et urgentibus, regem, statum, et defensionem regni Angliæ et ecclesiæ Anglicana concernentibus." And therefore he is not bound, like a deputy in the united provinces, 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. (13) *These are the constituent parts of a parliament; the king, the lords [*160] spiritual and temporal, and the commons. (14) 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 no regard is due, unless in matters relating to their own privileges. For though, in times of madness and anarchy, the commons once passed a vote, (g) "that whatever is enacted or declared for law by the commons in parliament assembled, hath the force of law; and all 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 in all its forms, it was particularly enacted by statute 13 Car. II, c. 1, that if any person shall maliciously or advisedly affirm that both or either of the houses of parliament have any legislative authority without the king, such person shall incur all the penalties of a præmunire. III. We are next to examine the laws and customs relating to parliament, thus united together, and considered as one aggregate body. The power and jurisdiction of parliament, says Sir Edward Coke, (h) 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 hath sovereign and uncontrollable authority in the 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 intrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the [*161] 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 its power, by a figure rather too bold, the omnipotence of parliament. (15) True it is, that what the parliament doth, 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 knowledge; for (13) [See this point beautifully put in the close of Burke's speech to the electors of Bristol.] (14) By the constitution of the United States the senate is composed of two senators from each state, chosen by the legislatures thereof for six years: art. 1, § 3; and the house of representatives of members chosen every second year by the people of the several states; art. 1, § 2. Representatives are apportioned among the several states according to their respective numbers, excluding Indians not taxed, and by a ratio previously fixed by congress, but not to exceed one for every thirty thousand. Each state is to have at least one representative. Ib. (15) De Lolme has improved upon this, and has, I think, unwarrantably asserted, that "it is a fundamental principle with the English lawyers, that parliament can do every thing but make a woman a man, and a man a woman." p. 134. The omnipotence of parliament signifies nothing more than the supreme sovereign power of the state, or a power of action uncontrolled by any superior. In this sense, the king, in the exercise of his prerogatives, and the house of lords, in the interpretation of laws, are also omnipotent; that is, free from the control of any superior pro vided by the constitution.] 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, (i)" 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 (k) 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, whenever the legislative power shall become more corrupt than the executive. It must be owned that Mr. Locke, ()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." [*162] But however just this conclusion may be in theory, we cannot practically adopt it, nor take any legal steps for carrying it into execution, 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. (m) So long therefore as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control. (16) 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, it is provided by the custom and law of parliament, (n) that no one shall sit or vote in either house, unless he be twenty-one years of age. This is also expressly declared by statute 7 and 8 W. III, c. 25, with regard to the house of commons; doubts having arisen from some contradictory adjudications, whether or no a minor was incapacitated from sitting in that house. (0) It is also enacted by statute 7 Jac. I, c. 6, that no member be permitted to enter into the house of commons, till he hath taken the oath of allegiance before the lord steward or his deputy; and, by 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 oath of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation, (17)and invocation of saints, and the sacrifice of the mass. Aliens, unless naturalized, were likewise by the law of parliament incapable to serve therein: (p) and now it is enacted, by statute 12 and 13 W. III, c. 2, that no alien, *even though he be naturalized, shall be capable of being a member of either house of parliament. And there [*163] are not only these standing incapacities; but if any person is made a peer by (k) Sp. L. 11. 6. (i) Of parliaments. 49. (m) See page 244. (16) [Locke himself qualifies his position much in the same way as it is qualified in the text. He says, "the community may be said in this respect to be always the supreme power, but as considered under any form of government; because this power of the people can never take place till the government is dissolved.] No such absolute and uncontrolled authority exists in the American legislative bodies. See notes, pp. 125 and 146. Also Cooley, Const. Lim. 7. (17) The acts relating to declaration against transubstantiation were repealed by Stat. 10 Geo. IV, c. 7, which prescribes a form of oath to be taken by Roman Catholics instead of the oaths of allegiance, supremacy and abjuration. Until recently Jews could not sit in parliament unless they could take the oath of abjuration, containing the words "upon the faith of a Christian," but this requirement was dispensed with in 1858. The form of oath now required by members of parliament is prescribed by Stat. 31 and 32 Vic. c. 72, § 8. the king or 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, adjudge him disabled and incapable to sit as a member: (q) and this by the law and custom of parliament. (18) For, as every court of justice hath laws and customs for its 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 its own peculiar law, called the lex et consuetudo parliamenti; a law which, Sir Edward Coke (r) observes, is "ab omnibus quærenda, a multis ignorata (19) 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, (t) 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 its 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." (u) Hence, 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; nor will either house permit the subordinate courts of law to examine the merits of either case. (20) But the maxims upon which (g) Whitelocke, of Parl. c. 102. See Lord's Journ. 3 May, 1620; 13 May, 1624; 26 May, 1725. Com. Journ. 14 Feb. 1580; 21 Jun. 1628: 9 Nov. 21 Jan. 1640: 6 Mar. 1676; 6 Mar. 1711; 17 Feb. 1769. (r) 1 Inst. 11. (t) 4 Inst. 50. (u) 4 Inst. 15. (18) [This sentence was not in the first editions, but was added, no doubt, by the learned judge, with an allusion to the Middlesex election. The circumstances of that case were briefly these: On the 19th Jan. 1764, Mr. Wilkes was expelled the house of commons, for being the author of a paper called the North Briton, No. 45. At the next election, in 1768, he was elected for the county of Middlesex; and on 3d Feb. 1769, it was resolved that John Wilkes, Esq., having published several libels specified in the journals, be expelled this house; and a new writ having been ordered for the county of Middlesex, Mr. Wilkes was re-elected without opposition; and on the 17th Feb. 1769, it was resolved that " John Wilkes, Esq., having been in this session of parliament expelled this house, was and is incapable of being elected a member to serve in this present parliament;" and the election was declared void and a new writ ordered. He was a second time re-elected without opposition, and on 17th March, 1769, the house again declared the election void, and ordered a new writ. At the next election, Mr. Luttrel, who had vacated his seat by accepting the Chiltern Hundreds, offered himself as a candate against Mr. Wilkes. Mr. Wilkes had 1143 votes, and Mr. Luttrel 296. Mr. Wilkes was again returned by the sheriff. On the 15th April, 1769, the house resolved, that Mr. Luttrel ought to have been returned, and ordered the return to be amended. On the 29th April, a petition was presented by certain freeholders of Middlesex, against the return of Mr. Luttrel; and on the 8th May, the house resolved that Mr. Luttrel was duly elected. On the 3d May, 1783, it was resolved, that the resolutions of the 17th Feb., 1769, should be expunged from the journals of the house, as being subversive of the rights of the whole body of electors of this kingdom. And at the same time it was ordered, that all the declarations, orders and resolutions respecting the election of John Wilkes, Esq., should be expunged.] In the United States each house of Congress judges of the election, returns and qualifications of its own members: Const. art. 1, § 5; and its decisions are conclusive. State v. Jarrett, 17 Md. 309; People v. Mahaney, 13 Mich. 481; Lamb v. Lynd, 44 Penn. St. 336. Each house may also determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member. Const. art. 1, § 5. All legislative bodies have also a common parliamentary faw power to punish contempts either in members or third persons, which tend to obstruct legislation. See Anderson v. Dunn, 6 Wheat. 204; Hiss v. Bartlett, 3 Gray, 468; Burnham v. Morrissey, 14 Gray, 226; State v. Mathews, 37 N. H. 450. (19) [Lord Holt has observed, that "as to what my Lord Coke says, that the lex parliamenti est a multis ignorata, is only because they will not apply themselves to understand it." 2 Ld. Ray. 1114.] (20) [The house of commons merely avails itself, when thus sitting judicially, of the maxim, that all courts are final judges of contempts against themselves. See the case of Brass Crosby, 3 Wils. 188; Bl. Rep. 754, and 7 State Trials, 437; 19 State Trials, 1117; 2 Hawkins, ch. 14, §§ 72, 73, 74. And in conformity with this principle, it was determined in the cases of the King v. Flower, 8 T. R. 314, and Burdett. v. Abbott, 14 East, 1; Burdett v. Colman, id. 163; 4 Taunt. 401, S. C., that the privileges of parliament, whether in punishing a person, not one of they proceed, together with the method of proceeding, rest entirely in the breast of the parliament itself; and are not defined and ascertained by any particular stated laws. (21) *The privileges of parliament are likewise very large and indefinite. And therefore when in 31 Hen. VI, the house of lords propounded a [*164] question to the judges concerning them, 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 wise 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) Privilege of parliament was principally established, in order to protect its 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 parlia ment 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. (22) 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. (23) As to the first, privilege of speech, it is declared by the statute 1 W. and 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 (x) Seld. Baronage, part. 1. c. 4. their members, or in punishing one of their own body, are not amenable in a court of common law; that their adjudication of any offence is a sufficient judgment, the warrant of the speaker a sufficient commitment, and that outer doors may be broken open to have execution of their process. The courts of Westminster, however, may judge of the privilege of parliament, when it is incident to a suit of which the court is possessed, and may proceed to execution between the sessions, notwithstanding appeals lodged, &c. 2 St. Tr. 66, 209.] See also the recent case of Stockdale v. Hansard, 7 C. and P. 737; 9 Ad. and El., 1; and 11 Ad. and El. 253, and the account of the result thereof in May's Const. Hist. c. 9. Also note to same case, Broom's Const. L. 966. (21) [This sentence seems to imply a discretionary power in the two houses of parliament, which surely is repugnant to the spirit of our constitution. The law of parliament is part of the general law of the land, and must be discovered and construed like all other laws. The members of the respective houses of parliament are in most instances the judges of that law; and, like the judges of the realm, when they are deciding upon past laws, they are under the most sacred obligation to inquire and decide what the law actually is, and not what, in their will and pleasure, or even in their reason and wisdom, it ought to be. When they are declaring what is the law of parliament, their character is totally different from that with which, as legisla tors, they are invested when they are framing new laws; and they ought never to forget the admonition of that great and patriotic chief justice, Lord Holt, viz.: "that the authority of the parliament is from the law, and as it is circumscribed by law, so it may be exceeded; and if they do exceed those legal bounds and authority, their acts are wrongful, and cannot be justified any more than the acts of private men." 1 Salk. 505.] (22) [It is a most pernicious doctrine to maintain that the privileges of either separate branch of the legislature are arbitrary, because nowhere defined by any particular stated laws. Precedents and law bind each house of parliament no less than each court at Westminster. Lord Chief Justice Holt laid down the law very differently from Lord Coke. "The authority of parliament," said Lord Holt, "is from the law, and as it is circumscribed by the law, so it may be exceeded, and if they do exceed those legal bounds, and authority, their acts are wrongful and cannot be justified any more than the acts of private men." 1 Salk. 505; 2 Ld. Ray. 1114.] (23) [The privileges of domestics, lands and goods, are taken away by 10 Geo. III, c. 50.] VOL. I.-14 105 the opening of every new parliament. (24) So likewise are the other privileges, of persons, servants, lands, and goods: which are immunities as ancient as Edward the Confessor; in whose laws (2) *we find this precept," ad synodos [*165] venientibus, sive summoniti sint, sive per se quid agendum habuerint, sit summa pax:" and so too in the old Gothic constitutions "extenditur hæc pax et securitas ad quatuordecim dies convocato regni senatu." (a) This included formerly not only privilege from illegal violence, but also from legal arrests, and seizures by process from the courts of law. And still, to assault by violence a member of either house, or his menial servant, 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. VII, c. 11. Neither can any member of either house be arrested and taken into custody, unless for some indictable offence, without a breach of the privilege of parliament. (25) But all other privileges which derogate from the common law in matters of civil right are now at an end, save only as to the freedom of the member's person: which in a peer (by the privilege of peerage) is forever sacred and inviolable; and in a commoner (by the privilege of parliament) for forty days after every prorogation, and forty days before the next appointed meeting; (b) which is now in effect as long as the parliament subsists, it seldom being prorogued for more than fourscore days at a time. As to all other privileges, which obstruct the ordinary course of justice, they were restrained by the statutes 12 W. III, c, 3, 2 and 3 Ann, c. 18, and 11 Geo. II, c. 24, and are now totally abolished by statute 10 Geo. III, c. 50, which enacts, that any suit may at any time be brought against any peer or member of parliament, their servants, or any other person entitled to privilege of parliament; which shall not be impeached or delayed by pretence of any such privilege; except that the person of a member of the house of commons shall not thereby be subjected to any arrest of imprisonment. Likewise, for the benefit of commerce, it is provided by statute 4 Geo. III, c. 34, that any (z) Cap. 3. (a) Sternh. de jure Goth. 1. 3, c. 3 (b) 2 Lev. 72. (24) But the right to freedom of speech does not protect a member in publishing afterwards a speech which reflects injuriously upon individuals: Rex v. Lord Abingdon, 1 Esp. 226; Rex v. Creevey, 1 M. and S. 278; except possibly where it is published bona fide for the information of his constituents. Davidson v. Duncan, 7 El. and Bl. 233. Upon the complete exemption of legislators from liability for what they may do while in the discharge of their duty, see Coffin v. Coffin, 4 Mass. 1; Jefferson's Manual, 3; Cushing Legis, Assemb. 602; Hosmer v. Loveland, 19 Barb. 111; State v. Burnham, 9 N. H. 34. (25) [By the common law, peers of the realm of England: 6 Co. 49, a, 68, a; Hob. 61; Sty. Rep. 222; 2 Salk. 512; 2 H. Blac. 272; 3 East, 127; and peeresses, whether by birth or marriage: 6 Co. 52; Sty. Rep. 252; 1 Vent. 298; Chan. Cas. 224; are constantly privileged from arrests in civil suits, on account of their dignity, and because they are supposed to have sufficient property, by which they may be compelled to appear; which privilege is extended by the act of union with Scotland: 5 Ann. c. 8, art. 22; and see Fort. 165; 2 Str. 990; to Scotch peers and peeresses; and by the act of union with Ireland, 39 and 40 Geo. III, c, 67, art. 4; see 7 Taunt. 679; 1 Moore, 410, S. C.; to Irish peers and peeresses. And they are not liable to be attached for the non-payment of money, pursuant to an order of nisi prius, which has been made a rule of court. Ld. Falkland's case, E. 36 Geo. III, K. B; 7 Durnf. and East, 171; and see id. 448. But this privilege will not exempt them from attachments for not obeying the process of the courts: 1 Wils. 332; Say. Rep. 50 S. C.; 1 Burr. 631; nor does it extend to peeresses by marriage, if they afterward intermarry with commoners. Co. Lit. 16; 2 Inst. 50; 4 Co. 118; Dyer, 79. Where a capias issues against a peer, the court will set aside the proceedings for irregularity. 4 Taunt. 668. But it seems that the sheriff is not a trespasser for executing it. Doug. 671. However, all persons concerned in the arrest are liable to punishment by the respective houses of parliament. Fortescue, 165.] Upon the subject of exemption of legislators from arrest, see Cushing, Leg. Assemb. part 3, chap. 2, where the constitutional and statutory provisions in America are referred to. Members of the house of commons are privileged from arrest, not only during the actual sitting of parliament, but for a convenient time to enable them to come from and return to any part of the kingdom, before the first meeting and after the final dissolution of it. And this convenient time appears to be fixed at forty days. See Goudy v. Duncombe, 1 Exch. 430. As to the bankruptcy of a member of the house of commons, see the New Bankruptcy Act, 32 and 33 Vic. c. 71, § 120-124. |