bench was called upon to decide whether a court of law is or is not excluded by the law of parliament from the consideration of a privilege claimed by a formal resolution of the House of Commons, and set up by their printer as a justification of an act otherwise unlawful. The court decided that they were not precluded from determining as to the validity of the privilege. In consequence of this decision, the statute 3 & 4 Vict. c. 9, was passed for the special protection of all persons publishing parliamentary reports, votes, or other proceedings by order of either house of parliaSee the note to Stockdale v. Hansard, Broom's Const. L. 966, et seq.

ment.

(b) Judgment in the Case of Paty and others, Ed. 1837, pp. 48, 50.

(70) The privileges of members of congress are secured by the constitution as follows: Senators and representatives "shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place." U. S. Const., art. 1, § 6. This principle is fully recognized as to members of the several state legislatures, without the aid of any constitutional provision, as a proper discharge of the duties of a legislator requires the utmost freedom of expression upon all subjects brought up for examination or discussion. Coffin v. Coffin, 4 Mass. 1. See, also, Hosmer v. Loveland, 19 Barb. 111; State v. Burnham, 9 N. H. 34.

But, while a legislator may speak boldly, and even cast imputations upon the characters of individuals, while discussing measures under consideration, he will not be protected if he afterward publishes speeches which reflect injuriously upon individuals. Rex v. Ld. Abingdon, 1 Esp. 226; Rex v. Creevey, 1 M. & S. 278.

A faithful report, in a newspaper, of a debate in a legislative body, containing matter disparaging to the character of an individual, which had been spoken in the course of the debate, is not actionable at the suit of the person whose character has been called in question. Wason v. Walter, L. R., 14 Q. B. 73. But the publication of defamatory matter concerning an individual is not privileged because the libel is contained in a fair report in a newspaper of what passed at a public meeting. Davison v. Duncan, 7 Ell. & Bla. 229; Lewis v. Few, 5 Johns. 1.

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