309 



PARLIAMENT, IMPERIAL. 



PARLIAMENT IMPERIAL 



310 



Lord-Chancellor for contempt have laid claims to privilege, which were 

 not admitted by the House of Commons. 



Peers are always free from arrest; and as regards the commons, 

 then- privilege is supposed to exist for 40 days after every prorogation, 

 and 40 days before the next appointed meeting. 



Jurisdiction of Court* of Law in Matters of Privilege. In connection 

 with the exercise of privilege, an important point of law arises as to 

 the jurisdiction of courts of justice. Each house of parliament is 

 acknowledged to be the judge of its own privileges. Sir Edward Coke 

 affirms, " whatever matter arises concerning either house of parliament, 

 ought to be examined, discussed, and adjudged in that house to which 

 it relates, and not elsewhere." (4 ' Inst.') But again, in the disputes 

 in the case of the Aylesbury men, which has been already referred to, 

 the lords communicated to the commons at a conference a resolution 

 " that neither house of parliament have power by any vote or declara- 

 tion to create to themselves new privileges not warranted by the known 

 laws and customs of parliament," which was assented to by the 

 commons. (14 ' Commons' Journals,' 555, 560.) The degree of juris- 

 diction to be exercised by the courts, and the proper mode of dealing 

 with actions involving matters of privilege, it would indeed be difficult 

 to determine, after the inconsistencies which have been shown in 

 practice and the great variety of opinions expressed by learned men. 

 No more than a concise statement of a few cases will be needed to 

 show the difficulties in which the question is involved. 



First, as to the right of courts to inquire into the existence and 

 nature of privileges claimed by either house of parliament. Coke lays 

 it down that " judges ought not to give any opinion of a matter of 

 parliament, because it is not to be decided by the common laws, but 

 tecundum legt et ccmtuttutiinem parliament i ; and BO the judges in 

 divers parliaments have confessed." (4 ' Inst.,' 15.) When Paty, one 

 of the Aylesbury men, was brought before the Queen's Bench on a 

 writ of habeas corpus, Mr. Justice Powell said " this court may judge 

 of privilege, but not contrary to the judgment of the House of Com- 

 mons : " and again, " this court judges of privilege only incidentally : 

 for when an action is brought in this court, it must be given one way 

 or other." (2 Lord Raymond, 1105.) The opinions of other judges to 

 the same effect, expressed at different times, might also be given. The 

 words contained in the Bill of Rights, that the " debate and proceedings 

 in parliament ought not to be impeached or questioned in any court or 

 place out of parliament," are generally relied upon in confirmation of 

 this doctrine. If this view were always taken of the question, little 

 difference between parliament and the courts of law would arise. The 

 course would be simple. Whatever action might be brought would be 

 determined in a manner agreeable to the house whose privileges were 

 questioned ; and if the lords, in case of appeal, were to abide by the 

 same rule, there would be no dissensions. But as such unanimity of 

 opinion has not always existed, there has been a clashing of juris- 

 dictions which nothing probably but a statute can prevent for the 

 future. 



A judgment was obtained against Sir W. Williams, the Speaker of 

 the House of Commons, in the second year of James II., for having 

 caused a paper entitled ' Dangerfield's Narrative' to be printed by order 

 of the house. This the house declared to be " an illegal judgment," 

 and against the freedom of parliament. A bill waa also brought in to 

 reverse the judgment, but it miscarried in three different sessions. 

 (10 ' Commons' Journals,' 177, 205.) 



The denial of the exclusive jurisdiction claimed by the commons in 

 1704, in respect of the right of elections, as stated above, is another 

 important occasion in which the privilege of the commons has clashed 

 with the judgments of legal tribunals. 



The only other case which need be mentioned in this place is that 

 of Stockdale r. Hansard. In this case an action was brought against 

 the printers for a libel published in the papers printed by the order of 

 the house. The litigation was long and intricate. The house passed 

 certain resolutions, declaring that no court of law had power to decide 

 as to their privileges, but the courts did not hold themselves bound by 

 resolutions only. At length a bill was brought in and passed, by which 

 proceedings, 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 the certificate and affidavit to the effect that 

 such publication is by order of parliament. 



FOHMS OP PROCEDURE. 



Vetting of Parliament : Preliminary Proceedingt. 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) fur 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 as 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 following day, in the House of Lords, and 

 acquaints the lords commissioners that the choice of the commons has 

 " fallen upon him," that he feele 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 in- 

 stances " 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 appro- 

 bation 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, 2'2nd' 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. 



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 

 sovereign 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 

 address 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. 



Conduct of Basinets, Dirisiuns, Ac. In the House of Lords business 

 may proceed when three peers are present. In the House of Commons 

 forty members are required to assist in the deliberations. 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 ; 

 but at the morning sittings, which are held on Wednesday for private 

 business, petitions, &c., twenty members are sufficient, and they sit 

 from twelve at noon till six, unless previously adjourned. Towards 

 the end of a session morning sittings are held on other days. The 

 house then meets at twelve, and precisely at six the Speaker adjourns 

 the house, without putting the question, and the business in hand 

 stands as orders of the day for the next sitting. Except on Wednesday 

 or Saturday, on which days there is generally no evening sitting, after 

 the adjournment the house resumes at six o'clock. In both houses all 

 questions are decided by a majority, and none may vote but those pre- 

 sent in the house when the question is put, though in the lords proxies 

 are counted if held by a lord who is present. 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, 

 " non-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 now (since 1838 in the commons 

 and 1857 in the lords) by one party being sent to each of the two lobbies 

 attached to either house. All within the house when the question is 

 put must vote. 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 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. 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 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. 



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 occur ies nearly the whole attention of both 

 bouses (if we except the hearing of appeals by the lords and the trial 



