tial; and which is recognized by the feveral temporary ftatutes for fufpending the habeas corpus act ; whereby it is provided, that no member of either houfe fhall be detained, till the matter of which he ftands fufpected, be first communicated to the house of which he is a member, and the confent of the faid houfe obtained for his commitment or detaining. But yet the ufage has uniformly been, ever fince the revolution, that the communication has been fubfequent to the arrest.

THESE are the general heads of the laws and customs relating to parliament, confidered as one aggregate body. We will next proceed to

IV. THE laws and cuftoms relating to the houfe of lords in particular. Thefe, if we exclude their judicial capacity, which will be more properly treated of in the third and fourth books of thefe commentaries, will take up but little of our time.

ONE very antient privilege is that declared by the charter. of the foreft, confirmed in parliament 9 Hen. III; viz. that every lord fpiritual or temporal fummoned to parliament, and pailing through the king's forefts, may, both in going and returning, kill one or two of the king's deer without warrant; in view of the forefter if he be prefent, or on blowing a horn if he be abfent: that he may not feem to take the king's venifon by stealth.

In the next place they have a right to be attended, and conftantly are, by the judges of the court of king's bench and common pleas, and fuch of the barons of the exchequer as are of the degree of the coif, or have been made ferjeants at law; as likewife by the king's learned counsel, being ferjeants, and by the mafters of the court of chancery; for their advice in point of law, and for the greater dignity of their

d Com. Journ. 20 Apr. 1762.

e particularly 17 Geo. II. c. 6.

VOL. I.

f c. 11.

P

proceedings.

[ 168 ]

proceedings. The secretaries of state, with the attorney and folicitor general, were also used to attend the house of peers, and have to this day (together with the judges, &c.) their regular writs of fummons iffued out at the beginning of every parliament, ad tractandum et confilium impendendum, though not ad confentiendum; but, whenever of late years they have been members of the houfe of commons 1, their attendance here hath fallen into disuse (23).

ANOTHER privilege is, that every peer, by licence obtained from the king (24), may make another lord of parliament

Stat. 31 Hen. VIII. c 10. Smith's commonw. b. 2.c. 3. Moor. 551. 4 Inft. Hale of Pail. 140.

4.

h See Com. Journ. 11 Apr. 1614. 8 Feb, 1620. 10 Feb. 1625.4 Inft. 48.

(23) On account of this attendance there are several refolutions before the restoration, declaring the attorney general incapable of fitting among the commons. Sir Heneage Finch, member for the . univerfity of Oxford, afterwards lord Nottingham and chancellor, was the first attorney general who enjoyed that privilege. Sim. 28.

(24) This licence has long ceafed in Ireland; but the proxies in the English houfe of lords are ftill entered in Latin ex licentiâ regis: this created a doubt in Nov. 1788, whether the proxies in that parliament were legal on account of the king's illnefs? (1 Ld. Mountm. 342.) But this I conceive is now fo much a mere form, that the licence may be prefumed. Proxies cannot be used in a committee. Ib. 106. A proxy cannot fign a proteft in England, but he can in Ireland. (2 Ib. 191.)

The order that no lord fhould have more than two proxies was made z Car. I. because the duke of Buckingham had no less than fourteen. (1 Rufhr. 269.)

A fimilar order was made in Ireland during lord Strafford's lieutenancy to correct a like abufe.

There is an instance in Wight, 50, where a proxy is called litera attornatus ad parliamentum, which it is in effect. The peer who has the proxy is always called in Latin procurator. If a peer, after appointing a proxy, appears perfonally in parliament, his proxy is revoked and annulled. 4 Inft. 13. By the orders of the house, no proxy fhall vote upon a queftion of guilty or not guilty; and a 6 fpiritual

his proxy, to vote for him in his abfence. A privilege, which a member of the other houfe can by no means have, as he is himself but a proxy for a multitude of other people *.

EACH peer has alfo a right, by leave of the houfe, when a vote paffes contrary to his fentiments, to enter his diffent on the journals of the houfe, with the reafons for fuch diffent; which is ufually tiled his proteft (25).

ALL bills likewife, that may in their confequences any way affect the right of the peerage, are by the custom of parliament to have their firft rife and beginning in the house of peers, and to fuffer no changes or amendments in the houfe of commons.

THERE is alfo one ftatute peculiarly relative to the houfe of lords; 6 Ann. c. 23. which regulates the election of the fixteen reprefentative peers of North Britain, in confequence [169] of the twenty-second and twenty-third articles of the union : and for that purpose prescribes the oaths, &c. to be taken by the electors; directs the mode of ballotting; prohibits the peers electing from being attended in an unufual manner; and exprefsly provides, that no other matter fhall be treated of in that affembly, fave only the election, on pain of incurring a praemunire.

V. THE peculiar laws and cuftoms of the houfe of com. mens relate principally to the raifing of taxes, and the elec tions of members to ferve in parliament.

spiritual lord shall only be a proxy for a spiritual lord, and a temporal lord for a temporal. Two or more peers may be proxy to one abfent peer; but lord Coke is of opinion (4 Inf. 12.) that they cannot vote unless they all concur. I Woodd. 41.

(25) Lord Clarendon relates, that the first inftances of protests with reasons in England were in 1641, before which time they ufually only fet down their names as diffentient to a vote; the first regular proteft in Ireland was in 1662. 1 Ld. Mountm. 402.

P 2

FIRST,

FIRST, with regard to taxes: it is the antient indifputable privilege and right of the houfe of commons, that all grants of fubfidies or parliamentary aids do begin in their house, and are firft beftowed by them; although their grants are not effectual to all intents and purposes, until they have the affent of the other two branches of the legislature. The general reason, given for this exclufive privilege of the house of commons, is, that the fupplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. This reafon would be unanswerable, if the commons taxed none but themselves: but it is notorious that a very large fhare of property is in the poffeffion of the house of lords; that this property is equally taxable, and taxed, as the property of the commons; and therefore the commons not being the fole perfons taxed, this cannot be the reafon of their having the fole right of raifing and modelling the fupply. The true reafon, arifing from the spirit of our conftitution, feems to be this. The lords being a permanent hereditary body, created at pleasure by the king, are fuppofed more liable to be influenced by the crown, and when once influenced to continue fo, than the commons, who are a temporary elective body, freely nominated by the people. It would therefore be extremely dangerous, to give the lords any power of framing new taxes for the fubject; it is fufficient that they have a power of rejecting, if they think the commons too lavish or impro[170] vident in their grants. But fo reafonably jealous are the commons of this valuable privilege, that herein they will not fuffer the other house to exert any power but that of rejecting; they will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; under which appellation are included all bills, by which money is directed to be raised upon the fubject, for any purpose or in any shape whatsoever; either for the exigencies of government, and collected from the kingdom in general, as the land tax; or for private benefit, and collected in any particular diftrict, as by turnpikes, parish

14 Inft. 29.

rates,

rates, and the like (26). Yet fir Matthew Hale" mentions one cafe, founded on the practice of parliament in the reign of Henry VI, wherein he thinks the lords may alter a money bill: and that is, if the commons grant a tax, as that of tonnage and poundage, for four years; and the lords alter it to a lefs time, as for two years; here, he fays, the bill need not be fent back to the commons for their concurrence, but may receive the royal affent without farther ceremony; for the alteration of the lords is confiftent with the grant of the commons. But fuch an experiment will hardly be repeated by the lords, under the prefent improved idea of the privilege of the houfe of commons, and, in any cafe where a money bill is remanded to the commons, all amendments in the mode of taxation are fure to be rejected.

NEXT, with regard to the elections of knights, citizens, and burgeffes; we may obferve, that herein confifts the exercise of the democratical part of our conftitution: for in a democracy there can be no exercife of fovereignty but by fuffrage, which is the declaration of the people's will. In all democracies therefore it is of the utmost importance to

mon parliaments. 65, 66.

Year book, 33 Hen. VI. 17. But fee the answer to this cafe by fir He

neage Finch. Com. Journ. 22 Apr. 1671.

(26) This rule is now extended to all bills for canals, paving, provifion for the poor, and to every bill in which tolls, rates, or duties are ordered to be collected; and also to all bills in which pecuniary penalties and fines are impofed for offences. (3 Hatf. 110.) But it should feem it is carried beyond its original fpirit and intent, when the money railed is not granted to the crown.

Upon the application of this rule, there have been many warm contests between the lords and commons, in which the latter feem always to have prevailed. See many conferences collected by Mr. Hatfel, in his Appendix to the 3d vol.

In Appendix D, the conference of 20 & 22 April 1671, the general question is debated with infinite ability on both fides, but particularly on the part of the commons in an argument drawn up by fir Heneage Finch, then attorney general.