without question;1 and in 1677 he ordered adjournments on four several occasions," which the Speaker obeyed without putting the question whether or no the House wished to adjourn. This episode gave rise to debates, which ended without any resolution. But it was generally recognized that, as Marvel puts it, "adjournments are the act of the House." 4 This has always been accepted as the rule since the Revolution," and its establishment is one more illustration of the complete control which the House had by this time established over the ordering of its own business.

After the Restoration the privileges of both the Houses of Parliament were for the most part unquestioned. We have seen that certain proceedings in the courts against Speaker Williams, and some other officials of the House, gave rise to a clause in the Bill of Rights. But we shall see that there was something to be said for the action of the judges in those cases. There are no such flagrant and indefensible violations of privilege as occurred in the earlier part of the century. On the contrary, what was to be feared was, not that the crown would encroach on the privilege of Parliament, but that either individual members of the Houses of Lords or Commons, or one or other House collectively, would, under cover of privilege, encroach upon the rights and liberties of the subject, and the supremacy of the law. The privileges claimed by individual members of the House of Lords were both large and oppressive. We have seen that resentment at the manner in which they were asserted had a good 2 Marvell, Works ii 557, 558, 565, 569.

1 Commons Journals ix 158. 3 Ibid 571, 577-578.

8

4Ibid 577-578-" Many insisted, as it hath been understood that his Majesty intended nothing by that command, but that it should be done after the usual method, and showed the ill consequences, if the Speaker might so leave the chaire of his own determination, without putting the question, adjournments being the act of the House.'

5 May, Law and Practice of Parliament (11th ed.) 46. 6 Above 231.

7 Below 269-270.

8" No gentleman who had had a dispute with a nobleman could think, without indignation, of the advantages enjoyed by the favoured caste. If his Lordship were sued at law, his privilege enabled him to impede the course of justice. If a rude word were spoken of him, such a word as he might himself utter with perfect impunity, he might vindicate his insulted dignity both by civil and criminal proceedings. If a barrister in discharge of his duty to a client, spoke with severity of the conduct of a noble seducer, if an honest squire on the race course applied the proper epithets to the tricks of a noble swindler, the affronted patrician had only to complain to the proud and powerful body of which he was a member. His brethren made his cause their own. The offender was taken into the custody of the Black Rod, brought to the bar, flung into prison, and kept there till he was glad to obtain forgiveness by the most degrading submission," Macaulay, Hist. iii 305; cp. Pike, Constitutional History of the House of Lords 254 seqq.; vol. i 391; and for some illustrations of the obstructions to justice introduced by the privileges of the peers, and the protections granted by them to their servants, see House of Lords MSS. (N.S.) ii xxvii-xxx and references there cited; in all the volumes of these MSS. many such illustrations can be found.

deal to do with causing the dispute between the House of Lords and the House of Commons, which delayed the enactment of the very salutary law for the reform of the procedure in trials for high treason. Moreover, members both of the House of Lords and of the House of Commons, and their servants, had large immunities from being sued in civil actions while Parliament was sitting, and for forty days before and after a session. This privilege may not have produced much hardship when the intervals between Parliaments were long, and sessions were short. It obviously amounted almost to a denial of justice, now that Parliament was in almost perpetual session. It was for this reason that an Act of 17002 provided that personal3 actions could be brought against members of the House of Lords and Commons and their servants, immediately after a dissolution or a prorogation of Parliament, or an adjournment for more than fourteen days, and till Parliament again assembled. If by reason of privilege a plaintiff was prevented from prosecuting his suit, his claim was not to be barred by any statute of Limitation, and he was not to be "nonsuited, dismissed, or his suit discontinued for want of prosecution," but he was "from time to time upon the rising of the Parliament to be at liberty to proceed to judgment and execution."5 Nothing in the Act was to authorize the arrest of a member of either House on civil process."

More important from the point of view of public law are the extensions of privilege, which both the Houses collectively sometimes sought to establish. We have seen that, during the Long Parliament, claims to sanction anything which the House wished, and to punish any conduct of which it disapproved, were justified under cover of the elastic phrase "privilege."7 We have seen too, that, during the Exclusion Bill agitation, the House of Commons was guilty of much arbitrary conduct under cover of the same plea.8 Privilege, in fact, in the eyes of the House of Lords and the House of Commons, comprised a set of powers almost as vague and elastic as those comprised in the prerogative. Like prerogative, its relations to the law had never been accurately ascertained. Nor was it possible that any certain conclusion as to its relations to the law should be reached under Charles II. and James II. The law courts were, from the middle of Charles II.'s reign, presided over by the partisans of the crown, and

1 Above 232-234.

212, 13 William III. c. 3; for an earlier Bill which failed to pass see House of Lords MSS. (N.S.) ii 371 no. 1089.

385 of the Act provided that it was not to extend to real or mixed actions; § 4 provided that proceedings at law or in equity against the "king's original and immediate debtor were not to be stayed by privilege of Parliament.

VOL. VI.-17

§ 3.

6

§§ 2 and 4.

• Above 188.

therefore any conclusions to which they came upon this topic were justly suspected. It was not till after the Revolution, when the Bench had been purged, and when the judges' tenure of office had been made secure, that any sort of settlement of the law upon this topic could be made. Even then its settlement has been extremely slow and difficult. Assemblies, whether representative or otherwise, are as indulgent to their own claims to exercise arbitrary powers as they are severe upon the claims of others to exercise such powers. They are as impatient of the control of the law as they are indignant at any one else's attempts to evade this control. We shall see that the judges appointed after the Revolution-and especially Sir John Holtably and courageously vindicated the supremacy of the law as against arbitrary extensions of privilege attempted both by the House of Lords and the House of Commons.2 By thus vindicating the supremacy of the law in these cases, they both laid the foundations for the ultimate settlement of the relations between privilege and the law, and effectually protected the liberties of the subject.

But, before I can deal with this topic, I must first say something of the effects which these various developments in the constitutional position of the two Houses of Parliament had upon the relations between Parliament on the one side, and the crown and its prerogative on the other.

(ii) The relations between Parliament and the prerogative.

We have seen that the constitutional law of Charles II.'s and James II.'s reigns did not effectively solve the question of the whereabouts of the sovereign power in the state." Neither king nor Parliament could lay claim to it. Nor was it solved by the Revolution, and the legislation which settled the law of the constitution upon its modern basis. All that was established by this legislation was the view contended for by Parliament in the early part of the century, that the sovereign power in the state was the king in Parliament. Neither the king nor the House of Lords nor the House of Commons was sovereign. If these three partners could not agree, there was no active sovereign. The existing law as administered by the courts was supreme.

In truth, the attainment of this result was the attainment of the ideal aimed at by a large, perhaps the largest number, of the Parliamentary statesmen of this century. A king and his ministers, a House of Lords, and a House of Commons, who 2 Below 270-272; vol. i 393.

1 Below 269-272.

3 Above 203-207.

Above 84-86; cp. North, Examen 333, 334.

moved each in their allotted spheres, without encroaching upon the spheres of the others; and over all the law ready to punish any illegality committed by any minister or member of either House of Parliament-that was the ideal which floated before the minds of most of the constitutionally minded Englishmen of this period.1 It was essentially a legal ideal, the product of that alliance between Parliament and the common law, which Coke had done so much to cement.2 But, politically, it was an impossible ideal, Between three such partners no enduring harmony could be expected. If they fell out, one or other must prove the stronger, and cause his will to prevail. That one, whatever the law might say, must be politically the sovereign.

The history of the Long Parliament had proved this. We have seen that the logic of events had compelled the House of Commons in the Grand Remonstrance, and in the Nineteen Propositions, to demand that the king should appoint as his ministers only those men who were approved by the House of Commons. They had seen that it was not enough to secure that the king's ministers obeyed the law. They must also secure that those ministers would follow the policy approved by the House-"It may often fall out that the Commons may have just cause to take exceptions at some men for being councillors, and yet not charge those men with crimes, for there be grounds of diffidence which lie not in proof." But, at the Restoration, these ideas were considered to be revolutionary. As we can see from Hale's tract, the strictly legal theory of the constitution revived. It was not to be supposed that Parliament had any right to indicate to the king the persons whom he should appoint to offices in the state, or to ask the king to dismiss them, unless it was able to prove that they had acted illegally. One of the fallacies that underlay Temple's scheme for the reform of the Privy Council, was the idea that a Council of respectable men, whom no one could suspect of wishing to break the law, would put a stop to the quarrels between Parliament and the king's ministers.

5

As soon as an opposition to the crown developed, it became clear that the strictly legal theory of the constitution would not work. A power to impeach ministers guilty of crimes was not a very serviceable weapon to a Parliament which wished

1 Cp. Macaulay, Hist. ii 249-"It was universally supposed that the government would, as in time past, be conducted by functionaries independent of each other, and that William would exercise a general superintendence over them all." 3 Above 117-120, 140.

2 Vol. v 444, 452-454.

4 Grand Remonstrance § 198.

5 Above 204-205; vol. v App. III.

6 Above 186.

We

to control policy.1 Occasionally, indeed, the Commons asked the king to remove an official whose acts they disliked without accusing him of any crime. But such requests never produced much effect. The Commons found that, if they wished to get rid of a minister, they must proceed by way of impeachment, and accuse him of some crime. They were obliged therefore to work their power of impeachment for all it was worth. Never were impeachments so numerous as in the latter half of the seventeenth century: never were the criminal acts with which ministers were charged supported by such slender evidence. have seen that it was almost forgotten that an impeachment was, after all, a criminal proceeding3; and that a man ought no more to be found guilty upon an impeachment than he ought upon an indictment, unless some definite crime could be proved against him. The results were unfortunate. The House of Commons was always complaining of the illegalities committed by the king's ministers, and of the manner in which the king's judges perverted the law; and, at the same time, instead of setting an example to those ministers and judges, it was constantly engaged in perverting the law on its own account, in order to get rid of persons whose political views and programme it disliked. If we blame the king for perverting the law to get rid of his political opponents, we must in fairness remember that the House of Commons was constantly trying to do exactly the same thing.

The legal theory of the constitution put the House of Commons in a thoroughly false position. And yet that theory was not in any way altered by the Bill of Rights, and was actually endorsed by the Act of Settlement. The clause of the Act of Settlement which relates to the Privy Council is directed to securing evidence of the legal responsibility of the king's ministers for their acts. The clause providing that no royal pardon shall be pleaded in bar of an impeachment, is aimed at preventing the king from stopping the hearing of such an impeachment, and so shielding his ministers from legal responsibility. The clause excluding placemen from the House of Commons assumes that the House has nothing to do with the appointment of the king's ministers; that these ministers are the nominees of the king only; that the House must treat

6

1 Vol. i 383-384.

2 See 6 S.T. 1032-address in 1674 to remove the duke of Lauderdale; ibid 1054-address in 1674 to remove the duke of Buckingham; ibid 1062-proposal in 1674 for an address to remove the earl of Arlington negatived; 8 S.T. 217-218— address in 1680 to remove Sir George Jeffreys. 4 Above 232.

3 Vol. i 384 and n. 2.

5 Ibid.

Ibid.