ti^-*^*' I A TREATISE UPON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE PAUL lA MEN T. By THOMAS ERSKINE MAY, Esq. BABRISTEK AT LAW; ASSISTANT LIBRARIAN OF THE HOUSE OP COMMONS. LONDON: CHARLES KNIGHT k CO. LUDGATE-STREET. MDcccxr.iv. T i45'7. MM London: tVintcil liy James & Luke .1. Ili^nsanl near Lincoln's-lim Fields. TO THE RIGHT HONOUIIABLE CHARLES SHAW LEFEVRE, SPEAKER OF THE HOUSE OF COMMONS, &c. &c. &c. THIS TREATISE IS, AVITH THE HIGHEST RESPECT, INSCRIBED BY THE AUTHOR. [ V ] PREFACE. It is the object of the following pages to de- scribe the various functions and proceedings of Parliament in a form adapted, as well to purposes of reference, as to a methodical treatment of the subject. The well-known work of Mr. Hatsell abounds with Parliamentary learning, and, except where changes have arisen in the practice of later years, is deservedly regarded as an authority upon all the matters of which it treats. Other works have also appeared, upon particular branches of Parliamentary practice ; or with an incidental rather than direct bearing upon all of them : but no general view of the proceedings of both houses of Parliament, at the present time, has yet been published; and it is in the hope of supplying some part of this acknowledged deficiency, that the pre- sent Treatise has been written. A theme so extensive has only been confined within the limits of a single volume, by excluding A 3 VI PREFACE. or rapidly passing over such points of constitu- tional law and history as are not essential to the explanation of proceedings in Parliament ; and by preferring brief statements of the general result of precedents to a lengthened enumeration of the precedents themselves. Copious references are given, throughout the work, to the Journals of both houses, and to other original sources of infor- mation : but quotations have been restricted to resolutions and standing orders, to pointed autho- rities, and to precedents which serve to eluci- date any principle or rule of practice better than a more general statement in the text. The arrangement of the work has been designed with a view to advance from the more general to the particular and distinct proceedings of Parlia- ment, to avoid repetition, and to prevent any confusion of separate classes of proceedings : and each subject has been treated, by itself, so as to present, first, the rules or principles ; secondly, the authorities, if any be applicable ; and, thirdly, the particular precedents in illustration of the practice. As the last edition of Mr. Hatsell's work was publislied in 1818, the precedents of proceedings in tlif House of Commons have generally been PREFACE. VU selected from the Journals of the last five and twenty years, except where those of an earlier date were obviously more appropriate. But as the precedents of the House of Lords had not been collected in any previous work, no limitation has been observed in their selection. It only remains to acknowledge the kind assist- ance which has been rendered by many gentlemen, who have communicated their knowledge of the practice of Parliament, in their several official departments, with the utmost courtesy : while the Author is under peculiar obligations to Mr. Speaker, with whose encouragement the work was undertaken, and by whose valuable sugges- tions it has been incalculably improved. House of Commons, May 2d, 1844. A 4 [ ix ] CONTENTS. BOOK I. COKSTITUTION, PoWF.KS, AND PRIVILEGES OF PaHLIAMEKT. BOOK II. Practice and Proceedings in Parliament. BOOK III. The Manner of passing Private Bills. BOOK I. Constitution, Powers, and Privileges of Parliament. Chapter I. Preliminary view of the constituent parts of Parliament : '^^^' The Crown, The Lords Spiritual and Temporal, and the Knights, Citizens, and Burgesses ; Avitli incidental reference to their ancient history and constitution - 1 Chapter II. Power and Jurisdiction of Parliament collectively. Rights and Powers of each of its constituent parts - - 29 X CONTENTS. Chapter III. Page. General view of the Privileges of Parliament: Power of coininitiiient by both Houses for Breaches of Privilege. Causes of coniiuitinent cannot be inquired into by Courts of Law ; nor the prisoners admitted to bail. Acts con- strued as Breaches of Privilege. Different punishments inflicted by the two Houses 44 Chapter IV. Privilege of Freedom of Speech confirmed by the ancient law of Parliament and by statute : its nature and limits 76 Chapter V. Freedom from Arrest or Molestation : its antiquity ; limits, and mode of enforcement. Privilege of not being im- pleaded in civil actions : of not being liable to be sum- moned by subpoena or to serve on juries. Commitment of Members by Courts of Justice. Privilege of witnesses and others in attendance on Parliament - - - 83 Chapter VI. .Iiirisdiction of Courts of Law in matters of Privilege - 113 BOOK II. Practice and Puoceedixgs in Parliament. Chapter VII. Introductory remarks. Meeting of a new Parliament. Election and Royal Approbation of the Speaker of the Comuions. Oaths. Queen's Speech, and Addresses in answer. Places of Peers and Members of tlie House of ComiiionH. Attendance on the service of Parliament. Office of Speaker in both Houses. Principal Officers. Juuriials. Admission of Stranjfcrs. Prorogation - 131 CONTENTS. XI Chapter VIII. Page. Motions and Questions, Notices of Motions. Questions moved and seconded. Motions withdrawn. Questions superseded by Adjournment ; or by reading the Orders of the Day. Previous Questions. New Questions sub- stituted by Amendment. Complicated Questions. Ques- tions put - - - - - - - - -166 Chapter IX. Amendments to Questions; and Amendments to proposed Amendments - - - - - - - -180 Chapter X. ^ The same Question or Bill may not be twice oflfered in a Session - - - - - - - " -186 Chapter XI. Rules of Debate: Manner and time of speaking: Rules and orders to be observed by Members in speaking, and in attending to Debates - - - - - -191 Chapter XII. Divisions. Mode of dividing in both Houses. Proxies and Pairs. Protests. Members personally interested - 212 Chapter XIII. Committees of the whole House : General rules of pro- ceeding : Chairman : Motions and Debate : House re- sumed 224 Chapter XIV. Appointment, Constitution, Powers and Proceedings of Select Committees in both Houses - . - - 230 xii rt>NTE.\TS. C'llMTI'.K XV. rage. Witnesses : Modes of Suiiiinoiis and Examination ; Ad- ministration of Oaths : Expenses . - - . 238 ClIM'JIK XVI. Conniuinications between tlie Lords and Comnions : Mes- sages and Conferences : Joint Comnattees, and Com- mittees communicating- with eacli other _ - _ 249 CH-vrxKU X\'II. Comnmnications from the Crown to Parliainent : Their forms and character : How acknowledged : Addresses to the Crown : Messages to Members of the Royal Family ; and communications from them - - - 259 Chapter XVIII. Proceedings of Parliament in passing Public Bills ; Their several stages in both Houses. Royal Assent - - 269 ClI.M'TER XIX. Ancient mode of petitioning Parliament: Form and cha- racter of modern Petitions : Practice of both Houses in receiving them .-_.-_- 300 ClI.M'TEH XX. Accounts, Papers and Records presented to Parliament : Printing and distribution of them : Arrangement and statistical value of Parliamentary Returns - - - 309 Chapter XXI. Progressive influence of the Commons in granting Supplies, and imposing Burthens upon the People. Exclusion of tlie Lords from the right of amending Money Bills. Con- stitutional functionK of the Crown and of the Commons, in matters of Supply. Modern rules and practice in voting .Money and imposing Pecuniary Burthens. Com- mittees of .Supply nnd ^^ ays and Means - - - 316 CONTENTS. Xni Chapter XXII. J'agf Issue of Writs, and Trial of Controverted Elections by the House of Commons ------- 337 ClIAPTKR XXIII. Impeachment by the Commons ; grounds of accusation ; form of charge ; articles of impeachment ; the trial and judgment : proceedings not concluded by prorogation or dissolution; pardon not pleadable. Trial of Peers. Bills of Attainder and of Pains and Penalties - - - 374 BOOK III. The Manner ov passing Private Bills. Chapter XXIV. Distinctive character of Private Bills : preliminary view of the proceedings of Parliament in passing them - - 383 Chapter XXV. Conditions to be observed by parties before Private Bills are introduced into Parliament : Notices and deposit of plans, &c.: Estimates and subscription contracts - 387 HAPTER XXVI. Course of proceedings upon Private Bills introduced into the House of Commons ; with the rules, orders, and practice applicable to each stage of such Bills in suc- cession, and to particular classes of Bills - - - 397 Chapter XXVII. Course of Proceedings in the Lords upon Private Bills sent up from the Commons - - - - - _ 434 CONTENTS. ClIAPTEK XXV' II I. Page. Rtiles, orders, and course of proceedings in the Lords upon Private Bills brought into that House upon Petition; and proceedings of the Commons upon Private Bills brought from the Lords. Local and Personal, and Private Acts of Parliament - - 447 Chapter XXIX. Fees payable by the parties promoting or opposing Private Bills. Costs of Parliamentary Agents and others - 459 APPENDIX 461 INDEX 465 ABBREVIATIONS USED IN THE REFERENCES. Rot. Pari. — Rotiili Parliamentonini, or Rolls of Parliament, printed by the House of Lords. Lords' J. — Lords' Journals. Com. J. — Commons' Journals. Lords' S. O. No. 1, &c. — Lords' Standing Orders, as collected and pul)- lished. Com. S. O. No. 1, &c. — The Commons' published Standing Orders relating to Private Bills. 1843. Hats. — Hatsell's Precedents; edition of 1818. Hans. Pari. Hist. — Hansard's Parliamentary History. Hans. Deb. — Hansard's Parliamentary Debates. Pari. Rep. or Sess. Paper, 1843 (180); refers to the Sessional Number by which any Parliamentary Report or Paper is distinguished. The number preceding the reference invariably refers to the volume, and the figures which follow it denote the page, except where it is otherwise designated ; as in the Standing Orders of the two Houses, which are dis- tinguished by separate numbers. All other works are either named at length, or the abbreviations are so partial as to require no explanation. BOOK I. CONSTITUTION, POWERS, AND PRIVILEGES OF PARLIAMENT. CHAPTER I. PRELIMINARY VIEW OF THE CONSTITUENT PARTS OF PAR- LIAMENT : THE CROWN, THE LORDS SPIRITUAL AND TEMPORAL, AND THE KNIGHTS, CITIZENS, AND BUR- GESSES ; WITH INCIDENTAL REFERENCE TO THEIR AN- CIENT HISTORY AND CONSTITUTION. The present constitution of Parliament has been the Introductory . T • • 1 1 1 • i Remarks. growth 01 many centuries, its origin and early history, though obscured by the remoteness of the times and the imperfect records of a dark period in the annals of Europe, have been traced back to the free councils of our Saxon ancestors. The popular character of these institutions was subverted, for a time, by the Norman Conquest ; but the people of England were still Saxons by birth, in language, and in spirit, and gradually recovered their ancient share in the councils of the state. Step by step the legislature has assumed its present form and character ; and after many changes its constitution is now defined by — " The clear and written law, — the deep-trod footmarks " Of ancient custom." No historical inquiry has greater attractions than that which follows the progress of the British Constitution from the earliest times, and notes its successive changes and development ; but the immediate object of this work is to B THE CROWN. Constituent jjarts of Pcir- liuuicut. I. Tlie King or Quueii. display Parliament in its present form, and to describe its various operations under existing laws and custom. For this purpose, the history of the past will often be adverted to ; but more for the explanation of modern usage than on account of the interest of the inquiry itself. Apart from the immediate functions of Parliament, the general consti- tution of the British government is not within the design of this Treatise ; and however great the temptation may be to digress upon topics which are suggested by the pro- ceedings of Parliament, such digressions will rarely be admitted. Within these bounds an outline of each of the constituent parts of Parliament, with incidental reference to their ancient history and constitution, will properly introduce the consideration of the various attributes and proceedings of the legislature. The Imperial Parliament of the United Kingdom of Great Britain and Ireland, is composed of the King or Queen, and the three estates of the realm, viz. the Lords Spiritual, the Lords Temporal, and the Commons. These several powers collectively make laws that are binding upon the subjects of the British empire ; and, as distinct members of the supreme legislature, enjoy privileges and exercise functions peculiar to each. I. The Crown of these realms is hereditary, and the kings or queens have ever enjoyed various prerogatives, by piescription, custom, and law; which assign to them tlie chit?f place in Parliament, and the sole executive power. But as the collective Parliament is the supreme legislature, the right of succession and the prerogatives of the Crown itself, are subject to limitations and change, by the consent and uuthority of the king or queen for the time being, and the three estates of the realm in Parlia- ment assembled. To the changes that have been efi'ected, at different times, in the legal succession to the Crown, it is needless to refer, as the Revolution of 1688 is a sufficient example. The power of Parliament over the Crown is THE CROWN. 3 distinctly affirmed by the statute law, and recognised as an important principle of the constitution. All the kings and queens since the Revolution have taken Coronation an oath at their coronation, by which they have " promised and sworn to govern the people of this kingdom, and the dominions thereto belonging, according to the statutes in Parliament agreed on, and the laws and customs of the same."^ The Act 12 & 13 Will. 3, c. 2, affirms "that the Lhnitations of laws of England are the birthright of the people thereof; P'''^''°sd ivt. and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws ; and all their officers and ministers ought to serve them respectively according to the same." And the statute 6 Anne, c. 7, declares it high treason for any one to maintain and affirm by writing, printing, or preaching, " that the kings or queens of this realm, by and with the authority of Parliament, are not able to make laws and statutes of sufficient force and validity to limit and bind the Crown, and the descent, limitation, inheritance, and government thereof." Nor was this a modern principle of constitutional law estabhshed by the Revolution of 1688. If not admitted in its whole force so far back as the great charter of King John, it has been affirmed by Parliament in very ancient times. In the 40th Edw. 3, the pope had demanded homage of that monarch for the kingdom of England and land of Ireland, and the arrears of 1,000 marks a year that had been granted by King John to Innocent the 3d and his successors. The king laid these demands before his Parliament, and it is recorded that "The prelates, dukes, counts, barons, and commons, thereupon, af- ter full deliberation, answered and said with one accord, that neither the said King John, nor any other, could put himself or his kingdom, or people, in such subjection without their assent; and, as it appears by several evidences, that if this was done at all, it was done with- out their assent, and against his own oath on his coronation," they resolved to resist the demands of the pope with all their power.'^ ' 1 Gul. & Mar. c. C. ^ 2 Rot. Pari. 200. B 2 4 THE CROWN. From the words of this record it would appear, that whether tlie charter of King John submitted the royal prerogatives to Parliament or not, it was the opinion of the Parliament of Edward 3, that even King John had been bound by the same laws which subsisted in their own time. The same principle had been laid down by the most venerable authorities of the English law, before the limits of the constitution had become defined. Bracton, a judge in the reign of Henry 3d, declared that " the king must not be subject to any man; but to God and the law, because the law makes him king." ^ At a later period, the learned Fortescue, the lord chancellor of Henry 6 in his banish- ment, thus explained the king's prerogative to the king's son : " A king of England cannot, at his pleasure, make any alterations in the laws of the land, for the nature of his government is not only regal but political." " He can neither make any alteration or change in the laws of the realm without the consent of the subject, nor burthen them, against their wills, with strange imj)ositions."^ Later still, during the reign of Elizabeth, who did not suffer the royal prerogative to be impaired in her time. Sir Thomas Smyth affirmed that " the most high and absolute power of the realm of England consisteth in the Parliament;"^ and then proceeded to assign to the Crown, exactly the same place in Parliament as that acknowledged, by statute, since the Revolution. Not to multiply authorities, enough has been said to prove that the Revolution only defined the constitutional prerogatives of the king, and that the Bill of Rights^ was bnt a declaration of the ancient law of England. ' Bracton, lib. 1, c. 8. * De Laudibus, Leg. Ang. c. 9. ' De re-piiblicii Angloruni, book 2, c. 1, by Sir Thomas Smyth, knt. * " That the prcti ndrd power of suspending or dispensing with laws, or the execution of laws, without consent of Parliament, is illegal." " That levy- ing money for or to the use of the Crown, by pretence of prerogative, without grant of I'arlianicnt, for longer time or in other manner than the same is or shall be granted, is illegal." — 1st, 2d, and 4th articles of the Hill of Rights. HOUSE OF LORDS. 5 The prerogatives of the Crown, in connexion with the legislature, are of paramount importance and dignity. The le^al existence of Parliament results from the exercise of royal prerogative. As the head of the church, the Crown virtually appoints all archbishops and bishops, who form one of the three estates of the realm, and, as " lords spiritual," hold the highest rank, after princes of the blood royal, in the House of Lords. All titles of honour are the gift of the Crown, and thus the " lords temporal " also, who form the remainder of the upper house, have been created by royal prerogative, and their number may be increased at pleasure. In early times the summons of peers to attend Parliament depended entirely on the royal will ; but their hereditary titles have long since been held to confer a right to sit in Parliament. To a Queen's writ, also, even the House of Commons owe their election, as the repre- sentatives of the people. To these fundamental powers are added others of scarcely less importance, which will be noticed in their proper place. II. The Lords Spiritual and Temporal sit together and ii. The House jointly constitute the House of Lords, which is the second branch of the legislature in rank and dignity. 1. The i. Lords spi- lords spiritual are the archbishops and bishops of the Pro- "^^"'^ " testant Established Church of England and four repre- sentative bishops of the Church of Ireland. Before the Conquest the lords spiritual held a prominent place in the great Saxon councils, which they retained in the councils of the Norman kings ; but the right by which they have always held a place in Parliament, has not been agreed upon by the constitutional writers. In the Saxon times there is no doubt that they sat, as bishops, by virtue of their ecclesiastical office; but according to Selden, William the Conqueror, in the foiu'th year of his reign, first brought the bishops and abbots under the tenure by barony ;' and Blackstone, adopting the same view, states that " William ' Tit. of Hon. part 2, s. 20. B 3 6 HOUSE OF LORDS. the Conqueror thought proper to change the spiritual tenure of frank-ahuoign, or free ahns, under which the bishops held their lands under the Saxon government, into the feudal or Norman tenure by barony ; and in right of succession to those baronies, which were unalienable from their respective dignities, the bishops and abbots were allowed their seats in the House of Lords." ^ Lord Hale was of opinion that the bishops sit by usage ; and Mr. Hallam maintains that the bishops of William the Con- queror were entitled to sit in his councils by the general custom of Europe, which invited the superior ecclesiastics to such offices, and by the common law of England, which the Conquest did not overturn.'^ Another view of the question is, that before the dissolution of the monasteries, the mitred abbots had a seat in Parliament solely by virtue of their tenures as barons ; but that the bishops sat in a double capacity, as bishops and as barons.^ Their presence in Parliament, however, has been uninterrupted, whatever changes may have been effected in the nature of their tenure. There are two archbishops (of York and Canterbury) and twenty four bishops of the Church of England, who have seats in Parliament.'' To these were added four bishops of the Church of Ireland, on the union of that country with Great Britain, who sit by rotation of sessions, and represent the whole episcopal body of Ireland in Par- liament.^ Of these four lords spiritual, an archbishop of the Church of Ireland is always one. 2. Wdstem- o. The lords temporal are divided into dukes, mar- poral. * ' quesses, earls, viscounts, and barons, whose titles are of different degrees of antiquity and honour. The title of duko, though first in rank, is by no means the most an- cient in this countiy. It was a feudal title of high dignity Dukes. ' 1 f'"inm. p. I.-.C. 2 Middle Ages, vol. iil. pp. 6, 7. ^ llody's Trcati-o on Convncations, p. 12(1. * Tiie Bisliop of Sodor and Man has no scat in Parliament. ■• no .Sc 40 Geo. n, c. 07 (Act of Union, art. 4); 40 Geo. 3 (Irish), c. 20; 3i;4 Will. 4, r. 37,9. 01, r>2. HOUSE OF LORDS. in all parts of Europe, in very early times, and among the Saxons, duces (or leaders) are frequently mentioned; but the title was first conferred after the Conquest by Ed- ward 3, upon his son Edward the Black Prince, whom he created Duke of Cornwall.* Before that time the title had often been used as synonimous with that of count. Marquesses were originally lords of the marches or bor- Marquesses. ders, and derived their title from the offices held by them. In the German empire, the counts or graves of those pro- vinces which were on the frontiers had the titles of mar- chio and marggravius in Latin ; of markgraf in German, and marchese in Italian. In England similar offices and titles were anciently enjoyed without being attached to any distinct dignity in the peerage. The noblemen who governed the provinces on the borders of Wales and Scotland were called marchiones, and claimed certain pri- vileges by virtue of their office; but the earliest creation of marquess as a title of honour, was in the ninth year of Richard 2. Robert de Vere, Earl of Oxford, was then created Marquess of DubHn, for life, and the rank assigned to him in Parliament by right of this new dignity, was immediately after the dukes, and before the earls.^ In the same reign John Earl of Somerset was created Mar- quess of Dorset, but was deprived of the title by Henry 4. In the fourth year of the latter reign the Parliament prayed the king to restore this dignity, but the Earl begged to dechne its acceptance, because the name was so strange in this kingdom.' The title of Earl in England is equivalent to that of Earls. comes or count in other countries of Europe. Amongst the Saxons there were ealdormen, to whom the govern- ment of provinces was committed, but whose titles were official and not hereditary.^ That title was often used by writers indifferently with comes, on account of the simi- ' Seld. Tit. of Hon. part 2, s. 9. 29, &c. ^ lb. s. 47. " 3 Rot. Pari. 488. * Spelman, on Feuds and Tenures, p. 13. Rep. on Dignity of tl)e Peerage, 1820, p. 17. B 4 8 HOUSE OF LORDS. larity of cliaracter and dignity denoted by those names. W hen the Danes had trained ascendancy in England, tlie an- cient Danish title of eorle, which indicated a similar dignity, was gradually substituted fur that of ealdorman. At the Norman Conquest the title of eorle or earl was in universal use, and was so high a dignity that in the earliest charters of ^\ illiam the Conqueror he styles himself in Latin, "Prin- ceps Normannorum," and in Saxon, Eorle or Earl of Nor- mandy,' After the Conquest the Norman name of count distinguished the noblemen who enjoyed this dignity; from whence the shires committed to their charge have ever since been called counties.'-^ In the course of time the original title of earl was revived, but their wives and peer- esses of that rank in their own right, have always retained the French name of countesses. Between the dignities of earl and baron no rank inter- vened, in England, until the reign of Henry G ; but in France the title of viscount, as subordinate to that of count, was very ancient. The great counts of that king- dom holding large territories in feudal sovereignty, ap- pointed governors of parts of their possessions, who were called viscounts, or vicecoinites. Tiiese, either by feudal gift, or by usurpation, often obtained an inheritance in the districts confided to them, and transmitted the lands and dignity to their posterity.^ In England, the title of vis- count was first conferred upon John Beaumont, Viscount Beaumont, by Henry 6, in the eighteenth year of his reign ; and a place was assigned to him in Parliament, the council, and other assemblies, above all the barons,^ The French origin of this dignity was exemplified immediately afterwards by the grant of the viscounty of Beaumont, in France, to the same person, by King Henry, who then styled himself king of France and England. The rank and precedence of a viscount were more distinctly defined by ' S 1(1. Til. Hon. |)iiit J, s. -i. - n R. ji. LESSER BARONS. 22d year of Henry 2 (a.d. 1170), Benedict Abbas relates, that about the feast of St. Paul, the king came to North- ampton, and there held a great council concerning the sta- tutes of his realm, in the presence of the bishops, earls, and barons of his dominions, and with the advice of his knights and men. This is the first chronicle which appears to include the conniions in the national councils ; but it would be too vague to elucidate the inquiry, even if its authority were of a higher order. And again, in the 15th of King John (a.d. 1213), a writ was directed to the sheriff of each county, " to send fourdiscreet knights to confer with us concerning the affairs of our kingdom ; " but it does not appear whether they were elected by the county or picked, at pleasure, by the sheriff. ^ Mayna ciiaita Two years afterwards, the great charter of King John ot King Joiiu. threw a light upon the constitution of Parliament which no earlier record had done ; but even there the origin of the representative system is left in obscurity. It reserves to the city of London, and to all other cities, boroughs, and towns, and to the cinque ports and other ports, all their ancient liberties and free customs. But whether the sum- mons to Parliament which is there j)romised was then first instituted, or whether it was an ancient privilege con- firmed and guaranteed for the future, the words of the charter do not sufficiently explain. From this time, how- ever, may be clearly traced the existence of a Parliament similar to that which has continued to our own days. *' The main constitution of Parliament, as it now stands," says Blackstone, '■ was nitirked out so long ago as the seventeenth j'ear of King John, A. n. 1215, in tiie great charter granted by that prince, wherein he promises to summon all archbishops, bishojis, abbots, earls, and greater barons personally, and all other tenants in ciiief under the Crown by the sheriff and bailiffs, to meet at a certain jilacc, with forty days' notice, to assess aids and scutages wlien necessary." Notwithstanding the distinctness of this promise, the charters of Henry 3, omitted the engagement to summon the ' 2 Prynnc's Rc'^intfir, Ifi. KNIGHTS OF THE SHIRE. 17 tenants in cliief by the slieriff and bailiffs ; and it is doul>tful whether they were summoned or not, in the early part of that reign. But a writ of" the 38th year (a.d. 1254) is extant, which involves the principle of representation more distinctly than any previous writ or charter. It requires the sheriff" of each county to cause to come before the king's council two good and discreet knights of his county, whom the men of the county shall have chosen for this purpose, in the stead of all and each of them, to consider, along with the knights of other counties, what aid they will grant the king." ' This, however, was for a particular occasion only ; and to appear before the council is not to vote as an estate of' the realm. Nevertheless, representation of some kind then existed, and it is interesting to observe how early the people had a share in granting subsidies. Another writ in 1261 directs the sheriffs to cause knights to repair, from each county, to the king at Windsor.* At length, in the 49th Henry 3 (a.d. 1265), writs were issued to the sheriffs by Simon de Montfort, Earl of Leicester, directing them to re- turn two knights for each county, and two citizens or bur- gesses for every city and borough ; and from this time may be clearly dated the recognition of the commons, as an estate of the realm in Parliament. It is true that they were not afterwards summoned without intermission ; but there is evidence to prove that they were repeatedly assembled by Edw. 1, especially in the 11th, the 22d and 23d years of his reign.^ Passing over less prominent records of the par- ticipation of the commons in the government, the statute of the 25th Edw. 1, " De tallagio non concedendo," must not be overlooked. It was there declared that " No tallage or aid shall be taken or levied by us or our heirs in our realm, without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land." This statute acknowledges the right of the commons to ' 2 Prynne's Register, p. 23. ^ II). 27. ^ See Tabic of Writs, Rep. Diy. Peerage, 481). C 18 LORDS AND COMMONS tax themselves ; and a few years later a general power of legislation was also recoL^nised as inherent in them. A sta- tute passed in the 15th Edw. 2 (1322), which declares that " The matters to be established for the estate of the king and of his heirs, and for the estate of the reahn and of the people, should be treated, accorded, and established in Parliament, by the king and by the assent of the prelates, earls, and barons, and the com- monalty of the realm, according as had been before accustomed^' In reference to this statute Mr. Hallam justly observes, " that it not only establishes by a legislative declaration the present constitution of Parliament; but recognises it as already standing upon a custom of some length of time." ' Lords and Com- So far the constituent parts of Parliament may be satlnTie'"'* ^ traced ; and the three estates of the realm originally sat chamber. together in one chamber. When the lesser barons began to secede from personal attendance, as a body, and to send representatives, they continued to sit with the greater , barons as before : but when they were joined by the citizens and burgesses, who, by reason of their order, had no claim to sit with the barons, it is natural that the two classes of representatives should have consulted together, although they continued to sit in the same chamber as the lords. The ancient treatise, " De modo tenendi Parliamen- tum," if of unquestioned authority, would be conclusive of the fact tliat the three estates ordinarily sat together ; but that when any difficult and doubtful case of peace or war arose, each estate sat separately, by direction of the king. But this work can claim no higher antiquity than the reign of Richard 2, and its authority is only useful so far as it may be evidence of tradition, believed and relied on at tlr.it period. Misled by its supposed authenticity, Sir Edward Coke and Elsynge entertained no doubt of the fact as there stated ; and the former alleged that he had seen a record of the .30th Henry 1 (1130), of the degrees and seats of the lords and commons as one body ; and that the separation took place at the desire of the commons.'^ ' 1 (\)iist. Hist. II. .'i. ' 13 IIow.-ll's 8t. Trials, 1130. IN ONE CHAMBER. 19 The union of the two Houses is sometimes deduced from the supposed absence of a speaker of the commons in early times ; but Sir Edward Coke is in error when he infers that the commons liad no speaker so late as the 28th of Edw. l;i for in the 44th of Henry 3, Peter de Montfort signed and sealed an answer of the Parliament to Pope Alexander, after the lords, " vice totius com- munitatis."^ Nor can any decided opinion be formed from the fact of speakers of the commons not having been mentioned in earlier times; for if they consulted apart from the lords, a speaker would have been as necessary to preside over their deliberations, as when a more com- plete separation ensued. It appears from several entries in the rolls of Parliament in the early part of the reign of Edward 3, that after the cause of summons had been declared by the king to the three estates collectively; the prelates with the clergy con- sulted by themselves; the earls and barons by themselves, and the commons by themselves ; and that they all de- livered their joint answer to the king."' The inquiry, however, is of little moment, for whether the commons sat with the lords in a distinct part of the same chamber, or in separate houses as at present, it can scarcely be contended that, at any time after the admis- sion of the citizens and burgesses, the commons intermixed with the lords, in their votes, as one assembly. Their chief business was the voting of subsidies, and the bishops granted one subsidy, the lords temporal another, and the commons again, a separate subsidy for themselves. The commons could not have had a voice in the grants of the other estates; and although the authority of their name was constantly used in the sanction of Acts of Parliament, they ordinarily appeared as petitioners. In that character it is not conceivable that they could have voted with the lords ; and it is well known that down to the reign of ' 4th Inst. 2. ^ Elsynge, 155. =* Rot. Pari. 5 & G Edw. 3. 4 Inst. 2. Els>-nge, 102. C 2 20 WHEN SEPARATED, Henry (>, no laws were actually written and enacted until after the Parliament. When sopa- Various dates have been assigned fur the formal separa- '""^"'' tion of the two houses, some as early as the 49th Henry 3,* and others so late as the 17th Edward 3 ;"^ but as it is ad- mitted that they often sat apart for deliberation ; particular instances in which they met in difterent places, will not determine whether their separation, at those times, was temporary or permanent. When the commons deliberated apart, they sat in the chapter-house of the abbot of West- minster, and they continued their sittings in that place, after their final separation.^ Their practical Whenever this separation may have been effected, it uiHoii at pre- produced but little practical change in the uninterrupted custom of Parliament. The causes of summons are still declared by the Crown to the lords and commons as- sembled in one house ; the two houses deliberate in sepa- rate chambers, but under one roof; they communicate with each other by message and conference ; they agree in resolutions and in making laws, and their joint determi- nation is submitted for the sanction of the Crown. They are separated, indeed, but in legislation they are practi- cally one assembly, as much as if they sat in one chamber, and in the presence of each other, communicated their separate votes. Niinihcr of tlie To return to the commons, without reference to their ditfVreii" times Political influence, or the manner of their sitting; it has been seen that knights of the shire, or representa- tives of counties ; citizens, or representatives of cities ; and burgesses, or representatives of boroughs, were dis- tinctly sunmioned to attend Parliament in the 49th year of Henry .'3. What the number was at that time does not aj)pear, but it Juis since varied greatly at different periods. In addition to those boroughs which appear from the first to have n'tiirncd biugesses to Parliament, many others ' Per Lord EUeiihorougli, in Burdett i'. Abbot. • '2 Carte's Hist. 4ul. ' lilsyngc, 104. REPRESENTATION. 21 had tliat privilege conferred upon them hy cliarter, or by statute in succeeding reigns ; while some were discharged from what they considered a heavy burthen, — the expense of maintaining their members. In the time of Edward 3, 45. a day were allowed to a knight of the shire, and 2 s. to Wages of mem- a citizen or burgess ;^ and this charge was, in the case of poor and small communities, too great an evil to be com- pensated by the possible benefit of representation. In the reign of Henry 6, there were not more than 300 members of the House of Commons. The legislature added 27 for Wales ^ and four for the county and city of Chester,"* in the reign of Henry 8 ; and four for the county and city of Durham in the reign of Charles 2;'' while 180 new mem- bers were added by royal charter between the reigns of Henry 8 and Charles 2.^ Forty-five members were assigned to Scotland, as her Uuion of p •i-r>--iT-ki- Scotland and proportion or members m the iiritish Farhament, on the Ireland, union of that kingdom with England;" and 100 to Ireland at the commencement of the present century, on incor- porating her parliament with that of the United Kingdom. These successive additions brought the number to 658, which, notwithstanding the alterations effected in the dis- tribution of the elective franchise by the Reform Acts in 1832, remains the same to the present day. To explain fully these alterations would far exceed the Representiitives as established by the Beform » 4 Inst, 16. == 27 lien. 8, c. 26. 3 34 jjgjj_ g^ ^ J3 ^^^ts. * 25 Car. 2, c. 9. * Christian's Notes to Blackstone. ^ The election of representatives by the freeliolders in Scotland had been recognised by the statute law so far back as the reign of James 1. By Act 1425, c. 52, all freeholders are required to give personal attendance in Par- liament, and not by a procurator; from which it is evident that rejiresenta- tion was then the custom. Nor was it possible to restrain it by law, for two years afterwards it was authorised, and the constitution of the House of Commons defined. By Act 1427, c. 102, it was declared, " that the small barons and free tenants need not come to parliaments ; provided that, at the head court of every sheriffdom, two or more wise men be chosen, according to the extent of the shire, who shall have power to hear, treat, and finally to determine all causes laid before Parliament; and to chuse a speaker, who shall propone all and sundry needs and causes pertaining to the commons in Parliament." c 3 22 REFORM ACTS. limits of an introduction, and is not within the design of this work ; but a brief outhne of them cannot be altogether omitted. For England The object of the EnsfUsh Act, as stated in the preamble, au.l Walts. ■^ ,. ° , , , , .,,•!. was to correct divers abuses that had long prevailed m the choice of members ; to deprive many inconsiderable places of the right of returning members ; to grant such privilege to large, populous, and wealthy towns; to increase the number of knights of the shire ; to extend the elective franchise to many of his majesty's subjects who have not heretofore enjoyed the same, and to diminish the expense of elections. To effect these changes, 56 boroughs in England and Wales were entirely disfranchised, and 30 others, which had previously returned two members, were entitled to send only one; 22 new boroughs were created, each to return two ; and 20 more, to each of which one only was given. Several small boroughs in Wales were united for the purpose of contributing to return a member. The result of these and other local arrangements, which it is not necessary to describe, is as follows : — The city of London having the privilege of returning four members ; the Universities of Oxford and Cambridge, and 133 cities and boroughs, returning each two members ; and 67 bo- roughs, returning each one member, jointly contribute 341 citizens and burgesses altogether for England and Wales.' Several of the counties were divided into electoral districts or divisions, by which the number of knights of the shire was increased. The county of York has two members for each of the three ridings _ _ _ - G 26 counties have - 4 members each - 104 7 „ - - 3 „ - -" 21 „ - - 2 „ - - 18 10 „ - - 1 „ - - 10 159 ' The iiicmlM'rs for Hic two iiiiivcrsitics are Jlcnomlnated "burgesses," and tlic rcprcscutativus of flie Cimjuc I'orts arc styled barons. ELECTIVE FRANCHISE. 23 The number of members for Scotland was increased by Tor Scotland, the Scotch Reform Act from 45 to 53 ; 30 of wliom are commissioners of shires, and 23 commissioners of burghs, representing towns, burghs, or districts of small burghs. By the Irish Reform Act the number of representatives Ami Ireland, of that country in the Imperial Parliament was increased from 100 to 105 ; 64 being for counties, 39 for cities and boroughs, and two for the University of Dublin. The following is a statement of the entire representation of the three kingdoms now composing the iTouse of Commons : England and Wales. 159 knights of shires. 341 citizens and burgesses. Total - 500 Scotland. 30 commissioners of shires. 23 commissioners of burghs. Total - 53 Ireland. 64 knights of shires. 41 citizens and burgesses. Total - 105 Total of the United Kingdom, 658. The classes of persons by whom these representatives Constituency are elected may be described, generally, in few words, if coun'ues! ' the legal questions connected with the franchise, which are both numerous and intricate, be avoided. To begin with the English counties. Before the 8th of Henry 6 all freeholders had a right to vote (or, as is afHrmed by some, all freemen); but by a statute passed in that year (c. 7) the right was limited to " people dweUing and resi- dent in the same counties, whereof every one of them shall c 4 24 ELECTIVE FRANCHISE. Of cities and boroughs. RoKistration. have free land or tenement to the vahie of 40 s. by the year, at the least, above all charges." By the Reform Act every person, being of full age, and not subject to any legal incapacity, who, at the time of the ])Hssing of the Act, was seised for his own life, or the life of another, or for any lives whatever, of a 40 5. freehold; or who may be seised subsequently to the passing of the Act, provided he be in actual and bond fide occupation ; or who may come into such freehold estate by marriage, marriage settlement, devise, or promotion to any benefice or office, is still en- titled to vote as a freeholder ; but any person not included in these classes acquiring a freehold subsequently to the Act, is only entitled when it shall be " to him of the clear yearly value of not less than 10/. above all rents and charges payable out of, or in respect of the same." Copy- holders having an estate of 10 Z. a year; leaseholders of land of that value whose leases were originally granted for 60 years ; leaseholders of 50/., with 20 years' leases; and tenants at will occupying lands or tenements paying a rent of not less than 50 1, a year, hud the right of voting conferred by the Reform Act. In cities and boroughs the right of voting formerly varied, according to the ancient custom in each. With certain modifications many of these ancient rights were retained by the Reform Act, as that of freemen, and other corpo- rate qualifications; and the occupiers of houses of the clear yearly value of 10/. were added to the old constituencies. From whatever right these various classes of persons claim to vote, either for counties or for cities and boroughs, it is necessary that they shall be registered in lists pre- pared by the overseers of each parish ; and on certain days courts are held, by barristers appointed l:)y the judges for that j)urj)ose, to revise these lists ; when objections may be iiiiidc 1() any name inserted by the overseers, and if licM to he sufficient, the name is struck oflf the list. In orfliuury cases the claimant will then have no riuht to vote ELECTIVE FRANCHISE. 25 at any ensuing election until he shall have succeeded, at subsequent registrations, in establishing his claim : but on points of law there is an appeal to the Court of Connnon Pleas from the decisions of revising barristers;^ and the register is corrected in accordance with the judgment of that court. The Scotch Reform Act^ reserved the rights of all per- in Scotland. sons then on the roll of freeholders of any shire, or who were entitled to be put upon it, and extended the franchise to all owners of property of the clear yearly value of 10/., and to certain classes of leaseholders. In cities, towns, and burghs, the Act substituted a lOZ. household franchise for the system of electing members by the town councils, which Imd previously existed. The lists of claimants are made up in shires by the schoolmasters of each parish, and in burghs by the tow n clerks ; and the claims and objections are heard and determined by the sheriffs. In Ireland the electors for counties, as settled by the in Ireland. Reform Act for that country,^ consist of 60 Z. freeholders; 20 1, and 10 /. freeholders and leaseholders, and rentchargers. In cities and counties of towns, in addition to the county constituencies, there are 40 5. freeholders, 10/. leaseholders, and freemen. In boroughs there are freeholders, freemen, 10/. householders, and a few 5 /. householders, whose rights existed before the passing of the Act. Claims and objec- tions are determined by the assistant barristers at special sessions. It has not been attempted to explain, in detail, all the Qualification of distinctions of the elective franchise ; neither is it proposed to state all the grounds upon which persons may be dis- qualified from voting. Aliens, persons under 21 years of age, of unsound mind, in receipt of parochial relief, or convicted of certain offences, are incapable of voting. Many officers, also, who are concerned in the collection of the revenue are disqualified. ' See 2 & 3 Will. 4, c. 4o, and G &. 7 Vict. c. 18. * 2 & 3 Will. 4, c. U5. 3 2 ic 3 Will. 4, c. 88. 26 QUALIFICATION OF MEMBERS, Property quali- To be eligible as a member for any place in England or members! Ireland, a person must possess the property qualification required by the Act 1 & 2 Vict. c. 48 ; viz., to be a knight of" the shire, he must be entitled, for his own use and benefit, to real or personal property, or both together, to the amount of 600 Z, a year; and to be a citizen or burgess, he must be entitled to one-half the amount of that qualifi- cation. Before the passing of that Act, a freehold pro- perty in land to the amount of 600/. was requisite to qualify persons to serve as knights of shires, and 300/. to enable them to sit as citizens and burgesses. Members for the Universities of Oxford and Cambridge, and Trinity College, Dublin, require no such qualification ; and the eldest sons or heirs apparent of peers and lords of Parliament, or of persons qualified to be knights of the shire, are by law entitled to serve, without reference to the amount of their property. In Scotland no property qualification has ever been established, other qualifica- To enable persons to sit in Parliament, there are other rui'iTific'atio'iiT requisites besides property. Formerly it was necessary that the member chosen should himself be one of the body represented. The law, however, was constantly dis- Aliens. regarded, and in 1774 was repealed. An alien is not eligible : the Act 12 & 13 Will. 3 declares that " no per- son born out of the kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen, except such as arc born of English parents), shall be capable to be of the privy council or a member of either House of Parliament." The 1st Geo. 1, stat. 2, c. 4, in order to enforce more strongly the provisions of the Act of William, enacts that " No person sliall hereafter be naturalized, unless in tlie Bill oxliiljitcd fur tluit ])iirposo, there be a clause or j)articular words inserted, to declare tliat such person is not thereby enabled to be a member of either House of Parliament;" but as no clause of this nature can l>iiifl anv future Par- DISQUALIFICATIONS OF MEMBERS. 27 liament, it has been customary to repeal it in particular cases by a previous Act, and then to pass the Act for naturalization without any restriction ; as was done in respect to Prince Leopold in 1816, and Prince Albert in ia40. A member must be of age : but before the 7 &; 8 Will. 3, Minors. c. 25, which declared the law, it was not unusual for minors to sit and vote. On the l(3th of December 1690, on the hearing of a controverted election, Mr. Trenchard was admitted by his counsel to be a minor ; but, not- withstanding, upon a division he was declared to be duly elected.' Mental imbecility is a disqualification ; and should a Mental imbe- member, who was sane at the time of his election, after- wards become a lunatic, his seat may be avoided, as in the case of Grampound in 15GG.* Enghsh peers are in- Peers and eligible to the House of 'Commons, as having a seat in ^^ ^^^' the upper house ; and Scotch peers, as being represented there : but Irish peers, unless elected as one of the repre- sentative peers of Ireland, may sit for any place in Great Britain. The English, Scotch, and Irish judges (with the exception of the Master of the Rolls in England) are dis- qualified,^ together with the holders of various offices, Offices. particularly excluded by statute. A large class of offices which incapacitate the holders for Parliament are new offices, or places of profit under the Crown, created since the 25th of October 1705, as defined by the 6th of Anne, c. 7. All clergymen are now ineligible; but this was a doubtful Clergy. point until the 41st Geo. 3, c. 63, which arose out of Mr. HorneTooke's election, declared that" no person having been ordained to the office of priest or deacon, or being a minis- ter of the Church of Scotland, is capable of being elected ;" ' 2 Hats. Prec. 9; 10 Com. J. 508. 2 D'Ewes, 1 2fi ; Rogers, 57. 3 1 Com. J, 257 ; 7 Geo. 2, c. IC ; 1 & 2 Geo. 4, c. 44. 28 DISQUALIFICATION OF MEAIBERS. and that if he should sit or vote, he is liable to forfeit 500 1. for each day, to any one who may sue for it. The Roman- catholic clergy are also excluded by 10 Geo. 4, c. 7, s. 9. Contractors. Government contractors, being supposed to be liable to the influence of their employers, are disqualified from serving in Parliament. The Act 22 Geo. 3, c. 45, declares that any person who shall, directly or indirectly, himself, or by any one in trust for him, undertake any contract with a government department, shall be incapable of being elected, or of sitting or voting during the time he shall hold such contract, or any share thereof, or any benefit or emolument arising from the same : but the Act does not affect incorporated trading comj)anies, contracting in their corporate capacity. The penalties for violations of the Act are peculiarly severe : a contractor sitting or voting is liable to forfeit 500 1, for every day on which he may sit or vote, to any person w^ho may sue for the same ; and every person against w^hom this penalty shall be re- covered, is incapable of holding any contract. The Act goes still further (s. 10), and even imposes a penalty of 600 1, upon any person who admits a member of the House of Commons to a share of a contract. Bankrupts. ]3y t]^g 50 Geo. 3, c. 144, whenever a member shall be found and declared a bankrupt, he shall be for 12 months incapable of sitting and voting, unless the commission be superseded, or the creditors paid or satisfied to the full amount of their debts. At the expiration of 12 months the commissioners are required to certify the bankruptcy to the speaker, and the election of the member is void. In this Act there is no penalty for a bankrupt sitting and voting : and as no official notice of his bankruptcy is re- quired to be given to the speaker for 12 months, it seems that he might sit with im])unity in the mean time, unless petitioned against. These are the chief but not the only grounds of dis- qualification for sitting in the House of Connnons. Many POWER OF PARLIAMENT. 29 others will be found collected in the various works upon election law, where those also which have been touched upon, in this place, are more fully detailed.^ To these explanations concerning the persons of whom Parliament is composed, it is not necessary to add any particidars as to the mode of election ; farther than that the elections are held by the sheriffs or other returning officers, in obedience to a queen's writ out of Chancery, and are determined by the majority of registered electors. CHAPTER II. POWER AND JURISDICTION OF PARLIAMENT COLLECTIVELY. RIGHTS AND POWERS OF EACH OF ITS CONSTITUENT PARTS. The legislative authority of Parliament extends over the Legislative United Kingdom, and all its colonies and foreion posses- ^^'*''?'''*y ^J sions; and there are no other limits to its power of making collectively. laws for the whole empire than those which are incident to all sovereign authority — the willingness of the people to obey, or their power to resist. Unlike the legislatures of many other countries, it is bound by no fundamental charter or constitution ; but has itself the sole constitu- tional right of establishing and altering the laws and government of the empire. In the ordinary course of government. Parliament does not legislate directly for the colonies. For some, the queen in council legislates, while others have legislatures of their own, which propound laws for their internal go- vernment, subject to the approval of the queen in council; but these may afterwards be repealed or amended by statutes of the Imperial Parliament ; for their legislatures ' Rogers, Shepherd, Stephens, Montagu i: Nealc, Wordsworth, &e. 30 POWER AND JURISDICTION and their laws are both subordinate to the supreme power of tlie mother country. For example, the constitution of Lower Canada was suspended in 1838; and a provisional government, with legislative functions and great execu- tive powers, was established by the British Parliament. Slavery, also, was abolished by an Act of Parliament in 1833 throughout all the British possessions, whether governed by local legislatures or not ; but certain measures for cariying into effect the intentions of Parliament were left for sub- sequent enactment by the local bodies, or by the queen in council. At another time, the house of assembly of Jamaica, the most ancient of our colonial legislatures, had neglected to pass an effectual law for the regulation of prisons, which became necessary upon the emancipation of the negroes ; when Parliament immediately interposed and passed a statute' for that purpose. The assembly were indignant at the interference of the mother country, and neglected their functions ; upon which an Act"'^ was passed by the Imperial Parliament, that would have suspended the constitution of Jamaica unless within a given time they had resumed them. The vast territories of British India are subject to the anomalous government of the East India Company ; whose power, however, is founded upon statute, and who are controlled by ministers responsible to Par- liament. The power of imposing taxes upon colonies for the sup- port of the parent state, though not now enforced, was exercised by Parliament in the case of the provinces of North America ; and, as is but too well known, was the immediate occasion of the severance of that great country from our own. But whatever may be urged against colonial taxation on grounds of justice or expediency, the legal right of Parliament to impose taxes upon all persons within the British dominions, is unquestionable. There are some subjects upon which Parliament, in ' 1 & 2 Vict. c. 07. « 2 & 3 Vict. c. 26. Parliament. Summons. OF PARLIAMENT. 31 familiar language, is said to have no right to legislate ; but the constitution has assigned no limits to its authority. Many laws may be unjust, and contrary to sound prin- ciples of government ; but Parliament is not controlled in its discretion, and when it errs, its errors can only be cor- rected by itself. To adopt the words of Sir Edward Coke, the power of Parliament " is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds." ^ This being the authority of Parliament collectively, the laws and usage of the constitution have assigned peculiar powers, rights, and privileges to each of its branches, in connexion with their joint legislative functions. It is by the act of the Crown alone that Parliament can Prerogatives of be assembled. The only instances in which the lords and reference to the commons have met by their own authority, were, pre- viously to the restoration of King Charles 2, and at the Revolution in 1688: but as those cases arose in times of extraordinary emergency, when the constitution was sus- pended, they serve only to confirm the general law and the prerogative of the Crown. The first act of Charles the Second's reign declared the lords and commons to be the two Houses of Parliament, notwithstanding the irregTilar manner in which they had been assembled, and all their acts were confirmed by the succeeding Parliament summoned by the king ; which however qualified the confirmation of them, by declaring that " the manner of the assembling, enforced by the diffi- culties and exigencies which then lay upon the nation, is not to be drawn into example." In the same manner the first act of the reign of William &; Mary declared the convention of lords and commons to be the two Houses of Parliament, as if they had been summoned according to the usual form ; and the succeeding Parliament recog- nised the legality of their acts. ' 4 Inst. 3G. 32 POWER AND JURISDICTION Annual nieet- iu'^ of Parlia- lucnt. But although tlie q\ieen may determine tlio period for calHnir Parliaments, her prerooative is restrained within certain hmits ; as she is bound by statutes^ to issue writs within three years after the determination of a Parha- ment; while the practice of providing money for the public service by annual enactments, renders it compulsory upon her to meet Parliament every year. The annual meeting of ParUament, now placed be- yond the power of the Crown by a system of finance rather than by distinct enactment, has, in fact, been the law of England from very early times. By the statute 4th Edw. 3, c. 14, " it is accorded that Parliament shall be holden every year once, [and] [or] more often if need be."^ And again in the 3Gth Edw. 3, c. 10, it was granted " for redress of divers mischiefs and grievances which daily happen [a Parliament shall be holden] or be the Parliament holden every year, as another time was or- dained by statute."^ It is well known that by extending the words " if need be," to the whole sentence instead of to the last part only, to which they are obviously limited, the kings of England constantly disregarded these laws. It is impossible, how- ever, for any words to be more distinct than those of the 36th Edw. 3, and it is plain from many records that they were rightly understood at the time. In the 50th Edw. 3, the commons jjetitioned the king to establish, by statute, that a Parliament should be held each year ; to which the king replied : "In regard to a Parliament each year, there are statutes and ordinances made, which should be duly maintained and kej)t."'' So also to a similar petition in the 1st Richard 2, it was answered, " So far as relates to the holding of Parliament each year, let the statutes there- upon be kej)t and observed ; and as for the j)lace of meet- ' in Chas. 2, c. 1, and C, Will, k Mary, c. 2. ' Uocord Coinin. Statutes of the llouliu. 3 Il.id. ♦ 2 Hot. Pari. Oar^. OF PARLIAMENT. 33 ing, the king will therein do his pleasure."^ And in the following year the king declared that he had summoned Parliament, because at the prayer of the lords and com- mons, it had been ordained and agreed that Parliament should be held each year.^ In the ])reamble of the Act 16 Charles 1, c. 1, it was also distinctly affirmed, that " by the laws and statutes of this realm, Parliaments ought to be holden at least once every year for the redress of grievances, but the appointment of the time and place of the holding thereof hath always belonged, as it ought, to his majesty and his royal progenitors."^ Yet by the 16th Charles 2, a recognition of these ancient laws was withheld : for the Act of Charles 1 was repealed as "derogatory of his majesty's just rights and prerogative ;" and the statutes of Edw. 3 were incorrectly construed to signify no more than that " Parliaments are to be held very often." The Parliament is summoned by the queen's writ or Summons. letter issued out of chancery, by advice of the privy council. By the 7 & 8 Will. 3, c. 25, it is required that there shall be 40 days "* between the teste and the return of the writ of summons ; but since the union with Scotland, it has been the invariable custom to extend this period to 50 days.^ The wa-it of summons has always named the day and place of meeting, without which the requisition to meet would be imperfect and nugatory. There is one contingency upon which the Parliament Demise of the may meet without summons, under the authority of an Act of Parliament. It was provided by the 6 Anne, c. 7, that, " in case there should be no Parliament in beino- ' 3 Rot. Pari. 23. • lb. p. 32. ^ " Act for preventing of inconvenience happening from long intermission of Parliaments." ■* Forty days were assigned for the period of the summons by the great charter of King John, in which are tliese words : " Faciemus summoneri . . . • ad certum diem, scilicet ad terminum quadraginta dieum ad nunu», et ad certum diem." ' See 22 Art. f Union, oth Anue, c. 8. 2 Hats. 290. D luons. 34 POWER OF PARLIAMENT. at the time of the demise of the Crown, then the last pre- ceding ParHament should immediately convene and sit at Westminster, as if the said Parliament had never been dissolved." By the 37 Geo. 3, c. 127, a Parliament so revived would only continue in existence for six months, if not dissolved in the meantime. Causes of sum- As the queen appoints the time and place of meeting, so also at the commencement of every session, she declares to both houses the cause of summons, by a speech de- livered to them in the House of Lords by herself in person, or by commissioners appointed by her. Until she has done this, neither house can proceed with any business : but the causes of summons as declared from the throne, do not bind Parliament to consider them alone, nor to proceed at once to the consideration of any of them. After the speech, any business may be commenced ; and both houses,^ in order to assert their right to act without reference to any authority but their own, invariably read a bill a first time, ^ro/or/wa, before they take the speech into consideration. Other business may also be done at the same time. In the commons new writs are issued for places which have become vacant during a recess ; returns are ordered, and even addresses are presented on matters unconnected with the speech. In 1840 a question of privilege, arising out of the action of Stockdale against the printers of the house, was entertained before any notice was taken of her majesty's speech. It may here be incidentally remarked, that the Crow^n has also an important privilege in regard to the delibera- tions of both houses. The speaker of the lords is the lord high chancellor or lord keeper of the great seal, an officer more closely connected with the Crown than any other in the state ; and even tlie speaker of the commons, though elected by them, is submitted to the approval of the Crown. Parliament, it has been seen, can only commence its ' This is done in the lords ia couipliance witli a standing order, and in the commons, by usage. PROROGATION AND ADJOURNMENT. 35 deliberations at the time appointed by the queen ; neither Prorogitiou and iidjouni- can it continue tliein any longer than she pleases, fehe ment. may prorogue Parliament by having her command signi- fied, in her presence, by the lord chancellor or speaker of" the House of Lords to both houses ; or by writ under the great seal, or by commission. The effect of a prorogation is at once to suspend all business until Parliament shall be summoned again. Not only are the sittings of Par- liament at an end, but all proceedings pending at the time, except impeachments by the commons, are quashed. A bill must be renewed after a pi'orogation, as if it had never been introduced, though the prorogation be for no more than a day. William the 3d prorogued Parliament from the 21st of October 1689, to the 23d, in order to renew the Bill of Rights, concerning which a difference had arisen between the two houses that was fatal to its pro- gress. As it is a rule that a bill cannot be passed in either house twice in the same session, a prorogation has been resorted to, in other cases, to enable a second bill to be brought in.^ When Parliament stands prorogued to a certain day, her majesty is empowered by Act 37 Geo. 3, c. 127, to issue a proclamation, giving notice of her royal intention that Parliament shall meet and be holden for the dispatch of business on any day not less than 14 days distant; and Parliament then stands prorogued to that day, notwith- standing the previous prorogation. And by another Act,^ whenever the Crown shall cause the supplementary militia to be raised and enrolled, or drawn out and embodied, when Parliament stands prorogued or adjourned for more than 14 days, the queen is required to issue a proclama- tion for the meeting of Parliament within 14 days. Adjournment is solely in the power of each house re- Adjournment. spectively. It has not been uncommon, indeed, for the pleasure of the Crown to be signified in person, by mes- sage, commission, or proclamation, that both houses should » See Chap. X. ' 42 Geo. 3, c. 90, s. 147. D 2 36 PROROGATION AND ADJOTRNMENT. adjourn. But although no instance has occurred in which either house has refused to adjourn, the communication might be disregarded. Business has frequently been trans- acted after the king's desire has been made known, and the question for adjournment has afterwards been put, in the ordinary manner, and determined after debate, amend- ment, and division.' Under these circumstances it is surprising that so many- instances of this practice should have occurred in modern times. Both houses adjourn at their own discretion, and daily exercise their right. Any interference on the part of the Crown is therefore impolitic, as it may chance to meet with opposition ; and unnecessary, as the ministers need only assign a cause for adjournment, when each house would adjourn of its own accord. The last occasion on which the pleasure of the Crown was signified was on the 1st March 1814,'^ and after the lapse of 30 years, it is probable that the practice will never be resorted to again. A power of interfering with adjournments in certain cases has been conceded to the Crown by statute. The 39 & 40 Geo. 3, c. 14, enacts that when both houses of Parliament stand adjourned for more than 14 days, the queen may issue a proclamation with the advice of the privy council, declaring that the Parliament shall meet on a day not less than 14 days from the proclamation; and the houses of Parliament then stand adjourned to the day and place declared in the proclamation ; and all the orders which may have been made by either house, and a])pointed for the original day of meeting, or any subsequent day, stand appointed for the day named in the proclamation. Dissolution. The queen may also put an end to the existence of Parliament by a dissolution. She is not, however, entirely free to define the duration of a Parliament, for after seven years it ceases to exist, under the statute of George 1, commonly known as the Septennial Act. But before the Triennial Act, in the 6th of William 6c Mary, there was no ' 2 Hats. 310, 317. ' 49 Lords' J. 747. 6'J Com. J. 132. JUDICATURE OF THE LORDS. 37 constitutional limit to the continuance of a Parliament but the will of the Crown. Parliament is usually dissolved by proclamation, after having been prorogued to a certain day. This practice, according to Hatsell, " has probably arisen from those motives that are suggested by Charles 1, in his speech in 1628, * that it should be a general maxim with kings themselves only to execute pleasing things, and to avoid appearing personally in matters that may seem harsh and .disagreeable.'" But on the 10th June 1818, the Prince Regent dissolved Parliament in person.^ In addition to these several powers of calling a Parlia- ment, appointing its meeting, directing the commencement of its proceedings, determining them for an indefinite time by prorogation, and finally of dissolving it altogether, the Crown has other parliamentary powers, which will here- after be noticed in treating of the functions of the two houses. The most distinguishing characteristic of the lords is The Lords : their judicature, of which they exercise several kinds. '^'^'' J "' "^^" They have a judicature in the trial of peers ; and another in claims of peerage and offices of honour, under references from the Crown ; and, since the union with Scotland, they have also had a judicature for controverted elections of the 10 representative peers of Scotland. But, in addition to these special cases, they have a general judicature as a supreme court of appeal from other courts of justice. This high judicial office has been retained by them as the ancient consilium regis, which, assisted by the judges, and with the assent of the king, administered justice in the early periods of English law.'^ In the 17th century they assumed a jurisdiction, in many points, which has since been abandoned. They claimed an original jurisdiction in civil cases, which was resisted by the commons, and has not been enforced for the last century and a half. ' 73 Com. J. 427. '^ Hale's Jurisdiction of the House of Lords, c. 14. D 3 38 IMPEACHMENT BY THE COMMONS. They claimed an original jurisdiction over crimes without inipeaclimcnt by the commons, but that claim was also abandoned. Their claim to an appellant jurisdiction over causes in equity, on petition to themselves without refer- ence from the Crown, was resisted by the commons ; but since 1704 they have been left in undisputed possession of it. They have, at the present time, a jurisdiction over causes brought, on writs of error, from the courts of law, and to hear appeals from courts of equity on petition ; but appeals in ecclesiastical, maritime, or prize causes, and colonial appeals, both at law and in equity, are de- termined not by them, but by the privy council.' The powers which are incident to them, as a court of record, will claim attention in other places. A valuable part of the ancient constitution of the con- silium regis has never been withdrawn from the lords, viz. the assistance of the judges, the master of the rolls, the attorney and solicitor-general, and the queen's learned counsel, being Serjeants, who are still summoned to attend the House of Lords by writs from the Crown, and for whom places are assigned on the woolsacks.^ But the o[)inion of the judges alone is now desired on points of law on which the lords wish to be informed. impcachmeuts. In passing Acts of attainder and of pains and penalties, the judicature of the entire Parliament is exercised ; and tliere is another high parliamentary judicature in which both houses also have a share. In impeachments the connnons, as the great representative inquest of the nation, fust find the crime, and then, as prosecutors, support their charge before the lords ; while the lords exercising at once the functions of a high court of justice and of ajuiy, try and adjudicate the charge preferred. Impeachment by the commons is a proceeding of great importance, involving the exercise of the highest judicial powers by Parliament ; and though in modern times it ' Harfjravc's Prrface to llak's Jurisdiftion r)f tlic Lords. " -M llcii. ^, c. 10, s. 8. Lords,' S. U. Nos. 4, b, G. 4tli lu&t. 4. RIGHT OF VOTING SUPPLIES. 39 has rarely been resorted to, in former periods of our history it was of frequent occurrence. The earliest in- stance of impeachmentljy the commons at the bar of the House of Lords, was in the reign of Edward 3 (1376). Before that time the lords appear to have tried both peers and commoners for great public offences, but not upon complaints addressed to them by the commons. During the next four reigns, cases of regular impeachment were frequent ; but no instances occurred in the reigns of Ed- ward 4, Henry 7, Henry 8, Edward G, Queen IVfary, or Queen Elizabeth. " The institution had fallen into disuse," says Mr. Hallam, " partly from the loss of that control which the commons had obtained under Richard 2, and the Lancastrian kings, and partly from the preference the Tudor princes had given to bills of attain- der or of pains and penalties, when they wished to turn the arm of Parliament against an obnoxious subject." Prosecutions also in the Star Chamber, during that time, were perpetually resorted to by the Crown for the punish- ment of state offenders. In the reign of James 1, the practice of impeachment was revived, and was used with great energy by the commons, both as an instrument of popular power and for the furtherance of public justice. Between the year 1620, when Sir Giles Montressor and Lord Bacon were impeached, and the revolution in 1688, there were about 40 cases of impeachment. In the reigns of William 3, Anne, and George 1, there were 15; and in the reign of George 2 only that of Lord Lovat,, in 1746, for high treason. The last memorable cases are those of Warren Hastings, in 1788, and Lord Melville, in 1805. A description of the proceedings of both houses, in cases of impeachment, is reserved for a separate chapter in a later part of this treatise. The most important power vested in any branch of the The Commons : . , . 1 p • • 1 , their riglit of legislature is the right of imposing taxes upon the people, voting supplies. and of voting money for the exigencies of the public service. It has been already noticed that the exercise of this right D 4 iiiiniiii^ elec- tious. 40 RIGHT OF DETERMINING ELECTIONS. by the commons, is practically a law for the annual meet- ing of Parliament for redress of grievances ; and it may also be said to give to the commons the chief authority in the state. In all countries the public purse is one of the main instruments of political power ; but, with the com- plicated relations of finance and public credit in England, the power of giving or withholding the supplies at pleasure, is one of absolute supremacy. The mode in which the commons exercise their right, and the proceedings of Parliament generally, in matters of supply, will be more conveniently explained in the second book. Rijiht of deter- Another important power peculiar to the commons is that of determinin": all matters touchino; the election of their own members, and involvino- therein the rights of the electors. Upon the latter portion of their right a memor- able contest arose between the lords and commons in 1704. Ashby, a burgess of Aylesbury, brought an action at common law against the returning officers of tliat borough, for having refused to permit him to give his vote at an election. A verdict was obtained by him, but it was moved in the Court of Queen's Bench, in arrest of judgment, "that this action did not lie ;" and in op])osition to the opinion of Lord Chief Justice Holt, judgment was entered for the de- fendant; but was afterwards reversed by the House of Lords upon a writ of error. Upon this the commons declared that " the determination of the right of election of members to serve in Parliament is the proper business of the House of Commons, which they would always be very jealous of, and this jurisdiction of theirs is uncontested ; that they exercise a great power in that matter, for they oblige the officer to alter his return according to their judgment ; and that they cannot judge of the right of election without de- termining tiie right of the electors; and if electors were at liberty to prosecute suits touching their right of giving voices in other courts, there might be ditt'erent voices in other courts, which would make confusion, and be dis- RIGHT OF DETERMINING ELECTIONS. 41 honourable to the House of Commons ; and that therefore such an action was a breach of privilege." In addition to the ordinary exercise of their jurisdiction, the commons relied upon an Act of the 7 Will. 3, c. 7, by which it had been declared that " the last determination of the House of Commons concerning the right of elections is to be pur- sued." On the other hand, it was objected that " there is a great difference between the right of the electors and the right of the elected : the one is a temporary right to a place in Parliament pro hac vice ; the other is a freehold or a franchise. Who has a right to sit in the House of Commons may be properly cognizable there; but who has a right to choose, is a matter originally established, even before there is a Parliament. A man has a right to his freehold by the common law, and the law having annexed his right of voting to his freehold, it is of the nature of his freehold, and must depend upon it. The same law that gives him his right must defend it for him, and any other power that will pretend to take away his right of voting may as well pretend to take away the freehold upon which it depends." These extracts from the report of a lords' committee, 27th March 1704, upon the conferences and other proceedings in the case of Ashby and White, give an epitome of the main arguments upon which each party in the contest relied.^ Encouraged by the decision of the House of Lords, five other burgesses of Aylesbury, now familiarly known as " the Aylesbury men," commenced actions against the constables of their borough, and were committed to New- gate by the House of Commons for a contempt of their jurisdiction. They endeavoured to obtain their discharge on writs of habeas corpus, but did not succeed. The com- mons declared their counsel, agents, and solicitors guilty of a breach of privilege, and committed them also. Reso- ' See all the proceedings collected, in App. to 3d vol. of Ilatsell's Pre- cedents. The whole of this report, together with another of the 13th March, may be read with interest. 43 EXPULSION OF MEMBERS, lutions condemning these proceedings were passed by the lords ; conferences were held, and addresses presented to the queen. At length the queen came down and prorogued Parliament, and thus put an end to the contest, and to the imprisonment of the Aylesbury men and their counsel. The question which was agitated at that time has never since arisen. The commons have continued to exercise the sole right of determining whether electors have had the right to vote, while inquiring into the conflicting claims of candidates for seats in Parliament, and specific modes for trying the light of election by the house have been pre- scribed by statutes, and its determination declared to be " final and conclusive in all subsequent elections, and to all intents and purposes whatsoever." ' So complete is the jurisdiction of the commons in mat- ters of election, that, although all writs are issued out of chancery, every vacancy after a general election is supplied by their authority. The speaker is empowered to issue warrants to the clerk of the crown to make out new writs ; and when it has been determined that a return should be amended, the clerk of the crown is ordered to attend the house, and amend it accordingly. During the sitting of the house, vacancies are supplied by warrants issued by tlie speaker, by order of the house ; and during a recess, either by prorogation or adjournment, he is empowered to issue warrants, in certain cases, without an order.- Expuision of But, notwithstanding their extensive jurisdiction in re- gard to elections, the commons have no control over the eligibility of candidates, except in the administration of the laws which define their qualifications. John Wilkes was expelled, in 1764, for being the author of a seditious libel. In the next Parliament (3d February 17G9) he was ao-ain expelled for another libel ; a new writ was ordered for the county of Middlesex, which he represented, and he was re-elected without a contest ; upon which it was resolved, on the 17th of February, " that, having been in this session * Geo. 4, c. '2-2, s. 54 ; 4 & 5 Vict. c. 58, s. 78. ^ 24 Geo. 3, scss. 2, c. 2G. EXPULSION OF MEMBERS. 43 of Parliament expelled this house, he was and is incapable of being elected a member to serve in this present Par- liament." The election was declared void, but Mr. Wilkes Avas again elected, and his election was once more declared void, and another writ issued. A new expedient was now tried : Mr. Luttrell, then a member, accepted the Chiltern Hundreds, and stood against Mr. Wilkes at the election ; and, being defeated, petitioned the house against the re- turn of his opponent. The house resolved that, although a majority of the electors had voted for Mr. Wilkes, Mr. l.uttrell ought to have been returned, and they amended the return accordingly. Against this proceeding the elec- tors of Middlesex presented a petition, without effect, as the house declared that Mr. Luttrell was duly elected. The whole of these proceedings were, at the time, severely condemned by public opinion, and on the 3d of May 1782, the resolution of the 17th of February 1769, was ordered to be expunged from the journals, as " subversive of the rights of the whole body of electors of this kingdom." Expulsion and perpetual disability had been part of the many punishments inflicted upon the unfortunate Hall, in 1580, and on the 27th May 1641, Mr. Taylor, a member, had been expelled, and adjudged to be for ever incapable of being a member of the house ; ^ and during the Long Parliament incapacity for serving in the Parliament then assembled, was frequently part of the sentence of expulsion. But all these cases are only precedents of an excess of jurisdiction ; for one House of Parliament cannot create a disabihty unknown to the law. On the 27th April 1641, Mr. Hollis, a member, was suspended the house during the session f' a sentence of a more modified character, and one in which the rights of electors were no more infringed, than if the house had exercised its unquestionable power of imprisonment. ' 2 Com. J. 158. ' lb. 123. Sec also other cases, 8 Com. J. 289 ; U lb. 105 ; 10 lb. SiO. 44 PRIVILEGE. CHAPTER III. GENERAL VIEW OF THE PRIVILEGES OF PARLIAMENT: POWER OF COMMITMENT BY BOTH HOUSES FOR BREACHES OF PRI- VILEGE, CAUSES OF COMMITMENT CANNOT BE INQUIRED INTO BY COURTS OF LAW; NOR THE PRISONERS BE AD- MITTED TO BAIL. ACTS CONSTRUED AS BREACHES OF PRI- VILEGE. DIFFERENT PUNISHMENTS INFLICTED BY THE TWO HOUSES. Privileges en- BoTH houses of Parliament enjoy various privileges, in "lawand cu!ftora *''^^"' Collective capacity, as constituent parts of the High of PariiaiiK lit Court of Parliament : which are essential for the support and by statute. . * ' of their authority, and for the proper exercise of the func- tions entrusted to them by the constitution. Other privi- leges, again, are enjoyed by individual members; which protect their persons and secure their independence and dignity. Some privileges rest solely upon the law and custom of Parliament, while others have been defined by statute. Upon these grounds alone, all privileges whatever are founded. The lords have ever enjoyed them, simply be- cause " they have place and voice in Parliament;"^ but a practice has obtained with the commons, that would appear to submit their privileges to the royal favour. At the com- mencement of every Parliament since the 6th of Henry 8, it has been the custom for the speaker, speaker's pe- '< In tlifi name, and on the l)elialf of the commons, to lay claim, ^""'"' by humble petition, to tiieir ancient and undoubted^ riglits and » Hakewel, 82. ' See the memorable protestation of the commons, in answer to James 1, who took offence at the words used by tlie speaker in praying for their privileges as " their antient and undoubted rigiit and inlieritance." 5 Par- PRIVILEGE. 46 privileges ; and especially to freedom from arrest and molestation for their persons, servants, and estates ; to freedom of speech in debate ; and to free access to her majesty whenever occasion may require it; and to the most favourable construction of all tiieir proceedings." To which the Lord Chancellor replies, that " Her majesty most readily confirms all the rights and privileges which have ever been granted to or conferred upon the commons, by her majesty or any of her royal predecessors."' The influence of the Crown in regard to the privileges of the commons is further acknowledged by the report of the speaker to the house, " that their privileges have been con- firmed in as full and ample a manner as they have been heretofore granted or allowed by her majesty or any of her royal predecessors.'"'^ This custom probably originated in the ancient practice of confirming laws in Parliament, that were already in force, by petitions from the commons, to which the assent of the king was given with the advice and consent of the lords. In Atwyll's case, 17 Edw. 4, the petition of the commons to the king states that their " liberties and franchises your highness to your lieges, called by your authority royal to this your High Court of Parliament, for the shires, cities, burghs, and five ports of this realm, by your authority royal, at commencement of this Parlia- ment, graciously have ratified and confirmed to us, your said commons, now assembled by your said royal com- mandment in this your said present Parliament."-* But whatever may have been the origin and cause of this custom, and however great the concession to the Crown may appear, the privileges of the commons are nevertheless independent of the Crown, and are enjoyed irrespectively of their petition. Some have been confirmed by statute, and are, therefore, beyond the control either of liameiitary History, bVl; 2 Proceedings and Debates of the Commons, 1G20-], p. 359. ' 73 Lords' J. .571. * 9G Com. J. 4G5. " q Rq^. Pari. 191. 40 FREEDOM OF ACCESS the Crown or of any other power but Parliament ; while others, having been limited or even abolished by stattue, cannot be granted by the Crown. Each privilege will be separately treated, beginning with such as are enjoyed by each house collectively, and })ro- ceeding thence to such as attach to individual members ; but, before these are explained, two of the points enu- merated in the speaker's petition may be disposed of, as being matters of courtesy rather than privilege. The first of these is " freedom of access to her majesty ;" and the second, " that their proceedings may receive a favourable construction." Freedom of ac- 1. The first request for freedom of access to the sove- coramons.'*^ reign is recorded in the 28th Henry 8 ; " but," says Elsynge, " it appeareth plainly they ever enjoyed this, even when the kings were absent from Parliament ;" and in the " times of Richard 2, Henry 4, and downwards, the commons, with the speaker, were ever admitted to the king's presence in Parliament to deliver their answers ; and oftentimes, under Richard 2, Henry 4, and Henry 6, they did propound matters to the king, which were not given them in charge to treat of." ' The privilege of access is not enjoyed by individual members of the House of Commons, but only by the house at large, with their speaker ; and the only occasion on which it is exercised is when an address is presented to her majesty by the whole house. Without this privilege it is undeniable that the queen might refuse to receive such an address pre- sented in that manner ; and that so far as the attend- ance of the whole house in person may give effect to an address, it is a valuable privilege. But addresses of the house may be communicated by any members who have access to her majesty as privy councillors ; and thus the same constitutional effect may be produced, without the exercise of the privilege of the house. ' Elsynge, 17 rj, 170. TO THE QUEEN. 47 The only right claimed and exercised by individual members, in availing- tiiemselves of the privilege of access to her majesty, is that of accompanying the speaker with addresses, and entering the presence of royalty, in their ordinary attire. Such a practice is, perhaps, scarcely worthy of notice, but it is probably founded upon the concession to the House of Commons, of a free access to the throne, which may be supposed to entitle them, as members, to dispense with the forms and ceremonies of the court. Far different is the privilege enjoyed by the House of Free access for Peers. Not only is that house, as a body, entitled to free access to the throne, but each peer, as one of the hereditary counsellors of the Crown, is individually pri- vileged to have an audience of her majesty. 2. That all the proceedings of the commons may re- Favoiirai)ie ceive from her majesty the most favourable construction, f=o"*truction of J J ' the commons is conducive to that cordial co-operation of the several proceedings. branches of the legislature which is essential to order and good government; but it cannot be classed among the privileges of Parliament. It is not a constitutional right, but a personal courtesy; and if not observed, the pro- ceedings of the house are guarded against any interference, on the part of the Crown, not authorized by the laws and constitution of the country. The occasions for this cour- tesy are also limited ; as by the law and custom of Par- liament the queen cannot take notice of anything said or done in the house, but by the report of the house itself.^ Each house, as a constituent part of Parliament, exer- Privileges of cises its own privileges independently of the other ; but S'eTtivdy.^^ ^°^" they are enjoyed, not by any separate right peculiar to each; but solely by virtue of the law and custom of Par- liament. There are rights or powers peculiar to each, as explained in the last chapter ; but all privileges, properly ' 4 Inst. 15. See also infra, Cliapter IV. on Freedom of Speech. 48 LAW AND CrSTOM OF SO called, appertain equally to both houses. These are declared and exj^ounded by each house ; and breaches of privilege are adjud'j,"ed and censured by each; but still it is the law of Parliament that is thus administered. Law ai:d ens- The law of Parliament is thus defined by two eminent torn of I»;irlia- i • . ,/ . r- • • i i i i meat. authorities : " As every court oi 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 owr. peculiar law, called the lex et consuetudo Parlia- menti.'' ^ This law of Parliament is admitted to be part of the unwritten law of the land, and as such is only to be collected, according to the words of Sir Edward Coke, " out of the rolls of Parliament and other records, and by precedents and continued experience;" to which it is added, that " whatever matter arises concerning either house of Parliament, ought to be discussed and adjudged in that house to which it relates, and not elsewhere." ^ Hence it follows that whatever the Parliament has constantly declared to be a privilege, is the only evidence of its being part of the ancient law of Parliament. " The only method," says Blackstone, " of proving that this or that maxim is a rule of the common law, is by shewing that it hath always been the custom to observe it ;" and, " it is laid down as a general rule that the decisions of courts of justice are the evidence of what is common law."' The same rule is strictly applicable to matters of privilege, and to the expounding of the unwritten law of Parliament. New priviifges But although either house may expound the law of created. Parliament, and vindicate its own privileges, it is agreed that no new privilege can be created. In 1704, the lords communicated a resolution to the commons at a confer- ence, " That neither house of Parliament have power, by ' 4 Inst. 1.3; 1 Bl. Coimn. 10:3. = 4 Inst. 15. * 1 Comni. 08. 71. PARLIAMENT. 49 any vote or declaration, to create to themselves new pri- vileges, not warranted by the known laws and customs of" Parliament j" ^ which was assented to by the Commons.* In treating of the privileges of individual members, it will be shown, that in the earlier periods of parliamentary history, the Commons did not always vindicate their pri- vileges by their own direct authority ; but resorted to the king, to special statutes, to writs of privilege, and even to the House of Lords, to assist them in protecting their members. It will be seen in what manner they gradually assumed their just position as an independent part of the legislature, and at length established the present mode of administering the law of Parliament. Both houses now act upon precisely the same grounds Breach of privi- in matters of privilege. They declare what cases, by the of[j,g jij,',-!,"'^ law and custom of Parliament, are breaches of privilege ; Coi rt of Par- . , liaiiient. and punish the offenders by censure or commitment, in the same manner as courts of justice punish for contempt.^ The modes of punishment may differ in some respects, but the principle upon which the offence is determined, and the dignity of Parliament vindicated, is the same in both Houses. The right to commit for contempt, though universally Commitment. acknowledged to belong equally to both houses, is often regarded with jealousy when exercised by the commons. This has arisen partly from the powers of judicature in- herent in the lords, which have endowed that house with the character of a high court of justice ; and partly from the more active political spirit of the lower house. But the acts of the House of Lords, in its legislative capacity, ought not to be confounded with its judicature; nor should the political composition of the House of Commons be a ground for limiting its authority. The particular acts of both houses should, undoubtedly, be watched with vigil- ' 14 Com. J. 555. ' lb. 660. ^ 8 Grey's Debates, 232. E mons 50 COMMITMENT. ance wlien they appear to be capricious or unjust ; but it is unreasonable to cavil at privileges, in general, which have been long established by law and custom, and which are essential to the dignity and power of Parliament. By the Lords. The power of the House of Lords to commit for con- tempt was questioned in the cases of the Earl of Shaftes- buryj^ in 1675, and of Flower,'^ in 1779 ; but was admitted without hesitation by the Court of King's Bench. By tlie Com- The power of commitment has always been exercised by the commons, and is thus established upon the ground and evidence of immemorial usage.^ It was admitted, most distinctly, by the lords, at the conference between the two houses, in the case of Ashby and White, in 1704,"* and it has been repeatedly recognized by the courts of law : viz, by 11 of the judges, in the case of the Ayles- bury Men;' by the Court of King's Bench, in Murray's case;*' by the Court of Common Pleas, in Crosby's case;'^ by the Court of Exchequer, in the case of Oliver (1771) ;^ by the Court of King's Bench, in Burdett's case in 1811;^ in the case of Mr. Hobhouse, in 1819;'" and lastly in the case of the Sheriff of Middlesex, in 1840.'^ The power is also virtually admitted by the statute 1 James 1, c. 13, s. 3, which provides that nothing therein shall " extend to the diminishing of any punishment to be hereafter, by censure in Parliament, inflicted upon any person," &c. Authority of The right of commitment being thus admitted, it be- onlrrsof comes an important question to determine, what authority otfi'-ors in exe- cutin either house. ' G Howell's St. Tr. V20'J, et seq. ^ 8 Durnford & East, 314. ^ Mr. \\yiin states that nearly 1,000 instances of its exercise have occurred since 1.j47, the period at which the Journals commence {Argument, p. 7); and numerous cases have occurred since the puhlication of Mr. Wynn's treatise. * 17 Lords' J. 714. ' 14 East, 1. * 2 Lord Raym. llO.'i; 3 Wils. 205. '" 2 Chit. Rep. 207 ; Barn. & Aid. e IWils. 290(1751). 420. 1 3 Wils. 203 (1771). " 11 Adolphus k Ellis, 273. « lb. AUTHOUITY OF OFriCEHS. 51 and protection are acquired by officers of either house in executing the orders of their respective courts. Any resistance to the serjeant-at-arms, or his officers, has always been treated as a contempt by the commons, and the parties, in numerous instances, have suffered punishment accordingly. In the case of Ferrers, in 1543, the commons committed the sheriffs of London to the Tower, for having resisted their serjeant-at-arms, with his mace, in freeing a -member who had been imprisoned in the Compter. In 1681, after a dissolution of Parliament, an action was brought against Topham, the serjeant-at-arms attend- ing the commons, for executing the orders of the house in arresting certain persons. Topham pleaded to the jurisdiction of the court, but his plea was overruled, and judgment was given against him. The house declared this to be a breach of privilege, and conunitted Sir F, Pemberton and Sir T. Jones, the judges, to the custody of the ser- jeant-at-arms. This case will be referred to again for another purpose, but here it is adduced as a precedent of the manner in which officers have been supported by the house, in the execution of its orders. In 1771, the House of Commons had ordered a person to be taken into custody, who was arrested by a messenger by virtue of the speaker's warrant. The messenger was charged with an assault, and brought before the lord mayor and two aldermen, at the Mansion-house, who set the prisoner at liberty and committed the messenger of the house for an assault.' For this obstruction to the orders of the house, Mr. Alderman Oliver and the lord mayor were committed to the Tower. ^ It cannot, indeed, be supposed that when the house has Assistance of ordered the Serjeant to execute a warrant, it will not sus- power, tain his authority, and punish those who resist him. But a question still arises concerning the authority with which ' 33 Com. J. 263 ; = lb. 285. 289. E 2 52 ASSISTANCE OF THE CIVIL POWER. he is invested by law, when executing a warrant properly made out by order of the house ; and the assistance he is entitled to demand from the civil power. The civil power has been frequently called upon by the house to assist in executing warrants. In 1640, all mayors, justices, &c. in England and Ire- land were ordered by warrant to aid in the apprehension of Sir G. RatclifFe.i In a case that occurred in 1660, the serjeant was ex- pressly empowered " to break open a house in case of resistance, and to call to his assistance the sheriff of Middlesex, and all other officers, as lie shall see cause; and who are required to assist him accordingly."" On the 24th January, 1670, the house ordered a warrant to be issued for apprehending several persons, who had resisted the deputy-serjeant, and resolved, " That the high sheriff of the county of Gloucester, and other officers concerned, are to be required by warrant from the speaker, to be aiding and assisting in the execution of such warrant." * And again, on the 5th April, 1G79, it was ordered, " That the speaker do issue out his warrant, requiring all sheriffs, bailiffs, constables, and all other his majesty's officers and subjects, to be aiding and assisting to the serjeant-at-arms attending this house."* Before the year 1810, however, no case arose in which the legal consequences of a speaker's warrant and the powers and duties of the serjeant-at-arms in the execution of it, were distinctly explained and recognized by a legal tribunal, as well as by the judgment of Parhament, in punishing resistance. BrMkinc^open In the casc of Sir Francis Burdett, in 1810, a doubt outer doors. arose relative to the power of the serjeant-at-arms to break into the dwelling-house of a person, against whom a speaker's warrant had been issued. The serjeant-at-arms ' 2 Com. J. 29. ' 8 Com. J. 222. ' lb. 19.3. * lb. 586. BREAKING OPEN DOORS. 53 having, in execution of a warrant, been resisted and turned out of Sir Francis Burdett's private dwelling-house by force, required the opinion of the attorney-general, " whether he would be justified in breaking open the outer or any inner door of the private dwelling-house of Sir F. Burdett, or of any other person in which there is reasonable cause to suspect he is concealed, for the purpose of appreiiending him ;and whether he niiglit take to his assistance a sufficient civil or military force for that purpose, such force acting under the direction of a civil magistrate ; and whether such proceedings would be justifiable during the night as well as in the day-time." • The opinion of the attorney-general is so important, as pointing out the legal authority of the Serjeant, and cau- tioning him as to the mode of exerting it, that it may be inserted nearly at length : — " No instance is stated to me, and I presume that none is to be found, in which the outer door of a house has been broken open under the speaker's warrant, for the purpose of apprehending the person against whom such warrant issued, then being therein. I must, tlierefore, form my opinion altogether upon cases which have arisen upon the execution of writs or warrants issuing from other courts, and which seem to fall within the same principle. " I find it laid down in Semayne's case, 5 Co. 91, that where the king is a party, the sheriff may break open the defendant's house, either to arrest him or to do other execution of the king's process ; if otherwise, he cannot enter. So if the defendant be in the house of another man, the sheriff" may do the same; but he cannot break into the house of the defendant in the execution of any process at the suit of an individual. This distinction pro- ceeds, as I apprehend, upon the greater imi^ortance of enforcing the process of the Crown for the public benefit, than that of indi- viduals for the support of their private rights. Reasoning from hence, I should think that the speaker's warrant, which had issued to apprehend a man under sentence of commitment for a breach of the privileges of the House of Commons, might be executed in the same manner with criminal process in the name of the king, inasmuch as those privileges were given to the House of Commons for the benefit of the public only ; and the public are interested in the due support of them. If the act had been done, and I were asked whether it could be defended, I should say that it could ; but where it is previously known that the execution of the war- ' G5 Coin. J. 2G4, E 3 64 BREAKING OPEN DOORS. rant will l)e resisted by force, and if death should ensue in such a conflict, the officer who executes the warrant would stand justified, or not, as the breaking of the house may be held lawful or unlaw- ful : I feel myself obliged to bring this under his notice, leaving him to judge for himself whether he will ve-nture to act upon my opinion, which has no direct authority in point to sup])ort it, but rests upon reasoning from other cases, which appear to me to fall within the same principle. Should the officer resolve to break into the house, if it be found necessary, he must be careful, first, to signify the cause of his coming, and make request to open the doors, and not n?e any force until it apjiears tliat those within will not comply ; and ho should be assured that the party whom he seeks to apprehend is within the house. For the purpose of exe- cuting the warrant, he may take with him a sufficient force of such description as the nature of the case renders necessary. If he has reason to a2i])rehend a defjree of resistance, which can only be repelled by a military force, he may take such force with hirn ; but in this case it will be ])riident to take with him also a civil magistrate. " I do not think it advisable to execute the warrant in the night. " The officer should understand, that when Sir Francis Burdett has once been arrested, if he afterwards effects his escape or is rescued, his own house or the house of any other person into ■which he retreats, may be broken for the purj)osc of re-taking him." " V. GiBBS." In consequence of this opinion tlie serjeant-at-arms forced an entrance into Sir F. Burdett's house, down the area, and conveyed his prisoner to the Tower, witli the Eunifctt V. Ab- assistance of a mihtary force. Sir F. Burdett subsequently brought actions against the speaker and tlie serjeant-at- arms in the King's Bench. The house directed the at- torney-general to defend them. The causes were both tried, and verdicts were obtained for the defendants. With respect to the authority of the serjeant-ut-arms to break open the outer door of Sir F. Burdett's house, Lord Ellenborougli said, " Ul)on authorities the most unquestionable this point has been ' G.J Com. .1. 20 1. bot, set. SIR F. BUnOETT. 55 settled, that where an injury to the public has been committed, in the shape of an insult to any of the courts of justice, on which i)ro- cess of contempt is issued, the officer charged with the execution of such process may break open doors, if necessary, in order to execute it; and it cannot be contended that the houses of legisla- ture are less strongly armed in point of protection and remedy against contempts towards them, than the courts of justice are." ' Thus confirming the opinion of the attorney-general, upon which the Serjeant had acted. This judgment was after- wards affirmed, on a writ of error, by the Exchequer Chamber, and ultimately by the House of Lords. But although the serjeant-at-arms may force an en- Howard r. Gos- trance, he is not authorized to remain in the house if the party be from home, in order to await his return. Mr. Howard, a solicitor, brought an action of trespass against certain officers of the House of Commons, who, in exe- cuting a speaker's warrant for his apprehension, had stayed several hours in his house. The trial came on before Lord Denman, in the sittings at Westminster after Michaelmas term, 1842, when it appeared in evidence that the mes- sengers had remained for several hours in the house awaiting the return of Howard, after they knew that he was from home. The attorney-general, who appeared for the defendants, admitted that, although they had a right to enter Howard's house, and to be in his house for a reasonable time to search for him, yet that they had no right to stay there until he returned; and Lord Denman directed the jury to say what just and reasonable compensation the officers should make for their trespass, which their warrant from the House of Commons did not authorize. A verdict was consequently given for the plaintiff on the second count, with 100 1, damages.^ The verdict proceeded entirely upon the ground of the defendants having exceeded their autho- rity, and without any reference to the jurisdiction of the House of Commons. ' 14 East, 157. ' Carrington So Maislniian, n&Z. E 4 56 CAUSES OF COMMITMENT Causes of com- The power of commitment, with all the authority which mitmei.t cannot , . ,, ,. , ii-ii-i-L i)c iiiqiiirca into caii bc giveii by law, bemg thus estabhshed, it becomes j).v die courts of ^j^^ key-stone of parliamentary privilege. Either house may adjudge that any act is a breach of privilege and contempt ; and if the warrant recite that the person to be arrested has been guilty of a breach of privilege, the courts of law cannot inquire into the grounds of the judgment; but must leave him to suffer the punishment awarded by the High Court of Parliament, by which he stands com- mitted. Habeas Corpus. The Habeas Corpus Act^ is binding upon all persons whatever who have prisoners in their custody, and it is therefore competent for the judges to have before them, persons committed by the Houses of Parliament for con- tempt. There have been cases, indeed, in which writs of habeas corpus have been resisted : as in 1075, when the House of Commons directed the lieutenant of the Tower to make no return to any writ of habeas corpus relating to persons imprisoned by its order;* and in 1704, when similar directions were given to the serjeant-at-arms.^ But these orders arose from the contests raging between the two houses ; the first in regard to the judicature of the lords, and the second concerning the jurisdiction of the commons in matters of election ; and it has since been the invariable practice for the serjeant-at-arms and others, by order of the house, to make returns to writs of habeas corpus.* But although the return is made according to law, the parties who stand committed for contempt cannot be ad- mitted to bail by the courts of law. This opinion was expressed in Sheridan's case, by many of the first lawyers in the House of Commons, shortly after the passing of the Habeas Corpus Act;' and has been confirmed by numerous decisions of the courts of law ; of which the fol- lowins: are some of the most remarkable. « 31 Charles 2, c. 2. * OCom. J. 350. ' 14 lb. 565. * 95 Com. J. 25 ; Hansard's Dcliates, 24 Jan. 1840, 51 N. S. p. 550. » A. D. 1G80; 4 Hans. Pari. Hist. 1202. NOT TO BE INQUIRED INTO. 57 In 1675 Lord Shaftesbury, who had been committed by the Earl of Shaftcs- House of Lords for a conteuii)t, was brought before tlie Court of fury's case. \ King's Bench, but remanded. In that case Lord Chief Justice Kainsford said, " He is in execution of the judgment given by the lords for contempt; and therefore if he shoukl be bailed, he would be delivered out of execution." ' In 1751 Mr. Murray was committed to Newgate by the com- Murray's case, mons for a contempt, and was brought up to the Court of King's Bench liy a habeas corpus. The court refused to admit him to bail, Wright, J., saying, " It need not appear to us what the contempt was for ; if it did appear, we could not judge thereof ; the House of Commons is superior to this court in this particular. This court cannot admit to bail a person committed for a contempt in any other court in Westminster Hall."* In Crosby's case, in 1771, De Grey, C. J. said, "When the Brass Crosby's House of Commons adjudge anything to be a contempt or a breach <=^^*^' of privilege, their adjudication is a conviction, and their commit- ment in consequence an execution; and no court can discharge or bail a person that is in execution by the judgment of any other court." ^ Again, in the case of Flower, who had been committed Flower's case. by the House of Lords for a Hbel on the Bishop of Llan- dafF, the prisoner apphed in vain to the King's Bench to be admitted to bail; and Lord Kenyon, adopting the same view as other judges before him, said, " We were bound to 'grant this habeas corpus; but having seen the return to it, we are bound to remand the defendant to prison, because the subject belongs to 'aliud examen.'" * In the case of Mr. Hobhouse, Lord Chief Justice Abbot Hobliouse's case, said, " The power of commitment for contempt is incident to every court of justice, and more especially it belongs to the High Court of Parliament; and therefore it is incompetent for this court to ques- tion the privileges of the House of Commons, on a commitment for an offence which they have adjudged to be a contempt of those privileges." * The last case that occurred was that of the sheriff of Sheriff of Mid- Middlesex, in 1840, who had been committed for execut- > 6 Howell's St. Tr. 1-269. * 1 Wils. 200. 3 3 Wils. 188. " 8 Dunifonl & East, 314. s 2 Chit. Rep. 207 ; 3 13arii. & Aid. 420. 68 BREACHES OF PRIVILEGE. ing a judgment of the Court of Queen's Bench against the printers of the House of Commons. In obedience to an order of the house,^ the serjeant made a return to the writ, that he had taken and detained the sheriff by virtue of a warrant under the hand of the speaker, which warrant was as follows : — " AVhereas the House of Commons have this day resolved that W.Evans, esq. and J. Wheelton, esq. sheriiF of Middlesex, having been guilty of a contempt and breach of the privileges of this house, be committed to the custody of the serjeant-at-arms attend- ing this house; these are therefore to require you to take into your custody the bodies of the said W. Evans and J. Wlieelton, and them safely to keep during the pleasure of this house; for which this shall be your sufficient warrant." It was argued that, under the 56 Geo. 3, c. 100, s. 3, the judges could examine into the truth of the facts set forth in the return, by affidavit or by affirmation; that the return was bad, because it did not state the facts on which tlie contempt arose ; and that the warrant did not show a sufficient jurisdiction in those who issued it. No one appeared in support of the return, but the judges were unanimously of opinion that the return was good, and that they could not inquire into the nature of the contempt;* although it was notorious that the sheriff had been committed for executing a judgment of that court. From these cases it may now be considered as esta- blished beyond all question, that the cause of commit- ments by either House of Parliament, for breaches of privilege and contempt, cannot be inquired into by courts of law, but that their " adjudication is a conviction, and their commitment, in consequence, an execution." But one qualification of this doctrine must not be omitted. When it ai)pears, upon the return of the writ, simply that the party has been committed for a contempt and breach of privilege, it has been universally admitted that it is incompetent for the courts to inquire further into ' 95 Com. J. 25. Ml Adolplius & Ellis, 273. BREACHES OF PRIVILEGE. 69 tlie nature of the contempt ; but if the causes were stated on the warrant, it is probable that their sufficiency would be examined. Lord EUenborough, in his judgment in Burdett v. Abbot,^ drew the distinction between such cases in the following manner : — " If a commitment appeared to be for a contempt of the House of Commons generally, I would, neither in the case of tliat court nor of any other of the superior courts, inquire further : but if it did not profess to commit for a contempt, but for some matter ap- pearing on the return, which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment jtalpably and evidently arbitrary, Tinjust, and con- trary to every principle of positive law or natural justice ; I say, that in the case of such a commitment (if it ever should occur, but which I cannot possibly anticipate as ever likely to occur,) we must look at it and act upon it as justice may require, from what- ever court it may profess to have proceeded." And in this opinion Lord Denman appears to have ac- quiesced, in the case of the sheriff of Middlesex. Wilful disobedience to orders, within its jurisdiction, is a Breadies of privilege dc- contempt of any court, and disobedience to the orders and fined. ^ rules of Parliament, in the execution of its constitutional functions, is treated as a breach of privilege. Insults and obstructions, also, offered to a court at large, or to any of its members, are contempts; and in like manner, by the law of Parliament, are breaches of privilege. It would be in vain to attempt an enumeration of every act which might be construed into a contempt, because the orders of every court must necessarily vary with the circumstances of each case ; but certain principles may be collected from the Journals, which will serve as general declarations of the law of Parliament. Breaches of privilege may be divided into, 1. Disobe- dience to general orders or rules of either house ; 2. Dis- obedience to particular orders ; 3. Indignities offered to the character or proceedings of Parliament ; 4. Assaults or interference with members in discharge of their dutv, ' 14 East, 1. GO BREACHES OF PRIVILEGE. Disobedience of general orders and rules. Publication of debates. Lords. Cases. or reflections upon their character and conduct in Par- liament. 1. Disobedience to any orders or rules, if made for the convenience or efliciency of the proceedings of the house, is a breach of privilege, the punishment of which would be left to the house, by those who are most jealous of parliamentary privilege. But if such orders should appear to clash with the common or statute law of the country, their validity is liable to question, as will be shown in a separate chapter^ upon the jurisdiction of the courts in matters of privilege. As examples of general orders, the \'iolation of which would be regarded as breaches of privilege, the following may be sufficient. The publication of the debates of either house has been repeatedly declared to be a breach of privilege, and espe- cially false and perverted reports of them ; and no doubt can exist that if either house desire to withhold their proceedings fi-om the public, it is within the strictest limits of their jurisdiction to do so, and to punish any v-iolation of their orders. The lords have a standing order, of the 27th February 1698, by which it is declared, " That it is a breach of the privilege of this house, for any person whatsoever to print, or publish in print, anything relating to the proceedings of the house without the leave of this house." ' la 1801, Allan Macleod, a prisoner in Newgate, convicted for a misdemeanor, was fined 100 I., and committed to Newgate for six months after the expiration of his sentence, for publishing certain paragraphs purporting to be a proceeding of the house, which had been ordered to be expunged from the Journal, and the debate thereupon. He was also ordered to be kept in safe custody until he should pay the fine.' And John Higginbottom, for vending and publishing these paragraphs, was fined 6 s. Sd., and committed to Newgate for six months, and until he should pay the fine.^ He afterwards presented a petition to be liberated, was brought to the bar, reprimanded, and discharged.* ' Chapter VI. 3 43 Lords' J. 100. ' Lords' S. O. Xo. 77. lb. * lb. 11 o. 2-26. -230. BREACHES OF PRIVILEGE. 61 In the same year, H. Brown and T. Gla<^Rington were committed to the custody of the black rod, for printing and pul)lishing in the Mornin"" Heruhl some parjigrnphs purporting to be an account of what jiassed in debate, but which the liouse declared to be a scan- dalous misrepresentation.' The commons have ordered, " That no news-letter writers do, in their letters or other papers that they disperse, presume to intermeddle with the debates or any other proceedings of this house."* "That no printer or publisher of any printed newspapers da presume to insert in any such.papers any debates or any other proceedings of this house, or of any committee thereof." ^ "That it is an indignity to and a breach of the privilege of this house, for any person to presume to give, in written or printed newspapers, any account or minute of the de- bates or other proceedings. That, upon discovery of the authors, printers, or publishers of any such newspaper, this house will pro- ceed against the offenders with the utmost severity."* Other orders also to the same effect, though not verbally the same, have been repeated at different times.^ These orders have fallen into disuse ; debates are daily cited in Parliament from printed reports, and galleries have been constructed for the accommodation of reporters. But if any wilful misrepresentation of the debates should arise, or if on any particular occasion it should be thought necessary to enforce the restriction, there can be no question but that the house is justified in punishing the offender, whether he be a member of the house, or a stranger admitted to its debates.*' In the same manner it is declared to be a breach of privilege for a member or any other person to publish the evidence taken before a select committee, until it has been reported to the house/ and the publisher of a newspaper • 43 Lords' J. GO. « Orders, 11th Feb. 1695. 18th Jan. 1G97. 3d Jan. 1703. 23d Jan. 1722. 12 Com. J. 48. 14 lb. 270. 20 lb. 99. 3 20 Com. J. 99. ■* 26 Feb. 1728 ; 21 Com. J. 238. * 13th April 1738. lOtli April 1753. 3d March 1762. 23 Com. J. 148. 26 lb. 754. 3d March 1702. « 74 Com. J. 537. See also Chap. VII. ' 92 Com. J. 282. Commons. 62 BREACHES OF PRIVILEGE. has been committed for this offence^ by the House of Commons. There -are various other orders and rules connected with parhamentary proceedings ; for example, to prevent the forgery of signatures to a petition ;"^ for the protection of witnesses;^ for securing true evidence before the house or committees;"* for the correct publication of the votes ;^ and for many other purposes which will appear in dif- ferent parts of this work. A wilful violation of any of these orders or rules, or general misconduct in reference to the proceedings of Parliament, will be censured or punished, at the pleasure of the house whose orders are concerned. ** Disobedience 2. Particular orders are of various kinds : as for tlie irders/*"" ""^ attendance of persons before the house or committees;^ the production of papers or records;^ for enforcing an- swers to questions put by the house or by committees;^ and, in short, for compelling persons to do, or not to do, any acts that are within the jurisdiction of the house. If orders be made beyond its jurisdiction, the house, as already proved, may punish the parties who refuse com- pliance with or obstruct the execution of them ; '" but the enforcement of them may become a matter liable to ques- tion before the courts of law. Libels upon the 3. Indignities offered to the character or proceedings of Parliament, by libellous reflections, have always been re- sented and punished as breaches of privilege. Some of the offenders have escaped with a reprimand ; others have been committed to the custody of the black rod, or the serjeant-at-arms; while many have been confined in the house. ' 87 Com. J. 3C0. ' «4 Cm. J. BOO. 3 22 ])). 140. ■• Sessional orJcrs. * lb. « 4 Lords' J. 70.>. :^7 lb. filS. .38 lb. 338. G49. 1 ni Com. J. 338. * iW Com. J. r,M. 575. » 88Com. J. 218. f(0 lb. .'".04. '" See 4 Lords' J. 247, where Ilarwood Jind Driiikwatcr were committed to the Fleet, and pilloried for disoljodience to un order for quieting the pos- sessions of Lord Liudsey; and lb. 403. BREACHES OF PRIVILEGE. 63 Tower and in Newgate ; and in the lords fine, im- prisonment, and the pillory have been adjudged. Prose- cutions at law have also been ordered against the parties.^ The cases are so numerous that only a few of the most remarkable need be "iven. The following extract from the report of a committee of Lords. the lords, 18th May 1716, will serve to show the practice of that house : " That where offences have been committed against the honour and dignity of the house in general, or any member thereof, the bouse liave proceeded, both by way of fine and corporal punish- ment upon such offenders ; but in other cases the attorney-general has been ordered to prosecute the offenders according to lawj and the committee, on perusal of the several orders directing prose- cutions by the attorney-general, do not find that, at any time, addresses have been made to the king for such prosecutions."* Very severe punishments were formerly awarded by the lords in cases of libel, as fine, imprisonment, and pil- lory f but in modern times commitment, with or without fine, has been the ordinary punishment.^ In 1798 Messrs. Lambert and Perry were fined 50 1. each, and committed to Newgate for three months, for a newspaper paragraph highly reflecting on the honour of the house.^ In the commons, AVilliam Thrower was committed to the cus- Precedents in tody of the Serjeant in 1559, for a contempt in tcords against the the commons, dignity of the house.^ In 1586 Mr. Arthur Hall, a member, was imprisoned, Ji7ied,'' and expelled, for having printed and published a libel containing " matter of infamy of simdry good particular members of the house, and of the whole state of the house in general, and also of the power and authority of the house." ^ In 1628 Henry Aleyn was committed to the custody of the serjeant for a libel on the last Parliament.^ In 1640 the Archdeacon of Bath was committed for abusing the last Parliament.'" In 1701 ' 34 Lords' J. 330. '23 Com. J. 540. 26 lb. 0. 304. 34 lb. 4G4. 44 Ih. 4G3. ^ 20 Lords' J. 3G2. 3 4 Lords' J. 615. 5 lb. 241. 244. 20 lb. 363. 22 lb. 353, 354. * 22 lb. .351. 367. 380. ^ 41 j^,. 506. « 1 Com. J. 60. ' See infra, p. 73. « D'Ewes' Journal, 291-298. ' 1 Com. J. 025. "' 2 Cora. J. 63. 64 BREACHES OF PRIVILEGE. Thomas Colepepper was committed for reflections upon the last House of Commons; and the attorney-general was directed to jirosecute him.' The house also resolved, shortly after the last case, " that to print or publish any books or libels reflecting upon the proceedings of the House G5 lb. 113. * G.j lb. 252. * 76 Com. J. 57. Many other cases are cited in the Appendix to the Second Report on Sir F. Burdett, in 1810. « Burdett v. .\bbot, 14 East, 1. Mo Com. J. 508. « 3 Lords' J. 842. 851. 4 lb. 131. 2. 3. 5 lb. 24. BREACHES OF PRIVILEGE. G5 the pillory, and imprisoned in the Fleet, for a libel on the lord keeper.' On the 9th July 16G3, Alexander Fitton was fined 500 Z., and com- mitted to the King's Bench, for a libel on Lord Gerard of Brandon, and ordered to find sureties for his behaviour during life;'-* and others who had been privy to signing and publishing the libel, were inijirisoned in the Fleet, and ordered to find security for their good behaviour during life. On the 18th December 1067, William Carr, for dispersing scandalous and seditious printed papers against tlie same nobleman, was fined 1,000Z., sentenced to stand thrice in the ])illory, to be imprisoned in the Fleet; and the pai)ers to be burned by the hand of the hangman.^ On the 8th March 1688-9, W. Downing was committed to the Gatehouse, and fined 100/., for pi'inting a paper reflecting on the Lord Grey of Wark. ■» In later times parties have been attached for libels on peers, as in 1722, for printing libels concerning Lord Straf- ford,^ and Lord Kinnoul;*' and fined and committed, as in the case of Flower, in 1779, for a libel on the Bishop of LlandafF.'^ Li 1776, Richard Cooksey was attached for sending an insulting letter to the Earl of Coventry, and afterwards reprimanded, and ordered " to be continued in custody until he find security for his good behaviour." ® In the commons, on the 12th April 1733, it was resolved Commons, and declared, nem. con., "That the assaulting, insulting, or menacing any member of Assaulting or this house, in his coming to or going from the house, or upon the obstructing account of his behaviour in Parliament, is an high infringement of the privilege of this house, a most outrageous and dangerous violation of the rights of Parliament, and an high crime and mis- demeanor."^ And again, on the 1st June 1780, "That it is a gross breach of the privilege of this house for any person to obstruct and insult the members of this house in the coming to or going from the house, and to endeavour to compel members by force to declare themselves in favour of or against any proposition then depending or expected to be brought before the house." '<• It need hardly be said that any person acting in oppo- sition to these orders will be committed. On the 22d June 1781, complaint was made that Sir J. Wrottes- ley had received a challenge for his conduct as a member of the > 3 Lords' J. 270. ^ ^ n^ 5^4 3 10 lb. 174. ♦ 14 lb. 144. ' 22 lb. 129. ^ j,, i4q_ 7 40 n,. 181. « 39 lb. 314. 331. ' 22 Com. J. llo. '» 37 Com. J. 902- GG BREACHES OF PRIVILEGE. Worcester election committee ; and Swift, the person complained of, was committed to the custody of the serjeant-at-arms.' On the 13th Ajiril 1809, Sir Charles Hamilton complained that he had been arrested, and otherwise insulted by Daniel Butler, a sheriff's officer; and Butler was committed to Newgate for his offence.* On the 11th July 1824, the speaker, having received information that a member had been assaidted in the lobby, ordered the serjeant-at-arms to take the person into cus- tody, and doubts being entertained of his sanity, he was ordered to stand committed to the custody of the Serjeant.^ In 1827, complaint was made of three letters which had been sent to Mr, Secretary Peel, taking notice of his speeches, and threatening to contradict them from the gallery of the house. The letters were delivered in and read, and the writer, H. C. Jennings, was ordered to attend. He acknowledged that the letters were written by him, and he was declared guilty of a breach of privilege, but was suffered to escape with a reprimand from the speaker.^ Libels. Libels upon members have also been constantly punished. In 1680, Yarington and Groome were committed for a libel against a member.'' In 1689, Christopher Smelt was committed for spreading a false and scandalous report of Peter Rich, a meinber.fi In 169G, John Rye was committed for having caused a libel, reflecting on a member, to be printed and delivered at the door.' In 1704, James Mellot was committed for false and scandalous reflections upon two members.^ In 1733, William Noble was committed for asserting that a member received a pension for his voting in Parliament.' In 1774, II. S. Wood fall was committed for i)ublishiug a letter, reflecting on the character of the speaker.'" In 1821, the author of a paragraph in the John Bull newspaper, containing a false and scandalous libel on a member, was committed to Newgate." In 1832, Messrs. Kidson & AV right, solicitors, were admonished for having addressed to ' 38 Com. J. M.'i. 5\M. * G4 Com. J. 210. 210. 3 79 Com. J. 483. ' 8'i Com. J. -.VXj. 399. '■ 9 Com. J. G54. G5G. * 10 Com. J. 244. ' 11 Com. J. 6r>0. * 14 Com. J. r,c,rj. « 23 Com. J. 24."^. '" 34 Com. J. 450. " 7G Com. J. 33.3. BREACHES OF PRIVILEGE. G7 the committee on the Sunderland Dock Bill a letter, reflecting on the conduct of members of the committee, copies of which were circiihited in printed handbills.' Other cases, too numerous to mention, have occurred, in some of which the parties have been committed or repri- manded ; and in others the house has considered that the remarks did not justify any proceedings against the authors or pubHshers.* On some occasions the house has also directed prose- cutions against persons who have published libels reflecting upon members, in the same manner as if the publications had affected the house collectively.* Of a similar character with libels, is wilful misrepre- sentation of the proceedings of members. On the 22d April 1699, it was resolved, " That the publishing the names of the members of this house, and reflecting upon them, and misrepresenting their proceedings in Parliament, is a breach of the privilege of this house, and destructive of the freedom of Parliament."^ When the speaker is accompanied by the mace, he has Persons com- power to order persons into custody for disrespect, or other gpeaker.^^ breaches of privilege committed in his presence, without any previous order of the house. Mr. Speaker Onslow ordered a man into custody who pressed upon him in Westminster Hall;^ and a case is mentioned by D'Ewes in which a member seized upon an unruly page and brought him to the speaker, by whom he was committed prisoner to the serjeant.^ In 1675, Sir Edward Seymour seized the serjeant-at-arms and delivered him into the custody of a messenger ; but in that case Pemberton, the Serjeant, had been ordered by the house to be taken into custody, and the speaker had issued his warrant for that purpose, to the lieutenant of the Tower.^ ' 87 Com. J. 278. 294. ' See the head of Complaints, In the several Journal Indexes. M3Com. J. 230. 14 lb. 37. M2 Com. J. 6G1. * 2 Hats. 241 n. « D'Ewes, G29. '' Com. J. ,1.51. 353. P 2 68 CONTEMPTS EXAMINED. Inquiry into ai- In all these classes of offences, both houses will commit oi^rivilege/ 01' Otherwise punish, in the manner described; but not without due inquiry into the alleged offence. Lords. By a standing order of the lords of llth Januaiy 1699, it is ordered, " That in case of complaint by any lord of tliis house of a breach of privilege, wherein any person shall be taken into custody for the future ; if the house, upon examiuation of the matter com- plained of, shall judge tlie same to be no breach of privilege, the lord who made the complaint shall pay the fees and expenses of the person so taken into custody ; and that no person shall be taken into custody upon complaint of a breach of privilege, but upon oath made at the bar of this house." ' This order was explained, on the 3d June 1720, " to be understood only of breaches of privilege committed in Great Britain ; but that oath made by affidavit, in v/riting, of a breach of privilege committed in Ireland, may be sufficient ground to take into custody the person thereby proved to have been guilty of such breach of privilege, though no oath be made thereof, at the bar of this house." * Commons. In the commons it w^as resolved, 31st January 1694, " That no persons shall be taken into custody, ujion complaint of any breach of privilege of this house before the matter be first examined ;" but it was at the same time resolved and declared, " that tlie said order is not to extend to any breach of privilege upon the person of any member of tliis house. "^ Again, on tlie 3d January 1701, it was resolved, " That no person be taken into custody of the serjeant-at- arms, upon any complaint of a breach of privilege, until the matter of such complaint shall have been examined by the com- mittee of privileges, and reported to the house, and that the same be a standing order of the liouse." ' There is no longer a general committee of privileges, to whom all such matters are referred, although the com- mittee of privileges is still nominally appointed.' The ' Lonls' S. O. No. 78. * lb. No. 110. ' 11 Com. J. 219. * 13 Com. J. 048. => 93 Com. J. 8. BREACHES OF PRIVILEGE. G9 appointment, at the commencement of each session, of the committee of privileges was discontinued in 1833, but lias since been revived, pro forma, although no members are nominated. It is the present practice, when a complaint is made, to order the party complained of to attend the house ; and on his appearance at the bar, he is examined and dealt with, according as the explanations of his con- duct are satisfactory or otherwise; or as the contrition expressed by him for his offence conciliates the displeasure of the house. If there be any special circumstances arising out of a complaint of a breach of privilege, it is usual to appoint a select committee to inquire into them, and the house suspends its judgment until their report has been presented. In order to discourage frivolous complaintf?, a resolution, similar to the standing order of the lords, was agreed to, on the 11th February 1768: " That in case of any complaint of a breach of privilege here- after to be made by any member of this house, if the house shall adjudge that there is no ground for such complaint, the house will order satisfaction to the person complained of, for his costs and expenses incurred by reason of such complaint;" and this was ordered to be made a standing order.' The house may punish in one session offences that have been committed in another. On the 4th and 14th April 1707, it was resolved, jiem. con., " That when any person ordered to be taken into the custody of the serjeant-at-arms, shall either abscond from justice, or having been in custody shall refuse to pay the just fees, that in either of those cases the order for commitment shall be renewed at the begin- ning of the next session of Parliament, and that this be declared to be a standing order of the house." ^ In 1754, Mr. Murray, who had been imprisoned in Newgate until the close of the session, for a libel, was, on the next meeting of Parliament, again ordered to be com- mitted ; but he had absconded, in the meantime, to escape a second imprisonment.'^ ' 31 Com. J. 602. = \b Com. J. 376. 386. ' 26 Com. J. 303. F 3 70 PUNISHMENTS BY It also appears, tliat a breach of privilege committed against one Parliament may be punished by another ; and libels against former Parliaments have often been punished.' In the debate on the privilege of Sir R. Howard, in 1625, Mr. Selden said, " It is clear that breach of privilege in one Parliament may be punished in another succeeding."* ijiffdinccs in In all the acts that have been noticed as breaches of tilt' piinishnieiit . i i i i i • ^i • i- t .• iiitiicti'd by tiie privdege, both houses have agreed m their adjudication ; common's ^'^ ^^^ ^^^ ^^ several important particulars, there is a difference in their modes of punishment. The lords claim to be a court of record, and, as such, not only to imprison, but to impose fines. They also imprison for a fixed time, and order se- curity to be given for good conduct. The commons, on the other hand, commit for no specified period, and of late years, have not imposed fines. There can be no question but that the House of Lords, in its judicial capacity, is a court of record ; but, according to Lord Kenyon, " when exercising a legislative capacity, it is not a court of record." ^ However this may be, in- stances too numerous to mention have occurred, in which the lords have sentenced parties to pay fines : ^ many have already been noticed in the present chapter, as well as cases in which they have ordered security to be given for good conduct, even during the whole life of the parties.* Fines. The following is a standing order of the lords, of the 3d April 1624: " Whereas this high court of the Upper House of Parliament do often find cause in their judicature to impose fines, amonj^st other punislmients, ui)on offenders, for the good example of justice, and to deter others from like offences ; it is ordered and declared, that at the least once before the end of every session, the committees for the orders of the house and privileges of the lords of Parlia- ment, do acquaint the lords with all the fines that have been laid ' 1 Com. J. 925. 2 lb. 03. 1.3 lb. 735. = 1 Hats. Prec. 184. ■' I'lowcr'H case, 177!). 8 Durnford & East, 314. * 3 LonlsM. 2-C.. 11 lb. :,o4. 1-JIb. 174. 14 1b. 144. 42 lb. 181. 43 lb. fiO. 10,-,. . ■ 1 1 Lords' .r. 5.04. 3f) lb. 331. cord. LORDS AND COMMONS. Hi that session, that thereupon their lor(1sliii)s may use that power whioli they justly have, to take off or mitigate such fines, eitlier wholly or in part, according to the measure of penitence or ability in tlie offenders, or suffer all to stand, as in equity their lordshii)s shall think fit." ' The lords have power to commit offenders to prison for a specified term, even beyond the duration of the session;'"^ and if no time were mentioned, and the commitment were general, it is understood that the prisoners could not be discharged on habeas corpus even after a prorogation;"* although, in the case of Lord Shaftesbury, a doubt was expressed by one of the judges whether the imprisonment, which was for an uncertain time, would be concluded by the session ; and another said, that if the session had been determined, the prisoner ought to have been discharged.^ Whether the House of Commons be, in law, a court of Whether House „ , . , . of Commons be record it would be difficult to determme ; tor this claim was a court of re- formerly maintained, but has latterly been virtually aban- doned, though never distinctly renounced. In Fitzherbert's case, in 1592, the house resolved " that this house being a court of record, w^ould take no notice of any matter of fact at all in the said case, but only of matter of record ;" and the record of Fitzherbert's execution was accordingly sent to the house by the lord keeper.^ In the debate on Floyde's case, in 1621, Sir Edward Coke said, "no question but this is .a house of record, and that it hath power of judicature in some cases ;"^ and exclaimed, " I wish his tongue may cleave to his mouth that saith that this house is no court of record." And in the same year, the apology of the commons contains these words : " We avouch also that our house is a court of record, and ever so esteemed." ' Lords' S. O. No. 46. = 43 Lords' J. 105. 3 Lord Denman's judgment in Stockdale v. Hansard, p. 147. * Howell's St. Trials, li'JG. 1 Med. Rep. 144. '' D'Ewcs, 00-2. ® 1 ^om. J. 004^ F 4 72 PUNISHMENTS BY In Jones v. Randall/ Lord Mansfield said the House of Commons was not a court of record. It may be fairly argued that if the commons be not a court of record in adjudging breaches of privilege, the judicature of the lords is not sufficient alone to constitute that house a court of record in their legislative capacity ; for though they have various kinds of judicature, the commons also have parallel kinds of judicature. The lords have a judi- cature for their privileges, and for the election of repre- sentative peers of Scotland ; the commons have, in like manner, a judicature for their privileges, and in the election of members. It is true that the lords have other judicial functions which the commons do not possess ; but so far as each house is acting within its own peculiar jurisdiction, the one would appear to be a court of record as well as the other : and when does the legislative character cease and the judicial character begin in either house ? In their de- liberations they are both legislative, but when their privi- leges are infringed, their judicature is called into action. If this view of the question be allowed, both houses, in matters of privilege, are equally courts of record ; and the lords have no further claim to that character than the commons, except when they are sitting as a court of appeal, in trials of peers, in hearing claims of peerage, or in cases of impeachment.^ Fines. Acting as a court of record, the commons formerly fined and imprisoned persons. In 1575, Smalley, a member's servant, who had fraudu- lently procured himself to be arrested, in order to be dis- charged of a debt and execution^ was committed to the Tower for a month, and until lie should pay to W. Hewet the sum of 100 Z.^ Again, in 1580, Mr. Hall, a member, who had offended the house by a libel, was ordered to be committed to the Tower, and to remain in the said prison for six months, and ' 1 Cowj). 17. ^ riec also Cliaiiters VII. & XV. 'I Com. J. 1 12, 113. LORDS AND COMMONS. 73 SO much longer as until himself should willingly make retrac- tation of the said booh, to the satisfaction of the house; and it was resolved that a fine should be assessed by this house, to the queen's majesty's use, of 500 marks, and that he should be expelled.^ In Floyde's case, in 1G21, the commons clearly exceeded FloyJe's their jurisdiction. That person had spoken offensive words concerning the daughter of James 1, and her husband, the elector palatine. In this he may have been guilty of a libel, but certainly not of any breach of parliamentary privilege. Yet the commons, in their zeal for Protest- antism, took cognizance of the offence, and sentenced Floyde to pay a fine of 1,000 Z., to stand twice in the pil- lory, and to ride backward on a horse, with the horse's tail in his hand.* Upon this judgment being given, first the king, and then the lords interfered, not on account of the severity of the punishment, nor because it was thought to exceed the power of the house ; but because the offence was ' altogether beyond the jurisdiction of the commons. The commons perceived their error, and left the offender to be dealt with by the lords ; but at the same time they guarded their own right by an ambiguous protestation that their pro- ceedings against Floyde " should not be drawn or used as a precedent to the enlarging or diminishing the lawful rights and privileges of either house, but that the rights and privileges of both houses should remain in the selfsame state and plight as before."^ But if the commons exceeded their jurisdiction in this case, the lords equally disregarded the limits of their own, and proceeded to still more disgraceful severities. Floyde was charged by the attorney-general before the lords, and received sentence that he should be incapable of bearing- arms as a gentleman; that he should be ever held an infamous person, and his testimony not to be taken in any court or cause ; that he should ride twice to the pillory J 1 Com. J. l-io, 120. ' lb. 009. ' lb. 019, 74 PUNISHMENTS BY with his face to the horse's tail, holding the tail in his hand ; tliat he should be branded with the letter K on his forehead, be whipped at the cart's tail, be fined 5,000^. to the king, and be imprisoned in Newgate for life.^ The last case that occurred was in 1666, when a fine of 1,000^. was imposed upon Thomas White for absconding after he had been ordered into the custody of the serjeant- at-arms."'* The modern practice of the commons is to commit per- sons to the custody of the serjeant-at-arms, to Newgate, or to the Tower; and to keep offenders there until they present petitions praying for their release, and expressing contrition for their offences ; or until, upon motion made in the house, it is resolved that they shall be discharged. It is then usual for the parties to be brought to the bar, and after an admonition or reprimand from the speaker, to be discharged on payment of their fees. But, under pecu- liar circumstances, their attendance at the bar,^ and the admonition or reprimand,^ have been dispensed with. Paj-ment of It cannot fail to be remarked that this condition of the payment of fees still partakes of the character of a fine. The payment of the money forms part of the punishment, and is compulsory ; nor could any limit be imposed upon the amount fixed by order of the house. Payment has been occasionally remitted under special circumstances,' as, for example, on account of the poverty of the parties;" and in one case, because the prisoner was labouring under mental delusion.^ Imprisonment No period of imprisonment is named by the commons, coiic'iuded'by ^^^ *^^ prisoners committed by them, if not sooner dis- prorogation. charged by the house, are immediately released from their ' ."3 Lords' J. 134. See also " Proceedings and Duliates of the Commons," lG-20, 1G21 (Oxford), and 5 Pari. Hist. « 8 Com. J. GOO. ' 75 Com, J. 4G7. ' 80 ib. 333. UU ib. 532. »o8Ib. 221. SO Ib. 470. 83 lb. 190. 00 lb. 632. * 74 Ib. 102. ' 8.5 Ib. 465. LORDS AND COMMONS. 75 confinement on a prorogation, whether they have paid the fees or not. If they were held longer in custody, there is little doubt but that they would be discharged by the courts upon a writ of habeas corpus. Lord Denman, in his judgment in the case of Stockdale v. Hansard, said, " However flagrant tlie contempt, the House of Commons can only commit till the close of the existing session. Their privilege to commit is not better known than this limitation of it. Though the party should deserve the severest penalties, yet, his oflfeuce being committed the day before the prorogation, if the house ordered his imprisonment but for a week, every court in West- minster Hall, and every judge of all the courts, would be bound to discharge him by habeas corpus." • It was formerly the practice to make prisoners receive the judgment of the house kneeling at the bar, but on the 16th March 1772, it was resolved by the commons, nem. con., " That when any person shall from henceforth be brought to the bar of this house to receive any judgment of this house, or to be discharged from the custody of the serjeant-at-arms attending this house, or from any imprisonment inflicted by order of the house, such person shall receive such judgment, or the order of the house for his discharge, standing at the bar, unless it shall be otherwise directed, in the order of the house made for that purpose ;" and ordered to be made a standing order.* ' Judgment iu Stockdale v. Hansard, p. 142. ^ 33 Com. J. 594. 76 FREEDOM OF SPEECH. CHAPTER IV. Necessity of freedom of speecli. Confirmed by law of Parlia- PRIVILEGE OF FREEDOM OF SPEECU CONFIRMED BY THE ANCIENT LAW OF PARLIAMENT AND BY STATUTE : ITS NATURE AND LIMITS. Freedom of speech is a privilege essential to every free council or legislature. It is so necessary for the making of laws, that if it had never been expressly confirmed, it must still have been acknowledged as inseparable from Parlia- ment, and inherent in its constitution. Its principle was well stated by the commons, at a conference on the 11th of December, 1G67 : "No man can doubt," they said, " but whatever is once enacted is lawful ; but nothing can come into an Act of Parliament, but it must be first affirmed or propounded by somebody ; so that if the Act can wrong nobody, no more can the first propounding. The members must be as free as the houses : an Act of Parliament can- not disturb the state ; therefore the debate that tends to it cannot ; for it must be propounded and debated before it can be enacted." ^ But this important privilege has not been left to depend upon abstract principles, nor even upon the ancient law and custom of Parliament, but has been recognised and confirmed as part of the law of the land. According to Elsynge, the "commons did oftentimes, under Edward 3, discuss and debate amongst them selves many things concerning the king's prerogative, and agreed upon petitions for laws to be made directly against his ]>rerogative, as may appear by divers of the said petitions; yet they were never interrupted in their consultations, nor received check for the same, as may appear also by the answers to the said petitions." ^ ' 12 Lords' J, IGC. '^ Elsynge, 177. FREEDOM OF SPEECH. 77 In the 20th of Richard the 2(1, however, a case iiaxey's case. occurred in which this ancient privilege was first violated, but afterwards confirmed. Haxey, a member of the com- mons, having displeased the king, by offering a bill for reducing the excessive charge of the royal household, was condemned in Parliament as a traitor. But on the acces- sion of Henry 4, Haxey exhibited a petition to the king in Parliament, to reverse that judgment, as being "against the law and custom which had been before in Parliament;" and the judgment was reversed and annulled accordingly by the king, with the advice and assent of all the lords spiritual and temporal.^ This was unquestionably an acknowledgment of the privilege by the highest judicial authority, the king and the House of Lords ; and in the same year the commons took up the case of Haxey, and in a petition to the king affirmed " that he had been condemned against the law and course of Parliament, and m annihilation of the customs of the commons;" and prayed that the judgment might be reversed, "as well for the furtherance of justice as for the salvation of the liberties of the commons.""^ To this the king also assented, with the advice and assent of the lords spiritual and temporal ; and thus the whole legislature agreed that the judgment against Haxey, in derogation of the privileges of Parliament, " should be annulled and held to be of no force or effect." Again, in the 4th Henry 8, 1512, Mr. Strode, a mem- Strode's ease. ber of the House of Commons, was prosecuted in the Stannary Court, for having proposed certain bills to re- gulate the tinners in Cornwall, and was fined and impri- soned in consequence. Upon which an Act was passed,^ which, after stating that Strode had agreed with others of the commons in putting forth bills " the Avhich here in this ' 1 Hen. 4 ; 3 Rot. Pari. 430. ' " Si Men en accomplissenient de droit, come pur salvation des libcrfis de lez ditz communes." — 3 Rot. Pari. 43-t. ' 4 Hen. 8,c. 8. 78 FREEDOM OF SPEECH. High Court of Parliament, should and ought to be com- muned and treated of," declared the proceedhigs of the Stannary Court to be void, and further enacted, " That all suits, condemnations, executions, fines, amerciaments, punishments, &lc. put or had, or hereafter to be put or had, upon the said Richard (Strode), and to every other of the person or persons that now be of the present Parliament, or tliat of any Parliament thereafter shall be, for any bill, speaking, reasoning, or declaring of any matter or matters concerning the Parliament to be communed and treated of, be utterly void and of none effect." As the proceedings that had already taken place against Strode were declared to be void, it is evident that freedom of speech was then admitted to be a privilege of Parliament, and was not, at that time, first enacted. The words of the statute also leave no doubt that it was intended to have a general operation in future, and to protect all members, of either house, from any question for their speeches or votes in Parliament. Petition of the Thirty years afterwards the petition of the commons to the king, at the commencement of the Parliament, appears for the first time to have included this privilege amongst those prayed for of the king. The first occasion on which such a petition is recorded, was in the 33d Henry 6, (1541), when it was made by Thomas Moyle, speaker.^ But although the petitions for freedom of speech were not made in that manner, there is a remarkable petition of the commons, and answer of the king, in the 2d Henry 4, relating to this privilege. The commons prayed the king not to take notice of any reports that might be made to him of their proceedings; to which the king replied, that it was his wish that the commons should deliberate and treat of all matters amongst themselves, in order to bring them to the best conclusion, according to their wisdom, for the welfare and honour of himself and all his realm ; and that he would hear no person, nor give him ' Elsyngp, 17G. coiuiuons. FREEDOM OF SPEECH. 71) any credit, before such matters were brought before the king, by the advice and assent of all the commons, accord- ing to the purport of their petition.^ But, however essential to Parliament, and however con- Violations of 111* •, • 11 i tl"-' privilege. firmed by statute and recognised by kmgs, it is needless to recount how frequently this privilege was formerly violated by the power of the Crown. The Act of the 4th of Henry 8th extended no further than to protect members from being questioned, in other courts, for their proceedings in Parliament; but its principle should equally have saved them from the displeasure of the Crown. The cases of Mr. Strickland, in 1571,^ of Mr. Cope, Mr. Wentwoith, and others, in 1586,^ and of Sir Edwyn Sandys, in 1621,'' will serve to remind the reader, how imperfectly members were once protected against the unconstitutional exercise of prerogative. The last occasion on which the privilege of freedom of speech was directly impeached, was in the celebrated case of Sir John Elliot, Denzil Hollis, and Benjamin Valentine, against whom a judgment was obtained in the King's Bench, in the 5th Charles 1, for their conduct in Parliament. On the 8th July, 1641, the House of Commons declared all the proceedings in the King's Bench to be against the law and privilege of Parliament.^ The prosecution of those members was, indeed, one of the illegal acts which hastened the fate of Charles the First ; and, on the resto- ration of his son to the throne, it was not forgotten by the Parliament. The judgment had been given against the privilege of Parliament, upon the false assumption that the Act of the 4th Henry 8 had been simply a private statute, for the relief of Strode, and had no general operation ; and in order to condemn this construction of the plain words of the statute, the commons resolved, on the 12th November 1667, "That ' 3 Rot. Pari. 456. ^ D'Ewes, 106. 4 Pari. Hist. 1.53. » D'Ewes, 410. " 1 Hats. Prcc. 13G, 137. * 2 Com. J. 203. 80 FREEDOM OF SPEECH. tlie Act of Parliament in 4th Henry 8, commonly intituled, ' An Act concerning- Richard Strode,' is a general Zr«^', extend- ing to indemnify all and every the members of both houses of Parliament, in all Parliaments, for and touching any bills, speaking, reasoning, or declaring of any matter or matters in and concerning the Parliament, to be comnmned and treated of; and is a declaratory law of the ancient and necessary rights and privileges of Parliament^ ^ And on a subse- quent day, they also resolved, " That the judgment given, 5 Car., against Sir John Elliot, Denzil Hollis, and Benjamin Valentine, in the King's Bench, was an illegal judgment, and against the freedom and privilege of Parliament." '■' A conference was afterwards demanded with the lords, and their lordships agreed to the resolutions of the commons;*'' and, finally, upon a writ of error, the judgment of the court of King's Bench was reversed by the House of Lords, on 15th April, 1668.^ Its recognition This would have been a sufficient recognition, by law, of the privilege of freedom of speech ; but a further and last confirmation was reserved for the Revolution of 1688. By the 9th article of the Bill of Rights it was declared, " that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament." ^ But, although by tlie ancient custom of Parliament, as well as by the law, a member may not be questioned out of Parliament, he is liable to censure and punishment by the house itself of which he is a member. The cases in which members have been called to account and punished for offensive words spoken before the house, are too numerous to mention. Some have been admonished, others im- prisoned," and in the commons, some have even been ' 9 Coin. J. 10. '9 Com. J. 2.5. ■' 12 Lords' J. ICG. ^ 12 Lords' J. 220. * 1 Will. . Rot. Pari. 111. Hyde's case, Rot. Pari. UiO. ■• Tliorpe's case, 5 Rot. Pari. 240. * Cases of Larkc, Clerk, and IIv do, 4 Rot. Pari. :5o7. G lb. 374. II). 100. » Sadclilfe's case, 1 Hats. Prcc. 01. ''32 Heu. 0, 5 Rot. Pari. 239. AND DISTRESS OF GOODS. 87 thereof to the House of Commons." The commons tlien ordered the serjeant to repair to the sheriffs, and to require the dehvery of Ferrers, without any writ or warrant. The lord chancellor had offered them a writ of privilege, but they refused it, " being of a clear opinion, that all commandments and other acts proceeding from the neather house were to be done and executed by their Serjeant without writ, only by shew of his mace, which was his warrant." The sheriffs, in the meantime, were alarmed, and surrendered the prisoner ; but the serjeant, by order of the house, required their attendance at the bar, together with the clerks of the Compter, and White, the plaintiff; and on their appearance, they were all com- mitted for their contempt. The king, on hearing of these proceedings, called before him the lord chancellor, the judges, the speaker, and some of the gravest persons of the lower house, and addressed them. Having commended the wisdom of the commons in maintaining the privileges of their house, and stated that even their cooks were free from arrest, he is reported to have used these remarkable words: " And further, we be informed by our judges, that we at no time stand so highly in our estate royal, as in the time of Parliament; wherein we as head, and you as members, are conjoined and knit together into one body politick, so as whatsoever offence or injury, during that time^ is offered to the meanest meudjerof the house, is to be judged as done against our person and the whole court of Parliament; whicli i)rerogative of the court is so great (as our learned counsel informeth us), that all acts and processes coming out of any other inferior courts, must for the time cease, and give place to the highest." When the king had concluded his address. Sir Edward Montagu "very gravely declared his opinion, confirming by divers reasons all that the king had said, which was assented unto by all the residue, none speaking to the contrary." As this case rests upon the authority of HoUinshed, and not uj)on })arliamentary records, its accuracy has G 4 88 FREEDOM FROM ARREST sometimes been doubted: but the positions there main- tained are so conformable with the law of Parliament, as since asserted; the circumstances are so minutely stated, and were of so notorious a character; that there can be little ground for distrusting the general correctness of the account. Its probability is confirmed by the fact that Ferrers was a servant of the king, and the proceedings of the commons on his behalf, were therefore the more likely to be acceptable to the king, and to be sanctioned by his councillors and the House of Lords.' The practice of releasing members by a writ of privilege was still continued, notwithstanding the course pursued in the case of Ferrers, but henceforward no such writ was suffered to be obtained without a warrant, previously Smalle> 's case, signed by the speaker. Thirty years later, in the case of Smalley, the servant of a member who was under arrest, " was ordered to be brought hither to-morrow by the Serjeant, and so set at liberty by warrant of the mace, and not by writ."* Again, in 1592, in the case of Fitzherbert, a member who had been outlawed and taken in execution, the house, after many discussions as to his title to pri- vilege, and concerning the manner in which he should be delivered, were at length acquainted that the lord keeper thought it best, "in regard to the ancient liberties and privileges of the house, that a serjeant-at-arms be sent by order of the house for Mr. Fitzherbert, by which he may be brought hither without peril of being further arrested by the way, and the state of the matter then considered of and examined into."^ In this case, however, the house determined that the member should not have privilege; " first, because he was taken in execution before the return of the indenture of his election; secondly, because he had been outlawed at the queen's suit, and was now taken in execution for her majesty's debt ; thirdly, in regard that Fitzlierbert's case. ' 1 Hats, 57. '27tli Fcl). 1575, 1 Com. J. 108. 3 1 Hats. Prcc. 107. D'Ewes, 4&2. 514. AND DISTRESS OF GOODS. 89 he was so taken by the sheriff, neither sedente ParUamento, nor euntlo, nor redeundo."^ This case was scarcely settled, when Mr. Neale, a Neale'scasc. member, complained that he had been arrested upon an execution ; that he had paid the money, but out of regard to the liberties and privileges of the house, he thought it his duty to acquaint them with it. Upon which the house committed to the Tower the person at whose suit the execution was obtained, and the officer who executed it. Three days afterwards the prisoners were reprimanded and discharged.* The principal cases in the lords, up to this period, show an Cases in the . . . ., 1 r 1 Lords, uncertamty m then* practice smiilar to that or the commons; privileged persons being sometimes released immediately, and sometimes by writs of privilege. On the 1st December, 1686, they ordered to be enlarged and set at liberty James Diggs, servant to the Archbishop of Canterbury, " by virtue of the privilege of this court :"^ and again in the same year, a servant of Lord Leicester,^ and in 1597, the servants of Lord Chandois and the Archbishop of Canterbury.' In the two last cases the officers who had arrested the prisoners were committed by the house. Later still, in November IGOl, they adopted the precedent of Ferrers. William Hogan, like Ferrers, a servant of the queen, was imprisoned in execution ; and the lords debated whether he should be discharged by a warrant from the lords to the lord keeper, to grant a writ in the queen's name for bringing up Hogan, or by immediate direction and order of the house, without any writ; and at length it was agreed that he should be brought up by order from the house. By virtue of their order, he was brought up and discharged on giving a bond for the payment of his debt, and the under-sheriff was committed to the Fleet for having arrested him." Yet, soon afterwards, in Vaughan's case, the lords resorted to the old method of discharging a ' D'Ewos, ;J18. ^ lb. 518. 0-20. ^ 2 Lords' J. CO. * 2 Lords' J. 93. * 2 Lords' J. 201. 206. ^ lb. 230. D'Ewes, f.03. 90 STATUTES. Sir T. Shirley's case. Statutes relat- ing to t'rtedom I'roiii arrest. prisoner by an order to the lord keeper for a writ of privilege ; after having first committed the keeper of Newgate for refusing to obey their order to bring up his prisoner.* These cases have been cited not only as illustrative of the ancient claims of privilege; but also as throwing light, incidentally, upon the general law and privilege of Par- liament. But it is now time to pass to the modifications of the ancient privilege which have since been effected by statute ; and to the modern practice of Parliament in protecting members from arrest. In 1603, the case of Sir Thomas Shirley occasioned a more distinct recognition of the privilege by statute and an improvement in the law. Sir Thomas had been im- prisoned in the Fleet, on execution, before the meeting of Parliament, and the commons first tried to bring him into the house by habeas corpus, and then sent their Serjeant to demand his release. The warden refused to give up his prisoner, and was committed to the Tower for his contempt. Many proposals were made for releasing their member, but as none were free from objection, the house endea- voured to coerce the warden, and committed him to the prison called " Little Ease," in the Tower. At length the warden, either overcome by his durance, or commanded by the king, delivered up the prisoner, and was discharged, after a reprimand.^ So far the privileges of the house were satisfied, but there was still a legal difficulty to be overcome, that had been common to all cases in which members were in execution, viz. that the warden was liable to an action of escape, and the creditor had lost his right to an execution. In former cases a remedy had been provided by a special Act, and the same expedient was now adopted ; but in order to provide for future cases of a similar kind, a general Act was also passed. The Act 1 James l,c. 13, after stating " that doubts had ' 2 Lords' J. 238. 240. - 1 Com. J. 155 et scq. D'Ewes, G07. 5 Pari. Hist. 113, &c. 1 Hats. Prcc. 157. STATUTES. 91 been made, if any person, being arrested in execution, and by privilege of Parliament set at liberty, whether the party at whose suit such execution was pursued, be for ever barred and disabled to sue forth a new writ of execution in that case ;" proceeded to enact, that after sucli time as the privilege of that session in which privilege is granted, shall cease, parties may sue forth and execute a new writ; and that no sheriff, (fee. from whose arrest or custody persons shall be delivered by privilege, shall be chargeable with any action. Lastly, the Act provided that nothing therein should " extend to the diminishing of any punishment to be hereafter by censure in Parliament inflicted upon any person who shall hereafter make or procure to be made any such arrest." Three points are here distinctly recognised; viz. 1, the privilege of freedom from arrest; 2, the right of either house of Parliament to set a privileged person at liberty ; and 3, the right to punish those who make or procure arrests : while two other points were for the first time established ; viz. that the officer should not be liable to an action of escape, and that the debt should not be satisfied. But although the privilege of either house of Parlia- ment was admitted to entitle a prisoner to his release, the manner of releasing him was still indefinite ; and for some time it continued to be the practice, where privileged per- sons had been imprisoned in execvition, to issue warrants for a writ of privilege or a writ of habeas corpus ;^ although in 1625 the commons declared, " that the house hath power, when they see cause, to send the serjeant immediately to deliver a prisoner ;"* and in some cases during the 17th century peers and members arrested in execution were released without any writ of privilege or habeas corpus,^ ' 2 Lords' J. 270. 296. 299. 302. 588. 3 lb. 30. 1 Hats. 167, 168. =* 1 Com. J. 820. ' Mr. Ilatsoll states, tliat " since the end of Elizabeth's reign we liavc not actually met with any instance where a person entitled to privilege, if in cus- tody in execution, hath been delivered by any other mode than by virtue of a writ of privilege, or by a writ of habeas corpus." — (Vol. i. p. 167). 13iit this 92 SERVANTS PRIVILEGE. as Lord Baltinglasse in 1041/ Lord Rich in 1646,* and Sir Robert Holt in 1677.^ During the same period also, when the property of peers or of their servants was distrained, the lords were accustomed to interfere by their direct authority, as in 1628, in the case of a ship belonging to the Earl of Warwick ;■* and in 1648, in regard to the tenants of Lord Montague.' In cases of arrest on mesne process, the practice of releas- ing the prisoners directly by a warrant," or by sending the black rod or serjeant, in the name of the house, to demand them,'^ was continually adopted. At length, in the year 1700, an Act was passed,* which, while it retained the privilege of freedom from arrest with more distinctness than the 1st James 1, made the goods of privileged persons liable to distress infinite and seques- tration, between a dissolution or prorogation, and the next meeting of Parhament, and during adjournments for more than 14 days. And in suits against the king's im- mediate debtors, execution against members was per- mitted even during the sitting of Parliament, and the privilege of freedom from arrest in such suits was not reserved to servants. Again by the 2d &: 3d Anne, c. 18, executions for penalties, forfeitures, &c. against privileged persons, being engaged in the revenue or any offices of trust, were not to be stayed by privilege; but freedom from arrest was still maintained for the members of both houses, in such cases, but not for their servants. Servants' privi- By the 10th Gco. 3, c. 50, a very important limitation th''[ut(L °"' <^f the freedom of arrest was effected. Down to that time the servants of members had been entitled to all the privi- st;itemont liad reference only to the period from tlic accession of James 1 to 1028; and, unless it be understood with this limitation, it is calculated to mislead. ' 4 Lords' J. n.-^4. ^ H Lords' J. G.3o. 0.39. ^ 9 Com. J. 411. * 3 Lords' J 770, 777. ^ 10 Lords' J. Oil. *> Bassett's case, 1 Com. J. 807. 7 4 Lords' J. 004. 8 111. o77. 001. Botekr's case. 17 Com. J. 6. " 1'2& 13 Will.:3, c. 3. RELEASE OF MEMBERS. 93 leges of their masters, except as regards the limitations effected by the two last statutes ; but by the 3d section of the 10th Geo. 3, the privilege of members to be free from arrest upon all suits, authorized by the Act, was expressly reserved ; while no such reservation was introduced in reference to their servants : and thus, without any distinct abrogation of the privilege, it was in fact put an end to, as executions were not to be stayed in their favour, and their freedom from arrest was not reserved. By these several statutes the freedom of members from Members how - released at pre- arrest has become a legal right rather than a parliamentary sent. privilege. The arrest of a member has been held, therefore, to be irregular ab initio^ and he may be discharged imme- diately upon motion in the court from which the process issued.* For the same reason, writs of privilege have been dis- continued. In 1707, a few years after the passing of the 12th & 13th Will. 3, the serjeant was sent with the mace to the warden of the Fleet, who readily paid obedience to the orders of the house, and discharged Mr. Asgill, a member then in execution.^ Members are now discharged directly by warrant, and the parties who cause the arrest are liable to censure or punishment, as in the case of the Baroness Le Cale in 1811.^ In 1807, Mr. Mills had been arrested on mesne process, and was afterwards elected. The house determined that he was entitled to privilege, and ordered him to be dis- charged out of the custody of the marshal of the King's Bench."* In 1819 Mr. Christie Burton had been elected for Beverley, but being in custody on execution and also on mesne process, was unable to attend his service in Parliament. The house determined that he was entitled to privilege, and ordered him to be discharged out of the cus- tody of the warden of the Fleet.^ An action was brought » Colonel Pitt's case, 2 Strange, 985. K. B. Cases, temp. Hard. 28. « 15 Com. J. 471. ^ 48 Lords' J. GO. G3. ' G2 lb. G54. * 74 lb, 44. 94 DURATION OF PRIVILEGE, against the warden by the assignees of a creditor of Mr. Burton, for his escape, who were declared guilty of a breach of privilege, and ordered to attend the house ; ^ but having acknowledged their offence by petition, they were not sub- jected to any punishment. Duration of It now Only remains to inquire what is the duration of privilege. i^i^g privilege of freedom from arrest; and it is singular that this important point has never been defined. The person of a peer (by the privilege of peerage) " is for ever sacred and inviolable.'"'' This immunity rests upon ancient cus- tom, and is recognized by the Acts 12 & 13 Will. 3, c. 3, and 2 & 3 Anne, c. 18. Peeresses are entitled to the same privilege as peers, whetlier they be peeresses by birth, by creation, or by marriage;^ but if a peeress by marriage should afterwards intermarry with a commoner, she forfeits her privilege.'* It is also ordered and declared by the lords that privilege of Parliament shall not be allowed to minor peers, noblewomen, or widows of peers (saving their right of peerage).' And by the 23d article of the Act of Union with Scot- land (5 Anne, c. 8) the 16 representative peers are allowed all the privileges of the peers of the Parliament of Great Britain; and all other peers and peeresses of Scotland, though not chosen, enjoy the same privileges.^ In the same manner, by the Act of Union with Ireland, the peers and peeresses of Ireland are entitled to the same privileges as the peers and peeresses of Great Britain. With reo-ard to members of the House of Commons, " the time of privilege " has been repeatedly mentioned in statutes, but never explained. It is stated by Blackstone, and others, and is the general opinion, that tlie privilege of freedom from arrest remains with a member of the House of Commons, " for 40 days » 73 Com. J. 28G. ' 1 Bl. Comm. 1G5. =• Countess of Rutland's case, G Co. 52. * Co. Litt. IGG. 4 Bacon's Abridg. 220. Lords' S. O. No. 70. * Lords' S. O. No. 70. ^ 2 Strange, 990. DURATION OF PRIVILEGE. 95 after every prorogation, and 40 days before the next appointed meeting;" but the learned commentator cites the case of the Earl of Athol v. the Earl of Derby,^ which hardly supports so distinct a conclusion. It appears, from the report of that case, that the lords claim privilege for 20 days only before and after each session ; and the report adds, " but it is said, the commons never assented to this, but claim 40 days after and before each session." In another report of the same case, it is also said, that " they claim 40 days ;" '^ and in another report, " that the com- mons claimed 40 days, which ought not to be allowed."^ But as the commons are the judges of their own privi- leges, some precedents are required to show that they really claim so long a duration of this immunity ; and no such precedents are to be found. By the original law of Parliament, privilege extended to the protection of mem- bers and their servants, " eundo, morando et exinde rede- undo : " but Parliament has never yet determined what time shall be considered convenient for this purpose ; and Prynne expresses an opinion, that no such definite extent of privilege is claimable by the law of Parliament.^ It has, however, always been the general belief, that privilege extended to 40 days, and several Acts of the Irish Parlia- ment have defined that time.' But the following precedents by no means establish this extent of privilege to be either the law or the practice in England, and leave the matter altogether in doubt. On the 6th December 1555, a case occurred, which has Pledall's case, been relied upon as a declaration of Parliament concerning the duration of privilege, but to which no importance can be attached. The commons sent a message to the lords, to complain that their privilege was broken, by reason of Gabriel Pledall, a member, having been bound in a recog- ' 2 Levinz, 72. ^ 1 Chau. Cas. 221. ^ Sid. 29. * 4 Prynne, Reg. 1216. * See 3 Edw. 4, c. 1, Ir. G Anne, c. 3, Ir. 1 Geo. 2, c. 8, s. 2, Ir. 9G DURATION OF PRIVILEGE. nizance in the Star Chamber, to appear before the council, witliin 12 days after the end of the ParHament, which was about to be dissolved. A message was afterwards received for six members to confer with the lords, who went, and reported, on their return, " that the chief jus- tices, master of the rolls, and Serjeants, do clearly affirm that the recognizance is no breach of the privilege." ^ From this case Prynne infers, that the commons " have not 12, much less 20 or 40 days, after the Parliament ended :" but no such inference can be supported ; for it does not appear whether the opinion related to the recognizance itself, or to the duration of the privilege after the dissolu- tion. The case is not mentioned in the Lords' Journal ; the lords were not said to have pronounced this opinion, but only the judges; and there was no acquiescence on the part of the commons, for the Parliament was dissolved two days afterwards. Mr. Marten's In the case of Mr. Marten, in 1586, who had been ar- rested 20 days before the meeting of Parliament, the ques- tion was put, whether the house would limit any time for privilege. The house answered a convenient time; but they determined that the 20 days were within a convenient time, and that Mr. Marten should, therefore, be discharged.* Twenty days, therefore, have been allowed, which would exclude any inference from Pledall's case. On the 14th December 1621, the lords resolved that their servants were free from arrest " for 20 days before and after every session ; in which time the lords may con- veniently go home to their houses, in the most remote parts of this kingdom." ^ And again, on the 28th May 1624, they adopted a similar resolution.* On the 27th January 162b, they added, that this freedom should " begin with the date of the writ of summons, in ' 1 Com. J. 40. * D'Ewes, 410. 1 Hats. 100. ' 3 Lords' J. 195. * 3 Lords' J, 417. case DT'RATION OF PRIVILEGE. 97 the beginning of eveiy Parliament, and continue 20 days before and after every session of Parliament." ^ A confirmation of the claim of 40 days, however, has been indirectly found in the several Acts of Parliament relating to the privilege of franking (novi^ abolished), in which the power of franking was given to members for 40 days before any summons, and 40 days after any prorogation. It has been determined by the courts of law, that the After dissoiu- privilege, even after a dissolution, is still enjoyed for a convenient and reasonable time for returning home.^ What this convenient time may be has never been deter- mined ; but the general claim of exemption from arrest, eundo et redeundo, extends as well to dissolutions as to prorogations, as no distinction is made between them. These cases apply to arrests made after the privilege has Members in cx- accrued ; but the effect of the election of a person already their election. in execution, still remains to be considered. In Thorpe's case the judges excepted from privilege the case of " a con- demnation had before the Parliament ;" but their opinion has not been sustained by the judgment of Parliament. Unless a member has incurred some legal disability, or has subjected himself to processes more stringent than those which result from civil actions, it has been held that his service in Parliament is paramount to all other claims. Thus in 1677, Sir Robert Holt was discharged, although he had been " taken in execution out of privilege of Par- liament ;" ' and, not to mention intermediate cases, or any which are of doubtful authority,'' Mr. Christie Burton obtained his release in 1819, although he had been in the custody of the warden of the Fleet before his election.' > 4 Lords' J. 13. 1 Hats. 41 n. ' Colonel Pitt's case, 1 Strange, 985. Barnardo v. Mordaunt, 1 Lord Ken. 125. ' 9 Com. J. 411, * See Report of Precedents, 10 Com. J. 401. 2 Hats. 37. * 74 Cora. J. 44. 75 lb. 230. H 98 IMPLEADING MEMBERS, &C. ^i^^d^d ^° ^^' "• '^^^ earliest case in which the privilege of not being impleaded appears to be recorded, is that of Bo2;o de Case of Bogo 1 rr ' f^ declare. Clare, in the 18th Edw. 1. A complaint was made that the prior of the Holy Trinity in London, by procurement of Bogo de Clare, had cited the Earl of Cornwall, in Westminster Hall, in Parliament time, to appear before the Lord Archbishop of Canterbury. Both of them were sent for, to answer before the king, and having appeared, and submitted themselves to the king, were sent to the Tower. Bogo de Clare afterwards came and paid a fine of two thousand marks to the king. This case has been cited by Sir E. Coke, Elsynge, and others, but has latterly been held to have applied to service of a citation in a privileged place, and not to be a claim of Parliamentary privilege ;' although the words " in Parliament time," would suggest an opposite conclusion. Li the 8th Edw. 2, writs of supersedeas were issued to the justices of assize, to prevent actions from being main- tained against members in their absence,"'^ by reason of their inability to defend their rights while in attendance upon the Parliament. This privilege appears to have fallen into disuse, for in the 12th Edw. 4, it was dis- eases of Walsh allowed in the case of Walsh, a servant of the Earl of osju. Essex. That person pleaded a king's writ, in which his right not to be impleaded was affirmed ; but the lords, with the advice of the judges, determined, that there " was no custom, but that members and their servants might be impleaded ;" and they disallowed the writ, and ordered Walsh to plead. ^ In the same year a similiar decision was given in the case of Cosyn. Yet, while this was held to be the law in England, the privilege thus dis- ' Burdett v. Abbot. ' 1 Hats. Prec. 7, 8. " Ne per eorum absentUun, dum sic in dicto Parli::- raento steterint, exhcErcdac'wncin aliquaiii sustiiieant, aliqiialitcr vcl iucur- rant." And again, " iircsertiin cum absiutcs jura sua defendcrc i:cqueant ut presentes." 3 1 Hats. Prcc.41, 42. IMPLEADING MEMBERS. 99 allowed had been confirmed not lung before, by a statute in the Parliament of Ireland.' A few years later, the connnons, in Atwyll's case, claimed it as a prescriptive privilege, that they " should not be impleaded in any action jiersonal," and their claim seems to have been admitted both by the king and by the House of Lords.'^ One of the most marked cases in later times, in which the privilege was enforced, was on the 21st February 1588 ; when the House of Commons, being informed that several members had writs of nisi prius brought against them,*to be tried at the assizes, a motion was made " that writs of supersedeas might be awarded in these cases, in respect of the privilege of this house, due and appertaining to the members of the same." Upon which it was re- solved, *'that those of this house which shall have occasion to require such benefit of privilege in that behalf, may repair unto Mr. Speaker, to declare unto him the state of their cases ; and that he, upon his discretion, if the case shall so require, may direct the warrant of this house to the lord chancellor of England, for the av/arding of such writs accordingly."^ At the beginning of the reign of James 1, another practice was adopted, and instead of resorting to writs of supersedeas, the speaker was ordered to stay suits by a letter to the judges;^ and sometimes by a warrant to the party also;"* and the parties and their attornies who commenced the actions were brought, by the serjeant, to the bar of the house." Applications for the stay of suits, at length, became so frequent and troublesome, that it was ordered, " where any member of the house hath cause of privilege, to stay any trial, a letter shall issue, under the speaker's hand, for stay thereof, without further motion in the house." ^ This power of staying suits appears to have been » 3 E(iw.4, c. 1. ' Atwyll's case, 17 Edvv.4. G Rot. Pari. 191. =• D'Ewes, 436. * I Coin. J. 286. 381. 421, &c. * 1 Com. J. 804. •* lb. 304. » ir,20. 1 Coin. J. 52.'5. II -2 100 IMPLEADING MEMBERS generally acquiesced in by the courts ; but in the case df Hodges and Moore, in 1G26, the court of King's Bench refused to obey the speaker's letter, and was about to return a sharp answer, when the Parliament was dis- solved.' Limitations of The privilege insisted upon in this manner, continued the privilege by . , , „ , , i •. i statute. until the end of the seventeenth century, when it under- went a considerable limitation by statute. The 12th & 13th Will. 3 enacted, that any persons might commence and prosecute actions against any peer, or member of Par- liament, or their servants, or others entitled to privilege, in the courts at Westminster, and the duchy court of Lancaster, immediately after a dissolution or prorogation, until the next meeting of Parliament, and during any adjournment for more than 14 days; and that during such times, the courts might give judgment and award execution. Processes and bills against members were authorized, during the same intervals, to be had or ex- hibited, and to be enforced by distress infinite or seques- tration ; and actions, &:c. against the king's immediate debtors were not to be stayed, at any time, by privilege of Parliament. The privilege was thus limited in its opera- tion ; but it was still acknowledged, especially by the third section, which provided, that where actions were stayed by privilege, the plaintiffs should be at liberty to proceed to judgment and execution upon the rising of Parliament. Soon afterwards, it was enacted, by the 2d & 3d Anne, c. 18, that no action, suit, process, proceeding, judgment, or execution, against privileged persons, employed in the revenue, or any office of public trust, for any forfeiture, penalty, &c., should be stayed or delayed by or under co- lour or pretence of privilege of Parliament. The Act of Will. 3 had extended only to the principal courts of law and equity ; but by the 11th Geo. 2, c. 24, all actions in re- lation to real and personal property, were authorized to be ' Pryane's 4tb Register, p. 810. 1 Com, J. 8G1. 1 Hats. Prec. 18-t, 185. IN CIVIL ACTIONS. 101 commenced and prosecuted in the recess and during adjournments of more than 14 days, in any court of record, &c. Still more important limitations of the privilege were effected by the Act 10 Geo. 3, c. 50. The preamble of that Act states, that the previou3 laws were insufficient to obviate the inconve- niences arising from the delay of suits by reason of privilege of Parliament; and it is therefore enacted, that "any person may at any time commence and prosecute any action or suit in any court of record, or court of equity, or of admiralty ; and in all causes, matrimonial and testamentary, against any peer or lord of Parlia- ment of Great Britain,' or against any of the knights, citizens, or burgesses, &c. for the time being, or against any of their menial, or any other servants, or any other person entitled to the privilege of Parliament; and no such action, suit, or any other process or proceeding thereupon, shall at any time be impeached, stayed, or delayed, by or under any colour or pretence of any privilege of Parliament. " Sect. 2. But nothing in this Act shall extend to subject the per- son of any of the knights, citizens, and burgesses for the time beinf, to be arrested or imprisoned upon any such suit or proceeding." Stringent modes of enforcing the processes of the courts were also enacted, and still further facilities were given to plaintiffs by the 45th Geo. 3, c. 124, and the 47th Geo. 3, sess. 2, c. 40 ; by which members of Parliament may be coerced by every legal device, except the attachment of their bodies. 3. The claim to resist subpoenas was founded upon the Subpoenas and same principle as other personal privileges, viz., the para- J""^^' mount right of Parliament to the attendance and service of its members. Yet it does not appear to have been main- tained in early times. In 1554, a complaint was made by the lords that Mr. Beamond, a member of the commons had caused a subpoena to be served upon the Earl of Hun- tingdon ; to which the commons returned an answer, " that • The 4tli article of the Act of Union extends all privileges of English peers to the peers of Ireland. H 3 102 SUBPCENAS AND JURIES. they take tliis writ to be no breach of privilege." ' Yet, in 1557, on a complaint being made that Mr. Eyms, a mem- ber of the commons, had been served with a subpoena, tw'o members were sent to the chancellor, to require that the process might be revoked.'* And again, in the case of Richard Cook, in 1584, three members were sent to the Court of Chancery, to signify to the chancellor and master of the rolls that, by the ancient liberties of this house, the members of the same are privileged from being served with subpoenas, " and to desire that they will allow the like privileges for other members of this house, to be signified to them in writing under Mr. Speaker's hand." But the chancellor replied, that " he thought the house had no such liberty of privilege for subpoenas." A committee was then appointed to search for precedents, but made no report.^ Innnediately afterwards, the house punished a person who had served a member with a subpoena.'* Various other cases subsequently occurred in which the parties who had served subpoenas upon members of both houses were com- mitted, or otherwise punished for their contempt.^ But, of late years, so far from withholding the attendance of members as witnesses in courts of justice, the commons have frequently granted leave of absence to their members on the express ground that they have been summoned as witnesses," and have even admitted the same excuse for defaulters at calls of the house.^ But although this claim of privilege is not now enforced as regards other courts, one hou.se will not permit its members to be summoned by the other without a message desiring his attendance, nor without the consent of the member whose attendance is required. And it may be doubtful whether the house would not jjrotcct a member served with a subpoena from the • 1 Cora. J. M. " II). p. 48. ' D'Ewcs,347. 1 lints. Prcc. 90, 97. Mb. * 1 Hats. Prec. IG!). 175. .3 Lords' J. GoO. « 56 Com. J, 122. 08 lb, 218. 243. 292. 71 III. 1 10. 82 lb, 30G, 379. See also Lords' ])ebale5. 1st March 1844, Earl nf Devon. 7 48 lb. 318, SUBPCENAS AND JURIES. 103 legal consequences of non-attendance in a court of justice, if penuission had not been previously granted by the house for his attendance.^ As the withdrawal of a witness may affect the adminis- Members sum- tration of justice, the privilege has very properly been "'"'"'' •^^J"'""''^- waived ; but the service of members upon juries not being absolutely necessary, their more immediate duties in Par- liament are held to supersede the obligation of attendance in other courts . The first complaint of a member being summoned on a jury appears to have been made on the 22d November 1597, in the case of Sir J. Tracy. In that case the Ser- jeant was immediately sent with the mace to call Sir J. Tracy to his attendance in the house, who shortly returned accordingly .'■^ Another case occurred in 1607, in which it was ordered that two members, retained as jurors by the sheriff, should be spared their attendance, and the serjeant- at-arms was sent with his mace to deliver the pleasure of the house to the secondary of the King's Bench, the court then sitting.^ On the 15th May 1628, it was determined that Sir W. Alford should have privilege not to serve ; and a letter was ordered "to be written by Mr. Speaker to the judges, that he be not amerced for his not appearance."'* The last occasion on which a complaint was made of a member having been summoned as a juryman was in 1826, when the house agreed that he should have privilege ; and, upon the report of the committee of privileges, resolved, nem. con., that it is " amongst the most ancient and un- doubted privileges of Parliament, that no member shall be withdrawn from his attendance on his duty in Parliament to attend on any other court." ^ To this it may be added, that in the last clause of the Act of 1825, for consolidating the laws relative to jurors and juries,^ there is an express > 78 Com. J. 132. ' D'Kwos, 500. 1 ILits. U2. 3 1 Com. J. 3Ci9. ■• 11). 808. ^ 81 Com. J. 83. 87. « G Geo. 4, c. 50. H 4 104 CRIMINAL COMMITMENTS. resenation that nothing shall " abridge or affect any pri- vilcm' of Parliament." Criminal i-om- 4 'l\^^^ pri\ iicjie of freedom from arrest has always been limited to civil causes, and has not been allowed to interfere witii the administration of criminal justice. In Larke's case/ in 142i», the privilege was claimed, " except for treason, felony, or breach of the peace ;" and in Thorpe's case,'"* the judges made exceptions to such cases as be ** for treason, or felony, or surety of the peace." The privilege was thus explained by a resolution of the lords, April 18th, 1G26 : " That the privilege of this house is, that no peer of Parliament, sitting the Parliament, is to be imprisoned or restrained, without sentence or order of the house, unless it be lor treason or felony, or for refusing to give surety of the peace j"^ and, again, by a resolution of the commons, 20th May lG7o, " that by the laws and usage of ParUa- ment, privilege of Parliament belongs to every member of the House of Commons, in all cases except treason, felony, and breach of the peace." It was stated l)y the commons, at a conference on the 17th August 1641 : " I . That no privilege is allowable in case of peace betwixt private men, much more in case of the peace of the kingdom. 2. That jtrivilcge cannot be pleaded against an indictment for any thing done out of Parliament, because all indictments are ' contra pacem domini regis.' 3. Privilege of Parliiuncnt is granted iu regard of the service of the commonwealth, and is not to be used to the danger of the commonwealth. 4. That all privilege of Parliament is in the power of Parliament, and is a restraint to the I.rooeedings of other inferior courts, but is no restraint to the pro- ceedings of Parliament, and, therefore, seeing it may, without injustice, be denied, this being the case of the commonwealth, they conceive it ought not to be granted."* On the 14th April 1(597, it was resolved, " that no mrmlMT of this h<;use hath any privilege in case of breach .d the peace, or forcible entries, or forcible detainers." = ' 4 Hot Pari. .3.^7. ' .', Rot. Pari. 230. = .3 Lords' J. 5G-2. * 2 Com. J. Jlil. 4 I>.r.^^• J. 3(;y. * 11 (,^„, J 7^^ CRIMINAL COMMITMENTS. 105 On the 1st December 1763, it was resolved, by both houses, " that privilege of Parliament docs not extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of laws in the speedy and effectual prosecution of so heinous and dan- gerous an offence."* " Since that time," said the committee of privileges, in 1831, "it has been considered as established generally, that privilege is not claimable for any indictable offence."* These being the general declarations of the law of Parliament, one case will be sufficient to show how little protection is practically afforded by privilege, in criminal offences. In 1815, Lord Cochrane, a member, having been indicted and convicted of a conspiracy, was com- mitted by the Court of King's Bench to the King's Bench Prison. Lord Cochrane escaped, and was arrested by the marshal, whilst he was sitting on the privy councillors' bench, in the House of Commons, on the right hand of the chair, at which time there was no member present, prayers not having been read. The case was referred to the committee of privileges, who reported that it was " entirely of a novel nature, and that the privileges of Parliament did not appear to have been violated, so as to call for the interposition of the house by any proceedings against the marshal of the King's Bench." ^ Thus the house will not allow even the sanctuary of Causes of com- _ mitmeiit to be its walls to protect a member from the process of criminal communicated. law. But in all cases in which members are arrested on criminal charges, the house must be informed of the cause for which they are detained from their service in Par- liament. The various Acts which have suspended for a time the Habeas Corpus Act, have contained provisions to the effect that no member of Parhament shall be imprisoned, during the sitting of Parliament, until the matter of which he ' 29 Com. J. 669. ' 1831 (114). ' See Sess. Papers, 1814-15 (239). lUG CONTEMPT OF COURT, stands suspected, shall he first communicated to the house of which he shall be a member, and the consent of the said house obtained for his commitment.' But in cases not affected by these Acts, it has been usual to communicate the cause of commitment, after the arrest, as in the case of Lord George Gordon, for high treason ;* and whenever members have been in custody in order to be tried by naval or military courts martial.^ Commitment of Another description of offence, partaking of a criminal w»DU;iuift ^^ character, is a contempt of a court of justice ; and it was for some time doubtful how far privilege would extend to the protection of a member committed for a contempt. On the 30th June 1572, a complaint w'as made to the lords by Henry Lord Cromwell, that his person had been attached by the sheriff of Norfolk, by a writ of attachment from the Court of Chancery, for not obeying an injunction of that court, " contrary to the ancient privileges and immunities, time out of mind, unto the lords of Parlia- ment and peers of this realm, in such cases used and al- lowed." The lords, after examining this case in the pre- sence of the judges and others of the queen's learned counsel, agreed that the "attachment did not appear to be warranted by the common law or custom of the realm, or by any statute-law, or by precedents of the Court of Chan- cery," and they ordered Lord Cromwell to be discharged of the attachment. They were, however,-very cautious in giving a general opinion, and declared that if at any future time cause should be shown that by the queen's preroga- tive, or by common law or custom, or by any statute or pre- cedents, the persons of lords of Parliament are attachable, the order in this case should not affect their decision in judg- ing according to the cause shown. ^ Prynne, in reference to ' 8ccl7G(>o.2,c.O. 45 Geo. 3,0.4,8.2. 57 Geo. 3, c. 3,8. 4. 57 Geo. 3, c. 55, 8. 4. 3 Geo. 4, c. 2, 8. 4. » .17 Com. J. iXK). ' 37 Il». :n. :>r) II,. 47U. 51 Ib. 130. 557. 58 lb. 507. 07 lb. 240, kc. • J Lords' J. 7-.i7. CONTEMPT OF COURT. 107 this case, lays it down that the persons of peers wonld only be attachable in cases of breach of the peace and contempts with force, when there would be a fine to the king.^ This precedent was adopted and confirmed by the lords on the 10th February 1628. It had been referred to the committee of privileges to inquire " whether a serjeant-at- arms may arrest the person of a peer (out of privilege of Parliament) upon a contempt of a decree in the Chancery." The committee reported that no case of attachment had occurred before that of Lord Cromwell, and that "the lords of Parliament ought to enjoy their ancient and due privileges, and their persons to be free from such attach- ments, with the same proviso as in the case of Lord Crom- well ;" to which the lords generally assented.^ In 1605, in the case of Mr. Brereton, who had been committed by the Court of King's Bench for a contempt, the commons brought up their member by a writ of habeas corpus, and received him in the house.'' The case of Sir W. Bampfield, in 1614, throws very little light upon the matter, as after he had been brought in by writ of habeas corpus, the speaker desired to know the pleasure of the house, but no resolution or order appears to have been afterwards agreed to.* On the 8th February 1620 a com- plaint was made, in the commons, that two of the members' pages had been punished for misbehaviour in tlie Court of King's Bench. It was stated, however, that the judges had sent one of the offenders to be punished by the house, and would send the other when he could be found ; " and yet, but for respect for this house, they would have in- dicted them for stroke in face of the court ; and many for less offences have lost their hands." ° On tlie 9th February 1625 the Lord Vaux claimed his privilege for stay of the proceedings of an information against him in the Star Chamber ; and it was granted ; " ' 4tli Reg. 792. "^ 4 Lords' J. 27. ^ 1 Com. J. 2G0. * 1 Com. J. 466. * 1 Com. J. 513. ^ 3 Lords' J. 4t}G. 108 CONTEMPT OF COURT. and shortly afterwards, in the case of the Eail of Arundel, the lords' committee maintained that " though a lord, at the suit of the king, be sued in the Star Chamber for a contempt, vet the suit is to be stayed by privilege of Parhament in parliament time." But on the 8th June 1757, it was " ordered and declared by the lords, that no peer or lord of Parliament hath privilege of peerage, or of Parliament, against being compelled, by process of the courts of Westminster Hall, to pay obedience to a writ of habeas corpus directed to him ;" and that this be a standing order.' And it was decided, in the case of Earl Ferrers, that an attachment may be granted if a peer refuses obedience to the writ.^ In more recent cases members committed by courts for contempt have failed in obtaining their release by virtue of privilege. Mr. Long Wtl- In 1831, Mr. Long Wellesley, a member, having confessed in the Court of Chancery that he had taken his infant daughter, a ward in chancery, out of the jurisdiction of the court, Lord Brougham C. at once committed him for contempt, saying, " It is no violation of the privileges of Parliament, if the members of Parliament have violated the rights and privileges of this court, whicli is of as high a dominion, and as undisputed a jurisdiction, as the High Court of Parliament itself; it is no breach of, but a compliance with, their privileges, that a member of cither house <»f Purliament, breaking the rules of this court, and breaking the law of the land by a contempt committed against this court, should Ftand committed for that contempt." Mr. Wellesley applied to the House of Commons, and claimed his privilege. His case was referred to the com- mittee of privileges, who reported, " That his claim to be discharged from imprisonment, by reason of privilege of Parliament, ought not to be admitted."^ ' *i9 r^rdi.' J. IKI. ' 1 Uurr. 031. 3 gy (Jq,,, j y^j CONTEMPT OF COURT. 109 The last case was that of Mr. Lechmere Charlton, in Mr. Lechmere . Charlton. 1837. That member had been committed by tJie lord chancellor, for a contempt in writing a letter to one of the masters in chancery, " containing matter scandalous with respect to him, and an attempt improperly to influence his decision." Mr. Charlton complained to the speaker of his commitment, and his letters were referred to a com- mittee of privileges. As the lord chancellor's order did not set forth the obnoxious letter, the committee directed it to be produced, as they considered, " That although the lord chancellor had the power to declare what he deemed to be a contempt of the High Court of Chancery, it was necessary that the House of Commons, as the sole and exclusive judge of its own privileges, should be informed of the particulars of the contempt before they could decide whether the contempt was of such a character as would justify the imprison- ment of a member." After inquiring fully into the nature of the contempt, the committee reported, that Mr. Charlton's claim to be dis- charged from imprisonment ought not to be admitted.^ Before these last cases, the ordinary process for con- tempts against persons having privilege of Parliament or of peerage, had not been that of attachment of the person, but that of sequestration of the whole property, as in the case of the Countess of Shaftesbury.'* In 1829, an order for the commitment of |iford Roscommon, for contempt, had been made by the lord chancellor, but was never executed, nor even taken out of the registrar's oflice. Nor must it be omitted that, so late as 1832, an Act was passed,^ by which contempts of the ecclesiastical courts, " in face of the court, or any other contempt towards such court, or the process thereof, are directed to be signified to the lord chancellor, who is to issue a writ de contumace capiendo, for taking into custody persons charged with > Pari. Rep. 1837, No. 45. « 2 Peere Williams, 110. =• 2 & S Will. 4, c. 93. 110 PRIVILEGE OF WITNESSES, &C. such contempt," in case such person " shall not be a peer, lord of Parliament, or member of the House of Commons." It must not, therefore, be understood, that either house has waived its right to interfere when mem- bers are committed for contempt. Each case is open to consideration, when it arises; and although reluctance would undoubtedly be felt in obstructing the censure of other courts, privilege would still be allowed, if the cir- cumstances of the case appeared to justify it. Privilege of As yet the personal privilege of members, and the witnesses and . . /■ . • i i i ■ ^ others. ancient privilege oi their servants, have alone been noticed. These were founded upon the necessity of enabling mem- bers freely to attend to their duties in Parliament. Upon the same ground, a similar privilege of freedom from arrest and molestation is attached to all witnesses summoned to attend before either house of Parliament, or parliamentary committees, and to others in personal attendance upon the business of Parliament, in coming, staying, and return- ing. A few precedents will serve to explain the nature and extent of this privilege. Instances of protections given by the lords to witnesses and to parties, while their causes or bills were depending, appear very frequently on the Journals of that House. In 1G40, Sir Pierce Crosbie, sworn as a witness in Lord Strafford's cause, being threatened with arrests, was allowed privilege, " to protect him during the time that this house examine him ;" ' and many similar protections have been granted in later times.^ In 1641, it was ordered that Sir T. Lake, who had a cause depending, should " have liberty to pass in and out unto the house, and to his counsel, solicitor, and attorney, for and during so long time only as his cause shall be before their lordships in agitation;"^ and similar orders have been made in the case of several other parties, • 4 Lords' J. 14n, H4. s 25 lb. 625. 27 lb. 19. ' 4 Lords' J. 262. ATTENDING PARLIAMENT. Ill who have had causes depending/ or bills before the house.* On the 12th May 1624, the master and others of the felt-makers were ordered, by the commons, to be en- larged from the custody of the warden of the Fleet, for the prosecution of a bill then depending, " till the same be determined by both houses."^ On the 24th May 1626, it was ordered, "that J. Bryers shall be sent for to testify, and to have privilege for coming, staying, and returning." '* In the same manner, privilege was ex- tended to persons who had bills depending, on the 22d and 29th January 1628, on the 3d May 1701, and the 11th May 1758.^ On the 23d January 1640, certain per- sons having petitions before the grand committee on Irish affairs, were ordered " to have liberty to come and go freely to prosecute their petition, without molestation, arrest, or restraint • and that there be a stay of commit- ting any waste upon the lands mentioned in the petitions, during the dependency of the business here.'"' Numerous instances have occurred, in which witnesses, who have been arrested in their way to or from Parliament, or during their attendance there, have been discharged out of custody;'' and the same protection is extended, not only to parties, but to their counsel and agents, in prose- cuting any business in Parliament. On the 2d May 1678, Mr. J. Gardener, sohcitor in the cause concerning Lyndsey Level, who had been arrested as he was coming to attend on the house, was discharged from his arrest.'* On the 9th April 1742, complaint was made, that Mr. Gilbert Douglas, a sohcitor for several bills depending in the ' 4 Lords' J. 263. 289. 330. 477. 5 lb. 476. * 5 lb. 563. 574. 653. 680. 27 lb. 538. 28 lb. 512. 3 1 Com. J. 702. * lb. 863. * lb. 921. 924. 13 lb. 512. 28 lb. 244. ^ 2 lb. 72. "> 8 lb. 525. 9 lb. 20. 300. 472. 12 lb. 304. 610. 66 lb. 220. 232. 90 lb. 521. •* 9 lb. 472. 112 rniVII.EGE OF WITNESSES. House of Commons, had been arrested as he was attend- ing the house; and he was immediately ordered to be discharged from his arrest.^ In the same way, soHcitors for bills depending in the house, were discharged from arrest, on the 30th April 1753; on the 12th February, and 22d March, 1750.^ On the 2yth IMarch 1756, Mr. Aubrey, who had an estate bill depending in the House of Commons, presented a petition, in which he stated that he apprehended an arrest, and it was ordered, " that the protection of the house be allowed to him during the dependence of his bill in this house." ■• The last case that need be mentioned is that of Mr. Petrie, in 1793. That gentleman was a petitioner in a controverted election, and claimed to sit for the borough of Cricklade. He had received the usual notice to attend, by himself, his counsel, or agents, and had attended the sittings of the election committee as a party in the cause ; and although he had a professional agent, he had himself assisted his counsel, and furnished them with instructions before the committee. He was arrested before the committee had closed their inquiries ; and on the 20th March the house, after receiving a report of pre- cedents, ordered, nem. con., that he should be discharged out of the custody of the sheriff of Middlesex.^ • 24 Com. J. 170. » 20 lb. 797. ' 27 lb. 447. 537. ♦ 27 lb. 548. « 48 lb, 420. JURISDICTION or COURTS. ll.J CHAPTER VI. JURISDICTION OF COURTS OF LAW IN MATTERS OP PRIVILEGE. The precise jurisdiction of courts of law in matters of Difficulty of the privilege, is one of the most difficult questions of consti- ^^"^'^ '""' tutional law that has ever arisen. Upon this point the pre- cedents of Parliament are contradictory, the opinions and decisions of judges have differed, and the most learned and experienced men of the present day are not agreed. It would, therefore, be presumptuous to define the juris- diction of the courts, or the bounds of Parliamentary pri- vilege ; but it may not be useless to explain the principles involved in the question ; to cite the chief authorities, and to advert to some of the leading cases that have occurred. It has been shown already, that each house of Par- Principles liament claims to be the sole and exclusive judge of its own privileges, and that the courts have repeatedly acknow- ledged the right of both houses to declare what is a breach of privilege, and to commit the parties offending, as for a contempt. But, although the courts will neither interfere with Parliament in its punishment of offenders, nor assume the general right of declaring and limiting the privileges of Parliament, they are bound to administer the law of the land, and to adjudicate when breaches of that law are complained of. The jurisdiction of Parliament and the jurisdiction of the courts are thus liable to be brought into conflict. The House of .Lords, or the House of Commons, may declare a particular act to have been justified by their order, and to be in accordance with the law of Parliament ; while the covn'ts may acknowledge no right to exist in one lunise, to supersede by its sole authority I 114 JURISDICTION OF COURTS. the laws wIulIi luive been made by the assent, or which e\i^t with the acquiescence, of all the branches of the lejjisluture. It is true, that, in a general sense, the law of Parliament is the law of the land j but if one law should appear to clash with the other, how are they to be recon- ciled .' Is the declaration of one component part, of Par- liament tu be conclusive as to the law ; or are the legality of the declaration, and the jurisdiction of the house, to be measured by the general law of the land? In these questions are comprised all the difficulties attendant upon the clash- ing jurisdictions of Parliament and of the courts of law. It is contended, on the one hand, that in determining matters of privilege, the courts are to act ministerially rather than judicially, and to adjudicate in accordance with the law of Parliament as declared by either house; while, on the other, it is maintained that although the decla- ration of either house of Parliament in matters of pri- vilege within its own immediate jurisdiction may not be questioned; its orders and authority cannot extend beyond its jurisdiction, and influence the decision of the courts in the trial of causes legally brought before them. From these opposite views it naturally follows that, in declar- ing its privileges, Parliament may assume to define its own jurisdiction, and that the courts may have occasion to question and confine its limits. The claim of each house of Parliament to be the sole and exclusive judge of its own privileges has always been asserted in Parliament upon the principles and with the limitations which were stated in the third chapter of this book, and is the basis of the law of Parliament.' This claim has been questioned in the courts of law; but before the particular cases are cited, it will be advisable to take a ticncral view of the legal authorities which are favour- able or adver>e to the claim, in its fullest extent, as as- serted by Parliament. ' See p. 48. EXCLUSIVE JURISDICTION. 115 The earliest authority on which rehance is usually Autiioritios in ^ ' . . fiivour of the placed, in support of" the claim, is the well-known answer exclusive juris f- , 1 • J ■ rni 5 diction of Par- ol the J udges m Ihorpescase. liamcnt. In the 31st Henry 6, on the lords putting a case to the judges, whether Thomas Thorpe, the speaker of the commons, then imprisoned upon judgment in the Court of Exchequer, at the suit of the Duke of York, " should be delivered from prison by virtue of the privilege of Par- liament or not," the Chief Justice Fortescue, in the name of all the justices, answered, " That they ought not to answer to that question, for it hath not been used aforetyme, that the justices should in anywise determine the privilege of this High Court of Parliament ; for it is so high and so mighty in its nature, that it may make law, and that that is law it may make no law; and the determination and knowledge of that privilege belongeth to the lords of the Parliament, and not to the justices.'" In regard to this case it must be observed that no legal question had come before the judges for trial in their judicial capacity ; but that, as assistants of the House of Lords, their opinion was desired upon a point of pri- vilege which was clearly within the immediate jurisdic- tion of Parliament, and was awaiting its determination. Under these circumstances it was natural that the judges should be reluctant to press their own opinions, and desirous of leaving the matter to the decision of the lords. That part of their answer which alleges that Parliament can make and unmake laws, as a reason why the judoes should not determine questions of privilege, can only apply to the entire Parliament, and not to either house separately, nor even to both combined : and, consequently, it has no bearing upon the jurisdiction of Parliament except in a legislative sense. The principle of this answer was adopted and con- firmed by Sir Edward Coke, who lays it down that " whatever matter arises concerning either house of Parlia- ' .5 Rot. Pari. 240. I 2 IIG EXCLrSIVE JURISDICTION nient, ought to be discussed and adjudged in that house to which it relates, and not elsewhere ;" ' and again, that judges ought not to give any opinion of a matter of pri- vilege, because it is not to be decided by the common laws, but secundum lej^es et consuetudinem Parliamenti ; and so the judges in divers Parliaments, have confessed."* These general declarations were explained and qualified by Lord Clarendon, who thus defined the jurisdiction of the commons : " They are the onlj' judges of their own privileges; that is upon the breach of those privileges which the law hath declared to be their own, and what punishment is to be inflicted upon such breach. But there can be no privilege of which the law doth not take notice, and which is not pleadable by and at law."^ In the case of Barnardiston v. Soames, in 1674, Lord Chief Justice North said, " I can see no other way to avoid consequences derogatory to the honour of tiie Parliament but to reject the action, and all others that shall relate either to the proceedings or privilege of Parliament, as our predecessors have done. For if we should admit general remedies in matters relating to the Parliament, we must set bounds how far they shall go, which is a dangerous pro- vince; for if we err, privilege of Parliament will be invaded, which we ouf:ht not in any way to endamage."^ But in the same argu- ment he alleged " that actions may be brought for giving Parlia- ment protections wrongfully; actions may be brought against the clerk of the Parliament, serjeant-at-arms, and speaker, for aught I know, for executing their offices amiss, with averments of malice and damage ; and then must judges and juries determine what they ought to do by their officers. This is in effect prescribing rules to the Parliament for tliem to act by." * In the case of Paty, one of the Aylesbury men, brought up by habeas corpus, Mr. Justice Powell thus defined the jurisdiction of the courts in matters of privilege : " This court may judge of privilege, but not contrary to the judgment of the House of Commons." Again, " This court judges ' 4tli In»J. ir,. 1 ji, * ClarciiiJoii's Hi»t. of the R»l)PIlion, vol. ii. book 4, p. 195, 8vo. edit. Oxf. ♦ «( HowoH'ii St. Tr. 1110. . II, OF PARLIAMENT. 117 of privilege only incidentally; for when an action is bronglit in this court, it must be given one way or other." " The Court of Parliament is a superior court; and though the King's Bench have fi power to prevent excesses of jurisdiction in courts, yet they can- not prevent such excesses in Parliament, because that is a superior court, and a prohibition was never moved for to the Parliament." ' In several other cases which related solely to commit- ments by either house of Parliament, very decided opinions have been expressed by the judges in favour of privilege and adverse to the jurisdiction of the courts of- law; but most of these may be taken to apply more especially to the undoubted right of commitment for contempt, rather than to general matters of law in which privilege may be concerned. In the case of Brass Crosby, Mr. Justice Blackstone went so far as to affirm that " it is our duty to presume the orders of that house (of commons), and their execution, to be according to law;" and in R. v. Wright, Lord Kenyon said, " This is a proceeding by one branch of the legislature, and therefore we cannot inquire into it;" but he added, " I do not say that cases may not be put in which we would inquire whether the House of Commons were justi- fied in any particular measure." It is laid down by Hawkins that " There can be no doubt but that the highest regard is to be paid to all the proceedings of either of those houses; and that wherever the contrary does not plainly and expressly appear, it shall be pre- sumed that they act within their jurisdiction, and agreeably to the usages of Parliament, and the rules of law and justice."^ And Lord Chief Baron Comyn, following the opinion of Sir Edward Coke, affirms that " All matters moved concerning the peers and commons in Par- liament, ought to be determined according to the usage and cus- toms of Parliament, and not by the law of any inferior court."' These authorities are sufficient, for the present purpose, to show the general confirmation by judges of the exclusive ' -I Lord Raym. 1105. ' Pleas of the Crown, c. 15, s. 73, ' Digest, " Parliament" (G. 1.) I 3 116 JURISDICTION OF COUBTS. jurisdiction of Parliament in matters of privilege : but even here the parliamcntarv claim is occasionally modified and limited, as in the opinions of Lord Clarendon, Chief Jus- tice Ps'orth, and Lord Kenyon. In other cases the juris- Authoritiee in diction of courts of law has been more extensively urged, jurisai.tioii of and the privileges of Parliament proportionately limited, co.rt. in ...ut- jjj Benvon v. Evelvn, the lord chief justice. Sir Orlando tiTsof privilege. > ' j ' Briduiiian, came to the conclusion, " Tliiit resolutions or resolves of either house of Parliament, sinower; we may decide the cause erroneously, but we cannot be guilty of any contempt in deciding it according to our consciences."* J.i.iu'nui.t« a.i- With these conflictintr opinions as to the limits of WTM- to ilaiiiik . o 1 ..il.rnii.gc. ]):uliiinicntury privilc;je, and the jurisdiction of courts of ' I'rortcdiii^'i., priiiUd li\ tliu <(iriiiii(iiis, 183U ("283), p. 10:!. ■ !"• )'• Hi:'. ' Ji). p. 174. * 111. ji. \m. ADVERSE JUDGMENTS. 121 law, if either House of" Parliament insist upon precluding other courts from inquiring into matters which are held to be within its own jurisdiction, the proper mode of effecting that object, is the next point to be determined. If the courts were willing to adopt the resolutions of the house as their guide, the course would be clear. The authority and adjudication of the house would be pleaded, and the courts, acting ministerially, would at once give eU'ect to them. But if the courts regard a question of privilege as any other point of law, and assume to define the jurisdic- tion of the house ; in what manner, and at what point, can their adverse judgments be prevented, overruled, or resisted ? The several modes that have been attempted will appear from the following cases; but it must be premised that when a privilege of the commons is disputed, that house labours under a peculiar embarrassment. If the courts admit the privilege, their decisions are liable to be reversed by the House of Lords; and thus, contrary to the law of Parliament, one house would be constituted a judge of the privileges claimed by the other. And if the privilege be denied by the courts, the house has no other remedy, in the ordinary course of law, but an appeal to the House of Lords. It is difficult to determine which alternative is the least satisfactory — the denial of a privilege by the lords on a writ of error, or an application to them for redress, when the authority of the house has been discredited by an in- ferior tribunal. With these perplexities before them, it is not surprising that the commons should frequently have viewed all legal proceedings in derogation of their autho- rity, as a breach of privilege and contempt. They have restrained suitors and their counsel by prohibition and punishment, they have imprisoned the judges, they have coerced the sheriff; but still the law has taken its course. Having opened the principles of the controversy respect- ing parliamentary jurisdiction, it is time to proceed with 122 ADVERSE JUDGMENTS. a narrative of the most important cases in which the pri- vileges of Parhament have been called in question. Caso of Sir W. Sir William Williams, speaker of the House of Com- WilUams. mons ill the reigns of Charles 2 and James 2, had printed and published, by order of the house, a paper well known in the histories of that time, as Dangerfield's Narrative. This paper contained reflections upon the Duke of York, afterwards James 2, and an information for libel was filed against the speaker, by the attorney-general, in 1684. He pleaded to the jurisdiction of the court, that as the paper had been signed by him, as speaker, by order of the House of Commons, the Court of King's Bench had no jurisdiction over the matter. On demurrer, this plea was overruled, and a plea in bar was afterwards pleaded but withdrawn; upon which, in the 2d year of James 2, judg- ment went by default, and the speaker was fined 10,000/. Two thousand pounds of this fine were remitted by the king, but the rest he was obliged to pay. The commons were indignant at this contempt of their authority, and declared the judgment to be an illegal judgment, and against the freedom of Parliament. Three bills were brought in, in 1G89, in 1G90, and in 1695, to reverse this judgment; but they all miscarried, chiefly, it is understood, because it was proposed to indemnify the speaker out of the estate of Sir Robert Sawyer, who had filed the infor- mation.' Jay r. Tojiimin. The next important case is that of Jay v. Topham. After a dissolution of Parliament, an action was brouoht ii'jaiiist John Topham, esq., serjeant-at-arms, for execut- ing the orders of the house in arresting certain persons. Mr. Tojiham pleaded to the jurisdiction of the court the said orders ; but his plea was overruled, and judgment given against him. The house declared this to be a ' '2 Shower, 471. i:) HowtH's St.Tr. i;)70. Wvnn's Argument. lOCoui.J. 177. 20o. COMMITMENT OF PARTIES. 123 breach of privilege, and committed Sir F. Pemberton and Sir T. Jones, the judges, to the custody of the serjeant- at-arms/ It has been generally acknowledged, that these pro- ceedings against the judges were liable to great objection ; for they had not disputed the authority of the House of Commons, but only refused to admit the plea of the defendant to the jurisdiction of the court. Lord Ellen- borough said, that it was surprising " how a judge should have been questioned, and committed to prison by the House of Commons, for having given a judgment, which no other judge who ever sat in his place could have dif- fered from." The remarkable cases of Ashby and White, and the Ashbyand . White &c. Aylesbury men, in 1704, are next worthy of a passing notice. They have been already alluded to in the second chapter, with reference to the right of determining elec- tions ; '^ but they must again be brought forward, to point out the course adopted by the commons to stay actions derogatory to their privileges. Enraged by a judgment of the House of Lords, which held, that electors had a right to bring actions against returning officers touching their right of voting, the commons declared that such an action was a breach of privilege ; and, " That whoever shall presume to commence any action, and all attorneys, solicitors, counsellors, and serjeants-at-law, soliciting, pro- secuting, or pleading in any case, are guilty of a high breach of the privileges of this house." In spite of this declaration, five burgesses of Aylesbury, commonly known as " the Aylesbury men," commenced actions against the constables of their borough, for not allowing their votes. The House of Commons obtained copies of the declara- tions, and resolved, that the parties were " guilty of com- mencing and prosecuting actions," " contrary to the decla- ration, in high contempt of the jurisdiction, and in breach ' 10 Com. J. 227. - See p. 40. 124 COMMITMENT OF PARTIES. of the known privileges of this house."' For which offence, the parties and their attorney were committed to Newgate.* Thence they endeavoured to obtain their release bv writs of habeas corpus, but without success ; and the counsel who had pleaded for the prisoners, on the return of the writs, were committed to the custody of the serjeant-at-arms.^ The lords took part with the Aylesbury men against the commons; and after a noisy session, occupied with addresses, conferences, and resolutions upon privilege, the queen prorogued the Parliament. On this occasion, the commons endeavoured to stop the actions at their commencement, and thus to prevent the courts from giving any judgment. But although this course of proceeding may chance to be effectual, an action cannot be legally obstructed, if the parties be determined to proceed with it. Their counsel may be prevented from pleading, but others would be immediately instructed to appear before the court; and it must not be forgotten, that during a recess, neither house could interfere with the parties or their counsel, and that judgment might be obtained and executed before the meeting of Parliament. This mode of preventing actions, however, is so natural, that it has since been resorted to; but the principle has not been uniformly asserted, and it is difficult to deter- mine whether commencing such actions, in future, will be regarded as a breach of privilege or not. Hur.ictt F. ^^ hen Sir Francis Burdett brought actions against the speaker and the serjeant-at-arms, in 1810, for talcing him to the Tower in obedience to the orders of the House of Com- mons, they were directed to plead, and the attorney-ge- neral received instructions to defend them.^ A committee at the saiiH- time reported a resolution "that the bringing these actions for acts done in obedience to the orders of the house is a breach of privilege," but it was not adopted by the house. The actions proceeded in the regular course, ' 1^ •-■"">• J- •«-«■*• ■ ll>. 44.>. ^ lb. 002. ■• GO lb. 300. Abbot STOCKDALE l\ HANSARD. 125 and the Court of King's Bench sustained and vindicated the authority of the house. The judgment of that court was afterwards affirmed, on a writ of error, by the Exche- quer Chamber, and ultimately by the House of Lords. Within the last few years a series of cases have arisen, in which the authority of the House of Commons, and the acts of its officers, have been questioned. They have caused so much controversy, and have been so fully de- bated and canvassed, that nothing is needed but a succinct statement of the proceedings, and a commentary upon the present position of parliamentary privilege and juris- diction. Messrs. Hansard, the printers of the House of Commons, stockdale v. had printed, by order of that house, the reports of the in- spectors of prisons, in one of which a book published by Stockdale was described in a manner which he conceived to be libellous. He brought an action against Messrs. Hansard during a recess, who pleaded the general issue, and proved the order of the house to print the report. But although this order was held to be no defence to the action, Stockdale had a verdict against him upon a plea of justifi- cation, as the jury considered the description of the work in question to be accurate. On that occasion Lord Chief Justice Denman, who tried the cause, made a declaration adverse to the privileges of the house, which Messrs. Hansard had set up as part of their defence. Li his direction to the jury, his lordship said " that the fact of the House of Commons having directed Messrs. Hansard to publish all their parliamentary reports is no justification for them, or for any bookseller who publishes a parliamentary report containing a libel against any man." In consequence of these proceedings, a committee was appointed, on the meeting of Parliament in 1837, to examine precedents, and to ascertain the law and practice of Parliament in reference to the publication of papers printed by order of the house. 12G STOCKDALE V. HANSARD. Tlie rcsiult oi" these inquiries was the passing of the fol- lowing resolutions by the house : — " That the power of publishing such of its reports, votes, and proceedings as it shall deem necessary or conducive to the public interests, is an essential incident to the constitutional functions of Parliament, more especially of this house, as the representative portion of it. " That by the law and privilege of Parliament, this house has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; and that the institution or prosecution of any action, suit, or other proceeding, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, is a high breach of privilege, and renders all parties concerned therein amenable to its just displea- sure, and to the punishment consequent thereon. " That for any court or tribunal to assume to decide upon mat- ters of privilege inconsistent with the determination of either house of Parliament, is contrary to the law of Parliament, and is a breach and contempt of the privileges of Parliament." Nothing could have been more comprehensive than these resolutions ; they asserted the privilege, and denounced the parties, the counsel, and the courts who should presume to question it; yet Stockdale immediately commenced another action, and the house, instead of acting upon its resolutions, directed Messrs. Hansard to plead, and the attorney-general to defend them. In the former case Messrs. Hansard had obtained judg- ment upon a j)lea which would have availed them equally if they had printed the report upon their own account, like any other bookseller ; but in the second action the privi- leges and order of the house were alone relied upon in their defence, and the Court of Queen's Bench unanimously decided against them. Mill the House of Commons was reluctant to act upon its own resolutions, and instead of punishing the plaintiff and his legal advisers, " under tlie special circumstances of the case," it ordered the damages and costs to be paid. The resolutions, however, were not rescinded, and it was then PRINTED PAPERS. 127 determined that, in case of future actions, Messrs. Hansard should not plead at all, and that the parties should suffer for their contempt of the resolutions and authority of the house. Another action was brought by the same person, and for the same publication. Messrs. Hansard did not plead, the judgment went against them by default, and the damages were assessed by a jury in the Sheriff's Court at GOO/. The sheriffs of Middlesex levied for that amount, but having been served with copies of the resolutions of the liouse, they were anxious to delay paying the money to Stockdale as long as possible, in order to avoid its threatened displeasure. At the opening of the session of Parliament in 1840 the money was still in their hands. The House of Commons at once entered on the consideration of these proceedings, which had been carried on in spite of its resolutions, and in the first place committed Stockdale to the custody of the serjeant-at-arms. The sheriffs were desired to refund the money, and, on their refusal, were also committed. Mr. Howard, the solicitor of Mr. Stockdale, was suffered to escape with a reprimand. The sheriffs retained pos- session of the money until an attachment was issued from the Queen's Bench, ^ when they paid it over to Stockdale. Stockdale, while in prison, commenced a fourth action by the same solicitor, and with him was committed to New- gate for the offence ; and Messrs. Hansard were again ordered not to plead. Once more judgment was entered up against them, and a writ of inquiry of damages issued. Mr. France, the under-sheriff, upon whom the execution of this writ devolved, having been served with the reso- lutions of the commons, expressed by petition his anxiety to pay obedience to them, and sought the protection of the house. He then obtained leave to show cause before the Court of Queen's Bench, on the fourth day of Easter term, why the writ of inquiry should not be executed. ' 11 Adolphus&: Ellis, 253. 128 HOWARD r. gosi^et. Meanwliile tlie imprisonment of the plaintiff and his attorney did not prevent the prosecution of further actions. Ml. Howard's son, and his clerk, Mr. Pearce, having been concerned in conducting such actions, were committed for the contempt; and ^lessrs. Hansard, as before, were in- Piii.lication of stfucted not to plead. At length, as there appeared to be '''''**^ ' no probability of these vexatious actions being discon- tinued, a bill was introduced into the commons, by which proceedings, criminal or civil, against persons for publi- cation of papers printed by order of either house of Par- liament, are to be stayed by the courts, upon delivery of a certificate and affidavit that such publication is by order of either house of Parliament. This bill was agreed to by the lords, and received the royal assent.^ It has removed one ground for disputing the authority of Parliament, but has left the general question of privilege and jurisdiction in the same uncertain state as before. Howard r.r. OS- In executing the speaker's warrant for taking Mr. set aiid others. i i m i i i i l^loward mto custody, the orncers employed by the serjeant- at-arms for that purpose had remained some time in his house during his absence, for which he brought an action of trespass against them. As it was possible that they mijjht have exceeded their authority, and as the rioht of the house to commit was not directly brought into ques- tion, the defendants were, in this case, permitted to appear and defend the action;'' although a clause for staying further proceedings in the action was contained in the bill which was pending, at that time, in the House of Lords, where it was afterwards omitted. This action, after some delay, proceeded to trial. On the L-ith June 1842, the serjeant-at-arms informed the house that he had received a subpoena to attend the trial on the part of the defendants ; and leave was given to him to attend and trive evidence. At the same time the clerk of the journals who had received a subpoena, had leave to ' :» i: 4 Vi.t. r. !». s o-i Com. .J. 23G. Hans. Deb. 31 Mar. 1840. HOWARD V. COSSET. 129 attend and give evidence, and to produce the Journal of tlie liouse.^ Tlie cause was tried before Lord Deunian, in the sittings after Michaelmas term, 1842, when Parha- ment was not sitting, and a verdict was given for the plaintiff, with 100/, damages.* This verdict, however, did not proceed upon any question of the jurisdiction of the house; but simply on the ground that the officers had exceeded their authority, by remaining in the plaintiff's house, after they were aware of his absence froin home. The attorney-general, who appeared in their defence, ad- mitted that they were not justified in their conduct ; and the case can scarcely be cited as one of privilege. But other actions have since been commenced by Mr. Howard ag-ainst Sir William Gosset and W. Bellamy, a messenger of the house, for taking him into custody, and conveying him to Newgate, in obedience to orders of the house and the speaker's warrants.^ The house has given them leave to appear and defend the actions, and has directed the attorney-general to defend its officers;'* but the actions have not yet come on for trial. The present position of privilege is, in the highest Present posi- degree, unsatisfactory. Assertions of privilege are made lege.'^ ^"^ ' in Parliament and denied in the courts ; the officers who execute the orders of Parliament are liable to vexatious actions, and if verdicts are obtained against them, the damages and costs are paid by the Treasury. The parties who bring such actions, instead of being prevented from proceeding with them by some legal process acknowledged by the courts, can only be coerced by an unpopular exer- cise of privilege, which does not stay the actions. If Par- liament were to act strictly upon its own declarations, it would be forced to commit not only the parties, but their counsel and their attornies, the judges, and the sheriffs ; and so great would be the injustice of punishing the public • 97 Com. J. 378. ' 11 Adolphus & Ellis, 273. ' 98 Com. J. 59. * 98 Com. J. 118. Hans. Deb. 13 March 1843. K 130 IIoWAKD r. COSSET. olliccis of justice lor administering the law according to their consciences and oaths, that Parhament would shrink from so violent an exertion of privilege. And again, the intermediate course adopted in the case of Stockdale v. Hansard, of coercing the sheriff for executing the judg- ment t»f the court, and allowing the judges who gave the obnoxious judgment to pass without censure, is incon- sistent in principle, and betrays hesitation on the part of the house — distrust of its own authority, or fear of public opinion. A remedy has already been applied to actions connected with tiie printing of parliamentary papers; and a well-con- sidered statute, founded upon the same principle, is the only mode by which collisions between Parliament and the courts of law can be prevented for the future. The proper time for proposing such a measure is when no con- test is pending ; and when its provisions may be calmly examined, without reference to a particular privilege, or a particular judgment of the courts. It is not expected or desired tiiat Parliament should surrender any privilege that is essential to its dignity, and to the proper exercise of its authority ; but the privileges of both houses should be secured by a legislative definition ; and a mode of en- forcing them should be adopted which would be binding upon the courts. INTRODUCTORY REMARKS. 131 BOOK II. PRACTICE AND PROCEEDINGS IN PARLIAMENT. CHAPTER VII. INTRODUCTORY REMARKS. MEETING OF A NEW PARLIA- MENT. ELECTION AND ROYAL APPROBATION OP THE SPEAKER OF THE COMMONS. OATHS. QUEEn's SPEECH AND ADDRESSES IN ANSWER, PLACES OF PEERS AND MEMBERS OF THE HOUSE OF COMMONS. ATTENDANCE ON THE SERVICE OF PARLIAMENT. OFFICE OF SPEAKER IN BOTH HOUSES. PRINCIPAL OFFICERS. JOURNALS. ADMISSION OF STRANGERS. PROROGATION. The proceedings of Parliament are regulated chiefly by intro«luetory ancient usage, or by the settled practice of modern times, apart from distinct orders and rules : but usage has fre- quently been declared and explained by both houses, and new rules have been established by positive orders and re- solutions. Ancient usage, when not otherwise declared, is Ancient nsnge. collected from the Journals, from history and early trea- tises, and from the continued experience of practised members. Modern practice is often undefined in any Modern prac- written form; it is not recorded in the Journals ; it is not ^^^' to be traced in the published debates ; nor is it known in any certain manner but by personal experience, and by the daily practice of Parliament in the conduct of its various descriptions of business. Numerous orders and resolutions for regulating the K 2 l.'l-i INTH(iUr(M()RY REMAnKS. proceedings ot" Parliament are to be found in the Journals of both iiousi's, wliich may be divided into, 1, standing- orders ; 2, sessional orders ; and 3, orders or resolutions undftermined in regard to their permanence, stuiidiiig or- 1. Botii houses have agreed, at various times, to stand- ilers. ing orders, for the permanent guidance and order of their proceedings; which, if not vacated or rescinded, endure from one Parliament to another, and are of equal force in all. They occasionally fall into desuetude, and are re- garded as practically obsolete ; but, by the law and custom of Parliament, they are binding upon the proceedings of the house by which they were agreed to, as continual bye-laws, until their operation is concluded by another vote of the house upon the same matter. In the House of Lords particular attention is paid to the making and recording of standing orders. No motion may be granted for making a standing order, or for dis- pensing with one the same day it is made, nor before the house has been summoned to consider it;' and every standing order, when agreed to, is added to the " Roll of Standing Orders," which is carefully preserved and published from time to time. In the House of Commons no such care is taken ; for when an order or resolution has been ao;reed to be made a standing order, it appears in that form in the Journals ; but there is no authorized collection of the standing orders, except in relation to private bills. Sessional r.r- -2. ^t the Commencement of each session both houses agree to certain orders and resolutions, which, from being constantly renewed from year to year, are evidently not intended to endure beyond the existing session. They are few in number, and have but a partial effect upon the business of Parliament. iiiulion"'"' "" ^' '^*''" "1"''"''^'"" of orders or resolutions of either house, of which the din-ation is undetermined, is not settled upon any certain principle, liy the custom of Parliament they ' I-nnls'S. O. No. 1(1 1. MEETING OF PAUM VMKNT. 133 would be concluded by a prorogation; but many of tlieui are practically observed »id held good in succeeding sessions, and by different Parliaments, without any formal renewal or repetition. In such cases, it is presumed that the house regards its former orders as declaratory of its practice; and that without relying upon their absolute validity, it agrees to adhere to their observance as part of the settled practice of Parliament. In addition to these several descriptions of internal statutes and authority, by which the proceedings of both houses are l"'^''"^''^ '^^• regulated, they are governed, in some few particulars, by statutes and by royal prerogative. The proceedings of each house separately, or in con- pian of the sc- uexion one with the other, and their joint or separate com- '^°" ' "" * munications with the Crown (whether determined by usage, by orders of either house, by law, or by prerogative), will be followed in the order which appears the best adapted for rendering them intelligible, without repetition, and apart from any pi-esumption of previous knowledge. For which pui'pose, it is proposed, in this chapter, to present an out- line of the general forms of procedure, in reference to the meeting, sittings, adjournment, and prorogation of Parlia- ment; and, in future chapters, to proceed to the expla- nation of the various modes of conducting parliamentary business, with as close an attention to methodical arrange- ment as the diversity of the subjects will allow. Where the practice of the two houses differs, the variation will appear in the description of each separate ])rocceding; but wherever there is no difference, one account of a rule or form of proceeding, without more particular explana- tion, must be understood as applicable equally to both houses of Parliament. On the day appointed by royal proclamation for the Mwtinf^ofu, first meeting of a new Parliament for despatch of busi- ^^^'^^l^^^ ness, the members of both houses assemble in their respec- K 3 131 MEETING OK PARLIAMENT. five chambers. In the House of Lords, the lord chan- cellor acquaints the house, # "that her Majesty not thinking it fit to be personally present here this (lav, had been pleased to cause a commission to be issued under the great seal, in order to the opening and holding of this Parliament." The lords commissioners, being in their robes, and seated on a form between the throne and the woolsack, then command the gentleman usher of the black rod to let the connuons know " the lords commissioners desire their immediate attendance in this house to hear the commis- sion read." Meanwhile, the clerk of the Crown in Chancery has delivered to the clerk of the House of Commons a book, containing the names of the members returned to serve in the Parliament ; after which, on receiving the message from the black rod, the commons go up to the House of Peers. The lord chancellor then addresses the members of both houses, and acquaints them that her Majesty has been pleased " to cause letters patent to be issued, under her great seal, consti- tuting us, and other lords therein mentioned, her commissioners, to do all things in her Majesty's name, on her part necessary to be performed in this Parliament," &c. These letters patent are next read at length by the clerk ; after which the lord chancellor again addresses both houses, and acquaints them " that her Majesty will, as soon as the members of both houses bhull be sworn, declare the causes of her calling this Parliament; and it being necessary a speaker of the House of Commons shoidd be first cliosen, that you, gentlemen of the House of Commons, repair to tlie \Aiice where you are to sit, and there proceed to the iippoiiitment of some proper person to be your speaker; and that you present such person whom you shall so choose here, to-morrow (at an hour stated), for her Majesty's royal ajjprobation." The commons immediately withdraw, and return to their own lK)use, while the House of Lords is adjourned during pleasure, to unrobe. On fliat liouse being resumed, the INTRODUCTIOiN OF PEERS. 135 prayers, with wliich the business of each day is commenced, are read for the first time, by a bishop, or if no bishop be present, by any peer in holy orders.^ The lord chancellor then takes the oaths, and takes and subscribes the oath of abjuration. The certificate of the clerk of the Crown of the return of the 10 representative peers of Scotland is next read, after which the lords who are present take the oaths required by law,"^ and subscribe the roll of the lords spiritual and temporal. At this time, also, peers are introduced who have rece'ved Introduction of writs of summons, or who have been newly created by letters patent, and they present their writs or patents to the lord chancellor kneeling on one knee.^ They are in- troduced in their robes, between two other peers of their own dignity, also in their robes, and are preceded by the o-arter kinp- of arms (or the gentleman usher of the black too \ O rod, York herald, or the yeoman usher Clarenceux king- at-arms, officiating for him), the earl marshal, and the lord great chamberlain, and they are then conducted to their seats, according to their dignity. When a new representative peer of Ireland has been elected, the clerk of the Crown in Ireland attends with the writs and returns with his certificate annexed, which cer- tificate is read and entered on the Journal.'* A bishop is introduced by two other bishops, and con- And bishops. ducted to his seat amongst the spiritual lords ; but without the formalities observed in the case of the temporal peers. The representative bishops of Ireland are not introduced by other bishops, but take the oaths, subscribe the roll, and proceed to their seats without any particular ceremony. With regard to peers by descent, or by special limitation in remainder, there are the following standing orders : ' 73 Lords' J. 568. '^ These are the oath of fidelity, the oath of supremacy, the oath of anjura- tion, or tlie oath to be taken by Roman-catholics under 10 Geo. 4, c. 7 ; wiiich are inserted at length in the Appen.lix. 3 is Lords' J. 569. * lb. 575. K 4 maiuder. 136 INTRODUCTION OF PEER?. •' That all peers of this realm by descent, being of the age of one anil twenty years, have right to come and sit in the liouse of peers without any introduction. " That no such peers ought to pay any fee or fees to any herauld •upon their first coming into the House of Peers. " That no such peers may or shall be introduced into the House of Peers by any herauld, or with any ceremony, though they shall desire the same.' By sjtecial liini- " That every peer of this realm claiming by virtue of a speciiil utions in re- limitation in remainder, and not claiming by descent, shall be introduced.'"' The commons, in the meantime, proceed to the election of their speaker. A member, addressing himself to the clerk,"^ (who, standing up, points to him, and then sits down), proposes to the house some other member then present, and moves that he " do take the chair of this liouse as speaker," which motion is seconded by another member. If no other member be proposed as speaker, the motion is ordinarily supported by an influential member (generally the leader of the House of Commons),"* and the member proposed is called by the house to the chair; upon which he stands up in his place and expresses his sense of the honour proposed to be conferred upon him, and submits himself to the house; the house again unanimously call him to the chair, when his proposer and seconder take him out of his place and conduct him to the chair. But if another member be proposed, a similar motion is made and seconded in regard to him, and both the candidates address themselves to the house. A debate ensues in relation to both the members, in which the clerk continues to act the part of speaker, standing up and pointing to the members as they rise to speak, and then sitting down. When this debate is closed, the clerk puts the question that the member fii-st proposed " do take the chair of this house as speaker," and if the house divide, he directs one party to go to the right and the other to the left, and appoints a teller for each. If the majority be in favour of tiie mem- ' lords' S. O. No. 88. Mb. No. 89. ' See p. lo7. ^ 96 Com. J. 463. ELECTION OF SPEAKER. 137 ber first proposed, he is at once conducted to the chair ; but if otherwise, a similar question is put in reUition to the other, which being resolved in the affirmative, that member is conducted to the chair by his proposer and seconder. The speaker elect, on being conducted to the chair, stands on the upper step and " expresses his grateful thanks"' or "humble acknowledgments:^ or " true sense of the high honour the house had been pleased to confer upon himj"^ and then takes his seat. The mace, which up to this time has been under the table, is now laid upon the table, where it is always placed during the sitting of the house, with the speaker in the chair. Mr. Speaker elect is then congratulated by some member, and the house adjourns. The house meets on the following day, and Mr. Speaker Royal appro- elect takes the chair and awaits the arrival of the black speaker elect. rod from the lords commissioners. When that officer has delivered his message, Mr. Speaker elect, with the house, goes up to the House of Peers and acquaints the lords commissioners, "that in obedience to her Majesty's commands her ^lajesty'sfaitli- ful commons, in the exercise of their undoubted right and privi- lege, have proceeded to the election of a speaker, and as the object of their choice he now presents himself at your bar, and submits himself with all humility to her Majesty's gracious approbation." In reply, the lord chancellor assures him of her IVIa- jesty's sense of his sufficiency, and " that her Majesty most fully approves and confirms him as the speaker."'* When the speaker has been approved, he lays claim, on behalf of the commons, " by humble petition to her Majesty, to all their ancient and undoubted rights and ' 90 Com. J. 5. ^ 96 lb. 4G5. » 94 lb. 274. * 73 Lords' J. 571. The forms now observed have been stated; but before they were adopted it was customary for the speaker elect to declare that lie felt the difficulties of his high and arduous office, and that, " if it should be hit Majesty's pleasure to disapprove of this choice, her Majt'sty's faithful com- mons will at once select some other member of tlieir house better qualified to fill the station than himself." 138 SPEAKER OF THE COMMONS. P|>oak(Ti'lecteC..m..T. i:?l. Ml). 328. ' 84 11). 303. 311.314. 32j. • Hrt III. 41. See also report on hi; case, 18:^.3 (0). '■ JX) 111. r,. 'J-2 111. 4!)0. 40.J. Votfs, 1843, p. 1441. '' 4.1 (ko. 3, c. .I. oH (ieo. 3, c. 48, &e. (private). ■' m Com, J. 148. n? Ih. 28a GO lb. 144. 71 lb 4-J. 8.5 lb. 3^3. OATHS AND QUALIFICATION. 141 four ; but by an Act G & 7 Vict., c. 6, the lords are now enabled to take the oaths until five o'clock in the after- noon. The same Acts order the oaths to be taken, in both houses, at the table in the middle of the house, with the house sitting, and the speaker " in his place," or " in the chair." This provision causes the ordinary meeting of the House of Commons to be fixed for a quarter before four o'clock in the afternoon ; and the appearance of a member to be sworn, before four o'clock, immediately supersedes any other business.' Every member of the House of Commons (not being the Declaration of eldest son of a peer, or otherwise exempted from the provi- sions of the Qualification Act), when he takes the oath, delivers in, at the same time, a declaration of his property qualification,- without which he may not sit or vote ; and if he makes a false declaration, he is guilty of a misde- meanor.^ He also subscribes the Return Book, in the custody of the clerk of the house. Members returned after the general election, take the New members ,., \ c r '11 lu sworn after ge- oaths m the same manner, betore tovir o clock ; and by an neral election. ancient order and custom, and also by a resolution of the 23d February 1G88, " they are introduced to the table between two members, making their obeisances as they go up, that they may be the better known to the house;'"* but this practice is not observed in regard to members who come in upon petition,^ for they are supposed to have been returned at the general election. Another difference of form is to be remarked, in refer- ence to new members and to members seated on petition, when coming to be sworn. The former not being on the original roll of returns, must bring with them a certificate of their return from the clerk of the Crown ; but the latter having become members by the adjudication of an election ' 2 Hats. 90. * See supra, p. 26, and Appendix Tlie proper forms are to be obtained at the " Public Business Otfice". M & 2 Vict. c. 48, s. fi-8. * 10 Coin. J. 34. ' 2 Hats. 85 h. 1 12 QUEEN S SPEECH. committee, the dejjiity-elei k ot the (Jiown amends the return hv order of" the house, and their names are conse- quently upon the roll as if they had been originally returned. Dtiiiisc of tlie In the event of the demise of the Crown, all the mem- bers of both houses again take the oaths.^ Queen's speech. To proceed with the business of the session. When the greater part of the members of both houses are sworn, the causes of summons are declared by her Majesty in person, or by connnission. This proceeding is, in fact, the true commencement of the session; and in every session but the first of a Parliament, as there is no election of a speaker, nor any general swearing of members, the session is opened at once by the Queen's speech, without any pre- liminary proceedings in either house. Tiic Queen pre- When the Queeu meets Parliament in person, she pro- sent. . 1 ' r ceeds m state to the House of Lords, where, " seated on the throne, adorned with her crown and regal ornaments, and attended by her officers of state," (all the lords being in their robes, and standing while her Majesty is present,) she commands the gentleman usher of the black rod, through the lord great chamberlain, to let the commons know, " it is her Majesty's pleasure they attend her immediately in this house." The usher of the black rod goes at once to the door of the House of Commons, which he strikes with his rod ; and on being admitted, he advances up the middle of the house towards the table, making three obeisances to the chair, and says, " Mr. Speaker, the Queen commands this honourable house to attend her Majesty innnediately in the House of Peers." He then withdraws, still making obeisances; nor does he turn his back upon the house until he has reached the bar. The speaker, witli the Ik. use, inmiediately goes up to the bar of the House of Lords; upon which the Queen reads her speech to both houses of Parliament, which is delivered ' Anne, c. 7. QUEEN S SPEECH. 143 into her hands by the lord chancellor, kneeling npon one knee. When her Majesty is not personally present, the causes By commission. of summons are declared by the lords commissioners. The gentleman usher of the black rod is sent, in the same manner, to the commons, and acquaints the speaker that the lords commissioners desire the immediate attendance of this honourable house in the House of Peers, to hear the commission read : and when Mr. Speaker' and the house have reached the bar of the House of Peers, the lord chancellor reads the royal speech to both houses. When the speech has been dehvered, either by her Majesty in person, or by commission, the House of Lords is adjourned during pleasure, and the commons separate for an hour or two, without any formal adjournment ; and if any members desire to be sworn on that day, it is usual for the house to reassemble before four o'clock. When the houses are resumed in the afternoon, the main Report of business is for the lord chancellor in the lords, and the speaker in the commons, to report her Majesty's speech. In the former house the speech is read at length by the clerk, and in the latter by the speaker, who states that for greater accuracy he had obtained a copy. But before this is done it is the practice in both houses to read some bill a first Bill read pro time pro forma, in order to assert their right of deliberating -''" "" " without reference to the immediate causes of summons. This practice in the lords is enjoined by a standing order.' In the commons the same form is observed by ancient custom only. There is an entry on the Journal of the 22d March 1603, " That the first clay of every sitting, in every Parliament, some one bill, and no more, receiveth a first reading for form's sake."* And this practice has continued till the present time. By the lords' standing order it would appear necessary that ' Lords' S. O. No. 8. ^ 1 Com. J. 150 See also suj>r(i, p. 34. I 14 ADUUESS IN ANSWER. this t'ovm should be observed inunediately after the oaths have been taken ; but in the commons the bill is only re- quired to be read before the report of the Queen's speech, and other business is constantly entered upon before the reading of the bill, as the issue of new writs, the con- sideration of matters of privilege,^ the presentation of papers, and the usual sessional orders and resolutions.^ Atldnss. When the royal speech has been read, an address in an- swer to it is moved in both houses. Two members in each house are selected by the Administration for moving and seconding the address, and they appear in their places in - court dresses for that purpose. The address is an answer, paragraph by paragraph, to the Queen's speech. Amend- ments may be made to any part of it, and when the question for an address, whether amended or not, has been agreed to, a select committee is appointed "to prepare" or " draw up " an address. When the report is received from this committee, amendments may still be made to the address before it is agreed to : and after it has been finally agreed to, it is ordered to be presented to her Majesty. When the speech has been delivered by the Queen in per- son, the address is presented by the whole house ; but when it has been read by the lords commissioners, the address of the upper house is presented " by the lords with white staves;"^ and the address of the commons by " such members of the house as are of her Majesty's most honourable privy council." When the address is to be presented by the whole house, the " lords with white staves " in the one house, and the privy councillors in the other, are ordered to know her Majesty's pleasure when siie will be attended with the address. Each house meets when it is understood that this ceremony will take place, and aftrr her Majesty's pleasure has been reported,'' pro- ceeds separately to the palace. The jiroceedings upon ' 95 Com. J. 3. 2 f)(5 j,, 4^57 ' of the royal liouscliold. * 7! Lords' J. 10. !)6 Com. J. 1 1. PLACES OF PEERS. 145 addresses need not be pursued any further, as tliey will be described more fully in a separate chapter ' ; but a re- cent precedent is deserving of notice. On the 3d February 1844 the House of Commons met for tlie purpose of presenting the address in answer to the Queen's speech, but Sir Robert Peel stated, " that when the house yesterday had agreed to the address, and had resolved that it should be presented to her Majesty by the whole house, he had announced, for the convenience of members, that her Majesty would probably appoint to be attended this day at two o'clock ; that lier Majesty-was most desirous to be attended by her faithful commons, but that it was his painful duty to communicate to the house, that intelligence had been received of the death of his royal highness the Duke of Saxe Cobourg-Gotha, the father of the illustrious prince the con- sort of her Majesty, which, although not strictly official, left little doubt of the melancholy event ; that, under those circumstances, he would propose that the resolution for presenting the address to her Majesty by the whole house, should be rescinded, and that the address should be presented by such members of the house as are of her Majesty's most honourable privy council;" which was done accordingly. In the upper house Places in the " The lords are to sit in the same order as is prescribed by the Act Houseof Lords, of Parliament, except that the lord chancellor sitteth on the wool sack as speaker to the house." ■^ But this order is not observed with any strictness. The bishops always sit together in the upper part of the house, on the right hand of the throne ; but the lords temporal are too much distributed by their offices, by political di- visions, and by the part they take in debate, to be able to sit according to their rank and precedence. The members of the administration sit on the front bench on the right hand of the woolsack, adjoining the bishops; and the peers who usually vote with them, occupy the other benches on that side of the house. The peers in opposition are ranged on the opposite side of the house ; while many who desire to maintain a political neutrality, sit upon the cross benches which are placed between the table and the bar. Yet the standing order is occasionally enforced. ' Chapter XVI. ' Lords' S. O. No. 1, 31 Hen. 8, c. 10. L 146 PLACE3 IN THE COMMONS. On the 20th January 1740, the Roll of Standing Orders was read, and the lords present took their due places ; ' and again on the 1st Fel)ruary 1771.'^ On the lUth February 1740, "it was insisted that the lords should take tiieir due places, and the Act 31 Hen. 8, * for placing of the lords,' being read, it was moved that the house be called over, but this motion was negatived ;"* and on the 4th December 1741, " it was insisted on that the lords should take their due places."* On the 22d January 1740, it was agreed by the house that the end of the lowest cross bench, next the bishops' bench, is the place of the junior baron. ^ Places in the In the commons no places are particularly allotted !o members ; but it is the custom tor the tront bench on the right hand of the chair to be appropriated for the members of the Administration, which is called the treasury or privy councillor's bench. The front bench on the opposite side is also usually reserved for the leading members of the opposition, who have served in high offices of state; but other members occasionally sit there, especially when they have any motion to offer to the house. And on the opening of a new Parliament, the members for the city of London claim the privilege of sitting on the treasury or privy councillors' bench. It is understood that members who have received the thanks of the house in their places, are entitled, by courtesy, to keep the same places during the Parliament;" and it is not uncommon for old members who are constantly in the habit of attending in one place, to be allowed to occupy it without disturbance. All other members who enjoy no place by courtesy, upon any of these grounds, can only secure a place for the debate by being present at prayers. On the back of each seat there is a bronze plate, and in this a member may put a card^ with his name, if he be at prayers; but by a standing order of the 6th April 1835, " No member's ' 25 Lords' J. 572. a 33 ib. 47. ■> 25 lb. 593. * 20 Ib. Cards, with tlic words " at prayers " printed on them, are always put upon the table for the convenience of members. SERVICE or PARLIAMENT. 147 name may be affixed to any seat in the house before tlie hour of prayers." ^ Places secured at prayers, may be kept the whole evening, unless there be a division, or unless the members attend the speaker to the House of Lords, when there is a commission for giving the royal assent to bills. Dis- putes sometimes arise when members leave their seats for a short time, and on returning, find them occupied by others. On the 14th April 1842, Mr. Speaker thus ex- plained the rule of the house upon this point : — " A member having been present at pra5-ers, and having put a card at the back of his seat, is entitled to it for the whole night, unless a division should intervene. But should a member who had not been present at prayers, leave liis seat, there is no rule of the house which gives him a claim to return to it ; but by courtesy it is usual to permit a member to secure it, in his absence, by a book, glove, or hat." Every member of the Parliament is under a constitu- Service of Par- tional obligation to attend the service of the house to which he belongs. A member of the upper house has the privilege of serving by proxy, by virtue of a royal license which authorizes him to be personally absent, and to ap- point another lord of Parliament as his proxy.* But in the House of Commons the personal service of every member is required. By an Act, 6 Henry 8, c. 16, it was declared that no member should absent himself " without the license of the speaker and commons, which license was ordered to be entered of record in the book of the clerk of the Parliament, appointed for the Commons' House." The penalty upon a member for absence was the forfeiture of his wages ; and although that penalty is no longer appli- cable, the legislative declaration of the duty of a member remains upon the statute-book. On ordinary occasions, however, the attendance of mem- Attendance of bers upon their service in Parliament is not enforced by any regulation; but when any special business is about to ' 90 Cora, J. 202. See also 22 Ih. 40G. 414. - See Chapter XI f. L 2 148 ATTENDANCE OF MEMBERS. 1)0 undertaken, means are taken to secure their presence. Lords Slim- ]„ j|,^. ^ppep house, the most common mode of obtaining moiuil. ' ' 11111 a hirirer attendance than usual, is to order the lords to be summoned ; upon which a notice is sent to each lord to acquaint him " that all the lords are summoned to attend the service of the house " on a particular day. No notice is taken of the absence of lords who do not appear, but the name of every lord who is present during the sitting of the house, is taken down each day by the clerk of the house and entered on the Journals. Call of tlie When any urgent business is deemed to require the at- II(>lJ^f•ut Lords. ^ » i tendance of the lords, it has been usual to order the house to be called over ; and this order has sometimes been en- forced by fines and imprisonment upon absent lords. ^ The most important occasion on which the house was called over in modern times, was in 1820, when the bill for the degradation of Queen Caroline was pending. The house then resolved, " That no lord do absent himself on pain of incurring a fine of 100 Z. for each day's absence, pending the three first days of such proceedings, and of 50 Z. for each subsequent day's absence from the same ; and in default of payment, of being taken into custody. That no excuses be admitted, save disability from age, being 70 and upwards, or from sicknes-;, or of being abroad, or out of Great Britain on public service, or on account of the death of a parent, wife, or child. That every peer absenting himself from age or sickness do address a letter to the lord chancellor, stating, upon his honour, that he is so disabled ; and that the lord chancellor do write a letter to the several peers and prelates with these reso- lutions." * The lords were accordingly called over by the clerk on ' All the cases ia wliicli this order has been enforced, and the various modes of enforcement, are collected in tlie o3d volume of the Lords' Journals, (p. iiTiC, et seq.) There is an order on the Roll of Standing Orders (No. 27), whirli may be regarded as olisolete, viz., " It is to be observed, that the first or second day the house l>e called, and notice to be taken of sucli lords as either have not si-nt thuir i)roxie», or are excused by his Majesty for some time." » 53 I^irds' J. 304. ATTENDANCE OF MEMBERS. 14'J each day during the pendency of tliat bill, beginning, according to ancient custom, with the junior baron. When the House of Commons is ordered to be called Call of die over, it is usual to name a day which will enable the mem- moUg'' " bers to attend from all parts of the country ; but the inter- val between the order and the call has varied from one day * to six weeks.* If it be really intended to enforce the call, not less than a week or ten days should intervene between the order and the day named for the call. The order for the house to be called over is always accompanied by a resolu- tion, " that such members as shall not then attend, be sent for, in custody of the serjeant-at-arms." On the day appointed for the call, the order of the day is read, and proceeded in, or disharged at the pleasure of the House. If proceeded in, the names are called over from the Return Book, according to the counties, which are arranged alpha- betically. The members for a county are called first, and then the members for every city or borough within that county. The counties in England and Wales are called first, and those of Scotland and Ireland in their order. This point is mentioned, because it makes a material dif- ference in the time at which a member is required to be in his place. The names of members who do not answer when called are taken down by the clerk of the house, and are after- wards called over again. If they appear in their places at this time, or in the course of the evening, it is usual to excuse them for their previous default ; ^ but if they do not appear, and no excuse is offered for them, they are ordered to attend on a future day."* It is also customary to excuse them if they attend on that day, or if a reasonable excuse be then offered ; as, that they were detained by their own illness,^ or by the illness or death of near relations f by public service,'^ or by being abroad.^ If a member should 77 lb. 101. 5 80 lb. 130. 8 91 lb. 278. " 87 Com. J. 311. 3 80 lb. 147. * 84 lb. 106. « 80 lb. 130. ' 80 lb. 130. L 3 150 ATTENDANCE OF MEMBERS. not attend, and no excuse is offered, he is liable to be com- mitted to the custody of" the serjeant-at-arms, and to the payment of the fees incident to that commitment,^ But, instead of committing the defaulters, the house sometimes names another day for their attendance,*'' or orders their names to be taken down.^ Lr, lb. lo:}. ^ 90 ib. 129. e 91 n, ^9 ' Hfi Ib. 1:K>. » H:» lb. 190. » 92 lb. 314. '» To lb. .338. &2 lb. 370. W3 Ib. «G3. ATTENDANCE OF MEMBERS. 151 The upper house may proceed with business if only three Number prc- lords be present ; but the commons require as many as 40, including the speaker, to enable them to sit. This rule, however, is only one of usage, and might be altered at pleasure. In 1833, it was determined that the house should sit from twelve o'clock till three, for private business and petitions ; when it was resolved, that in the morning sit- tings, the house should transact business with only 20 members.' Immediately after prayers each day, the speaker counts the house, and, if 40 members be not present, he waits until four o'clock, when he again counts; and, if the proper number have not arrived before he has ceased counting, he adjourns the house, without a question first put, until the following day. If the house met at an earlier hour, the speaker, without a prior resolution of the house, could not adjourn the house for want of 40 members, but business would be suspended until the proper number were present ; and at four o'clock he would adjourn the house. The only exception to this rule is when a message is received Commission, from the Queen or the lords commissioners, for the atten- dance of the commons in the House of Lords. This pro- ceedino; often occurs in the course of a session, for the purpose of giving the royal assent to bills, from time to time. After the house has been made, if notice be taken by a member that 40 members are not present, the speaker im- mediately tells the house; and, when it is before four o'clock, business is suspended until the proper number come into their places ; but if after four o'clock, the speaker at once adjourns the house until the following day.^ When it appears, on the report of a division, after four o'clock, that 40 members are not present, the house is adjourned > 88 Com. J. 95. ' Tlie importance attached to the hour of four is said to arise from the provisions of the Acts which require the oaths to be taken between the hours of nine in the morning and four in the afternoon. 2 Hats. 1)0. L 4 152 OFFICE OF SPEAKER. iiuniediately ; but when tlie house is in committee, and 40 members are discovered to be wanting, either upon a divi- sion, or upon notice being taken of the fact, the chairman reports the circumstance ; when the speaker again tells the house, and, if 40 members be not then present, he adjourns the house forthwith. When these accidents happen on Saturday, the speaker adjourns the house until Monday.* Saturday not being an ordinary day of meeting, it is usual, at an early hour on Friday, to resolve that the house, on rising, do adjourn till Monday next, lest the speaker should AiijouniiiR-nt, be obUged, by the want of members, to adjourn the house till Saturday. Except from these causes, the house can only be adjourned by Mr. Speaker, upon question put and resolved in the affirmative.^ Speaker of tiie The duties of the lord speaker of the upper house, and of House of Lords. , , ^ , the speaker of the commons, will appear in the various proceedings of both houses, as they are explained in different parts of this work ;^ but a general view of the office is necessary, in this place, for understanding the forms of parliamentary procedure. By a standing order of the lords it is declared to be the duty of the lord chancellor, or the lord keeper of the great seal of England, ordinarily to attend as speaker; but if he be absent, or if there be none authorized under the great seal to supply that place in the House of Peers, the lords may choose their own speaker during that vacancy.* It is singular that the president of this deliberative body is not necessarily a member. It has frequently happened that the lord keeper has officiated, for years, as speaker, without having been raised to the peerage ; and on the 22d No- vember 1830, Mr. Brougham sat on the woolsack as speaker, being at tiiut time lord chancellor, although his patent of creation as a peer had not yet been made out.' The woolsack, indeed , is not strictly within the house, for the ' 7» Com. J. 8. ' S. O. U Com. J. OGO. » See Index, tit. « Si'EAKKk." * Lords' S. O. No. 3. ^ 63 Lords' J. 114. OFFICE OF SPEAKER. 153 lords may not speak from that part of the chamber, and if there on a division, their votes are not reckoned. When the great seal is in commission, it is usual for Great seal in the Crow^n to appoint the chief justice of the Court of Queen's Bench, or Common Pleas, or the chief baron of the Exchequer, to be lord speaker ; and at all times there are deputy speakers appointed by commission to officiate Deputy as speaker, during the absence of the lord chancellor or ^^^^'^ ^"' lord keeper. When the lord chancellor and all the deputy speakers are absent at the same time, the lords elect a speaker pro tempore ; but he gives place immediately to Speaker -pro any of the lords commissioners, on their arrival in the ^"'^^" house ; w^ho, in their turn, give place to each other ac- cording to their precedence, and all at last to the lord chancellor. The duties of the office are thus generally defined by Duties of speaker in the the standmg orders : — lords. " The lord chancellor, when he speaks to the house, is always to speak uncovered, and is not to adjourn the house, or to do any- thing else as mouth of the house, without the consent of the lords first had, except the ordinary thing about bills, which are of course, wherein the lords may likewise overrule ; as, for preferring one bill before another, and such like ; and in case of difference among the lords, it is to be put to the question ; and if the lord chancellor will speak to anything particularly, he is to go to his own place as a peer."' The position of the speaker of the House of Lords is somewhat anomalous ; for though he is the president of a deliberative assembly, he is invested with no more au- thority than any other member ; and if not himself a member, his office is limited to the putting of questions, and other formal proceedings. Upon points of order, the speaker, if a peer, may address the house; but as his opinion is liable to be questioned, like that of any other peer, he does not often exercise his right. ' Lords' S. 0. No. 2. But if lord chancellor, he goes, hy virtue of his office, to the left of the chamber above all dukes not being of tlie blood royal. 31 Hen. 8, c. 10, s. 4. 154 OFFICE OF SPEAKER. Spoaker of the The duties of the speaker of the House of Commons cumiuuns. are as various as they are important. He presides over the dehberations of the house, and enforces the observance of all rules for preserving order in its proceedings ; he puts all questions, and declares the determination of tiie house. As " mouth of the house," he conmiunicates its resolutions to others, conveys its thanks, and expresses its censure, its reprimands, or its admonitions. He issues warrants to execute the orders of the house for the com- mitment of offenders, for the issue of writs, for the attend- ance of witnesses, for the bringing up prisoners in custody, and, in short, for giving effect to all orders which require the sanction of a legal form. He is, in fact, the repre- sentative of the house itself, in its powers, its proceedings, and its dignity. When he enters or leaves the house, the mace is borne before him by the serjeant-at-arms ; when he is in the chair, it is laid upon the table ; and at all other times, when the mace is not in the house, it is with the speaker, and accompanies him upon all state occasions. His rank. In rank, the speaker takes precedence of all commoners, both by ancient custom and by legislative declaration. The Act 1 Will. & Mary, c. 21, enacts, that the lords com- missioners for the great seal " not being peers, shall have and take place next after the peers of this realm, and the speaker of tlie House of Commons." When absent In the absence of the speaker, there is no provision for supplying liis place by a deputy speaker or speaker pro tempore, as in the upper house ; and when he is un- avoidably absent, no business can be done, but the clerk acquaints the house with the cause of his absence, and j)uts the question for adjournment.* It seems that some doubts were formerly entertained whether the house could be adjourned in this manner, otherwise tlian from day to «l:iy, hut many precedents show that there is no hmitation as to the p(Miod of adjournment in such cases.'^ When the sj)eaker has been so jU as to be unable to at- ' H3 Com. J. 647. • -ij lb. 532. 39 lb. 841. 44 lb. 4o. OFFICE OF SPEAKER. 165 tend for a considerable time, it has been necessary to elect another speaker, with the usual formalities of the permission of the Crown, and the royal approval. On the recovery of the speaker, the latter resigns or falls sick, and the former is re-elected, with a repetition of the same cere- monies.^ The difference in the constitution of the office of speaker office of in the two houses has an important influence upon the twiThouses. power of each house in regard to its own sittings. In the upper house the speaker may leave the woolsack, but his place is immediately supplied by another speaker, and the proceedings of the house are not suspended. Thus, on the 22d April 1831, when the king was approaching to prorogue Parliament, the lord chancellor suddenly left the woolsack to attend his Majesty, upon which Lord Shaftes- bury was appointed speaker, pro temporey and the debate, which had been interrupted for a time, proceeded until his Majesty entered the house.^ But in the commons no business can be transacted unless the speaker be in the chair, and the only question that can be put in his absence is for the adjournment of the house. This general description of the office of speaker in both houses leads to a brief notice of the principal officers whose - duties are immediately connected with the proceedings of Parliament. The assistants of the House of Lords are the judges of Assistants of the Courts of Queen's Bench and Common Pleas, and such barons of the exchequer as are of the degree of the coif, the master of the rolls, the attorney and solicitor- general, and the queen's Serjeants. They are summoned by writs under the great seal, to be " personally present in Parliament, with us and with others of our council to treat and give advice."^ They were present in the ancient consilium regis, either as members of that high court, or ' 9 Com. J. 403. 476. 11 lb. '271, 272. ' G3 Lords' J. 511. Ilans. Debates. ^ Macq. 30 w. 160 CHIEF OFFICERS OF BOTH HOUSES. as assistants, and their presence has been uninterrupted until this dav. Their attendance was formerly enforced on ail occasions, but they are now summoned by a special order wlien their advice is required. Their place is on the woolsacks, and they " are not to be covered until the lords give them leave, -which they ordinarilj^ signify by the lord chancellor ; and they being then ajjpointed to attend the house, are not to speak or deliver auy opinion until it l)e required, and they be admitted so to do by the major part of the house, in case of difference." ' Attendants. 'Phe masters in ordinary in chancery also attend in the House of Lords as attendants, and are usually employed in carrying bills and messages to the House of Commons.'' They are not summoned by writ, but two of them attend each day, by rotation." Like the assistants, they also sit upon the woolsacks, but are never covered."* Chief officers of The chief oflicers of the upper house are the clerk of the the lords. t^i- ^i m- rariiaments (whose omce is executed by the nrst and second clerks assistant), the gentleman and yeoman usher of the black rod, and the serjeant-at-arms. The clerks assistant and the reading clerk attend at the table, and take minutes of all the proceedings, orders, and judgments Lords' Minutes of the house: these are pubhshed daily as the "Minutes of anil Journals. _ ' "^ _ the Proceedings," and they are printed, in a corrected and enlarged form, as the liOrds' Journals, after being examined " by the sub-committees for privileges and perusal of the Journal Book."' The gentleman usher of the black rod is appointed by letters patent from the Crown, and he, or his deputy, the yeoman usher, is sent to desire the attendance of the commons in the House of Peers when the royal assent is ' I''""'l»' S- O. \o. 4. 9 See Chapters XVI. and XVIII. * Macq. 00. ♦ Lords' S. O. No. 5. » " 23d May 1078. Ordered that, for the future, the said lords' sub-com- mittees are hereby empowered to meet after every session for examining- of 80 much of the Journal Book as shall be left unexamined at the time of the ending of such session, without any further order." Lords' S. O. No. 91. CHIEF 0FFICER8 OF THE COMMONS. 157 given to bills by the Queen or the lords commissioners, and on other occasions. He executes orders for the com- mitment of parties guilty of breaches of privilege and con- tempt, and assists at the introduction of peers, and other ceremonies. The serjeant-at-arms is also appointed by the Crown. He attends the lord chancellor with the mace, and executes the orders of the house for the apprehension of delinquents, and all warrants of attachment. The chief officers of the House of Commons are, the Chief officers of , 111 • A. . tlie commons. clerk of the house, the first and second clerks assistant, and the serieant-at-arms. The clerk of the house is ap- Clerk of the '' house, pointed by the Crown for life, by letters patent, m which he is styled under clerk of the Parliaments, to attend upon the commons.^ The clerks assistant are appointed by him, and sit at the table of the house, on his left hand. He is sworn before the lord chancellor, on entering upon his office, " to make true entries, remembrances, and journals of the things done and passed in the House of Commons;" he signs all orders of the house, endorses the bills, and reads whatever is required to be read in the house. He is also responsible for the due conduct of all matters con- nected with the business of the house, in the several official departments under his control. The short entries of the proceedings of the house, which Votes and Pro- . , , ,. ceedines, and are made by the clerks at the table, are printed and dis- journals, tributed every day, and are entitled, the " Votes and Pro- ceedings." From these the Journal is afterwards prepared, in which the entries are made at greater length, and with the forms more distinctly pointed out. These records are confined to the votes and proceedings of the house, with- out any reference to the debates. The earlier volumes of the Journals contain short notes of speeches, which the clerk had made, without the authority of the house ;^ but ' 2 Hats. 255. ' 1 Com. J. 885. 2 lb. 12. 42. For a history of the early Journals, sec 24 Com. J. 2G2. l^S jontXAij? OF Tire T^ro houses all the falter Tohnnes recoid nothinc: bm the res It was fonaedy the practice fix- a oranimttee ^ to sorrev the Qeik s Book cv&j Sadtur^T,"' and to be oitnasted with a certain dkcrelioa in rerisanf the ^itries ;* bat now the motes are prqnred on the lespcMiabilitT of the clerk ; and after •* being: first perosed by Mr. Speaker,"* are p iin l e d fer the use oi memb^s^ and for gimoal cxrcnla- tion. Bnt no pers(» may print than, who is not antho- nxed by the speaker. A few wmds may here be intcipc»5ed in resaid to the legal diaraeler of the Joomals of the two booses. The Jomnals rf the House of Lmds haTe always been held to be recmds a r rpissi hi e to erary one. They were formerly "recorded evay day on rolls of parchment,*' and io 1621 it was mdered diat the Journals of die House of C ^^^'^^' ^ ^issolution. Parliament be prorogued to any fore its first further day than was appointed for its meeting by the writ of summons, it is done by writ directed to both the houses. On the day first appointed for the meeting of Parliament, the commons proceed directly to the door of the House of Lords, without going into their own house, or expecting any message from the lords. They are admitted by the usher of the black rod to the bar, and stand there un- covered, while the lords remain sitting and covered. The lord chancellor then declares that a writ has been issued under the great seal for proroguing the Parliament ; " which he doth standing up uncovered, in respect he speaks to the lords as well as to the commons :" and, after the writ is read, the Parliament stands prorogued by virtue of the writ, without fiirther formality.* But the form is different in the prorogation of Parlia- ' Lords' S. 0. No. 7. 59 Lords'. I. :3. 8-J Com. J. 4. meetinij After its first meeting. PROROGATION OF PARLIAMENT. 1G5 ment after its first meeting. If her Majesty attend in person to prorogue Parliament at the end of the session, the same ceremonies are observed as at the opening of Parliament : the attendance of the commons in the House of Peers is commanded ; and, on their arrival at the bar, the speaker addresses her Majesty, on presenting the supply bills,^ and adverts to the most important measures that have occupied the attention of Parliament during the session. The royal assent is then given to the bills which are awaiting that sanction,^ and her Majesty reads her speech to both Houses of Parliament ; after which, the lord chancellor, having received directions from her Majesty for that purpose, addresses both houses in this manner, — *' My lords and gentlemen, it is her Majesty's royal will and pleasure that this Parliament be prorogued to" a cer- tain day, " to be then here holden ; and this Parliament is accordingly prorogued," &c. When her Majesty is not present at the end of the session. Parliament is prorogued by a commission under the great seal, directed to certain peers, who, by virtue of their commission, prorogue the Parliament. The attendance of the commons is desired in the House of Peers; and, on their coming, with their speaker, the lord chancellor states to both houses, that her Majesty, not thinking fit to be personally present, has caused a commission to be issued under the great seal, for giving the royal assent to bills. The commission is then read, and the speaker, without any speech, delivers the money bills to the clerk assistant of the House of Lords, who comes to the bar to receive them. The royal assent is signified to the bills in the usual manner ; after which the lord chancellor, in pursuance of her Majesty's com- mands, reads the royal speech to both houses. The commission for proroguing the Parliament is next read by the clerk, and the lord chancellor, by virtue of that com- mission, prorogues the Parliament accordingly. On further • See chapter XXL, Supply. ^ See chaptLT XVIII. M 3 1(]<) MOTIONS AND QUESTIONS. prorogations the Queen never attends personally ; and, the speaker being in the country, the commons are represented at the bar of the House of Lords by their clerk assistant, or second clerk assistant ; the commission is read, and the l(»rii chancellor prorogues the Parliament in the usual manner. CHAPTER VIII. MOTIONS AND QUESTIONS. NOTICES OF MOTIONS. QUES- TIONS MOVED AND SECONDED. MOTIONS WITHDRAWN. QUESTIONS SUPERSEDED BY ADJOURNMENT; OR BY READ- ING THE ORDERS OF THE DAY. PREVIOUS QUESTIONS. NEW QUESTIONS SUBSTITUTED BY AMENDMENT. COMPLI- CATED QUESTIONS. QUESTIONS PUT. Questions u EvERY matter is determined in both houses, upon ques- |iari of every . _ ^ proeeediiig. tions put by the speaker, and resolved in the affirmative or negative, as the case may be. As a question must thus form part of every proceeding, it is of the first importance that good rules should prevail for stating the question clearly, and for enabling the house to decide upon it. However simple such rules may be, the complexity of many questions, and the variety of opinions entertained by members, must often make it difficult to apply them. Very few general rules have been entered on the Journals of either house ; but the practice of Parliament has esta- blished certain forms of procedure, which numerous prece- dents rarely fail to make intelligible. lioil!" "f "«"- Any member may propose a question, which is called " moving the house," or, more commonly, " making a motion." But in order to give the house due notice of his intention, lie is retpiired to state the form of his motion on a j)revious day, and to have it entered in the HouseofUH.. Onlcr IJouk r.r Notice Paper. In the House of Lords, inous. NOTICES OF MOTIONS. 167 the pressure of business is not so great as to require any strict rules in regard to notices ; but in order to apportion the pubHc business according to the convenience of the house, it is usual for the House of Commons to set apart House of Com- certain days for considering the " orders of the day," (or matters which the house have already agreed to consider on a particular day,) and to reserve other days for original motions. For several years it has been the practice to ao-ree to the followino- sessional resolution, viz. : " That in the present session of Parliament, all orders of the day set down in the Order Book for Mondays, Wednesdays, and Fridays, shall be disposed of before the house will proceed upon any motions of which notices shall be entered in the Order Book." Subject to this regulation, it was formerly the practice to allow members to give notices for any day, however distant; but by another sessional resolution, it is now provided, " That no notice shall hereafter be given beyond the period which shall include the four days next following onw^hich notices are entitled to precedence, due allowance being made for any intervening adjournment of the house, and the period being in that case so far extended as to include four notice days falling during the sitting of the house." The Order Book cannot, therefore, be occupied in advance for a longer period than a fortnight, when the house is sit- ting without interruption. On Monday, a member may give notice for the Thursday week following, and on Tuesday for that day fortnight. Notices may be also given for the other days on which orders of the day are allowed precedence ; but as the orders usually occupy the greater part of the night, notices of importance are rarely given for such days. The restriction of notices to two days in the week, naturally occasions an anxiety on the part of members to secure for themselves a hearing on other days, and to avail themselves of any rules of the house which may offer a facility for that purpose. But in order to prevent an M 4 >:iven. 168 NOTICES OF MOTIONS. irregular practice of moving amendments Embodying the substance of distinct motions, on reading orders of the day, the following resolution is now agreed to at the becfinnino; of each session: — " Tbat upon days appropriated to orders, and a question being j)ut from the chair, that any order of the day be read, no amend- ment shall be proposed, except that the other orders of the day, or that any order set down for the same daj-, be now read ; but that this regulation shfill not apply td the case of ai committee of suj)iiiy, or of a committee of ways and means."' ><.ticcs, how When a member desires to give notice of a motion, he should first examine the Order Book, or the printed lists of notices and orders of the day for the ensuing week, which are printed with the Votes every Saturday morning. \V hen he has fixed upon the most convenient day, he should be present at the meeting of the house ; and imme- diately after prayers, when the house has been made, he may enter his name on the Notice Paper, which is placed upon the table. Each name upon this paper is numbered ; and when the speaker calls oil the notices, at about half- past four o'clock, the clerk puts the numbers into a glass, and draws them out one by one. As each number is drawn, the name of the member to which it is attached in the Notice Paper is called. Each inember, in his turn, then rises and reads the notice he is desirous of giving^ ;ind afterwards takes it to the table, and delivers it, fairly written out, and with the day named, to the second clerk assistant, who enters it in the Order Book ; but only one notice may be given by a member until the other names upon the list have been called over. It is not necessary t hat the notice should comprise all the words of the in- fciulcd motion; but if the subject only be stated in I lie first instance, the cpiestion, precisely as it is intended ' Tlu' iirinciplc of this resolution is, in some measure, capable of evasiou, wlien the order of the day is for a committee of the whole house, as an aii.cndment to tlie question " that the speaker do now leave tlie chair," is not S|i(eialiy excluded hy if ; hut in that case the amendment must be relevant to the matter wliich the house, by their order, have determiued to entertain. Notices of motions. 160 to be proposed, should be given in the day before that on which it stands in the Order Book, so that it shall be printed at length in the Votes of the following morning. Should a member desire to change the day, after he has given his notice, he must repeat it for a more distant day, since it has been declared irregular to fix an earlier day than that originally proposed in the house.^ One membfer may give notice for another not present at the time, by putting his name upon the list, and answering for him when his name is called at the ballot.* No positive limit has been laid down as to the time which must elapse between the notice and the motion; but the interval is generally extended in proportion to the importance of the subject. Notices of motions for leave to bring in bills of trifling interest, or for other matters to which no opposition is threatened, are constantly given the night before that on which they are intended to be submitted to the house; and there is a separate notice paper for unopposed returns, for which no ballot is taken, and motions entered upon it may be brought forward whenever a convenient opportunity arises. For the pur- pose of gaining precedence, the more usual mode and time for giving notices, are those already described; yet it is competent for a member to give a notice at a later hour, provided he does not interrupt the course of business, as set down in the Order Book. An unopposed motion can be brought on by cbnsent of Motions viith- the house, without any previous notice ; but if any member should object, it cannot be pressed. Questions of privilege, Questions of also, and other matters suddenly arising, may be con- P"viege, c. sidered without previous notice ; and the former take prece- dence, not only of other motions, but of all orders of the day. It is usual to give precedence, as a matter of courtesy, to a motion for a vote of thanks ; but care should be taken as > Mirror of Parliament, 1835, p. 275. » Hansard's Debates, 27 April 1843. 170 NOTICES OF MOTIONS. to the projicr time for claiming priority, lest all the motions shoukl become entitled to the same privilege. On the 12th February 1844, the orders of the day had precedence; and after the speaker had j)ut the question for reading the first order of the day, and the house had agreed to it, Sir Robert Peel rose to move the thanks of the house to Sir Charles Naj)ier, on account of tlie military operations in Sinde. It was then necessary to read each order of the day in succession, and defer it ; and after the vote of thanks had been atrreed to, the notices of motions followin<>' that of Sir Robert Peel were called on in preference to the orders of the day, w hich had been deferred expressly for the vote of thanks. This could not be avoided, as all the orders of the day had been disposed of, and the notices of motion called on, which it was necessary to go through before the house could revert to the orders of the day. This conse- c[ueuce would have been avoided, if Sir R. Peel had risen before any order of the day had been read. Lrave to make Entries are occasionally found in the Journals of leave luotioiis. being given to make a motion.^ In these cases, it appears, that all the orders of the day had been previously dis- posed of; and that the house allowed members to bring on motions which they had not entitled themselves to make, according to the ordinary regulations. But as unopposed motions only can be made without previous notice, they are now offered with the general assent of the house, and without any formal leave being given. As motions for which notices have been given need not be made when the time arrives, the Order Book is some- times used for the expression of opinions not intended to be uhiiualcly proposed for adoption. This is a deviation from the true object of the Order Book ; but it is not a prac- tical evil of much importance, nor is there, perhaps, any Notirescx- remedy Ujv it: but in resorting to this practice, members puiiged. jjj^j^j^ 1^^. careful, lest they give offence to the Ikjusc by ' 7.j c.iHi. J. i.Vj, ]:,{-,. h:, lb. 107. hu lb. Soi. QUESTIONS PROPOSED. 171 unbecoming expressions; for the notice may, for such a cause, be expunged from the Notice Paper.^ When a member is at liberty to make a motion, he may speak in its favour, before he actually proposes it ; but a speech is only allowed upon the understanding, 1st, that he speaks to the question ; and, 2dly, that he concludes by proposing his motion formally. In the upper house, any Questions lord may submit a motion for the decision of tjieir lord- comUd.'^" ships without a seconder ; but in the commons, after the motion has been made, it must be seconded by another member; otherwise it is immediately dropped, and all further debate should be discontinued, as no question is before the house.'' When a motion is not seconded, no Motions not entry appears in the Votes, as the house is not put in ^'^'=°""*^'^- possession of it, and res gestce only are entered. In the lords, when a motion has been made, a question is proposed " that that motion be agreed to ;" but in the commons, when the motion has been seconded, it merges in the question, which is then proposed by the speaker to the Proposed iiy house, and read by him; after which the house are said to be in possession of the question, and must dispose of it in one way or another, before they can proceed with any other business. At this stage of the proceeding the debate 'VVlifiii debute ••111 T (^ 1 • arises. upon the question arises in both houses, it the entire question be objected to, it is opposed in debate; but no amendment or form of motion is necessary for its negation; for when the debate is at an end, the speaker puts the ques- tion, and it is resolved simply in the affirmative or negative. The precise mode in which the determination of the house is expressed and collected, will be explained hereafter.^ It may happen, however, that it is desired by members Motions by to avoid any distinct expression of opinion ; in which case jrawnl^' it is competent for the majority of the house to evade the question in various ways ; but the member who j)roposed ' 00 Com. J. 435. ^ But see Debates, 8tli Februiiry 1844. ■' Sec infra, p. 178, and cliapter XII. 173 QUFSTIONS SUPEHSEnED Que.>ciiecl. H\ adjoiirn- Motions fi)r adjouniiiit? tlic housf and tbe debate. it, cau only withdraw it by leave of the house, granted without any negative voice. The modes of evading or superseding a question are, 1, by adjournment of the house ; 2, by motion " that the orders of the day be read ;" 3, by moving the previous question ; and 4, by amendment. 1. In the midst of the debate upon a question, any member may move " that this house do now adjourn," not by way of amendment to the original question, but as a distinct question, wdiich interrupts and supersedes that already under consideration. If this second question be re- solved in the affirmative, the original question is superseded; the house must immediately adjourn, and all the business for that day is at an end. The motion for adjournment, in order to supersede a question, must be simply that the house do now adjourn ; it is not allowable to move that the house do adjourn to any future time specified ; nor to move an amendment to that effect, to the question of adjournment,' The house may also be suddenly adjourned by notice being taken that 40 members are not present, and an adjournment caused in that manner^ has the effect of superseding a question in the same way as a formal question to adjourn, when put and carried. In either case the original question is so entirely superseded, that if it has not yet been proposed to the house by the speakerj it is not even entered in the Votes, as the house was not fully in possession of the question before the adjournment. If a motion for adjournment be negatived, it may not be proposed again without some intermediate proceeding ; and, in order to avoid any infringement of this rule, it is a common practice for those who desire to avoid a deci- sion upon tlie original question, on that day, to move alternately that " this house do now adjourn," and " that the debate be now adjourned." The latter motion, if carried, only deiirs the decision of the house, while the ' 2 Ilatb. 116. BY ADJOUBNMEXT, &C. 173 former, as already explained, Bupersedes the question altogether : yet members who only desire to enforce the continuance of the debate on another day, often vote for an adjournment of the house, which, if carried, would supersede the question which they are prepared to sup- port. This distinction should always be borne in mind, lest a result should follow that is widely different from that anticipated. Suppose a question to be opposed by a majority, and that the minority are anxious for an ad- journment of the debate; but that on the failure of a question proposed by them to that effect, they vote for an adjournment of the house : the majority have only to vote with them and carry the adjournment, when the obnoxious question is disposed of at once, and its suppor:- ters have themselves contributed to its defeat. 2. On a day upon which motions have precedence, a By reading the motion, " that the orders of the day be now read," is jay^'^* " also permitted to interrupt the debate upon a question ; and, if put by the speaker and carried in the affirmative, the house must proceed with the orders of the day imme- diately, and the original question is thus superseded. A motion for reading a particular order of the day, however, will not be permitted to interrupt a debate ; and, when the house are actually engaged upon one of the orders of the day, a motion for reading the orders of the day is not admissible, as the house are already doing that which the motion, if carried, would oblige them to do. 3. The previous question is an ingenious method of Previous queg- avoiding a vote upon any question that has been proposed but its technical name does little to elucidate its operation. When there is no debate, or after a debate is closed, the speaker puts the question, as a matter of course, without any direction from the house ; but, by a motion for the pre- vious question, this act of the speaker may be intercepted and forbidden. The words of this motion are, " that this question be now put ; " and those who wish to avoid the 174 PnEVIOUS QUESTION. question, vote agn'mst tlie previous (or second) question, which, if resolved in the negative, prevents the speaker from putting: tlie main question as usual. It may, however, be bri)u<;ht forward again on another day, as the negation of the previous question only binds the speaker not to put the main question at that time. If the previous question be put, and resolved in the affirmative, no words can be added to or taken from the main question by amend- ment ; nor is any further debate allowed, or motion for adjournment, before the question is put, as the house have resolved that the question be now put, and it must accordingly be put at once to the vote.^ In reference to this proceeding, it may be remarked, that according to the strict rule of debate, each member should speak directly to the question before the house ; and, supposing this to be oliserved, the debate upon the previous question would be limited to the propriety of putting the question now, or at a future time ; but, practically, the main question is discussed throughout. If the rule were not evaded in this manner, the main question would be altogether excluded from discussion, merely because another question had been interposed ; although, by affirming the previous question, the house w ould have agreed that the main question was a proper one to have been offered for their decision. The last two questions, viz. for reading the orders of the day, and the previous question, may both be superseded by a motion for adjournment ; for the latter may be made at any time (except, as already stated, when the previous ques- tion has been resolved in the affirmative,) and must always l)c determined before other business can be proceeded with. Thf debate upon the previous question may also be ad- journed; as there is no rule or practice which assigns a hmit to a debate, even when the nature of the question would seem to require a present determination. But when a motion has been made for reading the orders of the diiy, in ' 2 Hats. 122 n. Lex Pari. 202. QUESTIONS SUPERSEDED. 175 order to supersede a question, the house will not afterwards entertain a motion for the previous question ; as the former motion was itself in the nature of a previous question. 4. The general practice in regard to amendments will be ^^y aiiieiid- explained in the next chapter; but here such amendments only need be mentioned as are intended to evade an ex- pression of opinion upon the main question, by entirely altering its meaning and object. This may be effected by moving the omission of all the words of the question, after the word " that" at the beginning, and by the substitution of other words of a different import. If this amendment be agreed to by the house, it is clear that no opinion is expressed directly upon the main question, because it is determined that the original words " shall not stand part of the question ;" and the sense of the house is afterwards taken directly upon the substituted words, or practically upon a new question. There are many precedents of this mode of dealing with a question ; * but the best known in parliamentary history are those relating to Mr. Pitt's ad- ministration, and the peace of Amiens, in 1802. On the 7th May, 1802, a motion was made in the commons for an address, " expressing the thanks of this house to his Majesty for having been pleased to remove the Right Hon. W. Pitt from his councils ;" upon which an amend- ment was proposed and carried, which left out all the words after the first, and substituted others in direct opposition to them.^ Not only was the sense of the original question entirely altered by this amendment, but a new question was substituted, in which the whole policy of Mr. Pitt was commended. Immediately afterwards an address was moved in both Houses of Parliament, condemning the treaty of Amiens, in a long statement of facts and argu- ments. In each house an amendment was moved and carried, by which all the declamation in the proposed ' 24 Com. J. 650, 30 lb. 70. 52 lb. 203. ^ 57 lb. 419. 30 Hansard's Parliiiraentary Hist. pp. 598-G54. 176 QUESTIONS SUPERSEDED. address was omitted, aiid a new address resolved upon, by whicli Parliament was made to justify the treaty.^ This practice has often been objected to as unfair, and never with "reater force than on these occasions. It is natural for one party, commencing an attack upon another, to be discomfited by its recoil upon themselves, and to express their vexation at such a result; but the weaker party must always anticipate defeat in one form or another. If no amendment be moved, the majority can negative tlio question itself, and affirm another in opposition to the opinions of the minority. On the very occasion already mentioned, of the 7th May, 1802, after the address of thanks (or the removal of Mr. Pitt, had been defeated by an amendment, a distinct question was proposed and car- ried by the victorious party, " That the Right Hon, W. Pitt has rendered great and important services to his country, and especially deserves the gratitude of this house." Thus, if no amendment had been moved, the ])osition of Mr. Pitt's opponents would have been but little improved, as the majority could have affirmed or denied whatever they pleased. It is in debate alone that a mir nority can hope to compete with a majority : the forms of the house can ultimately assist neither party ; but, so far as they offer any intermediate advantage, the minority have the greatest protection in forms, while the majority are met by obstructions to the exercise of their will. These are the four modes by which a question may be intentionally avoided or superseded; but a question is also liable to casual interruption and postponement from other causes; as, by a matter of privilege, words of heat between members in debate, a question of order, a message from the other house or a motion for reading an Act of Parliament or other public document. These may obstruct and delay tJie decision of a question, but do not alter its position before the house ; for, directly they are disposed of, the > r,l Com. J. iW. 43 Lords' J. 003. 30 Hansard's Pari. Hist. p. 680. COMPLICATED QUESTIONS. 177 debate is resumed at the point at which it was interrupted. In the House of Commons, another interruption was sometimes caused by moving that candles be brought in ; but, by a standing order of the 6th February, 1717, it was ordered, " That when the house, or any committee of the whole house, shall be sitting, and daylight be shut in, the serjeant-at-arms attending this house do take care that candles be brought in without any j)articular order for that purpose." ' If a question be comphcated, the house may order it to Complicated be divided, so that each part may be determined separately.'^ A right has been claimed, in both houses, for an individual member to insist upon the division of a complicated ques- tion; but it has not been recognized, nor can it be reason- able to allow it, because, 1st, the house might not think the question complicated; and, 2dly, the member objecting to its complexity, may move its separation by amendments. But, as the house can order a question to be divided, it may be moved for that purpose, and it is difficult to state an objection to such a proceeding, although the ordinary practice has been to resort to amendments, instead of attempting the dissection of a question in another form. On the 29th January, 1722, a protest was entered on the Journals of the lords, in which it was alleged " to be con- trary to the nature and course of proceedings in Parlia- ment, that a complicated question, consisting of matters of a different consideration, should be put, especially if objected to, that lords may not be deprived of the liberty of giving their judgments on the said different matters, as they think fit."^ When all preliminary debates and objections to a ques- Question put, tion are disposed of, the question must next be put, which is done in the following manner. The speaker, if neces- sary, takes a written or printed copy of the question, and 1 18 Com. J. 718. 2 2 lb. 43. 32 lb. 710. * 22 Lords' J. 73. See also 24 lb. 466, 467. 4 Timberland's Debates of the Lords, 392. 32 Com. J. 7 10. N 17S QUESTIONS PUT. States or reads it to the house, at length, beginning with " The question is, that." This form of putting the question is always observed, and precedes every vote of the house, however insignificant. In the lords, when the question has been put, the speaker says, "As many as are of that opinion say 'con- tent,' " and " as many as are of a contrary opinion say * not content ;' " and the respective parties exclaim " con- tent" or "not content," according to their opinions. In the commons, the speaker takes the sense of the house by desiring that " as many as are of that opinion say * aye,' " and " as many as are of the contrary opinion say * no.' " On account of these forms, the two parties are distin- guished in the lords as "contents" and "not contents," and in the commons as the "ayes" and "noes."* AVhen each party have exclaimed according to their opinion, the speaker endeavours to judge, from the loudness and gene- ral character of the opposing exclamations, which party have the majority. As his judgment is not final, he expresses his opinion thus : " I think the ('contents' or) ' ayes ' have it ;" or, " I think the {' not contents ' or) * noes ' have it." If the house acquiesce in this decision, the question is said to be "resolved in the affirmative" or " negative," according to the supposed majority on either side ; but if the party thus declared to be the minority, dispute the fact, they say " no ; the ' contents ' (or ' not contents') the 'ayes' (or 'noes') have it:" and the actual numbers must be counted, by means of what is called a division.* Q.ustionB The question is stated distinctly by the speaker : but, in agam »tatecl. . j j r ^ } case it should not be heard, it will be stated again. Til.' form of piittin;,' the question and faking tlie vote was very similar in the Roman senate. The consul who presided there was accustomed to say, " Qui hu'c sentitis in hanc partem ; qui alia ouiuia, iu earn partem, ite, qua Bcntitis." — Plinii Kpistola-, lih. viii. op. 14. ' See Chapter XII. QUESTIONS PUT. 17i> On the loth Ai)ril 18-25, notice was taken tliat several nieniljers had not heard the question put, and tlie speaker desired any such members to signify the same ; which being done, the question was again stated to them, and they declared themselves with the noes.' It must be well understood by members that their Voicps on the opinion is to be collected from their voices in the house, '^"'''' '""* and not by a division • and if their voices and their votes should be at variance, the former will be held more binding than the latter. On the report of the Holyrood Park Bill, August lOth, 1843, a member called out with tlie noes, " the noes have it," and thus forced that party to a division, although he was about to vote with the "ayesj" and went out into the lobby with them. On his return, and before the numbers were declared by the tellers, Mr. Brotherton addressed the speaker, sitting and covered (the doors being closed), and claimed that the member's vote should be reckoned with the noes. The speaker put it to the member, whether he had said, " the noes have it ;" to which he replied that he had, but without any intention of voting with the noes. The speaker, however, would not admit of his excuse; but ordered that his vote should be counted with the " noes," as he had declared himself with them in the house.* » 80 Com. J. 307. ' There is no entry of this proceeding in the Votes; but Mr. Brotherton, at the time, kindly supplied this precedent. N 2 180 AMENDMENTS TO QUESTIONS. CHAPTER IX. AMENDMENTS TO QUESTIONS J AND AMENDMENTS TO PRO- POSED AMENDMENTS. Object and The object of ail amendment is to effect such an alte- principle of an ,. . . -n i i • i amendment. ration in a question as will enable certain members to vote in favour of it, who, without such alteration, must either have voted against it, or have abstained from voting. Without the power of amending a question, an assembly would have no means of expressing their opi- nions with consistency : they must either affirm a whole question, to parts of which they entertain objections, or negative a whole question, to parts of which they assent. In both cases a contradiction would ensue, if they after- wards expressed their true judgment in another form. In the first case supposed, they must deny what they had before affirmed; and in the second, they must affirm what they had before denied. Even if the last decision were binding, both opinions would have been voted, and probably entered in their minutes, and the contradiction would be manifest. The confusion which must arise from any irregularity in the mode of putting amendments"^ is often exemplified at public meetings where fixed princi- ples and rules are not observed ; and it would be well for persons in the habit of presiding at meetings of any de- scription, to make themselves familiar with the rules of Parliament, in regard to questions and amendments ; which have been tested by long experience, and are found as simple and efficient in practice, as they are logical in princi])le. Varioug modes An amendment may be made to a question, 1, by of amendment. , . ^ , . ", i , . leaving out certain words ; 2, by leaving out certain words in order to insert or add others ; 3, by inserting or adding certain \V(jrds. The proper time for moving an amend- AMENDMENTS TO QUESTIONS. 181 ment is after a question has been proposed by the speaker, and before it has been put. The order and form in which the points arising out of amendments are determined, are as follow : 1 . When the proposed amendment is, to leave out To leave out certain words, the speaker first states the question, but instead of putting it, he adds " Since which it has been proposed, by way of amendment, to , leave out the words," proposed to be omitted. He then puts the question, " That the words proposed to be left out stand part of the question." If that question be resolved in the affirmative, it shows that the house prefer the original question to the amendment, and the question, as first proposed, is put by the speaker. If, however, the ques- tion " That the words stand part of the question," be negatived, the question is put, with the omission of those words ; unless another amendment be then moved, for the addition of other words. 2. When the proposed amendment is to leave out certain to leave out words in order to insert or add others, the proceedino- com- ^'"'^f' and to ' ^ & "^ ^ insert or add mences in the same manner as the last. If the house resolve others. " That the words proposed to be left out stand part of the question," the original question is put ; but if they resolve that such words shall not stand part of the question, by negativing that proposition when put ; the next question proposed is, that the words proposed to be substituted, be inserted or added instead thereof. This latter question being resolved in the affirmative, the main question, so amended, is put. 3. In the case of an amendment to insert or add words. To insert or add the proceeding is more simple. The question is merely ^^*'™^* put, that the proposed words " be there inserted " or " added j" if it be carried, the words are inserted or added accordingly, and the main question, so amended, is put; and if negatived, the question is put as it originally stood. N 3 182 AMENDMENTS TO QUESTIONS. Restrictioi!s in Several amendments may be moved to tlie same ques- pn>posinff . . _^ . ainendiueiits. tion ; but subject to these restrictions: 1. JNo amendment can be made in the first part of a question, after the latter part lias been amended, or proposed to be amended ; but each separate amendment must be offered in the order in which, if agreed to, it would stand in the amended ques- tion.* 2. When the house have agreed that certain words shall stand part of a question, it is irregular to propose any amendment to those words; as the decision of the house has already been pronounced in their favour. But this rule would not exclude an addition to the words, if proposed at the proper time. 3. In the same manner, when the house have agreed to add or insert words in a (juestion, their decision may not be disturbed by any amendment of those w'ords. But when a member desires to move an amendment to a part of the question proposed to be omitted by another umondment, or to alter words proposed to be inserted, it is sometimes arranged that only the first part of the original amendment shall be formally proposed, in the first instance, so as not to preclude the consideration of Aniriiilmoiitsto the sccoud amendment. Another proceeding may also aiUL-udmeuts. . i o j be resorted to, by which an amendment is intercepted, as it were, before it is offered to the house, in its original form, by moving to amend the first proposed amendment. This can be done when the original amendment proposed is, to leave out'^ or to insert or add certain words; or when certain words have been left out of a question, and it is then proposed to insert or add other words instead thereof. In such cases an amendment may be proposed to the pro- posed amendment, and the questions put by the speaker thereupon, deal with the first amendment as if it were a distinct f|ucslion, and with the second as if it were an ordinarv anicnduicnt. ' 2 Hats. 123. ' See Case of Duke of York, 04 Corn. J. 131. AMENDMENTS TO AMENDMENTS. 183 A short example will make this complicated proceeding more intelligible. To avoid a difficult illustration, (of which there are many in the Journals/) let the simple question be, " That this bill be now read a second time ;" and let an amendment be proposed, by leaving out the word " now," and adding " this day six months ;" let the question that the word " now" stand part of the question, be negatived, and the question for adding " this day six months" be pro- posed ; an amendment may then be proposed thereto, by leaving out " months," and adding " weeks," or by leaving out " six months," and adding " week," " fortnight," &c., or by leaving out " six," and inserting " two," " three," or " four." The question will then be put, " That the words proposed to be left out stand part of the said proposed amendment." If that be affirmed, the question for adding " this day six months," is put ; and if carried, the main question, so amended, is put, viz. " That this bill be read a second time this day six months." But if it be resolved, that " six months" shall not stand part of the proposed amendment, a question is put that " week" or " fortnight," •fee. be added ; and if that be agreed to, the first amend- ment, so amended, is put, viz. that the words " this day week" be added to the original question. That being agreed to, the main question, so amended, is put, viz. " That this bill be read a second time this day week." It must be observed, that no motion to amend a pro- posed amendment can be entertained, until the amendment has, for the time, assumed the place of the original ques- tion, and become, as it were, a substantive question itself; otherwise there would be three points under consideration at once, viz. the question, the proposed amendment, and the amendment of that amendment. But when the ques- tion for adopting the words of an amendment is put for- ward distinctly, and apart from the original question, no ' See Com. Gen. Journ. Indexes, 1774-1837, tit. Amendments. N 4 184 AMENDMENTS TO AMENDMENTS. Anientiments moved before previous ques- tion. confusion arises from moving an amendment to it, before its ultimate adoption is proposed.' It may sometimes happen, that an amendment clashes with the proposal of the previous question ; in which case, the priority of either would depend upon the period at w hich the conflict arises. If the members who are about to ofter tlu'se conflicting motions could previously arrange, with each other, the intended order of proceeding, it would generally be most convenient to move the amendment first; because it is manifestly reasonable to consider, in tiie first place, what the question shall be, if put at all ; ' It appears, from a curious letter of the younger Pliny (Plinii Epistohe, lib. viii. ep. 14), that the Roman senate were perplexed in the mode of disentangling a question that involved three different propositions. It was doubtful whether the consul, Afranius Dexter, had died by his own hand, or by that of a domestic ; and if by the latter, whether at his own request, or criminally ; and the senate had to decide on the fate of his freedraen. One senator proposed that the freedmen ought not to be punished at all ; another tliat they should be banished ; and a third, that they should suffer death. As these judgments differed so much, it was urged tliat they must be put to the question distinctly, and that those who were in favour of each of the three opinions should sit separately, in order to prevent two parties, each differing with the other, from joining against the third. On the other hand, it was contended that those who would put to death, and those who would bani^|)|)f{l, from a disagreement between the two houses, ' 'J Hats. lyo. ' 01 Com. J. 7G2. '■> lb. 817. * 2 Lordb' J. 435. SAME QUESTIONS TWICE OFFERED. 189 ought not, by the known and constant methods of pro- ceedings, to be brought in again in the same session." * The lords, nevertheless, agreed to that bill, but with a special entry, that " to prevent any ill consequences from such a precedent for the future, they have thought fit to de- clare solemnly, and to enter upon their books, for a record to all posterity, that they will not hereafter admit, upon any occasion whatsoever, of a proceeding so contrary to the rules and methods Of Parliament."^ In the commons, also, it was agreed for a rule, 1st June, 1610, that " no bill of the same substance be brought in the same session."^ A common practice, however, has since grown up, with Lords' Journals 1-11 1 inspected, the sanction of both houses, by which these rules are par- tially disregarded. When a bill has passed the commons, and the further consideration of the amendments made by the committee, is deferred by the lords for a period beyond the probable duration of the session, it is usual, if the lords' amendments are acceptable, for the commons to appoint a committee to inspect the lords' Journals ; and, on their report, to order another bill to be brought in. This bill often has precisely the same title, but its provisions are so far altered as to conform to the amendments made in the lords. With these alterations it is returned to the lords, received by them without any objection, and passed as if it were an original bill. Such a bill is not identically the same as that which preceded it; but it is impossible to deny that it is " of the same argument and matter," and " of the same substance." This proceeding is very frequently resorted to, when the lords' committees find it necessary to insert clauses imposing rates, tolls, or other charges, upon the people.'* The House of Lords cannot agree to such clauses without infringing upon the privileges of the commons, and the bill is therefore dropped ; but the com- mons, by bringing in another bill, and adopting the ' 15 Lords' J. 90. Mb. M Com. J. 434. " See further Chapter XXI. 1})0 SAME QUESTIONS OFFERED, clauses to whicli, in themselves, they do not object, avoid any clasliinsx of privileges, and the bill is ultimately agreed upon by both houses. Bills laid aside. A proceeding somewhat similar may arise when a bill is returned from the lords to the commons, with amendments which the latter cannot, consistently with their own privi- leges, entertain. In that case, the proper course, if the commons be willing to adopt the amendments, is to order the bill to be laid aside, and another to be brought in.^ A third proceeding resembles the two last in principle, but differs from both in form. When the lords pass a bill and send it down to the commons, with clauses that trench upon the privileges of the latter, it is usual for the commons to lay the bill aside, and to order another precisely similar to be brought in, which, having passed through all its stages, they send up to the lords exactly in the same manner as if the bill had originated in the commons. Prorogation, to But in all the preceding cases the disagreement of the ri'iiew bills. . • i i /- i i i two nouses is only partial and lormal, and there is no difference in regard to the entire bill. If the second or third reading of a bill sent from one house to the other be deferred for three or six months, or if it be rejected, there is no regular way of reviving it in the same session ; and, so imperative has that regulation been esteemed, that in 1707, Parliament was actually prorogued for a week, in order to admit the revival of a bill which had been rejected by the lords. The rule in regard to bills already passed has been construed with equal strictness; and, in 1721, a proroga- tion for two days was resorted to, in order to enable Acts relating to the South Sea Company to be passed, contra- dictory to clauses contained in another Act of the same session. On the latter occasion, the commons presented an address to the king, recommending a resort to the expedient of a prorogation, "as the ancient usage and ' 91 Com. J. 777. 810. SAME QUESTIONS OFFERED. 191 established rules of Parliament make it impracticable" otherwise to prepare the bills. ^ In order to avoid the embarrassment arising from the clauses in Acts. irregularity of dealing with a statute passed in the same session, it has, for some years, been the practice to add a clause to every bill, enacting, "that this Act may be amended or repealed by any Act to be passed in this session of Parliament." The omission of such a clause in any bill would now imply that it might not be amended during the session, and would be even a stronger objection to such a course than the rules and precedents of Parlia- ment alone, which have not been invariably observed.^ CHAPTER XI. RULES OF DEBATE : MANNER AND TIME OF SPEAKING : RULES AND ORDERS TO BE OBSERVED BY MEMBERS IN SPEAKING, AND IN ATTENDING TO DEBATES. In the House of Lords, a peer addresses his speech " to iNianner of the rest of the lords in general."^ In the commons, a ^P'^^'^^'S- member addresses the speaker, and it is irregular for him to direct his speech to the house, or to any party on either side of the house. In both houses, proper respect is paid to the assembly, by every member who speaks rising in his place, and standing uncovered. The only exception to this rule is in cases of sickness or infirmity, when the indulgence of a seat is frequently allowed, at the sugoes- tion of a member, and with the general acquiescence of the house." In the commons, also, during a division, ' 19 Com. J. 639. =" 18 lb. 121. 334. » Lords' S. O. No. 14. * Lord Wyuford, G4 Lords' J. 1G7. Mr. Wynn, 9th March 1843. 67 Hans. Deb. N. S. 058. 192 DEBATE. w ith closed doors, it is the practice for members to speak sitting and covered. Time of speak- It has been said, when treating of questions, that the proper time for a debate is after a question has been pro- posed by the speaker, and before it has been put ; and it is then that members generally address the house or the speaker and commence the debate. But there are occasions uj)on which, from irresolution, or the belief that others are about to speak, members permit the speaker to put the question before they rise in their places. They are, how- ever, entitled to be heard even after the voice has been given in the affirmative ; but if it has also been given in the negative, they have lost their opportunity ; the ques- tion is fully put, and nothing remains but the vote. It is explained in the standing orders of the lords, " that when a question hath been entirely put, by the speaker, no lord is to speak against the question before voting ;" * and a question being entirely put, implies that the voices have also been given. On one occasion, in the commons (27th January, 1789,) the debate was re-opened, after the question had been declared by the speaker to have been resolved in the affirmative : for a member had risen to speak before the question had been put, but had been unobserved by the speaker ; and it was admitted that he had a right to be heard, although the question had been disposed of before his offer to speak had attracted attention.'' Who may From the limited authority of the speaker of the House sijcak. r T 1 • 1- • ot Lords, m duectmg the proceeding-s of the house, and In tlicL.rds. - • . . . , , . , „ ni mamtammg order, the right of a peer to address their lordships depends solely upon the will of the house. When two rise at the same time, unless one immediately gives way, the house call upon one to speak ; and if each be supported by a party, there is no alternative but a division. Thus, on the 3d February, 1775, the Earl of ' Lords' 8. O. No. 5. s 3 Hats. 102 n. DEBATE. 193 Dartmouth and the Marquis of Rockingham both rising to speak, it was resolved, upon question, that the former " shall now be heard." ' In the commons, the member who, on rising in his in tlie com- plaee, is first observed by the speaker, is called upon to ™°"*" speak ; but his right to be first heard depends, in reality, upon the fact of his having been the first to rise, and not upon his being first in the speaker's eye. It is impossible for the speaker to embrace all parts of the house in his view at the same moment, and it may sometimes be obvious to the house that he has overlooked a member who had the best claim to be heard. When this occurs, it is not unusual for members to call out the name of the member who, in their opinion, is entitled to be heard ; and, when the general voice of the house appears to give him the preference, the member called upon by the speaker usually gives way. If the dispute should not be settled in this manner, a question might be proposed, " which member was first up ;" or, " which member should be heard ;" or, " that a particular member be heard." But this mode of proceeding is very rarely adopted, and should be avoided, except in extreme cases. It is the speaker's duty to watch the members as they rise to speak ; and, from his position in the house, he is better able to distinguish those who have priority than the house itself, and the decision should be left with him. In the commons, not less than 20 members have been known to rise at once, and order can only be maintained by acquiescence in the call of the speaker. It occasionally happens that two members rise at the whon two • iiicinbcrs rise* same tune, and on one of them being called upon by the speaker, the house are desirous of hearing the other. If the latter be a minister of the Crown, or have any other claim to precedence, the former rarely persists in speaking, but yields at once to the desire of the house. If, however, ' 34 Lords' J. 306. 194 DEBATE. they should both be men of equal eminence, or supported by their respective parties ; and if neither will give way, no alternative remains but a question that one of them " be now heard," or " do now speak." This question arose between Pitt and Fox on the 20th February 1784, and more recently between Sir R. Peel and Sir F. Burdett.' The priority of one might be determined in another way in a debate upon a bill, as on the 6th June, 1604, it was agreed for a rule, "that if two stand up to speak to a bill, he against the bill (being known by demand or otherwise) to be first heard ;" ^ but it is doubtful whether this rule would not now be treated as obsolete. Must speak to When a member is in possession of the house (as it is the question. n is i i i • i called), he has notobtameda right to speak generally; but is only entitled to be heard upon the question then under discussion, or upon a question or amendment intended to be proposed by himself,^ or upon a point of order. When- ever he wanders from it, he is liable to be interrupted by cries of "question," and in the commons, if the topics he has introduced are clearly irrelevant, the speaker acquaints him that he must speak to the question. The relevancy of an argument is not always perceptible, and the impatience and weariness of members after a long- debate, often cause vociferous interruptions of " question," which do not signify, that the member who is speaking is out of order, so much as that the house are not disposed to listen to him. These cries are disorderly, and, when practicable, are repressed by cries of "order" from the house and the speaker; but nevertheless, when not mis- timed, they often have the intended effect, and discourage a continuance of the debate. When they are immoderate and riotous, they not only disgrace the proceedings of the house, but frequently defeat the object they are intended to attain, by causing an adjournment of the debate. ' 86 Com. J. 517. M Com. J. 232. ' 59 Hans. Deb. N. S. 507. DDTiATE. 195 It is a rule tliat should always lie strictly observed, that wimmi no qv.va- no member may speak except wlien there is a question tii'e'iiouso"'" already before the house, or the member is about to con- clude with a motion or amendment. The only exceptions which are admitted, are, 1, in putting questions to parti- cular ministers or other members of the house ; and, 2, in explaining personal matters. But in either of these cases the indulgence given to a particular member will not justify a debate. 1. By the practice of both houses, questions are frc- Qnpstions to , . . r- 1 /->( • other membera. quently put to mniisters oi the Crown concerning any measure pending in Parliament, or other public event ; and to particular members who have charge of a bill, or who have given notices of motion ; but such questions should be limited, as far as possible, to matters imme- diately connected with the business of Parliament, and should be put in a manner which does not involve argu- ment or inference. In the same manner an answer should be confined to the points contained in the question, with such explanation only as will render the answer intelligible. 2. In regard to the explanation of personal matters. Pergonal oxpln- the house is usually indulgent. General arguments ought not to be used by the member who is permitted to speak, without any question being before the house ; but if his object be clearly confined to the removal of any impres- sion concerning his own coiiduct or words, he is generally permitted to proceed without interruption. It is a rule strictly observed in both houses, that no To speak once 1 ' • 1 • only. member shall speak twice to the same question, except, 1st, to explain some part of his speech which has been misunderstood ; 2dly, in certain cases, to reply at the end of a debate ; and ;idly, in committee. 1. It is an ancient order of the House of Lords that, " No man is to speak twice to a bill at one time of reading it, or To explain, to any other proposition, unless it be to explain himself in Fome material part of his speech ; but no new matter, and that not o 2 196 DEBATE, without the leave of the lioiise first obtained. That if any lord stand up and di sire to speak again, or to exjihiin Iiinisclf, the lord keeper is to demand of tlie house first whether the lord shall be j)erniitted to speak or not; and that none niaj' speak again to the same matter, though upon new reason arising out of the same ; and tliat none may sj^eak again to explain himself, unless his former speech be mistaken, and he hath leave given to explain himself; and if the cause require much debate, then the house to be put into committee." ' In tlie commons the privilege of explanation is allowed without actual leave from the house ; but when a member rises to explain, and afterwards adverts to matters not strictly necessary for that purpose, or endeavours to strengthen by new arguments his former position, which he alleges to have been misunderstood, he is called to order by the house or by the speaker, and is desired by the latter to confine himself to simple explanation. ih[>\y. 2. A reply is only allowed by courtesy to the member who has proposed a distinct question to the house. It is not conceded to a member who has moved any order of the day, as that a bill be read a second time ; nor to the mover of an instruction to a committee of the whole house; nor to the mover of any amendment. Under these cir- cumstances, it is not uncommon for a member to move an order of the day or second a motion without remark, and to reserve his speech for a later period in the debate. In some cases, however, the indulgence of the house is ex- tended so far as to allow a reply on questions which do not come within the ordinary rules of courtesy.* Ill coiiiniittoe. 3. In a committee of the whole house, the restriction upon speaking more than once is altogether removed, as will be more fully explained in speaking of the proceed- ings of committees.^ New qucBtiou. Tiic adjournment of a debate does not enable a member to speak iigain u])ou a question, when the discussion is ' .3 Lords' J. /iOO. » Si'c Debates, 1st March 1844 (Mr. T. Diincorabc's amendment). '■> Chapter XIII. DEBATE. 197 renewed on another day, however distant ; but directly a new question has been proposed, as " that this house do now adjourn," "that the debate be adjourned," "the previous question," ' or an amendment, members are at liberty to speak again ; as the rule applies strictly to the prevention of more than one s})eech to each separate question proposed. Upon the same grounds a member who has already spoken, may rise and speak again upon a point of order or privilege. For preserving decency and order in debate various rules OnlcriiKlti.ate. have been laid down, which, in the lords, are enforced by the house itself, and in the commons by the speaker in the first instance, and, if necessary, by the house. The vio- lation of these rules any member may notice, either by a cry of " order," or by rising in his })lace, and, in the lords, addressing the house, and in the commons the speaker. The former mode of calling attention to a departure from order is, perhaps, not strictly regular, and sometimes in- terrupts a member, and causes disturbance ; but it is often practised with good effect; it puts the member who is irregidar in his conduct upon his guard, arouses the atten- tion of the house and the speaker, and prevents a speech to order, a reply, and perhaps angry discussion. When a member speaks to order, he should simply direct attention to the point complained of, and submit it to the decision of the house or the speaker. He may move, also, that the Wonis taken words of a member, which he conceives to be disorderly, ""^^ "* maybe taken down; which the house will direct to be done where it appears necessary,^ provided the objection be taken immediately. The rules for the conduct of debates divide themselves into two parts, viz.: I., such as are to be observed by mem- bers addressing the house ; and, II., those which regard the behaviour of members listening to the debate. ' 05 Hansard's Debates, N. S. 82(5 ' 66 Com. J. 391. 68 lb. 3?.2. Sec also infra, p. 206. o 3 198 ORDER IX DEBATE. Ruios for mem- I. (1), A member, while speaking to a question, may not bers speaking'. . i i i -j j i i alkule to debates upon a question already decided by the house in the same session ; (2), nor speak against, or reflect upon, any determination of the house, unless he intends to conclude with a motion for rescinding it ; (3), nor allude to debates in the other house of Parliament ; (4), nor use the Queen's name irreverently, or to influence the debate; (5), nor speak offensive and insulting words against the character or proceedings of either house ; (6), nor against particular parties or members of the house in which he is speaking. A few words will suffice to explain tlie object and appli- cation of each of these rules. ReiVrriiig to (1). It is a wholesome restraint upon members, to prevent them from reviving a debate already concluded; for other- wise a debate might be interminable ; and there would be little use in preventing the same question or bill from being offered twice in the same session, if, without being offered, its merits might be discussed again and again. The rule, however, is not always strictly enforced ; peculiar circum- stances may seem to justify a member in alluding to a past debate, or to entitle him to indulgence, and the house and the speaker will judge in each case how far the rule may fairly be relaxed. On the JJOth August 1841, for instance, an (objection was taken that a member was referring to a preceding debate, and that it was contrary to one of the rules ot" tile house. The speaker said " that rule apj)lied in all cases ; but where a member had a personal complaint to make, it was usual to grant him the indulgence of making it."' But he may not read any portion of a speech made in the same session from a printed newspaper. This rule, indeed, appHes to all debates whatsoever; but of late years it has been relaxed by general ac(piiescence, in favour of speeches delivered in former sessions. R. Hcctiiii.Mi,,or. (2). The objections to the practice of referrino- to past ^<|tr•s ol the '' ' f I hoii. 31 Lords' J. 448. WORDS OF HEAT. 205 the Lords' House of Piirliament, he sliall appeal to the lords in Parliament for his reparation, which if he shall not do, but occa- sion or entertain quarrels, declining the justice of the house, then the lord that shall be found therein delinquent shall undergo the severe censure of the House of Parliament." ' Sometimes the lords have extended this principle to the Challenge. prevention of quarrels out of the house. On the 6th November 1780, the lords being informed that the Earl of Pomfret had sent a challenge to the Duke of Grafton, upon a matter unconnected with the debates or proceed- ings of Parliament, declared the earl " guilty of a high contempt of this house," and committed him to the Tovi^er.^ The House of Commons will insist upon all offensive Words of heat, words being withdrawn, and upon an ample apology being made, which shall satisfy both the house and the member to whom offence has been given.^ If the apology be refused, or if the offended member decline to express his satisfac- tion, the house take immediate measures for preventing the quarrel from being pursued further, by comiuitting both the members to the custody of the Serjeant ; whence they are not released until they have submitted themselves to the house, and given assurance that they will not engage in hostile proceedings.^ The commons will also interfere to prevent quarrels be- tween members, arising from personal misunderstanding in a select committee, as in the case of Sir Frederick Trench and Mr. Rigby Wason, on the 10th June 1836. One of those gentlemen, on refusing to assure the house that he would not accept a challenge sent from abroad, was placed in cutody ; and the other, by whom the chal- lenge was expected to be sent, was also ordered to be taken ; nor were either of them released until they had given the house satisfactory assurances of their quarrel being at an end.^ ' Lordb'S. O. No. IG. ' 30 Lords' J. 101. => 78 Com. J. 2-2,4. !)GIb.40. * 89 Com. J. U. 11. Ul lb. 484, 485. 92 lb. 270. ^ 01 lb. 4U4. 4G8. •20G RULES TO BE OBSERVED Whichever of these rules may be violated by a member, notice should be immediately taken of the words objected to, in order that they may be taken down correctly. The connnons have agreed, " that when any member had spoke between, no words which had passed before could be taken notice of, so as to be written down in order to a censure;"* and tiie same principle would seem to apply, if the member had been permitted to continue his speech, for any length of time, without interruption. Rules to be (.1)- II. The rules to be observed by members present in the bl>isuot"\peak- house during a debate are : (1), to keep their places; (2), to '"^'- enter and leave the house with decorum ; (3), not to cross the house irregularly ; (4), not to read books, newspapers, or letters ; (5), to maintain silence ; (6), not to hiss or inter- rupt. ^ Places, (!)• " The lords in the upj^er house are to keep their dignity and j^^ J order in sitting, as much as may be, and are not to move out of their jjlaces without just cause, to the hindrance of others that sit near them, and the disorder of the house; but when they must cross the house, they are to make obeisance to the cloth of estate." ^ Commons. In the commons, also, the members should keep their places, and not walk about the house, or stand at the bar, or in the passages. If after a call to " order," members wlio are standing at the bar or elsewhere do not disperse, the speaker orders them to take their places. Kntiriiit; the (2). " Every lord that shall enter the house, is to give and receive """''^* salutations from the rest, and not to sit down in his place, unless ^•"^'^^' he hath made an obeisance to the cloth of estate." * Coiiiinoi.s. Members of the commons who enter or leave the house during a debate must be uncovered, and should make an obeisance to the chair while passing to or from their places.' Crossiiij; before (3). In the lords it lias been seen that care should be taken in the manner of crossing the house, and it is ini-iiibei'!«H]icak- ' 2 IlatB. 2r>!) M. See also GO Hans. Deb. N. S. 5GG. ' Another ndc, " tliat no member do take tobacco," is unworthy of a place in the text. See 11 Com. J. 137. ' Lords' S. O. No. 13. * Lords' S. O. No. 11. ^ See 8 Com. J. 204. BY MEMBERS NOT SPEAKING. 207 especially irregular to pass in front of a peer who is ad- Lords. dressing their lordships. In the commons, members are Coramons. not to cross between the chair and a member who is speaking, nor between the chair and the table, nor between the chair and the mace, when the mace is taken off the table by the serjeant. When they cross the house or otherwise leave their places, they should make obeisance to the chair. (4). They are not to read books, newspapers, or letters in their places.* This rule, however, must now be understood with some limitations ; for although it is still regarded as irregular to read newspapers; any books and letters may be referred to by members preparing to speak, but ought not to be read for amusement, nor for business unconnected with the debate. (5). Silence is required to be observed in both houses. Silence. In the lords it is ordered, "That if any lord have occasion to speak with another lord in Lords, this house, while the house is sitting, they are to go together below the bar, or else the speaker is to stop the business in agitation," ^ In the commons all members should be silent, or should Commons, converse only in a whisper. Whenever the conversation is so loud as to make it difficult to hear the debate, the speaker exerts his authority to restore silence by repeated cries of " order." (6). They should not disturb a member who is speaking Hissing or in- by hissing or other interruption. The following is the ^'^'^"^ '""' declaration of this rule by the House of Commons, 22d January 1G93 : — " To the end that all the debates in this house should be grave and orderly, as becomes so great an assembly, and that all inter- ruptions should be prevented, be it ordered and declared, that no member of this house do presume to make any noise or disturb- ance whilst any member shall be orderly debating, or whilst any bill, order, or other matter shall be in reading or opening ; and in case of such noise or disturbance, that Mr. Speaker do call upon 4 Com. J. 51. Lords' S. O. i\o. 18. 208 INTERRrPTIO-VS IN COMMITTEE. the member, by name, making such disturbance ; and that every such person shall incur the displeasure and censure of the house." ' This rule is too often disregarded. In the House of Commons the most disorderly noises are sometimes made, which, from the fulness of the house, and the general uj>- roar maintained when 500 or 600 members are impatiently waiting for a division, it is scarcely possible to repress. Without any such noises, however, there are words of interruption which, if used in moderation, are not unpar- liamentarj- ; but when frequent and loud, they cause serious disorder. The cry of " question " has already been noticed. Hear, hear." and its improper use condemned. Another is that of " hear, hear," which has been sanctioned by lon^ parliamentary usage in both houses. It is generally intended to denote approbation of the sentiments expressed, and, in that form, is a flattering encouragement to the speaker; it is not uttered till the end of a sentence, and offers no interruption to the speech. But the same words may be spoken for rery different purposes, and prononnced with various into- nations. Instead of implying approbation, they mav dis- tinctly express dissent, derision, or contempt ; and if ex- claimed with a loud voice and before the completion of a sentence, no mode of interruption can be more distracting or offensive to the member who is speaking. Whenever exclamations of this kind are obviously intended to inter- rupt a speech, the speaker calls to " order," and if persisted in, would be obliged to name the disorderly members, and leave them to be censured by the house. Uurrwf^tmi Indecent interruptions of the debate or proceedings in a im commitlte. ^^ committee of the whole house, are regarded in the same light as similar disorders while the house is sitting. On the 27th February ISIO, the eoannittee on the expedition to tb^ si^'h^Mt r*~>rt'H th%t a member had misbehaved himself d':* namittee, makin? use of profone oatbt •T- -.dings. Mr. Fuller, the member con»- pUiaed of, was heard to excuse himself; in doing which he gave ' 11 Com. J. 66. S«« alao 1 lb. l.yi. ORDER IN DEBATE. 209 greater offence, by repeating and persisting in his disorderly con- duct; upon which Mr. Speaker called upon him by name, and he was ordered to withdraw. It was immediately ordered, nem. con., that " for his offensive words and disorderly conduct, he be taken into the custody of the serjeant." The nffence for which he was ultimately committed may appear to have been his disorderly conduct before the house ; but there can be no doubt, that if, without giving fresh offence, he had failed in excusing himself for his misconduct in the committee, the house would have inflicted some punishment, either by commitment or-reprimand. This member further aggravated his offence by breaking from the Serjeant, and returning into the house in a very violent and dis- orderly manner, whence he was removed by the serjeant and his messengers.' In the enforcement of all these rules for mamtaining Autiiorityot order, the speaker of the House of Lords has no more ^i"^*^ ''^''■• authority than any other peer, except in so far as his own °" ^' personal weight, and the dignity of his office, may give effect to his opinions, and secure the concurrence of the house. The result of his imperfect powers is, that a peer who is disorderly is called to order by another of an opposite party, and that an irregular argument is liable to ensue, in which each speaker imputes disorder to the last, and recrimination takes the place of orderly debate. There is no impartial authority to whom an appeal can be made, and the debate upon order generally ends with satisfaction to neither party, and without any decision upon the matter to which exception had been taken. In so large and active an assembly as the House of Com- Commons. mons, it is absolutely necessary that the speaker should be invested with authority to repress disorder, and to give effect, promptly and decisively, to the rules and orders of the house. The ultimate authority upon all points is the house itself; but the speaker is the executive officer, by whom its rules are generally enforced. In ordinary cases an infringement of the usage or orders of the house is obvious, and is immediately checked by the speaker; in other cases his attention is directed to a point of order, ' G5 Com. J. 134. p 210 ORDER IN DEBATE. when he at once gives his decision, and calls upon the member who is at fault, to conform to the rule as ex- plained from the chair. But doubtful cases may arise, upon which the rules of the house are indistinct or obsolete, or do not apply directly to the point at issue ; and then, the speaker, being left without specific directions, refers the matter to the judgment of the house. On the 27th April 1604, it was "agreed for a rule, that if any doubt arise upon the bill, the speaker is to explain, but not to sway the house with argument or dispute ;" * and in all doubtful matters this course is adopted by the speaker. Speaker always Whenever the speaker rises to speak in the course of a debate, he should be heard in silence, and the member who was speaking should immediately sit down. It was asjeed for a rule on the 21st June 1604, "That when Mr. Speaker desires to speak, he ought to be heard without interruption, if the house be silent, and not in dispute ;" * but this is an imperfect explanation of the present practice, for the rising of the speaker is the signal for immediate silence and for the cessation of all dispute ; and members who do not maintain silence, or who attempt to address the speaker, are called to order by the majority of the house, with loud cries of " order" and " chair." Members to It is a rule in both houses that when the conduct of a withdraw when . , . , . • i i i • their conduct is member is under consideration, he is to withdraw dunng e dte. ^j^^ debate. The practice is to permit him to learn the charge against him, and after being heard in his place, for him to withdraw from the house. The precise time at which he should withdraw^ is determined by the nature of the charge. When it is founded upon reports, petitions, or other documents, or words spoken and taken down, which sufficiently explain the charge, it is usual to have them read and for the member to withdraw before any question is proposed; as in the cases of Lord Coningesby, in 1720; ^ of Sir F. Burdett in 1810; " of Sir T. Troubridge, • 1 Com. J. 1«7. ' Ih. 244. ' 21 Lords' J. 450. * G5 Com. J. 224. ORDER IN DEBATE. 211 in 1833;' and of Mr. O'Connell, in 1830;^ but if tlie charge be contained in the question itself, tlie member is heard in liis place, and witlulraws after the question has been proposed ; as in the cases of Mr. Secretary Canning, in 1808;=* and of Lord Brudenell, in 1836.'* If the member should neglect or refuse to withdraw at the proper time, the house woidd order him to withdraw. Thus, in the lords. Lord Pierpoint, in 1641,^ and Lord Herbert of Cher- bury, in 1042," were commanded to withdraw; and in the commons, in 1715, it was ordered upon question and division, "that Sir W. Wyndham do now withdraw." ' A motion for adiourning the debate may be offered at Adjournment 1 • 1 1 J 1-1 of debates. any period of the discussion ; and m the lords, whether seconded or not, must be disposed of before the debate can proceed. In the commons, if it be not seconded, it drops like any other motion, and the debate is continued as if no such motion had been made ; but if seconded, it must either be withdrawn or negatived, before the debate upon the question can be resumed. It was explained in the chapter upon questions,^ in what manner it is customary to alternate motions for the adjournment of the house, and for the adjournment of the debate ; and repeated motions to that effect, in opposition to the general desire of the house, cannot be restrained, unless the house should alter the form of the question. At present the words are " that the debate be now adjourned;" which being negatived, may, of course, be proposed again, at a later period, to Avhich the prior decision of the house cannot be construed to apply; but if a question were proposed, "that the debate be adjourned from this day's sitting," ^ and nega- tived, it is presumed that the same motion could not be repeated at any period of the evening, however late. ' 88 Com. J. 470. ^ 91 lb. 42. ^ gg ib_ 149. 4 g| j^. 319. * 4 Lords' J. 476. « 5 Lords' J. 77. '^ 18 Com. J. 49. " Suprn, p. 172. ' This miglit be made to include the sitting after 12 o'clock at night; although, after that hour, the change of day is recognized in all the proceedings. P 2 212 DIVISIONS. CHAPTER XII. DIVISIONS. MODE OF DIVIDING IN BOTH HOUSES. PROXIES AND PAIRS. PROTESTS. MEMBERS PERSONALLY IN- TERESTED. Members not present, wlieii question put. Precedents. In the lords, every lord who desires to vote, and holds proxies for other lords, must be present in the house when the question is put. And in the commons no member is permitted to vote unless he was in the house when the question was put. On the 16th March 1821 Mr. Speaker called the attention of the house to his having caused a member to vote in a division, who was not within the doors of the house when the question was i)ut ; and the house resolved, neni con,, " That the said member had no right to vote, and ought not to have been compelled to vote on that occasion."' Another case occurred on the 27th February 1824, when, after a division, and before the numbers were reported by the tellers, it was discovered that a member had come into the house after the question was put; he was eallen to the table, and upon the question being ])ut to him by Mr. Speaker, he declared himself for the noes; he was then let out of the house by the Serjeant, and bis name was not reckoned by the tellers for the noes, with whom he hud voted.2 On the 3d May 1819, after the numbers had been rejjorted by .the tellers, notice was taken that several members had come into the house after the question was put. Mr. Speaker desired any members who were not in the house when the question was put, to signify the same ; and certain members having stated that they were not in the house, their names were struck off from the yeas and from the noes respectively : and the numbers, so altered, were rajjorted by Mr. Speaker to the house.^ ' 70 Com. J. 172. ' 79 lb. 100. Tbis case is entered so ambiguously in tlie Journal, that it might appear as if tJie member had been let out into the lobiiy, in order to vote with the " noes," who had gone forth; but such was not the fact, nor would such a proceeding have been consistent with the rules of the house. ' 74 Com. J. 3U3. DIVISIONS. 213 On the 2(1 June 1825, the noes on a division were directed to go forth, and certain members refusing to retire from the lobby, the other members in the house were desired again to take their places, and the members were called in from the lobby. Tlie speaker then asked one of the six members who had refused to retire, where he was when the question was put, and he replied that he had been in the lobby ; upon which he was informed by Mr. Speaker that he could not be permitted to vote, and the Serjeant was ordered to open the outer door of the lobby, that the six members might be enabled to withdraw.' On the 14th June 183G the house was informed by a member who liad voted with the majority on a former day, that he was not in the house when the question was put, and had therefore no right to vote on that occasion ; and it was resolved that his vote should be disallowed." These precedents show that at whatever time it may be discovered that members were not present when the ques- tion was put, whether during the division, before the num- bers are reported, or after they are declared, or even several days after the votes were given, such votes are disallowed. In order to prevent the accidental absence of members at so critical a time, precautions are taken to secure their attendance, and to prevent their escape between the putting of the question and the division. Before a division can take place, the house must be ii„„se cleared cleared of strangers in the galleries, below the bar, and in °^ strangers. the lobby. This occupies a considerable time when there are many strangers, but scarcely a minute when the gal- leries are not full. When it is known that a division is about to ensue, the speaker, directly the debate is closed, gives the order that " strangers must withdraw," and at the same instant the doorkeepers shout " Clear the gallery !" and ring a bell which communicates with every part of the building. This " division bell " is heard in the libraries, the refreshment rooms, the waiting rooms, and wherever members are likely to be dispersed, and gives notice that a division is at hand. Those who wish to vote, hasten to the house immediately, and while the messengers are engaged ' 80 Com. J. 483. ^ 91 lb. 475. P 3 214 DIVISIONS. in excluding strangers, they have time to reach their places. Directly the strangers have withdrawn, the usher of the black rod in the lords, and the serjeant-at-arms in the commons, and the doorkeepers and messengers under their orders, close and lock all the doors leading into the house and the adjoining lobbies simultaneously. Those members who arrive after the doors are shut, cannot gain admittance, and those who are within the house must remain there ; but in the upper house, lords who desire to avoid voting may withdraw to the woolsacks, where they are not strictly within the house, and are not therefore counted in the division. By shutting all the doors at once, care is taken, in the commons, to prevent members from gaining the lobby, and yet being shut out of the house ; but it may occasionally happen that a member with diffi- culty squeezes himself through the outer door of the lobby, and the next instant the serjeant shuts the door of the house. The member would then find himself enclosed be- tween the two locked doors, and unable to vote ; in which case the doorkeeper will open the outer door of the lobby, and permit him to withdraw. Qnosfion some- When all the doors are thus closed, the speaker puts the tiiiius twice put. . cjuestion, and the contents and not-contents, or the ayes and noes respectively, declare themselves. When a division is not expected, the speaker is obliged to put the question twice, because when his decision has been disputed after the first putting of the question, the strangers must with- tlraw ])efore the question can be decided by a division ; and in the meantime members who were not present when the (juestic^n was put, gain admittance to the house. None of these could vote unless the question were put a second time, and it is therefore the practice to put the question after tlif doors are closed, whether it has been already put or not, in order tliat the wiiole house may have notice of a division, iind l)c ;il)le to decide upon the question when j)Uf by the speaker. DIVISIONS. 215 A division is effected in the lords by the not-contents Division in the remaining- within the bar, and the contents going below ^°^'^^' the bar.^ A teller is appointed for each party, by whom they are respectively counted. When all the lords then present have been told, they resume their places, and the clerk at the table calls over the names of those lords who hold proxies, who, rising uncovered in their places,^ declare whether those for whom they are proxies are " content " or " not content." The lord chancellor or speaker gives his voice like the other lords on being required by the tellers, but he does not leave the woolsack to vote. The total number of lords present and of the proxies are then declared, and the question is decided by the joint majority of both classes of votes. In case of an equahty of voices and proxies combined, When voices 11 ^- • J 1 J A equal in the the not-contents have it, and the question is declared to lords. have been resolved in the negative. When this occurs it is always entered in the Journals " Then, according to the ancient rule in the like cases, 'semper prcEsumitur pro negante,' &c."^ The effect of this rule is altered when the house is sitting judicially, as the question is then put " for reversing, and not for affirming;"^ and consequently if the numbers be equal, the judgment of the court below is affirmed. The following are standing orders in regard to voting, when no formal division takes place : — " In voting, the lowest, after the question is put by the lord Manner of chancellor, begins first, and every lord in his turn rises, uncovered, ^||*"'S m the and only says content or non-content." * " That after a question is put, and the house hath voted there- Lords to keep upon, no lord is to depart out of his place, unless upon a divi- H'or places i ' ^ 11 upon voting, sion of the house, until the house have entered on some other business."® The practice in the commons, until 1836, was to send inthecom- one party forth into the lobby, the other remaining in the " Lords' S. O. No. 22. * lb. ' 14 Lords' J. 107, 168. " lb. No. 56. * lb. No. 20. ^ lb. No, 21. P 4 216 DIVIi5I0NS. house. Two tellers for each party then counted the numbers, and reported them. In 183G it was thought advisable to adopt some mode of recording the names of members who voted, and for this purpose several con- trivances were proposed : but by that adopted and now in operation, there are two lobbies, one at each end of the house, and, on a division, the house is entirely cleared ; Tellers. one party being sent into each of the lobbies. The speaker, in the first place, directs the ayes to go into one lobby, and the noes into the other, and then ap- points two tellers for each party ; of whom one for the ayes and another for the noes are associated, to check each other in the telling. If two cannot be found, no division is allowed to take place. On the 4th June 1829 a member was appointed one of the tellers for the yeas ; but no other member remaining in the house to be a teller for the yeas, the noes, who had gone forth, returned into the house, and Mr. Speaker declared tliat the noes had it.' In another case, 14th August 1835, the yeas were directed to go forth, and a member was appointed a teller ; but no member going forth, nor any other member ap])earing to be a second teller for the yeas, Mr. Speaker declared the noes had it;^ and several cases, of the same kind, have occurred more recently.^ It would, indeed, be unreasonable to allow a division, when, without counting the majority, the minority obviously consists of one member only, opposed to the whole house ; and it would be worthy of consideration whether a rule could not be established, by which no division should be allowed, unless 10 members declared themselves with the minority, besides the tellers. An unnecessary division is a great evil ; it occupies much time, and causes con- siderable inconvenience to the members; and the more uiiccjual the parties, the longer is the time consumed in the division, and the more irksome the process of dividing to the majority. The speaker can rarely doubt which party is (he minority, when the voices on one side are so ' ^^4 (0)11. J. ;i7'>. ^ w Jh. ;jM. ^ D? lb. 183. 354. 98 lb. 005. DIVISIONS. 217 few as to sound less in number than 10 ; and if that party nevertheless, disputed his decision, he might desire them to stand up, before the division, and no time would be lost in counting them. Occasions for enforcing this rule would not occur very often ; but, whenever the speaker had reason to believe, or any member took notice, that the ayes or the noes were less than 12, including the tellers, it would be a fair and simple mode of avoiding a division.^ Such a restriction upon the right of dividing, would most facilitate the progress of public business, in cases where a very small party oppose themselves to a bill, or insist upon an adjournment. Frequent divisions must then arise, in which hundreds, perhaps, retire into one lobby, and units into the other ; and, time being thus ■lost, the weaker party succeed at last, by reason of the unwieldy force of the majority. When there are two tellers for each party, the division Form of , 1,11 • 1 1 division in the proceeds, and the house is cleared. Coinuious. Two clerks are then stationed at each of the entrances to the house, holding lists of the members, in alphabetical order, printed upon large sheets of thick pasteboard, so as to avoid the trouble and delay of turning over pages. While the members are passing into the house again, the clerks place a mark against each of their names, and the tellers count the number. When both parties have returned into the house, the tellers on either side come up to the table and report the numbers ; and, if they agree, the speaker also declares them, and states the determination of the house. If the two tellers should differ as to the numbers on the side told by them, or if any mistake be discovered, there appears to be no alternative but a second division.^ ' A practice analogous to that proposed, is already sanctioned in regard to divisions in coiiiinittecs of the whole house. See p. -ID. = .3:3 Com. J. 21-2. 218 DIVISIONS. Cnsting voice of If tlie numbers should happen to be equal, the speaker the sneaker. , , . ^ , ^, (and m committee the chairman), who otherwise never votes, must give the casting voice. In the performance of this duty, he is at liberty to vote like any other member, according to his conscience, without assigning a reason ; but, in order to avoid the least imputation upon his impartiality, it is usual for him, when practicable, to vote in such a manner as will not make the decision of tlie house final, and to explain his reasons, which are entered in the Journals. Precedents. On the 14tli June 1821, for instance, the speaker declared him- self with the yeas, on a question for reading the amendments made by a committee to a bill a second time, " upon the ground of affording a further opportunity to the house of expressing an opinion upon the bill." ' Upon the second reading of a bill, 1st May 1828, the numbers being equal, Mr. Speaker stated, " that as the bill had been entertained l)y the house, although they were now undecided as to whetlier it should proceed or not, he considered that he shoukl best discharge his duty by leaving the bill open to further consi- deration, and therefore gave his vote with the yeas."* The speaker acted upon the same principle on the third reading of a bill, 23d June 1837;^ and a similar course has generally been taken at other stages in the progress of bills. ^ A case, however, occurred on the 2d April 1821, in which the speaker voted with the noes on the second reading of a bill, and so threw it out, with- out assigning any reason for his vote.* The principle by which the speaker is usually guided in giving his casting voice, has been carried even further than in the case of bills. On the 2Gth May 1820, within a few days of the end of the session, a resolution was proposed in reference to the practice of the house in cases of bril)ery at elections. The previous question was moved, and, on a division, the numbers being equal. " Mr. Sj)eaker said, that it being now his duty to give his vote, and con!iication of . , , ... division lists. names of members are marked are exammed by the divi- sion clerks, and sent off to the printer, who prints the marked names in their order; and the division Usts are dehvered on the following morning, together with the Votes and Proceedings of the house. This plan of record- ing the names of members, on a division, has been quite successful ; they are taken down with great accuracy, and very little delay is occasioned by the process. In committees of the whole house, it is the rule, that Divisions in , , , PI coiuiuittee, divisions are to be taken by the members ot each party crossing over to the opposite side of the house, unless five members require that the names shall be noted in the usual manner; but the custom of publishing the names has become so popular and general, that no practical dif- ference exists in the mode of taking divisions in committee. If less than five members should happen to object to a question, and were not assisted by any of the opposite party, they could not have their names recorded ; but an inconsiderable minority are generally the most anxious for the publication of their votes; and if more than five in number, they could insist upon it. In the lords, it has been seen, that not only those peers Proxies, who are present may vote in a division, but, on certain questions, absent peers are entitled to vote by proxy, and their votes are numbered with the rest ; the joint majority of votes and proxies being decisive of the question. The following rules and restrictions are incident to the right of voting by proxy : — " No lord of this house shall be capable of receiving above two No lord to have proxies, nor more to be numbered in any cause voted. All proxies above two. from a spiritual lord shall be made to a spiritual lord, and from a temporal lord to a temporal lord." ' ' 81 Com. J. 387. ^ Lords' S. O. No. 79. See also ol Lords' J. 11)2. 220 PROXIES. Proxies vaca- " If a peer having leave of the king to be absent from Par- tcti n|Hjn lords' ijftnient,' gives his proxy and afterwards sits again in the house, his coming and sitting again in Parliament doth determine tlmt proxy." ^ New proxies. " If a peer having leave to be absent, makes his jiroxy and re- turns, he cannot make a new proxy without new leave." ^ Proxies not to " Tliat proxies may be used in preliminaries to private causes, he useil in judi- jj^j ^^^j jj^ t^iving judgment." < cial cases. ^ d J o Though by bill. "That no proxy for the future shall be made use of in any judicial cause in this house, although the proceedings be by way of bill."^ Lords to vote "That a lord having a proxy and voting on the question, ought for their proxies to give a vote for that proxy in case proxies be called for."^ if they vote on the (picstion. " That the proxy of no lord shall be entered the same day on Proxies, when which he has been present in the house, and that no proxy entered to be entered, jn the book after three of the clock, shall be made use of the same day in any question, and that the clerks give an account thereof to the house."'' In committee. ^^ ^^ ^^^0 a rule that no proxy can be used in a com- mittee of the whole house. Peers and their The most usual practice is for lords to hold the proxies voteahke!''""^ of other lords of the same political opinions, and for the votes of both to be declared for the same side of a ques- tion. This is the true intent of a proxy ; but it occasionally happens, that a lord has been privately requested by another lord, whose proxy he holds, to vote for him on the opposite side; in which case, it is understood to be regular to admit their conflicting votes in that manner. But it is said, that this variation from the ordinary rule is permitted upon the supposition, that between the time of voting and of declaring the vote of the proxy, a lord may be supposed to have altered his own opinion ; for the form of the proxy would appear to delegate to the lord ' See Report of Precedents, when King George 3 was incapacitated from ({ranting siicli leave. 48 Lords' J. 21. 4(3. ^ Lords' 8. O. No. 80. ■■> lb. No. 81. ' lb. No. 82. ^ lb. No. 83. Tills rule is extended to controverted elections of the repre- sentative peers of Scolland. .31) Lords' .1. 33. 41 lb. 24. « lb. No. 84. 7 II, i^Tj, g^ PAIRS — PROTESTS. 221 who holds it, the absolute right of decision for the absent lord, without any reference to the opinions of the latter, expressed after the signature of that instrument. A practice, similar in effect to that of voting by proxy, I'airs. has for many years been resorted to in the House of in the coin- Commons. It has been shown, that no member can vote unless he be present when the question is put; and no sanction has ever been given, by the house, to any custom partaking of the character of delegation. But a system of negative proxies, known by the name of " pairs," enables a member to absent himself, and to agree with another member that he also shall be absent at the same time. By this mutual agreement, a vote is neutralized on each side of a question, and the relative numbers on the division are precisely the same as if both members were present. The division of the house into distinct political parties facilitates this arrangement, and members pair with each other, not only upon particular questions, or for one sitting of the house, but for several weeks, or even months, at a time. There can be no parliamentary recognition of this practice ; and it is therefore conducted privately, by individual members, or arranged by the gentlemen who are entrusted, by the two great parties, with the office of collecting their respective forces on a division. In addition to the power of expressing assent or dissent Protest. by a vote, peers may record their opinion, and the grounds of it, by a " protest," which is entered in the Journals, together with the names of all the peers who concur in it. On the 27tli February 1721, it was ordered, " that such lords as When to be en- shall make protestation, or enter their dissents to any votes of this tered. house, as thoy have a right to do without asking leave of the house, either with or without their reasons, shall cause their protestation or dissents to be entered into the clerk's book, the next sitting day of this house, before the hour of two o'clock, otherwise the same shall not be entered ; and shall sign the same before the rising of the house the same day."' ' Lords' S. O. No. 114. PERSONAL INTEREST. Personal in- terest. Peers. Commons. When a protest lias been drawn up, any peer may either subscril)e it without remark, if he assent to all the reasons assigned in it; or he may signify the particular reasons which have induced him to attach his signature.^ In 1796, a general resolution was proposed in the lords, " That no peers shall vote who are interested in a ques- tion ;" but it was not adopted.'^ It is presumed, however, that such a resolution was deemed unnecessary ; and that it was held, that the personal honour of a peer will prevent him from forwarding his own pecuniary interests by his votes in Parliament. In the commons, it is a distinct rule, that no member who is personally interested in a question shall be allowed to vote upon it ; but this interest must be direct and pecu- liar, and not merely of a general or remote description. OntheSdJune 1824, a division took place on a "Bill for repeal- ing so much of an Act 6 Geo. 1, as restrains any other corporations than those in the Act named, and any societies or partnerships, from effecting marine insurances, and lending money on bottomry." An objection was made to the numbers declared by the tellers, that certain members who voted with the yeas, were jjersonally interested in the passing of the bill, as being concerned in the Alliance Insurance Company ; but it was decided that they were not so interested as to preclude their voting for the repeal of a Public Act.^ On the 20th May 1825 notice was taken that a member who had voted with the yeas on the report of the Leith Docks Bill, had a direct pecuniary interest in passing the bill. lie was heard in liis ])lace; and having allowed that he had a direct pecuniary interest in passing the bill; that on that account he had not voted in the committee on the bill; and that he had voted, in this instance, through inadvertence, his vote was ordered to be disallowed.'' In some cases, also, members who have been subscribers to undertakings, have voted in favour of bills before the house, for currying them into effect ; and when they have admitted that they were subscribers, their votes have been disallowed.'' ' But the protestor reasons may be ordered to be expunged. 43 Lords' J. 82. ' 40 Lords' J. C40. GSO. » TJ Com. J. 455. " 80 lb. 443. ' 80 Com. J. 110. i)l lb. 271. PERSONAL INTEREST. 223 But it is not sufficient to be interested in a rival under- taking. On the 22(1 February 1825, a member voted against a bill for establishing the London and Westminster Oil Gas Company, and notice was taken that he was a proprietor in the Imperial Gas Light and Coke Company, and thereby had a pecuniary interest in opposing the bill. A motion was made that his vote be dis- allowed, but after he had been heard in his place, it was with- drawn.* If any doubt should be entertained by the house whether a vote should be disallowed or not, the member whose vote is under consideration should withdraw immediately after he has been heard in his place, and before the question is proposed.* Upon the same principle that every member should be free from any pecuniary interest in the votes he may give, it was resolved, on the 2d May 1695, "That the offer of any money, or other advantage, to any Offer of money, member of Parliament, for the promoting of any matter whatso- ever, depending or to be transacted, in Parliament, is a high crime and misdemeanor, and tends to the subversion of the English constitution." 3 And, more recently, it has been declared contrary to the law and usage of Parliament, for any member to be engaged in the management of private bills for pecuniary reward.* And, upon the same grounds, it was ordered, on the 6tli Counsel. November 1666, " That such members of this house as are of the long robe shall not be of counsel on either side, in any bill depending in the Lords' House, before such bill shall come down from the Lords' House to this house." * ' 80 Com. J. 110. * 80 lb. 110. 91 lb. 271. » 11 lb. 331. ■• 85 lb. 107. 5 8 lb. 64G. See case of Mr. Roebuck, 97 lb. 499. 224 COMMITTEES OF THE WHOLE HOUSE. CHAPTER XIII. COMMITTEES OF THE WHOLE HOUSE : GENERAL RULES OF PROCEEDING : CHAIRMAN ; MOTIONS AND DEBATE : HOUSE RESUMED. Mode of ap- pointinent. Chairman of lords' coiniiiit- tees. Chairman of coiiiiiiittcos in tlie coiiiiiioiia. A COMMITTEE of the whole house is, in fact, the house itself, presided over by a chairman, instead of by the speaker. It is appointed in the lords by an order " that the house be put into a committee," which is followed by an adjournment of the house during pleasure. In the com- mons it is appointed by a resolution, " That this house will resolve itself into a committee of the whole house ;" after which a question is put by the speaker, viz. : " That I do now leave the chair;" and when that is agreed to, the speaker leaves the chair immediately, the mace is removed from the table, and the committee commences its sitting. The chair is taken, in the lords, by the chairman of committees, who is appointed at the commencement of each session, by virtue of the following resolutions of the 23d July 1800 :— " That this house will, at the commencement of every session, proceed to nominate a chairman of committees of this house. " That such lord as shall be nominated, do take the chair in all committees of the whole house, unless where it shall have been otherwise directed by this house." ' In the commons the chair is generally taken by the cliairnian of the committee of ways and means. If a diHercucc sliould arise in the committee concerning the election of a chairman, it must be determined by the hous(; itself, and not by the committee. The speaker resumes tlie cliair at once, and puts a question, " That a particular member do take the chair of the committee ;" ' 4-2 Lords' J. n:}0. COMMITTEES OF THE WHOLE HOUSE. 225 which being agreed to, the mace is again removed from the table, and the committee proceeds to business under the chairman appointed by the house.' The j)roceedings are conducted in the same manner as Conduct of im- when the house is sitting.'^ In the lords a peer addresses ^'"^^** himself" to their lordships, as at other times : in the com- mons, a member addresses the chairman, who performs in committee, all the duties which devolve upon the speaker in the house. He calls upon members as they rise to speak, puts the questions, and maintains order. A committee can only consider those matters which Matters com- have been committed to them by the house. If it be desirable that other matters should also be considered, an instruction is given by the house for that purpose.^ It is an understood rule that a motion in committee Motion not 1 . 1 1 1 1 • 1 • 1 1 • . seconded in need not be seconded, which is observed ni practice, committee, although it has never been distinctly declared, and its propriety is sometimes questioned. It derived confirma- tion from the former practice of appointing only one teller for each side on a division in committee; and, although two tellers are now appointed, without whom no division in the lobbies is allowed to proceed ; a question is still put from the chair on the motion of one member. A motion for the previous question is not admitted in Previous ques- committee ; since the committee are only authorized to con- sider the matters which have been referred to them by the house, and of which the consideration should be preferred to a motion which is only offered for the purpose of ex- cluding them from a decision. Motions, however, havino- the same practical effect, have sometimes been allowed in committees on bills.'* > 9 Com. J. 38G. 13 Ih. 704. 21 Ih. 255. 65 lb. 30. 3 Grey's Debates, 301. * Lords' S. O. Nos. 28, 29. ' An instruction should always be moved distinctly after tlie order of the day has been read, and not as an amendment to the question for the speaker leaving the cliair. * See Chapter XVI 11., on Hills, p. 280. 2-H\ COMMITTEES OF THE WHOLE HOUSE. Questions of On the Sd November 1675, it was declared to be an sums and dates. ancient order of the house, " that where there comes a question between the greater and lesser sum, or the longer or siiorter time, the least sum and the longest time ought first to be put to the question." ' This rule has more imme- diate reference to the committees of supply, and ways and means, but is also observed in other committees. Meiiiiiers may Xiie main dltlerencc between the proceedings of a coni- pp -ak more . . . tiKui once. mittee and those of the house is, that in the former a member is entitled to speak more than once, in order that the details of a question or bill may have the most minute examination ; or, as it is expressed in the standing orders of the lords, " to have more freedom of speech, and that arguments may be used pro et contray^ These facilities for speaking are not often abused so as to protract the debates ; but are rather calculated, in ordinary cases, to discourage long speeches, and to introduce a more free and conversational mode of debating. When a member can speak only once, he cannot omit any argument that he is prepared to offer, as he will not have another oppor- tunity of urging it; but when he is at liberty to speak again, he may confine himself to one point at a time. To speak stand- Members must speak standing and uncovered, as when the house is sitting, although it appears that, in earlier times, they were permitted to speak either sitting or standing. On the 7th November IfiOl, in a committee on tlie subsidy or supply, Sir Walter Raleigh was interrupted by Sir E. IJobby, who said, " We cannot hear you ; speak out ; you should speak standing, that so the house might the better hear you." To this Raleigh rejilied, " that being a committee, he might speak either sitting or standing." Mr. Secretary Cecil rose next, and said, "■ Because it is on argument of more reverence, 1 chuse to speak standing." ^ iioiisf re- It was ordered and declared by the lords, 10 June 1714, ■•limed. J J 7 " That when the house shall be put into a committee of the whole house, the house be not resumed without the unanimous ' -^ <^'"m- J- 307. 2 Lords' S. O. No. 28. ' 4 Pail. Hist. 410. COMMITTEES OF THE WHOLE HOUSE. 227 consent of the committee, unless upon a cjuestion put hy the lord who shall be in the chair of such committee." ' In the commons, if any doubt should arise as to a point ciiairman £.1 ,1 !• 1 • 1 J.1 -xi J. leaves the cliuir. or order or other proceedmg, which the committee cannot , . 1 1 1 ji • • Commons. agree upon, or which may appear beyond their province to decide, the chairman should be directed to leave the chair, report progress, and ask leave to sit again. Thus, on the 2d March, 1836, A debate having concluded in committee, the chairman stated that before he put the question he wished to have the ojiinion of the committee as to the manner in which the committee should be divided, in case of a division ; and it being the opinion of the committee, that that matter ought to be decided by the house, the chairman left the chair, and Mr, Speaker having resumed the chair, the chairman reported that a point of order had arisen in the committee, with respect to the manner in which the commit- tee should be divided, upon which the committee wished to be instructed by the house. The house proceeded to consider this point, and Mr. Speaker having been requested to give his opinion, stated it to the house ; after which the house again resolved itself into the committee, the question was immediately put, and the committee divided in the manner pointed out by the speaker.^ If any pubhc business should arise in which the house Speaker ro- is concerned, the speaker resumes the chair at once, with- in certaiacas'es. out any report from the committee ; as if the usher of the black rod should summon the house to attend her Majesty or the lords commissioners in the House of Peers, or if the time be come for holding a conference with the lords.^ So, also, if any sudden disorder should occur, by which the honour and dignity of the house are affected, the urgency of such a circumstance would justify the speaker in resuming the chair immediately, without awaiting the ordinary forms. On the 10th May 1675 a serious disturbance arose in a grand committee, in which bloodshed was threatened ; when it is related that " the speaker very opportunely and prudently rising from his seat near the bar, in a resolute and slow pace, made his three respects through the crowd, and took the chair." The mace ' Lords' S. O, No. 31. ' 91 Com. J. 104. ' (i7 Com. J. 431. Q2 228 COMMITTEES OF THE WHOLE HOUSE. liaviurj Ijcen forcibly laid iqion the talile, all the disorder ceased, and the gentlemen went to tlieii- j)]aces. The speaker being sat, sj)oke to this purpose, " That to bring the house into order again, be took the chair, though not according to order." No other entry appears on the Journal than that " Mr. Speaker resumed the chair;" but the same report adds, that though "some gentle- men excepted against his coming into the chair, the doing it was ge- nerally api)roved, as the only expedient to suppress the disorder." ' The speaker certainly acted with judgment on that occa- sion, and a more recent case would seem to prove that he was not out of order. On the 27th February 1810, a member who, for disorderly con- duct, had been ordered into custody, returned into the house, during the sitting of a committee, in a very violent and disorderly manner; upon which Mr. Speaker resumed the chair, and ordered the Serjeant to do his duty. When the member had been removed by the serjeant, the house again resolved itself into the committee.* Forty memi.ers A committee of the whole house, in the commons, cannot required. ])roceed with business any more than the house itself, inilcss 40 members be present; but it has no power of ad- journment, by which the sitting of the house would be con- cluded. Wiien notice, therefore, is taken that 40 members are not present, the chairman counts the committee, and if less than that number be present, he leaves the chair, and Mr. Speaker resumes the chair, and tells the house. If 40 members be then present, the house again resolves itself into the committee ; but if not, the speaker adjourns the house, without a question first put, in the same manner as when 40 members are not present during the sitting of the house.^ So, also, if it appear on a division in com- mittee, that 40 members are not present, the chairman leaves the chair, and the speaker tells the house in the same nr.unicr.' Cannotadjourn. A coiiiinittce of the whole housc has no power either to adjourn its own sittings or to adjourn a debate to a future sitting; but if a debate be not concluded, or if all the Lords. matters referred be not considered ; in the lords, the house is resumed, and the chairman moves " that the house ' .1 Grf-yVDeb. 12 See Chapters XVIII. aud XXI. - 84 Com. J. 78. q3 2^0 SELliCT COxMMITTEES. CHAPTER XIV. APPOINTMENT, CONSTITUTION, POWERS, AND PROCEEDINGS OF SELECT COMMITTEES IN BOTH HOUSES. General pro- A SELECT committee is composed of certain members viiiceofaselect • . i i ^i i j ■ ^ ■ ■ ■ , coiumittte. appomtecl by the house to consider or mqune mto any matters, and to report their opinions, for the information of the house. Like a committee of the whole house, a select committee are restrained from considering: matters not specially referred to them by the house. When it is thought necessary to extend their inquiries beyond the order of reference, a special instruction from the house gives them authority for that purpose ;* or if it be deemed advisable to restrict their inquiries further than was origi- nally intended, an instruction should be given by the house for prescribing the limits of their powers.* Inquiry by evidence is the most general object of a select committee ; but committees may be appointed for any other purpose in which they can assist the house, and petitions and other documents are constantly referred to them for con- sideration. Appointment in In the House of Lords, there are no special rules in the lords. ' regard to the apj)ointment and constitution of select com- mittees. The house resolve, that a select committee be appointed; after which, it is ordered that certain lords then nominated shall be appointed a committee to inquire into the matters referred, and to rejjort to the house. Their lordships, or any three of them (or a greater num- Ixr, if necessary,) are ordered to meet at a certain time in the Prince's Lodgings, near the House of Peers, and to adjourn as they please. ' in Com. J. 4-22. Gal. 2 75 ^^^ OOO. !(0 lb. 5iJ2. LORDS COMMITTEES. 231 The order of sitting on tlic lords' committees and other Sittiiii,'^ ami matters, are thus defined by tlie standing orders : — °'" " If they be a select committee, they usually meet in one of the rooms adjoyning to the upper house, as the lords like ; any of tlie lords of the committee speak to the rest uncovered, but may sit still if he please; the committees are to be attended by such judges or learned coiincel as arc appointed ; they are not to sit there, or be covered, unless it be out of favour for infirinity; some judge sometimes hath a stool set behind, but never covers, and tlie rest never sit or cover. The Lord Chief Justice Popham did often attend committees ; and though he were chief justice, privy coun- cillor, and infirm, yet w^ould he very hardly ever be perswaded to sit down, saying it was his duty to stand and attend, and desired the lords to keep those forms which were their due." ' The House of Lords do not give select committees witnesses, how any special authority to send for witnesses or documentary ''"'"'""'"-' • evidence ; but parties are ordinarily served with a notice from the clerk attending the committee, that their attend- ance is requested on a certain day, to be sworn at the bar of the house, in order to be afterwards examined before the committee. Where a positive order is thought neces- sary to enforce the attendance of a witness, or the pro- duction of documents, it emanates from the house itself. In order to ensure fairness and efficiency in the consti- ApiKnntmont, 1,1 constitution, tution and proceedmgs or select committees, and to make and practice hi their conduct open to observation, the House of Commons ^^^ commous,. have laid down the following regulations • — 1. " That no select committee shall, without previous leave Number of obtained of the house, consist of more than 15 members ; that luembers. such loave shall not be moved for without notice ; and that in the case of members proposed to be added or substituted after the first appointment of the committee, the notice shall include the names of the members proposed to be added or substituted."* 2. " That it be recommended to every member moving for the Attcnilaucc. appointment of a select committee, to ascertain previously whether each member proposed to be named by him on such committee, will give his attendance thereupon." ' Lords' S. O. No. 32. ' 91 Com. J. OO. 0-2 Ih.f*. Q4 2;i2 COMMONS COMMITTEES. Notice of 3. " That every member iiiteiidinj^ to propose a select committee, """'^'='- shall, one day next l»efore flie nomination of sucli committee, place on the notices the names of the members intended to be proposed by him to be members of such committee," ' List of uieiii- 4. « That lists be affixed in some conspicuous place in the com- '^^ mittee clerks' office, and in the lobby of the house, of all members serving on each select committee." * tiiiestions to 5. '* Tiiat to every question asked of a witness under examination witnt'sses. jjj {j,g proceedings of any select committee, tl.ere be prefixed in the minutes of the evidence, the name of the member asking such ([uestion." Mimittsof pro- 6. "That the names of the members present each day on the cecdiiigs. sitting of any select committee be entered on the minutes of evi- dence, or on the uiinutes of the })roceedings of the committee (as the case may be), and reported to the house on the report of such committee." Divisions. 7. " That in the event of any division taking place in any select committee, the question proposed, the name of the proposer, and tiie respective votes thereupon, of each member present, be entered on the minutes of the proceedings of the committee (as the case may he), and reported to the house on the report of such com- mittee." Appointment of In Compliance With the first of these resokitions, a select eommittee is usually connned to 15 members, but it iioni any special circumstances a larger number should be thought necessary, the house will allow it.^ In special cases, the house have also thought fit to a})point certain committees by ballot,^ or to name two members, and to appoint the rest oi the committee by ballot,'' or to choose 21 names by ballot, and to permit each of two members nominated by the iiouse, to strike off four from that numbi-r." Members have also been nominated to serve on a committee, to examine witnesses, without the power of voting. '^ M.iiiiKTsa.idcd Mciiihers are frequently added to committees, and other au(i diacliurfjcd. ... nu'uil)ers ongmally nominated are discharged from further attendance. Quorum. Whatever may be the number of a committee, it is not pmliabh- that all coiihl attend, and the house order in ' '.KJ Com. J. 2'Jl. 2 91 lb. 30. 92 lb. 8. ^ 02 lb. !M. • 74 lb. 04, 6.C. * 88 lb. 144. 4G7, &c. * 88 lb. ICO. 470. ' 91 lb. 4:2. EVIDENCE. 233 each case what number shall be a quonun. If no quorum were named, it would be necessary for all the members of" the committee to attend. Three are generally a quorum in committees of the upper house, and in the commons the usual number is five ; but three are sometimes allowed, and occasionally seven, or any other number which the liouse may please to direct. In two cases where the in- vestigations of conmiittees partook of a judicial character, the house zianied a quorum of five, but at the same time ordered the committee to report the absence of any mem- ber on two consecutive days. ^ A committee cannot proceed to business without a quorum, but must wait until the proper number of mem- bers have come into the room. If the number should afterwards be reduced below the quorum, business is not interrupted, unless a member take notice that the proper number are not present. No question, however, can be decided by vote without a quorum, as the irregularity would then be obvious, and would appear on the minutes. On these points the practice is similar to that observed in the house in regard to the presence of 40 members. As the object of select committees is usually to take Evidence, evidence, the House of Commons, when necessary, give them " leave to send for persons, papers, and records." By virtue of this authority, any witness may be summoned by an order, signed by the chairman, and he must bring all documents which he is informed will be wanted for the use of the committee. Any neglect or disobedience of a summons will be reported to the house, and the offender will be treated in the same manner as if he had been guilty of a similar contempt to the house itself. This general notice of the power of committees in respect to witnesses, will suffice, in this place ; as the proceedings of Parliament in regard to the summoning, examination, and punishment of witnesses, will appear more at length in the next chapter."^ ' 90 Com. J. 4J7. 504. « See infra, p. 238. ■234 PRESENCE OF STRANGERS All lords may eoiiii', but uut vot*.'. Presence of When a select committee of the House of Lords are . miigers. taking the examination of witnesses, strangers are rarely allowed to be present ; but in the commons the presence of strangers is generally permitted : their exclusion, how- ever, may be ordered at any time, and continued as long as the committee may think fit. When they are deliberating, it is the invariable practice to exclude all strangers, in order that the committee may be exposed to no interrup- tion or restraint. All the lords are entitled to attend the select committees of that house, subject to the following regulations : — " Here it is to be observed, that at any committee of our o-wn, any member of our house, though not of the committee, is not excluded from coming in and speaking, but he must not vote : as also he shall give place to all that are of the committee, though of lower degree, and sliall sit behind tliem, and observe the same order for sitting at a conference with the commons." ' Members of the House of Commons have claimed the right of being present as well during the deliberations of a committee as while the witnesses are examined; and although if requested to retire, they would rarely make any objection, and on the grounds of constant practice and courtesy to the committee, they ought immediately to retire when the committee are about to deliberate ; yet it does not appear that the committee, in case of their refusal, would have any power to order them to withdraw. On the 24th April 1626, Mr. Glanvyle, from the select committee Cliarircsairainst *^" ^''^ charges against the Duke of Buckingham, stated that tlic Duke of exceptions were taken by some members of tiie house against the examinations being kejit private, witliout admitting some other members thereof, and desired the direction of the house. It is evident from this statement that the committee had exercised a jxAver of excluding members; and though it is said in the Journal that much dispute arose upon the general question, " whetiicr tlie members of the house, not of a select committee, may come to the select committee," no general rule was laid down; but in that i)articular case the house ordered, "That no J'rcsencc of iiieiabers. l'r< cedents. liuckiiighum. L....N' P. (>. \o. :j3. AND MEMBERS. 235 rueinbor of the house shall be present at tlu; debate, disposition, or ])ennini; of the l)usiness by the select committee ; but only to be l)resent at the examination, and that without interposition." • All opinion somewhat more definite may be collected Eastindiajudi- from the proceedings of the India Judicature Committee, in 1782 : — In that case the committee were about to deliberate upon the Mr. Barwell. refusal of Mr. Barwell to answer certain questions,- and on the room being cleared, he insisted upon his privilege, as a member of the house, of being present during the debate. The committee observed, that Mr. Barwell being the party concerned in that debate, they thought he had no right to be present. Mr. Barwell still persisted in his right, and two members attended the speaker, and returned with his opinion, that Mr. Barwell had no right to insist upon being present during the debate; upon which Mr. Barwell withdrew. Here the ground taken by the committee for bis exclusion was, that he was concerned in the debate, and not simply that, as a member, he had no right to be present at their deliberations. The house soon afterwards ordered, " That when any matter shall arise on which the said committee wish to debate, it shall be at their discretion to require every person, not being a member of the committee, to withdraw." The inference from this order must be, that the commit- tee would not otherwise have been authorized to exclude a member of the house. ^ When committees were appointed to examine the physicians of Kind's pliysi- King George 3, in 1810 and 1811, the house also ordered, " That ciaiis. no member of this house, but such as are members of the com- mittee, be there present." ' On the 29th June 1842 the committee on election proceedings Election pro- reported that they had unanimously resolved, that it was desirable copdiii^^s com- that no person should be present except the witness under examina- "^^^tee. tion ; " but that the committee having reason to believe that the right of members to be present at their proceedings will be insisted on, had directed the chairman to call the attention of the house to the subject." The exclusion proposed in this case extended not only to the deliberations of the committee, but also to the examina- tion of witnesses, and was not sanctioned by the house.* Until some more positive rule shall be laid down upon General results, this matter, the result of all these precedents appears to ' 1 Coin. J. 849. - 38 lb. 870. ' 06 lb. 0. 07 lb. 17. '97 lb. 438. 23G SECRET COMMITTEES. be, that mcmbcM's cannot be excluded from a committee room by tlie authority of the committee ; and that if there should be a desire on the part of the committee, that members should not be present at their deliberations, and there is reason to apprehend opposition, they should apply to the house for orders similar to those already noticed. Secret commit- But secret committees are sometimes appointed,' whose inquiries are conducted throughout with closed doors; and it is the invariable practice for all members, not on the committee, to be excluded from the room. When members attend the sittings of a committee, they assume a privilege similar to that exercised in the house, and sit or stand with their hats on. Diusion». Every question is determined in a select committee, in the same manner as in the house to which it belontis. In the lords' committees, the chairman votes like any other peer; and if the numbers on a division be equal, the question is negatived, in accordance with the ancient rule of the House of Lords, "semper prcesninitur pro ncgante.' In the conniions, the practice is similar to that observed in divisions of the house itself. On tlie 25th March 1836 the house were informed that the chairman of a select committee had first claimed the privilege to vote as a member of the committee, and afterwards, wlien the voices were equal, of giving a casting vote as chairman ; and tliat such jiractice liad, of late years, prevailed in some select com- mittees: upon which the house declared, " That according to the established rules of Parliament, the chairman of a select committee can (july vote when there is an equality of voices." ■■* Aiijoiirnmcntof A select committee may adjourn its sittings from time to time, and occasionally a power is also given by the house to adjourn from place to place.^ But without special ' .W Lords' J. n.j. <):> Com. J. -ifl, £«:c. ' Ul Com. J. 214. This misconception of tlie usage of Parhamcnt may have arircn from the peculiar practice of election committees, as regulated l)y Act of INrliaracnt; and ]:er! aps, also, from the custom observed in lords' coniniiKee.i. ' b'J Com. J. 411), \c. couimiltees. SELECT COMMITTEES. 237 leave no committee of the commons may sit (luring- the sitting of the house, nor after any adjournment for a longer period than till the next day. By a sessional order of the commons, it is ordered, " That the serjeant-at-nnns attending tliis house do, from time Prayers. to time, wlien the liouse is going to praj'ers, give notice thereof to all committees ; and that all proceedings of committees in a morning, after such notice, be declared to be null and void," In order to avoid any interruption to urgent business before committees, leave is frequently obtained, on the meeting of the house, for a committee to sit till five o'clock ; and on Friday night leave is given, when neces- sary, to a committee to sit on Saturday, notwithstanding the adjournment of the house. The evidence of the witnesses examined before a select Printeii mi- . 1 • 1 nutcs of evi- committee is taken down m short-hand, and, m the com- dence. mons, printed daily for the use of the members of the committee. A copy of his own examination is also sent to each witness for his revision, with an instruction that he can only make verbal corrections ; as corrections in sub- stance must be effected by re-examination. The corrected copy should be returned without delay to the committee clerk. Neither the members nor the witnesses to whom these copies are entrusted, are at liberty to publish any portion of them, until they have been reported to the house. On the 21st April 1837, it was resolved by the commons, " That according to the undoubted privileges of this house, and for the due protection of the public interest, the evidence taken by any select committee of this house, and documents presented to such committee, and which have not been reported to the house, ought not to be published by any member of such committee, nor by any other person." ' Any publication of the report of a committee before it has been presented to the house, is treated as a breach of privilege. On the 31st May 1832 complaint was made of the publication » 92 Com. J. 282. 238 WITNESSES. To rrport from tiiiiu tu liiue. of a draft report of a committee in a Dublin newspaper : the pro- })rietor admitted that he had sent the copy, and stated that he was willing to take the responsibility upon himself; but must decline to give information which might implicate any other person. He was accordingly declared guilty of a breach of privilege, and com- mitted to the custody of the serjeant.' It is the general custom to withhold the evidence until the inquiry has been completed, and the report is ready to be presented ; but, whenever an intermediate publication of the evidence, or more than one report, are thought necessary, the house will grant leave, on the application of the chairman, for the committee to " report from time to time," or to "report minutes of evidence" only, from time to time.^ CHAPTER XV. J low sum- iiioni'd |jy tlie lordH. witnesses: modes of summons and examination: administration of oaths : expenses. All witnesses who are summoned to give evidence be- fore the House of Lords, or any of the lords' committees, are ordered to attend at the bar on a certain day to be sworn, and they are served with the order of the house, signed by the assistant clerk of the Parliaments. And if a witness be in the custody of a keeper of a prison, the keeper is ordered to bring him up in custody, in the same manner. If the house have reason to believe that a wit- ness is purposely keeping out of the way to avoid being served with the order, it has been usual to direct that the service of the order at his house shall be deemed good service.^ If, after such service of the order, the witness should not attend, he is ordered to be taken into custody j" ' 87 Com. J. 300. 'fiO Lords' J. 296. 3:i8. » 74 Lorda' J. 80, &c. 92 Com. J. 18. 1G7, Sec. * 60 Lord's J. 400. WITNESSES SUMMONED. 230 but the execution of this order is sometimes stayed for a, certain time.^ If the officers of the house do not succeed in taking the witness into custody, by virtue of this order, the last step taken is to address the Crown to issue a pro- clamation, with a reward for his apprehension.* When the evidence of peers, peeresses, or lords of Par- Peers, &c. how liament is required, the lord chancellor is ordered to write letters to them, desiring their attendance to be examined as witnesses.^ When the attendance of a witness is desired, to be Witnesses snm- 1 1 1 1 TT p /-^ nioned l)y the exammed at the bar by the House oi Commons, or a com- commons, mittee of the whole house, he is simply ordered to attend at a stated time ; "* and the order, signed by the clerk of the house, is served upon him personally, if in or near London, and if at a distance, it is forwarded to him by the serjeant-at-arms by post, or, in special cases, by a mes- senger. If he should be in the custody of the keeper of any prison, the speaker is ordered to issue his warrant, which is personally served upon the keeper by a mes- senger of the house, and by which he is directed to bring the witness in his custody to be examined.^ If the order for the attendance of a witness be disobeyed, or if parties abscond, in order to avoid being served with a speaker's warrant, they are ordered to be taken into the custody of the serjeant-at-arms.^ Any person, also, who aids or abets a witness in keeping out of the way, is liable to a similar punishment.^ When the serjeant has suc- ceeded in apprehending such persons, they are generally sent to Newgate for their offence.^ All witnesses intended to be examined before an election By election committee, are summoned, before the appointment of the committee, by a speaker's warrant, on the application of the parties, without any special order of the house in ' 75 Lords' J. 358. * lb. 441, 442. ^ lb. 144. * 78 Com. J. 240. 91 lb. 338. * 82 Cora. J. 4G4. 80 lb. 795. ^ 90 lb. 330. 7 90 lb. 330. « gy ^^^ 343^ 344. •240 WITNESSES SUMMONED. By select com- iiiittceii. M'itiif'sscs al)- Hcoiidinijr. AttflKillllCf of iiicnilx-rt*, liow requin-d. eucli case, but undtM- a general order, given when the petition is j)resented, " tliat Mr. Speaker do issue his warrant for such persons, papers, and records as shall be thought necessary by the several parties, on the hearing of the matter of the said petition." Disobedience to a speaker's warrant, issued by virtue of this general order, has always been punished in the same manner as dis- obedience to a special order of the house.' After the ap- j)ointment of an election committee, the witnesses are summoned by orders signed by the chairman.* The attendance of a witness to be examined before a select committee is ordinarily secured by an order signed by the chairman, by direction of the committee ; but if a party should neglect to appear when summoned in this manner, his conduct is reported to the house, and an order is immediately made for his attendance. If, in the mean- time, he should appear before the committee, it is usual to discharge the order for his attendance;"^ but if he still neglect to appear, he is dealt with as in the other cases already described. The attendance of a witness before a committee on a private bill can only be enforced by an order of the house.'' When witnesses have absconded, and cannot be taken into custody by the serjeant-at-arms, addresses have been presented to the Crown for the issue of j)roclamations, with rewards for their apprehension.^ If the evidence of a member be desired by the house, or a conuuittee of the whole house, he is ordered to attend in his place on a certain day.** But when the attendance of a member is recjuired before a select conuuittee, it is the custom to request him to come, and not to address a sum- mons to him in the ordinary form. The proper course to he adopted by committees, in reference to members, has 82 Com. J. 3J1. '•' 4 & .5 Vict. c. 08, 8. 74. ' 91 Com. J. 352. « [)6 lb. lo-2, 1.>;J, 174, -270, 2«8. ^ 7o lb. 411). 82 lb. 345. « lil lb. 380. 04 lb. 17. 05 lb. 21. 30, &c. WITNESSES SUMMONED. 241 been tlius laid down by two resolutions of the commons, of the 16th March 1688 : " That if any member of the house refuse, upon being sent to, to come to give evidence or information as a witness to a com- mittee, the committee ought to acquaint tlie house therewith, and not summon such member to attend the committee." " That if any information come before any committee that chargeth any member of the house, the committee ought only to direct that the house be acquainted with the matter of such information, without proceeding further thereupon." ' There has been no instance of a member persisting in a refusal to give evidence before a committee, but members have been ordered by the house to attend select com- mittees.* In 1731, Sir Archibald Grant, a member, was committed to the custody of the serjeant-at-arms, " in order to his forthcoming to abide the orders of the house," and was afterwards ordered to be brought before a committee, from time to time, in the custody of the Serjeant. On the 28th June 1842 a committee reported that a member had declined complying with their request for his attendance.* A motion was made for ordering him to attend the committee, and give evidence ; but the member having at last expressed his willingness to attend, the motion was withdrawn.* If the attendance of a peer should be desired, to give Attendance of . , . p 1 TT members of the evidence before the house, or any committee or the House other house. of Commons, a message is sent " to the lords to request that their lordships will give leave to the peer in question to attend, in order to his being examined." If the peer should be in his place when this message is received, and he consents, leave is immediately given for him to be examined, if he think fit. If not present, a message is returned on a future day, when the peer has, in his place, consented to go." Exactly the same form is observed by ' 10 Com. J. 51. * 19 lb. 403. ^ 21 lb. 851, 852. * 97 lb. 438. * 97 lb. 438. 453. 458. See also Report of Precedents, ib. 449. ® The jealousy of the House of Lords of tlie attendance of its members in the House of Commons, is shown by the following standing orders; which, though not immediately applicable to them as witnesses, may be noticed in passing. 25th November 1G9G. " That no lord of this house shall go into the House R 242 WITNESSES SUMMONED. tliG lords when they desire the attendance of a member of the House of Commons. Whenever the attendance of a member of the other house is desired by a committee, it is advisable to give him private intimation, and to learn that he is willing to attend, before a formal message is sent to request his attendance. But these formalities are not usual in the case of private bills. ^ Officers of Xhe same ceremony is maintained between tlie two either liouse. houses in requesting the attendance of officers connected with their respective establishments ; but when leave is given them to attend, the words " if they think fit," which are used in the case of members, are omitted in the answer.* Peers, not being Whether a peer who is not a lord of ParHament mav be lords of parlia- ment, ordered to attend in the same form as a commoner, is a matter upon which the two houses are at issue. On the 3d May 1779, the Earl of Balcarras, of the peerage of SeotUmd, was ordered to attend the house.^ On tlie uth June 180(5, the House of Commons ordered the attendance of Lord Teign- niouth,* of the peerage of Ireland, and he attended accordingly ; but the House of Lords, at a conference, took exception to the mode of summons, and stated, " That it doth not apj^ear that there is any other precedent but that of the Earl of Balcarras in 1779, in which either house of Parliament, desiring information of a peer of the realm, has required his attendance for that jjurpose, by an order of such house." To this, Ijowever, the commons replied, that Lord Teignmouth " is not a lord of Parliament, nor hath the right and privilege of sitting in the House of Lords, nor of Commons whilst the house, or any committee of tlie whole house, is sitting there, witliout the leave of this house first had," — Lords' S. O. No. ol. 20ih January IG73. " The lords conceive that it may deeply intrench into the privileges of this house, for any lord of this house to answer an accusation iu the House of Commons, either in person or by sending his answer in writing, or by liis councel there. Ujion serious consideration had whereof, and perusal of the said precedents in this house, it is ordered, that for the future no lord Bhall titiitr go down to the House of Commons, or send his answer in writing, or ajipear by councel to answer any accusation there, upon penaltie of being committed to the black rod, or to the Tower, during the pleasure of this lioase." — Lords' S. O. No. oO. ' 3 Hats. '21. 2 83 Com. J. 278. id lb. 7r>. ' .37 Com. J. -.mi. * Gl lb. 374. WITNESSES EXAMINED. '14'.i is entitled to any of the privileges thereupon depending." Tin- House of Lords continued to maintain the i)rivilege of peerage as ajjart from the privilege of Parliament, and resolved, " That it is the undoubted privilege of all the i)eers of the United Kingdoni of Great Britain and Ireland, except such as may have waived their privilege of peerage by becoming members of the commons' house of Parliament, to decline, if they so think fit, to attend the House of Commons, for the purpose of giving information upon inquiries instituted by the said house, and that the said house has no right to enforce such attendance ; and that it is the incumbent duty of this house to maintain and uphold such the privilege of all the peers aforesaid, and to protect them against any attemjjt to en- force their attendance on the House of Commons, contrary to such privilege." ' But this resolution was not communicated to the Commons.* These being the various modes of securing the attendance Mode of exa- of witnesses to give evidence before either house of Par- liament, the mode of examination is next to be considered. In the House of Lords, every witness is sworn at the bar, Lords, whether he is about to be examined by the house, by a committee of the whole house, or by a select committee. When examined at the bar, if counsel be engaged in an inquiry, the witnesses are examined by thenl, and by any lord who may desire to put questions. When counsel are not engaged, the witnesses are examined by the lords generally. A lord of Parliament is examined in his place, and peers not being lords of Parliament, and peeresses, have chairs placed for them at the table.^ In select committees, witnesses are placed in a witness- Committees. box to be examined ; but members of the House of Com- mons are allowed a seat near the table, where they sit un- covered. False evidence before tiie lords, being upon oath, renders Oaths. a witness liable to the penalties of wilful and corrupt per- jury ; but prevarication, or other misconduct of a witness, is punished as a contempt. ' 45 Lords' J. 812. ■ Sec 2 Hats. App. 9. ^ 25 Lords' J. 303. See aho ib. 100, where the judges of the Court of Justiciary in Scotland bad chairs set for thcni at tlio bar, to be exnmincd. ]{ 2 244 OATHS. By the laws of England, the power of administering" oaths has been considered essential to the discovery of truth ; it has been entrusted to small debt courts, and to every justice of the peace ; but is not enjoyed by the House of Commons, the grand inquest of the nation. From what anomalous cause, and at what period this power, which must have been originally inherent in the High Court of Parliament, was retained by one branch of it and severed from the other, cannot be satisfactorily establislied ; but, even while the commons were contending most strenuously for their claim to be a court of record, they did not advance any pretension to the right of administering oaths. The two houses, in the course of centuries, have appropriated to themselves different kinds of judicature, but the one has exercised the right of administering oaths without ques- tion, while the other, except during the Commonwealth,* has never yet asserted it. Expedients of During the 17th century the commons were evidently the commons. . . . . "^ alive to the importance of this right, and anxious to exer- cise it ; but, for reasons not explained, they admitted, by various acts, that the right was not inherent in them ; and resorted to various expedients in order to supply the defect in their own authority. 1 . They selected some of their own membei's, who were justices of the peace for Middlesex, to administer oaths in their magisterial capacity, a practice manifestly irregular, if not illegal, since justices may only administer oaths in investigating matters within their own jurisdiction, as limited by law. 2. They called to their assistance one of the judges. 3. They sought to aid their own inquiries by exami- nations on oath at the bar of the House of Lords, and before joint committees of both houses; in neither of which expedients were they supported by the lords. All these methods of obtaining the sanction of an oath ' See G Com. J. 214. 7 lb. 287. WITNESSES EXAMINED. 245 to evidence taken at their instance, were so many distinct ^o cxaminf! in J.. r 1 • />i-i.i tlieinostsukiiiB admissions oi their own want of authority ; but in the 18th nmnuer. century a practice of a different character arose, which appeared to assume a right of delegating to others, a power which they had not claimed to exercise themselves. On the 27th January 1715, they empowered justices of the peace for Middlesex to examine witnesses ia the most solemn manner before a committee of secrecy ; ' and the same practice was resorted to in other cases.* On the 12th January 1720 a committee was appointed to inquire into the affairs of the South Sea Company, and the witnesses were ordered to be examined before them in the most solemn manner, without any mention of the persons by whom they were to be sworn.^ Between this time and 1757, several similar instances occurred;'* but from that year the most important inquiries have been conducted, without any attempt to revive so anomalous and questionable a practice. As the penalties of perjury do not attach to false testi- False evidence mony before the House of Commons, the only mode by y^^g^^ ' ° ^"' which it can be discouraged, is by treating it as a breach of privilege. To give notice of this fact, and to secure respect to the authority of the house in its inquiries, two resolutions are made at the beginning of each session : 1. " That if it shall appear that any person hath been tampering with any witness, in respect of his evidence to be given to this house, or any committee thereof, or directly or indirectly hath endeavoured to deter or hinder any person from appearing or giving evidence, the same is declared to be a high crime and mis- demeanor ; and this house will proceed with the utmost severity against such offender." 2. " That if it shall appear that any person hath given false evidence in any case before this house, or any committee thereof, this house will proceed with the utmost severity against such offender." Tlie house have rarely failed to act up to the spirit of ' 18 Com. 353. ^^ 18 lb. 59G. 19 lb. 301. ^ j.j 15. 403. ■• 21 lb. 851, 852. 2 Hats. 151-157. R 3 •24(i WITNESSES KXAMINED. Election com- uiittees. Prntpction to witnesses. Shnrt-hand writers. Kxamined at tlie bar. these resolutions in strictness and severity, and the Jour- nals are full of cases in which witnesses have been punished by commitment to tlie serjeant-at-arms, and to Newgate, for prevaricating-, or giving false testimony, or suppressing the tnith ; for refusing to answer questions, or to produce documents in their possession.' Evidence is taken before election committees under the sanction of an oath, by Act of Parliament; and false evidence is not only liable to punishment as a breach privilege,'* but also to the penalties of perjury. But, while the house punishes misconduct with severity, it is careful to protect witnesses from the effects of their evidence given by order of the house. On the 26th May 1818, the speaker called the attention of the house to the case of the King v. Merceron, in which the short-hand writer of the house was examined without previous leave, and it was resolved, nem. con., " That all witnesses examined before this house, or any com- mittee tliereof, fire entitled to the protection of this house, in respect of anything that may be said by them in their evidence;" and, " That no clerk or officer of this house, or short-hand writer employed to take minutes of evidence before this house, or any committee thereof, do give evidence elsewhere, in respect of any proceedings or examination had at the bar, or before any com- mittee of this house, without the special leave of the house."* These resolutions state distinctly that no officer of the house, or short-hand writer, shall attend without the special leave of the house ; but during the recess it has been the constant practice for the speaker to grant such leave, on the application of the parties to a suit. When a witness is examined by the House of Com- mons, or by a committee of the whole house, he attends at the bar, which is then kept down. If the witness be not in custody, the mace remains upon the table ; when ' See the hoadings, « Complaints," « House," " Elections," and " Wit- nesses," in the thrw; last General Journal liiilexes. ■■' Hce Ciiapter XXII. on Elections. a 73 (j^^j j ^j^y WITNESSES EXPENSES. 247 according to the strict rule of the house, the speaker should put all the questions to the witness, and members should only suggest to him the questions which they desire to be put ; but, for the sake of avoiding the repeti- tion of each question, members are usually permitted to address their questions directly to the witness. When a witness is in the custody of the serjeant-at-arms, or is brought from any prison in custody, it is the usual, but not the constant practice, for the Serjeant to stand with the mace at the bar. When the mace is on the Serjeant's shoulder, the speaker has the sole management ; and no member may speak, or even suggest questions to the chair.^ In such cases, therefore, the questions to be proposed should either be put in writing, by individual members, or settled upon motions in the house, and given to Mr. Speaker before the prisoner is brought to the bar.'^ If a question be objected to, or if any difference should arise in regard to the examination of a witness, he is ordered to withdraw, before a motion is made, or the matter is considered. Members of the house are always examined in their Members, 1 1 11/-T-4T 1-1 1 Lords of Parlia places ; and peers, lords oi Farliament, the judges, and ment, &c. the lord mayor of London, have chairs placed for them within the bar, and are introduced by the serjeant-at-arms. Peers sit down covered, but rise and answer all questions uncovered. The judges and the lord mayor are told by the speaker that there are chairs to repose themselves upon ; which is understood, however, to signify that they may only rest with their hands upon the chair backs.^ When a peer is examined before a select committee, it is the practice to offer him a chair at the table, next to the chairman ; where he may sit and answer his questions covered. When a witness is summoned at the instance of a party. Expenses of witnesses. ' See 2 Hats. 140. » lb. 142 and w. ^ 2 Hats. 149; where all these fonns arc miuutely described. R 4 248 WITNESSES EXPENSES. his expenses are defrayed by him ; but when summoned for any pubhc inquiry, to be examined by the house or a com- mittee, his expenses are paid by the Treasury, under orders signed by the assistant clerk of the ParHaments, the clerk of the House of Commons, or by chairmen of committees in either house. In order to check the expenses of witnesses examined before committees, the House of Commons have adopted certain regulations, by which the following parti- culars are annexed, in a tabular form, to the printed pro- ceedings of every committee : — 1. The name of the witness; 2. His profession or condition ; 3. By what member the motion was made for his attendance ; 4. The date of his arrival; 5. The date of his discharge ; 6. Total number of days in London; 7. Number of days under examination, or acting specially under the orders of the committee ; 8. Expenses of journey to London and back; 9. Expenses in London ; 10. Total expenses allowed to each witness, and to all collectively. No witness residing in or near London is allowed any expenses, except under some special circumstances of service to the committee.^ Every witness should report himself to the committee clerk on his arrival in London, or he will not be allowed his expenses for residence, prior to the day of making such report. The lords have sometimes appointed a select committee to inquire into the expenses that should be allowed to witnesses, and have received their report in detail before the items were agreed to.'' ' See Report, 1840, No. 555. » 0:2 Lords' J. 910. COMMUNICATIONS BETWEEN LORDS AND COMMONS. 249 CHAPTER XVI. COMMUNICATIONS BETWEEN THE LORDS AND COMMONS. MESSAGES AND CONFERENCES; JOINT COMMITTEES, AND COMMITTEES COMMUNICATING WITH EACH OTHER. The two houses of Parliament have frequent occasion Different to communicate with each other, not only in regard to munication.°"' bills which require the assent of both houses, but with reference to other matters connected with the proceedings of Parliament. There are four modes of communication ; viz. 1. By message; 2. By conference; 3. By joint com- mittees of lords and commons; and, 4. By select com- mittees of both houses communicating with each other. These will each be considered in their order. 1. A message is the most simple and frequent mode of Messages. communication; it is daily resorted to for sending bills from one house to another, for communicating various mat- ters of an ordinary description ; and it is always the com- mencement of the more important modes of intercourse, by means of conference and joint committees. The main From the lords difference between the modes of sending messages by either ° '"^ ^°^' house is, that the lords ordinarily send messages by the masters in chancery, their attendants ; and on special occa- sions by their assistants, the judges : while the commons always send a deputation of their own members. The practice is thus defined by a standing order of the House of Lords : — " Here it is to be noted, that we never send to the lower house by any members of our own, but either by some of the learned councel, masters of the chancery, or such like which attend us, and in weighty causes some of the judges; but the lower house never send unto us any but of their own body." ' • Lords' S. O. No. 36. mens. 250 COMMUNICATIONS BETWEEN By the jiiiltjc?. Xlic weighty matters liere spoken of are generally bills relating to the Crown or royal family, which are sent to the commons by two judges;* but when the judges are on circuit, or for other causes are not in attendance, such bills have been sent by one judge and one master m cliancery.* By masters in j^. |j^g often happened, that two masters in chancery chancery and x i ' j otJicrs. have not been in attendance when the lords have desired to send a message; in which case, they have sent one master in chancery and the clerk assistant of the Parlia- ments. But whenever this deviation from the ordinary practice occurs, the lords acquaint the commons that, from the absence of one of their usual messengers, and from the urgency of the case, or in consideration of the late period of the session, they had been induced to send the message by the clerk assistant, and by one of their usual messengers.^ On other occasions no master in chancery has been in attendance; when the lords have sent messages by their clerk assistant, and additional clerk assistant or reading-clerk, with similar explanations of the cause of sending the messages in an unusual manner.* But when- ever the commons receive a message brought by any officers not being assistants or attendants of the House of Lords, they always agree to a resolution, " That this house doth acquiesce in the reasons assigned by the lords," &c., " trusting that the same will not be drawn into pre- cedent for the future." Messages from The counnons send messages to the lords by one of their thecoiniiioiis to l , n ,l l • n ^ • r. the lords. ^^^'^^ members (generally the channian of the committee of ways and means, or a member who has had charge of a bill,) who is accompanied by at least seven others. Eight was formerly the common nundjer which formed a quorum of a select committee, and was probably, for this reason, • 80 Com. J. r,Ti. m II). 514. 805. ' 8G lb. 713. 3 88 lb. 7-27. 90 lb. O.JO. ■• 72 lb. .'i. 8o lb. 052. THE LORDS AND COMMONS. 251 adopted as the number for carrying a message to the House of Lords.* The form of receiving the messengers from the commons, Messengers by the House of Lords, is thus laid down in the standing I^?o,",'i',ow re- orders of the latter house : — ccivwi. " For our meeting with any of the lower house, it is either upon occasion of messages, which they send up to us, or upon conference when they come up unto us ; the manner is thus : After we have notice given us by our usher that they have sent unto us, they attend till we have put that business to some end, wherein we are, and then we (sitting all covered) send for them in, who stand all at the lowest end of the room, and then the lord chancellor (with such as please) riseth and goeth down to the middle of the bar; then the chief of the committee in the midst, and the rest about him, come up to the bar with three courtesies, and deliver the message to him, wlio, after he hath received it, retires to his former place, and the house being cleared and settled, he reports it to the lords, who do help his memory if anything be mistaken ; and after the lords have taken resolution (if the business require any answer), they are either called for in, and approaching to the bar, with three courtesies (as before), and the house sitting in order, and covered (as before), the lord chancellor sitting upon the woollsack covered, doth give them their answer in the name of the house ; or else, if the resolution be not so speedye, we send them word by the usher, that they shall not need stay for the answer, but we will send it by some express messengers of our own," * The messeno-ers from the lords proceed to the House of Mcsscnscrs ^ ^ ' . , from the IohIh, Commons, and if that house be then engaged in business hoM' received. which will not admit of immediate interruption, the mes- sengers take a seat below the bar until they can be received. It is usual, however, to admit them when the member then addressing the house has resumed his seat. For this purpose the serjeant-at-arms goes up to the table, making three obeisances, and acquaints the speaker that there is " a message from the lords ; " after which he retires to the bar. The speaker then acquaints the house that there is a message from the lords, and puts a ques- tion, that the messengers be now called in ; which being- agreed to, as a matter of course, he directs the serjeant ' See also Chapter XVIII. on Bills, p. 287. ' Lords' S. O. x\o. 30. 262 CONFERENCES. Answers to messages. lliisiness riipted. inter- General clia- racter of a con- fereuce. Sulijerts for a conference. to call in the messengers. The serjeant again advances to the table, and takes the mace, with which he introduces the messengers, and walks up to the table of the house on their right hand. They all make three obeisances in coming up the house, and, on reaching the table, one of the masters reads the message ; and, when there are bills, delivers them to the clerk of the house. The serjeant retires with them to the bar (all making obeisances), and then returns and replaces the mace upon the table. M'hen answers are required to be made to messages, they are returned either by the same messengers, who are again called in for that purpose ; or the messengers are acquainted that the house will send an answer by messen- gers of their own. The business of the house by which a message is sent is not interrupted while their messengers are proceeding to the other house : but the house by which a message is received, usually take an early opportunity of discon- tinuing the business under discussion, so as not to detain the messenoers. 2. A conference is a mode of communicating important matters from one house of Parliament to the other, more formal and ceremonious than a message, and better cal- culated to explain opinions and reconcile differences. By a conference both houses are brought into direct inter- course with each other, by deputations of their own members ; and so entirely are they supposed to be engaged in it, that while the managers are at the conference, the deliberations of both houses are suspended. Either house may demand a conference upon matters wliich, by the usage of Parliament, are allowed to be projx-r occasions for such a proceeding: as, for example, 1 . To connnunicate resolutions or addresses to which the concurrence of the other house is desired.* 2. Concerning the privileges of Parliament.* 3. In relation to the course ' 88 Com. J. 488. a 9 Jb. 344. CONFERENCES, 253 of proceeding in Parliament.' 4. To require statements of facts on which bills have been passed by the other house.* 5. Concerning matters affecting the public peace or secu- rity.'* 6. To offer reasons for disagreeing to amendments made by one house, to bills passed by the other. On all these and other similar matters it is regular to when to be de- demand a conference ; but as the object of connnunica- tions of this nature is, to maintain a good understanding and co-operation between the houses, it is not proper to use them for interfering with and anticipating the ' pro- ceedings of one another, before the fitting time. Thus, while a bill is pending in the other house, it is irregular to demand a conference concerning it ; and although this rule was not formerly observed with much strictness, it was distinctly declared by the House of Commons, in 1575, to be "according to its ancient rights and privi- leges, that conference is to be required by that court which, at the time of the conference demanded, shall be possessed of the bill, and not of any other court.'"* The convenience and propriety of this rule is so obvious that it has now, for a long course of years, been invariably observed, not only with regard to bills, but to resolutions that have been communicated. For instance, if the com- mons have communicated a resolution to the lords, they must wait until some answer has been returned, and not demand another conference upon the same subject. When the lords are prepared with their answer, it is their turn to demand another conference. In demanding a conference, the purpose for which it is Purpose to be desired should be explained, lest it should be on a subject not fitting for a conference ; as concerning a bill in pos- session of the house of whom the conference is demanded, or any other interference with the independent proceedings of the other house ; in which case a conference might pro- ' 89 Com. J. 220. 90 lb. GoG. » 19 ji,_ q^q^ 2 87 lb. (421. " 1 lb. 114. 254 CONFERENCES. peily be declined. The causes of demanding a conference need not, however, be stated with minute distinctness. It has been held sufficient to specify that they were " upon a matter of high inij)ortance and concern, respecting the due administration of justice ;" * " upon a subject of the highest importance to the prosperity of the British possessions in India;"* "upon a matter deeply connected with the inte- rests of his Majesty's West India colonies;"^ and "upon a matter essential to the stability of the empire, and to the peace, security, and happiness of all classes of his Ma- jesty's subjects."* None of these expressions pointed out the precise purpose of the conference, but they described its general object, in each case, so far as to show that it was a proper ground for holding a conference. Koasons The occasions upon which conferences are most fre- quently demanded are to offer reasons for disagreeing to amendments to bills ; when the course of proceeding is as follows. When any amendment made by the other house is disagreed to, a committee is appointed to draw up reasons for such disagreement, to be offered at the conference ; and when the reasons prepared by the committee are reported to the house and agreed to, a message is sent to desire Time ami place the Conference, It is the peculiar privilege of the lords to name both the time and place of meeting, whether the con- ference be desired by themselves or by the commons ; arid when they agree to a conference, they at the same time a])point when and where it shall be held. Both houses conununicate to each other their agreement to a conference by messages in the ordinary manner. Managers ap- Each house appoints managers to represent it at the conference, and it is an understood rule that the number on the part of the commons shall be double that on the part of tl)(; lords; although it is not the modern practice ' 8.5 Com. J. 473. (Sir J. Harrington). ' 88 II.. 488. (E. I. C. Charter). ' 81 lb. 110. (Slaves). * Hit Ih. 2:}t.'. (Union with Ireland). CONFERENCES. 'i.jo to make any mention of this circumstance when confer- ences are agreed to. Tlie managers for the house wliich desires the conference are the members of the committee who drew up the reasons, to whom otliers are generally added; and on the part of the other house they are usually selected from those members who have taken an active part in the discussions on the bill, if present ; or otherwise any members are named who happen to be in their places. The duty of the managers is confined to the delivery and Duty of mana- receipt of the resolutions to be communicated, or the bills ^'^'^" to be returned, with reasons for disagreeing to amendments. They are not at liberty to speak, either to enforce the reso- lutions or reasons communicated, or to offer objections to them. One of their number reads the resolutions or reasons, and afterwards delivers a paper on which they are written, which is received by one of the managers for the other house. When the conference is over, the managers return to their respective houses and report their pro- ceedings. In order to make the subsequent proceedings upon a Confcrcncps in bilP perfectly intelligible, let it be supposed that a bill I'^t'^^l to bills. sent up from the commons has been amended by the lords and returned ; that the commons disagree to their amend- ments, draw up reasons, and desire a conference ; that the conference is held, and the bill and reasons are in pos- session of the House of Lords. If the lords should be satisfied with the reasons offered, they do not desire another conference, but send a message to acquaint the commons that they do not insist upon their amendments. But if they insist upon the whole or part of tlieir amend- ments, they desire another conference, and communicate the reasons of their perseverance. If the commons be stiL dissatisfied with these reasons, and persist in their disagree- ment to the lords' amendments, they are precluded, by the usage of Parliament, from desiring a third conference ; ' See also Chapter XVI 1 1. euce. 25G CONFERENCES. and unless they let the bill chop, lay it aside, or defer the consideration of the reasons and amendments, they must desire a free conference. Free confer- A free conference differs materially from the ordinary conference ; for, instead of the duties of the managers being confined to the formal communication of reasons ; they are at liberty to urge their own arguments, offer and combat objections, and, in short, to attempt, by personal persuasion, to effect an agreement between the houses, which the written reasons had failed in producing. If a free conference should prove as unsuccessful as the former, the disagreement is almost hopeless;^ but if the house in possession of the bill should at length be prepared to make concessions, in the hope of an ultimate agreement, it is competent to desire another free conference. Forms of hold- It only remains to notice the manner in which confer- ences are held. When the time appointed has arrived, business is suspended in both houses, the managers leave their places, and repair to the chamber in which they are to meet. The lords have their hats on till they come just within the bar of the place of conference, when they take them off, and walk uncovered to their seats; they then seat themselves, and remain sitting and covered during the conference. The commons enter the room uncovered, and remain standing the whole time. The lord who receives or delivers the paper on which the reso- lutions or reasons are written, stands up uncovered while the paper is being transferred from one manager to the other; Ijut while reading it, he sits covered. When the conference is over, the lords rise from their seats, take off their hats, and walk uncovered from the place of confer- ence. The lords who speak at a free conference, do so standing and uncovered. '^ iny • See the proceedings between the two houses on the municipal corpora- tions bill in 1830, in the Journals of the Lords and Commons. " 4 Hats. 28 n. CONFERENCES. 257 The lords have tlie following standing orders in regnrd to the manner of holding conferences : — " The place of our meeting witli the lower house upon con- ference is usually the Painted Clianiber,' where they are commonly before we come, and expect our leisure. We are to come thither in a v/hole body, and not some lords scattering before the rest, which both takes from tlie gravity of the lords, and .besides may hinder the lords from taking their proper places. We are to sit there, and be covered ; but they are at no committee or conference Commons not ever either to be covered or sit down in our presence, unless it be *" ^^ covered, some infirm person, and that by connivance in a corner out of sight, to sit, but not to be covered." * " None are to speak at a conference with the lower house but None to speak those that be of the committee ; and when anything from such "* a conference conference is reported, all the lords of that committee are to '"•* tlioseof the - ,, „ '■ ' committee, stand up. "* " No. man is to enter at any committee or conference (unless it No stranger to be such as are commanded to attend), but such as are members ''^ at a confer- of the house, or the heir apparent of a lord who has a right to ^y^i^l^^J ^'*™' succeed such lord, or the eldest son of any peer who has a right to sit and vote in this house, upon pain of being punished severely, and with example to others."'' 3. There have been several instances of the appoint- Joint commit- ment of joint committees of the two houses ; but during and commons, the last century and a half no such committee has been appointed. A rule similar to that adopted, in regard to conferences, that the number on the part of the commons should be double that of the lords, obtained in the con- stitution of joint committees ; and was inconsistent with any practical union of the members of the two houses, in deliberation and voting. The principal advantages of a joint committee were, that the evidence was taken u})on oath, and that one inquiry, common to both houses, coidd be conducted preparatory to any decision of Parliament. But the power possessed by the commons of outvoting the lords, and their right to meet their lordships without ' After the fire, in 1834, tlie Painted Chamber was fitted up as tlie tempo, rary House of Lords. 2 Lords' S. O. No. 37. ^ lb. No. 38. ■• lb No. 30. 258 CONFERENCES. the respectful ceremonies observed at a conference, na- turally rendered a joint committee distasteful to the House of Lords, by whom no power or facilities were gained in return. Select commit- 4. A modification of the practice of appointing joint catL" with committees, may be effected by putting committees of both each other. houscs in communication with each other. In 1704, the commons had communicated to the lords certain papers which had been laid before them by the king, in relation to corresponding societies, together with a report of a committee of secrecy; and on the 22d May 1794, the lords sent a message, to acquaint the commons that they had referred the papers to a committee of secrecy, and had " given power to the said committee to receive any communication which may be made to them, from time to time, by the committee of secrecy, appointed by the House of Commons ;" ^ to which the commons replied, that they had given power to their committee of secrecy to communicate, from time to time, with the committee of secrecy appointed by the lords. ^ And similar proceedings were adopted, upon the inquiry into the state of Ireland, in 1801, which was conducted by secret committees of lords and commons communicating with each other.^ ' 49 Com. J. 619. ' lb. 020. ^ qq q^^^ j 2S7, 291. QUEEN PRESENT IN PARLIAMENT. "ioU CHAPTER XVII. COMMUNICATIONS FROM THE CROWN TO PARLIAMENT ; THEIR FORMS AND CHARACTER: HOW ACKNOWLEDGED: ADDRESSES TO THE CROWN : MESSAGES TO MEMBERS OF THE ROYAL FAMILY; AND COMMUNICATIONS FROM THEM. The Queen is always supposed to be present in the Queen present .; rr ... in Parliament. High Court of Parliament, by the same constitutional principle which recognizes her presence in other courts : ^ but she can only take part in its proceedings by means which are acknowledged to be consistent with the Parlia- mentary prerogatives of the Crown, and the entire freedom of the debates and proceedings of Parliament. She may be present in the House of Lords, at any time, during the deliberations of that house, where the cloth of estate is ; but she may not be concerned in any of its proceedings, except when she comes in state for the exercise of her pre- rogatives. Charles the 2d, and his immediate successors, were accustomed to be present during the debates of the House of Lords ; but this questionable practice, which might be used to overawe that assembly, and influence their de- bates, has wisely been discontinued since the accession of George 1.^ And, according to the practice of modern times, the Queen is never personally present in Parliament, ex- cept on its opening and prorogation ; and occasionally for the purpose of giving the royal assent to bills during a session.^ The various constitutional forms by which the Crown communicates with Parliament, and by which Parliament communicates with the Crown, will now be noticed in ' See Hale, Jurisc). of Lords, c. 1. Fortcscue,c. 8 (by Amos), with note B. ; ami -2 Inst. 18(5. 2 Chitty on Prerogatives, 74. ^ 0;> Lords' .J. 885. S 2 2G0 MESSAGES FROM THE CROWN, By message under the sign iiiuiiual. succession, according to their relative importance and solemnity. Commuiiica- The most important modes by which the Crown com- Crown, in per- municates with the Parliament, are exemplified on those sou or hy com- ^(.(.jjsions wlicn her Majesty is present in person or by commission in the House of Lords, to open or jiroroo^ue Parliament ; and when a royal speech is delivered to both houses. In giving the royal assent to bills in person or by commission, the communication of the Crown with the Parliament is of an equally solemn character.* On these occasions the whole Parliament is assembled in one chamber, and the Crown is in immediate and direct communication with the three estates of the realm. The mode of communication next in importance is by a written message under the royal sign manual, to either house singly,^ or to both houses separately.^ The message is brought by a member of the house, being a minister of the Crown, or one of the royal household. In the House of Lords the peer who is charged with the message, acquaints the house that he has a message under the royal sign manual, w^hich her Majesty had commanded him to deliver to their lordships. And the lord chancellor then reads the message at length, which is aftenvards read again by the clerk. ^ In the House of Commons, the member who is charged with the message appears at the bar, where he informs the speaker that he has a mes- sage from her Majesty to this house, signed by herself; which he takes to the table and presents to the house. The message is delivered to the speaker, who reads it at ength, while all the members of the house are uncovered. The subjects of such messages are usually commu- nications in regard to important public events which re- quire the attention of l^arlinment; ^ the prerogatives or ' Sec next Chapter, p. 2!)1. 2 86 Com. J. 488. » 00 Lords' J. '.»58. 8f) Com. J. 575. * 00 Lords' J. 958. » 40 Lords' J. 180. 44 lb. 74. 82 Com. J. 111. Subjects of sucli messages. ROYAL SIGN MANUAL. 201 property of the Crown;' provision for the royal family;* and various matters in which the Executive seeks for pecuniary aid from Parliament.' They may be regarded, in short, as additions to the royal speech, at the commence- ment of the session, submitting other matters to the deli- beration of Parliament, besides the causes of summons previously declared. This analogy between a royal speech and a message Should ha com- , ,, . , . ,11 1 • innnicated to under the sign manual, is supported by several circura- botii houses, stances common to both. A speech is delivered to both houses, and every message under the sign manual should also be sent, if practicable, to both houses ; but when they are accompanied by original papers, they have occasion- ally been sent to one house only. The more proper and regular course is to deliver them on the same day, and a departure from this rule has been a subject of com- plaint ; ^ but from the casual circumstance of both houses not sitting on the same day, or other accidents, it has frequently happened that messages have been delivered on different days.^ In the royal speech, the demand for supplies is ad- On matters of dressed exclusively to the commons, but it still forms part of the speech to both houses ; and in the same man- ner, messages for pecuniary aid are usually sent to both houses ; but the form differs so far as to acknowledge the peculiar right of the commons in voting money, while it seeks no more than the concurrence of the lords. *^ The lords have taken exceptions to any message for supplies being sent exclusively to the commons,^ and for upwards of a century it has been the custom, with few ' 85 Com. J. 4GG. 89 lb. 189. 579. 2 43 Lords' J. 566. 86 Com. J. 719. 3 42 Lords' J. 361. 82 Com. J. 529. * 2 Hats. 36G n. * 66 Lords' J. 958. 89 Com. J. 575. ® 73 Lords' J. 28. 96 Com. J. 29. (Lord Keane.) ■7 25th June 1713. 28th February 1739. 2 Hats. 366 «. 6 3 262 VERBAL MESSAGES. exceptions, ' to send such messages to both houses ; which is consistent with their constitutional relations, in matters of supply.* ^'e^bal mes- Another form of communication from the Crown to '''*'^" either house of Parhament, is in the nature of a verbal message, delivered, by command, by a minister of the Crown to the house of which he is a member. This com- munication is used whenever a member of either house is Members im- arrested for any crime by order of the Crown ; and when the privileges of Parliament require that the house should be informed of the cause for which their member is im- prisoned, and detained from his service in Parliament. Thus, in 1780, Lord North informed the House of Com- mons that he was commanded by his jNIajesty to acquaint the house, that his Majesty had caused Lord George Gor- don, a member of the house, to be apprehended, and com- mitted for high treason.^ And at the same time Lord North presented, by command, the proclamation that had been issued, in reference to the riots in which Lord George Gordon had been implicated. Military courts In the same manner, when members have been placed under arrest, in order to be tried by military courts martial, the secretary-at-war, or some other minister of the Crown, being a member, informs the house that he had been com- manded to acquaint them of the arrest of their member, and its cause."* Naval courts Communications of the latter description are made when members have been placed under arrest, to be tried by naviil courts martial, but in these cases they are not in the lorm of a royal message, but are communications from the lord high admiral or the lords commissioners of the Admi- ralty, by whom the warrants are issued for takins^ the ' A recent exception was the message in regard to the provision for her Majesty Queeu Adelaide, on the 14th AprU 1831, which was presented to the commons alone. 8U Com. J. 488. ' See Lords' and Commons' Cieu. Journ. Indexes, tit. " Messages." ' 37 Com. J. 903. ♦ 58 Com. J. 597. 59 lb. 33. 70 lb. 70. QUEEN 8 CONSENT SIGNIFIED. 2G3 members into custody; and copies of the warrants are, at the same time, laid before the house.' The other modes of communicating with Parhament are by the royal "pleasure," "recommendation," or "consent," being signified. The Queen's pleasure is signified at the commencement Queen's piea- of each Parliament, by the lord chancellor, that the com- '°'" mons should elect a speaker ; and when a vacancy in the office of speaker occurs in the middle of a Parliament, a communication of the same nature is made by a minister in the house.* Her Majesty's pleasure is also signified for the attendance of the commons in the House of Peers ; in regard to the times at which she appoints to be attended with addresses; and concerning matters personally affecting the interests of the royal family.^ At the end of a session, also, the royal pleasure is signified, by the lord chancellor, that Parliament should be prorogued. Under this head may likewise be included the approbation of the speaker elect, signified by the lord chancellor. The royal recommendation is signified to the commons Royal recom- by a minister, on motions for receiving petitions ; for the "ous'ent!"" '^' introduction of bills, or on the offer of other motions in- volving any grant of money not included in the annual estimates, whether such grant is to be made in the com- mittee of supply, or any other committee ; ^ or which would have the effect of releasing or compounding any sum of money owing to the Crown.^ The royal consent is given to motions for bills, or amendments to bills, or to bills in any of their stages, which concern the royal prerogatives, the hereditary revenues, or personal property or interests of the Crown or duchy of Cornwall.*' The mode of com- municating the recommendation and consent is the same ; ' 62 Com. J. 145. G4 lb. 214. G7 lb. 24G. » See supra, p. 138. 3 86 Com. J. 460. " See Chapter XXI. on Supply. * 75 Com. J. 152. 167. 89 lb. 52. See also infra, p. 325, 326. « 77 Com. J. 408. 86 lb. 485. 550. 91 lb. 548. s 4 264 ADDRESSES. CrowD places its interests at the disposal of Parliameut. Constitutional character of these eoniniii- Uicatious. How ackiiow- li-.l(j.d. A il\^. 142. 144. 1G4. * See supra, p 144. ADDRESSES. 205 reply to these messages by address; as a prompt provision, made by that house, is itself a sufficient acknowledgment of royal communications for pecuniary aid. The House of Lords invariably present an address, in order to declare their willingness to concur in the measures which may be adopted by the other house ;^ but the bills consequent upon messages relating to grants, are presented by the speaker of the commons, and are substantial answers to the demands of the Crown. The rule, therefore, in the commons, appears to be, to answer all written messages by address, which relate to important public events,'^ or matters connected with the prerogatives, interests, or pro- perty of the Crown ;^ or which call for general legislative measures;'* but, in regard to messages relating exclusively to pecuniary aids of whatever kind, to consider them in a committee of the whole hou-e, on a future day,^ when the message is again read and referred, and provision is made accordingly. When the house are informed, by command of the To verbal mos- Crown, of the arrest of a member to be tried by a mili- *''°^'*' tary court martial, they immediately resolve upon an ad- dress of thanks to her Majesty, " for her tender regard to the privileges of this house." '^ And in all cases in which the arrest of a member for a criminal offence is commu- nicated, an address of thanks is voted in answer.'^ But as the arrest of a member to be tried by a naval court mar- tial does not proceed immediately from the Crown, and the communication is only made from the lords of the Admiralty, no address is resolved upon in answer to this indirect form of message. The royal pleasure is always signified upon matters On royal plea- 1-1 1 11 1 -11 n -, ■ ■, sure, &c. being which need no address, but with the purport of which signiiied. immediate compliance is given; and the recommendation and consent of the Crown, as already explained, are only ' 63 Lords' J. 892. ^ 32 Com. J. 114, » 85 lb. 4GG. 89 lb. 578. * 85 Com. J. 214. « 8G lb. 488. 491. « 70 lb. 70. 7 37 iij, f)i^3_ 2C)6 ADDRESSES, signified as introductory to proceedings in Parliament, or essential to their progress. Addresses. Tliese bein"; the several forms of acknowledging commu- nications proceeding from the Crown, it now becomes ne- cessary to describe those which originate with Parliament. It is by addresses alone that the resolutions of Parliament can be conveyed directly to the Crown. These are some- times in answer to royal speeches or messages, but are more frequently in regard to other matters, upon which either house is desirous of making known its opinions to the Crown. Joint addresses. Addresses are sometimes agreed upon by both houses, and jointly presented to the Crown, but are more gene- rally confined to each house singly. When some event of unusual importance^ makes it desirable to present a joint address, the lords or commons, as the case may be, agree to a form of address ; and having left a blank for the in- sertion of the title of the other house, communicate it at a conference, and desire their concurrence. The blank is then filled up, and a message is returned, acquainting the house with their concurrence, and that the blank has been filled up. Such addresses are presented either by both houses in a body,* or by two peers and four members of the House of Commons,^ and they have been presented also by committees of both houses;'' but the lords always learn her Majesty's pleasure, and conununicate to the com- mons, by message, the time at which she has appointed to be attended. Separate ad- Tiic addresscs in answer to the royal speech at the com- mfucenicnt of the session are formally prepared by a com- mittee, ujxjii whose report they are agreed to, after having been twice read ; but at other times no formal address is prepared, and the resolution for the address is alone pre- sented. Tiiey are ordered to be presented by the whole house j'^ by the lords witli white staves or privy coun- ' 87 Com. J. 421. X!» lb. ■i-io. 2 87 lb. 424. ^ So lb. Go2. * 1 111. H77. ■'' 92 J I,. 492. ADDRESSES. 267 cillors ; ^ and, in some peculiar cases, l)y members specially nominated.'^ The subjects upon which addresses are presented are Their suhjects. too varied to admit of enumeration. They have comprised every matter of foreign"^ or domestic policy;"* the adminis- tration of justice;'' the confidence of Parliament in the ministers of the Crown;** the expression of congratulation or condolence ; '^ and, in short, representations upon all points connected with the government and welfare of the country. But they ought not to be presented in relation to any bill depending in either house of Parliament.'* When a joint address is to be presented by both houses, Mode of pre- the lord chancellor and the House of Lords, and the "' speaker and the House of Commons, proceed in state to the palace at the time appointed. The speaker's state coach, and the carriages of the members of the House of Commons, are entitled, by privilege or custom, to approach the palace through the central Mall in St. James's Park. Whether this distinction is enjoyed as part of their privi- lege of freedom of access to her Majesty, or by virtue of any other right or custom, it is peculiar to the commons, who always take this route, while the lords advance by the ordinary carriage-road. On reaching the palace, the two houses assemble in a Joint addresses. chamber adjoining the throne room, and when her Majesty is prepared to receive them, the doors are thrown oj)en, and tlie lord chancellor and the speaker" advance side by side, followed by the members of the two houses, and are con- ducted towards the throne by the lord chamberlain. The lord chancellor reads the address, to which her Majesty returns an answer, and both houses retire from the royal presence. > 92 Lords' J. 19. * G7 Com. J. 391. 3 78 Com. J. 278. 82 lb. 118. 88 lb. 471. "89 lb. 2.3-5. 5 85 lb. 472. '^ 87 lb. 32.3. ' 85 lb. 591. 92 lb. 493. 8 12 Lords' J. 72. 81. 88. 8 Com. J. G70. 1 (ircy's Debates, 5. ^ The speaker is always on tlie left hand of the chaucellor. 2G8 MESSAGES TO ROYAL FAMILY. Separate ad- dresses. Dress of p >ers and members. Answers to ad- dresses. Messa^^es to tlie roval family. Coinmiitiiea- tioiis from the rovul fuiuily. When addresses are presented separately, by either house, tlie forms observed are similar to those described, e.xcept that addresses of the commons are then read by their speaker. The houses proceed by the same routes to the palace, and are admitted with similar ceremonies. In presenting the address, the mover and seconder are always on the left hand of the speaker. It is customary for all the lords, without exception, who attend her Majesty, to be attired in court dresses ; but several members of the commons always assert their j)rivilege of freedom of access to the throne, by accom- panying the speaker in their ordinary attire.' When addresses have been presented by the whole house, the lord chancellor in one house, and the speaker in the other, reports the answer of her Majesty; but when they have been presented by certain members only, the answer is reported by one of those who have had the honour of attending her Majesty, or by one of the royal household. It is to the reioning; sovereign or regent alone that addresses are presented by Parliament ; but messages are frequently sent by both houses to members of the royal family, to congratulate them uj)on their nuptials,^ or other auspicious events;"* or to condole with them on family bereavements.^ Certain members are always nominated by the house to attend those illustrious j)ersonages with the messages; one of whom afterwards acquaints the house with the answers which were returned.'' Connnunications are also made to either house by mem- bers of the royal family, which are either delivered by members in their places,'" or are conveyed to the house by letters addressed to the sj)eaker.^ ' Tli.y are not permitted to enter the royal ])resence with sticks or umbrellas. ' 72 Lords' J. iJ3. 73 Com. J. 424. 1)5 lb. 88. » 40 Lords' J. .'584. 74 Il>. G. * 53 Lords' J. 3G7. 7.5 Com. J. 480. * 53Lords'J.3()!J. 72lb..'i3. !J."j Com. J.UO. « 58 Com. J. 211. 75 lb. 288. ' G4 Com. J. ttU. G8 lb. 253. GU lij. 324. 433. pur.i.ic BILLS. 2G9 CHAPTER XVIIL PROCEEDINGS OF PARLIAMENT IN PASSING PUBLIC BILLS : THEIR SEVERAL STAGES IN BOTH HOUSES. ROYAL ASSENT. It has been explained in what manner each separate General nature question is determined in Parliament; and the proceedings upon bills will require less explanation, if it be borne in mind that all the rules in relation to questions and amend- ments are applicable to the passing of bills. If bills were not a more convenient form of legislation, both houses might enact laws by agreeing to a series of resolutions, pro- posed without concert or combination, if the royal assent were afterwards given. In the earlier periods of the con- Ancient mode stitution of Parliament, all bills were, in fact, prepared j^aw"'^'''^"'" and agreed to in the form of petitions from the commons, which were entered on the Rolls of Parliament, with the king's answer subjoined ; and, at the end of each Parlia- ment the judges drew up these imperfect records into the form of a statute, which was entered on the Statute Rolls.' This practice was incompatible with a full con- currence of the legislature, and matters were often found in the Statute Rolls that the Parliament had not petitioned for or assented to. These usurpations of legislative power were met with remonstrances in particular instances,- and at length, in the 2 Hen. 5, the commons prayed that no additions or diminutions should in future be made, nor alteration of terms which should change the true intent of their petitions, without their assent; for they stated that ' Rot. Pari, prixxim. 2 3 Rot. Pari. 102, 5 Rie. 2, No. 23. 3 Rot. Pari. 141, {G Ric. 2, No. XXX.) Ruffhead's Statutes, Preface. 270 PUBLIC BILLS. they had ever been " as well assenters as petitioners." ^ The king, in reply, granted, " that henceforth nothing should be enacted to the petitions of the commons contrary to their asking, whereby they should be bound without their assent; saving always to our liege lord his real prerogative to grant and deny what him lust, of their petitions and ask- ings aforesaid." No distinct consequences appear to have immediately followed this remarkable petition ; and, so long as laws were enacted in the form of petitions, to any portions of which the king might give or withhold his assent, and attach conditions or qualifications of his own, the assent of the entire Parliament was rather constructive than literal: and the Statute Rolls, however impartially drawn up, were imperfect records of the legislative determina- tions of Parliament. But in the reign of Henry G, bills began to be introduced in the form of complete statutes, which were passed in a manner approaching that of modern times, and received the distinct assent of the king, in the form in which they had been agreed to by both houses of ParHament. It is true that Henry 6, and Edward 4, occasionally added new provisions to statutes, without consulting Parliament;* but the constitutional form of legislating by bill and statute, agreed to in Par- liament, undoubtedly had its origin and its sanction in the reign of Henry 6. Similarity of Before the present method of passing bills in Parlia- pruftict' ill i)Otli housis. ment is entered upon, it may be premised, that the prac- tice of the lords and commons is so similar in regard to the several stages of bills, and the ])roceedings connected with them, that, except where variations are distinctly pointed out, the proceedings of one house are equally de.scrijjtive of the proceedings of the other. When; bills As a general rule, bills may originate in either house : orlgiaatc. , , i • • i r. , but tlic exclusive right of the commons to grant supplies, ' 4 Rot. I'arl. 'i-i, No. X. ' Rufflicad's Statutes, Preface. Cotton's Abridgment. PUBLIC BILLS. 271 and to impose and appropriate all charges upon the people, renders it necessary to introduce by far the greater pro- portion of bills into that house. On the other hand, the lords claim that bills for the restitution of honours and in blood should commence with them. A bill for a general Genera] pardon, pardon is an exception to the usual mode of passing bills; it begins with the Crown, and is read once only in each house, after which it receives the royal assent in the ordi- nary form. Bills are divided into the two classes, of public and Public and pri- private bills ; of which the former are introduced directly by members of the house, while the latter are founded upon the petitions of parties interested. As the distinct character of private bills, and the proceedings of Parlia- ment in relation to them, will form the subject of the Third Book, the present chapter is strictly confined to the passing of bills of a public nature. The greater part of these proceedings apply equally to both classes of bills ; but the progress of private bills is entangled by so many peculiar regulations and standing orders, in both houses, that an entire separation of the two classes can alone make the progress of either intelligible. In the House of Lords, any peer is at liberty to present Public bills a bill and to have it laid upon the table ; but in the com- {hetimis' '" mons, a member must obtain permission from the house. Ordered in the before he can bring in a bill. Having given notice, he must move " that leave be given to bring in a bill," and add the proper title of his proposed measure. It is usual, in making this motion, to explain the object of the bill, and to give reasons for its introduction ; but unless the motion be opposed, this is not the proper time for any lengthened debate upon its merits. When an important measure is offered by a member, this opportunity is fre- quently taken for a laboured exposition of its character and objects ; but where the proposed bill is not of an im- portant character, debate should be avoided in this stage, unless it is expected that the motion will be negatived, and 272 PUBLIC BILLS. Pri'liniiuarics. Bills oriprinat- ing ill cuiiiiuit- Ue. Rr-lntinfr to religion and trade. that no future occasion will arise for discussion. If the motion be agreed to, the bill is ordered to be prepared and brought in by the mover and seconder, to whom other mem- bers are occasionally added. ^ Instructions are sometimes given to these gentlemen to make provision in the bill for matters not included in the original motion and order of leave.'^ Bills are not always introduced in this manner by mem- bers, upon motion ; but proceedings preparatory to the bringing in of bills first occupy the attention of the house. Sometimes a resolution is made by the house, and a bill immediately ordered, as in the Bribery and Treating Bill, in 1831 ;^ at other times, resolutions of the house in a former session are read, and bills ordered thereupon.'* It is very common, also, to read parts of speeches from the throne. Queen's messages. Acts of Par- liament, entries in the Journal, or other documents in possession of the house, before the motfon is made for leave to bring in a bill.' But the most frequent prelimi- nary to the introduction of bills is the report of resolutions from a committee of the whole house. The chairman is sometimes instructed by the committee to move for leave to bring in a bill or bills upon their resolutions, and some- times the resolutions are simply reported, and after being agreed to by the house, a bill is ordered thereupon. Many classes of bills must originate in a committee of the whole house ; and if, by mistake, this form has been omitted, all subsequent proceedings are vitiated, and must be commenced again. By two standing orders of the J)th November 1703, and the 30th April 1772, it is ordered, " Tliat no hill relating to religion or trade, or the alteration of the laws concerning religion or trade, be brought into this house, until the jjroposition shall have been first considered in a com- mittee of the whole house, and agreed unto by the house.'" ' ni Com. J. 013. 0:3-2, &c. « 91 lb. 710. 3 bO II). 8-21. * 82 lb. 442. •■' See (ieii. Jourii. Index, tit. " Hills" (1820-1837), p 2U0. PITDLIC BILLS. 273 By another standin»- order of the 29th March 1707, it was resolved, " That this house will not proceed upon any petition, motion, Public money. or bill, for granting any money, or for releasing or compounding any sum of money owing to the Crown, but in a committee of the whole house."' By a resolution, 18tli February 1667, " If any motion be made in the house for any public aid, or Clmrfje upon charge upon tlie people, the consideration and debate thereof ought *-''^ subject, not presently to be entered upon ; but adjourned till such further day as the house shall think fit to appoint ; and then it ought to be referred to the committee of the whole house; and their opinions to be reported thereujion, before any resolution or vote of the house do pass therein." * The standino; order concernino; religion is construed as Construction of ,...,„ ,. . n rules ; aa to re- applynig to religion itseli, and not to the temporalities or Ugion. the church. Thus, the Roman-catholic Relief Bill, in 1829, was brought in upon a resolution of a committee;' but the Church Temporalities, Ireland, Bill, of 1833, which may be said to have reconstituted the church government in that country, was not, on that account, required to originate in a committee."* So also the Tithe Commuta- tion Bills, and the bills for carrying into effect the recom- mendations of the ecclesiastical commissioners, in regard to the revenues of the Church of England, have all been introduced upon motion, without any previous resolution of a committee.' The standing order regarding trade is held to apply not Trade, only to trade generally, but to any particular trade, if affected by a bill." On this account, bills to regulate the sale of beer have been required to originate in a com- mittee ; and, in 1840, the Copyright of Designs Bill was withdrawn, as affecting the trade of calico printers and others,^ and in subsequent sessions was brought in upon resolution from a committee. Yet bills relating to the » 15 Com. J. 367. 16 lb. 40o. * 9 lb. 52. '• 84 lb. 116. * 88 lb. 35. * 91 lb. 17. 93 lb. 377. 94 lb. -29, &c. « Minor of Pari. 1840, pp. 1108, 1109. ' 95 Com. J. 176. T money. 274 PUBLIC BILLS. copyright of books' have been suffered to proceed with- out a previous committee, although they may be regarded as affecting the trade of booksellers. On an objection being taken, 19th February 1840, that a copyright bill related to trade, the speaker held that it did not directly interfere \vith trade, in any sense in which that term is used in the standing orders.^ Grants of public No grant of pubhc money is ever attempted to be made in a bill, without the prior resolution of a committee ; but bills are often introduced, in which it becomes incidentally necessary to authorize the application of money to par- ticular purposes ; and, in order to accomplish this without any violation of the standing order, the money clause is only inserted in the bill in italics, and a committee of the whole house is appointed to consider of authorizing the advance of money ; and on their report being made and agreed to by the house, an instruction is given to the com- mittee on the bill to make provision accordingly. When the main object of a bill is the grant of monev, it is inva- riably brought in upon the resolution of a committee, in the first instance. Tax upon the The house are as strict in proceedings for levying a tax, as they are in granting money, and it is the practice, without any exception, for all bills that directly impose a charge upon the peojile, to originate in a conunittee of the whole house ; but this rule has not been held to apply to bills authorizing the levy of rates for local purposes, by local officers or bodies representing the rate-payers.^ In 1833, notice was taken that the Church Temporalities Bill (which proposed to levy "an annual tax" instead of first fruits) should have originated in a committee. Before the house decided upon this point, a select committee was appointed to examine precedents, who reported, ' 97 Com. J. 83. » Mirror of Pari. 1840, p. 1110. ' Metropolis Police Bill, 84 Coin. J. 233. Highway Ratrs Bill, 94 lb. 303. Poor Relief arclnml) Hill, 'M Il>. UO. Prisons (Scotlati.j) Bill, !}4 II). 22. people. PUBLIC BILLS. 275 " That the general sinrit of the standing orders and resolutions of the house requires that every proposition to impose a burthen or charge on any class or portion of the people, should receive its first discussion in a committee of the whole house. The only ex- ception from this rule is with regard to tolls, rates, or duties, pro- posed to be levied on the subject in particular places for any local work; and in such cases it is directed, that no bill be ordered to be brought in till the petition for it has been referred to a com- mittee, and they have ex;imined the matter thereof, and reported the same to the house.'" They concluded, by stating it to be their opinion "that (as it is desirable in all cases where money is levied, or a tax imposed on any class or portion of the people, that the greatest possible protection should be afforded to the subject) the taxation proposed by this bill should be sanctioned by a committee of the whole house, previous to its introduction in the shape of a bill."* The order for reading the bill a second time was accord- ingly discharged, and the bill withdrawn. In preparing bills, care must be taken that they do not Preparing bills, contain provisions not authorized by the order of leave, and that they are prepared in proper form ; for, if it should appear, during the progress of a bill, that these rules have not been observed, the house will order it to be withdrawn. A clause, for instance, relating to the qualification of members, was held to be unauthorized in a bill for regu- lating the expenses at elections."^ All dates, and the Blanks, amount of salaries, tolls, rates, or other charges, were formerly required to be left blank ; but the more con- venient practice of printing such matters in italics is now adopted. Unless a bill be founded upon the resolution of a com- Bills presented. mittee of the whole house for a charge upon the people, it may be presented on the same day, and during the same sitting, as that in which it was ordered ; but some other votes are generally allowed to be passed before it is ' But the rule only applied to private bills, and it is now applicable to all classes of private bills, whether tolls be levieil or not. ■■^ Pari. Paper, No. 86 of 18:33. ^ 80 roiii. .1. :?-2n. 82 Ih. 32.J. ;W9. 84 lb. '2(i\. !V2 lb. '2.',A. 411. T 2 276 PUBLIC BILLS. offered. A member who is about to present a bill, should take his draft of it to the Public Business Office, where it will be prepared in a proper form for presentation ; and, when he has it ready, he should watch his opportunity for presenting it. By an order of the 11th December 1692, it is desired, " that every member presenting any bill to this house, do go from his place down to the bar of the house, and bring the same up from thence to the table ; " ^ and in accordance with this rule, the member appears at the bar, when the speaker calls upon him by name. He answers, "A bill. Sir;" and the speaker desires him to "bring it up ; " upon which he carries it to the table and delivers it to the clerk of the house, who reads the title aloud ; when the bill is said to have been " received by the house." After a bill has been received in either house, a question First reading, is put, " That this bill be now read the first time," which is rarely objected to, either in the lords or commons, although it may be opposed like any other question.^ Second reading. The question next put is, "That this bill be read a second time ; " the second reading, however, is not taken at that time, but a future day is named, on which the bill is ordered to be read a second time. The bill is then ordered to be printed, in order that its contents may be published and distributed to every member, before the second reading. Every public bill is printed, except ordi- nary supply bills, which merely embody the votes of the committees of supply and ways and means, and the annual mutiny bills, which are the same, with very few exceptions, year after year. ikadiug bUls. It need scarcely be said that the bill is not actually read at length ; but it was formerly the practice for the clerk, on the first reading, to read to the house, first, the title and then the bill itself; after which the speaker read the title, and opened to the house the substance of the bill, citlicr from memory, or by reading his breviate, which ' 10 Com. J. 740. '^ Lords' S. O. No. 23. 17 Com. J. 9. 88 lb. G14. PUBLIC BILLS. 277 was filed to the bill ; and sometimes he even read the bill itself.' So tedious a practice is rendered unnecessary by the circulation of printed copies of the bill; but it suggests the expediency of preparing a breviate or analysis, to be Breviates of prefixed to every public bill. A similar practice has been adopted in regard to private bills,*'* and the greater impor- tance of public measures would seem to point out the propriety of facilitating the examination of their provisions. A practice analogous to this prevailed during the greater part of the 17th century. On the 2d May 1651, it was ordered, " That no Act ought to be presented to this house without a brief thereof be given to Mr. Speaker; and that Mr. Speaker ought not to open any bill, nor to command the same to be read, unless a brief thereof be first delivered unto him ; and that the said order be, from henceforth, duly and exactly observed accord- ingly."* And this had been the practice at that time for many years, for on the 3d March 160G, it was " ordered, on Mr. Speaker's motion, that every committee, when they proceed to the amendment of any bill committed to them, should also amend the brief annexed, and make it agree with the bill." ■* The day having been appointed for the second reading. Second reading, the bill stands in the Order Book, amongst the other orders of the day, and is called on in its proper turn, when that day arrives. This is regarded as the most im- portant stage through which the bill must pass; for its whole principle is then at issue, and is affirmed or denied by a vote of the house. The member who has charge of the bilF moves, " That the bill be now read a second time;" and usually takes this opportunity for enlarging upon its merits, unless it has been agreed to defer the dis- cussion of the principle until a later stage of the bill. The opponents of the bill may simply vote against this > Order and Course of Passing Bills in Parliament, 4ta, U>41. 2 See Book III. ' 6 Com. J. ^70. " 1 Com, J. 347. ^ As the house have already ordered that the bill shall be read a second time, and the second reading stands as an order of the day, the motion for now reading the bill a second time need not be seconded. The same rule applies to other similar stages. T 3 278 PL liLlC BILLS. question, and so defeat the second reading on that day ;^ but this course is rarely adopted, because it must still be decided on what other day it shall be read a second time, or whether it shall be read at all. The ordinary practice, therefore, is to move an amendment to the question, by leaving out the word " now," and adding " three months," " six months," or any other term beyond the probable duration of the session. The postponement of a bill, in this manner, is regarded as the most courteous method of dismissing the bill from any further consideration, and is resorted to in every other stage of the proceedings, except on questions for the ingrossment or passing of the bill.'^ Bills rejected. Instances of rejecting bills altogether were formerly not uncommon ; but are now comparatively rare : only two cases appear on the Journals of the commons for upwards of half a century ; ^ but in the lords the practice has been more general.'* In more ancient times, bills were treated with even greater ignominy. On the 23d January, in the 5th Elizabeth, a bill was rejected and ordered to be torn;' so, also, on the 17th March 1620, Sir Edward Coke moved " to have the bill torn in the house;" and it is entered, that the bill was accordingly " rejected and torn, without one negative."** There is no restriction in regard to the time at which motions for rejecting bills shall be made ; but, if the house think fit, such rejection may be voted on the first, second, or third readings, or any other stage of the bill. It was thought better, however, to notice the prac- tice in this place, in connexion with the postponement of bills, in order to save repetition when the other stages are under consideration. Counsel. The second reading is the stajre at which counsel are ' 88 Com. J. 301). ' Another rtaBoii for using tlils form of amendment is, that the house have alrca.ly orderc d that the bill shall be read a second time, and the amendment only names a more distant day. =■ 37 Com. J. 444. 80 lb. 4-2o. « See Gen. Indexes to Lords' J. tit. " Bills." * 1 Com. J. 63. 6 J ^.p,„_ j_ 5(3y_ COMMITTEES ON BILLS. 279 more usually heard, whenever the house have agreed that a public bill is of so peculiar a character as to justify the hearing of parties whose public or private interests are directly affected by it ; ^ notwithstanding the general prin- ciple that a public bill is of national interest, and should be canvassed in Parliament upon the grounds of public expediency. But counsel have also been heard at various other stages of bills.'"' When a bill has been read a second time, a question is Committees on put, that " this bill be committed," which is rarely opposed,^ and on being agreed to, a day is named for the committee. On the order of the day being read for the committee, it is Lords, moved in the lords, that the house be now put into com- mittee on the bill; to which an amendment may be moved, that the house be put into committee on a future day, beyond the probable duration of the session. When the Commons. order of the day is read in the commons, for the house to resolve itself into a committee on the bill, the speaker puts a question, " That I do now leave the chair," to which the proper amendment is, to leave out all the words after " that," in order to add " this house will on this day * three months,' or ' six months/ resolve itself into a com- mittee," (fee. If attention were not paid to this form of amendment, the absurdity might arise of ordering Mr, Speaker to " leave the chair this day six months." If the house agree to the question for the speaker leaving the chair, the mace is removed from the table, and the com- mittee begin the consideration of the bill. As its prin- ciple has been affirmed at the second reading, the details of the bill are to be examined in committee, clause by clause, and line by line, and every blank filled up ; for which purpose the permission to speak more than once, offers great facilities."* The chairman, on taking the chair, puts a question, " That Proceedings in > 88 Com. J. 501. 90 lb. 587. * See Com. Gen. Journ. Indexes, tit. " Counsel." 3 Lords' S. O. No. 10. " See su2>ra, p. 226. T 4 280 COMMITTEES ON BILLS, Amendments, when t() be offered. Hlanks filled up. Wliat amrnd- rnt-nts adniisHi< ble. tliis bill be read a first time ;" which being agreed to, he puts another, viz. that it " be read a second time, para- graph by paragraph." When that also is affirmed, the preamble is ordered to be postponed, and the chairman proceeds to call out each clause in succession, together with the short marginal note, stating the nature of each clause. If no amendment be offered to any part of a clause, he puts the question, " That this clause stand part of the bill," and proceeds to the next ; but when an amend- ment is proposed, he states the line in which the alteration is to be made, and puts the question in the ordinary form. Members who are desirous of offering amendments in committee, should watch carefully the progress of the bill, and propose them at the proper time ; for if the committee have passed on to another clause, or even amended a later line in the clause than that proposed to be amended, amendments cannot be made in an earlier part of the bill. When a clause has been amended, the question put from tlie chair is, "That this clause as amended stand part of the bill." The blanks are filled up as they occur ; and if it be pro- posed to fill them up with different words, a distinct motion is made upon each proposal, instead of moving an amend- ment upon that first suggested. The chairman puts the question upon each motion separately, and in the order in which they were made, unless the later motion be for a smaller sum, or a longer time ; in which cases, it should be put first.' This rule, indeed, is more peculiarly appli- cable to the committees of supply and ways and means ; but is generally observed in committees upon bills, and other committees of the whole house. Every description of amendment may be made in com- mittee ; whole clauses and schedules are added, or omitted, or substituted one for another, provided that, in the com- mons, they be within the title; and verbal alterations are ' 88 Com. J. (517. REPORT OF BILLS. 281 made in every part, whether in the preamble, the clauses, or the schedules. But in the commons, the title of the bill may not be amended, as that is reserved for the house, after all the amendments have been made to the bill in its several stages; nor should any amendment be admitted which is in the nature of a previous question.^ If it be convenient, clauses may be postponed and considered after- wards out of their order, but must not have been previously amended. The committee may also divide one clause into two ; or decide that the first part of a clause, or the first part of a clause with a schedule, shall be considered as an entire clause.^ Instructions are sometimes given by the instructiona. house to committees on bills, in compliance with which they receive clauses, or make provision in the bills com- mitted to them, which they could not otherwise have con- sidered, as being extraneous to the titles. In compliance with instructions, also, they may make two bills into one, or divide one bill into two or more ; or examine witnesses and hear counsel.^ When all the clauses and schedules have been agreed to, the preamble, which had been post- poned, is considered, and, if necessary, is amended so as to conform to amendments made in the bill; and the chair- man puts the question, " That this be the preamble of the bill," which he reads to the committee. If the committee cannot go through the whole bill at Report of _ . progress. one sitting in the lords, the chairman leaves the chair, and moves that the house be put into committee on a future day ; and in the commons, the committee instruct the chairman to report progress, and ask leave to sit asrain. When the bill has been thoroughly considered, Report of the *= . . . bill. the chairman puts a question, "That I do report this bill with the amendments to the house ;" which being agreed ' But see proceedings in committee on Reform Bill. 87 Com. J. 1.')!^. 141. 165. 173, questions and amendments concerning Aniersham, Ilellestou, Gates- head and South Shields. 2 89 Com. J. 409. 87 lb. 80. 8G lb. 7--28. 3 See Com. Gen. Jonni. Index (1 8-20-1837), p. 003. 282 REPORT OF BILLS. to, he leaves the cliair, and Mr. Speaker resumes his chair, upon which the cluiirman approaches the steps of the speaker's chair, and reports from the committee that " they had gone through the bill, and had made amend- ments," or " several amendments thereunto." If no amend- ments have been made, he reports " that they had gone through the bill, and directed him to report the same, without amendment." The report itself may either be received then or on a future day. If there be no amend- ment it is the custom to receive it at once ; but if there be amendments, or if objection be made to its being then received, it is more frequently ordered to be received on some other day. In the lords there is a standing order, 28th June 1715, which declares "that no report be re- ceived from any committee of the whole house, the same day such committee goes through the bill, when any amendments are made to such bill.^ rrnccedings on J^ the commons, when a report is to be received, the report. member appears with it at the bar, and on being called upon by the speaker, states that he has a report. If it be without amendments, it is brought up without any ques- tion; if with amendments, a question, " That it be brought up," is formally put. After this, another question, " That the report be now read," is supposed to be put ; but is, in modern practice, omitted. When the report is received, there are various courses which may be followed in the further progress of the Ijill. 1. The report may be read, and, in the commons, a lord's bill, without amendment, may be read a third time, immediately, as it is already ingrossed ;* but in the lords, no bill may be read a third time the same day on which it is reported from the committee, unless the stand- ing orders be suspended for that purpose.^ 2. In either house, the report of a bill not ingrossed is read, and being without amendments, the bill is ordered to be ingrossed ' Lords' S. 0. No. 20. ' 89 Com. J. 123. ' Lords' S. O. No. 11, REPORT OF BILLS. 283 and reud a third time on another day. 3. If with amend- ments, the report is read, and the amendments being read a second time, and agreed to or disagreed to by the house, the bill may be ordered to be ingrossed and read a third time on another day. 4. The report may be read, and or- dered to be taken into further consideration on a future day. 5. The report may be read and the bill recommitted to a committee of the whole house, or to a select committee. At this stage also it is customary to reprint the bill, if Bills reprinted. several amendments have been made,^ for no verbal notice of numerous amendments can possibly make the amended bill intelligible, and the practice of both houses is to rely more upon a reprint of the bill, than upon any proceedings in the house, on the report of very numerous or important amendments. When the consideration of the report is deferred, the Clauses added, . . J and amend- proceedings on the day for which it is set down, are ments made. similar to those on the report, when it is considered and agreed to at once. On either occasion, the house may not only agree or disagree to the amendments of the committee, but may make fresh amendments and add new clauses, whether they be within the title or not ;'^ but the practice of adding clauses is inconvenient, and should be avoided as far as possible. The amendments of the committee are considered first ; clauses may then be offered ; after which amendments may be made to other parts of the bill. When a member offers a clause on the report, he must move, 1st, " That it be brought up;" 2d, "That it be read a first time;" 3d, "That it be read a second time;" 4th, "That it be made part of the bill." The questions put upon each of these motions may be opposed, and are often negatived. Amendments also may be proposed to clauses offered in this manner, and if agreed to by the house, the last question put by the speaker is, " That this clause, as amended, be made part of the bill." Clauses containing ' 00 Com. J. 337. ' Votes, 1844, p. -203. 284 RECOMMITMENT — INGROSSING BILLS. Bills recom- mitted. Again recom- mitted. Ingrossing. rates, penalties, or other blanks, must also pass through a committee before they are added to the bill A bill may be recommitted : 1. Without limitation, in which case the entire bill is again considered in commit- tee, and reported with "other" or "further" amendments. 2. On amendments being proposed on the report or further consideration of report, the bill may be recommitted with respect to those amendments only.^ 3, On clauses being offered, the bill may be recommitted with respect to these clauses.'* 4. The bill may be recommitted, and an instruc- tion given to the committee, to make some particular or additional provision.^ A bill may be recommitted as often as the house thmk fit. It is not uncommon for bills to be again recommitted once or twice,'' and there are cases in which a bill has been six and even seven times through a committee of the whole house, in consequence of repeated recommitments.* The proceedings on the report of a reconnnitted bill are similar to those already explained ; the report may be received at once, and the amendments agreed to, or the further consideration of it may be deferred. The form in which a bill must appear in either house, after the report, is that of an ingrossment on parchment. In that form it ultimately receives the royal assent, and be- comes the record or roll of the statute. When a bill orio-i- nates in the lords, it is ingrossed after the report, and is sent to the commons in that form ; and when it begins in the commons, the time for ingrossing the bill before it is sent up to the lords, is also after the report. The practice of ingrossing bills is adhered to in order to secure uniformity and permanence in the record ; but opinions are divided in regard to the continuance of this mode of writing. On the 13th February 183G, the commons communicated to the lords, at a conference, a resolution, " That it is the ' 83 Com. J. bm. *83 lb. 3u4. m lb. •-»««. - 9-2 II). 41o. ' UO lb, 364. 3U0. 4-JO. •'' 89 II). l-i7. 09 lb. 4-iO. 444. 4G0. THIRD READING. 285 opinion of this house, that it is expedient to discontinue the present mode of ingrossing Acts of Pailiament in bhick letter, and to substitute a plain round-hand instead thereof." To this resolution the lords did not agree, but after referring the matter to a committee, they comnui- nicated to the commons several reasons for withholding their concurrence.^ Amongst other reasons in favour of ingrossment, it was stated that, " The object is rather to preserve an uniform, durable, and cor- rect record of the Acts of the legislature, which shall be legible at a distant period, witli ordinary care, than merely to afford facility for reading the record expeditiously." And that " the mode in which the ink is transferred to, and the characters impressed upon, the parchment by the ingrossing hand, gives a permanence and an uniformity wliich cannot be obtained by the ordinary mode of writing." " That the adoption of the \)\n\n round-liand would afford a greater facility of falsifying an Act of Parliament or other record, by interpolation, or otherwise, than the use of the ingrossing hand." " But as the difficulty of reading the ingrossing hand is principally found in the proper names of places and persons, they think that this part of the difficulty would be removed by directing that the i)roper names of persons and places should in future be written in round-hand." In the lords, the ingrossment of all bills is confided to the " clerk of ingrossments ;" and in the commons, all bills which have not already been ingrossed in the lords are ingrossed after the report, in the " Ingrossing Office," and examined in the Public Bill Office, the officers of which are immediately responsible for their correctness.^ On the third reading, the judgment of the house is ex- Third reading, pressed upon the entire bill as it stands, after all the amendments introduced in committee and on report, or further consideration of report. Amendments may still be made by the house to any part of the bill ; but it is ad- visable to resort to this practice as rarely as possible, on account of the trouble of amending the ingrossment ; and also, because the proper time for offering amendments is in committee, when the speaker is not in the chair. Clauses ' 91 Com. J. 447. ■' No. 413, of 1843, Mr. Ley's Ev. Q. 3o. 286 BILLS PASSED. and schedules may be added at this stage, but they cannot be offered unless they are ingrossed on parchment. The proper time for proposing a chiuse is after the bill has been read the third time. An ordinary clause, offered at this stage, is read three times ; but if it have any blanks, it must be read twice, and committed to a committee of the whole house, and reported ; after which it is read a third time, and agreed to be made part of the bill by way of rider. Time of pro- A caution may here be useful to members, in reference clauses."^^'^ to the manner of proposing clauses, that whether they be offered on the report, the further consideration of report, or on the third reading, they should be offered before any amendments are made to the bill. This rule is observed, because the addition of a new clause may render it neces- sary to introduce amendments in other parts of the bill ; and all the clauses should, therefore, be under considera- tion before amendments are admitted. Bill passed. Occasionally, a bill is read a third time, and " further proceedings thereon" are adjourned to a future day; but the general practice is to follow up the third reading imme- diately with the question, " That this bill do pass." This question has sometimes passed in the negative, after all the preceding stages of the bill have been agreed to ; but it is not usual to divide upon it.^ Title of tlie iiiii. In the lords, the original title of a bill is amended at any stage at which amendments are admissible, when alterations in the body of the bill have rendered any change in the title necessary. But in the commons, the original title is not amended during the progress of the bill, unless the house agree to divide one bill into two, or combine two into one ; and tlie last question to be deter- mined is, " Tliat this be the title of the bill," which is accordingly read by the speaker. Amendments may then be ollered to the title, which are generally such as render tlif tit If conformable with amendments which may have ' 80 Com. J. ni7. 80 II). 407. BILLS PASSED. 287 been made to the bill since its first introduction. It may be as well to recal to mind in this place, that, by a standing order of the commons, 17th November 1797, it is required, " That the precise duration of every new temporary law should be expressed in the title of the bill, and also in a distinct clause at the end of the bill, and nowhere else." ' The next step is to communicate the bill to the other house. Communicated . from lords to The lords usually send down then- bills to the commons by comuious. two masters in chancery ; but if they concern the Crown or royal family, they should be sent by two of the judges.^ This cannot always be done, as the judges may be on circuit, or otherwise unable to attend ; in which case one judge and a master in chancery, or two masters in chancery only are sent.^ It happens, occasionally, that one master in chancery only is present, or that none are in attend- ance ; and then the lords send down the bills that are vv^aiting by one master in chancery, and the clerk assistant of the Parliaments, or by the clerk assistant and addi- tional clerk assistant. Whenever this variation from the ordinary form of message is resorted to by the lords, their lordships direct their messengers to inform the House of Commons that, from the absence of their usual messengers (and sometimes, also, in consideration of the late period of the session), they had been induced to send the message in this unusual way. The commons acquiesce in the rea- sons assigned, " trusting that the same will not be drawn into precedent for the future."^ When the bill has origi- nated in the lords, " a message is ordered to be sent to the House of Commons to carry down the said bill, and desire their concurrence." If the bill has been sent up from the commons, and has been agreed to, the lords send a message " to acquaint them, that the lords have agreed to the said bill without any amendment;" or, " that the lords have agreed to the same with some amendments, to which their lordships desire their concurrence."^ '53Com. J. 84. « go ib. 370. => gg n,. 713^ 69 lb. 516. * 88 lb. 727. See also supra, p. 250. * 74 Lords' J. 3S2. 288 AGREEMENT OF BOTH HOUSES. Bills sent by mistake. From commons to lords. Amendments a-^reed to or amended. If a bill or clause be carried to the other house by mis- take, a message is sent to have the bill returned, or the clause e.xpunged.* The conunons send up bills to the lords by a member (generally the chairman of the committee of ways and means, or the member who has had cliarge of the bill), who, as in other messages, is accompanied to the bar of the House of Lords by not less than seven others. It is a rule with the lords not to receive a messag-e unless eioht members attend with it ; and when a bill is popular, it is carried up by a considerable number.'^ The member who has charge of the bill delivers it to the lord speaker of the House of Lords, who comes to the bar to receive it. The form of message, mutatis mutandis, is similar to that used by the House of Lords. If one house agree to a bill passed by the other without any amendment, no further discussion or question can arise upon it; but the bill is forthwith put into the com- mission for receiving the royal assent. If a bill be returned from one house to another with amendments ; these amend- ments must either be agreed to by the house which had first passed the bill, or the other house must waive their amendments ; otherwise the bill will be lost. Sometimes one house agrees to the amendments with amendments to ' 7o Cora. J. 447. 78 lb. 317. 80 lb. 512. 91 lb. G39. 7o8. 92 lb. 572. G09. ^ In sending bills from the commons to the lords, it was formerly the cus- tom to wait until several had passed, when they were carried up together, and delivered at the liar of tlie lords in the following order: 1. Lords' bills 2. Commons' bills amended by the lords j 3. Public bills in order, according to their importance ; and, 4. Private bills, in such order as the speaker nj)j)ointf(l. It was then usual for 30 or 40 members to accompany the mem- ber who had cliarge of the bills. On the 17th March 1588 a jirivate bill was sent up with only four or five members, and the lords took exceptions to the smallncss of the number, and said, " that they had cause to doubt that it passed not with a general consent of the house, because it passed not graced with a greater number, and left it to the consideration of the house to send it back in such sort as it was fit." — D'Ewes, 447. Order and Course of Pass- ing Bills in Parliament, 4to. 1041. AMENDMENTS TO HILLS. '2S9 which the other hoiisi^ agrees.' Oeeasionallv, this intei- ehaiii;e of unu'iulnients is carried even I'urther, and (uie lioiise ai!,'rees to ameudnients with imiendments, to which the other liouse agrees with amendments, to which, also, the first honse, in its turn, aorees. But it is a nde, tliat Consp.imntiiii neitlier house may, at tliis time, leave out or otherwise amend anything- which they have ah'eady passed them- selves; unless such amendment be immediately consequent upon amendments of the other house, which have been agreed to, and absolutely necessary for carrying them into ellect. These several agreements and anuMidnicnts are connuunicated by one house to the other with a|)proj)riate messages. Where the privileges of the connnons seem to be aHected by an amendment, it is, nevertheless, agreed to, in some cases, with a special entry in the Journal of (he cause of such agreement ; but the more usual course is to disagree to an amendment of that character.'^ When it is determined to disagree to amendments made ^V'»" :>"i'iiii- 1,1,11 n 1 ^ iiients ilis- by the other liouse, one or three courses may be adopted : agreed to. 1. The bill may be laid aside. 2. The consideration of the amendments may be put off for three or six months, or to any time beyond the probable duration of the session. 3. A conference may be desired with the other house. The Conferences. two first modes of proceeding are only resorted to when the ultimate agreement of the two houses is hoj)eless ; the latter is preferred whenever there is a reasonable prosj)ect of nmtual agreement and compromise. The practice of Par- liament in regard to conferences has been fully explained elsewhere,^ and it would be unnecessary and irksome to de- scribe, at length, every variety of procedure which nuiv arise in the settlement of amendments to bills by conference.^ ' 90 Com. J. 575. * See Com. Gcii. J. tmlex (18'20-1837), p. "JSO. ^ Suprtr, p. 254, ive. * All the miiuito details of practice may be traced liy riferriiig to the head " Conference," in tiie three hist Commons' (JeneralJourmil Indexes ; hut more particularly l>y followin;; the ])roeeediii^s nitun the Corporations Hill in IH3(i, to which ample references will be found in the lnde.\ to the Journal of that year, and at p. 413 of the General Index ISiO-lHUT. U 290 AMENDMENTS TO BILLS. Free confer- ence. Conference, by wliom desired. It will be sufficient to state generally that when a bill has been returned by either house to the other, with amend- ments which are disagreed to, a conference is desired by the house which disagrees to the amendment, to acquaint the other with the reasons for such disagreement ; in order, to use the words of Hatsell, " That after considering those reasons, the house may be in- duced, either not to insist upon their amendments, or may, in their turn, assign such arguments for having made them, as may prevail upon the other house to agree to them. If the house which amend the bill are not satisfied and convinced by the rea- sons urged for disagreeing to the amendments, but persevere in insisting upon their amendments, the form is to desire another conference ; at which, in their turn, they state their arguments in favour of the amendments, and the reasons why they cannot depart from them ; and if after such second conference the other house resolve to insist upon disagreeing to the amendments, they ought then to demand a 'free conference,' at which the arguments on both sides may be more amply and freely discussed. If this measure should prove ineffectual, and if, after several free con- ferences, neither house can be induced to depart from the point they originally insisted upon, nothing further can be done, and the bill must be lost. An interesting occasion, on which all these proceedings were successively adopted, occurred not long since ; a free conference had not been held since 1702, until a contest arose in 1830 upon amendments made by the lords to a bill for amending the Act for regulating Municipal Cor- porations. It will only be necessary to add, that it is irregular to demand a conference with the house which is in possession of a bill ; which rule was thus afhrmed by the commons 13th March 1576 : "That by the ancient liberties and pri- vileges of this house, conference is to be required by that court which, at the time of the conference demanded, shall be possessed of the bill, and not of any other court." ' As the conference is desired by tluU house which is in posses- sion of the bill, the bill which is the subject of the con- ference is always delivered by the managers, with the ' 1 Cora J. Hi. ROYAL ASSENT. 291 reasons and amendments, to the house with wlioin the conference was desired. The official record of the assent of one house to bills imiorseinonts passed, or amendments made by the other, is by indorse- ment of the ingrossed bill m old Norman French. Thus when a bill is passed by the commons, the clerk of the house' writes upon the top of it, " Soit bailie aux seigneurs." When the lords make amendments, it is returned with an indorsement, signed by the clerk assistant of the Parlia- ments, " A cette Mile avesque des amendemens les seigneurs sont assentus." When it is sent back with these amend- ments agreed to, the clerk of the House of Commons writes, ''A ces amendemens les communes sont assentus." When bills have been finally agreed to by both houses. Royal assent. they only await the royal assent to give them, as Lord Hale says, *' the complement and perfection of a law :"^ and from that sanction they cannot legally be withheld.* For this purpose they remain in the custody of the clerk of the en- rolments, in the House of Lords, except money bills, which are returned to the commons before the royal assent is given ; and when several have accumulated there, or when the royal assent is required to be given without delay to any bill, the lord chancellor has notice that a commission is wanted. The clerk of the enrolments then prepares two copies of the titles of all the bills, each title being upon a separate piece of paper. One of these copies is for the clerk of the Crown to insert in the commission, and the other for her Majesty's inspection, before she signs the commission. When the Queen comes in person to give her royal assent, the clerk assistant of the Parliaments waits upon her Majesty in the robing room before she enters the house, reads a list of the bills, and receives her connnands upon theni.^ ' In his absence the clerk assistant is aiitliorizrd to ind:>rse bills. ' Juristl. of Lords, c. 2. '■' See 2 Hats. 339. 13 Lords' J. 760. * Mr. Birch's Ev. No. 413, of 1843. U 2 292 nOYAL ASSENT, By commission. During tho progress of a session, the royal assent is generally given by a commission issued under the great seal Origin of giving f'or that purpose. The first instance in which the royal as- coiumission! ^^ ^^^^ appears to have been given by commission, was in the 33d of Henry 8 ; although proceedings very similar had oc- curred in the 23d and 25th years of the reign of that king.^ The lord chancellor produced two Acts agreed to by the lords and commons ; one for the attainder of the queen and her accomplices, and the other for proceeding against lunatics in cases of treason ; each Act being signed by the king, and the royal assent being signified by a commission under the great seal, signed by the king, and annexed to both the Acts.^ To prevent any doubts as to the legality of this mode of assenting to an Act, the two following clauses were put into the Act for the attainder of the queen : — " Be it declared by authority of this present Parliament, that the king's royal assent, by his letters patent under his great seal and assigned with his hand, and declared and notified in his absence to the lords spiritual and temporal, and to the commons, assembled together in the high house, is and ever was of as good strength and force as thougli the king's person had been there personally present, and had assented openlj' and publickly to tlie same. And be it also enacted, that this royal assent, and all other royal assents hereafter to be so given by the kings of this realm, and notified as is aforesaid, shall be taken and reputed good and effectual to all intents and purposes, without doubt or ambiguity ; any custom or use to the contrary notwithstanding."^ Fonn of com- In strict Compliance with the words of this statute, the commission is always " by the Queen herself signed with her own Imnd," and attested by the clerk of the Crown in chancery. T(j\vards the latter end of the reign of George 4 it became paiiitiil to him to sign any instrument with his own hand, and lie was enabled, by statute, to appoint one or more |)erson or persons, with full power and authority to each of them to affix, in his Majesty's ])resence, and by ' 3:< H.n. H, c. 21. Stut. of tlie Uralm, vol. 1. p. l.vxiii. '' 1 Lonls' J. I'JH. ■■> Stat, of the Realm, vol. i. p. l.vxiv. niit>»ioii. BY COMMISSION. 293 his Majesty's command given by word of mouth, his Majesty's royal signature, by means of a stamp to be pre- j)ared for that purpose;* and the commission for giving the royal assent to bills on the 17th June 1830, bears the stamp of the king, attested according to the provisions of that Act."'' The form in which the royal assent is signified- by com- mission is as follows : — Three or more of the lords commissioners, seated on a Form of royal assent liy coni- form between the throne and the woolsack in the House of mission. Lords, command the usher of the black rod to signify to the commons that their attendance is desired in the house of peers to hear the commission read, upon which the commons with the speaker immediately come to the bar. The commission is then read at length, and the titles of the bills being afterwards read by the clerk of the Crown, the royal assent to each is signified by the clerk of the Parliaments in Norman French. A bill of supply is carried up and presented by the speaker, and receives the royal assent before all other bills. The assent is pro- nounced in the words, " La reyne remercie ses bons sitjets, uccepte leur henevolence, et ainsi le veult." For a public bill the form of expression is " La reyne le veult ; " for a private bill, " Soit fait comme il est desiree ;" upon a peti- tion demanding a right, whether public or private, " Soit droit fait comme it est desirie." In an act of grace or par- don which has the royal assent before it is agreed to by the two houses, the clerk says, " Les prelats, seigneurs, et com- munes, en ce present jKirliament assembltes, au nam de touts vos autres sujets, remercient tres humhlement vostre ma- jested, et prient a Dieu vous donner en sante bonne vie et longue." The form of words used to express a denial of i^oyal assent , , 1 // T > • jj m refused. the royal assent would be " La reyne s avisera. 1 he necessity of refusing the royal assent is removed by the strict observance of the constitutional principle, that the ' 11 Geo. 4, c. 23. ' 02 Lords' J. 732. u 3 294 ROYAL ASSENT. Crown has no will but that of its ministers ; who only con- tinue to serve in that capacity so long as they retain the confidence of Parliament. This power was last exercised in 1707, when Queen Anne refused her assent to a bill for settling the militia in Scotland. Use of the Nor- During the Commonwealth the lord protector gave his uian French. ... assent to bills in English ; but on the Restoration, the old form of words was reverted to, and only one attempt has since been made to abolish it. In 1 706, the lords passed a bill " for abolishing the use of the French tongue in all proceed- ings in Parliament and courts of justice." This bill dropped in the House of Commons ; and although an Act passed in 1731 for conducting all proceedings in courts of justice in English, no alteration was made in the old forms used in Parliament, fiiven by the The roval assent is rarely given in person, except at the Queen in per- p • i , ^ son. close of a session, when the Queen attends to prorogue the Parliament, and then she signifies her assent to such bills as may have passed since the last commission was issued ; but bills for making provision for the honour and dignity of the Crown, such as the bills for settling the civil lists, have generally been assented to by the Queen in person, immediately after they have passed both houses.' When her Majesty gives her royal assent to bills in person, the clerk of the Crown reads the titles, and the clerk of the Parliaments makes an obeisance to the throne, and then signifies her Majesty's assent in the manner already de- scribed. A gentle inclination, indicative of assent, is given ' See Civil List Bills. 75 Cora. J. 258. 86 lb. 517. On the 2d of August 18:31, the speaker, after a short speech in relation to the hill for supporting' tlie royal dignity of her Majesty Queen Adelaide, delivered it to the clerk, when it received the royal assent in the usual form; hut the Queen, attended by one of the ladies of her l)edchaniber, and her maids of honour, was present, and sat in a chair placed on a platform raised for tiiat purpose between the archbishojj's bench and the bishops' door, and after tlic royal assent was pronounced, her majesty stood up, and made three curtesies, one to the king, one to the lords, and one to the commons. — 63 Lords' J. 885, and Index to that volume, p. 1157. UNUSUAL EXPEDITION. 295 by her Majesty, who has, however, already given her com- mands to the clerk assistant, as shown above.' When Acts are thus passed, the original ingrossment inprossment rolls are preserved in the House of Lords, and all public and local and personal Acts, and nearly all private Acts, are printed by the Queen's printer, and printed copies are referred to as evidence in courts of law. The original rolls may also be seen, when necessary, and copies taken, on the payment of certain fees. The forms commonly observed by both houses, in the Forms notbimi- passmg oi bills, havmg been explamed, it must be under- gress of bills. stood that they are not absolutely binding. They are founded upon long parliamentary usage, indeed; but either house may vary its own peculiar forms, without question elsewhere, and without affecting the validity of any Act which has received, in proper form, the ultimate sanction of the three branches of the legislature. If an informality be discovered during the progress of a bill, the house in which it originated, will either order the bill to be withdrawn, or will annul all the proceedings subsequent to that which was informal ; but if irregularities escape detection until the bill has passed, no subsequent notice can be taken of them, as it is the business of each house to enforce com- pliance with its own orders and practice. In the ordinary progress of a bill, a day or days are Bills passed "^ ' witli unusual allowed to intervene between each stage subsequent to the expedition. first reading ; yet when any pressing emergency arises, bills are frequently passed through all the stages in the same day, and even by both houses."^ This unusual expedition is commonly called " a suspension of the standing orders," and in the lords is at variance with a distinct order, which prohibits the passing of more than one stage in a day ;^ but there are no orders to be found on the Journals of the commons which forbid the passing of bills in this man- ner; and it is nothing more than an occasional departure ' See p. 291. ' 58 Com. J. 645, G4G. » Lords' S. O. No. 26. U 4 '2U(j INFORMALITIES. rruin the usatre of Parliament. From the uroent neces- sity of such cases, the bills so passed are often of great importance in themselves, and may require more delibera- tion than bills passed with the ordinary intervals. On this ground the practice may appear objectionable, but it must be recollected that no bill can pass rapidly without the general, if not unanimous, concurrence of the house. One stage may follow another with unaccustomed rapidity, but they are all as much open to discussion as at other times ; and a small minority could protract the proceed- ings for a month. iiif..rniaiitics But, though a departure from the usage of Parliament, III. lit oi'botli during the progress of a bill, will not vitiate a statute ; huuses. informalities in the final agreement of both houses have been treated as if they would affect its validity. No decision of a court of law upon this question has ever been obtained ; but doubts have arisen there, and in two recent cases Parliament has thought it advisable to correct, by law, irregularities of this description. It has already been explained that when one house has made amend- ments to a bill passed by the other, it must return the bill with the amendments, for the agreement of that house which first passed it. Without such a proceeding, the assent of both houses could not be complete ; for, how- ever trivial the amendments may be, the judgment of one house only would be given upon them, and the entire bill, as amended and ready to become law, would not have received the formal concurrence of b(^th houses. If, there- foic, a bill should receive the royal assent, without the amendments made by one house having been communi- cated to the other, serious doubts naturally arise, concern- ing the efl'ect of this omission; since the assent of the (^iicen, lords, and conmions is essential to the validity of an Act. 1. Will the royal assent cure all prior irregulari- ties, ill the same way as the passing of a bill in the lords would pirchuK- in(piiry as to informalities in any previous INFORMALITIES. 297 stage ? 2. Is the indorsement on the bill, recording the assent of Queen, lords, and commons, conclusive evidence of that fact? or, 3. May the Journals of either house be permitted to contradict it ? The first case in which a difficulty arose, was in the 33d P.vlkinf-'t<>n's CciSC* kjo Hull* I Henry 6. In the session commencing 29th April 1550, the commons had passed a bill requiring JohnPylking- ton to appear, on a charge of rape, " by the feast of Pen- tecost then next ensuing." ^ It does not appear distinctly whether the bill was even brought into the commons before that day in the year 1550 ; but it certainly was not agreed to by the lords until afterwards. By the law of Parlia- ment then subsisting, the date of an Act was reckoned from the beginning of a session ; and the lords, to avoid this construction, altered the date to " the feast of Pen- tecost, which will be in the year of our Lord 1451 ;" but did not return the bill, so amended, to the commons. Pylkington appeared before the Exchequer Chamber, to impeach the validity of this Act, " because the lords had granted a longer day than was granted by the commons, in which case the commons ought to have had the bill back." Chief Justice Fortescue held the Act to be valid, as it had been certified by the king's writ to have been confirmed by Parliament ; but Chief Baron Illingworth and Mr. Justice Markham were of opinion, that if the amendment made the bill vary in effect from that which was sent up from the commons, the Act would be invalid. No decision is recorded in the Year Book; and the evi- dence respecting the dates was too imperfect to justify more than hypothetical opinions. Fortescue concluded the case by saying, " This is an Act of Parliament, and we will be well advised before we annul any Act made in Parliament ; and, i)eradventure, the matter ought to wait until the next Parliament, tiicn we can be certified by them of the certainty of the matter ; but, notwith- standing, we will be advised what shall be done." ' Year Books, 33 Hen. 6. Pari. Rep. No. 413, of 1843. 298 INFORMALITIES. Factories Bill. The second case of this kind occurred in 1829, when " a bill to amend the law relating to the employment of children in factories," passed the commons, and was agreed toby the lords, with an amendment; but, instead of being returned to the commons, was, by mistake, included in a commission, and received the royal assent. The amend- ment was afterwards agreed to by the commons ; but, in order to remove all doubts, an Act' was passed to declare that the Act " shall be valid and effectual to all intents and purposes, as if the amendment made by the lords had been agreed to by the commons before the said Act received the royal assent." Pobooiniasters' The third and most recent case arose in 1843, when the M'idows' Fund ri i i j -iir- i > t-i -i ,ri TiMi Bill. Schoolmasters Widows rund (Scotland) Jiill was returned to the commons with amendments ; but, before these were agreed to, the bill was removed from the table, without authority from the house, and carried up to the lords with other bills. The proper indorsement, viz. " A ces amende- mens les communes sont assentus," was not upon this bill; yet the omission was not observed, and the bill received the royal assent on the 9th May. After an examination of precedents, this Act was made valid by a new enactment.'^ iinpprfcct in- It is a curious fact, in connexion with an informality of orbcment. ^j^j^ character on the face of a bill^ that a commission expressly recites that the bills " have been agreed to by the lords spiritual and temporal, and the commons, and indorsed by them as hath been accustomed." The in- formality in this case would therefore appear to have been greater than in that of 1829; because, in the former, the indorsements were complete, and as they are without date, it would not appear that the amendment liad been agreed to after the royal assent had been given ; but, in the latter, the agreement of the commons would be wanting on the face of the record. In case of any accidental omission in tlfe indorsement, the bill sli'.iild U- returned to the house whence it was ' 10 (ieo. 4, c. G;3. ' G & 7 Vict. c. \\\\\. (local and personal). INFORMALITIES. 299 received ; as, on the 8th March, 23 Eliz. 1580, when a schedule was returned to the commons and the indorse- ment amended there ; because " Soit bail/e aux seigyieurs'' had been omitted, and the lords had therefore no warrant to proceed.' Having noticed the effect of informalities in the consent Informalities in of both houses to a bill, the last point that requiies obser- ^°^^ '^***^" * vation is the consequence of a defect in the legal form of commission or royal assent, of which there is a singular pre- cedent. On the 27th January 1540, when King Henry 8 was on his death-bed, the lord chancellor brought down a commission under the sign manual, and sealed with the great seal, addressed to himself and other lords, for giving the royal assent to the bill for the attainder of the Duke of Duke of Nor- . , , , , folk's attainder. Norfolk, w hich had been passed with mdecent haste tlirough both houses. Early the next morning the king died, and the duke was saved from the scaffold, but was imprisoned in the Tower during the whole reign of Edward 6. On the accession of Queen Mary, he took his seat in the House of Lords, was appointed to be one of the triers of petitions; and also, by patent, on the 17th August, to be lord hioh steward for the trial of the Duke of Northum- berland. The political causes which restored him to favour will Declared void, account for the impunity he enjoyed, notwithstanding his attainder ; but in the next session the Act of Attainder was declared by statute,* " To have been void and of none efFoct," because there were no words in the commission '' whereby it may appere that the saide late king did himself give his royall assent to the saide bill; and for that allso the saide comissyon was not signed with bis hignes hande, but with his stampe putt thereunto in the nether parte of the writing of the said commissyon. and not in the upper part of the said commissyon, as his hignes was accustomed todoo; nor that it appereth of any recorde that the saide commissyoners did give bis royall consent to the bill aforesaide ; therefore all that was done by virtue of the said commissyon was clerelie voyde in the » D'Ewes, 303. Order and Course of Passing Hills in Parliament, 4to. 1641. ' 1 Mary, No. 27 ; Introduction to Statutes of Roc. Com. p. 75. 300 ANCIENT MODE OF PETITIONING. lawe, and made not the same bill to take efFecte, or to be an Acte of Parlj anient, " but it "remaynetli in verie dede as no Acte of Par- lyament, but as a bill onelie exliibited in the saide Parlyament, and onelie assented unto by the saide lordes and coTnons, and not by the saide late king." The same Act declared, " That the lawe of this realme is and allwaies hath byn, that the royall assent or consent of the king or kings of this realme to any Acte of Parlyament ought to be given in his own royall pre- sence, being personallie in the higher howse of Parlyament, or by his letters i)atents under his great seale, assigned with his hande, and declared and notified in his absence to the lords spiritual and temporal, and the coinons, assembled together in the higher house, according to a statute made in the 33d yere of the reigne of the saide late King Henry VIII." CHAPTER XIX. ANCIENT MODE OF PETITIONING PARLIAMENT. FORM AND CHARACTER OF MODERN PETITIONS: PRACTICE OF BOTH HOUSES IN RECEIVING THEM. Tiio people Xhe last three chapters having dwelt upon the various ciiriiiiiiinifate _ . o i with I'ariiii- Communications between the several branches of the legis- t'i'ou. ' ''^ '' latun;, lead to the consideration of j)etitions ; by which the people are brought into coninuuiicatiou with the Parlia- ment. The right of petitioning the Crown and Parlig,ment for redress of grievances is acknowledged as a fundamental principle of the constitution;* and has been uninterruptedly exercised from very early times. Anrirnf inoetitiuniiig. RECEIVERS AND THIERS OF PETITIONS. 301 are petitions in the Tower of the date of Edward 1, before I'^m Kdw. i ,.,... . 11 . • 1 to lien. 4. which tune it is conjectured that the parties af^grieved came personally before the council, or preferred their com- plaints in the country, before inquests composed of officers of the Crown. Assuming that the separation of the lords and commons had been effected in the reign of Henry 3,* these petitions appear to have been addressed to the lords alone; but, taking the later period, of the 17th Edward 3, for the separation of the two houses, they must have been ad- dressed to the whole body then constituting the Hioh Court of Parliament. Be this as it may, it is certain that, from the reign of Edward 1, until the last year of the reign of Richard 2,^^ no petitions have been found which were addressed exclusively to the commons. During this period the petitions were, with few excep- Receivers and tions, for the redress of private wronirs : and the mode of *!""'''^ ^^ P''*'" ^ '^ ' tioiis. receiving and trying them was judicial rather than legis- lative. Receivers and triers of petitions were appointed, and proclamation was made, inviting all people to resort to the receivers. These were ordinarily the clerks of the chancery, and afterwards the masters in chancery (and still later some of the judges), who, sitting in some public place accessible to the people, received their complaints, and transmitted them to the auditors or triers. The triers were committees of pre- lates, peers, and judges, who had power to call to their aid the lord chancellor, the lord treasurer, and the serjeants-at- law. By them the petitions were examined ; and in some cases the petitioners were left to their remedy before the ordinary courts ; in others, their petitions were transmitted to the judges on circuit ; and if the common law offered no redress, their case was submitted to the High Court of Parliament. The functions of receivers and triers of Receivers and . . , 1 . . , . ,. triers stifl au- petitions have long since given way to the immediate au- pointed. thority of Parliament at large ; but their appointment at ' See supra, p. 20. ■' 3 Rot. Pari. 448. 302 RECEIVERS AND TRIERS OF PETITIONS. the opening of every Parliament has been continued by the House of Lords without interruption. They are still constituted as in ancient times, and their appointment and jurisdiction are expressed in Norman French.^ Reign of Hen.4. In the reign of Henry 4, petitions began to be addressed, in considerable numbers, to the House of Commons. The courts of equity had, in the meantime, relieved Parliament Petitions to of much of its remedial jurisdiction ; and the petitions were t e comiuons. ^^^^ more in the nature of petitions for private bills, than Origin of pri- for equitable remedies for private wrongs. Of this cha- vate bills. racter were many of the earliest petitions ; and the orders of Parliament upon them can only be regarded as special statutes, of private or local application. As the limits of judicature and legislation became defined, the petitions applied more distinctly for legislative remedies, and were preferred to Parliament through the commons ; but the functions of Parliament, in passing private bills, have always retained the mixed judicial and legislative cha- racter of ancient times.* Change of sys- Proceeding to later times, petitions continued to be received in the lords by triers and receivers of petitions, or by committees whose office was similar; and in the com- mons, they were referred to the committee of grievances, and to other committees specially appointed for the exa- mination and report of petitions;^ but since the Common- wealth, it appears to have been the practice of both houses to consider petitions in the first instance,^ and only to refer the examination of them, in particular cases, to com- mittees. ' There are receivers and triers for Great Britain and Ireland ; and others for Guscony and the lands and countries beyond the sea, and the isles. No hpi ritual lords are now aj)pointed triers. 73 Lords' J. 570. » See 1 I'arl. Writs, 100. 2 lb. 150. 3 Rot. Pari. 448. Coke, 4th Inst. 11. 21. 24. Elsynge,c. 8. Hale, Jurisd. of the Lords, chap. G-13. Com. Pari. Report, 1833 (— ) ; especially the learned evidence of Sir F. Palgrave. » I Cm. J. r,H2. 2 lb. 49. 01. 3 lb. 049. 4 lb. 228. 7 lb. 287. * 11 Lords' J. 9. 57. 184. 14I1).23. 12 Com. J. 83. tern FORM OF PETITIONS. 303 From this summary of ancient customs, it is now time to pass to the existing practice in regard to petitions, which it will be convenient to consider under three divisions ; viz. 1. The form of petitions ; 2. The character and substance of petitions; 3. Their presentation to Parliament. 1. Petitions to the House of Lords should be super- Formofpeti- scribed, " To the right honourable the lords spiritual and ^'"°^' temporal in Parliament assembled ;" and to the House of Commons, " To the honourable the commons (or knights citizens and burgesses) of the United Kingdom of Great Britain and Ireland in Parliament assembled." A general designation of the parties to the petition should follow; and if there be one petitioner only, his name, after this manner : " The humble petition of [here insert the name or other designation], sheweth." The general allegations of the petition are concluded by what is called the " prayer," in which the particular object of the petitioner is expressed. To the whole petition are generally added these words of form, " And your petitioners, as in duty bound, will ever pray ;" to which are appended the signatures or marks of the parties. Without a prayer, a document can hardly be taken as Remonstrances, a petition ; and a paper, assuming the style of a remon- strance, will not be received. The rule upon this subject has thus been laid down, in the commons : — On the 10th August 1843, a member offered a remonstrance. Mr. Speaker said, " That the custom was this, that wlienever remonstrances were presented to the house, cou])led with a prayer, they were received as petitions; but when tliey were offered with- out a prayer, the rule was to refuse them." He added, "That there was a standing order, requiring that the prayer of every petition sliould be stated by the member presenting it ; '" from which it is obvious that a prayer is essential to constitute a petition. The petition should be written upon parchment or paper, siijnatures, kc. for a printed or lithographed petition will not be received ; ^ » 65 Hans. Deb. N. S. p. 122.5. 1227. See also G7 Com. J. 398 ; 74 lb. 391 ; and infra, p. 307. * 72 Com. J. 128. 166. 304 CTTARACTrn OF PETITIONS. and at least one si»nature should be upon the same sheet or skin upon wliich the petition is written.' It must be in the English language,"^ or accompanied with a translation which the member who presents it states to be correct ; ' it must be free from interlineations or erasures;"* it must be signed ; ' it must have original signatures or marks, and not copies from the original,'' nor signatures of agents on behalf of others;^ and it must not have letters,* nor affi- davits,^ or other documents annexed. Petitions of corpo- rations aggregate should be under their common seal. To these rules another may be added, that if the chairman of a public meeting signs a petition on behalf of those assembled, it is only received as the petition of the individual, and is so entered on the Journals, because the signature of one party for others cannot be recognized.^" It may be a useful caution to state that any forgery or fraud in the preparation of petitions, or in the signatures attached, will be punished as a breach of privilege. By a resolution of the House of Commons, 2d June 1774, it was declared, "That it is highly unwarrantable, and a breach of the privilei^e of this house for any ])erson to set the name of any other person to any petition to be j)resented to tliis house."" And there have been frequent instances in which such irregularities have been discovered and punished.''^ rimractcr and 2. The language of a petition should be respectful and jK^^titinris. temperate, and free from offensive imputations upon the character or conduct of Parliament, '^ or the courts of justice,'^ or other tribunal "^ or constituted authority.'" It may not ulludc' to debates in either house of Parliament," ' 72 fom.J. 128. 144. 77 lb. 127. 2 70 lb. 173. =" 70 lb. 189. ^ 82 lb. 2G2. 8C lb. 748. » 85 lb. .'i41. 91 lb. 325. « 91 lb. 570. ■> 82 lb. 118. * 81 lb. 82. 9 82 lb. 41. 10 10 lb. 285. " 34 lb. 800. " 80 lb. 445. 82 lb. 5G1. 582. 84 lb. 187. 89 lb. 92 "H2Ib.5W!). 84 lb. 275. m 70 lb. 105. " 7«Ib. 92. "■ 7k II.. 4:31. 91 lb. 098. " 77 lb. 150. 82 lb. 004. 91 lb. 010. PETITIONS PRESF.NTKD. HOa nor to intcMidcM! motions.' A petition to the connnons, praying directly or indirectly for nn advance of pid)lic money ;'^ for compounding any debts due to the Crown;' or for remission of duties payable by any person/ will only be received if recommended by the Crown. Petitions distinctly praying for compensation for losses are viewed under this category and are constantly refused ;'' but in many instances petitions have been received which prayed that provision should be made for the compensation of petitioners, for losses contingent upon the passing of bills pending in Parliament." Nor will the commons receive petitions complaining of elections, or returns which are in the nature of election petitions under the Act, but in re- spect to which the jn-oper forms have not been observed.^ 3. All petitions must be presented by a member of the Pro^ontntion oC house to which they are addressed ; except petitions from the Corporation of liondon, which are presented to the House of Commons by the sheriffs, at the bar, or by one Transinissi.n) sheriff only, if the other be a member of the house or '"^ ^'"^ ' unavoidably absent : ^ or petitions from the Corporation of Dublin, which may be presented in the same manner by their lord mayor.** To facilitate the presentation of peti- tions, they may be transmitted through the Post-office, to members of either house, free of postage, provided they be sent without covers, or in covers open at the sides, and do not exceed 32 oz. in weight.'" In both houses it is the duty of members to read T.) ho raxii by petitions which are sent to them, before they are offered to the house, and to see that no flagrant violation of any of these rules is apparent on the face of them. Up to this point the practice of the lords and commons is. similar ; but the forms observed in presenting petitions differ so ' 85 Com. J. 107. * 00 lb. 42. 487. 507. 92 lb. 74. 3 75 lb. 167. See also p. 263, 325, 320. " 81 lb. 353. * 87 lb. 571. no lb. 487, &c. &c. « 90 lb. 130. 92 lb. 460. 7 82 lb. 317. 436. 86 lb. 105. 786. Sec abo Cliapt.cr XXII. « 92 lb. 120. 90 lb. 506. 75 In. 213. » 68 II). 20',). 212.219. »" 3& 4Vict. c. 96, s. 41. X 3U6 PETITIONS PRESENTED. iiuich, that it will be necessary to describe them separately. Lords. It was ordered by the lords, 30th May 1685, "That any lord who presents a petition, shall open it before it be read." ' At the same time the lord may comment upon the petition, and upon the general matters to which it refers ; and there is no rule or order of the house that limits the duration of the debate on receiving a petition. When the petition has been laid upon the table, an entry of that fact is made in the lords' minutes, and appears afterwards in the Journals, with the prayer of the petition, amidst the other proceedings of the house ; but the nature of its contents is rarely to be collected from the entry; and in very few cases indeed have petitions been printed at length in the Journals, unless they related to proceedings })artaking of a judicial character.^ If no debate, therefore, arises on the presentation of a petition, there remains no public record of its substance, nor statement of the parties by whom it was signed. The Journals are not published for many months after each session, and are accessible to a very small number of persons. But few petitions are ad- dressed to the House of Lords ; and while, on the one hand, no inconvenience arises from the license of debate on pre- senting them, so on the other hand, the necessity for any general system of classification and publicity is little felt. p. 94 II). IG. X ii 308 PETITIONS PRESENTED. Printing peti- It has been seen that, in certain cases, petitions may be printed and distributed with the Votes ; but the general practice is, for all public petitions to be referred to the " Committee on Pubhc Petitions," by whom they are clas- sified, analysed, and, when necessary, printed at length.' The reports of this committee are printed twice a week, and point out, under classified heads, not only the name of each petition, but the number of signatures, the general object of each petition, and the total number of petitions and signatures in reference to each subject ; and whenever the peculiar arguments and facts, or general importance of a petition require it, it is printed at full length in the Appendix, when it is accessible to the public at the cheapest rate of purchase. Time and mode A few words may now be offered in reference to the peUtfons. '°^ time and mode of presenting petitions in the House of Commons. It was resolved, 20th March 1833, "That every member presenting a petition to the house, do affix his name at the beginning thereof;'"^ and it is always printed willi the petition, in the reports of the committee. The time for receiving petitions is at the conclusion of the private business, and members who are desirous of obtain- ing precedence in presenting the petitions entrusted to them, should attend at the table of the house at half- past three ; or, when the house meets at an unusual hour, at a quarter of an hour before the time appointed for Ballot. Mr. Speaker taking the chair.^ The members then pre- sent ballot for precedence, and their names are entered on a list, and are afterwards called by the speaker in their order. When petitions relate to any motion or bill set down for consideration, a member may present them before the debate commences, at any time during the sitting of the lunise. In the case of a bill, they should be offered immediately after the order of the day has been read. ' 88 Com. J. Uu. * lb. 190. 3 91 jb 20. ACCOUNTS AiND PAPERS. '.UMf CHAPTER XX. ACCOUNTS, PAPERS, AND RECORDS PRESENTED TO PAR- LIAMENT : PRINTING AND DISTRIBUTION OF THEM : ARRANGEMENT AND STATISTICAL VALUE OF PARLIA- MENTARY RETURNS. Parliament, in the exercise of its various functions, is Returns by invested with the })Ower of ordering all documents to be address. laid before it which are necessary for its information. Each house enjoys this authority separately, but not in all cases independently of the Crown, The ordinary accounts relating to trade, finance, and general or local matters, are ordered directly, and are returned in obedience to the order of the house whence it was issued ; but returns of matters connected with the exercise of royal prerogative, are obtained by means of addresses to the Crown. The distinction between these two classes of returns should always be borne in mind ; as, on the one hand, it is irregular to order directly that which should be sought for by address ; and, on the other, it is a compromise of tlie authority of Parliament to resort to the Crown for information which it can obtain by its own order. The application of the principle is not always clear: but as a general rule, it may be stated that all public departments connected with the collection or management of the re- venue, or which are under the control of the Treasury, may be reached by a direct order from either house of Parliament ; but that public officers and departments sub- ject to her Majesty's secretaries of state are to receive their orders from the Crown. Thus returns from the Customs, the Excise, the Stamps and Taxes, the Post-office, the Board of Trade, or the Trea- X 3 310 ACCOUNTS AND PAPERS. surv, are obtained by order. These include every account, that can be rendered of the revenue and expenditure of the country ; of commerce and navigation ; of salaries and pensions ; of general statistics ; and of facts connected with the administration of all the revenue departments ; while addresses must be presented for treaties with foreign powers, for despatches to and from the governors of colo- nies, and for returns coiniected with the civil government, and the administration of justice, wheiiaddresses When an address for papers has been answered by the aiiswertd. Crown, the parties who are to make them appear to be within the immediate reach of an order of the house ; as orders of the House of Commons for addresses have been read, and certain persons who had not made the return required, have been ordered to make the returns to the house forthwith.^ Orders dis- When it is discovered that an address has been ordered charged. for papers which should properly have been presented to the house by order, it is usual, when no answer has been reported, to discharge the order for the address, and to order the papers to be laid before the liouse."^ In the same manner, when a return has been ordered, for which an address ought to have been moved, the order is dis- charged, and an address presented instead.'^ Returns to be If parties neolect to make returns in reasonable time, made forth- i » whu. they are ordered to make them forthwith; and if they continue to withhold them, they are ordered to attend the house, and censured or punished according to the circum- stances of the case. Kttrrt ofa i)ro- When Parliament is prorooued before a return is pre- rogation. ' ^ ^ sented, the most common practice is to renew the order in the ensuing session, as if no order had previously been given. This practice arises from the general effect of a prorogation, in putting an end to every proceeding pending in Parhament ; and unquestionably an order for returns ' n(» Com. J. n:j. fj.'in. ^ u-2 ih. mo. ■'■ lb. 365. ACCOUNTS AND PAPERS. 311 loses its effect at a prorogation ; yet returns are frequently presented by virtue of addresses in a preceding session, without any renewal of the address ; ^ and orders are occasionally made which assume that an order has force from one session to another. For example, returns have been ordered " to be prepared, in order to be laid before the house in the next session;"'^ and orders of a former session have been read, and the papers ordered to be laid before the house. ^ On one occasion, the order for an address made by a former Parliament was read, and the house being informed that certain persons had not made the return, they were ordered forthwith to make a return to the house.* Besides the modes of obtaining papers by order and by Papers pre- address, both houses of Parliament are constantly put in ^^,^^1 J,',j*ijT' possession of documents by command of her Majesty, and ^'=*- in compliance with Acts of Parliament. When accounts and papers are presented, they are Papers pre- 6Cnt(3(l* ordered to lie upon the table ; and, when necessary, are printed or referred to committees, or abstracts are ordered to be made and printed. In the commons, a select com- Printing com- mittee is appointed at the commencement of each session, ™'ni,u^ons. " to assist Mr. Speaker in all matters which relate to the printing executed by order of the house ; and for the pur- pose of selecting and arranging for prin.ting returns and papers presented in pursuance of motions made by mem- bers." To this committee all papers are referred, and it is not the practice for the house to order any paper to be printed, until it has been examined by them. No dis- tinct reference or report is made ; but when papers are laid upon the table, they are, from time to time, submitted to the committee or the speaker, by whom it is determined whether orders shall be made for printing them in their present form, or for preparing abstracts. ' 98 Com. J. 428. « 78 lb. 472. 80 lb. 631. 3 78 lb. 72. ' 90 lb. 4i:]. X 4 312 ACCOUNTS AND PAPERS. Unprintt'd If not considered worthy of" being j)rinted, or if the members who moved for them do not urge the printing, they are open to the inspection of members in an unprinted form. The papers of past sessions are deposited in the custody of the clerk of the Journals, and those of the current session are placed in the library, for the convenience of members, and returned, at the end of the session, to the clerk of the Journals. Distrii.iiti 11 of All papers printed by order of the lords are, by courtesy, , , , distributed gratuitously to members of the House of Com- mons who apply for them ; and also to other persons, on Coiumons. ajjplication, with orders from peers. But the conmions have adopted the principle of sale, as the best mode of distribution to the public. Each member receives a copy of every paper printed by the house, but is not entitled to more, without obtaining an order from the speaker. The chairman of a committee, the member who has brought in a bill, and others, may obtain a greater number of copies for special purposes ; but no general distribution can be obtained, except by purchase. The rule is not strictly enforced, as regards bills and estimates befoie the house, which may generally be obtained by members, on application at the Vote-olhce- but more than one copy of reports and papers is not delivered without authority from the speaker. Dtlivrrv to The Vote-officc is charged with the delivery of printed iiu'iiiliiThhy the J r Voic-oniee. papers to members of the house ; and those who wish to receive them regularly should take care to leave their ad- dresses, in order that all papers may be forwarded to them, either during the session, or in the recess. Papers in which any libellous matter is detected by the printing committee, are occasionally ordered to be printed " for the use of members only," and the distribution of these is con- fined to members, and delivered by the Vote-ofhce alone. The jjapers ordered to be j)rinted generally, are accessible f<> I lie j.iihlic ill the several " ofhces for the sale of parlia- mentary |);ij;eis," established under the manaLzemeut of ACCOUNTS AND PAPERS. ;3i;{ the printers of tlie house, and tlic control of tlie speaker. Tliey are sold at a halfpenny per sheet, a price sufficient to raise them above the quality of waste paper ; and mo- derate enough to secure the distribution of them to all persons who may be interested in their contents.' To facilitate the distribution of parliamentary papers, Transmission they are entitled to be sent through the Post-offi-ce, to all ^ ^*°'' ' places in the United Kingdom, at a rate of postage not exceeding Id. for every four ounces in weight, whether prepaid or not, provided they be sent without a cover, or with a cover open at the sides, and without any writing or marks upon them.^ The members of both houses are also entitled, during a session, to send, free of postage, all Acts of Parliament, bills, minutes, and votes, by writing their names upon covers provided for that purpose in the Vote-office, and in the office for the sale of parliamentary papers in the House of Commons. By these various regulations, the papers laid before Par- Airanocincntof . 1 1- -1 I T 1 1 ]>;»i-li:iiiieiitary liament are effectually published and distributed. In both papers, houses they are systematically arranged in volumes, at the end of each session, with contents and indexes, to secure a uniform classification, and convenient reference. General indexes have also been published, by means of which the papers that have been printed during many years may readily be discovered.-^ Each paper is distinguished by a sessional number at the foot of the page, and by the date at which the order for printing is made, except in cases where papers are presented by command of her Majesty, in a printed form. The collected papers of the two houses contain an Thoirstjitisiicul extraordinary amount of information in all departments ' See Reports of Printed Papers Committee, 18:35 (Gl. 392). •^ 3 & 4 Vict. c. 9G. ^ There is a General Index to the Lords' Papers I'roiii 1801 to 1830; and to the Co'.nmon.-^' Pajjers there is one from 1801 to 183- luclusivc; and anotLer from im-2 to 1838. ;514 ACCOUNTS AND PAPERS, of legislative iiujviiry ; in law, history, the privileges of Parliament, negotiations with foreign powers, and every variety of statistics. The statistical returns have been moved for at different times, for particular objects, and do not present so regular and complete a series as could be desired. Sometimes a return has been presented for several years in succession, when the series is interrupted, and commences again at a later period. At other times, the returns for succeeding years, though similar in object, are not moved for or prepared in a uniform manner. One return, for example, is found to include the United King- dom, while another extends only to Great Britain; one shows the gross, another the net revenue ; one dates from the 1st January, another from the 5th April ; one calcu- lates the value of exports by the official rate of valuation, another by the declared or real value. By discrepancies of this nature, the statistical importance of parliamentary papers has been very much impaired. To secure a more complete and uniform collection of statistics, the statistical department of the Board of Trade was established some years since. Accounts of the re- venue, commerce, and navigation of the country, are there collected from every department, and annually laid before Parliament. The tables prepared by this department have greatly improved the statistics of the last 10 years; and, in the commons, other parliamentary papers have recently been moved for, and prepared with considerable care. The causes of imperfection in the statistical accounts have been: 1. The irregular manner in which they have been moved for, without any settled plan or principle; 2. The imperfect mode of preparing the orders; 3. The want (jf j)rop(,T forms and instructions addressed to those who arc to prepare the returns ; 4. The absence of control and siijicriiitendence in editing the returns before they are printed. With a view to improve the character of par- liamentary ntiini-, ;i plan u;,s j.roposcd by the printing ACCOUNTS AND PAPERS. 315 committee, in 1841/ and has since been partly carried into effect; the gradual operation of which cannot fail to be attended with benefit. The committee suggested: 1. " That every meiuber be recoinniended, before he gives notice of a motion for a return, to consult the librarian of the House of Commons." 2. " That after the order for a return lias been made by the House, the librarian do prepare, wlien necessary, a form, to be submitted to Mr. Speaker for liis approval ; and that such form shall be forwarded with the order in the usual manner." 3. " That before any return which has been presented to the house shall be ordered to be printed, it shall be inspected by the librarian, and approved by Mr. Speaker." By attending to the first of these suggestions, a member Orders for re- will generally obtain assistance in framing a motion for returns. Documents of a similar character can be con- sulted, and their merits or defects in form and matter, will serve as guides to further investigation. The prepa- ration of the order, also, frequently requires a practical acquaintance with the forms and character of parliamentary accounts, in order to secure the information desired. The object in preparing blank forms to accompany the Blank forms. orders of the house, is to ensure complete and uniform answers from the parties to whom they are addressed. An order of considerable length, and containing various (queries, is often forwarded to a great number of persons in all parts of the country. Each person is left to his own interpretation of the order, and is at liberty to return his answers in whatever form he pleases. When all the answers are afterwards collected, they are found to be so different both in form and matter, that they are almost useless for pui'poses of comparison, and cannot be reduced, with the greatest pains, into a consistent and uniform return. A blank form, with columns properly headed, interprets the order, and obtains the answers in such a shape, that if properly given, they are ready for printing ; and if not, any imperfection can be readily detected. ' Pari. Paper, 1841 (181). 'ilG ORIGIN OF TAXATION. Abrtracta. When this precaution has been neglected, an attempt is still made, by means of abstracts, to improve the form in which returns are originally presented. They are com- j)ressed into the best form of which they will admit, and when practicable, general results are deduced from them, in illustration of the purposes of the order. CHAPTER XXI. PROGRESSIVE INFLUENCE OF THE COMMONS IN GRANTING SUPPLIES, AND IMPOSING BURTHENS UPON THE PEOPLE. EXCLUSION OF THE LORDS FROM THE RIGHT OF AMEND- ING MONEY BILLS. CONSTITUTIONAL FUNCTIONS OF THE CROWN AND OF THE COMMONS, IN MATTERS OF SUPPLY. MODERN RULES AND PRACTICE IN VOTING MONEY AND IMPOSING PECUNIARY BURTHENS. COMMITTEES OF SUP- PLY AND WAYS AND MEANS. Feudal oritrin of In England, as in many other countries of Europe, the ta.Natioii. origin 01 taxation may be reierred to the feudal aids and services due from the tenants of the Crown to their feudal superior. Before the growth of conmierce, the royal re- venue could only be derived from land ; and after the Conquest the entire soil of England was placed under the feudal sovereignty of the Conqueror. The greater portion was held by military service, and the councils of William, being composed of the tenants-in-chief of the Crown,* grant- ed and c(jiiHrmed as a Parliament, the aids and services, to which the king, as their feudal superior, was entitled. This connexion between feudal rights and legislative taxa- tion is singularly illustrated by the Charter of William tiie Concpieror, '^ which declared that all freehold tenants ' S'l'^ i"j»it, p. 14. - 1 radcra, 1. (Record Coiiini. ed.) ORIGIN OF TAXATION. 317 by military service ' should " hold their lauds and j)osscs- sions free from all unjust exactions, and from all tallaoe '^ so that nothing be exacted or taken from them except their free service, which had been given and conceded to him for ever, of hereditary right, by the common council of his realm." In the words of this charter two remarkable points may be observed ; the first, that the claims of the Crown upon those classes who formed its councils were confined to feudal aids and services ; and secondly, that even these had been freely given by the conmion council of the realm or Parhament. At the same time the Crown was entitled to other sources of revenue from classes who did not hold lands by military service, and who had no place in the national councils, either personally or by representation. But the various claims of the Crown gradually became less deter- mined, and required repeated assessments, for which j)ur- pose the council or Parliament was convened. And by the Great Charter of King John, the archbishops, bishops, abbots, earls, greater barons, and all other tenants-in- chief of the Crown were to be summoned with forty davs notice to assess aids and scutages,^ which the kin<>- bound himself not to impose otherwise than by the common council of his realm. The strictly feudal nature of these impositions was exemplified by the reservations which were made in favour of the king's right to aids for the ransom of his person, on making his eldest son a kniuht and on the marriage of his eldest daughter. But the practice first noticed in this charter, of summoning- the tenants-in-chief of the Crown through the sherifts and ' " Liberi homines." See explanations of tliis term, Rep. on Dignity of tlio Peerage, p. 31. ^ Talluge was raised upon the demesne lands of the Crown, upon the burghs and towns of the realm, and upon escheats and wardslu])s. 1 Madox Hist, of the Exchequer, (394. ' For a full explanation of tlie nature of tlicse feudal sources of revenue, see Madox, ehaptors l.j and l(i. S(>e also ,s7//;;y<, p. ](!. niS RIGHTS OF THE COMMONS, bailiffs, led to the principle of representation, as was shown in the first chapter of this work,^ and had an important intiuence upon the revenue of future kings, r.rowth of the After the property in land had undergone many changes of " uppiy. "^' ' and subdivisions, and the commonalty had grown in num- bers and wealth, the taxation became less feudal in its character. On the one hand, the tenants of the Crown had contrived to defraud their superior of much of his lawful dues ; and, on the other, the kings had been im- provident; and while their feudal revenues were dimi- nished in amount, and confused in title, their necessities were continually increasing. The commons, in the mean- time, had assumed their place as an estate of the realm in Parliament, and represented wealthy communities. These changes are marked by the well-known statute, De tal- lagio non concedendo, in the 25th Edward 1, by which it was declared, " That no tallage or aid shall be taken or levied without the goodwill and assent of the arch- bishops, bishops, earls, barons, knights, burgesses, and other freemen of the land." The popular voice being thus admitted in matters of taxation, the laity were henceforth taxed by the votes of their representatives in Parliament ; but the lords spiritual and the lords temporal voted separate subsidies for themselves ; and from the reign of Edward 1, the clergy, as a body, granted subsidies in convocation, until the surrender of their riirht in the rei^n of Charles 2.* ' Supra, p. l.^i. ' In 12!l.> Edward 1, being in great need of money, summoned deputies from tlic i.ifcrior clergy for the first time, to vote liim siil)9idies from their own body. Tlic clergy, however, wovild not obey the king's writ of summons, lest they should aj)|)r'ar to acknowledge the temporal power; and, in order to overcome this objection, the king issued his writ to the Archbishop of Canterbury, who, as their spiritual superior, summoned the clergy to meet in convocation. From this lime the clergy continued to vote subsidies in con- vocation, until they voluntarily surrendered their right to the House of Com- mon? in the reign of Charles 2, in return for the remission of two subsidies already granted, and for the right of voting at elections. IN MATTERS OF SUPPLY. 319 At length, when the commons had increased in pohtical Conunons' right influence, and the subsidies voted by them had become grants. the principal source of national revenue, they gradually assumed their present position in regard to taxation and supply, and included the lords as well as themselves in their grants. So far back as 1407, it was stated by King Henry 4, in the ordinance called " The Indempnily of the Lords and Commons," that grants were " granted by the commons, and assented to by the lords." That this was not a new concession to the commons is evident from the w'ords that follow, viz. " That the reports of all grants agreed to by the lords and commons should be made in manner and form as hath hitherto been accustomed ; that is to say, by the mouth of the speaker of the House of Commons for the time being."* Concurrently with parliamentary taxation, other im- Taxes by pre- p 1 1 • 1 1 1 • • 1 rogative. posts were lormerly levied by royal prerogative without the consent of Parliament, but none of these survived the Revolution of 1688;^ and since that time the revenue of the Crown has been entirely dependent upon annual grants for specific public services. In modern times, her Majesty's speech at the com- Recognition of mencement of each session recognizes the peculiar privi- r/aiit'^of'the*^ lege of the commons to grant all supplies ; the preamble commons, of every Act of Supply distinctly confirms it ; and the form in which the royal assent is given is a further con- firmation of their right. But a grant from the commons is not effectual, in law. Legal effect of without the final assent of the Queen and of the House of ^"^^^ ^' Lords ; although it is the practice to allow the issue of public money, the general application of which has been sanctioned by Parliament, before it has been appropriated to specific services, by the Appropriation Act, which is reserved until the end of the session. This power is neces- sary for the public service, and faith is reposed in the autho- rity of Parliament being ultimately obtained ; but it is liable ' 3 Rot. Pari. Gil. ^ Bill of Rights, Art 4. 320 FUNCTIONS OF THE LORDS, to be viewed with jealousy, if the ministers have not the confidence of Parhament/ Effect n:iven to jj^ oi'dcr to make the grants of the commons available, grants of the _ coiimioiisiK-fore and to anticipate the legal sanction of an Appropriation Act, tioii Acl?' "' clauses are inserted in the Acts passed at an earlier period of the session, for the application of money out of the Consolidated Fund, and for raising money by exchequer bills, for the service of the current year; which authorize the Treasury " to issue and apply, from time to time, all such sums of money as shall be raised by exchequer bills, to such services as shall then have been voted by the com- mons in this present session of Parliament." '^ By these enactments, immediate effect is given to the votes of the commons ; but there is still an irregularity in proroguing or dissolving Parliament before an Appropriation Act has been passed ; since, by such an event, all the votes of the commons are rendered void, and the sums require to be voted again in the next session, before a legal appropria- tion can be effected.^ Exclusion of The legal right of the commons to originate grants altir'in"\uiiply Cannot be more distinctly recognized than by these various bills. " ' This was shown on a remarkable occasion, not by those branches of the Ifgislature whose authority would be most slighted by an appropriation of money without their assent; but by the commons themselves, who protested ajrainst the i)rinciple of giving too much validity to their own votes. In 17S4, when Mr. Pitt was in a minority in the House of Commons, and it was well known that he was only waiting for the supplies in order to dissolve the Parliament, the house resolved, " That for any person or persons in his Majesty's Treasury, or in the Exchequer, or in the Bank of England, or fi)lie8 to such services, will be a high crime and misdemeanour, a daring breach of a public trust, derogatory to tlie fundamental privileges of Parli;.- nient, and subversive of the constitution of this country." — 39 Com. J. 8(i8. ' See Vict. c. 5, s. 7, &c. ' Parliament was dissolved in April IK!}], before any Appropriation Act had been passed. The new Parliament met on the 14th June, and all the gnints were re-voted in the committee of su]ii.ly. Before the dissolution of IH4] the supjilies for six months were regularly appriij)riated. IN MATTERS OF SUPPLY. ,321 proceedings; and to this right alone their claim aj)pears to have been confined for nearly 300 years. The lords were not originally precluded from amending bills of supply ; for there are numerous cases in the Journals, in which lords' amendments to such bills were agreed to. But in lf)71, the commons advanced their claim somewhat fur- ther by resolving, nem. con., " That in all aids given to the king by the commons, the rate or tax ought not to be altered;"' and in 1678, their claim was urged so far as. to exclude the lords from all power of amending bills of supply. On the 3d of July, in that year, they resolved, " That all aids and supplies, and aids to his majesty in Parlia- ment, are the sole gift of the commons; and all bills for the granting of any such aids and supplies ouglxt to begin with the commons : and that it is the undoubted and sole right of the commons to direct, limit, and appoint in such bills the ends, pur- poses, considerations, conditions, limitations, and qualifications of such grants ; which ought not to be changed or altered by the House of Lords." ^ It is upon this latter resolution that all proceedings between the two houses in matters of supply are now founded. The principle is acquiesced in by the lords, and except in cases where it is difficult to determine whether a matter be strictly one of supply or not, no difference can well arise. The lords never attempt to make any but verbal alterations, in which the sense or intention is not affected ; and even in regard to these, the commons make a special entry in their Journal, and record the character and object of the amendments, and their reasons for agreeing to them.^ In bills not confined to matters of aid or taxation, but in Rates and which pecuniary burthens are imposed upon the people, the be^aTtereTby" lords may make any amendments, provided they do not *'*^ ^oviis. alter the intention of the commons in any point connected with the amount of the rate or charge ; its duration, its ' 9 Com. J. 235. ' lb. .000. » 75 Ih. 251.471. 81 lb. :?88. !)2 lb. 0.>1). Y 322 PECUNIARY PENALTIES. mode of levy, application, or management ; or the limits within \\ hicli it is proposed to be levied. But all bills of this class must originate in the commons ; as they will not agree to any provisions which impose a charge upon the people, if sent down from the lords, but will order the bills containing them to be laid aside. Neither will they permit the lords to insert any provisions of that nature in bills sent up from the commons ; but will disagree to the amendments, and insist in their disagreement, or lay the bills aside at once. Lords' amend- When the amendments of the lords, though not strictly Tiicnts, wlieii • r • • -1 agreed to, regular, do not appear to mfrmge the pnvueges or the commons, it is usual to agree to them, with special entries in the Journal : as, that " they were only for the purpose of making the dates uniform in the bill;"* that " they only filled up blanks which had not been fdled with the sums which were agreed to by the house, on the report of a clause;"^ that " they were for the purpose of rectifying clerical errors;"^ that "they were in furtherance of the intention of the House of Commons;'"* that " they were rendered necessary by several Acts recently passed;"^ or, that " they were in furtherance of the practice of Parlia- ment."^ Pecuniary pe- So strictly had the right of the commons been main- tained in regard to the imposition of charges upon the people, that they denied to the lords the power of imposing pecuniary penalties, or of varying the mode of suing for them, or of applying them when recovered ; though such provisions might give effect to the general enactments of a bill. A too strict enforcement of this rule was found to be attended with unnecessary inconvenience; and, in 1831, the commons judiciously relaxed it by the following reso- lution: ' 80 Com. J. . -379. ^ lb. 631. 9 75 lb. 251. 79 lb. 524. 8G lb. 684. " 92 lb. 518. » 92 lb. 659. " 90 lb. 375. 91 lb. 823. TACKS TO SUPPLY BILLS. 323 " That (if) in any bill wliit'ii having passed the House of Lords, shall be sent down to this house for their concurrence, or in any bill which having passed this house shall be returned l)y the lords with aniondments, it shall appear that any pecuniary penalty or forfeiture is thereby imposed, varied, or taken away, the si)eaker shall, before the second reading of any such bill or amendments, report to the house his opinion whether the object thereof be to im- pose, vary, or take away any pecuniary charge or burthen on the subject, or whether the same relates only to the punishment or tlie prevention of offences ; and the house shall thereupon determine whether it maj^ be expedient, in such particular case, to insist upon the exercise of their privilege to originate all such provisions respecting pecuniary penalties or forfeitures." ' In compliance with this rule, the speaker has called attention to clauses or amendments coming from the lords, with pecuniary penalties, and stated his opinion that they came within the intention of that resolution of the house ; upon which they have been agreed to by the house without further difficulty.'* The constitutional power of the commons to grant sup- Tacks to bills plies, without any interference on the part of the lords, ° ^"^''* " " has occasionally been abused by tacking to bills of supply enactments which, in another bill, would be rejected by the lords ; but which, being joined to a bill that their lordships have no right to amend, must either be suffered to pass unnoticed, or cause the rejection of a measure highly necessary for the public service. Such a proceed- I ing is as great an infringement of the privileges of the I lords, as the interference of their lordships in matters of , supply is of the privileges of the commons, and has been resisted by protest, by conference, and by the rejection of the bills.' On the 9th December 1702, it was ordered and declared by the lords, " That the annexing any clause or clauses to a bill of aid or supply, the matter of which is foreign to, and different from, the matter of the said bill of aid or supply, is unj^arliamentary, and tends to the destruction of the constitution of this government." * 86 Com. J. 477. - 89 lb. 233. 90 lb. 383. 4.38. 16 Lords' J. .309. 13 Com. J. 320. 17 Lords' J. 185. Lords' S. O. No. 25. Y 2 3-24 FUNCTIONS OF THE CROWN. There have been no recent occasions on which clauses have been irrepilarly tacked to bills of supply, in order to extort the consent of the lords; but, so lately as 1807, the above standing order was read in the lords, and a bill for abolishing fees in the Irish customs, rejected on the third reading. In that case the clause had been inad- vertently allowed to form part of the bill, and it is extremely doubtful whether it was a tack within the in- tention of the standing order ; as the bill was not one of supply for the current year, and the clause was not irre- levant to the other enactments of the bill.^ Constitutional The functions of the House of Lords, in matters of supply. ^ ^'Upply and taxation, being thus reduced to a simple assent or negative, it becomes necessary to examine the constitu- tional principle by which the other branches of the legis- lature are governed. The Crown, acting with the advice of its responsible ministers, being the executive power, is charged with the management of all the revenues of the state, and with all payments for the public service. The Crown, therefore, in the first instance, makes known to the commons the pecuniary necessities of the government, and the commons grant such aids or supplies as are required to satisfy these demands ; and provide by taxes, and by the appropriation of other sources of the public income, the ways and means to meet the supplies which are granted by them. Thus the Crown demands money, the commons grant it, and the lords assent to the grant. But the commons do not vote money unless it be required by the Crown ; nor impose or augment taxes, unless they be necessary for meeting the supplies which they have voted, or are about to vote, or for supj)lying general de- ficicncit's in the revenue. The Crown has no concern in the nature or distribution of the taxes; but the founda- tion of all parliamentary taxation is, its necessity for the j)ublic service, as declared by the Crown and its constitu- tional advisers. ' 40 Lords' J. 342. RECOMMENDATION OK THE CROWN. ;J25 The principle of waiting for tlie suggestion and authority iiccommc-iida- of the Crown for the voting of public money is extended cro\vn/*'*' further than to the annual grants. Thus, by a standing order, 11th December 1706, it was declared, "That this house will receive no petition for any sum of money relat- ing to public service, but what is recommended from the Crown." ' And this rule is extended, by the uniform prac- tice of the house, to all direct motions for grants, and to any motion which indirectly involves the expenditure of public money. So strictly is this principle enforced, that the house will Reports recom- not even receive a report from a select committee, suggest- crown. ^ ^ "^ ing an advance of money, without being recommended by the Crown. On the 15th June 1837, notice Avas taken that a report on the petition of Messrs. Fourdrinier " contained a recommendation for ])ublic compensation for losses incurred by the patentees, and that the same has not been recommended by the Crown " : ^ and the report was recommitted in order to remove this informality. Such an objection to a report was, apparently, prema- ture, as no motion had been founded upon it, and none could have been made, unless recommended l^y the Crown ; but it proceeded upon the same principle as that observed in regard to petitions, and is a good example of the strictness with which the rule is enforced. On the same principle of discouraging solicitations for Petitions for money, and moderating the liberality of Parliament, there cYown Xbtf. is a standing order of the house, " That this house will not receive any petition for compoundino' any sum of money owing to the Crown upon any branch of the revenue, without a certificate from the jiroper officer or officers annexed to the said petition, stating tlie del)t, wliat prosecutions have been made for the recovery of sucli debt, and setting fortli how much the petitioner and his security are able to satisfy thereof." ^ 15 Com. J. 211. '^ 92 lb. 47^. ^ 18 lb. 23. Y 3 32G COMMITTEES OF SUPPLY, Motions for "raiiU. Iloyal sitC'Cch. Supply (;ruutcd. In addition to the necessity of a recommendation from the Crown, prior to a vote of money, the house have inter- posed another obstacle to hasty and inconsiderate votes, which involve any public expenditure. On the 18tli February 1667 it was resolved, " That if any motion be made in the house for any public aid or charge upon the people, the consideration and debate thereof ought not pre- sently to be entered upon, but adjourned till such further day as the house shall think fit to appoint; and then it ought to be referred to the committee of the whole house, and their opinions to be reported thereupon, before any resolution or vote of the house do pass therein." ' A similar rule was made a standing order on the 29th March 1707, \'iz., " That this house will not proceed upon any petition, motion, or bill, for granting any money, or for releasing or compounding any sum of money owing to the Crown, but in a committee of the whole house." " This order was renewed 14th April 1707, 7th February 1708, and 29th November 1710, and is constantly observed in the proceedings of the house in matters of supply. In compliance with all these rules for receiving recom- mendations from the Crow^n for the grant of money ; for deferring the consideration of motions for supply until another day ; and for referring them to a committee of the whole house ; the proceedings of Parliament, in the annual grants of money for the public service, are conducted in the following manner : On the opening of Parliament, the Queen, in her speech from the throne, addresses the commons ; demands the annual provision for the public service j and acquaints them that she has directed the estimates to be laid before them. Directly the house have agreed to the address in answer to the Queen's speech, they order the speech to be taken iiiti) consideration on another day. When that day arrives, they proceed t Com. J. 52. 2 16 lb. 367. AND WAYS AND MEANS. 327 that a supply be granted to her Majesty, and the house resolve that, on a future day, they will resolve themselves into a committee, to consider of that motion. On the day appointed, the committee sit, the royal speech is referred to them, and they agree to a resolution, " that a supply be granted to her Majesty " ; which, being afterwards reported, is agreed to by the house, nemine contradicente. The general question in favour of a supply being thus Coinmiitee of determined, the house appoint another day, on which they ''"^'^* will resolve themselves into a committee " to consider of the supply granted to her Majesty," or, as it is commonly called, " the committee of supply." As it is the duty of this committee to consider the estimates for the current year, the next business of the house is to order those esti- mates to be laid before them, and to address her Majesty to give directions to the proper officers for that purpose. In order that the house may be informed, as early as Estimates, possible, of the expenditure for which they will have to ggnted"^''" provide, the following resolution was agreed to, 19th Fe- bruary 1821, and has ever since been complied with : — " That this house considers it essentially useful to the exact performance of its duties, as guardians of the public purse, that during the continuance of the peace, whenever Parliament shall be assembled before Christmas, the estimates for the navy, army, and ordnance departments should be presented before the loth day of January then next following, if Parliament be then sitting ; and that such estimates should be presented within ten days after the opening of the committee of supply, when Parliament shall not be assembled till after Christmas." ' The estimates for civil services are usually presented somewhat later in the session. Before the proceedings of the committee of supply are Annual grants entered upon, it should be understood that about three- ^'^^cribed. fifths of the whole annual expenditure are payments out of the consolidated fund, secured by various Acts of Parlia- ment. For these the commons had of course provided, in ' 70 Com. J. 87. Y 4 328 COMMITTEES OF SUPPLY, Committee of supply. Chairman of committees of supply and wavs and Committpc of ways and nuans. the first instance : but as permanent statutes now autho- rize the application of the public income to the discharge of its legal liabilities, such payments do not require the annual sanction of Parliament. But for the remaining two-fifths of the expenditure the commons provide, annu- ally, by specific grants, which authorize the payment of distinct sums of money for particular services, as explained by estimates laid before them upon the responsibility of the ministers of the Crown. When these estimates have been presented, printed, and circulated amongst the members, the sittings of the com- mittee of supply begin. The estimates and accounts which are necessary to guide the committee are referred, and the member of the Administration representing the department for which the supplies are required, first ex- plains to the committee such matters as may satisfy them of the correctness and propriety of the estimates, and then proceeds to propose each grant in succession ; which is put from the chair in these words, " That a sum not exceeding £. be granted to her Majesty," for the object specified in the estimate. At the beginning of a new Parliament the first business of the committee of supply is to elect a chairman, who, when chosen, continues to preside over tluit committee for the remainder of the Parliament. If any difference should arise in his election, the speaker resumes the chair, and it is determined by the house what member shall take the chair of the committee, in the manner already explained in reference to other committees of the whole house. ^ This official chairman also presides over the committee of ways and means, and other committees of the whole house; and executes various duties in connexion with private bills, which will be described in the proper place.^ When the first report of the committee of supply has been received by the house, and agreed to, a day is ' See p. lU. ■■' Sec Book I J I., t;Jia].tcr xkvi. AND AVAYS AND MEANS. S'li) appointed for the house, to resolve itself into a committee " to consider of ways and means for raising the supply granted to her Majesty;" or, as it is briefly denominated, " the committee of ways and means." As the committees of supply and of ways and means Functions of continue to sit during the session, are presided over by the teerdlst'^'"'*' same chairman, are both concerned in providing money g"is''t'J- for the public service, and are governed by the same rules and usage, it will be necessary to distinguish their pecu- liar functions, before a more detailed account is given of the forms of procedure which apply equally to both. The general resemblance between these committees has some- times caused a confusion in regard to the proper functions of each ; but the terms of their appointment explain at once their distinctive duties. The committee of supply consider what specific grants of money shall be voted as supplies demanded by the Crown, for the service of the current year; as explained by the estimates and accounts prepared by the executive government, and referred by the house to the committee. The committee of ways and means determine in what manner the necessary funds shall be raised to meet the grants which are voted by the com- mittee of supply, and which are required for the public service. The former committee controls the public expen- diture ; the latter provides the public mcome : tiie one authorizes the payment of money ; the other sanctions the imposition of taxes and the application of public revenues not otherwise applicable to the service of the year. Their separate duties may be further explained by enu- Functions of , • i" 1 1 ii ii. -Ill 1 the committee meratmg more particularly the matters considered by each, of guppiy. The committee of supply vote every sum required for the public service ; for the army, the navy, the ordnance, and the several civil departments ; but the powers of this com- mittee will not be understood, unless the fact already ex- plained be constantly borne in mind, that in addition to these particular services, which arc \oted in detail, there 33U COMMITTEE OF WAYS AND MEANS. Consolidated fund. Functions of tlie couiniittee of ways uud means. FxeJiequer bills. are permanent charges 4ipon the pubhc revenue, secured by Acts of Parhament, which the treasury are bound to defray, as duected by law. In this class are included the interest of the national funded debt, the civil list of her Majesty, the annuities of the Royal Family, and the salaries and pensions of the judges and other public otticers. These are annual charges upon the revenue, and the appropria- tion of the respective sums having been permanently au- thorized by statutes, is independent of annual grants, and is altogether beyond the control of the committee of supply. The treasury are already able to apply the consolidated fund to these statutable charges ; but they cannot apply any portion of it to meet the annual supplies without dis- tinct authority from Parliament. For this purpose the committee of ways and means vote general grants from time to time out of the consolidated fund, " towards mak- ing good the supply granted to her Majesty": and bills are founded upon these resolutions of the committee, by which the treasury receive authority to issue the necessary amounts from the consolidated I'und, for the service of the year. The financial arrangements of this country require con- siderable sums of money to be raised by exchequer bills, in anticipation of the annual revenue, and the committee of ways and means authorize them to be issued ; while the committee of supply, from time to time, grant sums of money to pay off and discharge them. The precise distinction between the functions of the two committees cannot be better exemplified than in the proceedings of each in reference to exchequer bills. It is within the province of the committee of ways and means, as provid- ing the revenue, to determine what sums shall be raised by exchequer bills ; it is the business of the conunittee of supply, as authorizing expenditure, to vote all sums which are re(juired to pay off and discharge those bills when they become due. BUDGET. U31 One of the most important occasions for which the Annual budget. committee of ways and means is required to sit, is for receiving the financial statement for the year, from the chancellor of the exchequer.' When that minister has had sufficient time to calculate the probable income and expenditure for the financial year, commencing on the 5th April, he is prepared to determine what taxes should be repealed, reduced, continued, or augmented, or what new taxes must be imposed. As it is the pro- vince of the committee of ways and means to originate all taxes for the service of the year, it is in that com- mittee that the chancellor of the exchequer developes his views of the resources of the country, communicates his calculations of the probable income and expenditure, and declares whether the burthens upon the people are to be increased or diminished. This statement is familiarly known as " the budget," and is regarded with greater interest, perhaps, than any other speech throughout the session. The chancellor of the exchequer concludes by proposing resolutions for the adoption of the committee ; which, when afterwards reported to the house, form the groundwork of bills for accomplishing the financial objects proposed by the minister. The rules of proceeding in the committees of supply and Proceedings iu 1 • 1 • -1 J 4.1 u J • committee, ways and means, are precisely similar to those observed in other committees of the whole house. It has been stated^ in other places, as an ancient order of the house, " That where there comes a question between the greater or lesser sum, or the longer and shorter time, the least sum and the longest time ought first to be put to the question." This rule is applicable to all committees where such questions arise, but is more frequently brought into operation in these committees, where money forms the only subject of discus- sion.^ The object of this rule is said to be, " that tiie ' Or sometimts tlie first lord of the treasury, if a member of tlie House of Commons. - See pp. 224, 280. ^ 88 Com. J. 325. 332 COMMITTEES OF SUPPLY, charge may be made as easy upon the people as possible;" but how that desirable result can be secured by putting one question before the other, is not very apparent ; for if the majority were in favour of the smaller sum, they would negative the greater when proposed. The practice, how- ever, is convenient, since it is not usual to dispose of the two propositions in committee by way of question and amendment. If the smaller sum be resolved in the affirm- ative, the point is settled at once, and no question is put upon the greater; if in the negative, the greater sum is generally agreed to without further opposition. A direct negative of the larger sum is, in this manner, avoided, when the majority of the committee are adverse to it; and it has been urged as one of the merits of the rule, that the discourtesy of refusing to grant a sum demanded by the Crown, is mitigated by this course of proceeding. The questions of the longer or shorter time had reference to the ancient mode of granting subsidies, which were ren- dered a lighter burthen on the subject by being extended over a longer period. The present system of grants does not admit of the application of this part of the rule ; but its principle is still regarded in the committee of ways and means, whenever the time at which a tax shall commence is under discussion ; for the most distant time being- favour- able to the people, the question for that time is first put from the chair. Hrport of su])- The resolutions of the committees of supplv and ways and incaiis." '^"^ means are reported on a day appointed by the house, but never on the day on which they are agreed to by the committee. When the report is received, the resolutions are agreed to by the house, or may be disagreed to, amended, postponed, or recommitted. If agreed to, bills are ordered to carry tliem into effect, whenever it is neces- sary. This is always the course pursued upon resolutions from the conunittee of ways and means ; but the greater part of the resolutions of the committee of supply are re- AND WAYS AND MEANS. 3.T;3 served for the Appropriation Act, at the end of the session. If a resolution be amended by the house on the report, the amendment can only eftect a diminution of the proposed burthen, and not an increase. If the latter be desired, the proper course is to recommit the resolution, as an ad- dition to the public burthens can only be made in com- mittee, consistently with the rules of the house. It must always be borne in mind, that the house can Propositions entertain any motion for diminishing a tax or charge upon charges'upMi the people; and bills are frequently brought in for that tl»t' people, purpose, without the formality of a committee. Obstacles are opposed to the imposition of burthens, but not to their removal or alleviation; and tliis distinction has an influ- ence upon many proceedings not immediately connected with supply. For instance, the blanks left in a bill for rates, penalties, &c. are filled up in committee ; but on the report, the house may reduce their amount. If, however, it be desired to increase them, the bill should be recom- mitted for that purpose. So, also, if a clause proposed to be added to a bill enact a penalty, which the house, on the report of the clause, desire to increase, the clause ought to be recommitted.' When the supplies for the service of the year have all Appropriation been granted, the committee of supply discontinue their sittings, but the financial arrangements are still to be com- pleted by votes in the committee of ways and means. That committee authorize the application of money from the con- solidated fund, the surplus of ways and means, and sums in the exchequer, to meet the several grants and services of the year ; and a bill is ordered, to carry their resolutions into effect. This is known originally as the Consolidated Fund Bill, but after it has been committed, an instruction is given by the house to the committee, to receive a clause of appropriation, and it is then called in the Votes the " Consolidated Fund (Appropriation) Bill," but more ge- ' See supra, p. 283. 334 APPROPRIATION ACT. nerally the Appropriation Bill. It enumerates every grant that has been made during the whole session, and autho- rizes the several sums, as voted by the committee of supply, to be issued and applied to each separate service. It also enacts, " That the said aids and supplies shall not be issued or applied to any use, intent or purpose, other than those before mentioned ; or for other payments directed to be satisfied by any Acts of Parliament, &:c." * When the Appropriation Bill has passed both houses, it is returned into the charge of the commons until that house are summoned to attend her Majesty or the lords com- missioners, in the House of Peers, for the prorogation of Parliament : when it is carried by the speaker to the bar of the House of Peers, and there received by the assistant clerk of the Parliaments for the royal assent. When her Majesty is present in person, the speaker prefaces the delivery of the money bills with a short speech, concerning the principal measures of the session, in which he does not omit to mention the supplies granted by the commons. The money bills then receive the royal assent before any of the other bills awaiting the same ceremony, and the words in which it- is pronounced acknowledge the free gift of the commons : " La reyne remercie ses bons sujets, accepte leur benevolence, et ainsi le veult." f;rant8 voted Although every grant of money must be considered in otiierwise than . „ - i i i • • , in committee of ^ committee 01 the whole house, it is not usual to vote supply. j,m^]^ grants in the committee of supply, as do not form part of the supplies for the current year. Any issue of money out of the consolidated fund for salaries created by a bill, or other charge of whatever character, after the Queen's recommendation has been signified, is authorized by a committee of the whole house, to whom the matter is specially referred ; and on their report a bill is ordered, or a clause is inserted, by instruction, in a bill already before the house. ' G 6i 7 Vict. c. 09, s. 23. TAXP.S nVTPOSED. '.i^Ti Another mode of originating a grant of money without Addresses for tlie intervention of tlie committee of supply, is by an P"**''*^ '"°"*'y- address to the Crown for the issue of a sum of money for particular purposes, with an assurance " that this house will make good the same."^ According to tlie strict rules of the house, this proceeding ought only be resorted to when the committee of supply is closed, at the end of the session ; for otherwise the more regular and constitutional practice is to vote the sum in that committee ; but as this form of motion makes the royal recommendation unneces- sary, it is often resorted to by members who desire grants which are not approved by the ministers of the Crown. On the 2 2d February 1821, a resolution was agreed to, " That this house will not proceed upon any motion for an address to the Crown, praying that any money may be issued, or that any expense may be incurred, but in a committee of the whole house, and that the same be declared a standing order of the house." * In compliance with this standing order, and with the resolution of the 18th February 1667, that the considera- tion and debate of motions for any public aid or charge should not be presently entered upon, tlie proper form to observe in proposing an address involving any outlay is to move, 1st, " That this house will on a future day resolve itself into a committee of the whole house, to consider of an address , &;c. &c. ;" and if that be carried, 2dly, To pro- pose that address, in committee, on tlie day appointed by the house.^ As grants of money may be sanctioned by these me- Taxes imposed . '. . otherwise than thods, otherwise than m committee of supply ; so all taxes in comniitteeof are not necessarily imposed in the committee of ways and means^" means. The original intention of this committee was to vote all ways and means for the service of the year; ' 83 Com. J. 710, &c. * 70 Com. J. 101. ' Mirror of Pari. 1840, pp. 3244. 41 7t). 330 TAXES IMPOSED. and when taxes were ordinarily appropriated to specific services, its province was sufficiently defined; but since the practice has arisen of carrying the produce of all taxes to one general consolidated fund, the office of the com- mittee of ways and means is not capable of so distinct a definition. The annual sugar duties, and all other taxes which are to take effect immediately, in order to supply deficiencies in the revenue, are obviously subjects proper for the consideration of this committee ; but the same rule is not always applicable to taxes of a more permanent and general nature. Every tax, indeed, whenever it may have been imposed, and however permanent its character, is practically for the service of the current year so long as it continues to be levied : but it may be desirable to alter it for purposes unconnected with the actual condition of the revenue. This distinction is generally observed, and it is the prevailing custom to confine the deliberations of the committee of ways and means to such taxes as are more distinctly applicable to the immediate exigencies pf the public income ; and to consider, in other committees of the whole house, all fiscal regulations, and alterations of permanent duties, not having directly for their object the increase of revenue. Thus general alterations of the duties of customs, excise, stamps, and taxes,' have been proposed in committees of the whole house ; but additions to these duties, for the express purpose of supplying deficiencies in the annual revenue, have been considered in the com- mittee of ways and means.^ This practice, though not without exceptions, has been sufficiently general to sup- port a conclusion as a general rule, that, whenever the form of a motion points to taxation as a source of revenue, it ought properly to be offered in the committee of ways and means. ' U7 Com. J. 204. 92 lb. 490, oOO. » 95 lb. 351. 451. ISSUE OF wniTS. 337 CHAPTER XXII. ISSUE OF WRITS, AND TRIAL OF CONTROVERTED ELEC- TIONS BY THE HOUSE OF COMMONS. ' The law of elections, as declared by various statutes, Purport of tiiia and by the decisions of committees of the House of Com- ^''*'' "" mons, has become a distinct branch of the law of England. It is, in itself, of too comprehensive a character to admit of a concise analysis for the general purposes of this work, and it has already been collected and expounded, in all its details, by many valuable treatises. But as the issue of writs, and the trial of election petitions, form an im- portant part of the functions of the House of Commons, an outline of these proceedings, apart from the general law in reference to elections, cannot be omitted. Whenever vacancies occur in the House of Commons, issue of writ^. from any legal cause, after the original issue of writs by the Crown at a general election, all subsequent writs are issued out of chancery, by order of the House of Commons, and by warrant from the speaker. The most frequent causes of vacancy are the death of members, their eleva- tion to the peerage, the acceptance of offices under the Crown, and the determinations of election committees that elections or returns are void, upon any of the grounds which, by law, avoid them. When the house is sitting, and the death of a member, Vacancios dm- or his elevation to the peerage, is known, a writ is moved ^ *' by any member, and, on being seconded by another, Mr. Speaker is ordered by the house to issue a new writ for the place represented by the member whose seat is thus vacated. If any doubt should arise concerning the fact of the vacancy, the order would be deferred until the house should be in possession of more certain information; and ' See Hans. Dcb.ll Marcli 18:V>, an-l 1!) April 1844. -2 nats.G.J//.:39:!-:}!)7.; z 338 ISSUE OF WRITS. writs. Durin recess, t]ie Spealjer issues warrants. if, after the issue of a writ, it should be discovered that the house had acted upon false intelligence, the speaker Supersedeas of would be ordered to issue a supersedeas of the writ. Thus, on the 29th April 1765, a new writ was ordered for Devizes, in the room of Mr. Willey, deceased. On the 3uth it was doubted whether he was dead, and the mes- senger of the great seal was ordered to forbear delivering the writ until further directions. Mr. Willey proved to be alive, and on the 6th May a supersedeas of the writ was ordered to be made out.' When the house is not sitting, and vacancies occur, by death, or elevation to the peerage, the law provides for the issue of writs, without the immediate authority of the house, in order that a representative may be chosen with- out loss of time, by the place which is deprived of its member. By the 24 Geo. 3, sess. 2, c. 26, on the receipt of a certificate,^ under the hands of two members, that any member is dead, or has been called up to the House of Peers, the speaker is required to give notice forthwith in the London Gazette (which is to be acknowledged by the publisher), and after 14 days from the insertion of such notice, to issue his warrant to the clerk of the Crown to make out a new writ. But the speaker may not issue his warrant during the recess ; 1, unless the return of the late member has been brought into the office of the clerk of the Crown 15 days before tlie end of the last sitting of the house ; nor, 2, unless the application is made so long before the next meeting of the house, for despatch of business, as that the writ may be issued before the day of meeting;'' nor, 3, may he issue a warrant in respect of any seat tliat has been va- cated by a member against whose election or return a peti- tion was depending at tlie last prorogation or adjournment. ' See 2 Hats. 80 m. And 04 Cora. J. 48. 81 lb. 223. 8G lb. 134. 182. ' See tbc form of the certificate in the Appendix. ' That is to say, 14 days must elajjsc after tlie insertion of the notice, and then the writ can only he issued before the meetiii'^ of the house. OFFICES UNDER THE CROWN. 339 At the beginning of each Parhamcnt the speaker is Speakfr's aii- . , pDintiiiciit of requn-ed to appoint a certain number oi members, not meuihers. exceeding seven, and not less than three in number, to execute these duties in case of his own death, the vacation of his seat, or his absence from the reahu. This appoint- ment stands good for the entire ParHament, unless the number should be reduced to less than three; in which case the speaker is required to make a new appointment in the same manner as before. This appointment is ordered to be entered in the Jour- nals, and published in the London Gazette ; and the instru- ment is to be preserved by the clerk of the house, and a duplicate by the clerk of the Crown. By the 52 Geo. 3, c. 144, s. 3, similar powers are given niinknii.tcy. to the speaker, and to the members appointed by him, for issuing warrants, in the event of a seat having become vacant by the bankruptcy of a member. By the 26th sect, of the Act 6 Anne, c. 7, if any member Offices under ■' the Crown. " Shall accept of any office of profit from the Crown during such time as he shall continue a member, his election shall be and is hereby declared to be void, and a new writ shall issue for anew election, as if such person, so accepting, was naturally dead ; pro- vided, nevertheless, that such person shall be capable of being again elected," &c. By vh-tue of this provision, whenever a member accepts office under the Crown, a new writ is ordered ; but as the secretaries of the treasury, the under secretaries of state, and the secretaries to the admiralty and to the board of control, do not hold office by appointment from the Crown, their seats are not vacated ; nor would the acceptance of any other offices, of which the appointment does not vest directly in the Crown,' vacate a seat. By the 41 Geo. 3, c. 52, s. 9, it is declared that offices accepted immediately or directly from the Crown of the United Kingdom, or by the appointment and nomination, or by any other appoint- Or lord lieute- nient, subject to the approbation of the lord lieutenant » 2 Hats. 44. z 2 340 SEATS VACATED. of Ireland, shall vacate seats in Parliament.' But by the 6 Anne, c. 7, s. 28, the receipt of a new or other commis- sion by a member who is in the army or navy, is excepted from the operation of the Act, and does not vacate his seat; and the same exception has been extended, by con- struction, to officers in the marines ; ^ and to the office of master-general or lieutenant-general in the ordnance, accepted by an officer in the army.^ ciiiitcrn Hun- Jt jg ^ settled principle of Parliamentary law, that a member, after he is duly chosen, cannot relinquish his seat;^ and, in order to evade this restriction, a member who wishes to retire, accepts office under the Crown, which legally vacates his seat, and obliges the house to order a new writ. The offices usually selected for this purpose are those of steward or bailiff of her Majesty's three Chiltern Hundreds of Stoke, Desborough, and Bo- nenham, or of the manors of East Hendred and North- stead, which, in ordinary cases,^ are given by the treasury to any member who applies for them, and are resigned again as soon as their purpose is effected. Wantofquali- A sino;ular method of vacating: a seat was that of Mr. fication ad- ° . ° mitted. Southey, in 1826, who had been elected for Downton, dur- ing his absence on the Continent. His return was not ques- tioned, but he addressed a letter to the speaker, in which he stated that he had not the qualification of estate required by law." The house waited until after the expi- ration of the time limited for presenting election petitions, and then issued a new writ for the borouo^h/ Mpmhcrs va- A member sitting for one place may not be elected for eating to be re- , , . elected. allot licr, hut must vacate his seat by accepting the Chil- tern Hundreds, or some other office under the Crown, in order to become a candidate. ' Tlie various offices which have been held to vacate seats, may be collected from the several General Journal Indexes, tit. " Elections 3" and from Rogers on Elections, p. 59. » "2 Hats. 45 71. =" 22 June 1742. ■* 2 Com. J. 201. * See letter of Mr. Goulburn to Viscount Chelsea, Pari. Paper 1842 (544). • 82 Com. J. 28. ^ 82 Com. J. 108. CONTROVERTED ELECTIONS. 341 At one time it was doubted whether a candidate claim- I'ltitioning ing' a seat in Parliament by petition, was eligible for eligible, another place before the determination of his claim ; but it was resolved, on the 16th April 1728, "that a person petitioning, and thereby claiming a seat for one place, is capable of being elected and returned, pending such peti- tion."' In case the petitioner should, after his election, establish his claim to the disputed seat, he would have to make his election for which he would serve, in the same manner as if he had been returned for both places at a general election. The next occasion for issuing new writs is to give effect i"""'''' of contro- vGrtcd gIcc" to the determination of an election committee ; and this tions. leads to the examination of the mode by which contro- verted elections are tried and determined by the House of Commons, according to law. Before the year 1770 controverted elections were tried Formerly by "" T ■ /^ votes of tbe and determined by the whole House of Commons, as mere house, party questions, upon which the strength of contending factions might be tested. Thus in 1741 Sir Robert Wal- pole, after repeated attacks upon his government, resigned at last, after an adverse vote upon the Chippenham elec- tion petition. " Instead of trusting to the merits of their respective causes," Greuvillc Act. said Mr. Greuville, in proposing the measure which lias since borne his name, " the principal dependence of both parties is their private interest among us ; and it is scandalously notorious that we are as earnestly canvassed to attend in favour of the opposite sides as if we were wholly self-elective, and not bound to act by the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is well known that in every con- tested election, many members of this house, who are ultiuuitely to judge in a kind of judicial capacity between the competitors, enlist themselves as parties in the contention, and take upon themselves the partial management of the very business upon which they should determine with the strictest impartiality." In order to prevent so notorious a perversion of justice^ • 21 Com. J. 130. z 3 342 CONTROVERTED ELECTIONS. tlie house consented to submit the exercise of its privilege to a tribunal constituted by law ; which, though composed of its own members, should be appointed so as to secure impartiality, and the administration of justice according to the laws of the land, and under the sanction of oaths. The object was praiseworthy, but the means adopted, compromised the privileges, and fettered the discretion of the commons ; enacted many things by law, which would have been equally effectual, if directed by the authority of the house ; and failed in securing that justice and im- partiality which had been the price of these sacrifices. I'rinciiilc of The principle of the Grenville Act, and of others which ballot. 1 1-^ • . were passed at different tmies smce 1770, was to select committees for the trial of election petitions by lot. By the last of these,* thirty-three names were balloted from the members present at the time, and each of the parties to the election was entitled to strike off eleven names, and thus reduce the number of the committee to eleven. Whichever party attended on the day appointed for a ballot in the greatest force, was likely to have a pre- ponderance in the committee; and the expedient of chance did not therefore operate as a sufficient check to party spirit in the appointment of election committees. Par- Superseded. ti;ility and incompetence were very generally complained of in the constitution of committees appointed in this man- ner; and in 1839 an Act was passed establishing a new system, upon different princij)les, increasing the responsi- bility of individual members, and leaving but little to the operation of chance. This principle has since been maintained, but the Act of IbSD was repealed in 1841 by a temporary Act,"^ which has since been continued from year to year, and under which the proceedings on the trial of controverted elec- tions are now conducted. Without entering minutely into every detail, which will be best explained by the Act ' 9 Cii o. 4, c. l-i. 3 4 & .0 Vict. c. 58. CONTROVERTED ELECTIONS. 343 itself, or by general treatises upon the law of elections, a distinct view may be given of the resolutions, rules, and forms of the house, and of the provisions of the law. At the commencement of each session the house order, Petitions, wiien to be presented. " That all persons who will question any returns of members to serve in Parliament, for any county, city, borough, or place in the United Kingdom, do question the same witliin 1-i days'next, and so within 14 days next alter any new return sliall be brought in." " That all ])ersons who shall question any return of members to serve in tlie present Parliament, upon any allegation of bribery and corruption, and who shall in their petition specifically allege any jiayment of money or other reward to have been made by any member, or on his account, or with his privity, since the time of such election, in pursuance or in furtherance of such bribery or corruption, may question the same at any time within 28 days after the date of such payment ; or if this house be not sitting at the expiration of the said 28 days, then witliin 14 days after the day when the house shall next meet." In regard to members whose seats may be affected by petitions, the following order is made, which divides itself into three parts, viz. — " 1. That all members who are returned for two or more places in any part of the United Kingdom do make their election for whicli of the places they will serve, within one week from and after the expiration of the 14 days before limited for presenting petitions, provided there be no question upon the return for that place ; 2. And if anything shall come in question touching the return or election of any member, he is to withdraw during the time the matter is in debate; and, 3. That all members returned upon double returns do withdraw till their returns are deter- mined." 1. The first part of the order regulates the manner of Members re- choosing for which place a member will sit, when he has pfaces. ""^ been returned for more than one. When the time limited for presenting petitions against his return has expired, and no petition has been presented, he is required to make his election within a week, in order that his constituents may no lonit till all meet. Committees reduced in number: when dissolved. apply or report to the house, they may adjourn to the day appointed for the next meeting of the house. No member of an election committee may absent him- self without leave obtained from the house, or an excuse allowed by the house at its next sitting. If the excuse offered be on account of sickness, it must be verified upon the oath of his medical attendant ; and if any other special cause be assigned, it must also be verified upon oath. Whenever a member has leave to absent himself, or his ex- cuse is allowed, he is discharged from further attendance, and is not entitled to sit and vote again in the committee. If, on the meeting of the committee, all the members who are not excused should not be present, the committee cannot proceed to anv business, but must wait for an hour; and if within that time the whole number have not arrived, the committee must adjourn, and the chairman is required to report the cause of the adjournment to the house. A member absenting himself without leave or excuse is di- rected to attend the house at its next sitting; and unless he can show by facts, verified upon oath, that his attend- ance had been prevented by accident or sudden necessity, he will be ordered into custody, or otherwise punished or censured at the discretion of the house. In case the number of members able to attend an elec- tion committee should be reduced to less than six, and should continue so reduced for three sitting days, the com- mittee will be dissolved, their proceedings become void, and another committee will be appointed. But when a committee have sat for 14 days, they may proceed to busi- ness with five members; and when they have sat for 21 days, or have issued a commission to take evidence in Ireland,' they may continue to transact business with four members only; and if all the parties consent, the com- mittee may proceed with any number of members, without reference to the time during which they have sat. ' See infra, p. 370. WITNESSES EXAMINED. 3G3 Every election committee is attended by a short-hand Committee* writer, appointed by the clerk of the house, and sworn by shl^r^i^au/ the chairman to take down the evidence faithfully and ^'■'t^TH. truly, and to write it down in words at length, for the use of the committee. It will have been remarked, that all the election pro- Witnegses ceedings in the house are distinguished by the administra- oath, tion of oaths ; and the evidence taken before election com- mittees is marked by the same solemnity. Every election committee has power to send for persons, papers, and records ; and the witnesses are examined upon oath, which the clerk of the committee is empowered to administer. Parties who have subscribed the petition may be exa- mined, unless they appear to be interested witnesses. If any persons summoned by the committee, or by a speaker's warrant, disobey the summons ; or if witnesses give false evidence, prevaricate, or misbehave themselves before the conmiittee in giving, or refusing to give evidence, the chairman, by direction of the committee, reports the cir- cumstance to the house. ^ Thus far the practice, in dealing with ill-conducted witnesses, is the same as in other com- mittees, where censure and punishment are reserved for the house to inflict ; but in election committees, the chairman is, in the meantime, authorized to commit a witness to the custody of the serjeant-at-anns, by a warrant under his hand, for any time not exceeding 24 hours, if the house be sitting; and if not, then for a time not exceeding 24 hours after the hour to which the house is adjourned. By this power, the escape of a witness may be prevented, and he is kept in safe custody until the house can censure or punish him for his offence. A further difference exists, in the case of elections, in False evidence the mode of punishing false testimony given before the ° *" ^^'^'^' house or committees. In ordinary inquiries, as it has been ' See the several proceedings in regard to witnesses before an election committee, in the case of the Ipswich election in 1835. 3(34 EVIDENCE. shown elsewhere, the house can only regard false evidence as a breach of privilege and contempt ; ^ but the Election Act, which confers upon it the power of administering oaths, attaches to false evidence the penalties of wilful and corrupt perjury. The power of the house to punish is not, however, superseded by the Act ; and it may, there- fore, imprison witnesses, as in any other case, upon its own authority ; and if it appear that a conviction at law can also be obtained, it is competent for the house to direct the attorney-general to prosecute the offending witnesses for perjury.'^ Lists of objec- As a general rule, the committee may admit any evi- dence which is offered, and which appears to them to be legally admissible ; but in regard to the validity of votes, they are precluded by the Act from taking evidence upon any vote not previously contained in the lists of voters objected to, or upon any head of objection that had not been specified in the lists. Majority de- Every question is determined in the committee by a majority of voices; and whenever the voices are equal, the chairman has a second or casting vote. Here the prac- tice differs from that of other committees. The chainiian does not wait to give his vote until the numbers are equal, but votes, in the first instance, like any other member ; and if the numbers, including his own vote, be equal, he decides the question by a second vote, in his capacity of chairman. Every member is obliged to vote upon each question, whenever a division arises; and the names of the members who vote in the affirmative or negative upon every question, are entered upon the minutes, and after- wards reported to the house. DdiiKnite with Whenever the committee are about to dehberate upon clo.-fitl doors. ,- • .1 f ,1 • T any question, m the course of then- proceedmgs, as soon as they have heard the evidence and counsel on both sides, they may order the room to be cleared ; and this practice ' Sue xtijtra, p. -ia.j. •■' 75 Com. J. 3;32. PROCEEDINGS OF ELECTION COMMITTEES. 305 is always observed, except where minor points arise, which may be settled without debate or division, by a brief con- ference between the members. It is a general rule that all witnesses who are to be Witnesses examined before a committee are excluded from the room while other witnesses are under examination, and if, when called on, they prove to have been present, their evidence is not admitted. Agents and barristers are exceptions to this rule ; and in special cases others have been allowed to be examined although they have been present.^ In order to give due notice of this rule to all the parties con- cerned, a paper is affixed to the door of every committee room, stating that " no witnesses are admitted ;" but a more distinct explanation of the consequences might ad- vantageously be given in a printed form, and in more conspicuous characters. The counsel who opens a case before a committee, should Counsel, include in his statement the leading matters intended to be proved ; or he may be afterwards precluded from ad- ducing evidence in support of charges not previously alluded to. This rule is enforced with more or less strictness ac- cording to the view taken by the committee of the suffi- ciency of the general statement to embrace particular facts. The ordinary rules are observed in regard to the speeches and replies of counsel, and the examination, cross-examina- tion, and re-examination of witnesses ; and the committee determine every disputed point. When the case, on behalf of all parties, is concluded, Deci>ion of the room is cleared and the committee deliberate upon their final determination of the merits of the election. They are required to decide distinctly, — 1. Whether the petitioners or the sitting members, or either of them, be duly returned or elected ; or, 2. Whether the election be void; or, 3. Whether a new writ ought to issue. Their determination upon these points is final between the parties : ' 2 Rogers, 98. Barron and Austin, 58G. 366 SPECIAL REPORTf?. and the house, on being informed of it, carries it into execution. Sjucial reports. If the committee come to any resolution other than this determination, they may report it to the house; but in that case it is not final; and the house may confirm or disagree with their resolution, or make whatever orders it thinks fit. The most frequent subject of a special report is the bribery proved to have been committed at the election. And here may be exemplified the distinction between those parts of the report which are final and those which are treated only as matters of opinion. An act of bribery disqualifies a man from sitting in the House of Commons during the whole Parliament, and if proved before a committee, is sufficient to enable them to deter- mine that his election was void. That determination alone is reported to the house in the first instance, and is final ; but the committee add to their report a special resolution concerning the bribery. Special reports It was formerly at the discretion of a committee to At'fiicy. ' report acts of bribery to the house, but a more distinct and stringent law has altered both the mode of inquiry and the character of the report, when bribery is alleged to have influenced an election. The obvious course in prov- ing bribery not committed personally by the sitting mem- ber or candidate, is to establish the agency of parties who are alleged to have committed bribery on his behalf; and accordingly, until the agency was proved, it was usual for the committee to refuse to enter into general evidence of bribery ; because if bribery were proved against persons not authorized by the candidate or sitting member to com- niit it, the merits of the election would not be affected. On this account notorious acts of bribery often failed in being proved, and of course the committee could not make a sp(icial report upon matters not established by the evi- dence. Ill order to expose acts of bribery more effectually, this practice has been materially altered. Act. PROOF OF AGENCY, 307 By the Act 4 & 5 Vict. c. 57, it is enacted, Bribery. " That whenever a charge of bribery sliall have been brought Proofofagency. before any election committee of the House of Commons, the com- mittee shall receive evidence upon the whole matter whereon it is alleged that bribery has been committed ; neither shall it be necessary to prove agency, in the first instance, before giving evidence of those facts whereby the charge of bribery is to be sustained : and the committee, in their report, shall separately and distinctly report upon the fact or facts of bribery which shall have been proved before them, and also whether or not it shall have been proved that such bribery was committed with the knowledge and consent of any sitting member or candidate at the election." By this mode of inquiry, the discovery of acts of bri- Results of t:,i» bery is, undoubtedly, much faclHtated; and in the course of tlie evidence, proofs or imphcations of agency may be ehcited, which miglit not have arisen if the evidence had been confined, in the first instance, to tlie strict proof of agency. Since the passing of this Act the seats of several members have been avoided by the acts of their agents ; and connnittees have reported that sitting members have been, by or through their agents, guilty of bribery; and, at the same time, tliat there was no evidence to show tluit any acts of bribery were committed with their knowled<>e and consent.' Such determinations have been founded upon the principle that, so far as his seat in Parliament is concerned, a proof of general agency for the management of an election, is sufficient to make the principal civilly responsible for every unauthorized and illegal act com- mitted by his agent, by which his own return had been secured ; but as this is not explained on the face of the reports, they appear to involve a contradiction, and to be at variance with the terms of the Bribery Act.^ • 97 Com. J. 260. 279. 551. Barron and Austin, 401. 453. 584. G09. 2 Tlie words of the Act, 49 Geo, 3, c. 118, are, " and every such person so returned and so having given, or so having promised to give, or hiowlny of (Hid consenting to such gifts or promises, upon any such engagement con- tract, or agreement, shall be disabled and incapacitated to serve in that Parliament, for that county, &c., and deemed and taken to be no mcml)er of Parliament, and as if he had never been returned or elected." 3G8 PROOF OF AGENCY. M'rits sus- peiidcci. Election com- mittees re- assembled to inquire into bribery. Charfres of brihM-ry aban- doned. Appointment of coniniittees in other cases. Committee not dissolved by prorogation. When general and notorious bribery and corruption have been proved to prevail in parliamentary boroughs, the house have frequently suspended the issue of wiits, with a view to further inquiry, and the ultimate disfranchise- ment of the corrupt constituency, by Act of Parliament.* And by the .5 & 6 Vict. c. 102, if an election committee recommend further inquiry regarding bribery, the speaker is required to nominate an agent to prosecute the investi- gation ; and the committee are to re-assemble within 14 days, and to inquire and report specially concerning the bribery, and the parties implicated. The committee, when re-assembled, possess all their original powers of inquiry. And by the same Act if charges of bribery be withdrawn, the committee are empowered to inquire into and report the causes of their abandonment. Special powers are also given to the house, in certain cases, to appoint election committees upon petitions complaining of bribery ; and when election petitions have been withdrawn. But no such committee, whether re-assembled or appointed to investi- gate the matter of a petition presented after the time limited for receiving election petitions, can affect the seat of any member, or the issue or restraining the issue of any writ. Unhke the other proceedings of Parliament, the in- quiries of election committees are not determined by a pro- rogation. When an election petition is presented to the house before a prorogation, and a committee has not been appointed to try it, the general committee of elections in the ensuing session, within two days of their first meeting, appoint a day for choosing a committee, if, in the mean- time, the sureties have been reported unobjectionable. And when Parliament is prorogued after the appointment of an election committee, and before they have reported their determination, the committee are not dissolved, but only adjourn until 12 o'clock on the day following the ' Liverpool, 80 Com. J. 458. 493. Wiiiwick, 88 Com. J. Oil. 89 il). 9, .J79. Carrickfertriis, 88 Com. J. 531. .'At'.). Hertford, 88 Com. J. 578. 049 ; Stafford, 90 lb. 202, 6cc. Sudbury, 97 ib. 188. 407,&c. Ips^wicli, ib. 221.554. COSTS. 30!) meeting of Parliament for despatch of business. In the ensuing session they resume their sittings, as if there had been no prorogation: their former proceedings are valid, and they continue subject to the ordinary rules of election committees. Whenever an election committee report that a petition Costs, wiifn appeared to them frivolous or vexatious, the party or ])ar- petuioiurs- ties who opposed it are entitled to recover from any of the persons who signed the petition, the full costs and ex- penses incurred in the opposition. In the same manner, by parties parties opposing a petition frivolously or vexatiously, are 1/01*1^"'^ ^'' '" liable to the payment of costs to the petitioners. When no party appears to defend an election or return, and the or not aiiiicur- committee report it to have been vexatious or corrupt, °' the sitting member (unless he has given notice of his in- tention not to defend it), or the parties admitted to defend the return (if any), are liable to the costs incurred in pro- secuting the petition. When any ground of objection is stated to a voter, in Costs upon fri- the list of votes intended to be objected to, and the objec- tions, tion is reported by the committee to have been frivolous or vexatious, the opposite party may recover costs from the party by whom, or on whose behalf, the objection was made. And if either party should make, before an elec- and unfounded tion committee, any specific allegation with regard to the '^ *^^'^ "" conduct of the other party or his agents, and should either bring no evidence in support of it, or such evidence that the committee consider the allegation to have been made without any reasonable or probable ground, the committee may order the party who made it to pay all the costs and expenses incurred by the other jmrty, by reason of the unfounded allegation. All costs and expenses, whether incurred in prosecuting. Costs, iiow . . . ascertained, or opposmg, or preparmg to oppose, election petitions, or payable to witnesses summoned before committees, are taxed in the following manner: — Within three nionllis B B 370 COMMISSION TO EXAMINE after the conclusion of the proceedings, apphcation may be made to the speaker to ascertain the costs and expenses incurred ; and he directs them to be taxed by the examiner of recognizances. The examiner taxes them, and reports to the speaker the amount due, the names of the parties Hable to pay and entitled to receive them ; and the speaker, on being- applied to, delivers to the parties a certificate of the costs, which is conclusive evidence of the title of the parties to recover their claims. Recoverj- of The recovery of the costs, if not paid on demand, is by an action of debt ; in which a declaration, together with the speaker's certificate and an affidavit of demand, en- titles the plaintiflf to sign judgment as for want of plea by nil dicit, and take out execution for the sum and for the costs of the action. The plaintiff may sue any one of the parties who are jointly liable ; and he, in his turn, may sue the others for their proportions. Kecoguizance?, The recognizances may be estreated if, 1 . The petitioners when estreated. in ■ r i r neglect or re ruse to pay a witness tor seven days aiter any sum has been certified by the speaker to be due to him ; or, 2. If, for six months after the speaker's certificate, they neglect or refuse to pay any party opposing the peti- tion the sum certified to be due to him : but the neglect or refiisal to pay must be proved to the satisfaction of the speaker within one year after this certificate is granted, by affidavit before a master in chancery. In case of such default, the speaker certifies the recognizance into the Court of Exchequer, which has the same effect as if the recognizance were estreated from a court of law. Commission to In ordcr to avoid the inconvenience and expense of ne»»«-8 in Ire- examining witnesses from Ireland, a committee, appointed '"^' for the trial of a petition complaining of an election in Ireland, are empowered, on the application of any of the parties, to appoint a commission.* This application may be made at any time during the proceedings, but notice ' 42 Geo. 3, c 10(1. 47 Geo. .^, sefs. 1, c. 14, s. 5. 00 Geo. 3, c. 7. WITNESSES IN IRELAND. 371 must be served on the opposite party as soon as the peti- tion is presented. If the committee do not think it necessary to appoint a commission, they proceed as in other cases. At the commencement of every session, the clerk of the ronimissiomrs, Crown is required to send to the speaker a list of barristers " '^'*""' of six years' standing, who have consented to act^s com- missioners, and from this list the commissioners are selected in the following manner. On the next sitting of the com- mittee, after an order has been made for the appointment of commissioners, each party delivers tlie names of three of the qualified barristers ; and from the list of all the pro- posed names, each party, beginning with the petitioners, strikes off the name of one barrister, until the number has been reduced to two. The 47 Geo. 3, stat. 1, c. 14, s. 2, declares that no per- son shall be a commissioner who has voted at the election in question, or who has, or claims to have, any right to vote, without the consent of the parties ; and (s. 3) that any objection to the appointment of a commissioner shall be made at the time of his appointment, or otherwise shall be of no effect. Immediately after the appointment of these two com- rimirman missioners, a third is appointed to act as chairman. If all ''Pl*o'"t^^J- the parties agree in the appointment of one of the barris- ters on the list, he is appointed the chairman ; but if they cannot agree, the committee nominate as chairman a bar- rister on the list who has not been struck off by either of the parties.* If all the parties agree to nominate three barristers and when parties deliver the names to the chairman, signed by the parties, they are appointed commissioners, without the above for- malities, and they choose one of themselves to be their chairman. But where there are more than two parties upon dis- \Mipre more tlian two piir- tinct interests, and there appears to be no collusion tiua. ' 42 fipo. n, c. 100,9. 8,9. B U 2 372 COMMISSION TO EXAMINE "Warrant to commissioners. Committee report and adjourn. Powers and duties of com- missioners. Proceedings transmitted. Eviilence ob- jected to by commissioners tran-mitted separately. between them, none of the parties are peraiitted to deliver a Hst, but the committee appoint the commissioners and nominate which of the three shall act as chairman. When the commissioners are appointed, the chairman of the committee issues a warrant commanding them to repair, on a certain day, to the place to which the petition relates; and addresses to their chairman a copy of the petition, and of the lists and disputed votes, and state- ments of the several parties, together with the order of the committee, specially assigning and limiting the facts and allegations concerning which they are to examine evi- dence, and all documents which the committee may think proper to refer. The committee report these proceedings to the house, and ask permission to adjourn until they are re-assembled by the speaker's warrant. They are also to state that they have gone through all the other parts of the petition, except those which have been specially referred to the commissioners. The commissioners have the same powers as an election committee to send for persons, papers, and records, and to examine witnesses upon oath ; but they may not suffer counsel to plead before them. Within 10 days after the evidence is closed, or with all convenient despatch, assign- ing reasons for the delay, the commissioners are required to cause two copies of the minutes of proceedings and evidence to be made out, and to transmit one to the clerk of the Crown in Ireland, and the other to the speaker, who communicates it to the house.' If the commissioners object to any evidence offered before them, they are to state in writing the ' grounds of their objection, and the party tendering the evidence may require the commissioners to examine it. Evidence taken in this manner is transmitted separately, with the other proceedings, in the nature of a bill of exceptions to evi- ' CO Geo. 3, c. 7. WITNESSES IN IRELAND. 37;} dence; and if the committee should report that its produc- tion was frivolous or vexatious, the party who produced it is liable to costs. Within two days after the receipt of the copy of the Committee proceedings, the speaker is required to insert in the Lon- '■^■'^^^*^"^''^<^'^- don Gazette a warrant directing the committee to meet again within a month; or if Parliament should not be sitting, within a month after the commencement of the next session, or of the meeting of the house after an adjournment.^ The committee when re-assembled may receive no further Use of evidence evidence respecting any matter already examined by the land, commissioners, but determine from the written minutes. They may hear counsel, however, as to the effect of the evidence; and if the evidence appear incomplete, they may, at any time before their report, direct a warrant for re- assembling the commissioners. By the 47 Geo. 3, c. 1 4, s. 5, the committee are also empowered to send for any papers produced before the commissioners, without re-assembling them; but they may not enter into any point that was not in issue before the commissioners. If the commissioners have found it impracticable to Causes of delay transmit the evidence taken before them, within 10 days, i^ transmitting •^ ' evidence, and have given their reasons for the delay, as required by the 60 Geo. 3, the committee are directed to investigate the reasons, and to report their opinion respecting them to the house. ' 42 Geo. 3, c. 26. GO Geo. 3, c. 7. B B 3 374 IMPEACHMENT. CHAPTER XXIII. IMPEACHMENT BY THE COMMONS; GROUNDS OF ACCUSA- TION ; FORM OF THE CHARGE ; ARTICLES OF IMPEACH- MENT J THE TRIAL AND JUDGMENT; PROCEEDINGS NOT CONCLUDED BY PROROGATION OR DISSOLUTION ; PARDON NOT PLEADABLE. TRIAL OF PEERS. BILLS OF ATTAINDER AND OF PAINS AND PENALTIES. Parity of im- IMPEACHMENT bv the commons, foF high crimes and |K-aclimpnt8 in , ■' ' o luoderii times, misdemeanors beyond the reach of the law, or which no other authority in the state will prosecute, is a safeguard of public liberty well worthy of a free country, and of so noble an institution as a free Parliament. But, happily, in modern times, this extraordinary judicature is rarely called into activity.^ The times in which its exercise was needed were those in which the people were jealous of the Crown ; when the Parliament had less control over prero- gative ; when courts of justice were impure ; and when, instead of vindicating the law, the Crown and its officers resisted its execution, and screened political offenders from justice. But the limitations of prerogative — the immediate responsibility of the ministers of the Crown to Parliament — the vigilance and activity of that body in scrutinizing the actions of public men —the settled administration of the law, and the direct influence of Parliament over courts of justice — which are, at the same time, independent of the Crown* — have prevented the consummation of those crimes ' lor the nuinher of iiiipeachineiits at difrcrent times, soe supra, p.:39. * By the Act 13 Will. 3, c. 2, s. 3, the commissions of judges are made quamdiu se bene ges.icrint; their salaries are ascertained and establislied ; but it may be lawful to remove them upon the address of both houses of Parliament. ' GROUNDS OF IMPEACHMENT. 375 which impeachments were designed to punisli. The Crown is entrusted by the constitution with the prosecution of all offences; there are few which the law cannot punish; and if the executive officers of the Crown be negligent or cor- rupt, they are directly amenable to pubhc opinion, and to the censure of Parliament. From these causes, impeachments are reserved for extra- Groiin 60 Com. J. 482, 483. » 20 Lords' J. 297. 18 Com. J. 391. » 61 lb. 164. * 20 Lords' J. 112. 27 lb. 19. * 42 Com. J. 793. * 42 Com. J. 796. ' 37 Lords' J. 724. 8 61 Com. J. 169. » 61 lb. 224. '" 20 Geo. 2, c. 30. 45 Lords' J. 439, " 45 Lords' J. 519. 378 COMMONS DEMAND JUDGMENT. Lords deter- mine if the accused be guilty. Commons de- mand judg- ment. originally laid to his charge, and the house resolved that certain words ought not to have been spoken by Mr. Burke. ^ When the case has been completed by the managers, they are answered by the counsel for the accused, by whom witnesses are also examined, if neces- sary ; and, in conclusion, the managers have a right of reply. When the case is thus concluded, the lords proceed to determine whether the accused be guilty of the crimes with which he has been charged. The lord high steward puts to each peer, beginning with the junior baron, the question upon the first article, whether the accused be guilty of the crimes charged therein. The peers in suc- cession rise in their places when the question is put, and standing uncovered, and laying their right hands upon their breasts, answer, " guilty," or " not guilty," as the case may be, "upon my honour." Each article is pro- ceeded with separately in the same manner, the lord high steward giving his own opinion the last.* The numbers are then cast up, and being ascertained, are declared by the lord high steward to the lords, and the accused is acquainted with the result.^ If the accused be declared not guilty, the impeachment is dismissed ; but if guilty, it is for the commons, in the first place, to demand judgment of the lords against him ; without which they would protest against any judgment being pronounced. On the 17th March 1715, the com- mons resolved, nein. con., in the impeachment of the Earl of Winton, " That the managers for the commons be empowered, in case the House of Lords shall proceed to judgment before the same is demanded by the commons, to insist upon it, that it is not jjarlia- mentary for their lordships to give judgment, until the same be first demanded by this house." ^ ' 44 Com. J. 298. 320. ^ Printed Trial of Lord Melville, p. 402. ' Trial of Lord Melville, p. 413. " 18 Com. J. 405. EFFECT OF PROROGATION. 370 And a similar resolution was agreed to on the impeach- ment of Lord Lovat, in 1746.* When judgment is to be given, the lords send a mes- The judgment, sage to acquaint the commons that their lordships are ready to proceed further upon the impeachment ; the ma- nagers attend ; and the accused, being called to, the bar, is then permitted to offer matters in arrest of judgment.'^ Judgment is afterwards demanded by the speaker, in the name of the commons, and pronounced by the lord high steward, the lord chancellor, or speaker of the House of Lords.^ The necessity of demanding judgment gives to the com- mons the power of pardoning the accused, after he has been found guilty by the lords ; and in this manner an attempt was made, in 1725, to save the Earl of Maccles- field from the consequences of an impeachment, after he had been found guilty by the unanimous judgment of the House of Lords.^ So important is an impeachment by the commons, that Proepcdinss . . ... not concluded not only does it contmue from session to session, in spite by prorogation of prorogations, by which all other parliamentary pro- ^'^ '**" "''°"' ceedino's are determined ; but it sur^nves even a dissolu- tion, by which the very existence of a Parliament is concluded.^ But as the preliminary proceedings of the House of Commons would require to be revived in another session, Acts were passed in 1786 and in 1805, to provide that the proceedings depending in the House of Commons upon the articles of charge against Warren Hastings and Lord Melville, should not be discontinued by any proro- gation or dissolution of Parliament.^ In the case of the Earl of Danby, in 1679, the com- rnrdon not pleadable. » 25 Com. J. 320. » 22 Lords' J. 5.^>G. 27 lb. 78. 3 22 Lords' J. 660. ♦ 22 Lords' J. 554, 655. 20 Com. J. 541 (27 May 1725). G Iloweirs St. Tr. 702. * 39 Lords' J. 101, and see Report of Precedents, ib. 125. 4GConi. J. 136. « 26 Geo. 3, c. 96. 45 Geo. 3, c. 1 25. 380 TRIAL OF PEERS. mons protested against a royal pardon being pleaded in bar of an impeachment, by which an offender could be screened from the inquiry and justice of Parliament by the intervention of prerogative. Directly after the Revolution, the commons asserted the same principle, and within a few years it was declared by the Act of Settlement,^ " That no pardon under the great seal of England shall be plead- able to an impeachment by the commons in Parliament." But may be But, althouo-h the royal prerogative of pardon is not given after- ° j i o r wards. suffered to obstruct the course of justice, and to interfere with the exercise of parliamentary judicature; yet the prerogative itself is unimpaired in regard to all convic- tions whatever ; and therefore, after the judgment of the lords has been pronounced, the Crown may reprieve or pardon the offender. This right was exercised in the case of three of the Scottish lords, who had been concerned in the rebellion of 1715, and who were reprieved by the Crown, and at length received the royal pardon. Concerning the trial of peers, very few w'ords will be necessary. Crimes for At common law, the only crimes for which a peer is are'trie^[by ^^ ^^ ^^'i^^ ^Y ^^i^ peers, are treason, felony, misprision of tiieir peers. treason, and misprision of felony ; and the statutes which give such trial have reference to the same offences, either at common law or created by statute. For misdemeanors, and in cases of proemunire, it has been held that peers are to be tried in the same way as commoners, by a jury.* During the sitting of Parliament, they are tried by the House of Peers ; or, more properly, before the court of our lady the Queen in Parliament,^ presided over by the lord high steward appointed by commission under the great seal;' but at other times, they may be tried before the court of the lord high steward.* ' 12 6cl3 WiU. 3, c. 2. 2 Rex v. Lord Vaux, 1 Bulgtr. 197. '•' Foster's Crown Law, 141. * See published Trial of the Earl of Cardigan. ^ Sec 4 Bl. Comm. 260. sumiiioiKMl. TRIAL OF PEERS. 381 On the 14th January 1G89, it was resolved by the lords, Trial of peers . . . . *; ' to he ill full " That it is the ancient right of the peers of England to Pariimnent. be tryed only in full Parliament for any capital offences:" ^ but on the 17th, it was declared that this order should not Dwiaration " be understood or construed to extend to any appeal of appeals' llf murther or other felonye, to be brought against any peer '""'■""^^'■' ^^■ or peers." '^ By the Act 7 Will. 3, c. 3, it is declared, " That upon All peers to be the trial of any peer or peeress for high treason or mispri- sion, all the peers who have a right to sit and vote in Par- liament, shall be duly summoned 20 days at least before every such trial ; and that every peer so summoned and appearing shall vote in the trial." The words of this enactment would appear to exclude the bishops from the right of being summoned ; for though they were anciently called peers, it is affirmed, by a standing order of the lords, "That bishops are only lords of Parliament, but not peers, for they are not of tryal by nobility;"^ and by the canons of the church^ they would be restrained from voting in cases of blood, as required by the Act. But by the Con- stitutions of Clarendon,^ it was declared, " That bishops, like other peers (or barons), ought to take part in trials in the king's court or council with the peers, until it comes to a question of the loss of life or limb ;" and in the im- peachment of the Earl of Danby, it was expressly hiid down by the lords, " That the lords spiritual have a right to stay and sit in court in capital cases, till the court pro- ceed to the vote of guilty or not guilty."*' And, although the Act of Will. 3 exj)ressly excepts impeachments and other proceedings in Parliament from its provisions, in practice the bishops have always been summoned, and ' Lords' S. 0. No. 52. = lb. No. 53. » lb. No. 44. '' Gibson, Codex, 1'24, 125. These canons, however, would scarcely ap- pear to be binding, if they were not constantly observed. 5 11 Hen. 2, A. D. 11G4. 1 Wilkins, Concilia, 435. 6 13 Lords' J. 571. 382 DILLS OF ATTAINDER. have attended such trials in ParUament; but are never summoned to the court of the lord high steward.^ Spiritual lords The bishops, therefore, are present during the trial of >\u ^d^v. peers in Parliament, but ask leave to be absent from the judgment; which being agreed to, they \\dthdraw, in com- pliance with the canons of the Church, but enter a pro- testation, " saving: to themselves and their successors all such rights in judicature as they have by law, and by right ought to have."* Bills of attain- The proceedings of Parliament in passing bills of attain- der and of pains 1 1 • 1 r- 1 and pt'ualties. der, and of pams and penalties, do not vary trom those adopted in regard to other bills. They may be introduced into either house; they pass through the same stages; and when agreed to by both houses, they receive the royal assent in the usual form. But the parties who are sub- jected to these proceedings are admitted to defend them- selves by counsel and witnesses before both houses ; and the solemnity of the proceedings would cause measures to be taken to enforce the attendance of members upon their service in Parliament.^ Tiie highest In evil times, this summary power of Parliament to form of parlia- i j i i nientary judi- punish crimmals by statute has been perverted and abused; and in the best of times it should be regarded with jealousy ; but whenever a fitting occasion arises for its exercise, it is, undoubtedly, the highest form of parliamentary judica- ture. In impeachments the commons are but accusers, and advocates; while the lords alone are judges of the crime. On the other hand, in passing bills, the commons commit themselves by no accusation, nor are their powers directed against the offender ; but they are judges of equal juris- diction and with the same responsibility as the lords; and the accused can only be condemned by the imanimous judgment of the Crown, the lords, and the commons. ' FoHtei-'s Crown Law, 247. 73 Lords' J. 10. '■' 27 Lords' J. 70. 73 Lords' J. 43. ^ See ^3 Lords' J. 350. 304. cat u re. PRIVATE BILLS. 363 BOOK III. THE MANNER OF PASSING PRIVATE BILLS. CHAPTER XXIV. DISTINCTIVE CHARACTER OF PRIVATE BILLS: PRELIMINARY VIEW OF THE PROCEEDINGS OF PARLIAMENT IN PASSING THEM. Every bill for the particular interest or benefit of any Definition of person or persons, is treated, in Parliament, as a private bill. Whether it be for the interest of an individual, a public company or corporation, a parish, a city, a county, or other locality ;^ it is equally distinguished from a mea- sure of national import, in which the whole community are interested. This distinction is the better defined by the solicitation of the parties themselves for bills in which their interests are concerned ; as, by the standing orders of both houses, all private bills are required to be brought in upon petition;* and the payment of fees is an in- dispensable condition to their progress. In treating of petitions, the origin of private bills has Orijrin of pri- been already glanced at;^ but it maybe referred to again, in illustration of the distinctive character of such bills, and of the proceedings of Parliament in passing them. The separation of legislative and judicial functions is a refine- ment in the principles of political governnunt and juris- prudence, which can only be the result of civilization. In ' See i»frn, p. 408, and 2 Hats. 281-288. A bill for the benefit of tlirco counties has been lield to be a private biU. '^ But Bee exceptions, infra, p. 402. '•' Supra, p. 3()2. 384 PROCEEDINGS ON PRIVATE BILLS. the early constitution of Parliament these functions were confounded ; and special laws for the benefit of private parties, and judicial decrees for the redress of private wrongs, being founded alike upon petitions, were not dis- tinguished in principle or in form. When petitions sought obviously for remedies which the common law afforded, the parties were referred to the ordinary tribunals ; but in other cases the Parliament exercised a remedial jurisdic- tion. Other remedies, of a more judicial character, and founded upon more settled principles, were at length supplied by the courts of equity ; and from the reign of Henry 4, the petitions addressed to Parliament prayed, more distinctly, for peculiar powers beside the general law of the land, and for the special benefit of the petitioners. Whenever these were granted, the orders of Parliament, in whatever form they may have been expressed, were in the nature of private acts ; and after the mode of legislating by bill and statute had grown up in the reign of Henry 6,^ these special enactments were embodied in the form of distinct statutes.* Peculiarity of Passing now to existing practice, the proceedings of private biUs. Parliament in passing private bills are still marked by much peculiarity. A bill for the particular benefit of cer- tain persons may be injurious to others ; and to discri- minate between the conflicting interests of different parties, involves the exercise of judicial inquiry and determination. This circumstance causes important distinctions in the mode of passing public and private bills ; and in the prin- ciples by which Parliament is guided. Lrfrislative In passing public bills. Parliament acts strictly in its functions of V . ... ^ I'ariiamcnt in legislative Capacity ; it originates the measures which ap- pa^sing pu ; ic ^^^^ ^^^ ^^^ public good J it couducts inquiries, when necessary, for its own information, and enacts laws ac- cording to its own wisdom and judgment. The forms in ' Sec sv]/ra, p. 270. ' See Statutes of flie Riiilm, by Record Commission, 9 Hen. 6. I'RIVATE JJIM.S. 385 which its dehberations are conducted are estabhshcd for its own convenience ; and all its proceedings are indepen- dent of individual parties ; who may ])etition, indeed, and are sometimes heard by counsel; but who have no direct participation in tlie conduct of the business, nor immediate influence uj)on the judgment of Parliament. In passing private bills, the Parliament still exercises Its functions its legislative functions; but its proceedings partake also fn piissinVpr'i- of a judicial character. The persons whose private inte- '**'^"'""*- rests are to be promoted appear as suitors; while those who apprehend injury are admitted as adverse parties in the suit. All the formalities of a court of justice are main- tained ; various conditions are required to be observed, and their observance to be strictly proved ; and if the parties do not sustain the bill in its progress, by following every regulation and form prescribed, it is not forwarded by the house, in which it is pending ; and if they abandon it, and no other parties undertake its support,' the bill is lost, however sensible the house may be of its value. The ana- logy which all these circumstances bear to the proceedings of a court of justice is further supported, by the payment of fees, which is required of every party supporting or opposing- a private bill, or desiring or opposing any parti- cular provision. This union of the judicial and legislative functions is r'"'^'P'«^* ''.v not confined to the forms of procedure, but is an important ment is guided, principle in the inquiries and decision of Parliament upon the merits of private bills. As a court, it inquires and adjudicates upon the interests of private parties ; as a legis- lature, it is watchful over the interests of the public. The promoters of a bill may prove, beyond a doubt, that their own interest will be advanced by its success, and no one may complain of injury, or urge any specific objection ; ' The Manchester and Salford Improvement Bill in 18'28 was abandoned, in committee, by its original promoters; when its opponents, having succeedeil in iutrodncing certain amendments, undertook to solicit its further progress. C C 386 PRIVATE BILLS. yet, if Parliament apprehend that it will be hurtful to the community, it is rejected as if it were a public measure, or qualified by restrictive enactments, not solicited by the parties. In order to increase the vigilance of Parliament, in protecting the public interests, the chairman of the lords' committees in the one house, and the chairman of ways and means in the other, are entrusted with the peculiar care of unopposed bills; while the agency of the Board of Trade is also brought in aid of the legislature.^ Private bills j^ pointino; out this peculiarity in private bills, it must, pass through r & f J i ' ' the same however, be understood, that while they are examined and * contested out of the houses of Parliament like private suits, and are subject to notices, forms, and intervals, unusual in other bills ; yet in every separate stage, when they come before either house, they are treated precisely as if they were public bills. They are read as many times, the questions put concerning them differ in no respect whatever ; and the same rules of debate and procedure are maintained throughout. Proposed plan j^ order to explain clearly all the forms and proceedings of describing . . .... the profrress of to be obscrvcd m passmg private bdls, it is projiosed to state pnva 0. 1 3. tiiena^ as nearly as possible, in the order in which they successively arise. It will be necessary, for this purpose, to begin with the House of Commons; because, by the privileges of that house, every bill which involves any pecuniary charge or burthen on the people, by way of tax, rate, toll, fine, or forfeiture, ought to be first brought into that house.* It follows, from this rule, that by far the greater number of private bills are, from their cha- racter, necessarily passed first by the commons. Some others, also, which might originate in either house, are generally first solicited in the commons. It will be conve- nient, therefore, in the first place, to pursue this descrip- tion of bills in tiieir progress through the commons, and ' See infra, pp. 40G. 408. 414. 430. 430. 439. 2 Sec stiprn, pp. lf' ,, . , , . , . . 1 -11 /• conditions rc- to all parties who may be mterestcd m private hills ot a q„ire(i i.y b-.ti local or general character and operation, Parliament has '""*'^'*- ordered certain public and personal notices to be given of intended applications for leave to introduce such bills ; and has rendered compulsory the compliance with other preliminary conditions, which must be separately proved in either house. The standing orders of the lords uiul commons in reference to these preliminaries are now so much assimilated, that it will be most convenient to_bring them together in this chapter; by which much needless repetition will be avoided; the slight variations^whirh >\\\\ exist in the standing orders of the two houses will be c c 2 388 PRELIMINARY NOTICES. more distinctly pointed out, and the attention of parties directed to them at the proper time. Notices. The bills concerning which notices are required, have been divided into the three following classes by the stand- ing orders of both houses. Ist Class. — Burial ground, making;, maintaining, or altering. Church or chapel, building, enlarging, repairing, or maintaining. City or town, paving, lighting, watching, cleansing, or improving. Crown, church, or corporation property, or property held in trust for public or charitable purposes. Fishery, making, maintaining, or improving. Land, inclosing, draining, or improving. Market, or market-place. Local court, constituting. Market, or market-place, erecting, improving, repairing, main- taining, or regulating. Poor, maintaining, or employing. Poor rate. Stipendiary magistrate, or any public officer, payment of, if not out of county rate. 2d Class. — Making, maintaining, varying, extending, or enlarging any Aqueduct. Ferry. Reservoir. Archway. Harbour. Tunnel. Bridge. Navigation. Turnj)ike road. Canal. Pier. Waterwork. Cut. Port. Dock. Railway. 3d Class. — Continuing or amending an Act passed for any of the purposes included in this or the two preceding classes, where no furtlier work than such as was authorized by a former Act is proposed to be made. Company, incorporating or giving powers to. County rate. County or shire liall, court house. Gaol or house of correction. Letters patent, confirming, prolonging, or transferring the term of. Powers to sue and be sued, conferring. Stipendiary magistrate, or any public officer, payment of, if out of county rate. In reference to all these bills, the standing orders of both houses require, Notices, how " That notices be jjublished in three successive weeks in the and when pub- months of October and November, or either of them, immediately '" ^ ' preceding the session of Parliament in which application for the bill shall be made, in the London, Edinburgh, or Dublin Gazette, PRELIMINARY NOTICES. 389 as the case may be, and in some one and the same newspaper of the county in which the city, town, or lands to wliicli sucli hill relates shall be situate; or if there be no newspaper published therein, then in the newspaper of some county adjoining or near thereto; or if such bill do not relate to any particular city, town, or lands, in the London, Edinburgh, or Dublin Gazette only, as the case may be." The commons also order, " That all notices „ ■ . c J , . ' Jtoceipt of required to be inserted in the London, Edinburgh, or Dublin printer. Gazette, be delivered at the office of the gazette in which the insertion is required to be made, during the usual office hours, at least two clear days jjrevions to the pul)lication of the gazette, and that the receipt of the printer for such notice shall be proof of its due delivery." It is also ordered by both houses, " That if it be the intention of the parties applying for leave to t » 4- ^ , . . ,.„ , . „ ' ifJS^ ciirc ^j Intention to bring in a bill, to obtain powers for the compulsory purchase of take lands or lands or houses, or to levy any tolls, rates, or duties, or to alter ^^'^y •"" a''*^'" any existing tolls, rates, or duties, or to confer, vary, or extin- gjated" ^^ guish any exemptions from payment of tolls, rates, or duties, or any other rights or privileges, the notices shall specify such intention." " That on or before the 31st day of December immediately pre- . v .. . T ., 1- X- P , -,1 , 1 • , , , , ^ ^ Application to ceding the application for a bill by which any lands or houses are owners, i:c. intended to be taken, or an extension of the time granted by any former Act for that purpose is sought, application in writing ' be made to the owners or reputed owners, lessees or reputed lessees, and occupiers, either by delivering the same personally, or by leaving the same at their usual place of abode, or in their absence from the United Kingdom, with their agents respectively, of which application having been duly made, the production of a written acknowledgment by tlie party applied to of the receipt of sucli ap[)lication, shall be sufficient evidence, in the absence of other proof, of the same having been duly delivered or left as aforesaid ; and that separate lists be made of the names of such owners, lessees, and occupiers, distinguishing which of them h ive assented, dissented, or are neuter in respect thereto." In addition to these notices appHcable to bills of all the classes, there are other orders specially relatins; to bills of each separate class, and to particular bills included in each class.^ ' For bills of the second class the form of application is given in the Appendix to the Standing- Orders. ^ See also infra, pp. 403. 4.37, 438. 441. 442. c c 3 390 PIIELIMIN'ARY NOTICES. Noticps on church doors. jjn.perty Notice to owners, &c 1. Orders Specially relating to Bills of the First Class. It is ordered by both houses, " That notices shall be affixed to the outer doors of the churches of every parish to whicli they specially relate, for three successive Sundays in the months of October and November, or either of them." It is also required by the commons, Crown, church, " That in cases of intended application to Parliament for bills am corpora ion j.g]fjtjjjg ^q Crown, church, or corporation property, or property held in trust for public or charitable purposes, notice in writing of such intention be given to the owners or reputed owners of such property, and to the lessees or reputed lessees of such property, holding leases granted for a life or lives, or for any term of 21 years or upwards ; such notice to be given previous to the jiresentation of the petition for leave to bring in the bill, or, in the case of a bill brought from the House of Lords, previous to the first reading thereof." Burial grounds. In bills relating to burial grounds, it is ordered by both houses, " That notices be affixed to the outer doors of the churches of every ])arish adjoining that in which a burial ground is proposed to be made, for three successive Sundays in the months of October and November, or either of them." " That on or before the 31st day of December immediately ])reccding the application for any bill for making a burial ground, notice be given to the owner and occupier of every dwelling-house situated within 300 yards of the boundary of the proposed burial ground." The standing orders of the lords also require that all such notices respecting burial grounds shall set forth and specify the limits within which any such cemetery or burial ground is intended to be erected.* The lords further apply to bills for burial grounds, the same orders in regard to estiinat(;s and subscri])ti()n contracts, which are a})plicable t Com. S. O. No.^22. Lords' S. O. No. ■2-2:}. - Lords' S. O. No. 2-23. C C 4 392 PLANS AND SECTIONS. Book of re- ference. Lands within deviation to be Oil plan. Biiildiripis, I'cc. on enlarged scale. SictioD. <^llans, sections, and books of reference so deposited with them, denoting the time at which the same were lodged in their respective offices, and do Jit all seasonable hours of the day permit any person to view and examine one of the same, and to make copies or extracts therefrom ; and that one of the two plans and sections so depo- sited, be sealed up, and retained in the possession of the clerk of SUBSCRIPTION CONTRACTS. HfCJ the peace or sherift' clerk until culled for by onlcr of one of tlie two houses of Parliament." ' '* That on or before the 31 st day of December, a copy of so Plan nnd sec- much of the said plans and sections as relates to each parish in or tionwiHi purish . . clerk C^C- throufjh wliich the work is intended to be made, maintained, ' varied, extended, or enlarged, together with a book of reference thereto, be deposited with the parish clerk of each such parish in England, the schoolmaster of each such parish in Scotland (or in royal burghs with the town-clerk), and the postmaster of the post- town in or nearest to such parish in Ireland."* Ill addition to the deposit of these plans, sections, books ^<>"^''' sta"«hng '■ I ' ' onlcrs rlcpo- of reference, &c., with clerks of the peace, &c., the lords sited with require that copies of their standing orders concerning such deposit shall be delivered to every clerk of the peace, sheriff clerk, parish clerk, schoolmaster, postmaster, or other person, at the same time with the plan or other writing deposited with him.'' It is necessary, that on or before the 31st day of December, Time for dcpo- a copy of the said plans, sections, and books of reference be depo- p^^rameur "^ sited in the office of the clerk of the Parliaments, in the House of Lords, and in the Private Bill Office of the House of Commons. Both houses order, " That an estimate of the expense be made, and signed by the Estimate and person making the same, and that a subscription lie entered into ^"|jj|:^^'j^'°" under a contract, made as liereinafter described, to throe-fourths the amount of the estimate." " That in cases where tlie work is to be made by means of funds, When doolarn- or out of money to be raised upon the credit of present surplus ^J)'/,'^,"|^,^'^.|',''f,,r revenue, under the control of directors, trustees, or commissioners, s„i,s<.npiiori as the case may be, of any existing public work, a declaration contract, stating those facts, and setting forth tlie nature of such control, and the nature and amount of such funds or surjjlus revenue, and given under the common seal of the company, or under the hnnd of some authorized officer of such directors, trustees, or commis- sioners, may be substituted in lieu of the subscription contract, and in addition to the estimate of the expense." " That in cases where the work is to be made out of money to w]icn declara- be raised upon the security of the rates, duties, or revenue to be tion .....1 . ..ti- created by or to arise under any l)ill, under which no private or "fVi,j!/n,a'v''J!^ personal pecuniary profit or advantage is to be derived, a declara- siihstitntcdYor siiiliscriptioii c mtruct. » See Act 1 Vict. c. 83. = See ib ' LonJs' S. <>. \-. '^-iO {V2). 394 SUBSCRIPTION CONTRACTS. Contract to contain chris- tiaxi and sur- names of par- ties. One-tenth part of amount sub- scribed to be deposited, and three-fourths in number of subscribers to pay up their deposit. Contract not valid unless en- tered into sub- sequent to close of previous session. Copies of sub- scription con- tract, or of de- claration, &c. to be printed, and delivered in Vote Office, and Parliament Office. tion stating those facts, and setting forth the means by which funds are to be obtained for executing the work, and signed by the party or agent soliciting the bill, together with an estimate of the probable amount of such rates, duties, or revenue, signed by the person making the same, may be substituted in lieu of the subscription contract, and in addition to the estimate of the expense." " That every subscription contract contain the christian and surnames, description, and place of abode of every subscriber ; his signature to the amount of his subscription, with the amount which he has paid up ; and the name of the party witnessing such signature, and the date of the same respectively." In the commons it is ordered, " That previous to the presentation of a petition for a bill, a sum equal to one-tenth part of the amount subscribed shall be deposited with the Court of Chancery in England, if the work is intended to be done in England, or with the Court of Chancery in England or the Court of Exchequer in Scotland,' if such work is intended to be done in Scotland, and with the Court of Chancery in Ireland, if such work is intended to be done in Ireland; and that not less than three-fourths in number of the subscribers shall pay up their shares of such deposit." The standing orders of the lords require only a twentieth part of the subscription to be deposited in this manner, and allow the deposit to be made at any time prior to the proof of compliance before the standing orders' committee. " That no subscription contract shall be valid unless it be entered into subsequent to the close of the session of Parliament previous to that in which application is made for leave to bring in the bill to which it relates, and unless the parties subscribing to it bind themselves, their heirs, executors, and administrators, for the payment of the money so subscribed." It is further required, that previous to the presentation of a peti- tion for a bill in the House of Commons, and before the second reading of the bill in the lords, copies of the subscription contract, with the names of the subscribers arranged in alphabetical order, and the amount of the deposit respectively paid up by each such subscriber ; or where a declaration and estimate of the probable amount of rates and duties are substituted in lieu of a subscription contract, copies of such declaration or of such declaration and estimate be j)rinted at the expense of the promoters of the bill, and be delivered in tlie lords at the office of the clerk of tlje Parlia- ments, and in the commons at the Vote Office, for the use of the members. CUTS, CANALS, &C. 395 CctSjCan'als, &;c. Diverting water from an existing cut,&c. into an in- " That previous to the presentation of a petition for a hill Notice to wherehy any part of a work authorized hy any former Act is in- owners, &c. tended to he relinquished, notice in writinj^ of such hill he given ^^oallrllw any* to the owners or reputed owners and occupiers of the lands in jmblic worlc. which the part of the said work intended to he tlierehy relin- quished is situate." It is ordered by both houses, " That in all cases where it is proposed to divert into any in- tended cut, canal, reservoir, aqueduct, or navigation, or into any intended variation, extension, or enlargement thereof respectively, any water from any existing cut, canal, reservoir, aqueduct, or tended cut. navigation, whether directly or derivatively, and whether under any agreement with the proprietors thereof or otherwise, the notices shall contain the name of every such existing cut, canal, reservoir, aqueduct, or navigation, the waters supplying which, hy virtue of any Act of Parliament, will either directly or deriva- tively flow or proceed into any such intended cut, canal, reservoir, aqueduct, or navigation, or into any intended variation, extension, or enlargement thereof." ' " That in all cases where it is proposed to make, vary, extend, pian to de- or enlarge any cut, canal, reservoir, aqueduct, or navigation, the scribe brooks, plan shall descrihe the hrooks and streams to he directly diverted y^^j^j_ ^ into such intended cut, canal, reservoir, aqueduct, or navigation, or into any variation, extension, or enlargement thereof respec- tively, for supplying the same with water; it shall also exhihit the height of tiie several embankments, and the depth of the several cuttings respectively, on a scale specified thereon ; and in cases of bills for improving the navigation of any river, there shall be a section which shall specify the levels of both banks of such river; and where any alteration is intended to be made therein, it shall describe the same by feet and inches."* Kaimvat.s. " That in all cases where it is proposed to make, vary, extend, pim, of railway or enlaro-e any railway, the plan shall exhibit thereon the height to sliow em- ° , , , . 1 .1 1 xi r *i 1 i-t- banknients and of the several embankments, and the depth of the several cuttings ^.yj_t.jjj.,g_ respectively, on a scale specified thereon." Line of railway " That in every section of a railway, the line marked thereon on section to shall correspond with the upper surface of the rails." correspond ^ ^* with upi)cr sur- face of rails. " That a vertical measure from the datum line to the line of the vertical mea- railway shall be marked in feet and inches at each change of the sures to be gradient or inclination, and that the ])roportion or rate of inclina- "Ji!^''^''^^^"/ tiou between each such change shall also be marked." .'radreut. ' Lords' S. O. No. 22o. Com. S. O. No. 37. - Ibid. 396 RAILWAYS. lIoiKlit of rail- " Thtit tlie heisr^it of the railway over or under the surface of w.iy, over or every turnpike road, public carriage road, navigable river, canal, to be marked at ^^ railway, or junction with a railway, shall be marked in figures every crossing at every crossing thereof; and if there shall be no such crossing in of a road, &c. every half mile, then the height over or under the surface of the ground shall be marked once in that space ; and if any alteration in the present level or rate of inclination of anj^ turnpike road, carriage road, or railway be intended, then the same shall be stated on the said section." Tunnelling and " That where tunnelling as a substitute for open cutting, or. arc iw.ij o e arching as a substitute for solid embankment, be intended, the same shall be marked both on the plan and section." ' 3. Orders specially/ relating to Bills of the Third Class. The standing orders of the commons require, Documents to " That as respects all bills of the third class, for the incorpora- be (lep'jsited in tJQu of joint stock companies, or proposed companies for carrying Private Bill ^ i i • c c ■ ^ ^^^^^, on any trade or business, or tor conterring ujion sucii companies the power of suing and being sued, there be deposited in the Private Bill Office, previous to the presentation of the petition for the bill, a copy of the deed or agreement of partnership (if any) under which the company or proposed company is acting, or of the subscription contract (if any), together with a declaration in ■writing, stating the following matters: " 1. The i)resent and proposed amount of the capital of the company. " 2. The number of shares, and the amount of each share. " 3. The number of shares subscribed for. " 4. The amount of subscriptions paid up. " 5. The names, residences, and descriptions of the share- holders or subscribers (so far as the same can be made out), and of the actual or provisional directors, treasurers, secreta- ries, or other officer, if any. "And such documents shall be verified by the signature of some authorized officer of the company or proposed company (if any), and by some resjionsible partj^ i)romoting the l)ill." Letters patent. And, " That in cases of bills for confirming or prolonging the Niiiiie of inven- terms of letters patent, each notice shall have prefixed to it in ion o )( pre- c^pj^al letters the name bv which the invention is usually distin- hxeil in rapi- \ ... . . tals to notice, guished, and shall contain a distinct description of the invention for which such letters patent have been obtained, and also an account of the term of tiieir duration." ' All tlie proper figures are given in the Appendix to the Standing Orders published by botli houses. PRIVATE DILLS IN Tllli COMMONS. 3li appear- G. " In case the agent for any petition or bill shall be displaced ame 011 change j^, ^.jjg solicitor, or shall decline to act, his responsibility shall of agent. .... cease upon a notice being given in the Private Bill Office ; and a fresh appearance shall be entered upon such petition or bill." Speaker may 7. "Any agent who shall wilfully act in violation of the rules }'J"j" 1.* **" and practice of Parliament, or any rules to be prescribed by the practising. speaker, or who shall wilfully misconduct himself in prosecuting any proceedings before Parliament, shall be liable to an absolute or temporary prohiljition to practise as a parliamentary agent, at tlie pleasure of the speaker ; provided that upon the application of such agent, the speaker shall state in writing the grounds for such prohibition." ' .?rf ii'!'^^ °'^ '^'^^ name, description, and place of residence of the jiarliamcntary agent in town, and of the agent in the country (if any) soHciting a bill, are entered in the "private Ijill register," in the Private Bill Office, which is open to public inspection.^ ' But this recognizance has not been requireJ. » Pari. Paper, No. 88, of 18.37. 3 Com. S. 0. No. 12G. 'enta. NOTICES OF PRIVATE BUSINESS. 399 Besides these regulations, there arc certain disqnaUfica- MowIkts mny tions for parliamentary agency. It was declared by a reso- ""^ ^'^ a^'cnts. lution of the house, 2Gth February 1830, non. con., " Tliat it is contrary to the law and usage of Parliament tliat any nieinber of this house should be permitted to engage, either by himself or any partner, in the management of private bills, before this or the other house of Parliament, for pecuniary reward." ' And in compliance with the recommendation of a select Nor ofTicers of committee on House of Commons offices in 1835, no offi- cer or clerk belonging to the establishment is allowed to transact private business before the house, for his emolu- ment or advantage, either directly or indirectly.'^ II. It has been stated elsewhere,"^ that the public business Notices of pri- • vfitc 1)tisincss for each day is set down in the Order Book, either as notices i,o„ „-,vcn^ ' of motions or orders of the day ; but the notices in relation to private business are not given by a member, nor entered in the Order Book ; but are required to be delivered at the Private Bill Office, at specified times, by the agents soli- citing the bills. These notices will each be described in their proper places; but one rule applies to all of them alike ; they must be delivered before six o'clock in the evening of any day on which the house is sitting, and before two o'clock on any day when the house is not sitting; and after the house has adjourned, no notice may be given for the first day on which it shall sit again."* All notices are open to inspection in the Private Bill ami imitlishcd. Office ; but for the sake of greater publicity and conveni- ence, they are also printed in the Votes; and members and parties interested are thus as well acquainted with the pri- vate business set down for each sitting, as with the public notices and orders of the day. Notices given on Saturday are published and regidarly delivered to members on Mon- day morning. > 85 Com. J. 107. = Pari. Rcp. No. GOO, of 1830, p. 17. » Siiprn, pp. 108. lOi). 277. ■• Com. S. O. No. 1-17. 400 PRIVATE BILL REGISTER. Time for pri- vate busiiiesa. Conduct of bills by mem- bers. « Private bill rcu is ter." III. Tlie time set apart for the consideration of all mat- teis relating to private bills, is between four and five in the afternoon, immediately after the meeting of the house; but private petitions are often received late at night, when the other business is concluded. There is a *' private business list" on the table of the house every afternoon, a quarter of an hour before the time appointed for INIr. Speaker to take the chair; upon which members should have their names entered, if they have charge of any private petition or bill ; and their names will be called by Mr. Speaker, in the order in which they appear on the list. Every form and proceeding out of the house in con- ducting a bill is managed by a parliamentary agent, or by officers of the house ; but within the house no order can be obtained, but by a motion made by a member, and a question proposed and put in the usual manner from the chair. One or two members are generally requested by their constituents, or by the parties, to undertake the charge of a bill ; they receive notice from the agents when they will be required to make particular motions; and they attend in their places, at the proper time, for that purpose. IV. Every vote of the house upon a private bill is entered on the " Votes and Proceedings," and Journals, and there is also kept in the Private Bill Office a register, in which are recorded all the proceedings, from the petition to the passing of the bill. The entries in this register " specify briefly each day's proceeding in the house, or in any com- mittee to which the bill or petition may be referred ; the day and hour on \\ hich the committee is appointed to sit ; the day and hour to which such committee may be ad- journed, and the name of the committee clerk." ^ This book is open to public inspection daily, between the hours of eleven and six. As every proceeding is entered under name of the particular bill to which it refers, it can be ' Com. S. O. No. I -JO. PETITIONS FOR PRIVATK HILLS. 40 1 immediately referred to, and the exact state of the hill discovered at a glance. After these explanations, the j)roceedings in the house may be described without interruption, precisely in the order in which they usually occur. When all the prehminary conditions have been-fulfilled. Petition fori.iii. the application for the bill is made by a petition to the house, which must be signed by the parties, or some of them, who are suitors for the bill; and the receipt of all documents required by the standing orders to be deposited in the Private Bill Office, ought to be acknowledged by one of the clerks in that office, upon the petition, before it is presented ; ' and the agent should not neglect to take the petition and obtain the proper form of receipt, before he gives it to a member to present. The standing orders of Bill ann.xfd. the commons require that a printed copy of the proposed bill shall be annexed to the petition,'-^ and deposited in the Private Bill Office on the day on which the petition is presented ; and that the bill shall there be open to the inspection of all parties.'^ All petitions for private bills are ordered to be presented Time limitrd for within 21 days after the first Friday in every session of '"■^■*''"""f''- Parliament;^ and no petition will be received after that time, except by special leave of the house. In order to obtain this permission, a petition must be presented, pray- ing for leave to present a petition for the bill, and stating petitions for peculiar circumstances, which account for the delay, and •"i^s'"'""^^"' ' - ' petitions. justify the application for a de])arture from the standing orders. This petition is referred by the house to the committee on standing orders; and if their report be favourable to the application, leave is given to present the petition. There is an express standing order, that no private bill niil? to he shall be brought in otherwise than upon jietition;^ and pntiTlon.'"" • Com. S. O. No. 1-27. = lb. Xo. 101. » II). No. 128. * 111. No. 102. ^ II). No. 101. U U 402 COMMITTEE ON PETITIONS bills which have proceeded as public bills, have sometimes been withdrawn, on notice being taken that they were pri- vate bills, and ought to have been brought in on petition.^ But bills of a private nature have occasionally been brought in without the form of a petition ; their further progress, however, is subject to all the regulations prescribed for the conduct of private bills ; to the proof of notices and other precedent conditions ; and to the payment of fees. They are generally bills for carrying out public works in which the Government is concerned ; as, for example, the Lagan Navigation Bills, in 1841 and 1842 ; and the Knightsbridge and Kensington Openings Bill, in 1842. Additional pro- jf^ after a petition has been presented, additional provi- visidU. ... . sion should be desired to be made in the bill, a petition for that purpose should be presented, with the proposed clauses annexed, in the same manner as the bill w^as attached to the original petition."^ Committee on All petitions for private bills, and for additional provi- petitioiiS for . p i i i i i , bills. sion, are reterred by the house to the select comnuttee on petitions for private bills, which is appointed at the com- mencement of each session. It consists of 42 members, five of whom are a quorum in opposed cases, and three in unopposed cases. To facilitate its proceedings, it may divide itself into sub-committees, each consisting of not less than seven meml)ers ; by one of which, every petition for a bill is undertaken, instead of by the whole com- mittee. When Bub- Before a sub-committee can consider a petition for a '^ef NotS '^•"' *'^e agent for the l)ill must give 10 clear days' notice, in writing, in the Private Bill Office, of the meeting of the sub-committee, and one clear day's notice in the case of a petition for additional piovision ; and these notices must be given after the presentation of the petition. In Scotch or Irish petitions, a sub-connnittee may not sit until 15 clear days after the petition has been presented. If the ' 80 Com. J. 48R. 490, 491. 2 Co,„ g q j^^ jq^ FOR PRIVATE BILLS. 40;} first meeting be postponed, one clear day's notice, in writ- ing-, of" the postponement, must be given in the Private Bill Office, by the agent for the bill.' It is the duty of these sub-committees to recjuire proof Tinir dnticn. of compliance with the standing orders, which are to be observed before application is made for a bill. - If par- ties opposing a bill present a petition to the house three clear days before the first meeting of the sub-committee, Petitions com- ■,..,, ,. , , , ' plaining of iion- complammg that the standmg orders have not been com- compliance plied with, the petition is referred to the committee, and ^^',1'' .^*""^'"^ the parties are at liberty to appear and be heard, by them- selves, their agents, and witnesses, provided the matter complained of be specifically stated in their petition.^ But it has been ruled, that the word " agents" signifies parlia- mentary agents, who have complied with the conditions imposed by the house : and a solicitor who has not entered an appearance, will not be entitled to be heard by the committee."' In bills relating to England, the having duly affixed to Proof of no- tiCGS &c. the church doors the requisite notices, may be proved by England, the production of affidavits sworn before any justices in petty sessions for the division within which the churches are situated."* The signatures of the justices must be proved, and it must be shown that they are justices for the division. In the case of bills concerning Scotland compliance with Scotlami. the standing orders may be proved by affidavits sworn before any sheriff-depute or his substitute, whose certificate ' " But notice of the meeting of a sub-committee on any petition or bill is not to be taken at the Private Bill Office, before the petition or bill has been referred to the committee on petitions for private bills, as shall appear by an entry in the Votes and Proceedings, or by a certificate from one of the clerks employed in making up the Votes and Proceedings, if it he desired to give such notice on the day when such petition or bill has been so referred." (By order of the clerk of the house.) 2 Com. S. O. No. 9. ' Case of Sir R. Harland, 1844. See his petition, Votes, p. 2G7, end Hans. Debates, March 5th. * Com. S. O No. 10. 404 STANDING ORDEnS COMMITTEE. Ireland. Report on petition. Standing orders com- mittee. Report. Leave to pro- ceed. is admitted as evidence of proof having been made.' But if the committee should not be satisfied with this proof alone, they may require further evidence. When bills relate to Ireland, compliance may be proved by affidavits sworn before any judge or assistant barrister in that country, unless the committee require further evidence.^ Wlien the sub-committee have satisfied themselves that the standing orders have been complied with, or that com- pHance has failed in being proved, or that there are no standing orders applicable to the bill, they report to the house their decision, with the facts upon which it is founded, and any special circumstances connected with the case.^ If the standing orders have been complied with, leave is given to bring in the bill, and two or three mem- bers, to whose charge it has been entrusted, are ordered to prepare and bring it in ; but if not, the report of the sub-committee is referred to the " select committee on standino- orders." This committee is appointed at the commencement of every session, and consists of eleven members, including the chairmen of the committee,'' and of the sub-committees on petitions for private bills, of whom five are a quorum. It is their office to determine and report to the house whether the standing orders, which appear by the report of the sub-committee not to have been complied with, ought or ought not to be dispensed with ; and whether, in their opinion, the parties should be permitted to proceed with their bill, or any part of it ; and if so, under what conditions (if any): ^ as, for example, after affixing notices, publishing advertisements, or lodging plans, when such conditions seem to be proper. If the standing orders committee report that indulgence should be granted to the promoters of the bill, they are ' Com. S. O. No. 11. a lb. No. 12. ^ iij_ ^o. 13. * Tlie chairman of the committee on petitions is also cliairman of one of the 8ul)-committee.s. Com. S. O. No. 4G. PRIVATE BILLS PRESENTED. 405 allowed to proceed either at once, or after complying with the necessary conditions, according- to the report of the committee. To give effect to this permission, the proj)('r form to be observed, is for a member to move that the report be read, and then that leave be given to bring in the bill ; and the compliance with the orders for giving notices, &c. must afterwards be proved before the com- mittee on the bill. If, on the contrary, the committee Btanding orders •^ . not to be (lis- report that the standing orders ought not to be dispensed pensed with. with, their decision is generally fatal to the bill, although no reasons are ever assigned for their determination. It is true, that their report is not conclusive, and cannot pre- clude the house from giving a more favourable considera- tion to the case : but although there are a few precedents, in which, under peculiar circumstances, parties have still been permitted to proceed,' attempts are rarely made to disturb the decision of the committee.'^ But in order to leave the question open, the house agree only to those reports from the standing orders committee which are favourable to the progress of bills, and pass no opinion upon the unfavourable reports, which are merely ordered to lie upon the table. If the promoters of the bill still entertain hopes that the Petitions for , 111 11 ■ • I ■ !• leave to pro- iiouse may be mducecl to relax tlie staiutnig orders, or it cpg^, there be special circumstances, such as the consent of all parties, or the urgent necessity of the bill being passed in the present session, they should present a petition to the house, praying for leave to bring in a bill, and stating fully the grounds of their application. The case is thus brought under the immediate consideration of the house ; but it must be of a very peculiar nature to obtain indulgence, as the house place confidence in the standing orders committee, and entrust them with full discretion to suggest the enforce- ment or relaxation of the standing orders ; and the parties have already stated their case before that committee. » 87 Com. J. 1()3. 88 lb. 184. 80 Ih . 1 -'-i . • Atmospheric Railway Bill, 1844. D U 3 406 FIRST HEADING. Kill preseuted. When leave has been obtained to bring in a private bill, it may be presented on the next or any following day ; or on the same day in urgent cases.^ It must be printed on paper of a folio size (as determined by the speaker), with a cover of parchment attached to it, upon which the title is written. The short title of the bill, as first entered in the Votes, is given in accordance with its subject matter, and distinguishes the bill in all future proceedings.^ It may not be changed either by the parties or by committees, unless by special order of the house. Rates and tolls, The proposed amount of all rates, tolls, fines, forfeitures, or penalties, or other matters, which must be settled in com- mittee, are ordered to he inserted in italics, in the printed bill. These were formerly left as blanks, and are still technically regarded by the house as blanks to be filled up by the com- mittee on the bill ; but it is more convenient that the par- ticular amounts intended to be proposed should be known at the same time as the other provisions of the bill. First reading. The bill may be read a first time immediately after it is presented ; but this cannot be done unless printed copies of Copies of bill the bill have previously been deUvered to the doorkeepers doorkeepers. J" ^^^ lobby of the house, for the use of members.^' This order is easily complied with, as the bill must be presented in a printed form. The only exception to the rule requir- ing the delivery of printed copies before the first reading, is in the case of name and naturalization bills, which are generally sent from the lords. To I'ui.iif Bill Eight copies, also, must be delivered at the Public Bill Office, when the bill is presented to the house ; and after- wards, a copy of an amended breviate of every private bill.' AikI to Private It must likewise be borne in mind, that one copy of every private bill, and two copies of the printed breviate, and two copies of the amended breviate and amended bill, ' Votes 1B44, p. 4(W, 4fi4. - Coin. S. O. N 107. ' lb. No. 109. ' By speaker's order. Office. Bill ()fti( FIRST READING. 407 are to be sent to the Private Bill Office, (or the use of the Board of Trade. ^ Care must also be taken to advance the bill through its Time limited preparatory stages ; for a day is named by the house, at fZ!'"^^^ "'*"^" the beginning of the session, after which no private bill may be read a first time. This day is generally about seven weeks from the first day of the session. Between the first and second reading an interval ,of Proceedings three clear days must elapse, and the agent for the bill is JeajiSg.'''"'"'' required to give three clear days notice in writing, at the Private Bill Office, of the day proposed for the second reading. Meanwhile the bill is in the custody of the Pri- Bill examined vate Bill Office, where it is examined, as to its conformity office. with the rules and standing orders of the house. If not in due form, the examining clerk specifies on the bill the nature of the irregularities wherever they occur. If the Withdrawn if bill be improperly drawn, or at variance with the standing orders, or the order of leave ; the order for the first reading is discharged, the bill is withdrawn, and leave is given to present another.'^ The House of Commons will not allow peers to be Peers' names, concerned in the levy of any charge upon the people ; and if they be named in a private bill, for that purpose, their names are struck out. In particular cases such names Iiave escaped detection ; but by the present practice, " The clerks in the Private Bill Office are particularly directed to take care, that in the examination of all private bills, levying any rates, tolls, or duties on the subject, peers of Parliament, peers of Scotland, or peers of Ireland, are not to be inserted therein, either as trustees, commissioners, or proprietors of any company." ^ No private bill may be read a second time until after infcrval be- tween n( ■ and srcc reading. the expiration of two calendar niontlis from the day on J^^^^ s.coud ' By speaker's order. 2 77 Com. J. 116. 79 lb. 229. 82 lb. 325. 348. 90 lb. 411. 92 Il». 254. 425. Votes 1844, p. C40. 15y speaker's order, 24 .Marcli 1840. D D 4 408 COMMITMENT OF PR1\ ATl^: BILLS. Breviates. Exceptions. Payment of fees. Second readin;; ('ommitment. f'ommittee of selection. which the last notice was given in the newspaper.' Ano- ther requirement must also have been complied with. A breviate of every private bill is prepared under the direc- tion of the speaker, by Mr. Speaker's counsel, containing a statement of the object of the bill and a summary of its proposed enactments ; and it is to point out any variation from the general law which may be effected by the bill."^ This breviate must have been laid upon the table, and printed three clear days before the second reading.^ There is an exception to these rules in the case of divorce, name, naturalization, and estate bills, brought from the lords, and not relating to Crown, church, or corporation property, or property held in trust for public or charitable purposes. It is also an order of the house, " That no private bill or clause for the particular interest or benefit of any per- son or persons, county or counties, corporation or corpo- rations, or body or bodies of people, be read a second time, unless fees be paid for the same." ^ The second reading is like the same stage in other bills, and in agreeing to it the house aifirm the general principle and expediency of the measure. It is the first occasion on which it is brought before the house otherwise than pro forma, or in connexion with the standing orders ; and if the l)ill be opposed, upon its principle, it is the proper time for attemjjting its defeat. If the second reading be deferred for three or six months, or the bill rejected, no new bill for the same object, can be offered until the next session.' When a private bill has been read a second time, it is immediately committed, and referred to the " comiuittee of selection." This committee is appointed, like the other standing committees connected with private bills, at the commencement of every session, and consists of the chair- man of the standing orders committee, and the chairmen ' Com. S (). No. 11 -J. ' lb. No. 1 l.j. lb. No. 113. II). No. 114. Sec stqirti, \i. 180. COMMITTEES ON IMHVATE HILLS. 409 of the committee and of the sub-committees on petitions for private bills, three of whom are a quorum. To the conniiittee of selection the house deleoate the power of appointing committees on private bills, subject to particular rules. In the first place, different regulations Unopposed apply to opposed and to unopposed bills. The former are referred by the committee of selection to the chairman of the committee of ways and means, together with the mem- bers who had been ordered to prepare and bring in the bills ; or in the case of lords' bills, together with two members named by the committee of selection. The latter are appointed in a manner that will be presently described ; but it must here be explained, that every bill is considered as unopposed, where no petition has been presented in which the petitioners pray to be heard by themselves, their counsel, or agents ; unless the chairman of ways and Opposed bills, means has reported to the house that a bill referred to him should be treated as an opposed bill. And although a longer time is allowed ' by the standing orders, the oppo- p^.{ition ■ nents of a bill should present their petition as soon after against, the second reading as })ossible, in order that the bill may be referred to the proper tribunal for hearing their case. The appointment of committees on opposed bills is con- ^ ker's lists ducted in this manner : " Lists tor connnittees on ju-ivate <""'' committees, bills," are prepared by the speaker, by which the members for counties, cities, and boroughs are classified, according to the local position of the places which they represent. For examj)le, the committee list for the county of Bedford is composed of the members for that county, and for the adjacent counties of Buckingham, Herts, Northampton, Notts, Cambridge, and Huntingdon ; and for the towns ot Bedford and Huntingdon. Upon this principle of division, each county has a list assigned to it, consisting generally of about 20 members, whose constituents are supposed to have a local interest in all bills relating to that particular ' See infra, \: 413. 410 COMMITTEES ON PRIVATE BILLS. county. Wales is, in the same manner, divided into two lists, the one for North and the other for South Wales. Scotland is likewise divided into two lists; and Ireland into four, being one for each j)rovince. These lists are published by the house for the information of all parties concerned. Selected mem- The committee of selection refer every opposed bill bcrs. (except bills for competing lines of railway, which will be presently noticed) to the speaker's list of that county or division of a county to w^hich the bill specially relates, and to such number of members, not locally interested in the bill, as the circumstances of the case shall in their judgment require.^ The committee are also to direct in each case, what number of the members, selected and added to the speaker's list by them, shall be a quorum of such members.''* Members added When the name of any member has been added, he is by tlie bouse. i i i • i i ■ i • p i • served by the committee clerk with notice ol his nomina- tion as soon as possible, and of the time at which the committee on the bill is appointed to meet. In special cases other members have also been added by the house, to those nominated by the committee of selection.^ Where a bill, from its character, cannot be referred to any list, it is referred by the committee of selection to certain members specially nominated.^ First meeting The Committee of selection appoint the time for the first ofcniliniittccon ■ n ^ ■ 1 1 -11 I 11 bill, appointed, meeting oi the committee on the bill; but seven clear days are required by the standing orders to intervene between the second reading and its first sitting.' In special cases, however, the house sometimes give leave to a committee to sit and proceed on an earlier day than that authorized by Notices. the standing orders." If no such permission be granted, the agent for the bill must give seven clear days' notice ' Com. S. O. No. 50. ^ j,, ]y„ ^j ' Edinburgh and Glasgow Railway, ITtli March 1842; [il Com. J. 125. North Kritish Uailway, 1844 ; Votes, p. 41 K. lb. 75G. 771. * Towushend Peerage Bill, 1843. * Com. S. O. Nos. 117. 134. « 91 Com. J. 718. 7711, &c. COMMITTEES ON PHIVATE BILLS. I I 1 ill writino" of its first meeting, in the Private Bill OHice; or all proceedings of the committee will be void. Wlu'ii the agent gives this notice, he must at the same time deposit in the Private Bill Office a filled-up bill signed by himself, as proposed to be submitted to the committee : and all parties are entitled to obtain a copy of the filled- up bill, upon payment of the charges for making out the amendments.^ If it should be advisable to postpone the first meeting of Postponement • 1 1 i)f first meeting. the committee, after a day has been appointed, the agent must give one clear day's notice of the postponement in writing, countersigned by a committee clerk, and deliver it in the Private Bill Office."^ But the agent cannot effect this postponement without the sanction of the committee of selection.^ The appointment, constitution, and proceedings of com- Committees on 1-11 I - 1 -ii -A. opposed bills, mittees on private bills are regulated with a view to secure impartiality and due attention to the interests of all parties. The members on the speaker's list represent the interests of their constituents, and are acknowledged to have a local interest ; but the members selected by the committee of selection are unconnected with the places to which the bills relate, and are intended to counteract any bias which may be supposed to exist on the part of those locally interested. Before any member is entitled to attend and vote in the Attendance of 1 . 11- 1 , • 11 ■• 1 <• xi nil inl)iT9. committee, he is obliged to sign a declaration. It on the ,^ , ' . Declarution. speaker's list, he declares that he " will never vote on any question which may arise, without having duly heard and attended to the evidence relating thereto." If a selected member, he makes the same declaration in regard to his attendance, and also declares " that his constituents have no local interest, and that he has no personal interest in the bill."^ The proper form of declaration is to be obtained ' Com. S O. No. 1.36. - lb. No. 137. * lb. No. ofi. * lb. No. 58. Should he ai'tcrwards discover that he is interested, he may be discharged. 412 COMMITTEES ON PRIVATE BILLS. Wlien to be signed. Quorum. ProcRMliiiffs commented. Chairman ap- jtuintcd. His dutieu. from the committee clerk attending the committee, either in the committee clerks' office or in the committee-room, before the first sitting of the committee. When signed by the member, it must be returned to the clerk before the door is locked, for the appointment of the chairman. If this be neglected, or if a member having properly signed and delivered his declaration, should not be present at the appointment of the chairman, he cannot afterwards attend and vote in the committee.' Five members are the (juorum of every committee on an opposed private bill, including the quorum of selected mem- bers as determined in each case by the committee of selec- tion : and without this number no committee may proceed to business, or continue their inquiry or deliberations. Not only nmst there always be a quorum of the whole com- mittee, but there must be present also the quorum of selected members. Thus if more than five members were present altogether, but only one selected member when three were the quorum, the proceedings of the committee would be suspended. At the expiration of 10 minutes after the time appointed for the first meeting of the committee, if the proper quorum be present, the clerk directs the messenger in attendance on the committee, to clear tlie room of strangers, and to lock the door of the connnittee room ; and the members then present proceed to appoint the cliairman, who must be one of the selected members?' In addition to the ordinary duties of a cliairman in presiding over a committee, he is specially directed by the standing orders to observe that tlierc is always present a qiionun of selected nieml^crs ; and to suspend the pro- ceedings of the committee, when the proper number are not in attendance. If, on the expiration of an hour from ' In the (ireenock Harbour Committee, 1843, two members having gained ailmittance after the door had been locked, but before the appointment of the chairman, were held to be disiiualified. - Com. S. O. No. (i-'. PETITIONS AGAINST PRTVATK RILLS. 41:5 the time fixed for the meeting of the committee, or from the time at which he has suspended their proceedings, a quorum shoukl not be present ; lie is obhged to adjourn the committee, and to report the circumstances to the house. The adjournment may not exceed two clear days, or until the next meeting of the house.' If, after the formation of the committee, a quorum of Abspnoe of 1 -111 T , muiiiliers. members required by the standing orders, cannot attend, by reason of illness, deaths, or ap])ointments to election committees, the chairman reports the circumstances to the house. It is usual in such cases for the house to give leave to the committee to sit and proceed, with a smaller general quorum, or a smaller quorum of selected members, as the case may be."^ These regulations apply to committees on all opposed C"°"nittecs on private bills, except for competing lines of railway. The pefing lines of latter are now ^ specially constituted, and consist of five members only, nominated by the conuiiittee of selection ; who sign a declaration that their constituents have no local interest, and that they themselves have no personal interest in the bills ; and that they will not vote on any question, without having duly heard and attended to the evidence. Of these five members, three are a quorum. It is usual for the house to refer to the committee Petitiona all petitions, in which the petitioners pray to be heard "^ against a private bill. An order is given at the same time, " That the petitioners be heard by themselves, their counsel, or agents, if they think fit ; and that counsel be heard in favour of the bill, against the said petitions." A petition against the bill generally, and not praying to be heard against certain parts of it, will not be referred, as it is regarded in the light of an ordinary petition concern- ing a bill before the house, and not requiring special con- sideration. Sometimes conditional instructions are given ' Com. S. O. Xo. fi4. * 97 Com. J. 2:^7. 3:V2. 340. !)8 lb. 347. 40.0, &c. » Session 1844. 414 COMMITTEES 0\ PRIVATE BILLS, to committees to hear parties, in case certain clauses should be proposed.* When to be Every petition a2;ainst a bill must be presented to the pr6S6iited. ' ^ house three clear days before the day appointed for the first meeting of the committee, unless the petitioners com- plain of any matter which has arisen during the progress of the bill before the committee.'-^ The petitioners can- not be heard by the committee, if their petition should appear to have been presented after the time specified in the standing orders, without a special instruction from tlie house.^ Complaining of The house will not receive any petition complaining non-compli- iip t -iii- i n ance with the solely of a non-compliaiice with the standmg orders, after ingor ers. ^j^^ second reading of a bill, unless in the case of those standing orders which must necessarily be taken into con- sideration by the committee on the bill."* Grounds of ob- No petition, though presented at the proper time, and jection to be r j i • -n i i • • i • specified. reteiTed to the committee, will be taken into consideration by them, unless it distinctly specifies the grounds on which the petitioners object to any provisions of the bill. The petitioners are only admitted to be heard upon the grounds stated by them in their petition ; and if the committee consider that these grounds are not specified with sufficient accuracy, they may direct a more specific statement, in writing, to be prepared for them, but limited to those grounds of objection alone which had been inaccurately specified.^ Committees on The constitution of committees on unopposed bills has unopposed bills. i -i i i already been described ; but a short reference to their Special orders . " . • i • i and rules. functions Will be convenient in this place, to avoid any interruption in stating such orders of the house as apply equally to both classes of committees. The chairman of ways and means, and one of the two other members of the committee, are a quorum ; and if they do not think ' Votes, 1844, p. 443. ^ q^^ g q jy„ ^7 ' m Com. J. 254. " Com. S. O. No. 1 1 1. ^ lb. No. 66. COMMITTEES ON PRIVATE BILLS. 416 that tlie bill referred to them should be treated as an opposed bill, they proceed to consider all the ])rovisions of the bill, and to take care that they are conformable to the standing orders. The chief responsibility is imposed upon the chairman, who, being an officer of the house as well as a member, is entrusted with the special duty of cxftmining every unopposed private bill. A filled-up copy of the bill, Filled-up bill to signed by the agent, as proposed to be submitted to the ^^ •^'^''^ered. committee, is ordered to be laid before him, when notice is given of the meeting of the committee ; and similar copies must be laid before each of the other members, by the agent for the bill, three days at least before their first meeting. As there are no opponents of the bill before the com- Duties of the mittee, the promoters have only to satisfy the chairman ^^^'""""ce. and the other members, of the propriety of the several pro- visions; that all the clauses required by the standing orders are inserted in the bill ; and that such standing orders as must be proved before the committee, have been complied with. But if extensive alterations are proposed to be made in the original bill annexed to the petition, it is liable to be withdrawn by order of the house, on the report of the chairman.^ If it should appear that the bill, from its cha- racter or other circumstances, ought to be treated as an opposed bill by a more public tribunal, the committee report their opinion to the house, and the bill is referred to the committee of selection, who appoint a committee from the speaker's list and selected members. There are various orders of the house which are binding Orders relating upon all committees on private bills, and others which re- !" "" ^"'V!',','"'' r i ' tecs (III Inlis, late only to particular classes or descriptions of bills; and wintiicr op- . . ' 1 • 1 • 1 1 - posed or unop- it IS proposed to state these in their order ; and afterwards posed, to describe the ordinary forms observed in the hearing of parties or their counsel, the settlement of the clauses, and the making of amendments. ' 9» Com. J. T20. 41 n COMMITTEES ON PrUVATE BILLS. Names of mem- ^^jjg names of the members attendino- a committee are bers tntcred ou ^ minutes. diiected to be entered by the clerk on the minutes ; and when a division takes place, the clerk notes down the name of every member, distinguishing on which side of the question he has voted. The minutes of the proceedings and the lists of divisions are afterwards to be given in to the house, together with the report.^ What standing The committee are precluded from examining into the inquired into. Compliance with such standing orders as are directed to be proved before the committee on petitions for private bills, unless they have received an instruction from the house to that effect.^ Such an order is only given when the house, on the report of the standing orders committee, allow parties to proceed with their bill, on complying with certain standing orders which they had previously neg- lected. It is then more convenient for the committee on the bill to inquire whether the orders of the house have been complied with, than to refer that matter to the com- mittee on petitions. Proof of orders In the case of private bills relating to Scotland, the and consents. ,. . , i- i compliance with any standing orders necessary to be shown, Scotland. , , ^ , j^ o ,- i • • »» i or tJie consents oi parties concerned m interest, may be proved by affidavits sworn before a sheriff depute, or his substitute, unless the committee require the production of Ireland. further evidence.^ In bills relating to Ireland, the same matters, with a similar qualification, may be proved by affidavits sworn before a judge, or assistant barrister.'* The certificate of these officers will always satisfy the com- mittee, unless it should be so informal, on the face of it, as not to establish all the facts required to be proved. Consents. In all other bills, not relating to Scotland or Ireland, the consents of parties interested may be proved by the production of certificates, in writing, of such parties, whose signature may be proved by one or more witnesses, ' Cora. S. O. No. 71. ■-' lb. No. 72. » n, ^o. 7.^. ' II). No. 74. COMMITTEES ON RAILWAY BILLS. 417 unless the committee shall require further evidence on that point.* The committee are bound to see that the provisions re- quired by the following standing orders shall be included in the bill committed to them, whenever they are appli- cable ; viz. : 1. " That in all bills presented to the house for carrying on any Clause corn- work by means of a company, commissioners, or trustees, provi- pi^Hing jiay- sion be made for compelling persons who have subscribed any gc.jpt^ojj'j money towards carrying any such work into execution, to make payment of the sums severally subscribed by them."- 2. " That in all bills whereby any parties are autliorized to levy provision to fees, tolls, or other rate or charge, clauses be inserted proviiling be made in for the following objects, except in so far as any of sucli objects ^''.'f ^^' '^^''"^'^ tolls &c. may shall have been provided for in some general Act applicable to the be levied. subject-matter of the bill: viz. 1. Security to be taken from the treasurer, collector, or receiver ; 2. Accounts to be kept ; 3. And to be audited ; 4. Accounts, v^ouchers, &c. to be produced to auditors ; 5. Remuneration to auditors to be defrayed out of the funds levied under the bill ; G. Account, in abstract, of receipts and expenditure, to be annually transmitted to clerk of peace, or sheriff clerk, on or before the 31st of January."' 3. " That where the level of any road shall be altered in making I^vel of roads. any public work, the ascent of any turnpike road shall not be more than one foot in 30 feet ; and of any other public carriage road, not more than one foot in 20 feet ; and that a good and sufficient Fence to fence, of four feet high at the least, shall be made on each side of t>"^S'-'^' every bridge which shall be erected."^ In addition to these orders, which apply to private bills generally, there are others, relating only to bills of a par- ticular description ; and certain well-considered clauses, known as "model clauses,"^ if not included in tlic original Model clauses, bill, are inserted by the committee, unless sufficient cause be shown for their omission. The following provisions must be enforced, and rules Railway bills. observed by every committee on a railway bill : 1. " No company shall be autliorized to raise, by loan or mort- Restrictions as gage, a larger sum than one-third of tlieir capital ; and until 50 per **^ mortgage, cent, on tlie whole of the capital shall have been paid up, it sliall ' Com. S.O. No. 75. ^ lb. No. 76. » j^,. No. 77. * IK No. 7f<. ' These are in the hands of all parliamentary agents. E £ 418 COMMITTEES ON RAILWAY BILLS. Level of roads. Fence to lirid'^es. Railways not to croe seen in ererv recent Railwav Act. SPECIAL REPORTS ON RAILWAY BILLS. 419 have been omitted, the committee will order the insertion of them in their proper places. In inquiring into the merits of" a railway bill, the com- Special modes mittee are not left entirely to their own discretion, but the rj,p,„.i „„'^rai\- most important matters are distinctly pointed out to them ^^''^ '"^'*- for examination. Whether the bill be opposed or not, the parties must be prepared with evidence to satisfy the com- mittee upon each of the following points, which by the standino; orders are required to be specially reported to the Speehil reports * ^ t^ -^ i^ on railway bills. house : I. " The proposed capital of the company formed for the execu- Capital, lion of the project, and the amount of any loans which they may be empowered to raise by the bill." 2. " The amount of shares Shares, &c. subscribed for, and the deposits paid thereon." 3. "The names Names, &c. of and places of residence of the directors or i)rovisional committee, ''"'actors. with the amount of shares taken by each." 4, "The number of Local sliare- shareholders who may be considered as having a local interest in "<^'^'^''s- the line, and the amount of capital subscribed for by them," 5. " The number of other parties, and the capital taken by Other parties, them." G. "The number of shareholders subscribing for 2,000?. ^^■ . , , , . 1-1 1.1 ^ c Subscribers for and upwards, with their names and residences, and the amount tor g qoo /. and which they have subscribed." upwards. 7. " The sufficiency or insufficiency, for agricultural, commercial, Present means manufacturing, or other purposes, of the present means of convey- of conveyance, ance and of communication between the proposed termini, stating the present amount of traffic by land or water, the average charges made for passengers and goods, and time occupied." 8. "The Passengers, &c. number of passengers, and the weight and description of the goods expected, expected upon the proposed railway." 9. " The amount of income Income ex- expected to arise from the conveyance of passengers and goods, pt'cted. and in what proportion ; stating also generally the description of goods from which the largest revenue is anticipated." 10. " Whe- Whether rail- ther the proposed railway be a complete and integral line between p,^[J',^„^,^'"^"'" the termini si)ecified, or a part of a more extended plan now in part of a more contemplation, and likely to be hereafter submitted to Parliament ; extended plan, and to what extent the calculations of remuneration depend on such contemplated extension of the line." II. " Whether any, and what, competing lines of railway there ('..ni|niing are existing, and whether any, and what, are in progress or con- 1""^*- templation ; and to state, so far as circumstances will permit, in what respects the proposed line is superior or inferior to the other lines: but that no line of railway be deemed a competing line in contemplation, unless the plan, section, and book of reference ior E E 2 420 SPECIAL REPORTS ON RAILWAY BILLS. Assistant engines. Engineering difficulties. Ventilation of tunnels. Gradients and cun'es. Length of line. Passing high- wavson a level. Estimates. Annual ex- penses. Revenue in reference to annual charge. Assents. Enjrineers examined. Petitions in opposition. the same shall have been deposited with the clerks of the peace and in the Private Bill Office respectively, as required by the standing- orders." ' 12. " What planes on the railway are proposed to be worked by assistant engines, either stationary or locomotive, with the respective lengths and inclinations of such planes." 13, " Any peculiar engineering difficulties in the proposed line, and the manner in which it is intended they should be overcome." 14. " The length, breadth, aud height, and means of ventila- tion, of any proposed tunnels ; and whether the strata through which they are to pass are favourable or otherwise." 15. "Whether, in tlie lines proposed, the gradients and curves are generally favourable or otherwise, and the steepest gradient, exclusive of the inclined planes above referred to, and the smallest radius of a curve." IG. " Tlie length of the main line of the pro- posed railway, and of its branches respectively." 17. " Whether it be intended that the railway should pass on a level any turn- pike road or highway ; and if so, to call the particular attention of the house to that circumstance." 18. " The amount of the estimates of the cost or other expenses to be incurred up to the time of the coni])letion of the railwaj' ; and whether they appear to be supported by evidence, and to be fully adequate for the purpose." 19. " The estimated charge of the annual expenses of the railway when completed, and how fur the calculations on which the charge is estimated have been suffi- ciently proved." 20. " Whether the calculations proved in evi- dence before the committee have satisfactorilj- established that the revenue is likely to be sufficient to support the annual charges of the maintenance of the railway, and still allow profit to the projectors." 21. " The number of assents, dissents, and neuters upon the line ; and the length and amount of proj)erty belonging to each class traversed by the said railway, distinguishing owners from occupiers : and in the case of any bill to vary the original line, the above particulars with reference to such parties only as may be affected by the proposed deviation." 22. " The name of each engineer examined in support of the bill, and of any examined in opposition to it." 23. •' The main allegations of every petition which may have been refern d to the committee, in opposition to the preamble of the bill, or to any of its clauses ; and whether the allegations have been considered by the committee, and if not considered, the cause of their not having been so." ' This standing order, as shown above, p. 413, has been, to a certain extent, superseded by the special appointment of committees on competing lines. INCLOSURE AND DRAINAGE BILLS. 421 " And the committee shall also report generally as to the fitness, FitncHs in an in an engineering point of view, of the projected line of railway, e"^'i"<"ir'ng 1 . . i-i-ii ..^i • . itoiiit of view, and any nrcumstances winch, in the oi)inion of the connnittee, it ,„„| ,j„y „t|i,.r is desirahle the house should be informed of." circinnstaiics. The committee on a bill for confirming letters patent Letters patent are to see, in compliance with the standing orders, " that there be a true copy of the letters patent annexed to the bill."' This copy should be attached to the bill when first brought into the house; and if its omission were noticed in the house at any time before the bill was in committee, the bill might be ordered to be withdrawn. The following standing orders relate specially to bills inclosurc and for the inclosure and drainage of lands; and the compliance '"'""''S'^ ^' with them is to be examined and enforced by the com- mittee on the bill : — " The committee, on a bill for inclosing lands, may admit proof Inclosure bills, of the notices re([uired by the standing orders, and of the allega- Notices and tions in the preamble of such bill, by affidavit taken and authen- ^ ^^^ *""^' ticated according to the form prescribed in the schedule to the General Inclosure Act, ^ unless such committee shall otherwise order."' " That the committee shall in the first place require the agent Consent bill for the bill to deliver in to the committee a printed copy of the "'"' stsitenicut bill, signed by the lord of the manor (in cases where the lord of be ddfvered in. the manor has any interest as such in the lands to be inclosed), and by such owners of property within the parish to which the bill relates as shall have assented thereto ; but that the parties, if they shall think fit, be permitted to deliver in different copies of the bill, separately signed by the several parties hereinbefore mentioned, instead of one copy signed by all of them collectively ; together with a list of all the owners of property within such parish, showing the value, according to the poor rate or land tax assessment, of each owner's property therein, and distinguisiiing which of them have assented, dissented, or are neuter in respect thereto." ^ But on a report from the committee that the lord of the manor had declined to sign the bill, but did not oppose it, and desired to remain neuter, this part of the order has been dispensed with.' » Com. S. O. No. 89. ' 41 Geo. 3, c. 109. ' Con.. S. O. No. 90. * lb. No. 91. * Thetford Inclosure, 1 April 1844; Votes, p. 549. E £ 3 422 PROCEEDINGS OF COMMITTEES Drainage bills. luclosure bills. Clause for leaving: open space for exer- cise and recrea- tion. Consent bill to contain names of commis- sioners, and compensations for manorial rights, tithes, and enfran- chisements. Disqualifica- tion of certain persons as com- missioners, sur- veyors, &c. Clauses for settling pay of commissioners, and passing tlieir accounts. Turnpike Roads (Ireland). Clause for qua- lification of commissioners. A similar standing order is applicable to drainage bills ; but it extends to occupiers as well as owners, and omits the part relating to the lord of the manor.' It is ordered, " That in every bill for inclosing lands, provision be made for leaving an open space in the most appropriate situation, sufficient for purposes of exercise and recreation of the neighbouring popu- lation ; and that in any case where the information required by the standing order is not given, and the required provissions are not made in the bill, the committee do report specially to the house the reasons for not complying with such order." ^ " That in every bill for inclosing lands, the names of the com- missioners proposed to be appointed, and the compensation in- tended for the lord of the manor and the owners of tithes, in lieu of their respective rights, and also the compensation intended to be made for the enfranchisement of copyholds, where any bargains or agreements have been made for such compensations, be inserted in the copy of the bill presented to the house ; and that all copies of such bills which shall be sent to any of the persons interested in the said manor, tithes, land, or commons, for their consent, do contain the names of such proposed commissioners, and also the compensations so bargained or agreed for." ' " That no person sliall be named in any bill for inclosing lands as a commissioner, umpire, surveyor, or valuer, who shall be inte- rested in the inclosure to be made by virtue of such bill ; or the agent ordinarily entrusted with the care, superintendence, or management of the estate of any person so interested."^ And in every bill for inclosing, draining, or improving lands, clauses are required to be inserted for settling pay of commis- sioners, and passing their accounts, upon principles laid down in the standing orders."* The committee on a turnpike road bill relating to Ireland are to observe the following standing order : " That in every bill for making a turnpike road in Ireland, or for the continuing or amending any Act passed for tliat purpose, or for the increase or alteration of the existing tolls, rates, or duties upon any such road, or for widening or diverting any such road, a clause be inserted to prevent any person who shall be nominated a commissioner from acting or voting in the business of the said turnpike, imless he shall be possessed of an estate in land, or of a personal estate, to such certain value as shall be spe- ' Com. S. O. No. 92. * lb. No. 95. =" lb. No. 93. ^ lb. No. 96. lb. No. 94. ON PRIVATE BILLS. 423 cified in such bills ; and that such qualidcation be extended to the heirs apparent of persons possessed of an estate in land to a certain value to be specified." ' Havinp- oiven at lenoth the orders which are to be ob- General ]no- ^ '^ '^ ceediiifr-'i of served by committees, in reference to the proof of com- committees on phance with the stariding orders, and the pecuhar provisions '"" required to be inserted in particular bills, the general pro- ceedings of committees upon private bills may be briefly explained; which are partly regulated by the usage of Parliament, and partly by standing orders of the house. The ordinary proceedings of a committee on a private bill are the same as those of other select committees, and are fully explained elsewhere.'* The chairman puts every ques- tion, which is determined by a majority of the committee, and when the numbers are equal, by the casting vote of the chairman, who never votes on any other occasion. When counsel are addressing the committee, or while wit- Room, when ... . . open, nesses are under exammation, the committee-room is an open court ; but when the committee are about to de- Cleared. liberate, all the counsel, agents, witnesses, and strangers are ordered to withdraw, and the committee sit with closed doors. When they have decided any question, the doors are again opened, and the chairman acquaints the parties with the determination of the committee, if it concern them. The first proceedino; of a committee on an opposed bill, Parties appear 1 => _ ' ' . before tiie coni- after the appointment of the chairman, is to call in all the mittee, parties. The counsel in support of the bill appear before the committee ; the petitions against the bill are read by the committee clerk, and the counsel or agents in support of each present themselves. It may here be observed that by a standing order, 3d January 170 1, it was ordered, "That it be an instruction to the committee of privileges and elec- tions, that they do admit only two counsel of a side in any cause before them."^ This order has been understood to ' Com. S. O. No. 97. - See supra, p. 230, vt acq. ' 13 Com. J. 048 E E 4 424 PROOF Ol- PREAMBLE. Case opened. Proof of pre- aiiible. Parties heard against pre- amble. apply to all committees ; ^ but by its words it would appear to be limited to a committee which is no longer in exist- ence; and in practice it is certainly not observed.''' If no parties, counsel, or agents appear when a petition is read, the opposition on the part of the petitioners is held to be abandoned : and unless they state their intention to oppose the bill, before the case is opened, they are not afterwards entitled to be heard, without special leave from the com- mittee. When the parties are before the committee, the senior counsel for the bill opens the case for the promoters; the character of which will depend upon the parts of the bill to v/hich objections are urged by the opponents. Unlike the practice in regard to public bills, the preamble of a private bill is first considered ; and if the preamble be opposed, the counsel addresses the committee more parti- cularly upon the general expediency of the bill, and then calls witnesses to prove every matter which will establish the truth of the allegations contained in the preamble. In a railway bill, this is the proper occasion for producing evidence to satisfy the committee upon all the points which, by the standing orders, they are obliged to report to the house.^ The witnesses may be cross-examined by the counsel who appear in support of petitions against the preamble, but not by the counsel of parties who object only to certain provisions in the bill. After the cross-examination, each witness may be re-examined by the counsel in sup- port of the bill. When all the witnesses in support of the preamble have been examined, one of the counsel for the bill sums up the case for the promoters. The committee, who have all the petitions before them, determine in each case whether counsel are entitled to be heard against the preamble. Objection is often taken by the promoters of the bill to counsel being heard against Ilaii^sard's Debates, 02 N. S. p. 311. See Supp. to Voteb, 1843, p. 77. HO. Sec svpru, p. 419. PROOF OF PREAMBLE. 425 the preamble, on account of the j)ecuHar and hmited in- terests of the parties, or the words of the petition itself. It is always advisable for parties who object to the entire bill, to state specially in their petition that they desire to be heard against the preamble ; but these words alone will not entitle them to be heard, if the committee determjne that they have no interest, or locus standi before the committee;* or that the petition is informal.'* The counsel who objects to a party being heard, is entitled to support his objection by a speech, and is answered by the counsel claiming to be heard, to whom he may reply. Sometimes the committee decide without having heard counsel, and are afterwards induced to hear them upon that decision, with a view to its reconsideration.^ When counsel are allowed to be heard against the preamble, one of them opens the case of the petitioners ; witnesses may be called and examined, in sup- port of the petition, cross-examined by the counsel for tlie bill, and re-examined by the counsel for the petitioners. The evidence against the preamble is then summed up by the counsel for the petitioners, and the senior counsel for the bill replies on the whole case. If the petitioners do not examine witnesses, the counsel for the bill has no right to a reply, unless new matter (as, for examj)le. Acts of Parliament, or precedents,) have been introduced by the opposing counsel ; to which, however, his observations in reply must be confined. When the arguments and evidence upon the preamble Question upon have been heard, the room is cleared, and a question is ^'^'''"" put, " That the preamble has been proved," and affirmed or denied by the committee. If affirmed, the committee call in the parties, and go through the bill clause by clause, and fill up the blanks ; and when petitions have been pre- » See Supp. to Votes, 1843, p. 101. * See supra, pp. 303, 304. In the Glasgow Gas Bill, 1843, objection was taken to a petition, that its seal was not the corporate seal of a company ; and all the evidence in support of the petition was ordered to be expu'i^cd. ^ See Supp. to Votes, 1843, p. 131. 426 ALTERATIONS OF PREAMBLE. Preamble not proved. Alterations in preamble. sented against a clause, or proposing amendments, the parties are heard in support of then* objections or amend- ments as they arise : but clauses may be postponed and considered at a later period in the proceedings, if the com- mittee think fit. When all the clauses of the bill have been agTeed upon, new clauses may be offered either by members of the committee or by the parties ; but it must be borne in mind, that the committee may not admit clauses or amendments which are not within the order of leave ; or which are not authorized by a previous compliance with the standing orders. If the proof of the preamble be negatived, the commit- tee report at once to the house, " That the preamble has not been proved to their satisfaction." This is the only report required to be made; and although the house had affirmed the principle of the bill on the second reading, no reasons are given by the committee for thus practically reversing the judgment of the house. The want of such information is obvious; and in 183G the committee on the Durham (South West) Railway Bill, were ordered to re- assemble, " for the purpose of reporting specially the pre- amble, and the evidence and reasons, in detail, on which they came to the resolution that the preamble had not been proved : " ' and it is suggested that, without any in- struction, every committee should be required to state the grounds of their decision to the house, when they report that the preamble has not been proved. This principle has recently been adopted in reference to alterations in the preamble, which may be made by a com- mittee, subject to the following limitations : 1. That nothing in any degree inconsistent with the notices given in compliance with tlie standing orders of the house ai)pli- cahie to the bill should be introduced. 2. That every alteration so made in a preamble should be specially noticed in the report of the jjill to the house. 3. That, together with the notice in the report of any alteration ' 91 Com. J. 3LIC. SPECIAL REPORTS ON PRIVATE BILLS. 427 80 made in the preamble, the ground of making it sliould be stated.' There are particular duties of the chairman and of the committee on a private bill, in recording the proceedings of the committee, and reporting them to the house, which remain to be noticed. These are distinctly explained in the standing orders, and are as follow : " That every plan, and book of reference thereto, which shall Plan, &c. to be produced in evidence before the committee upon any private ^f fa"f f ^« bill), on which the amendments are to be fairly written ; and also chairmau. sio-n, with the initials of his name, the several clauses added in the committee." ^ " That the chairman of the committee upon every private bill Chairman to shall report to the house that the allegations of the bill have been J'^'l-o.^j^'of"";!]' examined, and whether the parties concerned have given their ^g, consent (where such consent is required by the standing orders) to the satisfaction of the committee."* " That every committee to whom any ])rivate bill shall have Committee to been referred, shall report the bill to tlie house, whether such report bill ni all committee shall or shall not have agreed to the preamble, or gone through the several clauses, or any of them; and when any alteration shall have been made in the preamble of the bill, such alteration, together with the ground of making it, shall be spe- cially stated in the report." * " That the minutes of the committee on every private bill be Minutes of brought up and laid on the table of the house, with the report of conumttee. the bill." « If matters should arise in the committee apart from the Special reports, consideration of the bill referred to them, which they de- sire to report to the house; the chairman should move that leave be given to the committee to make a special report. ' Report on revision of standing orders, 1843, p. iii. 2 Com. S. O. No. 79. ^ lb. No. 80. ' lb. No. 81. ^ lb. No. 82. ■* lb. No. S\i. 428 SPECIAL REPORTS OX PRIVATE BILLS- Tlie house may also instruct the committee to make a special report. A case of a very unusual character oc- Hrighton rail- curred iu 1S37, wliicli deserves particular notice. The bills lines. ° for making four distinct lines of railway to Brighton had been referred to the same committee : when an unprece- dented contest arose among the promoters of the rival lines, and at length it was apprehended that the preamble of each bill would be neg-atived, in succession, by the combination of three out of the four parties against each of the hues in which the three were not interested, and on which the committee would have to determine separately. This result was prevented by an instruction to the committee " to make a special report of the engineering particulars of each of the lines, to enable the house to determine which to send back for the purpose of having the landowners heard and the clauses settled.'' ^ This special report was made accordingly ; but the house being unable to decide upon the merits of the competing lines, agreed to address the Crown to refer the several statements of enoineering particulars to a military engineer.^ On the report of the engineer appointed, in answer to this address, the house instructed the committee to hear the case of the land- owners upon the direct line.^ Witnesses, how In reference to special reports, it may here be repeated "* to be Slim- . "^ r > moned. that committees upon private bills have no j)ower of send- ing for persons, papers, and records. The parties are generally able to secure the attendance of their witnesses, without applying to the committee ; but when they desire to compel the attendance of an adverse or unwillino- wit- ness, they should apply to the committee, who, when satis- fied that due diligence has been used, and that the witness is material to the inquiry, direct a special report to be made to the house ; upon which an order is made by the house to oblige the witness to attend and give evidence before the committee.' ' 1)2 Com. J. 3iG. Mb. 417. » lb. J19. Sec suprct, i>.2^0. ^ 98 Com. J. 162, 103. 174. 279. 288. TIME LIMITED FOR REPORTS. 429 Besides makino- the prescribed form of report, or special Evidence =■ ' I ' r reported, reports in particular cases, the committee may have leave given to report the minutes of evidence taken before them; which may be ordered to be printed, at the expense of the parties,^ if they think fit; and even, in special cases, at the expense of the house. ^ A time is limited by the house, at the commencement of J'"ie limited '' . • 1 /• reports. every session, after which no report will be received from committees on private bills. Occasionally this time is extended to all committees, and sometimes to particular committees only. When the time for reporting has nearly expired, and the inquiries of a committee will probably continue for some days longer, the chairman should be Extended, instructed to move in the house, " That leave be given to the committee to report on or before a certain day." An application of this kind is rarely refused, provided the bill be actually in committee prior to the last day allowed for the report ; and the time is sometimes further extended on renewing the application; but cases have occurred in which any extension of time has appeared insufficient to enable the committee to close their inquiries and report the bill, with a chance of its passing during the current session. On one occasion, a report was made, that from the pro- tracted examination of witnesses, the promoters desired leave to withdraw their bill, and that the committee had instructed the chairman to move for leave to lay the minutes of evidence on the table of the house.^ In another case, the committee reported " That it would be impossible for the bill to pass during the present session, and that it would be unjust and nugatory to request any further extension of time for making their report." ^ It is the duty of every committee to report to the house ^yjj^;^^!j ^'^ ^ the bill that has been committed to them, and not by long > 81 Com. J. 343. 91 lb. 338. 98 Ih. 324. * Clarence Railway, 1843. Supp. to Votes, otli May, p. 83. ' 79 Com. J. 445. * 80 1b.o73. 430 REPORT OF PRIVATE BILLS, Adjournment of committees Committees revived. adjournments, or by an informal discontinuance of their sittings, to withhold from the house the result of their proceedings. If any attempt of this nature be made to defeat a bill, the house will interfere to prevent it. Thus, in 1825, the committee on a private bill having adjourned for a month, was " ordered to meet tomorrow and proceed on the bill;"^ and again, on the 23d March 1836, the house being informed that a committee had adjourned till the 16th May, ordered them "to meet tomorrow and proceed on the bill."^ Whenever a committee adjourns, the committee clerk is required to give notice in writing to the clerks in the Private Bill Office, of the day and hour to which the committee is adjourned."* If a committee adjourn, without naming another day for resuming their sittings ; or if any informality in the notices prevent the committee from sitting ; or if, from the absence of a quorum, the committee be unable to proceed to busi- ness, or to adjourn to a future day ; they have no power of re-assembling without an order from the house ; and the committee is said to be revived, when this intervention of the house is resorted to. The form in which the order is usually made is, " That the committee be revived, and that leave be given to sit and proceed on a certain day." To avoid an irregularity in the adjournment, care should be taken to appoint a day, before the proceedings of the com- mittee are interrupted by the serjeant-at-arms giving notice that the speaker is at prayers. When the report has been made out by the committee, the committee clerk delivers in to the Private Bill Office a printed copy of the bill, with the written amendments made by the committee ; and with every clause added by the committee regularly marked in those parts of the bill Amended bill to in which they are to be inserted.^ In strict conformity be printed; ^vith this authenticated copy, the bill, as amended by the ' 80 Com. J. 474. * 91 lb. 195. ^ Cy,„_ g_ q. No. 138. * lb. 140. Report. REPORT OF PRIVATE BILLS. 431 committee, is required by the standing orders to be printed at the expense of the parties, unless the committee report that the amendments are merely verbal or literal. When printed, they must be delivered to the doorkeepers, three an' T " 1 ■ • 11 1 • <■ 1 p -1 pL'tltlOIl to DC dissented at the meeting called m pursuance or the aforesaid heard, standing order, to empower any company already constituted by Act of Parliament to execute any work other than that for which it was originally established, such proprietor shall be permitted, on petitioning the house, to be heard by the committee on standing orders on the compliance with the standing orders, by himself, his agents and witnesses, or by the committee on the proposed bill, by himself, his counsel or agents, and witnesses." 2. It is an order of the lords,^ " That when any alteration shall have been made, or shall be desired by the parties to be made, after the introduction of the bill into Parliament, in a work included in the second class of bills, a plan and section of such alteration, on the same scale, and con- taining the same particulars as the original plan and section, together with a book of reference thereto, shall be deposited with the clerk of the peace in England, and in the oflSce of the sheriff clerk in Scotland, in every county in which such alteration is proposed to be made ; and a copy of such plan and section, so far as relates to each parish, together with a book of reference, shall be deposited, in England with the parish clerk, and in Scotland with the schoolmaster, or in royal burghs with tiie town clerk, and in Ireland with the jiostmaster of the jrost-town in or nearest to each parish in which such alteration is intended to be made, one month previously to the introduction of the bill for making such work, into this house. And the intention to make such alteration shall be published in the London, Edinburgh, or J)ulilin Gazette, as the case may be, and some one and the same newspaper of the county in which such alteration is situate, or if there be no such paper, then in the newspaper of some adjoining county, for three successive weeks previously to the introduction of the bill into this house. And personal application, with a notice in writing, shall be made to the owners or reputed owners, and lessees, or in their absence from the United Kingdom, to their agents, and to the occupiers of lands through which the alteration is intended to be Alterations of plans, sections, &c., to be deposited ; with whom ; when. Notices to be given of altera- tions ; wlien. Personal appli- catiiiii to owners, &c., ' Lords' S. O. No. -J-iS (0). F F 3 438 ALTERATION OF PLANS. and cousents. Deposit of plans of altera- tions in the House of Lords. Map?, &c. an- nexed to bills of the second class. Private bills to be printed be- fore second readintr, and delivered to parties before meeting of com- mittee. Not to be read before the bear- ing of causes. made ; and the consent of such owners or reputed owners, or lessees, and occupiers, to the making of such alteration, shall be proved to the satisfaction of the committee before whom the compliance with the standing orders shall be proved." 3. It is also ordered, in reference to alterations of plans, " That previous to any bill for making any work, included in the second class, being brought to this house from the commons, in which any alteration has been made in its progress through Parliament, a map or plan, and section of such work, showing any variation, extension, or enlargement whicli is intended to be made in consequence of such alteration, shall be deposited in the office of the clerk of the Parliaments ; and that such map or plan, and section, shall be on the same scale, and contain the same par- ticulars as the original map or plan, and section of the said work." • 4. " That previous to the second reading in this house of any bill of the second class, the map or plan of the work, as intended to be made by the said bill, shall be engraved or printed, upon the scale of an inch at least to a mile, and annexed to the printed copies of the bill, and shall be laid upon the table of this house."* These are the several standing orders of the lords, peculiar to that house, which must be proved before the standing order committee, when a bill is opposed, and when unopposed, before the committee on the bill. Others will presently be added, in describing the further stages of bills. Private bills of every description are subject to the followintr standino- order : " That for the future no private bill shall be read in this house a second time until printed copies thereof be left with the clerk of the Parliaments, for the perusal of the lords ; and that one of the said copies shall be delivered to every person that shall be con- cerned in the said bill, before the meeting of the committee upon such bill ; and in case of infancy, to be delivered to the guardian or next relation of full age, not concerned in interest or in the passing of tlie said bill."^ By another standing order, when any cause shall be ap- pointed to be heard in this house, no private bill whatso- ever shall be read that day before the hearing of the cause.* ' Lords' S. O. No. 223 (10). ' lb. (11). Mb. Xo. 00. * Ibid. SECOND READING AND COMMITMENT. 439 The second reading, as in the commons, affirms the Second reading principle of the bill, and is immediately followed by the ',uent. commitment. Unopposed private bills are referred to "all unopposed bills the lords present this day," who are presided over by the ^^^^"^l'^^^ "I'^n c J ' r •> committees, chairman of the lords' committees, whose duties in refer- ence to private bills are similar to those of the chairman of ways and means in the house of commons. These open committees are attended by any of the lords who had been present; but the business is practically transacted by the chairman of committees, and the responsibility is vested in him by the house. He is assisted in his duties by a Counsel to ... chairman of counsel attached to his office, who examines the provisions committees. of every private bill, and points out any variance with the standing orders, or the general laws of the country. He prepares the same information, in fact, for the chairman of committees in the lords, that the breviates of private bills are intended to furnish to the House of Commons. The chairman of committees may, in any case, report Unopposed bills ,. .. ,, , ii-ii lix when treated as his opmion to the house, that an unopposed bill ought to opposed. be proceeded with as an opposed bill ; in which case it will be referred to another committee, as if it had been treated as an opposed bill in the first instance,^ Every opposed private bill is referred to a select com- Committees on ^ ^^ 1 1 1 1 xi ■ 1 • opposed bills, mittee of five lords, who choose their own chairman. Every lord appointed on the committee is ordered to attend during the whole continuance of the inquiry ; and no lord who is not one of the five, is permitted to take any part in the proceedings. Lords are exempted from serving on the committee on any bill in which they are interested, and may be excused from serving for any special reasons, to be approved of in each case by the house. These committees are appointed in a manner very similar ^JJ""j,"^^ "^ to that adopted in the commons, by a committee resembling the committee of selection. A committee is named by the house every session, consisting of the chairman of coni- ' Lords' S. O. No. 210. F F 4 440 LORDS COMMITTEES Sittings of com- mittees on bills. Proceedings of committees on bills. '\\'itr!es8es on ojith. Petitioners lieard. mittees and four other lords, who select and propose to the house the names of the five lords who are to form a select committee for the consideration of each opposed private bill : but the committee may not be named to the house on the same day on which the bill is read a second time. The house appoint the time for the first meeting of the committee, and the attendance of the lords is very strictly enforced. It is ordered, " That the committee sliall meet not later than eleven o'clock every morning, and sit till four, and shall not adjourn at an earlier hour without specially reporting the cause of such adjournment to the house at its next meeting; nor adjourn over any days except Saturday and Sunday, Christmas Day, and Good Friday, without leave of the house." "If any member is prevented from continuing his attendance, the committee shall adjourn, and report the cause of such member absenting himself to the house at its next meeting, and shall not resume its sittings without leave of the house." The committee on the bill, whether opposed or not, per- form the same duties as in the commons. They examine the provisions of the bill, make amendments, add clauses, and, in particular cases, inquire into the compliance with standing- orders. No committee, however, on a railway bill of the second class, or on an opposed bill in any of the three classes, may examine into the compliance with such standing orders as are required to be proved before the standing order committee.' The proceedings of a lords' committee differ in no ma- terial point from those of a committee in the commons, except that witnesses are examined upon oath, previously administered at the bar of the house. When petitions against the bill are referred, the parties are heard by them- selves, their counsel, agents, and witnesses, in the same manner, and subject to the same rules, as in the commons. Some are heard upon the preamble, and others against Lord.*" S. O. No. 21!) i8). ON PRIVATE BILLS. 441 particular clauses, or in support of new clauses or amend- ments : but tiie committee require both parties to state ail the amendments which they intend to propose, before the room is cleared for the purpose of deliberating upon the preamble. The bill is gone through, clause by clause, and after all amendments have been made, it is reported, with the amendments, to the house. The proceedings of lords' committees upon private bills Special stand- differ also, in some cases, from a committee in the com- proved or en- mons, in regard to particular matters, which, by special '^■■'^*^"- standing orders, are required to be proved or enforced there, either in relation to all bills, or to bills of particular classes or descriptions. These orders may now be enu- merated. The first relates to the payment of the purchase-money Payment of of lands, &c. into the bank, and ap})lies to bills of all {l^o'nev^nto the the three classes in which powers are given for the pur- ''''"^' ^^• chase or exchange of lands, where sums are to be laid out in the purchase of lands. It is ordered, that in all such bills provision shall be made for the payment of the pur- chase-money into the Bank of England, or into one of the banks of Scotland established by Act or royal charter, or into the Bank of Ireland ; with special conditions par- ticularly laid down in the standing orders.* And certain Inclosnrc and , . , draiua'^c bills, powers, in reference to the purchase-money so dej^ositecl, are required to be given to commissioners in inclosure or drainage bills, when they find any difficulty in obtaining a purchase in land of equal value, or when the purchase is otherwise disadvantageous.* In all bills, the committees on which are to receive proof of consents, it is ordered, " That no notice shall be taken by the committee of the consent Consent!" to of any person, except trustees for a charity, to any private bill, f"p"*^J„'j,'"|* ^^j. unless such person appear before such committee, or proof be made ^n KiVidavit of to such committee, by two credible witnesses, that such person is disability made, not able to attend, and doth consent to the said bill." » ' Lords' S. O. No. 227. ' lb. No. 228. ' lb. No. 94 A. 442 LETTERS PATENT BILLS. How consent of trustees for charitable pur- ])oses to be sig- nified. Letters patent bills, special orders. Cemeterj' or burial ground. Levels of roads. " That the consent of all trustees for charitable purposes may be given to any private bill by which the estate, revenues, manage- ment, or regulation of the charity may be affected, by each of such trustees signifying his assent to such bill by signing a printed copy of the said bill, in the presence of one credible witness, who shall attest such signature." ' Compliance with the following standing orders specially relating to bills for extending the terms of letters patent, is to be proved before the committee on the bill : — 1. " That no bill for extending the term of any letters patent for any invention or discovery granted under the great seal of England, Scotland, or Ireland, shall be read a third time in this house unless it shall appear that the letters patent, the term of which it is intended by such bill to extend, will expire within two years from the commencement of the session of Parliament in which the application for such bill shall be made." 2. " That no such bill shall be read a third time unless it shall appear that the application to Parliament for extending the term of the letters patent is made by the person, or by the representa- tives of the person, who himself originally discovered the invention for which such letters patent were granted by his majesty; and that the knowledge of such invention was not acquired by such person as aforesaid, by purchase or otherwise, from the inventor or owner of the same, or by information that such invention was known and pursued in any foreign country." ^ The following order respecting a cemetery or burial ground is to be proved before the committee on the bill : — " That no bill for erecting or making any cemetery or burial ground shall be read a third time unless the committee on such bill shall report that such bill contains a provision whereby the company, or persons or person intended to be authorized by such bill to make or erect such cemetery or burial ground, are restricted from erecting or making the same, or any part thereof, within 300 yards of any house of the annual value of 50Z., or having a planta- tion or ornamental garden or pleasure ground occupied therewith, except with the consent of the owner, lessee, and occupier thereof, in writing." ' With regard to bills of the second class, except bills for turnpike roads, the committee on the bill are to require, 1, That distinct provision is to be made as to the level of roads, when altered by making any work, and the height Lords' S. O. No. 94 b. ' lb. No. 229. ' lb. ISo. 230. RAILWAY BILLS. 443 of the fences ; and, 2, That unless the work be completed Time limited for within a limited time, the powers of the Act are to cease, <^""'l'''-t"'K 'I ' works. except in regard to so much of the work as shall have been completed.^ But the first of these orders being also enforced by the commons, a provision is made in that house to effect the proposed object, if omitted in the original bill:^ and a clause embodying the purport of the second, is always inserted in bills of the second class, when first introduced into the commons. The committee on every opposed railway hill are ordered Railway bills. to report specially the various particulars^ which are in- Special reports, quired into by the committee in the house of commons, and which have already been enumerated.^ In cases where there is no opposition, or no parties appear in support of an opposing petition, or where the opposition is withdrawn, it is at the discretion of the committee to determine how far it may be necessary to inquire into these particulars.^ Unless a committee, in virtue of this permission, report that they have not inquired into the several facts required to be proved, the house will not proceed with the further consideration of the report, until it has received from the committee specific replies in answer to each of the ques- tions.'' In addition to the general inquiries thus conducted by Provisions re- the committee on a railway bill, they are ordered to observe hi"s'ertcd. that particular provisions be inserted, 1, For restricting loans or mortgages; 2, For maintaining the levels of roads; 3, For restraining the crossing of roads on a level. These are all similar to those required by the standing orders of the commons, and must therefore be included in the bills when they are first received by the lords. 4, That the powers of making works shall cease, unless completed ' Lords, S. O. No. 231 (1) (2). ' See svpra, p. 417. » Lords' S. O. No. 232 (1). ■* Supra, p. 419. ^ Lords' S. O. No. 232 (3). ' lb. 232 (2). 444 RAILWAY BILLS. within a certain time. This provision has already been noticed in reference to bills of the second class generally ; and it is always contained in the original bill, as brought up to the lords. 5, The lords also order three clauses to be inserted in every railway bill, precisely the same as those already noticed as required by the standing orders of the commons ; ' viz., for the deposit of amended plans ; for limiting deviations from the datum line in the section; and for restraining diminutions of curves. Unless these several provisions are included in the bill when it leaves the committee, the lords will not read it a third time. It is further ordered, Amended rail- " That all private bills relating to railways which shall have way bills to be been opposed, and in which any amendments shall have been rtprin e . made in the committee, shall be reprinted as amended, ])reviously to the third reading, unless the chairman of the committee shall certify that the reprinting of such bill is unnecessary."* • Supra, p. 418. ^ Lords' S. O. No. 47. LORDS BILLS. 41.0 CHAPTER XXVIII. RULES, ORDERS, AND COURSE OP PROCEEDINGS IN THE LORDS UPON PRIVATE BILLS BROUGHT INTO THAT HOUSE UPON petition; and proceedings of THE COMMONS UPON PRIVATE BILLS BROUGHT FROM THE LORDS. LOCAL AND PERSONAL, AND PRIVATE ACTS OF PARLIAMENT. Having traced the progress of private bills received or Privato i)iii« , originatiiii^ in returned from the commons, through every stage to the the lords. report inclusive, it is time to advert to the proceedings peculiar to those bills which are first brought into the lords ; as, after the report, the proceedings upon both classes of bills are nearly the same. On the same principle as that observed in the commons. Petitions for . . , , bilb. it is ordered, " That for the future no private bill shall be brought into this house until the house be informed of the matters therein contained, by petition to this house for leave to bring in such bill;"' and, " that all parties concerned in the consequences of any private bill shall sign the petition that desires leave to bring such private bill into this house." ^ To this rule, however, there is a remarkable exception. Bills for res- Bills for reversing attainders; for the restoration of honours ,,'„1|, ,',','," 'and and lands ; and for restitution in blood, are first signed by "' i^'"^- the Sovereign, and are presented by a lord to tlio House of Peers, by command of the Crown ; after which llicy pass through the ordinary stages in both houses, and receive the royal assent in the usual form. The lords having power to consult the judges in matters of law, order, " That when a petition for a private bill shall be offered to this ^'^'•''Y|'|,J""^'"^^ house, it shall be referred to two of the judges, who, after perusing <^*^^^'^ J' ^^^^' the bill, without requiring any proof of the allegations therein „f the judges, contained, are to report to the house their opinion thereon, under their hands ; and whether, pres uming the allegations contained in ' Lords' S. O. No. 05. ' lb. No. 98. 3 oG Lords' J. 200. 425; and Report of Precedents, il). 28G. 446 CONSENTS TO ESTATE BILLS. the preamble to be proved to the satisfaction of the lords spiritual and temporal in Parliament assembled, it is reasonable that such bill do pass into a law, and whether the provisions thereof are proper for carrying its purposes into effect, and what alterations or amendments, if any, are necessary in the same : and in the • event of their approving the said bill, they are to sign the same." ' But this order is only applicable to estate bills. At the commencement of every session, an order is made that no petitions for private bills shall be received after a certain day; nor any report from the judges thereon, after another day more distant ; but this order, like the preced- ing, refers to estate bills alone ; and all further proceedings Judges' report, upon such bills are suspended until the report of the judges is received, as it is ordered, " That no private bill, the petition for which shall be referred to two of her Majesty's judges, shall be read a first time until a copy of the said petition, and of the report of the judges there- upon, shall be delivered, l)y the party or parties concerned, to the lord appointed by this house to take the chair of all committees."' When this has been done, the bills may proceed through their several stages. But before the proceedings of the house are entered upon, it will be necessary to cite several special standing orders relating to particular bills. In the case of private bills concerning estates in land or heritable subjects in Scotland, it is ordered, that when the petition is offered to the house, " It shall be referred to two of the judges of the Court of Session, who are forthwith to summon all parties before them who may be concerned in the bill ; and after hearing all the parties, and perusing the bill, are to report to the house the state of the case, and their opinion thereupon, under their hands, and are to sign the bill." » The same method is ordered to be adopted before the second reading of Scotch estate bills sent up from the commons ; but in practice, nearly all bills of this nature are first solicited in the lords, whose proceedings are greatly facilitated by their power of delegating inquiries to the judges. It is further ordered, ' Lords' S. O. No. 9!). ' lb. No. 17u. ^ lb. No. 131. Estate Bills, Petitions for Scotch estate bills. CONSENTS TO ESTATE BILLS. 447 " That all persons concerned in the consequences of such private ronw?nM to bills, and who reside in Scotland, may give their consent to the j^.":"*'^'' '^*'**<^ passing of such bills before two of tlie judges of the Court of Session, to whom such bills shall be referred ; and tlie certificate of the said judges, by which it shall appear that on a day and at a place to be therein expressed, such persons did appear personally before them, and being aware of the interest they may have in such bill, did give their consent themselves, and for 'those for whom, according to the law of Scotland, they may be entitled to consent, and did accept the trust proposed to be vested in them l)y the said bill, and did in their presence sign a bill (wliich bill, together with the said certificate, must be produced), shall be held as sufficient evidence of the consent of such persons before any committee of this house to whom the consideration of such bill may be referred." ' " That it be a general instruction to the judges who shall meet Consent of heirs to take the consent of heirs of entail concerned in the conse- °* entail, quences of private bills relating to estates in Scotland, that they take no notice of the consent of any person to the passing of such bill, iinless such person appear before them, or that it may be made manifest to them, bj^ an instrument under the hand of a notary public, duly executed according to the forms required by the law of Scotland, that he or she is not able to attend, and doth consent to the said bill." ^ " That it shall be sufficient to have the consent of the persons Proportion of concerned in the consequences of Scotch estate bills, in the follow- consents neces- ,. . sary. ing proportions ; viz. " Four-fifths of the ten next in succession to tlie person or persons applying for such private bill ; provided it is satisfac- torily proved to the committee that those of this the first ten whose consent has not been obtained are absent abroad, or cannot be found in the kingdom of Great Britain. " Two-thirds of the twenty next in succession after the said ten. " One-half of the twenty next in succession after the said twenty; and one-third of all the other persons concerned in the said bill; without ])rejudice, nevertheless, as heretofore, to every person concerned, to petition against the said bill, and to be heard for his interest therein." ^ In reference to estate bills generally, there are several Estate i.ill.s orders in force respecting consents— 1. Where a petitioner is ^'■"''™ ^' tenant for life, and another tenant in tail ; * 2. Where women have an interest;^ 3. Where children have an interest;^ ' Lords' S. O. No. 132. ' lb. No. 1^:3. ' lb. No. 107. ♦ lb. No. 145. ' lb. No. 140. " lb. No. 147. 448 ESTATE BILLS. Concprnins bills for spiling lands and imr- cliasing others in Scotland. Mode of refer- ring petitions for private bills relative to estates in Ire- land. Consents to Irish estate bills. 4. Trustees to consent in person in certain cases;' 5. That the appointment of new trustees is to be with the appro- bation of the Court of Chancery;' 6. Notice to be given to mortgagees when the petition for the bill is presented ; ^ 7. That bills for exchanging or selling settled estates are to have schedules of their value annexed,"* In bills for selling lands, and purchasing or settling others in Scotland, the committee on the bill are to take care that the values be fully made out, and to provide other securities for the fulfilment of the agreement ; which are particularly described in the standing orders.^ The standing orders in relation to Irish estate bills are very similar to those concerning estates in Scotland ; but the circumstances of the two countries differ so far as to make it necessary to cite part of the orders at length. ♦* When a petition for a jjrivate bill concerning estates in land situated in Ireland, shall be offered to this house, it shall be referred, if the parties desire it, to two judges of the Court of King's Bench, Common Pleas, or Exchequer, in Ireland, who are forthwith to simimon all parties before them who may be con- cerned in the bill, and after hearing all the parties and perusing the bill, are to report to the house the state of the case, and their opinion thereupon, under their hands, and are to sign the said bill : the same method is to be observed as to private bills con- cerning estates in land in Ireland, brought from the House of Commons, before the second reading of such bills." •' " All persons concerned in the consequences of such private bills, and who reside in Ireland, may give their consent to the passing of such bills before the two judges to whom such bills shall be referred ; and the certificate of the said judges, containing the particular,", required to be stated by the judges of the Court of Session, in regard to Scotch bills,'' shall be evidence of such consent." * And the same instruction is given to the judges as in the case of Scotland, to require the personal presence of persons consenting, except in certain cases." ' Lords' S. O. No. 148. * lb. No. 149. ' lb. No. 150. * lb. No. 151. All these orders are printed at length in the published collection of the standing orders of the lords relative to private bills, p. 0, 10. « lb. No. 156. * Lords' S. O. No. 153. ^ See p. 440. " Lords' S. O. No. 158. " Lords' S. O. No. 157. DIVORCE BILLS. 449 In regard to bills for selling- lands, and ])ur(.'hasing or settling others in Ireland, an order, similar to that in rela- tion to Scotch bills, mutatis mutandis, is binding upon the committee upon the bill.^ In regard to divorce bills, there are the following stand- Divoikr , . Bills. nig orders : — " That no petition for any bill of divorce shall be presented to Petition for this house unless an official copy of the proceedings, and of a divorce bill to definitive sentence of divorce a menm ct thoro, in the ecclesiastical ^'; 1*'"'^'**^" *^' ' with co|>y of court, at the suit of the party desirous to present such petition, the proceeilinps, shall be delivered upon oath at the bar of this house at the same ■-^c. in tlieeccle- ,•_ „, siasticul court, time. ^ " That no bill grounded on a petition to this house to dissolve No divorce bill a marriage for the cause of adultery, and to enable the petitioner to be received to marry afjain, shall be received by this house unless a provision ^^' .'^/'.^l'^ ^1**^ ■' ^ ' _ -^ '■ proliibiting the be inserted in such bill that it shall not be lawful for the person otflndiny whose marriage with the petitioner shall l)e dissolved to inter- parties from marry with any offending party on account of whose adultery '"^rrying. with such person it shall be therein enacted that such marriage shall be so dissolved ; provided, that if at the time of exhibiting the said bill such offending party or parties shall be dead, such provision as aforesaid shall not be inserted in the said bill." ^ But this clause is usually struck out in committee, except But struck out in committee. ni very peculiar cases. " That when any petition for any bill of divorce shall have been Proceedings presented to this house in any case in which any trial at nisi prius »" trial*, shall have been had, or any writ of inquiry executed within the United Kingdom, wherein the petitioner shall have been party, the judge or under-sheriff before whom such trial sliall have been had, or such writ of inquiry executed, do transmit to the clerk assistant, to be laid upon the table of this house, a report of the proceedings upon such trial or writ of inquiry ; and that no such bill of divorce be read a second time until sucii report shall have been so laid upon the table of this house." * " That upon the second reading of any bill of divorce, the peti- Petitioner to tioner praying for the same do attend this house, in order to his ^"'''^f/rlVdinu', being examined at the bar, if the house shall tliink tit, whether ^^, ^ exuminetl there has or has not been any collusion, directly or indirectly, on as tocoIhiM-m. his part, relative to any act of adultery that may have been com- mitted by his wife, or whether there be any collusion, directly or ' Lords' S. O. No. 151). ' lb. No. 141. 3 lb. No. 170. ' lb. No. 214. G G 4.30 JOINT STOCK COMPANY BILLS. Naturaliza- Tiox Bills. No bill to be read a second time without a certificate. Bills for regilation OF Trade. Respecting bills for the regula- tion of trade, &c. Respecting joint stock company bills. indirectly, between him and his wife, or any other person or per- sons, touching the said bill of divorce, or touching any proceed- ings or sentence of divorce had in the ecclesiastical court at his suit, or touching any action at law which may have been brought by such petitioner against any person for criminal conversation with the petitioner's wife ; and also whether, at the time of the adultery of which such petitioner complains, his wife was, by deed, or otherwise by his consent, living separate and apart from him, and released by him, as far as in him lies, from her conjugal duty, or whether she was at the time of such adultery cohabiting Avith him, and under the protection and authority of him as her husband."' It is ordered, " That no bill for naturalizing any person born in any foreign territory shall be read a second time until the petitioner shall pro- duce a certificate from one of his majesty's principal secretaries of state respecting his conduct." * It is ordered, " That no bill regulating the conduct of any trade, altering the laws of apprenticeship in relation to any particular business, affixing marks to designate the quality of any manufacture, pro- hibiting the manufacture of any species of commodity, or extending the term of any patent, shall be read a second time in this house until a select committee shall have inquired into the expediency or inexjjediency of the proposed regulations, and shall have reported upon the expediency or inexpediency of this house proceeding to take the bill into further consideration."^ It is ordered, *' That with the exception of bills for making or improving any turnpike road, navigation, aqueduct, cut or canal, tunnel or arch- way, bridge, ferry, dock, pier, port or harbour, wharf, stairs, or landing-place, and of bills for lighting, paving, or watching any one town, parish, or district, or for therein erecting or improving any market place or market house, or for the cultivation and im- provement of waste lands, or for establishing any cemetery, all bills brought into this house enacting and declaring that certain persons shall form a body politic and corporate, who shall only be bound to the extent of their respective shares, or granting to the same the privilege of a perpetual succession and a common seal, or the right of suing and being sued, pleading and being impleaded, at law or in equity, or of prosecuting any person who shall commit any felony, misdemeanor, or other offence ; or any bill conveying Lords' S. O. No. 142. " lb. No. 171. 3 lb. No. 198. JOINT STOCK COMPANY Ml I.I.-;. 1 ., 1 to any number ot'ijersons, who are not bound conjointly niwl .seve- rally to the extent of their respective fortunes, one or more of the aforesaid privileges; such bill, after being read a first time, shall be referred to a select committee ; and that no such bill shall be read a second time till the committee to which it is referred have reported that it has to them been proved, in a satisfactory manner, that three-fourths of the capital intended to form the -joint stock of such company is deposited in the Bank of England, or vested in Exchequer bills, or in the public funds, in the name of trustees, to be transferred to such company when they are by law constituted a body politic and corporate, or have by law ac«iuired any of the aforesaid privileges." ' " That when any bill shall be brought into this house granting and enacting, in favour of any body politic and corporate, pre- viously constituted such by royal charter, and who are not bound conjointly and severally to the extent of their respective fortunes, further privileges, such bill, if not intended to effect the objects specially excepted in the former motion, after being read a first time, shall be referred to a select committee ; and that no such bill shall be read a second time till the committee to which it is referred have reported that it has to them been proved, in a satis- factory manner, that three-fourths of the capital intended to form the joint stock of such company has been paid up by the individual proprietors." * When the reports from the judges upon petitions for wiien jndpps' estate bills have been delivered to the chairman of com- on'estut,''ii'iii.H. mittees, the bills may be presented and read a first time. If, however, a report of the judges should be adverse to an entire bill, it would not be offered to the house at all ; and if the report should object to particular provisions or sug- gest others, the bill would be altered accordingly, before its presentation. No particular interval is enforced between the first and s,*cond readinp second readings, and if printed copies of the bill have been °' ^'"''' delivered, and the bill be unopposed, it may be read a second time on any future day. If it be opposed upon its principle, this is the proper stage for taking the decision of the house upon it. It is not usual for petitions to be presented, praying to ' Lords' S. O. No. 210. ' lb. No. 211. G G 2 452 DIVORCE BILLS. Divorce bills. Dppositions in luilia. be heard against any private bills on the second reading, except divorce and peerage bills ; and in those cases, whether there are opposing petitions or not, counsel are heard and witnesses examined at the bar in support of the bill on the second reading. Notice of the second reading of a divorce bill, with an attested copy of the bill, signed by the clerk assistant, is required to be served upon the wife, or the husband if the bill be prosecuted by the wife; which service must be })roved on the second reading; but if the party cannot be found, or is in a distant part of the world, service will be allowed upon his or her agent, upon a petition from the agent of the promoter of the bill, stating the facts, and after the proof thereof on oath at the bar. In divorce bills, the proceedings of the ecclesiastical court, the sentence of divorce, and the proceedings in trials at nisi prius, are before the house, but are not ad- mitted as evidence to establish the fact of adultery. Of that, their lordships must be satisfied by other testimony offered at the bar ; and if that should fail, even when the application is unopposed, the bill will not be read a second time. And, as shown above, the petitioner is required to be in attendance to be examined as to collusion if the house think fit, unless a special order has been obtained to dispense with his attendance. The only occasion upon which the lords will receive evidence in support of a divorce bill, taken before other courts, is when the adultery is alleged to have been com- mitted in India; in whidi case depositions taken before the judges in India are admitted as evidence. By the Act 1 Geo. 4, c. 101, when any j)erson petitioning either house of Parliament for a divorce bill, states that the witnesses necessary to substantiate the allegations of the bill are resident in India, the speaker of such house may issue his warrant or warrants to the judges of the supreme courts of Calcutta, Madras, or Ceylon, or the recorder of Bombay COMMITMENT. 403 for the examination of witnesses ; and the evidence taken before them, accompanied by a declaration that the exami- nations have been fairly conducted, is admissible in either House of Parliament. The proceedings upon a divorce bill, when a warrant has been issued under this Act, are not discontinued by any prorogation or dissolutidn of Par- liament, until the examination shall have been returned ; but "such proceedings may be resumed and proceeded upon in a subsequent session, or in a subsequent Parlia- ment, in either House of Parliament, in like manner and to all intents and purposes, as they might have been in the course of one and the same session."' When a petitioner prays that evidence may be taken in Warrant for India, by virtue of this Act, it is referred to a committee J?*^'"^, '''i'"'''- upon whose report the orders are made for issuing the obtained, necessary warrants, and the bill is then read a first time. No further proceeding can then take place, until the depo- sitions have been returned from India ; and as they are not received in time to proceed while Parliament is sitting, the bill is not read a second time until the following ses- sion. If the proceedings of ecclesiastical and other courts have been laid before the house, upon a divorce bill, in the preceding session, the agent may petition the house to dispense with a second copy. All the ordinary private bills for estates, naturalization, Coinn.iiment. names, and other matters, are referred to an oj)en connnit- tee, being, as already explained, the lords then present;* who inquire whether all the standing orders have been complied with, and take care that the proper provisions are inserted. The committee on an estate bill may not sit until 10 days after the second reading.'' It is a standing order of the house, " That the lord who shall be in the chair of a committee to whom any private bill shall be committed, shall state to the house, when the report of such committee is made, how far the orders of ' 1 Geo. 4, c. 101, s. 4. - Supra, p. 4.38. ' Lords' S. 0. Xo. 94. G G 3 454 REPORT AND THIRD READING. Divorce bills to a committee of the whole house. Report of bills. Third reading and passing. Proceedings on lords' amend- luents. Lords' private bills ill tiic comiuoiis. the house, in relation to such jirivate bill^ have or have not been duly complied with. " ' Unlike other private bills, divorce bills instead of being committed to an open committee, or to a selected com- mittee, are committed, like public bills, to a committee of the whole house. All bills are reported with or without amendments, as the case may be ; and after the report, bills originating in the lords are ordered to be ingrossed before the third reading ; but commons' bills, being already ingrossed, only remain to be read a third time. The last stages of all private bills are the third reading and passing. If they have originated in the lords, they are sent down to the commons ; if they have been received from the commons, they are either agreed to without any amendments or returned with amendments. The proceedings between the two houses in regard to amendments to private bills, differ in no respect from those already described, with reference to bills of a public nature.'^ But when the amendments made by the lords to a bill are to be taken into consideration by the commons, notice must be given in the Private Bill Office on the previous day;^ which notice, however, may not be given until the bill has been received from the lords."* The lords' amendments when agreed to, are required to be entered, by the Private Bill Office, upon the printed copy of the bill, as amended in the committee, and there preserved. The bills sent down to the commons pass through the same stages, and are subject to the same rules as other private bills, except that name and naturalization bills need not be printed;' and that no breviates are prepared of divorce, name, or naturalization bills, nor of estate bills, unless they relate to Crown, church, or corporation pro- ' Lords' S. O. No. 162. ' Supra, p. 288. * Speaker's order, 10 May 1840. '■> Com. S. O. No. 146. ' lb. No. 109. DIVORCE BILLS IN THE COMMONS. 4:)5 perty, or property held in trust for public <»r cliurituble purposes.* The bills when received from the lords are read a first time and, unless they be name or naturalization bills, are referred to the committee on petitions for private bills. After their report that the standing orders have been com- plied with, or that no standing orders are applicable, the bills are read a second time; but three clear days must elapse between the first and second readings, and three clear days' notice of the second reading must have been given. They are then committed to the chairman of ways and means and two other members. The manner of dealing with divorce bills is peculiar, and differs from the mode of proceeding upon other bills. At the commencement of each session a committee is Divorce iiiiis in . . in ^''*^ couimous. appomted, consistmg or not more tlian 15 members, ol whom seven are a quorum, and is denominated " The Se- lect Committee on Divorce Bills." To this committee all divorce bills are committed after the second reading. An instruction is given to the committee " that they do hear counsel, and examine witnesses for the bill ; and also that they do hear counsel, and examine witnesses against the bill, if the parties concerned think fit to be heard by coun- sel, or produce witnesses." At the same time, a message is sent to the lords, to request their lordships to commu- nicate a copy of the minutes of evidence taken before them upon the bill, or for the depositions transmitted fiom India. When these are communicated, they are referred to the committee on the bill. It must be noticed that from the words of the instruction, the promoter is bound to examine witnesses, or otherwise to substantiate the allegations of the bill, and that the last part of the instruction only is permissive, in regard to parties opposing the bill. Besides this general instruction, the committee are desired by the standing order, ' Com. P.O. \.,. iin. G G 4 456 DIVORCE BILLS IN THE COMMONS. What evidence to be given in divorce cases. When peti- tioner for bill to attend committee. Committee to report bill in all cases. Lords' bills subject to the same intervids and stages. " To require evidence to be given before them that an action for damages has been brought in one of her Majesty's courts of record at Westminster, or in one of her Majesty's courts of record in Dublin, or in one of her Majesty's supreme courts of judicature of the presidencies of Calcutta, Madras, Bombay, or the island of Ceylon respectively, against the persons supposed to have been guilty of adultery, and judgment for the plaintiff had thereupon; or sufficient cause to be shown, to tlie satisfaction of the said com- mittee, why such action was not brought, or such judgment was not obtained." ' It is also ordered, " That the committee shall, in all cases in which the petitioner for the bill has attended the House of Lords upon the second reading of the bill, require him to attend before them to answer any questions they may think fit that he should answer;"' and, " That the committee shall report every such bill to the house, whether such committee shall or shall not have agreed to the preamble, or gone through the several clauses, or any of them." The party opposing a divorce bill may appear before the committee without presenting a petition to the house against the bill ; and the promoter of the bill must serve him or her with the orders of the house, and a copy of the bill. In case he should not be able to do this, his agent should present a petition, stating the circumstances, and praying that service upon the agent of the party may be good service. On the appearance of the opponent's agent, and his consent to accept the service of the orders, and a copy of the bill for his client, the house make the necessary order in answer to the petition. In compliance with the instruction and standing orders of the house, the committee make the necessary inquiries, and report, " That they have examined the allegations of the bill as to the marriage of tlie i)arties, the adultery charged as the ground for dissolving the marriage, the verdict at law, and the sentence of divorce in the ecclesiastical court; and uj)on evidence satisfactory to the committee, found the sanu' and other allegations to be true," Nothing need be added concerning the progress of lords private bills through the commons. They are subject to the same rules, and, with the exception of the ingrossment, ' Com. S. O. No. 98. I No. 09. PUIVATE ACTS PRINTED. 457 pass through the same stages, and with the same intervals and notices, as those which have ah'eady been detailed, in reference to private bills originating in the commons ; but if received at the close of a session, more indulgence is usually shown in dispensing with the orders of the house, and in permitting them to pass with less delays. ' All private bills, during their progress in the commons, Divi^ons of are known by the general denomination of private bills ; but in the lords the term "private" is applied technically to estate bills only, all other bills being distinguished as " local" or "personal," although in the standing orders no such distinction is expressed. After they have received the royal assent, private bills are divided into three classes : 1. Local and personal, declared public ; 2. Private, printed by the Queen's printers; and 3. Private, not printed. 1 . Every local and personal Act contains a clause, declaring Local and per- that it "shall be a public Act, and shall be judicially taken notice of as such," and receives the royal assent as a public Act. The practice of declaring particular Acts of a private nature to be " public Acts," commenced in the reign of William and Mary, and was soon extended to nearly all private Acts by which felonies were created, penalties in- flicted, or tolls imposed.^ Such Acts were printed with the other statutes of the year,* and were not distinguishable from public Acts, except by the character of their enact- ments; but since 1798 they have been printed in a separate collection, and are known as local and personal Acts. ^^ it li the exception of inclosure, or inclosure and drainage Acts, all the three classes of bills so often referred to, are included in this category, and contain the public clause. 2. From 1798 to 1815, the private Acts, not declared j;^':;;,';^'; •^''•' public, were not printed by the Queen's printers, and could only be given in evidence by obtaining authenticated copies from the statute rolls in the Parliament Office ; but • Preface to Spiller's Index to the Statutes. ■' In the black letter edition uf the Public General Acts. 458 PRIVATE ACTS NOT PRINTED. Private Acts nut printed. Legal distinc- tions. since 1815 the greater part of the private Acts have been printed by the Queen's printers, and contain a clause de- claring that a copy so printed " shall be admitted as evi- dence thereof by all judges, justices and others." These consist, almost exclusively, of inclosure, or inclosure and drainage and estate Acts. 3. The last class of Acts are those which still remain unprinted : they consist of name, naturalization, divorce, and other strictly personal Acts, of which a list is always printed by the Queen's printers, after the titles of the other private Acts. The main distinction in law between these classes of Acts is, that a local and personal Act, declared public, may be used for all purposes, as a public general statute. It may be given in evidence upon the general issue, and must be judicially noticed, without being formally set forth. Nor is it necessary to show that it was printed by the Queen's printers, as the words of the public clause do not require it, and the printed copy of a public Act is supposed to be used merely for the purpose of refreshing the memory of the judge, who has already been acquainted with its enact- ments. A private Act, on the contrary, whether printed or not, must be specially pleaded, and given in evidence like any other record ; but the copy printed by the Queen's printers in the one case, is received as an examined copy of the record ; while in the other, an authenticated copy must be produced from the statute rolls in the Parliament Office.' ' 2 Phillipps & Amos, Gil. FEES PAYABLE ON PRIVATE BILLS. 459 CHAPTER XXIX. FEES PAYABLE BY THE PARTIES PROMOTING ,0R OP- POSING PRIVATE BILLS. COSTS OF PARLIAMENTARY AGENTS AND OTHERS. The fees which are chargeable upon the various stages Fees payable on , \ , , private bills, of private bills, and are payable by the several parties promoting or opposing such bills, or obtaining the intro- duction of clauses for their particular benefit, have been settled in both houses. The tables of fees are well known to parliamentary agents ; they are published in the stand- ing orders of the commons, and in the House of Lords they are readily accessible to parties interested. In both houses there are officers whose special duty it How collected, is to take care that the fees are properly paid by the agents, who are responsible for the payment of them.^ In the House of Commons the whole of these are collected and applied, and carried to a fee fund, whence the salaries and expenses of the establishment are partly defrayed; the balance being supplied from the consolidated fund.'^ In the House of Lords a considerable portion of the fees is appropriated in the same manner, to a general fee fund ; but a part is still reserved for the particular use of officers, whose emolu- ments are derived from that source. By two Acts of Parliament,' a system has been estab- Taxation of Hshed for taxing the costs and expenses of parliamentary ""* agents and others, in soliciting private bills in both houses. In the House of Commons, if the suitors for a bill comjilain Commons, of the costs charged by a parliamentary agent, or solicitor, or others engaged in soliciting private bills, or in com- plying with the standing orders of the commons; or if the ' See supra, p. 307. ' '>'^ Geo. 3, c. II . •' 6 Geo. 4, c. 123 (common.'^) ; 7 & S dec. 4, c. fi4 (lords). 460 TAXATION OF COSTS. latter complain of the nonpayment of costs, the speaker is authorized and required, on the apphcation of the par- ties, to direct the costs to be taxed, so far as they relate to the House of Commons. The speaker may appoint any persons to tax the costs, who are authorized to receive fees for that duty. On their report, the speaker is re- quired to give a certificate, signed by himself, expressing the amount of the costs and expenses allowed, which is conclusive evidence of all the demands certified. If parties refuse to pay the amount certified, the speaker's certificate has the force of a warrant to confess judgment, and the court in which an action may be commenced is required to order judgment to be entered up accordingly. Lords. In the House of Lords, if any petitioners /or or against a private bill, or their agents, apply to the clerk, or clerk assistant of the Parliaments, complaining of the amount of the costs, charges, and expenses charged by a par- liamentary agent, or if the latter complain that he is aggrieved by nonpayment of the costs, the clerk is re- quired to appoint persons to tax the costs, so far as they relate to the House of Lords. These persons are entitled to fees, as in the House of Commons, and on their report the clerk gives a certificate, which has the effect of a war- rant to confess judgment, in the same manner as the speaker's certificate in regard to the costs incurred in the House of Commons. The taxators appointed by the clerk of the Parliaments have power to administer oaths, and to require the produc- tion of proper vouchers for all monies charged as having been paid by a parliamentary agent. And the clerk is further required to prepare a list or scale of charges proper to be paid to parliamentary agents soliciting or opposing bills in the House of Lords, which is to be bind- ing upon all parties concerned. [ 401 ] APPENDIX. 1. OATHS TAKEN BY MEMBERS OF BOTH HOUSES OP parliament. The Oath of Fidelity. I A. B. do sincerely promise and swear, that I will be faitliful, and bear true allegiance, to Her Majesty Queen Victoria. So help me God. The Oath of Supremacy. I, A. B. do swear, that I do from my heart abhor, detest, and abjure,' as impious and heretical, that damnable doctrine and posi- tion, that princes excommunicated or deprived by the Pope, or any'authority of the see of Rome, may be deposed or murtliered by their subjects, or any other whatsoever. And I do declare, that no foreign prince, person, prelate, state, or potentate, hath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm. So help me God, The Oath of Abjuration. \ A B Ao truly and sincerely acknowledge, profess, testify, and declare, in my conscience, before God and the world, that our soverei-n lady Queen Victoria is lawful and rightful Queen of this realm, and all other her Majesty's dominions and countries thereunto belonging. r i i r And I do solemnly and sincerely declare, that I do believe in my conscience, that not any of the descendants of the I--- - '^ pretended to be Prince of Wales during the life of the late Kin, iames the Second, and since his decease pretended to be, and took upon himself the style and title of King of England, by the nam o James the Third, or of Scotland, by the name of Janus the 462 APPENDIX. Eighth, or the style and title of King of Great Britain, hath any- right or title whatsoever to the crown of this realm, or any other the dominions thereunto belonging ; and I do renounce, refuse, and abjure any allegiance or obedience to any of them. And I do swear, that I will bear faith and true allegiance to her Majesty Queen Victoria, and her will defend to the utmost of my power against all traitorous conspiracies and attempts whatsoever, which shall be made against her person, crown, or dignity. And I will do my utmost endeavour to disclose and make known to her Majesty, and her successors, all treasons and traitorous con- spiracies which I shall know to be against her or any of them. And I do faithfullj^ promise, to the utmost of my power, to sup- port, maintain, and defend the succession of the crown against the riescendants of the said James, and against all other persons what- soever ; which succession, by an Act intituled, " An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject," is and stands limited to tiie Princess Sophia, Electoress and Duchess Dowager of Hanover, and the heirs of her body, being Protestants. And all these things I do plainly and sincerely acknowledge and swear, according to these express words by me spoken, and according to the plain common sense and understanding of the same words, without any equivocation, mental evasion, or secret reservation whatsoever. And I do make this recognition, acknow- ledgment, abjuration, renunciation, and promise, heartily, willingly, and truly, upon the true faith of a Christian. So helj) me God. The Oath to be taken by Roman Catholics, I, A, B. do sincerely promise and swear, that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, and will defend her to the utmost of my power against all conspiracies and attempts whatever, which shall be made against her person, crown, or dignity; and I will do my utmost endeavour to disclose and make known to her Majesty, her heirs and successors, all treasons and traitorous conspiracies which may be formed against her or them ; and I do faithfully promise to maintain, support, and defend, to the utmost of my power, the succession of the crown, which succession, by an Act, intituled, " An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject," is and stands limited to the Princess Sophia, Electress of Hanover, and the heirs of her body, being Protestants; hereby utterly renouncing and abjuring any obe- dience or allegiance unto any other person claiming or pretending a right to the crown of this realm : and I do further declare, that it is not an article of my faith, and that I do renounce, reject, and APPENDIX. 403 abjure the opinion, that princes excommunicated or deprived by the Pope, or any other authority of the see of Rome, may he de- posed or murdered by their subjects, or by any person whatso- ever; and I do declare, that I do not believe that the Poj)e of Rome, or any other foreign prince, prelate, person, state, or po- tentate, hath or ought to have any temporal or civil jurisdiction, power, superiority, or pre-eminence, directly or indirectly, witliin this realm. I do swear, that I will deft-nd to the utmost of my power the settlement of property within this realm as established by the laws ; and I do herel)y disclaim, disavow, and solemnly abjure any intention to subvert the present Church Establishment as settled by law within this realm ; and I do solemnly swear, that I never will exercise any privilege to which I am or may become entitled, to disturb or weaken the Protestant religion or Protestant government in the United Kingdom; aid I do solemnly, in tlie presence of God, profess, testify, and declare, that I do make this declaration, and every part thereof, in the plain and ordinary sense of the words of this oath, without any evasion, equivocation, or mental reservation whatsoever. So help me God. 2. THE DECLARATION OF QUALIFICATION, BY MEMBERS OF THE HOUSE OF COMMONS. I, A. B. do solemnly and sincerely declare, that I am, to the best of my knowledge and belief, duly qualified to be elected a member of the House of Commons, according to the true intent and meaning of the Act passed in the second year of the reign of Queen Victoria, intituled, " An Act to amend the Laws relating to the Qualification of Members to serve in Parliament;" and that my qualification to be so elected is as set forth in the paper signed by me, and now delivered to the clerk of the House of Commons. 3. FORM OF CERTIFICATE TO AUTHORIZE THE SPEAKER TO ISSUE A WARRANT FOR A NEW WRIT DURIMi A RECESS. Schedule of 24 Geo. 3, sess. 2, c. 26. We whose names are underwritten, being two members of the House of Commons, do hereby certify, that M. P, late a member of the said house, serving as one of the knights of the shire for the county of [or as the case may be] died upon the day of [or, is become a peer of Great Britain, and that 4G4 APPENDIX. a writ of summons hatli been issued under the great seal of Great Britain to summon him to Parliament] [as the case may be], and we give you this notice, to the intent that you may issue your warrant to the clerk of the Crown, to make out a new writ for the election of a knight to serve in Parliament for the said county of [or as the case may be] in the room of the said M. P. Given under our hands this day of To the Speaker of the House of Commons. Note. — That in case there shall be no speaker of the House of Commons, or of his absence out of the realm, such certificate may be addressed to any one of the persons appointed according to the directions of this Act. [ 4G5 ] INDEX. Note. — The Figures refer to tlie pages throughout the volume ; and wherever n is amiexoil, it calls attention to a note at the foot of tiie page. Abbot, Lord Chief Justice ; his opinion in 1 the case of Mr. J. C. Hobhouse, 57. Abinodox, Lord ; fined and imprisoned in 1795 for lihel in publishing a speech de- livered in the House of Lords reflecting on an individual, 81. Access to the Crown; peers, as heredi- tary counsellors of the Crown, privileged to free access, 47. Claimed by the com- mons ; antiquity of the privilege, 46. How and when exercised, 47. 207. ACCOUNTS AND PAPERS; Obtained by order or by address, 309. Distinction between these classes of re- turns, 309, 310. When addresses have been answered, the parties within reach of an order, 310. Orders discharged, ib. Returns to be made forthwith, ib. Effect of a prorogation upon orders and addresses for papers, 311. Papers presented by command and by Act, ib. Printing committee in the commons; their functions, 311. Unprintiul papers, 312. Distribution of printed papers by lords and commons, ib. Principle of sale adopted in tlie commons, ib. Delivery to members by the Vote Office, 313. Transmission of parliamentary papers by post. ib. Arrangement of i)aillamentary papers, ib. Their statistical character, 313, 314. Tables of revenue, &c. prepared by the Board of Trade, 314. Improve- ment of statistical returns, ib. Mode of preparing orders for returns, 315. Blank forms, i6. Abstracts, 31G. ADDRESSES to the CROWN ; In answer to Queen's speech, 1 44. When presented by tlie whole house, ib. By the lords with wiiite staves, ib. Or privy coun- cillors, ib. Her Majesty's pleasure known when she will be attended, 144. Prnceed- ings on the death of the Duke of Sa.\e Co- bourg-Gotha, 145. In answer to written messages, 204. Exceptions in the commons, 204,205. To verbal messages, 205. Sui»- jects of addresses, 200,207. Joint addies>es of both houses, 2()0. Separate addresses, ib. Mode of presenting joint and separate address, 207, 208. Dress of peers and members, 208. Answers to addresses, /'/;. Addresses for Public Money; rules con- cerning, 334, 335. Adjournment of the House ; ])ower of, solely in eacii house respectively, 35, 30. Adjournments at the pleasure of tiie Crowe, ib. Motions for adjournment to super- sede questions, 172. Analogous motions in committee, 22!). Adjuurned by .Mr. Speaker if 40 members not present at four o'clock, 151. Unless there be a coniniis- sion, ib- When notice taken, ib. ; or it appears on division that 40 nu-mbers are not i)rescnt, (7^. In committee, 152. On Saturday adjourned in Monday, ih. At other times adjourned upon (|uejtion, ib. Adjournment of Debate; nik» con- cerning; form of question, 172. 21). '"om- niittee of the whole house cannot adjourn a debate, 228. Nor adjourn its own sit- tings, 228, 229. Ale\n, Henry; committed by the ci:s, ib. Allusions to debates, irregular, 1!)8, 1!K». Sec also Debate. n a 466 INDEX. AMENDMENTS to QUESTIONS; To evade question or alter its meaning, 1 75. Object and principle of an amend- ment, 180. Forms of amendment : to leave out words, 181. To leave out words and to insert or add others, ib. To insert or add words only, ib. When to he moved, ib. Restrictions in proposiiiff, 182. Amend- ments to amendments explained and illus- trated, 183. Moved before previous ques- tion, 184. Moved afterwards, 185. In the commons must be seconded, ib. AMENDMENTS (BILLS); //( re(jard to public bills; to questions for second reading of bills, 277. To ques- tion for speaker leaving the chair, 279. Amendments to bills in committee, when to be offered, 280. What amendments admissible in committee, 280, 281. Autho- rized by instruction, 281. Amendments to preamble, ib. Amendments to bills on the report, 283. On the third readingr, 285,280. Proceedings upon amendments made to bills by the other house, 28s. And amendment of such amendments, 288, 289. Consequential amendments, 289. Conferences when amendii.ents disagreed to, 2b9, 290. Free conferences, 290. Amiexs, Peace of; amendment of question concerning, 175. APOLOfiiES; when required of members, 205. AppnoPRiATiox Act; reserved until the end of the session, 319. How effect is given to the votes of the commons in the mrantime, 320. Its enactments, 333. Presented by the speaker for the royal assent, 334. ARREST, FREEDOM FROM ; Antiquity of this privilege, 83. Extends to members of both houses, ib. And for- merly to their servants, ib. Freedom of members and their servants from liability to answer subpoenas, and to serve on juries, ib. ; and from commitments by courts of justice, 84. Servants at present have no privilege, ib. Earliest recognition of the privilege, 84, 85. Exceptinn in the case of Mr. Speaker Thorpe, 85, 86. Vindicated in the case of George Ferrers, 1543, 80-88. Case of S.'iialley, the servant of a member, 88. Fitzherbert's case, ib. Neale's case, 89. Ca'^es in the lords, ib. Sir T. Shirley's case, 90. Statutes re- lating to the i)rivilege, 90-02. Servants' privilege discontinued, 92, 93. Members, how released at present, 93. Duration of privilege, and to whom extended, 94-97. Whether enjoyed by members in e.xecution before their election, 97. Privilege has not been allowed to inter- fere with the administration of criminal justice, 104. Causes of commitment on criminal charges must be communicated to the house, 105, lOG. Commitments for contempt, 106-109. Privilege extends to all witnesses summoned to attend before either house of Parliament, and to others in personal attendance upon the business of Parliament, 110-112. Articles of Impeachment, 377. Arcxdel, Earl of; privilege of Parliament asserted in the cuse of, in staying pro- ceedings in the Star Chamber for contempt, 108. A.SGILL, Mr. (1707); exercise of the privi- lege of the commons in the case of, 93. AsHBY & White; case of, in 1704, referred to, 41. 50. Outline of the proceedings, 123, 124. Ass.\ULT, or Obstruction of Members pu- nished; resolution of the commons con- cerning, 64, 05. Assistants of the Lords ; enumerated ; how summoned, 155. Were present in the consilium regis, 156. Their attend- ance and place in the House of Lords, ib. Occasionally employed in carrying bills to the commons, 249, 250. 287. -^ .Sfe also Judges. Athol, Earl of, r. Derby, Earl of, 95. Attainder, Acts of; Juilicature of Par- liament in passing, .38. Forms observed, 382. Tlie highest form of parliamentary judicature, ib. How reversed, 445. Attendants of the Lords, 156. 250. 287. Atwyll's Case, 17 Edw. 4 ; 45. 85. 99. Aubrey, Mr. (17.56) ; privilege extended to, while promoting a bill in the house, 112. " Ayes " and " Noes " on a division, 178. "Aylesbury Men," The; case of, re- ferred to, 40. 50. 110. Outline of the proceedings in the case of, 123, 124. Bail; the courts of law will not admit to bail persons committed by either house of Parliament, 56-5!). Balcarras, Earl of; summoned to attend the House of Commons, 242. Ballot; for notices of motion, 168. Se- lect committees occasionally appointed by, 232. For jietitions, 308. Formerly used in the appointment of election com- mitt(es,342. 1 N D E X. 401 Baltinglasse, Lord (1G41); case of, 92. Bami'FIELD, Sir William (1(314); case of, 107. Bankrupts; members found bankrupt in- capable of sitting and votinjj for 12 months, 28. Powers givtni to the speaker in a recess to issue warrants for new writs, 341. Barnaudiston v. Somes (1(574) ; jurisdic- tion of the courts in matters of privilege oxidained by Lord Cliief Justice North in, 1 l(i. Barons ; inquiry into the origin of the title, 9. Barwell, Mr. ; his refusal to withdraw from a committee ; speaker's opinion that he ought to withdraw, 235. Bath, Archdeacon of; committed by tlie commons, in 1640, for libel on Parlia- ment, 63. Beaumont, John Viscount ; created by Henry C, being the first upon whom the title was conferred, 8. Benedict Abbas; his mention of the commons (A. D. 1176), 16. Benyon i". Evelyn ; jurisdiction of the courts in matters of privilege, defined by Sir Orlando Bridgman in, 118. Bill of Rights; to be considered but a declaration of tlie ancient law of Eng- land, 4. Extract from, declaring the sus- pending or dispensing witli laws, without consent of Parliament, to be illegal, 4. n. Freedom of speech in Parliament con- firmed by, 80. BILLS; Generally. — Same bill may not be of- fered twice in a session, 186. Evasions of the rule, 187. Bills once passed or rejected, 188. Lords' Journals inspected, and new bills ordered, 189. Bills laid aside, 190. Prorogation to renew bills, ib. Clauses in Acts that they may be amended, 191. Conferences and free con ferences between the two liouses upon bills, 255, 256. 289, 290. See also Private Bills. BILLS, PUBLIC; General nature of a bill explained, 269. Ancient mode of enacting laws, ib. Le- gislation by bill and statute dates from Henry 6 ; 270. General similarity in the practice of both houses, (7*. What hills must originate in eitlier house respec- tively, 270, 271. Bills for a general par- don, 271. Division of public and private bills, ib. Public l. Of the Commons, 3]st Januarj- 1694, and 3d Jiinuary 1701, /7>. Present practice on eomplaint b( inu made, G9. Resolution 11th February 17(iH, dis- couraging frivolous complaints, ib. House may |iuuish in one session oileiices com- mitted in another, /'i;. Order of 4th and 14th April 1707, ib. Or in a former Par- liament, 70. Disobedience to chairman's order for attendance of a witness, 233. Publication of evidence and documents not reported to the house, 237, ice. See also Privileges. Breretox, Mr. ; Case of (1605), 107. Breviates. Of Public Bills; ancient custom ; suggestions thereon, 277. Of Prioite Bilh ; 408. Breviate of amendments made by the committee, submitted to the chairman of ways and means, 431. Brihehy ; special reports of election com- mittees, .366. Proof of agency not 1 1 pre- cede evidence of bribery, 367. Results of this law, ib. Writs suspended, 368. And election committees re-assembled, ih. When charges of bribery abandoned, ib. Election committees appointed to investi- gate charges of bribery in petitions, or when petitions have been withdrawn, ib. Bridgmax, Sir Orlando ; jurisdiction of the courts in matters of privilege defined bv, 118. British Constitution; how far within the design of this treatise, 1. British India ; the government of, by the EaSt India Company, contr.:lled by ministers responsible to Parliament, 30. Brougham, Mr.; sat as speaker of the lords, 22d November 1830; 152. Brown, T. ; committed by the lords for pul)licatiou of dcb,.tes,61. Brudexell, Lord ; withdraws on question concerni :g him, 211. Brvehs, J. (1626) ; privilege extended to, whilst attendiiig the house as witness, 111. Buckixgham, Duke of; proceedings of, committee on charges against, in 1626; 235. Budget, the; its nature described, 330. BURDETT, Sir Fi'ancis^ h'scase referred to, 50. 118, 119. Power of the serjeant-at- arms to break into a dwelling-liouse atlirmeil in the case of, in 1810; .52-55. Committed to the Tower by the commons in ISIO for libel on the house, 64. The power oi' the house to commit for libel questioned in this case, but confirmed, ib. Withdraws, on question concerning him, 210. BuRDETT V. Abbot; dictum of Lord Ellen- borough in, as to jurisdiction of the com- mons, 118,119. The autiiority of the house sustained and vindicated in this case, 124, 125. I N D i; \. •jr. 'J BuKiAL Grounds ok Ckmeteiuks; iki- ticps required ia regard to hills relating tliereto, .'590. Estimates and siiliscriptioii contracts, ih. Standing order of the lords concerning, 442. Burton, Mr. Christie, (1819) ; jirivilege when taken in execution before election ; 93. 97. Butler, Daniel ; committed by the House of Commons, 1809, for arresting Sir Charles Hamilton, a member, 66. Call of the House; in the lords, 148. 382. In the commons, 149. Canada, Lower ; the constitution of, sus- pended in 1838, and provisional govern- ment established by the British Parlia- ment, 30. Candidates, Petitioning; eligible to Par- liament, 341. Candles; motions for bringing in, 177. Canning, Mr. Secretary, withdraws on question concerning him, 211. Canterbury, Archbishop of, 6; privilege in the case of the servants of, (1597), 89. Carr, William ; fined and imprisoned by the lords in 1607, for libel on Lord Gerard of Brandon, 65. Causes OF Summons; declared, 34; Parlia- ment not bound to consider causes of sum- mons alone, but may proceed with otlier business, 34. Declared by the Queen in person, 142. By commission, 143. Bill Tea.ii p7-oJ'ontia in both bouses, 143, 144. Chairman of Committees of the WHOLE House ; performs, in committee, the duties of speaker, 225. Lords. — Ndt to leave the chair without leave of the committee, 226. Commons. — Bei)Orts \^T- gress, 227. On points of order, ib. Effect of motions for chairman to report progress or to leave the chair, 229. Chairman of Lords' Committees; no- minated at the comraencemtnt of each session, 224. Takes the chair, except where otherwise directed, ih. His duties in regard to private bills, 386. 435. 439. 453. Chairman of Committee of Ways and Means; Usually takes the chair in com- mittees of the whole house, 224. And carries bills and messages to the lords, 250. 288. His duties in regard to private bills, 386. 408.414.430. Chairman of Select Committkeh; Lor(l.\: — Vot( 8 like other piers in the committee, 2.36. Commons. — Witnesses summoned by orders sigiud by him, 233. Given the casting vote when the numbers are ecimil, but otherwise never votes, 236. Of com- mittees on private liills, 4(12. 412. 422. 426. 439. 453. Chairman op x Meetixt; ; petition signed liy, received only as liis individual petition, 304. Challenges, by Members; liow prevented and punished, 205. Chandois, Lord (1597); case of tlie ser- vants of, 89. Chaplain (Mr. Speaker's); reads prayi rs daily in tiie lio;;se, 13!). Charges UPON the Subject; construr- tion of rules concerning imposition of by bills, 273, 274. Rule in regard to lords* amendments, 321, 322. See also Supply and Ways and Means. Charities, Trusteesof; their consents liow to be taken, 441. Charlton, Mr. Lechmerc ; committed l)y the lord chancellor in 1837, for contempt, 109. Chatham, Earl of ; exception taken to words used l)y, 202. Misunderstanding with Duke of Richmond, 204. CiiEDDER, Richard; case of privilege, 84. CiiERBURY, Lord Herbert, of; exception taken to words used by, 203. Ordered to v.itiidraw, 211. Chiltern Hundreds, Stewardship of; vacates seat in Parliament, 340. Church Doors ; notices of applicatit»nills aftixed on, 390, 391. Sec also .Nuticks. Church Rates ; mntion decided to be irregular, in 1840; 187. Church Temporalities (Ireland) Bill, 1833 ; did not concern n-ligion so as to originate in a committee, 273. Im- posed a tax, and was tlierefore with- drawn : report of precedents, 274, 275. Cinque Ports ; the representatives of the, styled barons, 22. n. Cities and Boroughs; state of the elec- tive franchise, in En;,land, 24. In Scot- land, 25. In Ireland, ib. H H 3 47U INDEX. Citizens and Brnon-iSKs ; their adJition ! to the legislature, 15. 17.20. Ainoiiut of i their wages in the time of Edward ; 21. Qualificatiou of estate bv Act 1 & 2 Vict. c. 48; 26. Clare, Bogo de ; case of, 18 Edw. 1; 98. Clarendon, Constitutions of; cited in re- ference to the voting of spiritual lords in cases of blood, 381. Clarendon, Lord ; jurisdiction of the commons in matters of privilege, defined by, 116. Clauses ; added, divided, &c. in commit- tee, 281. If add'd in committee, must be within the title of the bill, 280, 281. Unless authorized by instruction from the h:iuse, 281. Added on report; proceedings and rules, 283. Clauses con- taining rates, Sec, 283, 284. Added to bills on third reading, 285. Time of pro- posing new clauses, 286. How considered in committee on a private bill, 425. 440. Clergymen ; are ineligible to seats in the House of Commons, 27. Act of 41 Geo. 3, c. 6.3, ib. Act of 10 Geo. 4, c. 7, a. 9, excluding the Konian-catholic clergy, ib. i Clehk of the Cuown; delivers the re-' turn book to the clerk of the House of Commons, 1.34. His certificate of the; election of representative peers of Scot- 1 hind, 135 ; and of Ireland, ib. Ordered to attend and amend returns, 42. ^^'arrants i directcrl to liim to issue new writs, 42. j 337. His duties on tlie royal assent being given to bills, 291. 293. | Clerk of the IIoise of Commons;' appointed by letters patent, 157. Clerk assistant and sc^cond clerk assistant, ib. General view of his duties, 157, 158. Puts questions on the election of speaker, 136; and for iidjoumment, in his absence, 154. Administers oaths to members, and receives the account of their f|ualification, 1.39. Calls over names on a call of the house, 149. Clerk assistant or second clerk assistant goes to the bar of tlie lords on furtiier prorogations, 166. No- tices of motions entered by the latter,168. Signs orders for attendance of witnesses, 2.39 ; and for their expenses, 248. Ordered to take down words spoken, 197. 206. Indorsement of hills by, 291 ; or l)y clerk assistant, in his absence, 291. w. Petitions may be read by, 307. D.ities in regard to controverted elections, 351. 355. 359. Clerk of the Parliaments; office exe- cuted by de];uty ; his duties, 156. Authen- ticates co)jies of Journals, IM. Receives money bills from the speaker at the bar, 165. 334. Signs orders for the attendance of witnesses, 239. Swears them at the bar, 243. Occasionally sent with messages to the commons, 250. 287. Indorses bills, 291. \Vaits upon tlie Queen when about to give royal assent to bills in person, ib. Signifies the royal assent, 293. Appoints taxators of costs in private bills, 458; and prepares list of charges, 4.59. Clerk of the Peace; plans, duplicates, books of reference, sections, &c., to he deposited with, 392, 393. Memorial to be indorsed by him, of the time at which they were lodged with him, kc, 392. Alterations of plans, &c., after the intro- duction of the bill into Parliament, 437. Cochrane, Lord; privilege not extended to, 105. Coke, Sir Edward; his opinions referred to, as to the separation of the two houses, 18, 19. The authority of Parliament un- limited, according to, 81. The law of Parliament defined by, 48. Maintained the claim of the commons to be a court of record, 71. Referred to, 84. Affirmed either house of Parliament to he the only judge of its privileges, 115, 116. Moved that a bill be torn in the house, 278. Colepepper, Thomas ; committed by the commons, in 1701, for libel on Parlia- ment, 64. Coleridge, Mr. Justice; duties of the courts in matters of privilege, explained by, 120. Colonies; the legislatures and laws of, subordinate to the Imperial Parliament 29, 30. Legal riglit of Parliament to im- pose taxes upon colonies for the support of the mother country, 30. Commission for Royal Assent to Bills; makes a house, 151. Origin of giving the royal assent by, 292. Form of com- mission, ib. Of royal assent by commis- sion, 293. 299. Commissions, in the Army and Marines; do not vacate scats in Parliament, 340. Commitment; the right of, for contempt, belongs equally to I)oth houses, 49. Re- garded with jealousy when exercised by the commons, ib. Right of commons es- talilishcd by immemorial usage, &c. 50. Right of the lords to commit questioned, and confirmed in cases of Earl of Shaftes- bury in 1675, and of Flower in 1779, ib. I N D F, X, 171 Commitment — continued. Cau8e3 of conimitment raiinot be inquired into by courts of law, 50. 58. Commit- 1 ment by tiie lords for term bpyond tlic ! session, 70, 71. Present position of the conimons, 74. Iniprisoiinient liy commons concluded liy prorogation, 74, 75; pri- soners held longer in custody, wouhl be discharged on writ of habeas corpus, 75. COMMITTEES of the whole HOUSE; 1. General! I/. 2. Lords. 3. Commons. 1. Generally. — Restrictions upon speak- ing removed in, 196. Conduct of business in committee, 225. In the lord*, a peer addresses their lordships, ih. In the com- mons, members address the chairman, ih. Chairman performs the duties of speaker, ib. A committee can only consider the matters referred to them, lb. Unless enabled by instruction, ih. Instruction should be moved after reading the order of the day, ib. Motions in committee need not be seconded, ib. Previous question not admitted, and why, (i. Meml)ers may speak more than once to questions in committee, 226. To speak standing, ih. House re- sumed, 227. In cases of doubt, i6. On other occasions, lb. In case of disturb- ance, lb. Forty members a quorum in the commons, 228. Cannot adjourn a debate, or its own sittings, ib. Motion (in the lords) that the house be again put into committee, 229. Report of progress, lb. Motions that the chairman do report pro- gress, ib. ; or do now leave the chair, ib. Proceedings in committee not entered in the Lords' Journals, lb. ; nor in the Com- mons' Journals until 1829, lb. 2. Lnrcb. — The liouse put into a com- mittee, 224. Chair taken by chairman of lords' committees, ib. 3. Commons. — Houseresolvcs itself into a committeeoftiiewliole house, 224. Speaker leaves the chair ; mace removed, lb. Chair- man of ways and means tlie usual chair- man, ib. If difference arises in tiie choice of chairman, the house decides, ib. COMMITTEES, SELECT; 1 . Generally. 2. Lords. 3. Commons. 1. Generally. — Their general province and duties, 2;J0. Can only consider the matters referred to them by the house, ib. Their powers extended or limited by in- struction, ib. Petitions and documents referred, 2;J0. Of liutii houses coimiuumI- eating with each other, 258. 2. Lords. — Their uppointinent and con- stitution in the lords; thr.e the onliuary quorum, 230. 2;):J. Ordered to meet in the prince's lodgings, 2.'U). Lords to -peak uncovered, 231. May l)e attended by the jud'^'cs, ib. Refusal of Lord ( liief Justice Popliam to sit, ib. .\re not authorized by the liouse to sen(] for \vitne>;. Their attencUince, (7*. Notice of noudnation, 232. List of menjbers serv- ing, lb. Their names prefixed to questions put to witnesses, ib. Minutes of proceed- ings, ib. Names taken down in divisions, ib. Peculiar modes of nomination, by ballot, &c. in spL'cial cases, lb. Members nominated to examine witnesses, without voting, ji. Memhers added and discharged, ib. Quorum of comudttees, 233. If no quorum named, ib. Proceedings wlicn pro- per nuud)er are not present, ih. P iwt-rto send for persons, jiajn-rs, and records, ib. Witnesses summoned by chairuuiu's order, ib.; and censured by the house for dis- obedience, ih. Strangers generally allowed to Ire ))reseiit when wituess^'S under c.vauii- nation, 234 ; but never while thecoinniit- tee are delil)eratinif, ih. Members, not of the committee, oii^ht immediately to n- tire when the committee are ai)out to de- lilierate, ib. But have claimed the right of being present, ib. Power of the com- mittee to exclude them, considered, ib. Precedents, 234, 235. Propriety of ol>- taining an order of the house for tlieir ex- clusion in certain cases, 236. Secrt't coiii- mitteis, ib. -Alode of dividing ; eustiuK voice of chairman, ib. Rule explained by the house, to rectify a mistaken view of the practice of the house, ib. JLiv adjourn its sittings, ib.; and sometinub from place to place, ib. May not sit without leave during the sitting of the house, nor al"«er adjournment, 237. Receive notice of pray- ers from the serjeaut, ib. Their proceed- ings void after this notice, ib. L.ave to sit till five o'clock,!/;.; or on .>^utur.l.iy,iA. Their mode of summoning wiiu. jm-.-, 240. Attendance of meml'ers to be exanilneuses, 20. Their practical union at present, ib. Num- ber rif iiieniliers at different periods, 20, 21 . Number of nn inbers added on the uni(/n of Scotland and Ireland, 21. Wages of members in the reign of Kflward 1 ; ib. Alteratious eflectcd by the Reform Acts of 1832; 21. Total number of members, bow distributed, 23. Right of the commons in voting sup- plies, and imposing burthens upon the people, 39, 40. 270, 271. 319-324. Of determining elections, 40-42. C37, et seq. Have no control over the eligibility of candidates, except as regards their quali- fications, 42, 43. Examination into the claim of the commons to be a court of record, 71,72.1-58.244. Impeachments by, 38. 374, et seq. See also Particular Proceedings through- out the Index. Competing Lines of R.4.ilw.\t; com- mittees on bills for, in the commons, 413. CoMTN, Lord Chief Baron ; the exclusive jurisdiction of Parliament in matters of privilege affirmed by, 117. CONFERENCES ; Subjects for a conference, 252. When to be denianded, 253. Its general purpose to be stated, ib. Reasons ( ffered, 254. Time and place of meeting, ib. Mana- gers appointed, (6. Their duty, 255. Con- ferences in regard to bills, ib. Free con- ference, ih. Forms of holding conferences, 256. Standing orders of the lords con- cerning, 257. Proceedings when amend- ments to bills disagreed to, 288, 289. Free conferences, 290. Conference, by whom desired, ib. CoNiNGESBYjLord; withdraws on motion concerning him, 210. Consent of the Crown ; how and when signified, 203. Consents to Private Bills ; standing orders requiring, 389. Proof of consents, in the commons, 415, 410. In tlie lords: to be jicrsonal, or an affidavit of disability, 441. Consent of trustees for charitable purposes, ib. Consequential Amendments; 289. Consolidated Fund ; settled charges upon by various Acts of Parliament, 327. 329, 330. Produce of all taxes carried to, 325. IIow applied, and by what au- thority, 330. Contempt of Court; commitment of members of Parliament by courts of jus- tice for, 100-110. Privilege maintained by commons, 107. Peers declared to have no privilege as against writs of habeas corj)us, 108. Privilege not enforced in recent cases, 108-110. Process formerly for contempts against persons having pri- vilege of Parliament, by sequestration of INDEX. 473 property, 100. Privilci^c inaintainiid in Act 2 & 3 Will. 4, c. 0;J, for puiiislimint of contempts of ecclesiastical courttt, 10!), 110. " Contents " and " Not-Coxtents ;" on a division in the Lords, l78. Contractous ; govprnnient contractors disqualified from SL'rvin84); 102. CooKSEY, Ricbard ; imprisoned by the Lords, in 177G, for sending- insulting letter to the Earl of Coventry, 6.3. Copyright of Books Bills; not held to Concern trade, 274. Copyright of Designs Bill ; held to concern trade, 273. Cornwall, Duchy of; consent of the Crown signified in regard to, 204. Cornwall, Duke of; Edward the Black Prince created, being the first upon whom the title of duke was conferred, 7- Coronation Oath ; binds the Crown to govern according to law, 3. Corporations Aggregate ; their peti- tions to be under their common seal, 304. Corrections of Evidence ; by wit- nesses, how limited, 237. Costs ; Controverted Elections.— When pay- able ; how ascertained and recovered, 369, 370. Private Bills.— Taxation of, lords and commons, 458, 459, 460. CosYN's Case (12 Edw. 4), 98. Counsel ; members not to plead liefore the lords on a bill depending, 223. IleanHn peculiar cases against public bills, 271). On the second readinc, ib. On other stages, 279. 281. Before election com- mittees, 365. Before committees on pri vate bills, 422-425. 440. Counsel to chairman of lords' committees, 439. Counties; state of the elective franchise in : In England, 23. In Scotland, 25. In Ireland, ib. Courts of Justice ; grand committee no longer appointed, 229. COURTS OF LAW ; Difiiculty of defining their jurisdiction in matters of privilege, 113. General principles st;ifed, 1 13, 114. Lepiil autho- rities favonrublc to tlie (•xclu^ive juriit- diction of Parliament, 115-1 17. .\iitho- rities in 8up])ort of the jurindietioii of the courts, and adverse to chiiniH of pri- vilege, 118-120. Jud;;nicnts of court.n adverse to ])arliHmeiitary privilege, and proceedings of Parliament th('r(Upf)n, 120- 129. Present po^ition of ])ri\ilcge in re- ference to the jurisdiction of the courts, 120. Courts Martial ; amst of members to be tried by military courts nmrtial communicated by tlie Crown, 262. Ad- dress in answer, 265. By naval courts martial eummunicatcd by the h)rds of the Admiraltv, 2(i2. No address in answer, 265. Creevey, Mr.; fined 100/. in 1813 for libel, in having published a speech de- livered in the House of Commons reflect- ing on an individual, 81, 82. Cromwell, Henry Lord, case of (1572), 106, 107. Crosdie, Sir Pierce (1640"); privilege ex- tended to, whilst attending as witness in Lord Straftbrd's cause, 110. Crosby, Brass; his case in 1771 ; 50. 57. Jurisdiction of the courts in nmtters of privilege defined by Mr. Justice Black- stone in the case of, 117. Cross Benches; in the lords, 145, 146. Crossing the House; rules concerning, 206, 207. CROWN, THE; 1. Prerogntivcs. 2. Demise of. 3. Its rehitioiis to and coniDiiiuica- tions with Parlianiciit. 4. Acceptance of Office under. 1. Prernrjatircs. — Hereditary, luit sul>- ject to Parliament, 2-5. Oafli taken at coronation, 3. Limits of its preri'unif ivps defined by 12 A: 13 Will. .3, c. 2 ; i7>. Powers of Parliament to bind the Crown attirmed by 6 .\niie, c. 7, ih. Limit-* of the T'lyal prerogatives as laid clown l)y Judge Braeton, 4; by Judge TorlC'Cue, i^. ; and by Sir Tlionias Suiylli, i/i. Its prerogatives in connexion with the lepi.s- lature, 5. Prerogatives of tlie Crown in reference to Parliament enumeratemons by Act 6 Anne, c. 7, on, 33. By 37 Geo. 3, c. 1 27, such Parlia- ment to exist for six months only, if not dissolved in the meantime, 34. All mem- bers of both houses again sworn, 142. De Modo tenendi Parhamentum; this ancient treatise referred to, 18. Den.man, Lord ; dicta in Stockdale v. Han- sard, 75. (ieneral jurisdiction of the courts in matters of privilege, defined by 119. INDEX. 47:) Depositions, in divorce cases, from India, 452, 453. 455. DeTallagio nox concedexdo,25 Ed.l; the rij^Iit of the commons to tax tliemsclves acknowledged by this statute, 17. 318. DiGGS, James (1585) ; privilege of, 89. Disobedience toOuders; punished as breach of privilege, 00. (i-J. Dissolution of Parliament; power of the Crown to dissolve Parliament, 3(5. Act of Geo. 1, the Septennial Act, ib. Usual form of dissolution, 37. Dissolved in person by the Prince Regent, ih. Dot's not determine an impeachment, 379. Nor a divorce bill, in certain cases, 453. DIVISIONS; 1. Generalbj. 2. Lords. 3. Commons. 4. In Select Committees. 1. Generally. — When a division arises, 178. Voices of members to determine their votes, 179. Members in, speak sit- ting and covered, ib. 2. Lords. — Lords who desire to vote and hold proxies must be present when question put, 212. House cleared on divi- sion, 213, 214. Not-contents within the bar; contents below the bar, 215. One teller for each party, lb. Proxies called for, ib. Vote of lord chancellor or speaker, how given ; votes and i)roxies jointly de- termine question, lb. When voices equal the not-contents have it, ib. Reversal of this rule in giving judgment, ih. Manner of voting in the house when there is no formal division, ib. Rules concerning proxies, 219, 220. Protests after division, 221. 3. Commons. — Members must be pre- sent when question put, 212. Cases of votes being disallowed, in the commons, 212, 213. House and lobbies cleared of strangers, 213, 214. Division bell, 213. Time allowed for reaching the house, 21 4. Members arriving too late, ib. Question twice put if division not anticipated ; and why, ib. Practice of dividing before 183G; 215. Present mode of counting members from separate lobbies, 210. Speaker appoints tellers, 210. If two tellers for each duty cannot be found, no di- vision ensues, /ft. PrcceqMulitiefl members from voting, 222. Votes dis- allowed, 222, 223. 4 In Select Coniinittern. — Rules con- cerning divisions in select eouiniittecH : of the lords, 230., Of the commons, 232, 230. On private bills, 415. 428. DIVORCE BILLS; 1. Lords. 2. Commons. 1. Lnrd.s. — Petition for divorce bill to be presented with copy of the ])roceeding», &c. in the Ecclesiastical Court, 449. No bill to be received without clause pro- hibiting the offending parties from marry- ing, ib. Proceedings on trials, ib. Pe- titioner to attend on second reading to bo examined as to collusion, ib. Second reading, 452. Depositions in India, ih. Warrant for taking depositions ; how ob- tained, 453. Referred to committee of the whole house, 454. 2. Commons. — Proceedings in the com- mons upon divorce bills brought from the lortis, 455. What eviilence to be ifiven, ib. When pititionerfor bill to attend the committee, 450. Rei)ort, ib. Door-keepers; lock doors on a division by order of the serjeant, 214. Delivery of printed copies of private bills to door- keepers before first reading, 4(Mi. Of amended bills before consideration of re- port ; and certificate of delivery to be pro- duced, 430. Douglas, Mr. Gilbert (1742); privilege ns solicitor for several bills depending in tiie house, in, 112. Downing, W. ; fined and imprisoned by tlie lords in 1088-9 for libel on Lord Grey of W ark, 05. Drainage Bills; standing order* to be proved and enforecil in the committee on the bill in the commons, 421. In the lords, concerning deposit of i)urcliasc-uioney, 441, DOKES; origin of the title, 0. Ealoormen ; official but not licrcdifary titles amongst the Saxons, 7. Similar in character and dignity to the title of count, 8. Earls ; origin of the title, 7, 8. 476 INDEX. East India Jcdicature Committee (1782): Mr. Barwell's refusal to withdraw, 235. Edward 3 ; demand of homafre from, by the Pope, laid by tliat monarch bLfore his Par- liament, 3, 4. Election Proceedings Committee; exclusion of members during the exami- nation of witnesses not sanctioned by the house, 235. Elections; how held and determined, 29. Jurisdiction of the commons in matters of election, 40-42. No control in the commons over the elipiMlity of candidates, except as regards their qualification, 42. ELECTIONS, CONTROVERTED; Principle of ballot in the appointment of committees superseded by tliat of selec- tion, 342. Election petitions, when to be presented, 343. Members returned for two places, ih. Members to withdraw wliile their returns are in question, 343, 344. Double returns, 344. Interference of peers, lb. Petitions alleging bribery, 345. Administration of the election law, 345. The petition, 345, 34G. Recognizances, and sureties, 340-348. Petitions with- drawn, 348. Proceedings when seat be- comes vacant, 348, 349. General Commifteeof Elections. — How appointed, 349, 350. Election petitions referred, 350. Tlieir proceedings, 351. Excuses, exemptions, and disqr.alifications of members from serving on election com- mittees, 352, 353. Lists of members printed, 353. Divided into panels, 354, 355. Correction of panels, ike, 355. Chairmen's Panel. — Its constitution and duties, 354. Proceedings of the ge- neral committee in choosing election com- mittees, 355-359. Chairman's panel ap- point a chairman, 359. Election committees reported, and mem- bers sworn, 359. n. When members are not present, ih. Proceedings of election com- mittees, 301-3(50. S])ecial reports of bri- bery and agency, 300, 307. Pllection com- mittees re-asseml)led to examine charges of bribery, .308 ; and sometimes specially constituted f(ir that purpose, ib. Elec- tion committees not dissolved l)y proroga- tion, ib. Costs on frivolous and vexatious petitions, &c., 3(>9. Costs, how ascer- tained and recovered, 309, 370. Recog- nizances estreated, 370. Commission to examine witnesses in Ireland, 370-373. Elective Franchise; outline of the former and present state of the, 23-25. Constituency of English counties, 23. Of cities and boroughs, 24. Constituency of counties, and cities, and burghs in Scot- land, 25. In Ireland, ib. Qualification and discpialification of voters, ib. Ellenborough, Lord; authority of the seijeant-at-arms to break open doors, af- firmed by, 54. Dictum in Burdett v. Abbot as to jurisdiction of commons, 118, 119. His opinion on the proceedings against the judges in the case of Jay v. Topham, 123. Elliot, Sir John ; prosecution of, and Den- zil Hollis and Benjamin Valentme, in 5 Chas. 1, for their conduct in Parliament, 79. Elsynge ; cited in reference to the sitting of lords and commons in one chamber, 18. Freedom of access to the sovereign, 46. Freedom of speech, 76. England and Wales ; alterations in the elective franchise of, etfccted by the Re- form Act of 1832; 22. Number of represen- tatives for, in the House of Commons, 23. Estate Bills; 408.434.445,440-448.451. Estimates, Annual ; when to be presented, 327. Referred to committee of supply, 328. Estimates OF Works, &c. ; to be made; subscription contract ; tiiree-fourths of subscribers, 393. Special reports concern- ing, on railway bills, 419. Evidence, Minutes of; publication of evi- dence taken before a select committee be- fore being reported to the house a breach of privilege, 01, 02. Evidence before se- lect committees taken down in short-hand, 237. Corrections by the witnesses, ib. May not be pul)lished before it has been reported to the Iiouse, ib. Evidence pub- lished, 2:'8. From lime to time, ib. No ofhceror short-hand writer to give evidence concerning proceedings or examinations at the bar or before committees, 240. Some- times reported from committees on private hills, 429. Exchequer Bills ; functions of commit- tees of sujiply and ways and means in re- gard to, 330. Excuses of Members; for non-attend- ance on a call, 150. For leave of absence, ib. Serving on election committees, 351- 353. Explanation ; rules concerning, 195, 196. Expulsion of Members; power of ex- pulsion exercised at various times by the commons, 42, 43. 81. Expulsion does not disqualify for Parliament, ib. INDEX, 177 Eyms, Mr., Case of (LJ^?), 10-2. Factories Bill ; IH'iO. Informality in passing; declared valid by Act, S'J?. Fees on Commitment; payment of, on commitment by the commons ; compul- sory, and forms part of the punishment in the nature of a Hne, 74. No limit to the amount, ib. Remitted under special cir- cumstances, ib. Fees on Private Bills; payment of fees on privite bills before second reading, 408. Parliamentary agents responsible for the payment, 397. How collected and applied, 458. Ferrers, George ; case in 1543; 51. BO- SS. Ferrers, Earl ; decided, in the case of, that an attachment may he issued if a peer re- fuses obedience to a writ of habeas corpus, 108. Fines; power of imposing exercised by the lords, 70. Order of the lords of 3d April 1624; 70, 71. Power of imposing fines formerly exercised by the commons, 72- 74. Payment of fees in the commons partakes of the character of a fine, 74. Fitton, Alexander ; fined and imprisoned by the lords in 16G3, for libel on Lord Gerard of Brandon, 05. FiTZHARRis, Edward ; impeached of high treason, but the lords left him to be tried at common law, 375. Fitzherbert's Case (1592) ; claim of the commons to be a court of record, 71, 88. Flower's Case, in 1779 ; 50. 57. 65. Flovde's Case (1621); the claim of the commons to be a court of record main- tained in, 71. Excess of jurisdiction by the commons in, 73. And by the lords, 73, 74. Forgery of petitions, or signatures, 304. Fortescue, Judge; limits of royal pre- rogative, as laid down by, 4. In Thorpe's case, 31 Hen. 6, refused, in the name of all the judges, to give an o))inion on a mat- ter of privilege, 115. His opinion con- cerning the validity of an informal Act of Parliament, 297. Freedom of Speech ; its necessity, 76. Confirmed by the ancient law of Parlia- ment, and by statute, 76. SO. Violations of the privilege, 77. 79. First occasion of the privilege being included in the ju- tition of tlie oomnions to the kin/ ut the commeueeuuiit of the Piiilianient, 7H. Members liable to censure and piiiiish- mcut by tlic house for abuse of tbe pri- vileg<', 80, HI. Privilege does not extend to publislied speeches, 61, 82. Fuller, Mr. ; called upon by tlie spouker, by naiiw, 209. Gardener, Mr. J. (1678) ; privil.gc us so- licitor in a cause, 111. General Committee of Elections; their appointment, constitution, and jiro- ceeJings, 349-351. 355-359. General Orders ; disobedience to, a breach of privilege, 60. GiRBS, Sir Yicary ; his opinion aa attorney- general, artirming the right of tlie ser- jeant-at-arms to break into a dwelling- house, 53, 54. Glassington, T. ; committed by the lords for publication of debates, 61. Gordon, Lord George ; his arrest commu- nicated to the house, 106. 262. Grand Committees; tiieir annual ap- pointment discontinued, 229. Grant, Sir A. (a Member) ; taken 'oefore a committee iu custody of the Serjeant in 1731 ; 241. (iRENVILLE Act ; its object and principle, 341, 342. Grievances Grand Committee; its appointment discontinued, 229. Groome, Mr. ; committed by tlie commons in 1680 for libel against a member, (ki. Habeas Corpts ; tlie judges competent to have before them persons committitd by the houses of Parlianu'ut, 56 ; but cannot ailmit tiiem to bail, ih. Oftt'ieiers committed by the lords cannot be dis- charged on, even after a ])nirotration, 71. All Acts for suspending tlie Habeas Cor- pus Act liave contained provisions to tlio effect tliat no uu'Uiber of Parliament shall be arrested without consent nf tlie house, 105, 106. Peers of Parliament have uo privilige against paying obedieuce to writs of habeas corpus, 108. Hale, Lord ; his opinion ns to tlie tinure by which lor Is sjfirilual sit iu Parliainenl, 6. On the royal assent to bills, 291. Hall, Arthur (1580); imprisoned, fined, anil expelled by the commons, mid de- clared incapable of sitting in i'arliamcnl, for libel on the house, 43. (!3. 72, 73. 478 INDEX. IIallam, Mr.; his opinion as to the tenure by whicli bisliops sat in the councils of William the Conqueror, G. His observa- tion in reference to the statute 15 Edw. 2 (132-2) as to the constitution of Parlia- ment, 18. Cited in reference to impeach - meats, 39. Hamiltox, Sir Charles; arrested and in- sulted by a sheriff's officer, 66. Hatsell, Mr. ; certain words of his, in reference to privilege, explained, 91. n.; cited in regard to conferences upon bills, 290. Haw'kixs ; jurisdiction of the courts in matters of privilege explained by, 117. Haxey's Case ; the privilege of freedom of speech recognized, 20 Rich. 2 ; 77. "Hear," "Hear;" proper and improper use of, 208. HiGGi X bottom, John ; committed by House of Lords to Newgate for vending and pub- lishing proceedings, GO. HissixG ; rules and orders against, 207. HoBHOUSE, Sir John Cam ; his case referred to, 50. 57. 64. Hodges and Moore (1626); case of, 100. HoGAN, William, (1601) ; privilege case, 89. HoLLis, Mr. ; a member suspended during the session in 1641 ; 43. Holt, Lord C. J. ; his opinion in Ashby & White, 40. Holt, Sir Robert, (1677) ; privilege of free- dom from arrest asserted in the case of; taken in execution before election, 92, 97. Holyrood Park Bill; olijection taken to a vote on, 179. Honours; restoration of, 271. 445. House; Quorum ; three lords make a house 151. And 40 members of the commons, ib. Made by a commission, /6. Adjourned by speaker, if 40 not present, ib. Seeaho Committees of the whole House. Divisions. Serjeant- at-Arms. Speaker. Stran- gers, &c. Howard, Sir R. ; privilege, 70. Howard v. Gosset; the serjeant-at-arms is not authorized to remain in a house if I the party be from home, 55. Outline ofj the proceedings in this case, 128, 129. Huntingdon, Earl of, (1554); complaint made by the lords of a subpoena being- served upon, 101. IMPEACHMENT; Exercise of the power of impeachment by Parliament ; its great importance, 38, 39. Has been rarely resorted to in modern times; formerly of frequent oc- currence, 39. Rarity of impeacliments in modern times ; its constitutional causes, 374. Grounds of impeachment, 375. Doubts, in former times, whether commoners could be impeached of any capital offence, ib. Case of Fitzharris, i}>. Of Chief Justice Scroggs, Sir A. Blair, and others, 376. Commencement of proceedings, ib. Arti- cles of impeachment, ib. Accused taken into custody, 377. Managers appointed ; witnesses summoned, ib. The trial; charges to be confined to articles, ib. Lords determine if the accused be guilty, 378. Commons demand judgment, ib. The judgment, 379. Proceedings not con- cluded by prorogation or dissolution, ib. Pardon not pleadable ; but may be given afterwards, 380. Impleading in Civil Actions ; inquiry into privilege of not being impleaded in civil actions, 98. Writs of supersedeas issued to the justices of assize in 8 Edw. 4, ib. Privilege fell into disuse in reign of Edw. 4; ib. Euforcc;d on 21st February, 1588; 99. Practice adopted in reign of James 1; ib. Limitations of the privilege by statutes : by 12 & 13 Will. 3, c. 100; by 2 & 3 Anne, c. 18, ib. ; 10 Geo. .3, c. 50, 101 ; 45 Geo. 3, c. 124 ; and 47 Geo. 3, sess. 2, c 40, ib. Inclosure Bills; standing orders spe- cially relating thereto ; enforced in com- mittee; proof of notices and of allegations in the preamble, 421. Consent bill and statement of property to be delivered in, 420,421. When lord of manor will not sign bill, 422. Clause for leaving open space for exercise, ib. Consent bill to contain names of commissioners, &c. ib. Disqualifications, ib. Clauses for settling pay of commissioners, ib. Lords' stand- ing orders concerning deposit of purchase money, 441. And mode of proving con- sents, ib. Indorsement of Bills, 291. Informalities; effect of informalities in passing l)ills,upon their validity as statutes, 295-300. Ingrossment of Bills ; manner and prin- ciple of, 284, 285. Of private I)ills, 432. 454. INDEX. 479 Instructions; authorize committees of the whole house to consider matters not ori- ginally committed to them, 225. To com- mittees of the whole house on bills; enable the committees to admit provisions not otherwise admissible, as being extraneous to the title of the bill, 281. Nature of instructions, lb. To select committees, 230. To select committees on bills, 416. 426. 432. Interest. See Personal Interest. Introduction op Peers; the ceremonies described, 135. Introduction of Members; new mem- bers, how introduced and sworn, 141. Ireland ; Peers of; the number of Irish peers restricted to 100 by the Act of Union, 10. The power of the Crowu to add to the number of, subject to limitation, ib. Elect 28 representatives for life from their own body to seats in the British Parliament, ib. Peers and peeresses of, entitled to same privileges as those of Great Britain, 94. 101. n. Unless repre sentative peers, may sit in the House of Commons for any place in Great Britain, 27. One hundred members assigned to Ire- land in the House of Commons on the Union of the two kingdoms, 21. Altera- tions effected in the elective franchise by the Reform Act of 1832 ; 23. Number of representatives for, now in the house, ib. Jamaica ; interference of the British Par- liament, on the House of Assembly ne- glecting its functions, -30. Jay v. Topham ; outline of the proceedings in this case ; commitment of the judges, Sir F. Pemberton and Sir T. Jones, for breach of privilege, 122, 123. Jennings, H. C. ; guilty of breach of pri- vilege in writing threatening letters to Mr. Secretary Peel, 66. Joint Committees of lords and commons, 244. 257. Joint Stock Companies; standing or- ders of the commons concerning bills re- lating to, 396. Standing orders of the lords, 450, 451. John Bull (Newspaper); the author of a libel on a member in the, committed to Newgate in 1821 ; 66. Jones, Sir T. ; committed for breach of privilege, 51. 123. Jones v. Randall; the House of Com- mons said by Lord Mansfield not to be a court of record, 72. JOURNALS; 1. Of both Houses. 2. Lord.i. 3. Commons. 1 . Of both Hoiaes. — Given in evidence, 159. What they will prove, ih. H.iw authenticated anil given in evidence, 101 162. Proceedings of committees of the whole house not'entered in the lonls, but entered since 1829 in the commons, 229. 2. Lords. — Formed from the mimites, after inspection by a committee, 156. A record, 158. Given in evidence, 159. 3. Commons. — How compiled ; nature of entries now and formerly, 157, 15j<. Wliethcr a record, 158. Considerations in favour, 158, 159. Judgment op the House; ancient mode of giving by the commons, 75. Resolu- tion of Kith .March 1772, defining prac- tice, 'lb. Judges; the English, Scotch, and Irish judges (excepting the master of tiie rolls in England) dis(|n:ilitied from sitting in the House of Commons, 27. Formerly administered oaths for the commons, 24*. How examined witliin the bar of the com- mons, 247. Sent with messajies to the commons in certain cases, 250. 287. Es- tate bills from the commons referred to, 435. Petitions for estate bills origi- nating in the lonis referred to, 445; to Scotch judges, 446 ; to Irish judges, 448. Their reports and proceedings, 44(;-448. Proceedings when report received, 451. See also Assistants op the Lords. Judicature of the Lords ; various kinds of judicature exercised by the lords, 37. 374-382. Judicature op Paklia.mkxt ; in bills of attainder and pains and penalties, 38. 382. In impeachments, 38. 374. Jurisdiction of Courts of Law. Sie Courts op Law. Jurors ; privilege of members not to Ih; summoned to serve on juries, 103, 104. Justices of the Peace (.Middles( x) ; administered oaths, or examined in the most solemn manner, for the House of Commons, 244, 245. Kenvon, Lord; his opinion in the case of Flower, 57. Drdared the House of Ixrds, when exercising a legislative capacity, not to be a court of record, 70. Jurisdic* tion of the courts in matters of privileg* defined by, 1 17. 480 INDEX. KiDSON & Wright, Messrs. ; reprimanded by the commons, in 1832, for having ad- dressed a letter to the coniniittee on a bill reflectin<;' on the condncc of the members of the committee, GG, 67. Knights of the Shire; supposed to have been the lesser barons, 14. How summoned to Parliament, and by whom chosen, 15. 17 20. Amount of their wages in tlie time of Edward 3; 21. Present number in England and Wales, 23. In Ireland, lb. Qualification of estate bv Act 1 &2 Vict. c. 48 j 26. Lake, Sir T. (1641) ; privilege while having a bill before the house, 110, 111. Lambekt, ]\Ir. ; fined and imprisoned by the lords in 1798, for libel on the house, 63. Lauke'.s Case, 104. Leave of Absence; how granted, and for what causes, 150. Refused, ib. In re- gard to service upon election committees, 355. Le Cale, Baroness (1811); her privilege' 93. Leicester, Lord (1585); privilege for his servant, 89. Leith Docks Bill; member interested, 222. Lesser Barons; supposed to have been the first knights of the shire, 14. Letters Patent Bills; name of inven- tion to be prefixed to notices in capital letters, .397. True copy of letters patent to be annexed to the bill, 420. Special standing orders of the lords relating to, 442. Libels upon the House; punished as breaches of privilege, 62. Practice of the lords, 63. Precedents in the commons, 63,64.72,73. Libels ui-on Members; re*ented as indig- nities upon the house itself, 64. ()7. Cases in the Lords, ()4, G't. In the commons, 66, 67. Librarian of the House of Commons; to be consulted concerning orders lor ac- counts and papers, 315. LiTTLEDALE, Mr. Justice. General juris- diction of the courts in mutters of j)rivi- lege, defined by, 119. Local and Personal Acts; 457. London and Westminster Oil Gas " Company ; member interested, 223. Lord High Chancellor ; his duties on the meeting of a new Parliament de- scribed, 134. First, takes the oaths, 135. Approves the choice of speaker, 137 ; and confirms privileges of the commons on the part of the Queen, 138. Sits on the wool- sack as speaker, 145. To write letters to absent peers on a call of the house, 148. Sits as speaker, 152. All other speakers give place to him, 153. His duties as speaker defined, ib. Speaks from the left of the house, ib. n. Limited autho- rity as speaker, 153. 155. 209. Lord Mayor: Of London examined within the bar, 247. Of Dublin pre- sents petitions, 305. Lords, House of; component parts of, 5- 11. Lords spiritual, 5, 6. Lords tem- poral, 6-10. Form one body, 10. Have an equal voice in Parliament, 10, 11. Total number of members at present, 11. Sittings of lords and commons originally held in one chamber, 18-20. Separation ot tlie two houses, 20. Their j)ractical union at present, //;. Different kinds of judicature exercised by the lords, 37, 38. Claim of the lords to be a court of record admitted, 70. But not when exercising a legislative capacity, ib. Lords Spiritual; virtually appointed l)y the Crown, 5. How constituted, ib. Tlieir tenure, .">, 6. Their number, 6. 11. Declared not to be peers but only lords of Parliament, 10. 381. But were anciently called peers, 381. Sit on trials of peers, ib. But do not vote on question of guilty or not guilty, 381, 382. See also Bishops. Lords Te.mporal ; created by royal prero- gative ; number may be increased at plea- sure, 5. Different degrees of rank held by, 6-9. Representative peers of ScotUind, 9. Of IreUind, 10. Lords temporal, hereditary peers of the realm, 10, 11. Not permitted to sit until 21 years of age, 11. Total number at present, ib. Lords' Com.mittees. See Chairman op Lords' Committees. Committees of the whole house. committees, Select. Committees upon Private Bills. Lords' Journals; inspected by committees of the commons, 189. See also Journals. LovAT, Lord; reference to his impeachment, 379. Lunatics; ineligible as members of Par- liauient, 27. I N D K X. 4HI Mack ; speaker attended by, coniiiiitji per- sons, 07. Borne before the sjieaker by tlie Serjeant, IC'2. Kemoved from tlie tai)le M'hen Iiouse in committee, 224. Effect of its absence from tlie table upon the rules for examining witnesses, 24G, 247. MACLEOD, Allan ; committed by House of Lords to Newgate for publi^^hing proceed- ings, GO. Magna CiiARTA, of KinL' John; light thrown upon the constitution of Parliament by, IG. Obscure, nevertlieless, as to the origin of the representative system, ib. Referred to in connexion Avith the progressive in fluence of the commons in granting sup- plies, 317. ^fANAGERs ; of a conference, 254, 255. Of a free conference, 256. Of an impeach- ment, 377. Mansfield, Lord, said, in Jones v. Randall, that the House of Commons was not a court of record, 72. Jurisdiction of the courts in matters of privilege defined by, 118. Dictum respecting the Journals, 15!). Marine Insurance Bill; proceedings on ; member interested, 222. Marlborough, Duke of; proceedings on clause concerning pension of, 188. Marquesses; origin of the title, 7- Martin, Mr. (158G) ; question of duration of privilege raised in the case of, 9G, Masters in Chancery ; attendants of tlie lords, 156. The ordinary messengers from the lords to the commons, 250. 287. Pro- ceedings in their absence, ib. How re- ceived by the commons, 251. Meeting of the House ; time of meeting, lords and commons, 151, Meeting of Parliament; proceedings on the meeting of a new Parliament, 133, 134. Mellot, James; committed by the commons in 1704 for libel upon members, GO. MEMBERS OF THE HOUSE OF COMMONS; Property qualification of, 26. Other qualifications and disqu;iIifications, ib. Aliens not elii;il>Ie, ib. Must be of age, 27. Mental imbecility a disqualification, ib. English and Scotch peers ineligible to the House of Commons, ib. Irish peers, unless representative peers, may sit for any place in Great Britain, ib. Clergymen ineligible, ib. Class of offices under the Crown excluded by Gth of Anne, c. 7, ib. The judges (excepting the masti r of the rolls in England) disqualified, ib. Go- vernment coiitriictore dinquulifled from serving, 28. Bankrnptu incapable of sit- ting and voting fir 12 months, iinltss the commission be sujicrseded or creditors be paid in full, ib. ^ Duly to attend their service in Parlia- ment, 147. How enforced, 148. On a call, 148, 140. Excused for non-attend- ance, 140. Leave <'f absence, 150. Ex- cuses olTered, ib. Vo withdraw while their conduct is under debate, 210. Xot present when, question j)ut, cannot vote; precedents, 212. Their votes dis- allowed, 212, 213. Notice received by them of a division, 213. Too late for a division, 214. All sent into the lobbies on a division, 216. How counted, and their names recorded, 217 ; and pub- lished, 219. In committee five required to enforce a division in tlit; lobbies, ih. Not to plead on bills depiuding in the lords before they have come down, 223. Their attendance before select commit- tees, how secured, 240, 241. Their at- tendance in the lords, how requireil, 242. Imprisonment of, messages concerning, 2G2. How acknowledged, 265. MESSAGES ; 1. From the Croioi. 2. Between the tico Houses. 3. To the Royal Familij. 1. From the Crown. — Under the »i^ manual, 260. Subjects of such messages, ib. Should he communicated to bi^tli houses, 261. On matters of supply, j7>. Addresses in answer, 264. Exc; j.tions in the commons, 265. Verbal messages ; members beincr imprisoned, 262. Ad- dresses in answer, 265. l->xce|ition in regard to naval courts-martiid, ib. 2. Between the two Houses. — ISIay iuterrupt debates, 176. From the lords to the commoi.9, 240. By the jiidgrs, 2.0O. By masters in clianccry ond others, ib. Messages irregularly sent, ib. From the commons to the lords by meml ers, 251. :Messages, how received in botli houses, ib. Answers to nieosages, 252. Form of message in cummunieating bill* from one liouse to another ; iiroceedintc* thereupon, 287,288. Must be taken by not hss than eight members, 288. Case in 1588, ib. 3. To the Boynl Fnmihj ; and commu- nications from them, 268. Mills, Mr. (1807); privilege of freedom from arrest, 93. M I Nons ; ineligible as member?, 27. 1 I 482 INDEX. MixuTEs OF Evidence. See Evidence, Minutes op. Witnesses. Minutes of Proceedings; Lords. — How compiled, 156. Aftenvards become the Journals, ib. Of committees on pri- vate bills, 427. Misunderstanding between Mem- bers; means taken to prevent, 204, 205. Model Clauses ; inserted in private bills, 417. Money Bills ; may not be amended in the lords, 321. Verbal amendments agreed to, with special entries in the Journal, 321, 322. Presented by the speaker for the royal assent, 165. 291. 334. Montague, Lord (1G48) ; privilege of his tenants, 92. Montfort, Peter de ; signed an answer of Parliament in the 44th Henry 3, " vice totius comnmn'itatls" 19. Montfort, Simon de, Earl of Leicester ; writs issued by (a.d. 12G5) for the return of kniglits, citizens and burgesses to serve in Parliament, 17. MORLEY, Thomas ; fined and imprisoned by the lords in 1G23, for libel on the lord keeper, 04, 65. Morning Sittings; proceedings in 1833, 151. Motions; notices of, 166-169. Without notice, 169. Leave to make motions, 1 70. In the lords need not be seconded, 171. But drop, if not seconded, in the commons, ib. By leave withdrawn, ih. In com- mittee need not be seconded, 225. Super- seded by the chairman being ordered to leave the chair, 229. See also Questions. Murray, Mr.; case of in 1751 ; 50. 57. 69. Napier, Sir Charles; proceedings on vote of thanks to, 170. Naturalization Bills; no bill to be read a second time, without a certificate from the secretary of state, 450. Neale, Mr. ; tlie piivilege of the commons to freedom from arrest vindicated in the case of, 89. Neile, Dr.; words used by, excepted to by the commons, 202. Newspapers; rule as to reading speeches from, 199. Not to be read l)y members in their places, 207. Publication of evidence in a Dublin newspaper, 238. Proprietor committed, ib. Noble, William ; committed by the com- mons in 1773, for libel on a member, 66. Norfolk, Duke of; his attainder declared void, 299, 300. Norman Conquest ; its effect upon the Saxon institutions, 1. North, Lord Chief .Tustice; jurisdiction of the courts in matters of privilege, defined by, 116. NOTICES (PRIVATE BILLS'); 1. Preliminary Notices before Bills are introduced. 2. During the progress of Private Bills in the Commons. 3. In the Lords. 1. Preliminary Notices before Bills are introduced. — Three classes of bills in regard to which preliminary notices are required, 388. Notices how and when pul)- lished, 388, 389. Receipt of printer, 389. Intention to levy or alter tolls to be stated, ib. Application to owners, &c., ib. First Class of Bills : Notices on church doors, 390. Crown, church, or corporation property ; notice to owners, ib. Burial grounds ; notices, ib. Second Class of Bills : Various notices required, 391. Wlien public works are to be relinquished, 395. When water is to be diverted from one cut, canal, &c. into another, ih. Proof of, in England, Scot- land, and Ireland, 403, 404. I Third Class of Bills : 396. j 2. During the progress of Private Bills in the Commons. — Alwaj's given by the agent soliciting the bill, in the Private Bill Office, 399. At what hours, ib. Pub- lished witli the Votes, ib. Of first meeting of sub-committee on petitions, 402. If postponed, 403. Of second reading, 407. Of first meeting of committee on bill, 410. 415. If postponed, 411. Of report and further consideration, 431 . Of clause pro- posed to be added, 431, 432. Of third reading, 433. 3. In the Lords. — Of meeting of stand- ing order committee, 435. Before meeting of committee on the bill, ib. Notices of Motions ; rules in regard to, 166, 167. How and when given, 168, 169. Motions without notice, 109. Ex- punged from notice paper, 170. Proposed by the speaker, 171. When debate arises, ib. Question put, ib. One member may give notice for another, 169. See also Motions. Questions. I N 1) i: X. \h:i OATHS; 1. Taken by Mniihers. 2. A diiilm.itratlon of Oaths by Par- liament. 1. Talicn by Meniheri^. — Firt9. .Notice expungeil from, 170. Order in Derate; enforced in llie lords by the house ; in the eoirininns liy the sp' aker, in the first instance, 197. Crie» of" order" remarked upon, ih. See also Debate. Order ; questions of, may interrupt de- bates, 176. Orders op the Day; when tliey have precedence of notices, 167. Motion for reading, to supersede questions, 173. Orders and Resohtions; con<;Iuiled by a pror gation ; l)ul afterwards acted upon, as declaratory of practice, 133. Ordnance ; master-general or lieutenant- general, if an officer in the army, does not vacate his seat, 340. Ordnance Estimates; when to i)e laid before Parliament, 327. Pains and Penalties, Bills of; judica- ture of Parliament in passing, 38. 382. Pairs ; practice of neutralizing votes, 221. Panels. See Elections, Coxtko- verted. Pardon ; not pleadable in bar of impeach- ment, 379. But may be given afterwar. Ailjoumnient solely in the power of each house respec- tively, 35, 36. Adjounnnents at the pleasure of the Crown, //;. Dis-solution, 36, 37. Diffi'rent kinds of judicature excrcise.l by, 37, 38. Judicature of the entire Par- liament in passing Acts of attainder, »n,i bills of pains and peuallies, 38. And ui impeachments, 38, 39. Proceedini;s upon its first mecfmp, i-M. Qaeen always supposed to be in the high court of, 259. I i2 484 INDEX. Parliamentary Agexcy; no member to be eni. 184. n. Poll Bill (1091); protest conceriiinp, 188. PO.MFHET, Earl of; challenge sent by to Duke of Grafton, 205. Post-Office ; transmission of petitions by, 305. Of Parliamentary papers, 313. Powell, Mr. Justice; jurisiiiction of the courts in matters of privilege defined by, 116, 117. Practice of Parliament; how de- fined and understood, 131. Prayers ; read daily in the lords by a bishop or peer in holy orders, 135. In the coinnions by the speaker's chaplain, 139. Members present at, may secure places, 147. House counted after, 151. Notice given to all select committees when tlie house is going to prayerS; 237. Proceed- ings void after this notice, ib. Caution to committees to adjourn regularly, 429. Preambles of Bills; in public bills, pre- amble postponeil in comuiitti-e, 280 ; and considered last, 281 ; and amendi d if necessary, ib. In private hills, pream- ble first proved, 424. Petitioners against heard, ib. Question upon proof of pre- amble, 425. Preamble not proved, 4-20. Special reports on, ib. Alterations in preamble, ib. Prerogative; proceedings of Parliament sometimes governed by, 133. Taxes raised by ; ceased at the Revolution, 319. See-d\%o Crown. Previous Question; explained, 173, 174. Not admissible in comniitt,-cl- in^ joint-stock companies, 45(1, 451. When judges' report received, 451. Second reading, ib. Commitment, 453. Keport, 454. Third reading, ib. Lords' amendments, ib. , Proceedings of the commons upon t,ilU from the lords, 454, 4.j."». Jjirorcc bill*, 455, 45G. Generally, 450, 457. Private Bill Register; names of agents for and against private bills entered in, and open to inspection, 3!)8. All proceed- ings upon private bills entered there, 400. PRIVILEGES OF PARLIAMENT; General view of the privileges of Par- liament, 44-4!). Speaker's petition, 44- 40. Freedom of access for the commons to Her Majesty, 40, 47. Free access for l)eers, 47. Favourable construction of commons' proceedings, ib. Privileges of each house collectively, 47, 48. The law and custom of Parliament defined, 48. New privileges may not be created, 48, 40. Breach of privilege a contem])t of the High Court of Parlia- ment, 49. Power of commitment exercised by both houses, 49-50. Causes of commitment cannot be inquired into by the courts of law, 50-58. Acts construed as l)reaches of privilege defined, 59 07. Persons com- mitted l)y the speiiker, 07. Inquiry into alleged breaches of privilege, 08.' Dif- ferent punishments inflicted by the two houses, 70-75. Freedom of speech ; chapter on, 70. Freedom from arrest or molestation of ineuibers and their servants, 83-97. And of witnesses and others in attendance on Parliament, 110-112. Privilege of not being impleaded in civil actions, 98-101. Of not being lialde to be summoned by subpoena or to serve on juries, 101-104. Commitment of members by courts of justice for eon tempt, lot t-l 10. Cliupter on the jiirisiiietion of courts of law in matters of jjriviiege, 113. Questions of privilege have precedence, 109. May in- terrupt debates, 170. See also Arrest, Freedom from. Breaiiies of Privilege. Com- mitment. CoiRTs OF Law. Freedom of Si-EEcir. Harkam Corpus. Imfleadi.ng i.n Civil Action:?. Proi eedixg!* in Par- liament. Witnesses, ^c. I 1 4 488 INDEX. Privileges, Committee of (Commons); still apjjoiuted, but no members nonunated,80. Proceedings in Parliament; privi- lege of a favourable construction of, by the Crown, cbiimcil by tlie commons, 47 Not a constituti in;il rig;ht but a personal courtesy, ib. Wilful misrepresentation of pr,)ceedings, a breach of privilege, 07. Debates and proceedings in, not to be questioned elsewhere, 89. Proclam.vtions; addresses for proclama- tions for the apprehension of abscondinu witnesses ; lords, 23!). Commons, 210. ^ Proprietors; special meeting of proprie- tors required liy the lords, to authorize application for new works, 438. Prorogation of Parliament; how ac- complished ; its effect, 35. Its eifect in resarJ to orders and addresses for returns, 310. Before its first meeting, lu4. After its first meeting; proceedings, 165. Fur- ther j)rorcgations, ib. Cases of proroga- tion to renew bills, 190. Docs not con- clude proceedings upon an irapriichment, 379. Nor of an elrction committee, 3G8. Nor on a divorce bill in certain cases, 453. Protests; rules concerning, 221. When to be entered, ib. Peers may sign for all or any reasons stated in the protests, 222. :May be expunged, ib. PROXIES; Lords who hold pro.xies must be i)resent when the question is put, 212. Proxies lio\y declared iu a division, 215. Joint majority of votes and | roxies decide ques- tions, ib. Rulesconcerning, 219. No lord ! to have more than tw),t6. Proxies vacated \ upon lords' rctiirii, 220. New proxies, ib. Pruxies not to be u-ed in judicial cases, though by bill, (6. Nor in controverted elec- tions of representative peers of Scotland, life. Nor in committee, ib. Lords who vote ought to vote also for their proxies, ib. Proxies when to be entered, ib. Peers and their proxies need not vote alike, ib. Prynne; referred to, 90. His ojiinion that the ptrs ns of peers are attaeliable only in casi 8 of breach of peace and contempts with forcr>, lot;, 107. Public Bill Office; eight copies of private bills and amended breviate to be delivered there, 400. PruLic Money ; grants of, how embodied in bills, 273, 274. — See also Supply. Publication op Debates. See Debate. Publication of Papers; contests aris- sing out of the publication of papers by Parliament containing reflections upon individuals ; legality of Bucli publication now afiirmed by statute, 125-128. Purchase-Money ; standing orders of the lords concerning, 441. Pylkingtox's Case, 297. Quakers, Moravians, &e. ; make affir- mations instead of oaths, 140. Qualification of Estate ; what, 26. D H-larations of, to be made, 141. Want of, admitted by Mr. Southey, and new writ issued, 340. QUEEN; Proceedings when her Majesty opens Parliament in person, 142; and by com- mission, 143. Her speech delivered, 142. Reported in one house by the lord chan- cellor, and in the olher'by the speaker, 143. Addresses agreed upon in both houses, 144. Her Majesty's pleasure made known when she will be attended, ib. Addresses when presented by the whole house, and by meml)ers of the royal household, or privy councillors, ib. Proceedings on the death of the Duke of S:ixe Cobourg-Gotha, Wo. Prorogues Parliament in person ; ceremonies de- scribed, 165. By commission, ib. See also Crown. Queen Caroline; enforcement of the attendance of peers on her trial, 148. Question, Cries of; when disorderly, 194. QUESTIONS ; Every matter determined upon ques- tion, KiO. How proposed, ib. Of privi- lege take precedence, 109. Superseded or evaded by adjournment, 172. By read- ing the orders of the day, 173. By the previous question, ib. ^^y amendments, 175. Complicated, 177. Questions put, ib. Again stated, 178. Voices in the house determine the question, and not the votes, 179. Various forms of anu-ndment, 180-185. Same question not to be twice offered in a sessi m, 186. Exceptions, ib. Votes rescinded, ib. Evasions of the rule, 187. Rule as applied to the different statres of bills, ib. Members must speak to the question, 195. Rule when no question is before the house, ib. Questions put to other members, ib. Personal explanation, ib. No member can vote if not present when question put, 212. Various prece- dents, 212, 213. Votes disalloweel, 213. Twice put when division not anticipated, 214. INDEX. 480 Railway Bills ; plans and sections ro- 1 quired, bcsidos tliose upplicablu generally to the second class of private bills, 'yj,'}. | To show embankments and cuttings, ih. ' Line of railway on section to correspond with u|)per surface of rails, ib. Vertical measure s to be marked at change of gra- dients, ib. Height of railway over or under surface to be marked at every cross- inir of a road, &c., ;3',)(j. Tunnelling and archway to be marked, lb. Constitution of committees on bills for competing lines of railway, 413. Provisions therein; for restriction of mortgages, level of roads, fence to bridges, crossing turnpike roads on a level ; not to be proceeded with till after deposit of amended plans, 418. Limiting deviations and alteration of curves, ib. Special reports on railway bills, 419, 420. Consideration of reports on Tuesdays, 433. IlKi'ouT OP Bills; procccdinps on, 282. Hills rejiririted, 283. Clauses added, und amendments made, ib. RiiPojiT OF Phivate Bills; Commons. — Proeiediiii^'i thereon ; print- ing and dilivermg of auniidcd bill ; lirevi- ates; notice of report, 430. Consideration of report; clauses and amendments refer- red to standing orders connniltee, 4:*.l. Recommitmenf, 432. Consideration of reports of railway bills, 433. Lords. — lve])ort of private bills, 443. Special rejiorts, ib. Amended railway bills to he reprinted, 444. Representative Peers of Ireland; law concerning; how elected, 4:c., 10. Certificate of clerk of the Crown, 6ic., 135. Representative Peers of Scotland; how elected, 9. Certificate of the clerk of the Crown, 135. ZoJYfo.— Special reports; provisions to return Book; delivered bv the clerk of be inserted, 443. Amended bills to be re-| ^he Crown to the clerk of "the House of printed, 444. j Commons, 134. Subscribed by each mem- R.AINSF0RD, Lord Chief Justice; refused! ber, 141. to admit Lord Sliaftesbury to bail when. Returns; amended by clerk of the Crown, committed in 1675, by House of Lords, for 142. contempt, 57. Ratcliffe, Sir G. ; the civil power called on by the commons, in 1G41, to aid in the apprehension of, 57. Receivers and Triers of Petitions ; their ancient constitution and functions, 301. Their appointment still continued by the House of Lords, 802. Recognizances; on election petitions, See also Accounts and Paper.s. Revolution of 1G88, The; only defined the constitutional prerogatives of the Crown, 4. No taxes raised by preroga- tives since, 319. Rex v. Wright; refusal of the court to regard a proceeding of eitiicr house of Parliament as a libel in this case, 82. Jurisdiction of the courts in matters of privilege defined by Lord Kenyon in, 117. 346-348. Recommendation of the Crown; how Rif'"- Lord (164G); 92. and when signified, 263. j Rich, Peter; 66. Recommitment; of public bills, 284; of Roman-catholic Relief Bill; founded private bills, 432. upo" the resolution of a committee, 27.3. , ' ^,„„r.N 1.. ^- • *i I Oath established by, vly;;;. 462. Reform Acts (1832); alterations m the', . , elective franchise effected bv, 21.23, 24, 1 Roman Senate; mode of putting the 25. Registration of voters, 24. question in, 178. h. Amendments to _ ^, , ^ -x,. I- *• ' amendments not understood by, 184. «. Religion, Grand Committee; discontinu- ance of its appointment, 229. 1 Roscommon, Lord ; case of (1829), 109. Religion; construction of rule concerning , rqYAL ASSENT TO BILLS; bills relating to, 272, 273. Remonstrances; under what circum- stances received or rejected, 303. Reply; rules concerning; to what cases limited, 196. Report ; of a committee of the whole house, 229. Chairman instructed to move for leave to bring in bills, ib. Of select committees, 237, 238. Bills passed by both houses cannot he withheld from, 291. Custody of, in the meantime, ih. Royal assent Ity comniifi- sion; its origin, 291, 292. Form of c.mi- mission, 292. Form of giving royal assent bv commission, 293. Form of royal a.««ont to monev bills, 1 (!.".. 29.3. .3.34 ; to public bills, ib. ■ to private bills. 293 ; to nets of grace or pardon, ib. Form of refii.«in(j roval assent, jft. T'se of the Norman French, 490 INDEX. RovAi. Assent to Bills — contimted. 293, '294. Royal assent by the Queen in person, 294. Effect of intbniuilities in the royal assent, 299. Case of tlie Duke of Norfolk's attainder, 299, 300. Royal Family ; messages for provision for the royal family, 261. Mcssnges to the royal family, 2r)B. How communicated, ib. Communications from members of the royal family, ib. Saxe-Cobourg-Gotha, Duke of; proceed- ings on the death of, 145. Saxon Institutions; subverted by the Conquest, 1. Adverted to in reference to the origin of representation, 12, 13. SCHOOLMASTEltS' WiDOWs' FUND (SCOT- LAND) Bill; informality in agreementof the two houses cured by an Act, 298. Scotland; Peers of, not admitted on the Union in 1707, as a body, to seats in the British Parliament, 9. Elect 16 rii)rescntatives from their own body for each Parliament, lb. Ineligible to the House of Commons, 27. Entitled to all privileges of peerage, 94. Forty-five members assigned to Scot- land in the British House of Commons ( n the Union, 21. Antiquity of the repre- sentative system in Scotland, 21. n. Act of 1425, c. 52, requiring all freeholders to attend personally in Parliament, ib. ; and of 1427, c. 102, defining the constitution of the House of Commons, ib. Alterations in the elective franchise of, effected by the Reform Act of 1832; 23. Number of re- presentatives for, now in the house, ib. ScKOGGS, Chief Justice; impeached, 376. Second Rkading, of pul)lic bills, 276- 279 ; of private bills, 407, 408. 438. 451 ; of divorce bills in the lords, 449. Secret Co.mmittees ; their inquiries con- ducted with closed doors; exclusion of members of tlie liNUse, 236. Of both houses communicating with eacli other, 258. Selden ; the bishops brought under tlie tenure t)y barony by William the Con- queror, according to,.">. Declared a l)reach of ijfivilcge in one Parliament punisliable in another, 70. Selection, Committee of; its duties, 409- 411. In the lords, 439. Sekjeant-at-Aums (Lords); his duties, 157. Sekjeant-at-A RMS (Commons) ;a))pointed by the Crown, but a servant of the liouse. 162. Enumeration of his duties, tfc. In- troduces messengers from the lords, &c. 251. Orders all doors to he locked on a division, 214. Gives notice of prayers to all select committees, 237. Ordered by the speaker to do his duty in taking a dis- orderly member into custody, 228. Or- ders for the attendance of witnesses fir- warded by, or served by his officers, 239. Ordered to take witnesses absconding into custody, ib. See also Privileges. Servants of Members ; formerly free from arrest on mesne process and in exe- cution, 83. Have no privileges at present, 84. 92, 93. SERVICE OF PARLIAMENT; Duty of members to attend, 147. Li- cence to lords to be absent, and appoint proxies, ib. Act 6 Hen. 8, forliidding memliers of the commons to be absent without licence, ib. Means taken to se- cure the attendance of the lords, 148. Lords summoned, 149. Their names re- corded on the Journals each day, 148. Call of the House of Lords, ib. Strictly en- forced on the trial of Queen Caroline, ib. And on otlicr occasions, ib. n. Call of the House of Commons; proceedings thereon, 149. Sessional Orders ; their character and operation, 133. Session House; certain notices of private bills required to be alfixed to, 391. See also Notices. Seymour, Sir Edward ; seized the serjeant- at-arms, 67. Shaftesbury, Earl of ; case of, in 1675; 50. 57. Doubts expressed of power of the lords to imi)rison for a term after de- termination of session, 71. Shaftesbury, Countess of; case of, 109. Sheridan's Case, 56. Sheriff of Middlesex; case of, in 1840; 50.57-59. Shire-gemote ; its cliaracter and func- tions under the Saxon kings, 12. Shirley, Sir Thomas (1603); privilege case, 90. Short-hand M'niTERS (Commons); their notes printed for the use of committees, 237. How to be corrected by witnesses, ib. Not to be produced on trials without leave, 246. Signatures to Petitions; rules in re- gard to, 304. INDEX. I'M Sll/ENcp ; to be observed in debate, 207. Slavery; abolislied by Act of Parliament, in 183:3, tlirouyliout all British posses- sions, wiietiier having local legislatures or not, 30. Smalley's Case (1575); fine imposed by the counnons in, 72. The privilege of ser- vants asserted in, 88. Smelt, Christopher; committed by the conmions, in 1G8!), for libel against Peter Rich, a member, fi6. Smyth, Sir Tliomas ; powers of Parliament ; and limits of prerogative as laid down by, 4. SoDOR AND Man, Bishop of; has no seat in Parliament, G. n. Somerset, John, Earl of; created Mar- quess of Dublin in the reign of Rich. 2; 7. South Sea Company; prorogation to allow new bills concerning to be brought in, 190. SouTHEY, Mr. ; his seat vacated for want of qualification of estate, 340. Sovereign, The ; name of, not to be used in debate to influence votes, 200. SPEAKER; I. Of the House of Lords. II. Speaker of the House of Commons; 1. Generally. 2. Choice of Speaher. 3. His Duties aiid Authority. I. Of the House of Lords: General view of the office, 152. The lord chancellor, or lord keeper, ih. Not necessarily a peer, ib. Mr. Brougham sat as speaker, ib. ^^■hcn great seal in commission, 153. Deputy speakers, ib. Speaker })ro tempore, ib. Duties of speaker explained by standing order, ib. Proceedings of the house not suspended by the absence of the speaker, 155. Case in 1831, ih. Effect of liis limited authority, npon the conduct of debates, 192. 209. Azotes on every question, but does not leave the woolsack, 215. Reads messages under the royal sign manual, 26 >. Lord chancellor signifies the royal jileas'ire that Parliament should be prorogued, 2G3. Reads joint addresses of both houses, 2G7. The speaker of tlie House of Commons on his left hand, ib. II. Speaker of the House of Commons ; 1. Generally: Earliest mention of the oHice, 19. May have existed long before, ib. His rank above all commoners, l.'>4. When nccoin- panied by the mace, can oouimlt witliout previous order of the fuaise (17. Never adjourns tbe house l)ut tipoti question • ex- cept for want of 40 memhers, 152. 2. Choice of Speaker : Commons desired t" choose a speak(T,at the eoninieiiceinent of a ne-.v I'arliuuient and to present iiiin for royal a])|irol'ation 134. Election oTa speaker described, 1;MI, 137. Royal approliation of tlie speaker elect, ib. Lays claim to tlie privileges of the commons, 137, 138. Retains the office for the whole Parliament, 138. Fonns observed in the election of a s]icaker, ou a vacancy occurring during a session, ib. Exceptions to the forms observed in elect- ing a speaker, 138. Royal approbation refused, 139. First, takes the oaths re- quired by law, ib. 3. His Ditties and Authority : Counts the house after prayers, lol. Again counts it at four o'clock, ib. Ad- journs the house without question first pat, ib. Tells the house if notice taken, or it appears on division that 40 members are not present, 151, 152. General view of liiH duties, 154. No provision for supplying his place when absent, ib. House ad- journs, ib. Another speaker elected, 155. Effect of the different character of the office of speaker in the two houses upon their sittings, ib. Questions; proposed by him, 171. Put by him, after the close of a del)ate, 173. But this act interce])ted by tlie previous question being negatived, ilf. Mode of putting questions, 177 ; and colleetinjj voices, 178. Questions again stated l)y, ib. Rules tiiat a meiulier's voice determines his vote, 179. Every member addresses liim, 191. Members may not speak after question entirely put by him, 192. Calls ujwn member first in liis eye, to speak, 193. How far his call may be disputed, ib. \\hen two inendters rise, ib. .Veciuaiiits members that they must speak to the question, 194. Maintains order in debate, 197. 209. To call upon members by name who are disorderly, 207. 209. His autbo- rity in enforcing rules of the house, 20!). In* doubtful cases, 210. Is always to be heard when he rises to sjK-ak, ib. Divisions. — Calls attenti n to his bav- in"' caused a number to vote, wlio was not present when (picstion put, 212. Puta it to a member whether lie was in tiic house, ih. Desires members who were not in t lie house to signify the same, ib. Re|v)rt.H 492 INDEX. Speaker — continued. tbe numbers to the Louse, 21'2. Informs a member that he could not be permitted to vote, 21 3. Desires straugers to withdraw on a division, ih. Puts the question, 214. Twice, when a division is not expected, ib. Directs the ayes to ^o i'lto one lobby and the noes into the other, 21G. If two tellers not found, stops t!ie division; cases, 21 0. sugofestion that he should require 12 to divide the bouse, 21(), 217. Declares the numbers on a division, 217. Gives the casting voice, 218. Principles by which he is usually guided in his vote : prece- dents, ib. Resumes the Chair. — On a doubt arising as to the mode of dividing in committee, 227. Gives his opinion, and the house again resolves itself into com- mittee, ib. Speaker resume-: the chair, on the house being summoned l y black rod, ib. Or tbe time for a conference being come, lb. Or if sudden disorder arise in committee, 227, 228. When 40 members are not present in committee, 228. Tells the house, and adjourns it, if 40 be not then present, ib. Witnesses. — Issues warrants to keep- ers of prisons to bring up witnesses in their custody, 239. Issues warrants for the attendance of witnesses, before the meeting of an election committf e, ib. Dis- obedience punished, 240. Grants leave to short-hiind writers to attend trials in the recess, 24G. Rules concerning the examination of witnesses and prisoners at the bar by him, 240, 247. Messages and Addresses, §-c. — Reads written messages from the Crown at lengtii, 260. Speaker's state coach ap- proaches the palace by the central mall in St. James's Park, 2G7. Advances to the throne on the left hand of tlie lord chancellor, on presenting joint addresses, ib. Reads addresses of the commons, 2G8. Mover and seconder on his left band, ib. Reports answers to addresses presented by the whole house, ib. Com- munications from the royal family ad- dressed to him, ib. Elections and Writs. — Issues warrants for new writs, liy order of the house, dur- ing a session, .338. And a supersedeas of writs in certain case'', ib. Issues war- rants for new writs during a recess, under statutes 24 Geo. 3 and 52 Geo. 3; 338, 339; A pp. 4G3. His appointment of members to execute these duties, in case of his own death, &c., 339. Ordered not : to iflsue his warrant for new writs, .308. I Speakixg ; rules in regard to. See De- bate. Speech, Freedom of. See Freedom OF Speech. Spiritual Lords. See Bishops. Lords Spiritual. Staxdixg Orders ; their character and operation, 132. Collected by the lords; but not by the commons, ib. Staxdixg Orders coxcerxixgPrivate Bills ; motions for dispensing with not to be made witliout notice, 433. 5eealso Private Bills, and the seve- ral classes of Bills to which they relate. Standing Orders Committee; 1. Commons. 2. Lords. 1 . Commons. — Its functions ; reports for leave to proceed, 404. That standing orders ought not to be dispensed witi), 405. Clauses and amendments proposed on report, and third reading of private bills referred to, 432. 2. Lords. — Standing order committee (lords), 435, 43G. Statistics ; statistical value of parliamen- tary accounts, 313. 315. Statutes; proceedings of Parliament sometimes governed by statute, 133. In- formalities in passing, 296-300. See also Bills, Public. Stockdale v. Hansard; case referred to, 75. Expositions of the judges in refer- ence to the general jurisdiction of the courts in matters of privilege, 119, 120. Outline of the proceedings in this case, 125-127. Strangers; order for their exclusion from the lords not enforced, 163; nor in the commons, ib. Interpretation of tlie order, 164. Strangers only present upon suffer- ance and may be excluded by notice being taken of their presence, ib. Excluded on a di\ision, 213. Strode's Case ; the privilege of freedom of speech by the commons violated in, in 15] 2; 77,78. Stuart, Peter; committed by the commons in 1805 for libel on the house, 64. Subpcenas ; claims of Parliament to pri- vilege of not being summoned by subpoena, 101. Claim not iiDW enforceil, 102. ^lem- bers of one house not allowed to be sum- moned by the other without message de- siring attendance, 102. INDEX. 11(3 SUBSCHIBKRS TO U.VDEUTAKIXG3 ; their votes disallowed, 22-2. Sdbscrii'tion Conihactsj to three- fourths the iimoiint of the estimate, 393. When declaration, or declaration and esti- mate of rates, may be siil)stitiite(l (7;. Contract to contain christian and sur- names of parties, &c., 394. Amount of deposit required thereon, lb. Not valid unless entered into before close of pre- vious session, ib. Printing and delivery of, ib. Subsidies; early period at which the people had a share in granting, 17. See also Supply and Ways and Means. SuGAK Duties, Annual ; voted in com- mittee of ways and means, 330- Summons; Parliament can be assembled by the act of the Crown alone, 31. In- stances of the lords and commons meeting by their own authority, lb. ]\Ianner of summoning Parliament by writ of sum- mons, 33. Parliament may meet without summons, by Act G Anne, c. 7, on demise of the Crown, ib. By 37 Geo. 3, c. 127, such Parliament to exist for six months only, if not disolved in the meantime, 34. Sums, Greater and Lesser; the least sum and the longest time to be first put, 22G. 280. 331. SUPPLY, AND WAYS AND MEANS; Right of the commons in voting sup- plies, 39, 40. Feudal origin of Parlia- mentary taxation, 316". Increase of the wealth and political influence of the com- mons, 317. Growtli of the commons' right of supply, 318. Stiitute De tullaijio non concedendo, ib. Taxation of the clergy in convocation from Edward 1 to Charles 2, ib. Commons' right to originate grants acknowledged, Plenry 4; 319. Sui)ply bills then presented by the speaker, ib. All imposts levied by prerogative ceased at the Revolution, ib. Recognition of the exclusive right of the commons to grant su))plies, ib. Legal effect given to their grants before the Appropriation Act, ib. ; but liable to be regarded with jealousy, 319, 320. n. Immediate effect given to votes of the commons, 320. Irregularity of proroguing or dissolving Parliament without an Appropriation Act, ib. Exclusion of the lords from altering supply l)ills, 321. Rat s and charges not to be altered by the lords, ib. Special entries in the Journal on agreeing to amend meuts, 321, 322. Rule regarding jjocuniarv penuitien, 322. Tacks to bills of sup])ly", 32;J. Con- stitutional jiriueiple of supply expjaliii'd, 324. Reeciminciidation of the Crown prior to grants of nmncy, 32.J ; or thr- offt-r of petitions, reports, or motions, sug'^'csttiiig such grants, ib. Petitions for compound- ing debts due to the Crown, ib. Motions for grants not- to be presently entered upon, 320. Royal speech at the commencement of the session, 320.' Supply granted, ib. Committee of supply, 327. Esliuiates, when presented, ib. Nature and amount of annual grants describL-d, ib. Payments secured by Act of Parliament, ib. Sittings of committee of 8up])ly, 328. Estimates projiosed, ib. Chairman of committees of supply and ways and means, ib. Committee of ways and means sit after first report of committee of supply, 328, 329. Functions of these committees distinguished, 329. Services provided for by the committee of supply, 329. Cliari;es uj) m the Con- solidated Fund beyond their control, 330. Exchequer bills ; proceedings of both com- mittees thereon, ib. Proceedings in committee of wnt/x and means, 331, 332. Annual budget, .331. Report of supply and ways and means, 332. Propositions for reducing ciiarges upon the people, 333. Appropriation Act, 333, 334. Grants othenvise than in com- mittee of supply, 334. Addresses for puli- lic money, 33.5. Taxes imposed otherwise than in committee of ways and nuuins, ib. Taxes for revenue purj)oses in committee of ways and means; for fiscal regulation in other committees, 330. Sureties, on election petitions, 340-348. Swift, Mr.; committed by the commons, for challenging Sir J. Wrottesley, a mem- ber, 65, CO. Tacks to Money Bills, 323, 324. Taylor, Mr. ; expelled the House of Com- mons in 1041, and declared for ever inca- pable of sitting, 43. T.VXATION ; feudal origin of parliamcntan,' taxation, 310, 317. Cessati >n of all taxes by prerogative after the Revolution in 1088; 319. See also Supply. Taxes ; petitions against proposed taxes for the service of the year may now be re- ceived, 307. Teignmoutii, Lord; difference betwc«Mi lords and commons concerning the proper mode of summoning liim, 242, 243. 494 INDEX. Tellers; Lords.— One teller for each party, 215. Commons. — Two for each party in a division, 216. If two not found, no divi- sion takes place, ih. If they differ, ano- ther division necessary, 217. See also Divisions. Temple, Master of the; case of, 19 Edw. 1 ; 85. Thanks of the House ; entitle a member, by courtesy, to his place, 14G. Motions for entitled, by courtesy, to prectdfuce, 170. Third Reading ; of public bills, 285, 286 ; of private bills, 433. 454. Thorpe, Mr. Speaker ; extraordinary case of privilcjie ; the privilege of freedom from arrest admitted, but hrld to be overruled bv the law in the case of, 85, 86. 97. 104. 115. Throm'ER, William ; committed by the commons, in 1559, for contempt, in words, against the dignity of the house, 63. Tithe Commutation Bills; did not con- cern religion so as to originate in com- mittee, 273. Titles of Bills; when altered in the lords, 286. Settled in the commons after bill passed, ih. Hinds the committee not to introduce clauses or amendments foreign to it, 280, 281. Unless authorized l)y in- struction, 281. Of private bills, may not be changed without leave of the house, 406. Titles of Honour ; all titles of honour the gift of the Crown, 5. Titus Gates ; case of, 160. Topham's Case, 51. Tracey, Sir J. (1597) ; case of, 103. Trade Grand Committee; its appoint- ment discontinued since 1831 ; 229. Trade; construction of nile concerning bills relating to, 272,273. Standing order of the lords concerning bills for regulatuig, 450. TREA6UKY Bench ; 14.j, 146. Trench, Sir F. ; words of heat between him and Mr. Kigby Wason, 205. Triers of Petitions ; their ancient con- stitution and functions, 301. Still ap- pointed by tlie lords, 302. Sec also Petitions. Troubridge, SirT. ; withdraws, 210, Turner, Sharon; Extracts from his His- tory of the Anglo-Saxons on the character ami functions of the Witteua-gemote, 12, 13. [Jniformity, Act of, 1 Eliz. c. 2; passed by the queen, the lords temporal and tlie commons, 10. Universities of Oxford and Cam- bridge, the members for the, denomi- nated burgesses, 22. «. Unopposed Returns; notices for, 169. Usage of Parliament; how collected, 131. Usher of the Black Rod: Gentleman AND Yeoman Usher ; their duties, 157. Orders doors to be locked on a division, 214. Commands the attendance of the commons in the house of peers, when Queen present, 142. 165. Desires their attendance, when lords commissioners pre- sent, 143. 165. Vaughan's Case, 89. Vaux, Lord ; case of (1625), 107. Verb, Robert de, Earl of Oxford ; created Marquess of Dublin by Richard 2, being the first upon whom the title was con- ferred, 7. Viscounts; origin of the title, 8. Vote Office, House of Commons; distri- bution of parliamentary papers by, 312. Vote of Thanks ; allowed precedence I)y courtesy, 169. When precedence should be claimed, ib. Votes of the House; rescinded, 187. Reflections upon, disorderly, 198. Votes and Proceedings (House of Com- mons) ; how compiled; nature of the en- tries, 157. The Journal prepared from them, ib. Wages of ^Iembers; amount of, in time of Edward 3 ; 21. Tlie charge considered a burthen on small and poor communi- ties, ib. Walpole, Sir Robert; use of king's name b}', 201. Resigned after an adverse vote on the Chippenliam electiou petition, 341. Ways and Means, Committee of ; its func- tions explained, 329-332. 335, 336. See also Supply and Ways and Means. Walsh's Case (12 Edward 4), 98. I N D E X. -J!>:. Warwick, Earl of (10-28); privilege of servants, 92. Wellesley, Mr. Long; refusal of privi- lege to, committed by Lord Cliaiicellor Brougham in 1831 for contempt, 108. White, Thomas (1G66) ; fined by the com- mons for absconiling from custody of ser- jeant-at-arms, 74. Wilkes, Jolni ; proceedings in reference to his ex|)ulsion and re election, 42. WiLLES, Lord Chief Justice; tlie jjower of a party to brinji an action at common law, notwithstanding any order of the House of Commons, affirmed by, 118. William the Conqueror ; change in the tenure under wliicli spiritual lords sat in Parliament, effected by, 5. Styled him- self Earl of Normandy, 8. His charter adverted to, 316. Williams, Sir William ; outline of the proceedings against in 1084. for the pub- lication of Daugerfield's Narrative, by or- der of the house, 122. WiNTON, Earl of; reference to his impeach- ment, 378. WITNESSES; 1. Generally; Privilege of Wit- 7iesses. 2. Hoio summoned and examined by the Lords. 3. By the Commons. 1. Generally ; Privilege of Witnesses- — Privilege of freedom from arrest and molestation enjoyed by, in atti'iidance on either house of Parliament, 1 10-1 12. False evidence in the lords, perjury, 243. In the commons, a breach of privilege, 245. Before election committees, 364. 2. How summoned and examined by the Lords. — Ordered to attend at the bar to be sworn, 238. Keepers of prisons or- dered to bring them up in custody, ih. Service of the order when a witness ab- sconds, ib. Ordered into custody, ib. Exe- cution of this order stayed, 239. Address to the Crown for a proclamation, with re- ward, ib. Peers and peeresses, how sum- moned, ib. Sworn at the bar, 243. 440. Examined at the bar, 243. By select committees, ib. Peers, how examined, 243. 247. And members of the House of Commons, ib. 3. By the Commons. — How summoned, to be examined at the bar, 239. Order how served, ib. Speaker's warrants to keepers of prisons to bring up witnesses in tlieir custody, 239. Witmsscs not attend- ing, ordered into custody, ib. .\iu\ uIko persons aidin. Commission to examine witnesses in Ire- land, 370-373. Select Committees. — Rules for correct- ing the minutes of their evidence, 2.37. Summoned by order fmm chairninn of select committee, 233. Their attendance generally secured by chairman's order, 240 ; if not, an order of the house for Ids attendance, ib. Before a committee on a private bill can only be enforced by tlie liouse, 240. Proper form of a]>plieaiion, 428. Their expenses, when nlloweil and under wliat regulations, 247, 248. How summoned iu impeachments, 377. Wittena-gemote ; its character and func- tions under the Saxon kings, 12, 13. Presence of the people at its delibera- tions ; difficult to ascertain in what capa- city, 13. Great council helii at \Vmche.«- ter iu tlie reign of Ethelwolf, a.d. H,>,j, at \y!!ic'i the pt-ople attended, ib. Similar council held in tiie fiftli year of the reign of Canute, ib. Woodfall, H. S. ; committed Ity the com- mons, in 1774, for publishing libel on the speaker, 66. Woolsacks ; lords withdrawing there, not told iu a division, 214. Words; ordered to be taken down, 197; but objection must be made iuimediati'Iy, 206. Various rules concernintr objection- able words in debate, 19S-2n2. Exce|>- tioiis taken to words, 202, 203. Wonis of heat, 204, 205. May interrui-t de- bates, 176. Wright, Mr. Justice; refused to admit Mr. Murray to bail, committed iu 17.'j1, by the I commons for contempt, 67. 496 INDEX. Writs ; issue of writs by the House of Com- mons, on vacancies during a session, 337. Supersedeas of writs, 338. Speaker issues warrants during tlie recess, in cases of dcatli and elevation to tlie peerage, ib. Speaker's appointment of members, 339. Form of certificate, App. 463. In cases of bankruptcy, lb. Acceptance of offices under tlie Crown, ib. ; or lord lieutenant, ib. Chiltern Hundreds, 340. Other occa- sions for issuing writs, ii. Issue of, sus- pended on report of election committees, 368. Wkits of Summons ; summons to peers to attend Parliament, formerly dependent on the royal will, 5. House of Commons elected by virtue of a writ from the Crown, ib. — See also Summons. Wbottesley, Sir J. ; challenged, 65. Wyxduam, Sir W. ; ordered to wfthdraw, 211. Yarington, Mr.; committed by the com- mons in 1680, for libel against a member, 66. Prinfpfl by .Inmcs k Lukp J. Hnnsard, iM'nr LiiiniliiVInii I''i(;lUs. 11111(1 AA 000 746 611 r'TL ^ ^ ^ I4r V 't If: