HARVARD COLLEGE LIBRARY FROM THE LIBRARY OF MRS. ELLEN HAVEN ROSS JUNE 28, 1938 LONDON! PRINTED BY T. R. HARRISON, ST. MARTIN'S LANE. In speaking of this proceeding, Lord Ellenborough expressed his surprise "that a judge should have been questioned for having given a judgment which no other judge who ever sat in his place could have differed from." In the case of Ashby and White so often referred to, the commons declared "that whoever shall presume to commence any action, and all attorneys, solicitors, counsellors, and serjeants-at-law soliciting, prosecuting, or pleading in any case, are guilty of a high breach of the privileges of this house." The effect of this resolution, if obeyed, would be to prevent the courts from coming to any decision at all upon matters of privilege, as an action would be stopped at its commencement; but the principle has not been adhered to. When Sir Francis Burdett brought actions against the Speaker and the serjeant-at-arms, in 1810, for taking him to the Tower in obedience to the orders of the House of Commons, they were directed to plead, and the attorney-general received instructions to defend them. A committee at the same 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, and the Court of King's Bench sustained and vindicated the authority of the house. It has been already said that Stockdale's first action was brought when parliament was not sitting. Having no specific directions from the house, Messrs. Hansard pleaded to the action. On the general issue they proved the orders of the house, which were held to be no protection, but had judgment upon a plea which would have availed them equally had they printed the report complained of on their own account. Notwithstanding its resolutions, the house, on being acquainted with this action, instead of acting upon them when a second was commenced, reverted to the precedent of 1810, and directed Messrs. Hansard to plead, and the attorney-general to defend them. In this case nothing but the privileges of the House of Com VOL. II. mons were relied upon in defence of Messrs. Hansard, and the Court of Queen's Bench unanimously decided against them. Still the House of Commons was reluctant to act upon its own resolutions, and, instead of punishing the plaintiff and his, legal advisers, "under the special circumstances of the case," it ordered the damages and costs to be paid. The resolutions however were not rescinded, and it was then 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 600l. The sheriffs of Middlesex levied for that amount, but having been served with copies of the resolutions of the house, they were anxious not to pay the money to Stockdale until they were unable to delay the payment any longer. 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 possession 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 Newgate 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 danages issued. Mr. France, the under sheriff, upon whom the execution of this writ devolved, having been served with the resolutions of the commons, expressed, by petition, his anxiety to pay obedience to them, and sought the protection of 2 H If which does not stay the actions. parliament were to act strictly upon its own declarations, it would be forced to commit not only the parties, but their counsel and their attorneys, the judges and the sheriffs; and so great would be the injustice of punishing the public officers of justice for administering the law according to their consciences and oaths, that parliament 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 judgment of the court, and allowing the 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. Meanwhile the imprisonment of the plaintiff and his attorney did not prevent the prosecution of further actions. Mr. Howard's son, and his clerk, Mr. Pearce, having been concerned in conducting such actions, were committed for the contempt, and Messrs. Hansard, as before, were instructed not to plead. At length, as there appeared to be no probability of these vexatious actions being discontinued, a bill was introduced into the commons and passed, by which pro-judges who gave the obnoxious judgment ceedings, criminal or civil, against persons for publication of papers printed by order of either house of parliament, are to be stayed by the courts, upon delivery of a certificate and affidavit to the effect that such publication is by order of parliament. (Act 3 & 4 Vict. c. 9.) In executing the Speaker's warrant for taking Mr. Howard into custody, the messengers had remained some time in his house, for which he brought an action of trespass against them. As it was possible that they might have exceeded their authority, and as the right of the house of commit was not directly brought into question, the defendants were, in this case, instructed to plead; 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; by whom however it was afterwards omitted: and the house of commons is still involved in litigation on account of the exercise of its privileges. Mr. May remarks (Law, Privileges, &c. of Parliament') that "The present position of privilege is, in the highest degree, unsatisfactory. Assertions of privilege are made 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 exercise of privilege, to pass without censure, is inconsistent in principle, and betrays hesitation on the part of the house, distrust of its own authority, or fear of public opinion" (p. 129, 130). Forms of Procedure. Meeting of Parliament: Preliminary Proceedings.-On the meeting of a new parliament it is the practice for the lord chancellor, with other peers appointed by commission under the great seal for that purpose, to open the parliament by stating "that her Majesty will, as soon as the members of both houses shall be sworn, declare the causes of her calling this parliament; and it being necessary a Speaker of the house of commons should be first chosen, that you, gentlemen of the house of commons, repair to the place where you are to sit, and there proceed to the appointment 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 approbation." The commons then proceed at once to the election of their Speaker. If any debate arises, the clerk at the table acts Speaker, and standing up, points to the members as they rise. He also puts the question. When the speaker is chosen, his proposer and seconder conduct him to the chair, where, standing on the upper step, he thanks the house and takes his seat. It is usual for some members to congratulate him when he has taken the chair. As yet he is only Speaker elect, and as such presents himself on the as following day in the house of lords, when it has been customary for him to acquaint the lords commissioners that the choice of the commons has "fallen upon him," that he feels the difficulties of his high and arduous office, and that, "if it should be her Majesty's pleasure to disapprove of this choice, her majesty's faithful commons will at once select some other member of their house better qualified to fill the station than himself." It is stated by Hatsell, that there have been only two instances "in which neither this form, of having the royal permission to proceed to the election of a Speaker, nor the other, of the king's approbation of the person elected, have been observed. The first is the election of Sir Harbottle Grimstone, on the 25th of April, 1660, to be Speaker of the Convention Parliament which met at the Restoration; the other is the election of Mr. Powle, 22nd January, 1688-9, in the Convention Parliament at the Revolution." The only instance of the royal approbation being refused is in the case of Sir Edward Seymour in 1678. Sir John Topham indeed was chosen Speaker in 1450, but his excuse was admitted by the king, and another was chosen by the commons in his place. In order to avoid a similar proceeding on the part of the king, Sir Edward Seymour, who knew that it had been determined to accept his excuse, omitted the usual form. Of late years the speaker's address, upon this occasion, has been very considerably modified. (See May's Parliament,' p. 137 ) When the Speaker has been approved, he lays claim on behalf of the commons, "by humble petition, to all their ancient and undoubted rights and privileges," which being confirmed, the Speaker with the commons retires from the bar of the house of lords. Both houses then proceed to take the oaths required by law. In the commons the Speaker takes them before any other member. Three or four days are usually occupied in this duty before the queen declares to both houses, in person or by commission, the causes of calling the parliament. From this time business proceeds regularly. The first thing usually done in both houses is to vote an ad dress in answer to the speech from the throne. Before any business is undertaken, prayers are read; in the house of lords by a bishop, and in the commons by their chaplain. The lords usually meet at five o'clock in the afternoon, the commons at four. Conduct of Business, Divisions, &c.-In the house of lords business may proceed when three peers are present, but forty members are required to assist in the deliberations of the lower house. If that number be not present at four o'clock in the afternoon, or if notice be taken, or if it appear on a division, that less than that number are present, the Speaker adjourns the house until the next sitting day. In both houses all questions are decided by a majority, but in the lords proxies are counted, while in the commons none may vote but those present in the house when the question is put by the Speaker or chairman. When any question arises upon which a difference of opinion is expressed, it becomes necessary to ascertain the numbers on each side. In the lords, the party in favour of the question are called "content," and that opposed to it "not-content." In the commons these parties are described as the "ayes" and "noes." When the Speaker cannot decide by the voices which party has the majority, or when his decision is disputed, a division takes place. This is effected in the lords by sending the "contents or "noncontents," as the case may be, to the other side of the bar, and leaving one party in the house. Each party is thus counted separately. The practice in the other house, until 1836, was to send one party forth into the lobby, the other remaining in the house. Two tellers for each party then counted the numbers, and reported them. In 1836 it was thought advisable to adopt some mode of recording the names of members who voted, and for this purpose several contrivances were proposed. The one adopted and now in operation is this:-There are two lobbies, one at each end of the house; and on a division the house is entirely cleared, one party being sent to each of the lobbies. Two clerks are 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 turn ing 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. These sheets of pasteboard are sent off to the printer, who prints the marked names in their order; and the division lists are then delivered on the following morning together with the votes and proceedings of the house. This plan has been quite successful; the names are taken down with great accuracy, and very little delay is occasioned by the process. In committees of the whole house, divisions are to be taken by the members of 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 practically no such distinction is now observed. In addition to the power of expressing assent or dissent 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. When matters of great interest are to be debated in the upper house, the lords are "summoned;" and in the house of commons an order is occasionally made that the house be called over, and members not attending when their names are called, are reported as defaulters, and ordered to attend on another day, when, if they are still absent and no excuse be offered, they are sometimes committed to the custody of the serjeant-at-arms. The business which occupies nearly the whole attention of both houses (if we except the hearing of appeals by the lords and the trial of controverted elections by the commons) is the passing of bills; and the mode of proceeding with respect to them may be briefly described in the first place. Bills, Public and Private. Bills are divided into two classessuch as are of a public nature affecting the general interests of the state, and such as relate only to local or private matters. The former are introduced directly by members; the latter are brought in upon petitions from the parties interested after the necessary notices have been given, and all forms required by the standing orders have been complied with. With few exceptions, public bills may originate in either house, unless they be for granting supplies of any kind, or involve directly or indirectly the levying or appropriation of any tax or fine upon the people. The exclusive right of the commons to deal with all legislation of this nature affects very extensively the practice of introducing private bills into either house. Thus, all those which authorise the levying of local tolls or rates are brought in upon petition to the lower house. These compose by far the greater part of all private bills. All measures of local improvement, whether for enclosing land, lighting, watching, and improving towns, establishing police, or making roads, bridges, railways, canals, or other public works, originate in the commons. On the other hand, many bills of a personal nature are always sent down from the lords, such as bills affecting private estates, and for dissolving marriages. As a question of principle it is perhaps unavoidable that so large a proportion of bills must begin in one house, but much obstruction to business and a very unequal division of labour are the results of the practice, which will be relieved, in some measure, by the arrangement already referred to (p. 459) in regard to railway bills. Bills affecting the peerage must originate in the lords, and acts of grace with the crown, where the prerogative of mercy is vested. Progress of Bills: Public Bills.-In the house of lords any member may present a bill; and in the commons motions for leave to bring in bills of a public nature are not very frequently refused. The more usual time for opposing any measure in its progress is on the second reading, when all the provisions are known, and the general principle and effect of them may be considered. When leave is given to bring in a bill, certain members are ordered to prepare it, who are the proposer and seconder of the motion, |