To prevent any riot or tumult under the pretence of petitioning for the redress of grievances, by 13 Car. 2, st. 1, c. 5, no petition to the king or either house of parliament for any alteration in church or state, can be signed by above twenty persons, unless approved by three justices, or the major part of the grand jury in the country, and in London by the lord mayor, aldermen, and common council; and no petition can be presented by more than ten persons at a time. But under these regulations, by 1 Wm. and Mary, st. 2, c. 2, the subject has a right to petition; and the same statute empowers him to have arms for his defence suitable to his condition and degree, and such as are allowed by law.

CHAPTER II.

The relations of persons, public and pri

vate. Public relations.

Parliaments.

OF THE PARLIAMENT.

THE relations of persons, as they are members of society, are either public or private.

The most universal public relation by which men are connected together, is that of government; namely, as governors and governed, or as magistrates and people. Of magistrates, some are supreme in whom the sovereign power of the state resides, others are subordinate, deriving all their authority from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary sphere.

In England the supreme power is divided into two branches; the one legislative, consisting of king, lords and commons, the other, executive, consisting of the king alone.

Parliaments or general councils are coeval with the kingdom itself; but the constitution of parliament as it now stands was first marked out in 1215, in the great charter granted by king John, wherein he promises to summon all archbishops, bishops, abbots, earls and greater barons personally; and all other tenants in chief under the crown by the sheriff and bailiffs; to meet at a certain place to assess aids and scutages when necessary. The parliament is summoned by the king's writ, or letter issued out of chancery, by advice of the privy council, at least forty days before it begins to sit. It is a branch of the

4 Inst. 6.

royal prerogative, that no parliament can be convened by its own authority, or by the authority of any except the king alone. The constituent parts of a parliament are the king, the lords spiritual and temporal, and commons (a). These estates toge- 4 Inst. 1, 2. ther form the great corporation or body politic of the kingdom, 1 Eliz. c. 3. of which the king is the head. At their assembling he meets Hale of Par. 1. them either in person or by representation, and he alone has the power of dissolving them. To prevent any encroachments by the legislative on the rights of the executive power the king is himself a part of the parliament; but the share of legislation which the constitution has placed in the crown, consists in the power of rejecting, rather than of resolving. The crown has not any power of doing wrong, but merely of preventing wrong from being done. It cannot begin of itself any alterations in the established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses. In the legislature the people are a check on the nobility, and the nobility upon the people, by the mutual privilege of rejecting what the other has resolved, while the king is a check upon both. The king will be the subject of the next, and many subsequent The lords spichapters. The next in order are the spiritual lords. These consist of two archbishops and twenty-four bishops. The lords spiritual are in the eye of the law a distinct estate from the lords temporal, and are so distinguished in our acts of parliament; yet in practice they are blended together under the one name of "the lords" they intermix in their votes, and the majority of such intermixture joins both estates.

ritual

The lords temporal consist of all the peers of the realm, (the and temporal. bishops not being in strictness held to be such, but merely lords of parliament) by whatever title of nobility distinguished, dukes, marquises, earls, viscounts, or barons. Some of these sit by descent as do all ancient peers, some by creation as do all new made ones; others, since the union with Scotland, by election, which is the case of the sixteen peers who represent the body of the Scotch nobility (b). The commons consist of all The commons. such men of property in the kingdom as have not seats in the house of lords; every one of whom has a voice in parliament, either personally or by his representatives. In a free state

(a) Comitia: Conventus ordinum Anglia videlicet, prælatorum, procerum, et communitatis regni. Ex quorum consilio, rex leges sancit, pecuniis instruitur, et alia magni momenti transigit. Ea comitia, interdum appellantur comitia parlamentaria, interdum parlamentum. Bac. Hist. Regn. H. VII. Ind. vocabulorm.

(b) And since the Union with Ireland, the four lords spiritual, and twenty-eight lords temporal, who represent the Irish nobility.

The power and
jurisdiction of
parliament.
4 Inst. 14.

6 Ann.

every ma i who is supposed a free agent, ought to be in some measure his own governor, and, therefore, a branch at least of the legislative power should reside in the whole body of the people. In so large a state as ours, it is wisely contrived that the people should do that by their representatives which it is impracticable to perform in person; representatives chosen by a number of minute and separate districts, wherein all the voters are or easily may be distinguished. The counties are, therefore, represented by knights elected by the proprietors of lands. The cities and boroughs by citizens and burgesses, chosen by the mercantile part or supposed trading interest of the nation (b). And every member, though chosen by one particular district, when elected and returned serves for the whole realm.

The power and jurisdiction of parliament, says Sir Edward Coke, is so transcendent and absolute that it cannot be confined either for causes or persons. It has uncontrollable power in the making, confirming, enlarging, restraining, abrogating, repealing, revising, and expounding of laws concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal, all mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this tribunal. It can regulate or new model the succession to the crown, as was done in the reign of Henry 8, and Wm. 3. It can alter the established religion of the land, as was done in a variety of instances in the reigns of Henry 8, and his three children, and can even change and create afresh the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. By 7 & 8 Wm. 3, c. 25, no one can sit or vote in either house unless he be twenty-one years of age; and by 30 Car. 2, st. 2, and 1 Geo. 1, c. 13, no member can vote or sit in either house till he has, in the presence of the house, taken the oaths of allegiance, supremacy, and abjuration, and subscribed the declaration against transubstantiation (c). By 12 & 13 Wm. 3, c. 2, no alien, even though he be naturalized, can be a member of parliament.

(b) Equites et burgenses parliamenti: Deputati communitatis: equites à populo, per agros, et oppida in burgos non erecta, eliguntur; burgenses ab oppidis, eo privilegio à rege donatis. Bac. Hist. Reyn. H. VII. Ind. vocabulorum.

By 2 Wm. 4, c. 45, s. 20, the right of voting in counties is extended to occupiers as well as owners of land in certain cases, see post, p. 28.

(c) By 10 Geo. 4, c. 7, the acts relating to declarations against transubstantiation were repealed, and Roman Catholics empowered to sit and vote in parliament, on taking the oath therein prescribed.

The law and custom of parliament has its original from this The privileges of parliament. maxim, that whatever matter arises concerning either house ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere, the lords will not suffer the commons to interfere in settling the election of a peer of Scotland; the commons will not allow the lords to judge of the election of a burgess, nor will either house permit the subordinate courts of law to examine the merits of either case. But the maxims upon which they proceed together with the method of proceeding, rest entirely in the breast of the parliament itself, and are not defined and ascertained by any particular stated laws. The privileges of parliament are likewise very large and indefinite, and, therefore, when in 31 Henry 6, the house of lords propounded a question to the judges concerning them, the chief justice, Sir John Fortescue, in the name of his brethren, declared that they ought not to make answer to that question; for it hath not been used aforetime that the justices should in any wise determine the privileges of the high court of parliament. For it is so high and mighty in its nature, that it may make law; and that which is law it may make no law; and the determination and knowledge of that privilege belongs to the lords of parliament, and not to the justices" (d). By 1 Wm. & M.

(d) In the late case of Stockdale v. Hansard, an action for a publication defaming the plaintiff's character, by imputing that he had published an obscene libel, the defendant pleaded that the Inspectors of Prisons made a report to the secretary of state, in which improper books were said to be permitted in the prison of Newgate,—that the court of aldermen wrote an answer to that part of the report, and the Inspectors replied, repeating the statements, and adding, that the improper books were published by the plaintiff; that all these documents were printed by and under orders from the house of commons, who had come to a resolution to publish and sell all the papers they should print for the use of the members, and who also resolved that the power of publishing such of their reports, votes, and proceedings, as they thought conducive to the public interest, is an essential incident to the due performance of the functions of parliament, and more especially to that house, as the representative portion of it. To this plea the plaintiff demurred, assigning that the known and established laws of the land cannot be superseded, suspended, or altered by any resolution or order of the house of commons, and that the house of commons in parliament assembled cannot, by any resolution or order of themselves, create any new privilege to themselves, inconsistent with the known laws of the land; and that if such power be assumed by them, there can be no reasonable security for the life, liberty, property, or character of the subjects of this realm. The demurrer was argued in the Queen's Bench, Easter Term and Trinity Term, 1839. Judgment for the plaintiff. The four judges were unanimous, and delivered their judgments at great length; that of Mr. Justice Coleridge thus concludes :-" So far from considering the judgment we pronounce as invading the privileges of the house of commons, I think, that by setting them on the foundation of reason, and limiting

2 Lev. 72.

Com. Jour.,

17 Aug. 1641.

Peculiar privileges of the lords.

Seld. Baronage, p. 1, c. 1. 4 Inst. 12.

st. 2, c. 2, it is declared as one of the liberties of the people, "that the freedom of speech, and debates, and proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament." And this freedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every parliament no member of either house can be arrested or taken into custody unless for some indictable offence without a breach of the privilege of parliament. This freedom of the member's person is in a peer for ever sacred and inviolable, and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting; which is now in effect as long as the parliament subsists, it being seldom prorogued for more than eighty days at a time. As to all other privileges which obstruct the ordinary course of justice they are now totally abolished (e). The claim of privilege has been guarded with an exception as to the case of indictable crimes, no privilege is allowed to the members in any crime except that in such cases, immediate information must be given to parliament of the imprisonment or detention of any member, with the reason for which he is detained.

The house of lords have a right to be attended, and constantly are by the judges of the court of King's Bench and Common Pleas, and such of the barons of the Exchequer as are of the degree of coif, or have been made serjeants at law; and by the king's counsel, being serjeants, and the masters of chancery, for their advice in point of law and for the greater dignity of their proceedings.

Every peer, by license obtained from the king, may make another lord of parliament his proxy to vote for him in his absence. A privilege which a member of the other house cannot have.

Each peer has also a right, by leave of the house, when a vote passes contrary to his sentiments to enter his dissent on the journals of the house with the reasons for it, which is styled his protest.

them by the fences of the law, we do all that in us lies to secure them from invasion, and root them in the affections of the people." 9 Adol. & Ellis, part 1.

(e) By 2 Wm. 4, c. 39, proceedings against members of parliament are to be taken in all cases by writ of summons, as in ordinary cases, except where it is intended to proceed according to the provisions of 6 Geo. 4, c. 16, to make a member of parliament a bankrupt, when another form of process is prescribed by s. 9, of 2 Wm. 4, c. 39.