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 pramunire *.

QUESTIONS.

What is the chief characteristic of all tyrannical governments? Where is the legislative and executive authority vested in the British constitntion?

In what year, and in what king's reign may the present constitution of Parliament be considered as having been first established? How is the Parliament summoned ?

Why cannot the Parliament meet spontaneously?

How often is the King obliged to call Parliament together?

What are the constituent parts of a Parliament ?

What would be the practical ill consequences of the legislative assuming to itself the functions of the executive power? How was this illustrated in the reign of Charles I.?

What is the nature of the King's power, as a part of Parliament ? How do the king, the nobility, and the people, through the Parliament, act upon one another?

What is the illustration drawn from mechanics?

How many Lords Spiritual are there?

How are they supposed to have been introduced into parliament ? How are the Irish and Scotch temporal peers elected, and how many are there of each?

What is the general idea of the representative principle in Great Britain?

What are the functions of a person chosen a member of parliament?

Can any law be passed without the consent of the King, Lords, and Commons?

* These are, civil incapacity, and perpetual imprisonment.

THE POWERS AND PRIVILEGES OF PARLIAMENT.

THE power and jurisdiction of parliament, says Sir. Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. 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 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 to be done; and therefore, some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament. 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 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, 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.

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, 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 & 8 W. III. c. 25, with regard to the house of commons; doubts having arisen from some contrary adjudications, whether or not a minor was incapacitated from sitting in that house. 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, and invocation of saints, and the sacrifice of the mass *. Aliens, unless naturalised, were likewise by the law of parliament incapable to serve therein and now it is enacted, by statute 12 & 13 W. III. c. 2, that no alien, even though he be naturalised, shall be capable of being a member of either house of parliament. And there are not only these standing incapacities; but if any person is made a peer by 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; and this by the law and custom of parliament.

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. The whole of this law and custom of parliament has its original from this one maxim, "that whatever matter arises concerning

*These provisions are dispensed with in favour of his Majesty's Roman Catholic subjects, by st. Geo. IV. c. 7 which is intituled "An Act for th Relief of his Majesty's Roman Catholic Subjects."

either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere." 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. But the maxims upon which 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.

:

The privileges of parliament are likewise very large and indefinite. And therefore when in 31 Henry VI, the house of lords propounded a 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 anywise 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." 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 parliament 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. 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. As to the first,

privilege of speech, it is declared by the statute 1 W. & 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 the opening of every new parliament. So likewise are the other privileges, which 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, is a high contempt of parliament. 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.

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 for ever 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: 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, and 3 Ann. c. 18, and 11 George 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 any 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 or imprisonment. Likewise, for the benefit of commerce, it is provided by statute 4 Geo. III. c. 33, that any trader, having privilege of parliament, may be served with legal process for any just debt to the amount of 1007., and unless he make satisfaction within two months, it shall be deemed an act of bankruptcy: and that commissions of bankrupt may be issued against such privileged traders, in like manner as against any other *.

The claim of privilege hath been usually guarded with an exception as to the case of indictable crimes; or as it hath

*This statute has ceased to be of force, but very similar provisions are contained in statute 6 Geo. IV. c. 16; and 2 W. IV. c. 39. See an account of them in Smith's Mercantile Law, p. 362.