writ, or within six days after, the sheriff may adjourn the court and election to some other convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place, without the consent of all the candidates: and, in all such cases, ten days' public notice must be given of the time and place of

the election.

[ *179]

And, as it is essential to the very being of parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal and strongly prohibited. (43) For Mr. Locke (c) ranks it among those breaches of trust in the executive magistrate, which, according to his notions, amount to a dissolution of the government, "if he employs the force, treasure and offices of the society, to corrupt the representatives, or openly to pre-engage the electors, and prescribe what manner of person shall be chosen. For, thus to regulate candidates and electors, and new-model the ways of election, what is it, says he, but to cut up the government by the roots, and poison the very fountain of public security?" As soon therefore as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not to return till one day after the poll is ended. Riots likewise have been frequently determined to make an election void. By vote also of the house of commons, to whom alone belongs the power of determining contested elections, no lord of parliament, or lord lieutenant of a county hath any right to interfere in the elections of commoners; and, by statute, the lord warden of the cinque ports shall not recommend any members there. If any officer of the excise, customs, stamps, *or certain other branches of the revenue, presume to intermeddle in elections, by persuading any voter or dissuading him, he forfeits 1007., and is disabled to hold any office. Thus are the electors of one branch of the legislature secured from any undue influence from either of the other two, and from all external violence and compulsion. But the greatest danger is that in which themselves co-operate, by the infamous practice of bribery and corruption. To prevent which it is enacted, that no candidate shall, after the date (usually called the teste) of the writs, or after the vacancy, give any money or entertainment to his electors, or promise to give any, either to particular persons, or to the place in general, in order to his being elected: on pain of being incapable to serve for that place in parliament. And if any money, gift, office, employment, or reward be given or promised to be given to any voter, at any time, in order to influence him to give or withhold his vote, as well he that takes as he that offers such bribe, forfeits 5007., and is for ever disabled from voting and holding any office in any corporation; unless, before conviction, he will discover some other offender of the same kind, and then he is indemnified for his own offence. (d) The first instance that occurs, of election bribery, was so early as 13 Eliz., when one, Thomas Longe, (being a simple man and of small capacity to serve in parliament,) acknowledged that he had given the returning officer and others of the borough for which he was chosen, four pounds to be returned member, and was for that premium elected. But for this offence the borough was amerced, the member was removed, and the officer fined and imprisoned. (e) But, as this

(c) On Gov. p. 2 § 222.

(d) In like manner the Julian law de ambitu inflicted fines and infamy upon all who were guilty of corruption at elections; but, if the person guilty convicted another offender, he was restored to his credit again. Ff. 48, 14, 1.

(e) 4 Inst. 23. Hale of Parl. 112. Com. Journ. 10 and 11 May, 1571.

ing any recess, cause a new writ to be issued for the election of another member in the room of one who has been declared a bankrupt, and has not superseded the fiat of bankruptcy within twelve months after it issued.]

(43) [By the ancient common law of the land, and by the declaration of rights, 1 W. and M. St. 2, c. 2. The 3d Edw. I, c. 5, is also cited, but Mr. Christian observes that it related to the election of sheriffs, coroners, &c., for parliamentary representation was then unknown. It has been decided that a wager between two electors upon the success of their respective candidates is illegal, because if permitted, it would manifestly corrupt the freedom of elections. 1 T. R. 55.]

practice hath since taken much deeper and more universal root, it hath occasioned the making of these wholesome statutes; to complete the efficacy of which, there is nothing wanting but resolution, and integrity to put them in strict execution. (44)

*Undue influence being thus (I wish the depravity of mankind would [*180] permit me to say, effectually) guarded against, the election is to be proceeded to on the day appointed; the sheriff or other returning officer first taking an oath against bribery, and for the due execution of his office. The candidates likewise, if required, must swear to their qualification; and the electors in counties to theirs; and the electors both in counties and boroughs are also compellable to take the oath of abjuration and that against bribery and corruption. And it might not be amiss, if the members elected were bound to take the latter oath, as well as the former; which in all probability would be much more effectual, than administering it only to the electors.

The election being closed, the returning officer in boroughs returns his precept to the sheriff, with the persons elected by the majority; and the sheriff returns the whole, together with the writ for the county, and the knights elected thereupon, to the clerk of the crown in chancery, before the day of meeting, if it be a new parliament, or within fourteen days after the election, if it be an occasional vacancy, and this under penalty of 500l. If the sheriff does not return such knights only as are duly elected, he forfeits, by the old statutes of Hen. VI, 1007. and the returning officer in boroughs for a like false return 407.; and they are besides liable to an action, in which double damages shall be recovered, by the latter statutes of King William: and any person bribing the returning officer shall also forfeit 300l. But the members returned by him are the sitting members, until the house of commons, upon petition, shall adjudge the return to be false and illegal. The form and manner of proceeding upon such petition are now regulated by statute 10 Geo. III, c. 16, (amended by 11 Geo. III, c. 42, and made perpetual by 14 Geo. III, c. 15,) which directs the method of choosing by lot a select committee of fifteen members, who are sworn well and truly to try the same, and a true judgment to give according to the evidence. (45) And this abstract of the proceedings at elections of knights, citizens and burgesses, concludes our inquiries into the laws and customs more peculiarly relative to the house of commons.

*VI. I proceed now, sixthly, to the method of making laws, which is [*181] 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 its speaker. The speaker of the house of lords, whose office it is to preside there, and manage the formality of business, is the lord chancellor, or keeper of the king's great seal, or any other appointed by the king's commission: and, if none be so appointed, the house of lords (it is said) may elect. The speaker of the house of commons is chosen by the house; but must be approved by the king. (46) And herein the usage

(44) [The legislature has exerted its utmost energies, especially of late years, but ineffectually, to check these dangerous and demoralizing courses. At length, in the year 1854, all existing statutes on the subject were repealed, and other provisions substituted, together with an entirely new mode of conducting elections, by an act entitled, "The Corrupt Practices and Prevention Act." This statute defines carefully and comprehensively what comprehends bribery, treating and undue influence; imposes serious penalties; totally prohibits acts formerly found to be modes of exercising corrupt influence, and strictly limits legitimate expenses, requiring them to be paid only through an officer called the election auditor, whose accounts are to be published; and finally disables a candidate, declared by an election committee guilty, by himself or his agents, of bribery, treating or undue influence, from being elected or sitting in the house of commons, for the place where the offence was committed, during the parliament then in existence.]

(45) See note 40 ante.

(46) [Sir Edward Coke, upon being elected speaker in 1592, in his address to the throne, declared, "this is only as yet a nomination, and no election, until your majesty giveth allowance and approbation." 2 Hats. 154. But the house of commons at present would scarce admit their speaker to hold such language. Till Sir Fletcher Norton was elected speaker,

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, if a lord of parliament, may. (47) In each house the act of the majority (48) binds the whole; and this majority is declared by votes openly and publicly 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 it is impossible to be practised 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. (49) 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, (50) which were entered upon the parliament rolls with the

29th Nov. 1774, every gentleman who was proposed to fill that honorable office affected great modesty, and, if elected, was almost forced into the chair, and at the same time he requested permission to plead, in another place, his excuses and inability to discharge the office, which he used to do upon being presented to the king. But Sir Fletcher Norton was the first who disregarded this ceremony both in the one house and in the other. His successors, Mr. Cornewall and Mr. Addington, requested to make excuses to the throne, but were refused by the house, though Mr. Addington, in the beginning of the present parliament, 26th Nov. 1790, followed the example of Sir Fletcher Norton, and intimated no wish to be excused. See 1 Woodd. 59. Sir John Cust was the last speaker who addressed the throne in the language of diffidence, of which the following sentence may serve as a specimen: "I can now be an humble suitor to your majesty, that you would give your faithful commons an opportunity of rectifying this the only inadvertent step which they can ever take, and be graciously pleased to direct them to present some other to your majesty, whom they may not hereafter be sorry to have chosen, nor your majesty to have approved." 6 Nov. 1761. The chancellor used to reply in a handsome speech of compliment and encouragement, but now he shortly informs the commons that his majesty approves of their speaker, who claims the ancient privileges of the commons, and then they return to their own house.]

(47) [But when the house resolves itself into a committee, the chairman regularly appointed every new parliament presides at the table, and the speaker may then speak and vote as any one of the other members for the time.]

(48) [In the house of commons the speaker never votes but when there is an equality without his casting vote, which in that case creates a majority; but the speaker of the house of lords has no casting vote, but his vote is counted with the rest of the house; and in the case of an equality, the non-contents or negative voices have the same effect and operation as if they were in fact a majority. Lords' Journ. 25 June, 1661.]

(49) This, although usual in American legislative proceedings, is not a necessity. Any member may introduce a bill, for either a public or private purpose, on leave obtained as a matter of course, or after notice given, in the manner pointed out by the rules of the house.

(50) [The commons for near two centuries continued the style of very humble petitioners. Their petitions frequently began with "your poor commons beg and pray," and concluded with "for God's sake, and as an act of charity:' -Vos poveres communes prient et supplient pur Dieu et en œuvre de charite. Rot. Parl. passim. It appears that, prior to the reign of Hen. V, it had been the practice of the kings to add and enact more than the commons petitioned for. In consequence of this there is a very memorable petition from the commons in 2 Hen. V, which states that it is the liberty and freedom of the commons that there should be no statute without their assent, considering that they have ever been as well assenters as petitioners, and therefore they pray that, for the future, there may be no additions or diminutions to their petitions. And in answer to this, the king granted that from henceforth they should be bound in no instance without their assent, saving his royal prerogative to grant and deny what he pleased of their petitions. Ruff. Pref. xv, Rot. Parl. 2 Hen. V, No. 22. It was long after its creation, or rather separation from the barons, before the house of commons was conscious of its own strength and dignity; and such was their modesty and diffidence, that they used to request the lords to send them some of their members to instruct them in their duty, "on account of the arduousness of their charge, and the feebleness of their own powers and understandings:”—pur l'arduite de lour charge, et le foeblesce de lour poiars et sens. Rot. Parl. 1 R. II, No. 4.]

king's answer thereunto subjoined; not in any settled forms of words, but [*182] *as the circumstances of the case required: (f) 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 customs, 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 anything 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 skeleton of the bill. In the house of lords, if the bill begins there, it is (when of a private nature) referred to two of the judges, to examine and report the state of the facts alleged, to see that all necessary parties consent, and to settle all points of technical propriety. (51) 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 dropped for that session; 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 [*183] the committee, the chairman reports it to the house, with such amendments as the committee have made; and then the house reconsiders the whole bill again, and the question is repeatedly put upon every clause and amendment. When the house hath agreed or disagreed to the amendments of the committee, and sometimes added new amendments of its own, the bill is then ordered to be engrossed, or written in a strong gross hand, on one or more long rolls (or presses) 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 rider. (g) 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, the title to it is then settled, which used to be a general one for all the acts passed in the session, till in the first year of Henry VIII, distinct titles were introduced for each chapter. After this, 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, upon matters of high

(f) See, among numberless other instances, the articuli cleri, 9 Edw. II.

(g) Noy. 84.

(51) [A public bill, being founded on reasons of state policy, the house, in agreeing to its second reading, accepts and affirms those reasons; but the expediency of a private bill being mainly founded upon allegations of fact, which have not yet been proved, the house, in agreeing to its second reading, affirms the principle of the bill conditionally, and subject to the proof of such allegations before the committee. May, Parl. Pract. 5th ed. 701.]

dignity or importance, by 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. [*184] But, when an act of grace or pardon is passed, it is first signed by his majesty, and then read once only in each of the houses, without any new engrossing or amendment. (h) And when both houses have done with any bill, always it is deposited in the house of peers, to wait the royal assent; except in the case of a bill of supply, which, after receiving the concurrence of the lords, is sent back to the house of commons. (i)

The royal assent 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: (52) 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 comme il est desire, be it as it is desired." If the king refuses his assent, it is in the gentle language of "le roy s'avisera, (53) the king will advise upon it." When a bill of supply is passed, it is carried up and presented to the king by the speaker of the house of commons; (k) and the royal assent is thus expressed, "le roy remercie ses loyal subjects, accept leur benevolence, et ausi le veut, the king thanks his loyal subjects, accepts their benevolence, and wills it so to be." In case of an act of grace, which originally proceeds from the crown, and has the royal assent in the first stage of it, the clerk of the parliament thus pronounces the gratitude of the subject: "les prelats, seigneurs, et commons, ence present parliament assemblees, au nom de touts vous autres subjects, remercient tres humblement votre majeste, et prient a Dieu vous [*185] donner en sante bone vie et longue; the prelates, lords, and commons, in this present parliament assembled, in the name of all your other subjects, most humbly thank your majesty, and pray to God to grant you in health and wealth long to live." (1) 2. By the statute 33 Hen. VIII, c. 21, the king may give his

(h) D'Ewes' Journ. 20, 73. Com. Journ. 17 June, 1747. (k) Rot. Parl. 9 Hen. IV, in Pryn. 4 Inst. 30, 31.

(i) Com. Journ, 24 Jul. 1660. (1) D'Ewes' Journ. 35.

(52) [Until the reign of Richard III, all the statutes are either in French or Latin, but generally in French.]

(53) [The words el roi s'avisera correspond to the phrase formerly used by courts of justice, when they required time to consider of their judgment, viz.: curia advisare vult. And there can be little doubt but originally these words implied a serious intent to take the subject under consideration, and they only became in effect a negative when the bill or petition was annulled by a dissolution, before the king communicated the result of his deliberation; for, in the rolls of parliament, the king sometimes answers. that the petition is unreasonable, and cannot be granted: sometimes he answers, that he and his council will consider of it; as in 37 Edw. III, No. 33 Quant au ceste article, il demande grand avisement, et partant, roi se ent avisera par son conseil.]

This prerogative of rejecting bills was last exercised by Queen Anne, A. D., 1707, who refused her assent to a bill for settling the militia in Scotland. May, Parl. Prac. 5th ed. 494-5, citing 18 Lord's J. 506. William III had refused his assent, A. D. 1692, to the bill for triennial parliaments. And on one occasion the prerogative of rejecting bills was exercised by Queen Elizabeth at the close of a session, to the extent of rejecting forty-eight bills, while she gave assent to twenty-four public and nineteen private bills, which had passed both houses of parliament. D'Ewes, 596.

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