LAW AND PRACTICE OF LEGISLATIVE ASSEMBLIES. PART EIGHTH. OF THE PASSING OF BILLS. HISTORY OF THE PRESENT FORM OF STATUTES, AND THE MODE OF PASSING THEM. 2046. THE principal and most important business of a legislative assembly is embraced in the making of laws. To this end, almost all its other functions are subsidiary, and almost all its proceedings directed. In order to the making of a law, the three branches must concur in the same proposition, or series of propositions, embodied in a particular form; which, before being agreed to, is denominated a bill, and, afterwards, becomes an act or statute. The proceedings, which relate to the introduction of these propositions, and to the agreeing upon the terms in which they are expressed, are collectively denominated the passing of bills.1 2047. In order to the passing of a bill, the propositions of which it is composed, reduced to writing in the proper form, are first introduced and agreed to in one house; the bill is then sent to the other house, where it is considered in the same manner as in the 1 Where a legislative body consists but of a single branch, its acts are usually denominated "ordinances" by which name the acts of the old congress of the confederation are known. The same appellation is given to the acts of inferior legislative bodies, though consisting of more than one branch, as, for example, to the acts of a city council. house in which it originated; and there it may be either agreed to in the form in which it is sent, or with amendments and alterations, which are afterwards assented to by the house from which it emanates. Being agreed to in both branches, it is then presented to the king, who either assents to or rejects it altogether. With one or two unimportant exceptions, which will be noticed hereafter, bills may originate indifferently in either house; but, with a single exception only, which will also be noticed in another place, the crown has no power whatever to originate bills. 2048. The present method of enacting laws in parliament, according to which the terms of an act are first agreed upon by the two branches, and are then assented to or rejected, but not modified, by the crown, appears to have been finally established about the close of the reign of Henry VI. Previous to this period, though the right of the house of commons to participate fully and equally with the king and lords in the functions of legislation had been recognized, the commons appear only in the capacity of petitioners, representing the people of England in the statement of their grievances, and praying for relief. To the petitions of the commons, in this behalf, answers were given by the crown, the lords and prelates assenting, granting them in full, or only partially, or ingrafting new matter upon them, or rejecting them altogether, according to the pleasure of the sovereign. The petitions and answers were then entered on the rolls of parliament, not in any technical form of language, but according to the circumstances of each case. At the end of each parliament, those of the petitions which had been assented to in any form, together with the answers, were digested and drawn out by the judges into the form of statutes, which were entered on the statute roll, and became acts of parliament.1 2049. This form of proceeding, which, considering the illiterate character of the age when it commenced, was probably the best, if not the only mode, in which the commons could participate in the making of laws, was nevertheless subject to inconvenience, and liable to abuse. The crown had the power, by giving a qualified 1 Dwarris, Part I. 22-28. It is doubtless true that this practice was attended with the advantage, that the statutes were skilfully prepared by competent persons; a fact to which Sir Edward Coke in the preface to the first part of his reports, alludes, almost in terms of regret, at the discontinuance of the practice. "If," says he, " acts of parliament were after the old fashion penned, and by such only as perfectly knew what the common law was, before the making of any act of parliament concerning that matter, as also how far forth former statutes had provided a remedy for former mischiefs and defects discovered by experience, then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace by construction of law between insensible and disagreeing words, sentences, and provisos, as they now do." assent, to defeat the wishes of the commons, whilst seeming to grant their petitions. It was also difficult for the judges, even with the best intentions, to digest the petitions and answers,-especially after the lapse of some time, -into acts really expressive of the legislative will. But, above all this method afforded an opportunity to corrupt and unprincipled judges, in subservience to the crown, to falsify the record which they were intrusted to frame, by additions and alterations, which rendered the act materially different from the petition of the commons.1 2050. In order to guard against these inconveniences, it was provided in the 8th of Henry IV. at the request of the commons, that certain of the commons' house should be present at the engrossing of the parliament rolls. But, it does not appear, that the evil was remedied by this precaution. In the second year of Henry V. the commons again represented, that, as they were assentors as well as petitioners, statutes should be made according to the tenor of the writing of their petitions and not altered, to which the king assented. Subsequently, during this reign, and doubtless with a view to prevent a continuance or repetition of the mistakes and abuses alluded to, the statutes appear to have been drawn up by the judges before the end of the parliament. In the following reign, an effectual remedy was hit upon by the commons, and applied, namely, the introduction of bills in the full and complete form of acts of parliament, according to the modern custom, which were passed in a manner approaching that of the present day.2 2051. This substitution of statutes, complete in point of form, in the place of the old petitions, which became fully established about the end of the reign of Henry VI. was not only effectual to remedy the evil in question, but also had the effect to introduce a new and most important principle into the constitution, namely, that the crown had power only to approve or reject altogether the identical propositions agreed to by the lords and commons, but had no power to alter, amend, or qualify them, in any manner whatsoever. It is worthy of remark, that, notwithstanding this change, the form of a petition is still retained in acts of parliament. 2052. In this part, which is devoted to the manner of passing bills, it will only be necessary to consider them either as public or private; all bills of every description belonging to one or the other of these two classes, so far as relates to the proceedings by which they become acts or laws. In addition to the forms and proceedings, which are applicable to bills generally, there are some which are peculiar to private bills, and which make it necessary to consider them separately. The subject of passing bills will therefore be treated of under two divisions:-in the first of which, every thing relating to the passing of bills, except what is peculiar to private bills, will be considered; and, in the second, those forms and proceedings which are peculiar to the latter. In those of our legislative assemblies, in which there are any differences in the method of proceeding between public and private bills, it is always a question of order merely, for the presiding officer to determine whether a given bill shall proceed as a public or private one.1 These differences, which in some assemblies do not exist at all, vary much in those in which they prevail, and are all probably embodied in the highly artificial system which is established in parliament, and which constitutes the second division of this part. That division has, of course, no other authority here than what belongs to the principles it contains. 1 Cong. Globe, XII. 183; Same, XIII. 636. 4 |