B
344146
ONIVERSITY OF MICHIGAN
QUATRIS.PENINSULAM AMOENAME
UNENDLUNYAW
1837
VERITAS
LIBRARY
PLURIBUS.UNUT
CIRCUMSFICE
WILL
ARTEST
hankiminimum
BORE
Lei
ULJUALANDAUN
EIDA
immoinen
***;
::
LAW AND USAGE OF PARLIAMENT.
NINTH EDITION.
A
TREATISE
ON THE
LAW, PRIVILEGES, PROCEEDINGS AND USAGE
OF
Parliament
.
BY
SIR THOMAS ERSKINE MAY,
K.C.B., D.C.L.,
CLERK OF THE HOUSE OF COMMONS;
AND BENCHLR OT THE MIDDLE TEMPLE.
NINTH EDITION,
REVISED AND ENLARGED.
LONDON:
BUTTERWORTHS, 7, FLEET STREET,
Pal Publishers to the Qurcer's most excellent Wajesty.
MANCHESTER: MEREDITH, RAY & LITTLFL.
EDINBURGH: T. & T. CLARK; BELL & BRACHUTE.
DUBLIN: HODGES, FIGGIS & CO., GRAFTON STRETT.
CALCUTTA: THACKER, SPINK & CO. MELBOURNE: GEORGE ROBERTSON,
1883.
LONDON: :
PRINTED BY C. F. ROWORTE, BREAM'S BUILDINGS,
CHANOCRY LANE,
n
PREFACE
027019 E, S
TO THE NINTH EDITION.
This work has continued to expand, in each suc-
cessive Edition; and the last four years have
been unusually fruitful of Parliamentary inci-
dents. It will be sufficient to mention the case
of Mr. Bradlaugh, the conflicts of the House of
Commons with Obstruction, the exceptional Rules
of Urgency, the new Standing Orders for the
regulation of Procedure, and the appointment
of Standing Committees for the consideration of
Bills relating to Law and Courts of Justice, and
to Trade, Shipping and Manufactures. During
the same period, questions of Order have also
been frequent, beyond any previous experience;
and
many additional
additional precedents, of earlier date,
have been inserted in various parts of the work.
| I gladly avail myself of this opportunity of
acknowledging my obligations to many gentle-
men, specially qualified to assist me,—to some of
whom I am bound more particularly to allude.
Mr. Speaker placed his valuable Note-Books at
vi
PREFACE TO THE NINTH EDITION.
my disposal. My colleagues, Mr. Palgrave and
Mr. Milman, gave me the benefit of their judi-
cious minutes of decisions from the Chair, and
collections of precedents. Mr. Bull, the Clerk of
the Journals, aided me with many skilful searches
for precedents; and Mr. Bonham-Carter advised
and assisted me in the review of cases of locus
standi before the Court of Referees, and the prac-
tice of Committees on Private Bills.
HOUSE OF COMMONS,
June 6th, 1883.
PREFACE TO THE FIRST EDITION.
It is the object of the following pages to describe 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 Par-
liament, at the present time, has yet been published; and
it is in the hope of supplying some part of this acknow-
ledged deficiency, that the present Treatise has been
written,
A theme so extensive has only been confined within the
limits of a single volume, by excluding, or rapidly passing
over, such points of constitutional law and history as are
not essential to the explanation of proceedings in Parlia-
ment; 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 information : but quotations
have been restricted to resolutions and standing orders,
to pointed authorities, and to precedents which serve to
elucidate any principle or rule of practice better than a
more general statement in the text.
-
viii
PREFACE TO THE FIRST EDITION.
The arrangement of the work has been designed with a
view to advance from the more general to the particular
and distinct proceedings of Parliament, to avoid repetition,
and to prevent any confusion of separate classes of pro-
ceedings; 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 par-
ticular precedents in illustration of the practice.
It only remains to acknowledge the kind assistance
which has been rendered by many gentlemen, who have
communicated their knowledge of the practice of Parlia-
ment, in their several official departments, with the utmost
courtesy: while the Author is under peculiar obligations
to Mr. Speaker (Shaw-Lefevre), with whose encouragement
the work was undertaken, and by whose valuable sugges-
tions it has been incalculably improved.
HOUSE OF COMMONS,
May 2, 1844.
CONTENTS.
BOOK I.
CONSTITUTION, POWERS, AND PRIVILEGES OF PARLIAMENT.
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.
CONSTITUENT PARTS OF PARLIAMENT.
PAGE
1
-
1
1
-
I
2
2
6
6
6
1
-
1
-
1
1
-
-
Introductory Remarks
Constituent parts of Parliament
Prerogatives of the Crown
Prerogatives in connexion with Parliament
The House of Lords
Lords Spiritual
Lords Temporal
Representative Peers of Scotland
And of Ireland
Life Peerages
Composition of the House of Lords
National Councils after the Conquest
1
-
--
9
1
1
1
-
1
-
1
-
12
13
14
15
- 17
.
1
X
CONTENTS.
1
1
-
1
-
-
-
1
24
1
I
I
-
1
1
1
PAGE
Origin of Knights of the Shire
18
Of Citizens and Burgesses
19
First Recognition of the Commons
21
Lords and Commons originally sat together
22
First Speaker of the Commons
23
Separation of the two Houses
Number of the Commons at different times
25
Members assigned to Scotland and Ireland at the Unions 25
Effect of Reform Acts for England and Wales, 1832 and 1867 - 26
For Scotland
27
And for Ireland
28
Constituency of English Counties
28
Of Cities and Boroughs
29
Registration
29
Constituencies of Scotland
And of Ireland
30
Qualification of Voters -
31
Qualifications and Disqualifications of Members
31
Aliens, minors, &c.
31
Holders of offices
33
Holders of pensions
34
Sheriffs and Returning Officers
34
Clergy and Contractors
35
Loan Contractors -
36
Bankrupts-
36
Bankrupt Peers
38
Persons attainted or adjudged guilty of treason or felony 39
Mode of election
40
-
-
1
30
.
-
1
1
1
1
1
1
1
-
--
-
--
-
1
-
1
1
-
1
!
.
-
1
-
ty
1
1
1
}
CHAPTER II.
POWER AND JURISDICTION OF PARLIAMENT.
1
42
44
44
46
-
-
1
47
--
Legislative authority of Parliament
Prerogatives of the Crown in reference to Parliament
Summons and meeting of Parliament
Demise of the Crown
Causes of summons declared -
Prorogation and adjournment
Parliament assembled by proclamation
Prorogued by proclamation -
Power of each House over its adjournment
Power of the Crown over adjournment -
Dissolution of Parliament
-
1
49
50
50
51
52
53
-
1
1
CONTENTS.
xi
PAGE
55
-
1
Rights of Peers of the Realm
Judicature of the Lords
Right of Commons in voting supplies
In determination of elections
Powers of expulsion and disability
Suspension of Members
Grounds of expulsion
-
-
1
55
58
59
63
64
65
-
1
1
1
-
-
1
CHAPTER III.
GENERAL VIEW OF THE PRIVILEGES OF PARLIAMENT.
1
-
1
0
-
1.
-
I
1
1
1
1
-
3
-
78
Privileges of Parliament
68
Speaker's petition for Commons' privileges
68
Freedom of access for the Commons
70
Free access for Peers
71
Favourable construction of the Commons' proceedings
71
Privileges of each House collectively
71
Law and custom of Parliament
72
Breach of privilege a contempt
73
Power of commitment
73
Protection of officers
ไอ
Assistance of the Civil Power
77
Power of Serjeant-at-Arms to break open outer doors
Arrest under warrant of Chairman of Election Committee 81
Causes of Commitment not to be inquired into by Courts of
Law
82
Returns made to writs of Habeas Corpus
83
Arrests without warrants
89
Attachment by the Lords
89
Breaches of privileges defined
89
Libels
upon
Parliament
95
Assaults, insults, or libels upon Peers
95
And upon Members
- 100
Misrepresentation of their proceedings
- 102
Offering bribes to Members
- 102
Offer to influence a Committee
- 103
Acceptance of bribes by Members -
- 103
Interference with officers
· 104
Tampering with witnesses
- 104
Persons committed by the Speaker
- 105
Inquiry into breaches of privilege
- 105
Committee of privileges
- 106
Present practice regarding Complaints
- 107
1
.
I
1
I
-
-
-
1
1
1
1
1
ma
-
-
1
1
--
I
1
-
I
i
xi
CONTENTS.
-
-
1
1
Complaints of newspapers
Frivolous complaints
Offences in a former Session -
Differences in punishment inflicted by each House -
Fines imposed by the Lords
Whether House of Commons a Court of Record
Fines imposed by the Commons
Present modes of punishment
Reprimand and admonition
Payment of fees
Imprisonment by the Commons concluded by Prorogation
Prisoners formerly sentenced on their knees
PAGE
- 107
. 108
- 109
- 110
- 110
- 111
- 113
- 114
- 115
- 115
- 116
- 116
1
1
1
1
-
-
I
!
CHAPTER IV.
PRIVILEGE OF FREEDOM OF SPEECH,
-
1
-
.
1
Necessity of freedom of speech
Confirmed by law of Parliament
Early cases of violation of this privilege
Petition of the Commons for freedom of speech
Interpretation of this privilege
Violations thereof
Its recognition by statute
Privilege not extended to published speeches -
Publication of Parliamentary papers authorized by statute
- 118
- 118
- 119
- 120
- 121
- 122
- 123
- 124
- 126
-
-
-
CHAPTER V.
FREEDOM FROM ARREST OR MOLESTATION.
1
-
i
1
1
Antiquity of this privilege
Freedom from arrest and distress of goods
Early cases
Modification of privilege by statute
Members, how released at present -
Privilege of Peers
Of Peeresses
And Representative Peers
Duration of privilege to the Commons
After a Dissolution
Members in execution before election
Persons under arrest becoming Peers
- 127
- 128
- 129
- 135
- 137
- 138
- 138
- 138
- 139
142
143
- 143
-
|
1
1
--
-
CONTENTS.
Xill
1
-
1
-
-
-
-
Members not admitted as bail
Privilege of not being impleaded
Limitations of the privilege by statute
Exemption from service as witnesses or jurors
Privilege does not extend to Criminal Cases
Causes of commitment to be communicated
Commitment of Members for contempt
Members fined for contempt of Court
Contempt of Court and privilege
Privilege of persons in attendance on Parliament
Protection to counsel
Statements to Parliament not actionable
PAGE
144
- 144
- 146
148
151
- 153
- 155
- 160
- 160
- 161
- 167
- 167
-
-
-
-
-
CHAPTER VI.
JURISDICTION OF COURTS OF LAW IN MATTERS OF PRIVILEGE.
1
-
-
-
0
!
Principles of the question considered
169
Authorities in support of the exclusive jurisdiction of Parlia-
ment
- 170
Authorities in opposition
173
Recent judicial opinions
- 174
Adverse Judgments
- 177
Cases relating to Parliamentary Jurisdiction
- 178
Contest concerning the publication of papers
182
Present position of privilege -
- 189
Remedy by statute
- 190
1
I
1
1
1
1
I
BOOK II.
PRACTICE AND PROCEEDINGS IN PARLIAMENT.
CHAPTER VII.
MEETING OF A NEW PARLIAMENT-ELECTION OF SPEAKER
ELECTION OF SPEAKER-OATHS
-ATTENDANCE OF MEMBERS PRINCIPAL OFFICERS-JOURNALS.
Proceedings of Parliament regulated by ancient usage and
modern practice
192
By Standing and Sessional Orders
193
By Orders and Resolutions
- 194
Meeting of a New Parliament
- 195
-
I
.
1
I
xiy
CONTENTS.
-
1
1
-
1
1
-
-
PAGE
The Commons go up to House of Peers
- 195
Her Majesty's pleasure signified that they elect their Speaker - 196
Proceedings on change of Ministry during recess
- 196
Proceedings in the Lords
- 198
Oaths taken, and introduction of Peers
- 198
Election of Speaker
- 199
Royal Approbation of the Speaker Elect
201
Vacancy in the Speakership during the Session
- 202
Speakers chosen without the Royal sanction -
203
Mr. Speaker reports his approval, and his claim of privileges
for the Commons
- 204
Oaths formerly taken
- 205
One Oath substituted for former Oath
- 205
Time and manner of taking the Oaths
- 205
Business not interrupted to enable Members to take the Oath - 206
Refusal to take Oaths
- 206
Roman Catholics take same Oath as other Members
- 206
The cases of Baron Rothschild and Alderman Salomons - 207
Admission of Jews to be sworn
- 209
Quakers, &c. make affirmation
209
Claim of Mr. Bradlaugh to make affirmation, and subsequent
proceedings -
- 210
Penalties on omission to take the Oath
- 215
Privileges of Members before they are sworn
- 216
Certificate of Clerk of the Crown
- 217
Subscription of Oath
- 218
New Members introduced, but not if seated on Petition - - 218
New Member to bring certificate of his return
- 218
Oath to be taken on demise of Crown
- 219
Queen's Speech on opening of Parliament
- 219
Causes of Summons declared by Queen in person, or by Com-
mission -
219
A Bill read pro forma
- 222
Mr. Speaker reports the Royal Speech
- 222
Proceedings on an Address in answer
- 223
Presentation of the Address
- 224
Places in the House of Lords
- 225
Places in the House of Commons
- 226
Secured at Prayers
- 227
Every Member to attend the service of the House
- 228
House of Lords summoned or called over
- 229
Call of the House of Commons
- 230
Leave of Absence-
- 232
Obligation to attend Committees
- 233
Time of Meeting of both Houses
- 234
Quorum of both Houses
- 235
1
1
-
-
.
-
-
I
-
|
1
-
-
.
.
-
-
.
1
I
1
-
1
I
CONTENTS.
XV
1
1
I
1
-
-
1
1
1
1
.
-
1
I
-
1
-
The House of Commons counted
Commission makes a House
House counted out
Adjournment on Fridays
And on Wednesdays, under Standing Order
Extraordinary Sittings -
Attendance of both Houses at Coronations
Sittings of the Commons suspended
Adjournments as a mark of respect to Deceased Members
Ash Wednesday and Ascension Day
Duties of Speaker of the Lords
Great Seal in Commission
Deputy Speakers of the Lords
Speaker of the Commons
Provision in case of his absence
Recognition of Deputy Speaker by statute
Speaker resumes the chair during the same sitting -
Judges as Assistants of the Lords -
Opinions delivered by Scotch Judges
Attendants of the Lords
Chief Officers of the Lords
And of the Commons
Clerk of the House
Votes and Proceedings -
The Journals of both Houses
Given in evidence
How authenticated
Entries in the Journal expunged
Motions expunged
Duties of the Serjeant-at-Arms
Admission of Strangers into the House of Lords
And into the House of Commons
Parliament prorogued before its first meeting
After its first meeting
Prorogation by the Queen in person, or by Commission
Further prorogation by Commission or Proclamation
PAGE
- 236
- 236
- 236
- 238
- 238
- 239
- 241
- 241
- 241
243
243
245
- 245
- 247
- 248
250
- 252
- 253
- 254
- 255
- 255
- 256
- 256
- 257
- 257
- 259
- 261
- 263
- 263
- 264
- 266
- 266
- 269
- 270
- 270
- 271
1
-
1
1
-
-
I
1
1
I
I
1
1
1
i
-
.
.
1
1
-
1
-
-
!
1
1
CHAPTER VIII.
1
I
MOTIONS AND QUESTIONS.
Questions a part of every Proceeding
Notices of Motions
Orders of the Day and Notices of Motions in the Lords
Orders of the Day defined
Notices in the House of Commons-
- 272
- 272
- 273
- 273
- 274
1
1
1
1
xvi
CONTENTS.
-
1
-
1
-
I
1
1
I
1
1
1
t
1
-
.
PAGE
Precedence of Orders of the Day, or Notices of Motions - 275
Orders of the Day on Monday, Wednesday, Thursday, and
Friday
275
Clerk to read the Orders of the Day, without any Question
being put
- 275
Government Orders to have precedence on certain days - 275
Orders of the Day postponed till after certain Notices - 277
Notices postponed till after an Order of the Day
- 279
General precedence given to particular Bills
- 280
Orders appointed for half-past four
- 281
Sittings on Wednesdays
- 282
Other Morning Sittings
· 282
Business of the House
- 283
Dropped Orders
- 284
Notices, how given
- 285
Motions without Notice
- 288
Questions of Privilege -
- 288
Precedence given to Questions of Privilege
289
Precedence given to Motion for a New Writ
- 291
To adjourned Debates on Questions of Privilege
- 292
Votes of Thanks
- 294
Notices expunged
- 294
Refused to be received by the House of Lords
- 295
Dropped Notices
- 295
Motions seconded in the Commons
- 296
Motions not seconded
- 297
Objectionable words omitted
- 297
Irregular Questions not put -
- 298
Motions by leave withdrawn -
- 299
Modes of evading or superseding a Question
- 300
By moving adjournment of the House
• 300
Motions for adjourning the House and the Debate -
- 301
Motions for reading the Orders of the Day
- 302
The previous Question -
- 303
Moved on stages of Bills
- 304
Amendments contradictory of main Question
- 305
Casual interruptions of Debate
- 307
Opposed business after half-past 12
- 308
Orders of the Day and Notices after half-past 12
- 308
Complicated Questions
- 309
Question put
- 310
Question again stated
312
Question determined by majority of voices
- 312
When a Member's yote is contrary to his voice
- 312
Question put before conclusion of Debate
- 314
Orders and Resolutions defined
- 315
-
1
1
1
--
-
.
.
1
C
1
-
--
-
1
-
1
---
-
1
1
-
1
-
CONTENTS.
xyii
CHAPTER IX.
AMENDMENTS TO QUESTIONS, AND AMENDMENTS TO PROPOSED
AMENDMENTS.
-
!
-
1
PAGE
Objects and principle of an Amendment
- 316
Different forms of Amendment
- 317
Amendment without Notice
- 317
Amendment to leave out words
- 317
Amendment to leave out words, and insert or add others - 318
Question and Amendment both objected to
- 318
Amendment to insert or add words
- 319
Amendments to proposed Amendments
322
By leaving out words, and by leaving out words and adding
others
324
Amendments to be relevant
- 325
Moved before or after previous Question
- 326
Amendments to be seconded -
- 327
-
1
1
-
1
1
-
CHAPTER X.
THE SAME QUESTION OR BILL MAY NOT BE TWICE OFTERED IN
A SESSION.
1
-
Object of the rule
Exception in the case of rescinding proceedings
Evasions of the rule
Motions withdrawn or superseded may be repeated
Rule as applied to Bills
Bills laid aside by either House
Prorogation to renew Bills
Amending Acts of the same Session
Proposals for suspending or resuming Bills
328
- 328
· 330
- 332
334
- 337
337
- 338
· 338
1
.
-
I
U
--
1
CHAPTER XI.
RULES OF DEBATE.
1
)
t
1
1
The Lords address the House
The Commons address the Speaker
Reading speeches not permitted
Indulgence to Members unable to stand
Speaking to order during a Division
No Member to speak after a question has been fully put
- 340
- 340
- 340
- 341
- 341
341
1
I
P.
1
xviii
CONTENTS.
1
I
1
I
T
1
-
I
«
1
!
1
1
-
1
1
.
1
1
U
PAGE
Mr. Speaker calls upon Members of the Commons to speak · 343
Motion that a Member « be now heard”
344
Motion that a Member do not speak
- 346
Precedence to mover of adjournment of debate
- 346
Precedence to New Members
- 348
Priority where Notices of Amendments given
- 348
Members to speak to the Question
- 348
Debate on Motion for Adjournment
- 350
Orders of the Day and Notices not to be discussed thereon - 352
Restraints on Discussion of Bills
353
When no Question is before the House
- 354
Questions to Ministers or other Members
- 354
Question or Answer not to involve argument-
- 355
Motions for adjournment before Public Business
- 356
Personal explanation
- 358
No Member to speak twice
- 359
Except to explain his words
- 359
Or to reply, in certain cases
- 360
Or in Committee, or on a new Question -
• 361
Order in Debate
- 363
Rules for Members speaking -
- 363
Debates of same Session not to be alluded to -
- 364
Extracts from newspapers
- 365
Reflections upon Votes of the House
- 366
Allusions to Debates in the other House
- 367
Use of the Queen's name
- 368
Offensive words against either House
- 371
No Member to be referred to by name
- 373
Offensive words against Members
- 373
Challenges a Breach of Privilege
- 377
Words taken down by direction of Mr. Speaker, or in Committee 377
Quarrels prevented
- 377
Rules as to citing documents not before the House -
- 378
Obstruction -
- 380
Suspension of Members
- 381
The Urgency Resolution
381
Order in debate
- 383
Putting the Question
- 384
Rules to be observed by Members not speaking
- 385
No noise or interruption to be allowed during a Debate - 386
Members named by Mr. Speaker
- 388
Authority of Speaker in both Houses
- 390
When Mr. Speaker rises, House to be silent
- 391
Member to withdraw while his conduct is under debate - 392
Adjournment of Debates
- 394
Debates on motions for adjournment
- 395
-
1
1
-
1
1
1
I
1
1
1
1
1
-
>
I
I
-
1
1
0
1
1
CONTENTS.
xix
CHAPTER XII.
DIVISIONS.
PAGE
-
1
1
1
I
1
1
406
I
U
-
No Lord or Member to vote unless present when the Question
put
396
Strangers withdraw
- 398
Proceedings prior to a Division
- 399
Every Member then present must vote
- 399
Question twice put
-
401
Members not voting on Amendment may yote on main Question 402
Division in the House of Lords
402
When voices equal, Question negatived
- 404
Votes on judicial cases
404
Division in the Commons
-
If not two Tellers, no Division allowed
- 406
Divisions on questions of adjournment
- 407
Members to retire into one of the lobbios
- 407
Members counted and their names taken down
408
In case of error, House again divides, or mistake is corrected
in Journal
408
Members in the wrong Lobby
- 409
Where Votes equal, Mr. Speaker gives Casting Voice
- 410
Speakers speaking in Committees -
415
Publication of Division Lists
- 417
Divisions in Committee
- 417
Proxies in the Lords
- 417
System of Pairs
- 417
Protests entered by the Lords
418
No Peer or Member to vote if personally interested
- 419
In the case of Private Bills
- 421
In a Select Committee
- 423
Member interested may propose Motion or Amendment - 424
Members acting as Counsel or Agents
- 425
-
1
V
1
-
-
-
-
1
CHAPTER XIII.
COMMITTEES OF THE WHOLE HOUSE.
1
1
1
1
Mode of appointment
Chairman of Lords' Committees
And of Committees in the Commons
Temporary Chairmen
Conduct of business in Committees
And their general functions
Casting Voice of Chairman
427
427
· 428
- 429
429
- 430
430
1
-
1
1
í
1
62
XX
CONTENTS.
-
I
1
1
1
-
-
-
.
1
1
-
1
Instructions and Amendments on going in Committee
Matters before Committee not to be discussed in the House
A Motion is not seconded
No previous Question allowed
Questions of sums and dates -
Resolution cannot be postponed
Members may speak more than once
Order in debate
Mr. Speaker resumes the Chair in certain cases
When forty Members not present -
Committees cannot adjourn
Notions to report progress, &c.
Sittings suspended
Report to be brought up without Question
Resolutions of Committee
Grand Committees
Committee of Privileges
Standing Committees on Law and Trade
Entry of Proceedings in Journals -
PAGE
432
433
- 433
- 433
- 433
- 434
- 434
- 435
- 437
- 438
- 439
470
442
442
- 442
- 443
- 444
444
445
-
-
1
-
1
-
1
-
1
-
1
CHAPTER XIV.
SELECT
COMMITTEE S.
1
1
I
.
1
-General province of a Select Committee -
446
Reports and Papers referred
- 446
Appointment and Proceedings of Lords' Committees
- 447
Their powers regarding Witnesses
448
Their Minutes of Proceedings
448
Regulations regarding the Commons' Select Committees - - 449
Number and appointment of Members
- 449
Standing Committees
- 452
Quorum of Select Committees
- 453
Power to send for Persons, Papers, and Records
454
Admission of Strangers to Committees
- 456
When Peers may be present -
- 456
Or Members
- 457
Secret Committees
- 460
Chairman chosen -
- 461
Divisions in Committees
- 461
Adjournment of Committees -
- 462
Not to sit during Sitting or Adjournment of the House, with-
out leave
463
Except during Morning Sittings
- 464
1
-
1
-
0
1
1
3
1
1
CONTENTS.
xxi
1
-
PAGE
Committee revived
- 465
Evidence, &c. not to be published until reported
- 466
Draft Resolutions on Report usually prepared by Chairman - 467
Power to report from time to time
· 468
Report cancelled
- 469
Report brought up
- 470
1
1
3
CHAPTER XV.
WITNESSES.
1
1
1
-
I
.
How summoned by the Lords
- 472
Summoned by order of the House of Commons
- 472
By Select Committees
- 473
Neglect or refusal to attend
- 474
Attendance of Members to be examined -
. 474
Message for attendance of Peers
- 475
Mode of examination by the Lords
- 478
Oaths administered by Lords' Committees
- 479
Expedients of the Commons to procure evidence on Oath - 480
Power of Administering Oaths, at length, conferred by statute,
in 1871 -
481
False evidence a Breach of Privilege
482
Evidence of Members in Courts
483
Indemnity of Witnesses
- 484
Examination at the Bar
484
A Peer examined by a Select Committee
- 485
Expenses of Witnesses -
· 486
1
!
1
I
1
-
1
1
CHAPTER XVI.
COMMUNICATIONS BETWEEN THE LORDS AND COMMONS.
-
1
1
1
Different modes of communication
Messages from the Lords to the Commons
By the Judges
Messages from the Commons to the Lords
The present practice of sending Messages
Matters communicated at a Conference
Subjects and mode of demanding -
Purpose to be stated
Reasons offered by Message or Conference
Conference agreed to and Managers appointed
487
- 487
- 488
- 488
- 489
- 490
- 490
- 491
- 492
- 493
1
1
I
1
1
1
1
1
xxii
CONTENTS.
1
1
Duty of Managers
Conferences in regard to Bills
Free Conference
Forms of holding
Joint Committees of Lords and Commons
Select Committees communicating with each other
Other means of communication
PAGE
- 493
494
- 495
- 495
- 496
- 498
- 498
I
1
-
1
CHAPTER XVII.
COMMUNICATIONS BETWEEN THE CROWN AND PARLIAMENT.
1
1
i
The Queen supposed to be present in Parliament
- 502
Communications from the Crown in Person or by Commission 503
By Message under the Sign Manual
504
Should be communicated to both Houses
- 505
Verbal Messages
- 506
Recommendation or Consent of the Crown
- 507
r Amendments in Committee affecting the Crown
- 509
Consent of the Crown withheld
- 509
Interests of the Crown placed at disposal of Parliament - 510
These Communications acknowledged
- 511
By Joint Addresses
- 513
And separate Addresses
- 514
Mode of presenting Addresses
- 515
Answers to Addresses
· 516
Resolutions communicated
- 517
Communications between Parliament and the Royal Family - 517
Responsible Ministers in both Houses
- 518
-
1
1
1
1
CHAPTER XVIII.
PUBLIC BILLS.
!
1
I
1
1
1
General nature of a Bill
Origin of modern system
Similarity of practice in both Houses
Where Bills originate
Public and Private Bills
Public Bills presented in the Lords
Ordered in the Commons
Members appointed to bring in Bills, and Members added
519
- 520
520
· 521
· 523
- 524
- 524
- 524
8
1
I
I
CONTENTS.
xxiii
-
1
0
0
.
1
0
1
1
-
-
U
-
1
1
1
1
!
1
1
.
1
1
1
1
1
um
--
1
1
.
1
-
1
1
PAGE
Bills relating to Religion, Trade, and Grants of Money, to
originate in Committee
- 527
Other Bills originating in Committee
- 538
Preparation of Bills
- 539
Bills presented
• 540
First Reading and printing without debate
- 540
Bill ordered to be read a second time
· 542
Second Reading -
544
Amendments to Question for Second Reading
546
Amendments in the form of Resolutions
546
Previous Question moved on
- 549
Bills dropped or rejected
- 550
Bill committed
- 552
Amendments on Mr. Speaker leaving the Chair
- 552
Instructions to Committees on Bills
552
Resolutions in the nature of Instructions
- 558
Bills considered in Committee together
- 559
Instructions to hear Counsel -
- 559
Proceedings in Committee
- 560
Upon blanks in the Bill
- 562
Upon Money Clauses
- 563
What Amendments admissible
- 565
New Clauses and Schedules
- 565
Bills committed pro forma
- 568
Proceedings in Committee not to be noticed until Report - 569
Report of Progress
- 570
Bill reported
- 570
Bill reported without Amendments
- 570
When Committee makes no Report
- 570
Bill, as amended, considered
- 572
Clauses added, and Amendments made
· 573
A Clause with Penalties
- 574
Proceedings of Committee reviewed on Report
- 575
Bills re-committed
- 575
Committed to a Select Committee
- 577
Or to a Private Bill Committee
- 578
Objections to a Committee of the whole House
- 579
Standing Committees on Law and Trade
- 580
Third Reading
581
Verbal Amendments on Third Reading -
· 582
Bill passed, and Title agreed to
- 582
Temporary Laws -
- 583
Bill not to be altered otherwise than by Amendment
- 583
Communication of Bills between both Houses
- 584
Consideration of Lords' Amendments
·
586
Consequential Amendments -
- 587
-
1
-
-
1
1
m
1
1
I
1
1
1
-
1
1
1
i
1
1
1
1
tum
1
xxiv
CONTENTS.
1
I
1
1
-
1
1
-
1
-
0
-
-
Amendments agreed to with Special Entries
Conferences held regarding Amendments
Indorsement of Bills
Royal Assent
Royal Assent by Commission
Use of Norman French
By the Queen in Person
When absent from the Realm
Commencement of Act
Bills passed with unusual expedition
Informalities in the agreement of both Houses
In the Indorsement
In the Royal Assent
PAGE
- 588
- 589
- 591
- 592
- 593
- 596
- 596
- 597
- 598
- 599
- 601
- 603
- 603
1
1
-
1
-
-
1
1
1
1
-
1
-
1
1
1
CHAPTER XIX.
PETITIONS.
C
1
1
1
1
.
.
0
-
J
1
Ancient mode of petitioning -
Receivers and Triers of Petitions appointed by the Lords
Commencement of the modern system
Form of Petitions to Parliament
Remonstrances
Rules as to Signatures -
Character and Substance of Petitions
Petitions praying for Public Money
Presentation of Petitions
Petitions not received
Debates on, restrained -
Petitions complaining of Grievances
Petitions printed with the Votes
Committee on Public Petitions
- 606
- 607
- 608
- 608
- 609
610
-611
- 613
- 614
- 616
- 619
- 619
- 620
- 620
1
1
--
1
1
I
-
-
1
-
1
!
-
L
1
1
1
1
CHAPTER XX.
ACCOUNTS AND PAPERS.
Returns obtained by Order or by Address
When Returns to Addresses have not been made
Subjects of Returns
Returns not made
623
- 624
625
- 626
1
1
1
-
CONTENTS,
XXV,
-
-
1
1
1
1
Orders for Returns enforced -
Papers presented by Command or by Act
Presented by Members -
Deposited with the Clerk of the House
Papers presented as Dummies
Ordered to be printed
Printing Committee
Distribution of Papers -
Arrangement and character of Parliamentary Papers
PAGE
- 626
- 627
- 627
- 629
629
- 629
· 629
630
632
1
1
3
OHAPTER XXI.
SUPPLY AND WAYS AND MEANS,
1
-
1
1
1
-
-
1
1
-
1
1
Feudal Origin of Parliamentary Taxation
635
Growth of the Commons' right of Supply
- 636
Recognition of the exclusive right of the Commons
- 638
Legal effect of Grants
· 638
Effect given to Grants before the Appropriation Act
- 639
Duties altered after yotes of the Commons
610
Aids and Supplies not to be altered by the Lords
641
Nor Rates and Charges
642
Nor Charges to be defrayed by Parliament
645
Excepting Tolls and Charges in Private Bills
646
Financial inquiries by the Lords
647
Tacks to Bills of Supply
- 647
Rejection of Money Bills by the Lords
- 648
Composite Tax Acts
- 650
Constitutional principle of Supply -
- 650
Recommendation of Crown to applications for Public Money 651
Revenues of India
652
Motions for grant of Money -
- 653
Not to be presently entered upon
- 653
Abstract Resolutions involving Grants
654
Packet and Telegraphic Contracts -
655
Her Majesty's Speech considered
- 655
Committee of Supply
- 656
Estimates when presented
- 656
Annual Grants described
- 656
Committee of Supply
- 657
Committee of Ways and Means
- 657
Amendments on going into Committee
- 660
Functions of Committee of Supply
- 665
!
1
.
1
1
1
1
.
!
1
1
1
1
1
1
-
1
-
1
O
1
"
xxvi
CONTENTS.
1
-
1
U
-
0
U
1
1
1
1
PAGE
And of Ways and Means
- 666
Annual Budget
- 666
Proceedings in Committee
- 668
New Rules of Proceeding in Committee of Supply -
- 670
Questions as to longer or shorter time
- 671
Questions and Amendments -
- 672
Proposal of a new Tax except by a Minister
- 674
Amendments in Committee of Ways and Means
- 675
Relevancy in Debate
- 677
Vote in Committee cannot be postponed
- 678
Votes on Account
- 678
Votes of Credit and Special Supplies
- 680
Report of Supply and Ways and Means not to be made forth-
with
681
Resolutions reported
681
Charge not to be increased on Report
- 683
Amendments to Resolutions
- 683
Propositions for reducing Charges entertained
• 684
When Committee on a Bill may increase a charge
- 685
Distinction in the case of a new Tax
- 686
The Appropriation Act -
- 687
Expenditure not to exceed Grants -
- 688
The Committee of Public Accounts
- 689
Debates on Appropriation Bill
- 689
Grants voted otherwise than in Committee of Supply
- 690
Addresses for Public Money -
- 691
Taxes imposed otherwise than in Committee of Ways and Means 693
Annual and permanent taxes
- 693
1
0
1
I
-
-
1
1
1
1
1
OHAPTER XXII.
ELECTIONS.
t
1
1
1
1
Issue of Writs for Vacancies during the Session
While Election Petitions are pending
Vacancy by Peerage
Precedence of Motion for New Writ
Supersedeas to Writs
Issue of Writs by Mr. Speaker during Recess
Delivery of Writs
Vacancies by Acceptance of Office under the Crown
New Offices under the Crown
.
1
- 695
- 696
- 697
· 698
- 699
• 700
- 701
- 703
- 708
1
1
-
CONTENTS.
xxvü
1
1
1
-
1
(
0
1
1
1
I
1
PAGE
The Chiltern Hundreds
- 708
Cumulative Offices
- 710
First Lord of the Treasury and Chancellor of the Exchequer - 711
Offices without Salary
- 712
Lord Warden of the Cinque Ports -
- 712
Trial of controverted Elections
- 715
Prior to, and under, the Grenville Act
- 715
The present System
716
Sessional Orders relative to Elections
- 716
Administration of the Election Law
- 720
Election Petitions, &c. Act, 1868, and later Acts
- 721
Proceedings of House upon determination of Election Trials - 725
Special Reports
- 726
Punishment of Candidate guilty of Bribery
• 728
For employing corrupt Agents
. 729
Disqualification of Persons not Candidates
- 729
General Corruption to be reported -
- 729
Writs suspended
- 730
Commissions of Inquiry
- 731
Bills founded on Reports of Commissioners
- 732
1
am
1
1
I
1
-
ma
1
1
1
1
-
-
3
CHAPTER XXIII.
IMPEACHMENT: BILLS OF ATTAINDER AND OF PAINS AND
PENALTIES.
-
1
1
l
Rarity of Impeachments in modern times
Articles of Impeachment
The Managers and Trial
The Judgment
Pardon of the Crown not pleadable
Trial of Peers
In Parliament or by Court of Lord High Steward
Position of Bishops in these Trials
Bills of Attainder and of Pains and Penalties
- 733
- 736
737
- 739
739
- 740
- 740
742
744
-
1
L
1
1
1
1
xxviii
CONTENTS.
BOOK III.
THE MANNER OF PASSING PRIVATE BILLS.
CHAPTER XXIV.
PRELIMINARY VIEW OF PRIVATE BILLS.
1
-
-
-
1
Definition of Private Bills
Bills concerning the Metropolis
The City of London
Edinburgh and Dublin-
Other Bills relating to quasi Public Matters
Religious communities -
Origin of Private Bills -
Functions of Parliament in passing Private Bills
Principles by which it is guided
Private and Public Bills pass through the same stages
Private Legislation superseded by Public Acts
General Acts enumerated
Artisans and Labourers' Dwellings
Electric Lighting Act
PAGE
- 745
- 745
- 747
- 749
- 750
- 751
- 754
- 756
- 757
- 758
- 759
- 760
- 165
-765
1
I
-
1
CHAPTER XXV.
CONDITIONS TO BE OBSERVED BY PARTIES PROMOTING PRIVATE
BILLS.
-
I
The two classes of Private Bills
Requirements of the Standing Orders
Similarity in the Orders of both Houses
Preparation of Bills
Proof of compliance with Standing Orders of both Houses
Memorials complaining of Non-compliance
Sittings and Proceedings of the Examiners
Decision and Report of Examiners
- 768
- 769
- 769
- 770
- 770
- 772
- 773
- 779
I
-
1
CONTEVTS.
xxix
CHAPTER XXVI.
COURSE OF PROCEEDINGS UPON PRIVATE BILLS INTRODUCED INTO
--
1
-
1
1
1
1
I
1
1
1
1
1
-
.
.
1
1
1
1
THE HOUSE OF COMMONS.
PAGE
Duties, &c. of Parliamentary Agents
- 780
Notices of Private Business given -
- 782
Order of Proceedings in Private Business
- 784
Petition for Bill presented
- 786
When Standing Orders not complied with
- 786
Private Bills brought in otherwise than upon Petition - 787
Provisional Order Bills-
- 787
When Provisional Orders are amended
- 788
Commons Inclosure
- 788
Petitions for additional Provision
• 788
The Standing Orders Committee
- 790
Petitions for leave to deposit Petitions for Bills
- 795
Bills presented
- 796
First Reading and Proceedings prior to Second Reading - - 797
Second Reading
- 799
Postponed if opposed
- 800
Government Contracts
- 800
Commitment
- 801
Bills committed by mistake
- 801
Committee of Selection -
- 802
General Committee on Railway and Canal Bills
- 802
Constitution of Committees on Private Bills
- 803
On unopposed Bills
- 803
First Sitting of a Committee
- 805
Certain Railway and Canal Bills referred to a Joint Committee 807
Duties of Chairman of Ways and Means, and of Chairman of
Lords' Committees -
807
Supervision by Public Departments
- 808
Duties of Members on Private Bill Committees
- 811
Referees on Private Bills
- 812
Referees appointed to Committees -
- 813
Not to Vote -
- 813
Petitions for and against Private Bills
- 814
The hearing of Petitioners
- 814
Cases of locus standi before Court of Referees -
- 817
Rules for the hearing of such cases
- 818
Allegations admitted
- 819
Petitions against preamble
- 819
Rules governing the locus standi of Petitioners
.820
Consumers of Gas and Water
- 833
Petitions against Tramway Bills
- 833
1
3
1
-
kan
1
-
-
-
1
-
-
1
XXX
CONTENTS,
1
1
1
1
-
1
1
1
1
-
-
1
-
1
1
i
1
.
-
--
-
1
1
ma
-
1
Cases cited
Dissentient Shareholders
Informalities in Petitions
Cases of
Petitions not specific
Petitions against Bills to be printed
Opposed or unopposed Bills
Duties of Committees on unopposed Bills
Orders relating to all Committees on Bills
Instructions to Committees on Private Bills
Clause compelling payment of Subscription
Orders governing Proceedings on Railway Bills
Time for completing Line
Local Government
Letters Patent, Inclosure, and Drainage Bills
Provisional Orders
Houses of the Labouring Classes
Gas Bills
Proceedings of Committees on opposed Bills
Resolution respecting printing of Minutes of Evidence
Appearances and hearing of Counsel
Hearing of Solicitors
Proof of Preamble
Objections beard -
Proceedings on Preamble
Clauses considered
Preamble not proved
Alterations therein
Costs awarded in certain Cases
Reports and Special Reports
Witnesses summoned
Evidence reported
Report that Parties do not intend to proceed
Adjournment and revival of Committees
Hybrid Bills in Committee
Provisional Order Bills -
Bills withdrawn or referred to Examiner
Bill considered as Amended
Recommitment
Third Reading
Lords' Amendments considered
PAGE
.834
- 837
838
. 838
840
- 840
- 841
- 842
844
- 845
- 846
- 846
- 851
- 853
· 853
· 854
- 854
- 854
· 855
· 855
- 856
- 557
857
- 858
- 858
- 859
- 861
- 862
- 864
- 864
- 866
- 867
- 868
• 868
- 869
- 870
- 870
- 871
- 873
- 874
- 875
- 876
1
1
1
-
.
1
-
1
1
I
1
1
1
-
1
1
-
1
-
1
1
1
1
1
1
-
-
1
.
1
1
-
-
I
1
1
1
.
1
1
6
-
1
I
1
-
1
-
1
1
1
CONTENTS.
xxxi
CHAPTER XXVII.
PROOEEDINGS IN THE LORDS UPON PRIVATE BILLS SENT UP
-
1
1
-
!
1
-
-
-
I
--
FROM THE COMMONS.
PAGE
Private Bills originating in the Commons
- 878
Bills submitted to Officers of both Houses
878
Certain Bills referred to the Judges
- 879
Examination of Standing Orders
- 879
Proceedings of the Standing Order Committee
- 880
Standing Orders peculiar to the Lords
- 881
Certain Railway Bills submitted to Grand Juries in Ireland - 883
Railway Bills
- 881
First and Second Reading
- S8+
Petitions against Bills
- 884
Petitions for additional Provision
- 885
Amalgamation Bills
- 885
Second Reading and Commitment -
- 885
Committee of Selection
- 886
Proceedings of Committees on Bills
- 887
Limits of Cemetery or Gas Works
- 889
Provisions to be inserted in Railway Bills
- 889
Recommitment of Bills
- 889
Proceedings on Report and Third Reading
- 890
1
-
1
--
1
}
I
.
1
1
-
1
-
--
1
1
-
CHAPTER XXVIII.
PROCEEDINGS IN THE LORDS UPON PRIVATE OR PERSONAL
BILLS BROUGHT INTO TIIAT IIOUSE UPON PETITION.
Private Bills originating in the Lords
Personal Bills
Estate Bills referred to Judges
Petition, &c. to bo delivered to Chairman of Committees
Committees on Estate Bills
Divorce and Naturalization Bills
Commitment
Report and Third Reading
Proceedings in the Commons on Lords' Bills -
Local and Personal Acts
Public Acts of a Local Character
The printing of Private Acts
891
- 891
- 892
- 892
- 892
· 893
- 895
- 895
- 895
- 897
- 898
- 898
1
-
-
1
1
1
1
xxxii
CONTENTS,
CHAPTER XXIX.
FEES AND TAXATION OF COSTS.
C
Fees payable on Private Bills
Remission of Fees
Taxation of Costs
Powers of Taxing Officer extended
PAGE
- 900
- 901
- 901
- 903
APPENDIX
I
-
- 905
1
-
-
INDEX
909
1
1
1
I
-
1
3
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; WITH INCIDENTAL REFER-
ENCE TO TIIEIR ANCIENT HISTORY AND CONSTITUTION.
Remarks.
The present constitution of Parliament has been the Introductory
growth of 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
P.
B
2
THE CROWN,
earliest times, and notes its successive changes and develop-
ment; but the immediate object of this work is to display
Parliament in its present form, and to describe its various
operations under existing laws and custom. For this pur-
pose 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 im-
mediate functions of Parliament, the general constitution
of the British Government is not within the design of this
Treatise; and however great the temptation may be to di-
gress upon topics which are suggested by the proceedings 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 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 collec-
tively 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.
1. The Crown of these realms is hereditary, being subject,
however, to special limitations by Parliament; and the kings
or queenshave ever enjoyed various prerogatives, by pre-
scription, custom, and law, which assign to them the chief
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
Constituent
parts of Par-
liament.
I. The King
or Queen.
1 For statutory confirmation of the
ancient right of females to inherit
the Crown, see 1 Mar. St. 2, c. 1 ;
and 1 Mar. St. 3, c. 1; 1 Eliz. c. 3. .
Tor the form in which the accession
of a Sovereign is recognized, see 92
Com. J. 488.
THE CROWN.
3
oath.
same."1
authority of the King or Queen for the time being, and the
three estates of the realm in Parliament assembled. To the
changes that have been effected, 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 distinctly affirmed by the
statute law, and recognized 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
The Act 12 & 13 William III. c. 2, affirms “that Limitations of
prerogative.
the laws of England are the birthright of the people thereof;
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, in-
heritance, and government thereof."
Nor was this a modern principle of constitutional law,
established, for the first time, 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 Edward III. 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 Inno-
cent III. and his successors. The king laid these demands
1 i Will. & Mary, c. 6. Form and Order of H. M. Coronation.
B 2
4
THE CROWN.
before his Parliament, and it is recorded that “The prelates,
dukes, counts, barons, and commons, thereupon, after 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 without their assent, and against his own
oath on his coronation,” they resolved to resist the demands
of the pope with all their power. From the words of this
record it would appear, that whether the charter of King
John submitted the royal prerogatives to Parliament or not,
it was the opinion of the Parliament of Edward III. 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 III., 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 VI., thus explained
the royal prerogative to the king's son, whose banishment he.
shared: “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 impositions."4 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
1 2 Rot. Parl. 290.
2 See also coronation oath of
Edw. II. in 1307, Fodera, vol. ii.,
p. 36 ; Book of Oaths, 1689, p. 195.
3 Bracton, lib. 1, c. 8.
4 De Laudibus Leg. Ang. c. 9.
5 De Republicâ Anglorum, book 2,
c. 1, by Sir Thomas Smyth, knt.
THE CROWN.
5
proceeded to assign to the Crown exactly the same place in
Parliament as that acknowledged by statute, since the Revo-
lution.
Not to multiply authorities, enough has been said to prove
that the Revolution defined, rather than limited, the consti-
tutional prerogatives of the king, and that the Bill of Rights
was but a declaration of the ancient law of England.?
An important principle of constitutional law was intro- Profession of
the Protestant
duced at the Revolution, by which the sovereign is bound to faith.
an adherence to the Protestant faith, and to the maintenance
of the Protestant religion, as established by law. He is re-
quired to swear, at his coronation, to maintain "the true pro-
fession of the Gospel, and the Protestant reformed religion
established by law.”3 By the Bill of Rights, and the Act
of Settlement, any person professing the popish religion, or
who shall marry a papist, is incapable of inheriting or pos-
sessing the Crown, and the people are absolved from their
allegiance. This exclusion is further confirmed by the second
article of the Act of Union with Scotland; and, in addition
to the coronation oath, every king or queen is required to
make the declaration against the doctrines of the Roman
Catholic Church prescribed by the 30th Charles II. st. 2,
either on the throne in the House of Lords, in the presence
of both houses, at the first meeting of the first Parliament
after the accession, or at the coronation, whichever shall first
happen. By similar sanctions the sovereign is also bound
to maintain the Protestant religion and Presbyterian church
government in Scotland.?
1 - That the pretended power of ? See Allen, Rise and Growth of
suspending or dispensing with laws, Royal Prerogative in England ;
or the execution of laws, without Stubbs, Const. Hist. i. 135; ii. 317.
consent of Parliament, is illegal."
" That levying money for or to 3 Coronation oath, 1 Will. & Mary,
the use of the Crown, by pretence of sess. 1, c. 6.
prerogative, without grant of Parlia- 1 Will. & Mary, sess. 2, c. 2, s. 9.
ment for longer time or in other 5 12 & 13 Will. III. c. 2, s. 2.
manner than the same is or shall be 6 5 & 6 Aun. c. 8.
granted, is illegal."-1st, 2nd, and ? Act of Union, 5 & 6 Ann. c. 8,
4th Articles of the Bill of Rights. s. 2 ; 3 & 4 Ann. c. 7; Scotch Act,
354. 508,
6
THE CROWN.
ment.
Prerogative in The prerogatives of the Crown, in connexion with the
connexion
with Parlia- legislature, are of paramount importance and dignity. The
legal existence of Parliament results from the exercise of
royal prerogative. As “supreme governor, as well in all
spiritual or ecclesiastical things or causes as temporal," the
Queen 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 representatives of
the people. Under the Royal Titles Act, 1876, her Majesty
has further assumed the title of Empress of India. To these
fundamental powers are added others, of scarcely less im-
portance, which will be noticed in their proper place.
II. The Lords Spiritual and Temporal sit together, and
of Lords.
jointly constitute the House of Lords, which is the second
1. Lords spi- branch of the legislature in rank and dignity. 1. The lords
spiritual are the archbishops and bishops of the Church of
England having seats in Parliament by ancient usage, and
by statute. Before the Conquest, the lords spiritual held a
prominent place in the great Saxon councils, which they re-
tained in the councils of the Norman kings; but the right,
or tenure, by which they have held a place in Parliament,
II. The House
ritual.
5 Ann. c. 6 (for securing the Pro-
testant religion and Presbyterian
church govornment).
1 Act 1 Eliz. c. 1, 8. 19; Gibson,
Codex, i. 15. Concerning the uso
of the title “Supreme head of the
Church,” sce Coke, Ith Inst. 344 ;
Hooker, Eccl. Pol. book vii. C. 4;
Zurich Letters (Parker Society), i. 29.
33. The preamble of 2 & 3 Ann.
c. 20 (Queen Anne's bounty), ad-
dressed Her Majesty as “the only
supremo head on earth" of the
Church of England.
JIOUSE OF LORIS.
7
since the Conquest, has not been agreed upon by constitutional
writers. In the Saxon times, there is no doubt that they sat,
as bishops, by virtue of their ecclesiastical office; but, accord-
ing to Selden, William the Conqueror, in the fourth year of
his reign, first brought the bishops and abbots under the
tenure by barony; 1 and Blackstone, adopting the same view,
states that “William the Conqueror thought proper to
change the spiritual tenure of frank-almoign, or free alms,
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
inalienable from their respective dignities, the bishops and
abbots were allowed their seats in the House of Lords." 2
Lord Hale was of opinion that the bishops sit by usage ;
and Hallam maintains that the bishops of William the
Conqueror 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. It has also been suggested, 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. By the Constitutions of Clarendon, 10 Henry II.,
there is a legislative declaration that the bishops shall hold
their lands as baronies, and attend the king's court; but it is
quite clear that the bishops sat in Parliament, in virtue of
their episcopal dignities, before they were thus brought under
the tenure per baroniam. By subjecting their lands to the
feudal services incident to the tenure per baronian, including
the duty of attending the king's court when summoned, their
prior right to sit as members of the legislature would not
1 Tit. of Hon. part 2, s. 20.
2 1 Comm. p. 156.
3 2 Middle Ages, 138. Seo also
Stubbs, Const. Hist. i. 230; ii. 169.
4 Elsyng'o says, “rationc opisco-
palis dignitatis et tenuræ.” Hody,
Treatise on Convocations, 126. Sco
also Burn, Eccl. Law, 216 et seq.
194.
8
HOUSE OF LORDS.
have been prejudiced ; and if not they would appear to have
attended afterwards in both capacities. Their presence in
Parliament, however, except during the Commonwealth, has
been uninterrupted, and their right to sit there unquestioned,
whatever nominal changes may have been effected in the
nature of their tenure.
There are two archbishops (of Canterbury and York) and
twenty-four of the English bishops having seats in Parlia-
ment. By the Act 10 & 11 Vict. c. 108, it was enacted,
that the number of lords spiritual shall not be increased by
the creation of the bishopric of Manchester; and whenever
there shall be a vacancy, by the avoidance of any one of the
sees of Canterbury, York, London, Durham, or Winchester,
or of any other see filled by the translation of a bishop
already sitting, such vacancy shall be supplied by the issue
of a writ of summons to the bishop elected to the same see;
but if the vacancy be caused by the avoidance of any other
see, such vacancy shall be supplied by the issue of a writ of
summons to that bishop who shall not have previously become
entitled to such writ; and no bishop elected to any see, not
being one of the five sees above named, shall be entitled to a
writ of summons, unless in the order and according to the
conditions above prescribed. And similar provisions have been
introduced into later acts, by which other bishoprics have
since been created. To the estate of lords spiritual were
added four bishops on the part of Ireland, on the union of
that country, with Great Britain, who sat by rotation of
sessions, and represented the whole episcopal body of Ireland
in Parliament. But, on the disestablishment of the Irish
1 They were excluded by Act 16
Car. I. c. 27, and did not resume
their seats, after the Restoration, in
the Convention Parliament, but were
restored in the next Parliament, by
statute 13 Car. II. c. 2.
2 The Bishop of Sodor and Man
has no seat in Parliament. The late
bishop, Lord Auckland, sat as a peer
amongst the barons.
3 St. Albans, 1875 (38 & 39 Vict.
c. 34); Truro, 1876 (39 & 40 Vict.
c. 54); Liverpool, Newcastle, South-
well and Wakefield, 1878 (41 & 42
Vict. c. 68).
4 39 & 40 Geo. III. c. 67 (Act of
Union, art. 4); 40 Geo. III. (Irish)
c. 29; 3 & 4 Will. IV. c. 37, ss. 51. 52.
HOUSE OF LORDS.
9
Church in 1869, the bishops of that Church were deprived of
their seats in Parliament after the 1st January 1871.1
2. The lords temporal are divided into dukes, marquesses, 2. Lords tem-
poral.
earls, viscounts, and barons, whose titles are of different
degrees of antiquity and honour. The title of duke, though Dukes.
first in rank, is by no means the most ancient in this country.
It was a feudal title of high dignity 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 Edward III., upon his son Edward
the Black Prince, whom he created Duke of Cornwall.?
Before that time the title had often been used as synonymous
with that of comes and ealdorman.3
Marquesses were originally lords of the marches or borders, Marquesses.
and derived their title from the offices held by them. In the
German empire, the counts or graves of those provinces which
were on the frontiers had the titles of marchio 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 privileges by virtue of their office; but the earliest
creation of marquess, as a title of honour, was in the ninth
year of Richard II. Robert de Vere, Earl of Oxford, was
then created Marquess of Dublin 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 Marquess
of Dorset, but was deprived of the title by Henry IV. In
the fourth year of the latter reign, the Parliament prayed
the king to restore this dignity; but the Earl begged to
1
32 & 33 Vict. c. 42.
2 Selden, Tit. of Hon. part 2, s. 9.
29, &c.
3 See a comparison of these titles,
Kemble, Saxons, ii. 127, notes.
4 Selden, Tit. of Hon. part 2,
8. 47.
10
HOUSE OF LORDS.
Earls.
decline its acceptance, because the name was so strange in
this kingdom.
The title of Earl, in England, is equivalent to that of the
Roman comes, or count in other countries of Europe. Amongst
the Saxons there were ealdormen, to whom the civil, military,
and judicial administration of shires was committed, but
whose titles were official and not hereditary, although the
office was frequently held by the heads of the same family in
succession. That title was often used by writers indiffe-
rently with comes, on account of the similarity of character
and dignity denoted by those names. When the Danes had
gained ascendancy in England, the ancient Danish title of
corle, which signified " noble by birth,” and was also used to
indicate a similar dignity, was gradually substituted for 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 William the Conqueror, he styles
himself, in Latin, “ Princeps Normannorum,” and in Saxon,
Eorle or Earl of Normandy. 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 peeresses of that rank in their own right,
have always retained the French or Norman name of
countesses.
Between the dignities of earl and baron no rank inter-
vened, in England, until the reign of Henry VI.: but in
France the title of viscount, as subordinate to that of count,
was very ancient. The great counts of that kingdom, holding
Viscounts.
1 3 Rot. Parl. 488.
2 West, Inquiry into the Manner
of creating Peers, 3. 4. Spelman on
Feuds and Tenures, 13. Rep. on
Dignity of the Peerage, 1820, 17.
Kemble, Saxons, ü. 131-150.
3 Palgrave, Engl. Com. 592 et seq.
4 Palgrave, Engl. Com. 11. 118.
326. 327. Kemble, Saxons in Eng-
land, ii. 132. See also 2 Hallam,
Middle Ages, 66, 9th edit.
5 Selden, Tit. of Hon. part 2, s. 2.
6 Rep. on Dignity of the Peerage,
86.
HOUSE OF LORDS.
11
1
large territories in feudal sovereignty, appointed governors
of parts of their possessions, who were called viscounts, or
vicecomites. These, 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 viscount was first conferred upon
John Beaumont, Viscount Beaumont, by Henry VI., 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 patent, in the 23rd of Henry VI., to be above the
heirs and sons of earls, and immediately after the earls them-
selves.
Barons are often mentioned in the councils of the Saxon Barons.
kings, and in the laws of Edvard the Confessor were classed
with the archbishops, bishops, and earls: but the name bore
different significations, and no distinct dignity was annexed
to it, as in later times. After the Conquest, every dignity
was attached to the possession of lands, which were held
immediately of the king, subject to feudal services. The
lands which were granted by William the Conqueror to his
followers descended to their posterity; and those who held
lands of the Crown per baroniam were ennobled by the dignity
of baron. By the feudal system, every tenant was bound to
attend the court of his immediate superior; and hence it was
the duty of the barons, as tenants in capite of the king, to
attend the king's court or council: but although their obli-
gation to attend the king's council was one of the services
incident to their tenure, they received writs of summons from
the king when their attendance was required. At length when
i Selden, Tit. of Hon. part 2, s. 19,
2 Ib. 8. 30.
12
HOUSE OF LORDS.
Representa-
tive peers of
Scotland.
the lands became subdivided, and the tenants per baroniani
were consequently more numerous and poor, some of them
only were summoned by writ, and thus they were gradually
separated into greater and lesser barons: of whom the former
continued to receive particular writs of summons from the
king, and the latter a general summons only through the
sheriffs. The feudal tenure of the baronies afterwards
became unnecessary to create the dignity of a baron, and
the king's writ or patent, and occasionally an Act of Parlia-
ment, or creation “in pleno Parliamento, conferred the
dignity and the seat in Parliament. The condition of the
lesser barons, after their separation from their more powerful
brethren, will be presently explained.
On the union of Scotland, in 1707, the Scottish peers were
not admitted, as a class, to seats in the British Parliament:
but, in pursuance of the provisions of several statutes, they
elect for each Parliament sixteen representatives from their
own body. The representative peers of Scotland enjoy all
the privileges of Parliament, including the right of sitting
upon the trials of peers; and all peers of Scotland are peers
of Great Britain, and have rank and precedency immediately
after the peers of the like orders and degrees in England, at
the time of the union, and before all peers of Great Britain
of the like orders and degrees created since the union, and
are to be tried as peers, and enjoy all privileges as peers,
except the right of sitting in Parliament, or upon the trials
of peers. The Scottish peerage consists exclusively of the
descendants of peers before the union, as no provision was
made for any subsequent creation of Scottish peers by the
Crown. An authentic list of the peerage was entered in the
1
1 3 Selden, Works, 713-743. West,
Inquiry into the Manner of creating
Peers, 6. 14. 30. 31. 36.70.71. 3 Rep.
Dign. of Peerage, 97, &c. 2 Hallam,
Middle Ages, 261.
2 Act of Union, 5 & 6 Ann. c. 8,
art. xxi. & xxiü. Act of the Par-
liament of Scotland, 5 Ann. c. 8. 6
Ann. c. 23. 10 & 11 Vict. c. 52.
14 & 15 Vict. c. 87. 15 & 16 Vict.
c. 35.
3 Act of Union, 5 Ann. c. 8, art.
xxiii,
HOUSE OF LORDS.
13
1
1
roll of peers, by order of the House of Lords, on the 12th
February 1708, to which other peerages have since been
added by order of that house, when claims have been esta-
blished ; and in order to prevent the assumption of dormant
and extinct peerages, it is provided, by 10 & 11 Victoria,
c. 52, that no title standing in that roll, in right of which no
vote has been given since 1800, shall be called over at an
election, without an order of the House of Lords. The
House of Lords, when they have disallowed any claim, may
also order that such title shall not be called over at any
future election. A Scotch representative peer, on being
created a peer of Great Britain, ceases to be one of the
representatives of the peerage of Scotland.
Under the Act for the legislative union with Ireland,” And Ireland.
which came into operation in 1801, the Irish peers elect
twenty-eight representatives for life from the peerage of
Ireland. By that Act, the power of the Queen to add
to the number of Irish peers is subject to limitation. She
may make promotions in the peerage at all times; but
she can only create a new Irish peer as often as three of
the peerages of Ireland, which were in existence at the
time of the union, have become extinct. But if it should
happen that the number of Irish peers,— exclusive of
those holding any peerage of the United Kingdom, which
entitles them to an hereditary seat in the House of Lords,
-should be reduced to one hundred, then one new Irish
peerage may be created as often as one of such hundred
peerages becomes extinct, or as often as an Irish peer be-
comes entitled, by descent or creation, to an hereditary seat
in Parliament. The object of that article of union was to
I Cases of the Duke of Queens-
berry and the Marquis of Abercorn,
37 Lords J. 594, b. 26 Parl. Hist.
585. 595.
2 39 & 40 Geo. III. c. 67; 40
Geo. III. c. 38, I.
By the 45 & 46 Victoria, c. 26,
the period from the teste of the
writs to the return was reduced
from fifty-two days to thirty days.
4 See Fermoy Peerage case, 1856 ;
140 Hans. Deb., 3rd Ser. 698. 88
Lords' J. 150 (Judges' opinions),
336.
14
HOUSE OF LORDS.
keep up the Irish peerage to the number of one hundred,
exclusive of Irish peers who may be entitled, by descent or
creation, to an hereditary seat in the House of Lords of the
United Kingdom.? The representative peers of Ireland are
entitled to the privileges of Lords of Parliament, and all the
peers of Ireland have privilege of peerage. They may be
elected as members of the House of Commons, for any place
in Great Britain ; but while sitting there, they do not enjoy
the privilege of peerage. These, then, are the component
parts of the House of Lords, of whom all peers and lords of
Parliament, whatever may be their title, have equal voice in
Parliament. By a Standing Order of the House of Lords,
no peer is permitted to sit in the House until he is twenty-
one years of age; and by the Act of Union the represen-
tative peers of Scotland are required to be of full age.4
Life peerages.
Life peerages were formerly not unknown in our constitu-
tion ;' and in 1856 Her Majesty, having been advised to revive
the dignity, with a view to improve the appellate jurisdiction
of the House of Lords, created Sir James Parke, late one of
the barons of the Court of Exchequer, by letters-patent, Baron
Wensleydale," for and during the term of his natural life.”
But the House of Lords referred these letters-patent tò a
Committee of Privileges, which, after examining all the pre-
cedents of life peerages, reported their opinion, “ that neither
the said letters-patent, nor the said letters-patent with the
usual writ of summons issued in pursuance thereof, can
enable the grantee therein named to sit and vote in Parlia-
1 Several attempts have lately age Bills, 1876 & 1877; Lords' Parl.
been made to amend this part of Return, 1877, No. 148; Burke's
the Act of Union, and to arrest the Peerage.
further creation of Irish peers; and, ? See Coates v. Lord Hawarden,
of late years, vacancies have not been 7 Barn, & Cr. 388.
filled up. Rep. of Lords' Commit- 3 Fourth art. of Upion.
tee, 1874, on representative peer-
4 Lords' S. O. No. 12. 5 Ann. c. 8,
ages of Scotland and Ireland; De-
bate in House of Lords, 9th July, 5 See cases collected by Committee
1875, and address to the Queen ; of Privileges, 1856.
225 Hans. Deb., 3rd Ser. 1210; De- 6 Letters-Patent, 16th Jan. 1856.
bates on Lord Inchiquin's Irish Peer-
>>6
art. xxv. s. 12.
HOUSE OF LORDS,
15
ritual and
ment.” The House concurred in this opinion, and Lord
Wensleydale, therefore, did not offer to take the oaths and
his seat, but was shortly afterwards created an hereditary
baron, in the usual form. The expediency of creating life
peers, however, continued to be discussed ; 3 and at length, in
1876, three lords of appeal in ordinary were constituted by
statute, enjoying the rank of baron for life, and the right of
sitting and voting so long as they continue in office.
The two estates of lords spiritual and lords temporal, thus Lords spi-
constituted, may originally have had an equal voice in all
temporal form
matters deliberated upon, and had separate places for their one body.
discussion: but at a very early period they are found to
constitute one assembly; and for many centuries past, though
retaining their distinct character and denominations, they
have been, practically, but one estate of the realm. Thus
the Act of Uniformity, 1st Elizabeth, c. 2, was passed by the
queen, the lords temporal, and the commons, although the
whole estate of the lords spiritual dissented. The lords
temporal are the hereditary peers of the realm, whose blood
is ennobled, and whose dignities can only be lost by attainder,
or taken away by Act of Parliament;5 but the bishops, not
being ennobled in blood, are lords of Parliament only, and
not peers. This distinction having been expressly declared
by the House of Lords, in 1692, must be held conclusive of
the fact that bishops are not peers, although in more ancient
1 Report of Committee of Privi-
leges, 1856, No. 18.
2 140 Hans. Deb., 3rd Ser. 263.
1290; 1 May, Const. Hist. 291–299.
3 142 Hans. Deb., 3rd Ser. 780,&c.;
143 Ib. 428, &c.
4 39 & 40 Vict. c. 59, ss. 6. 14.
The third lord of appeal was not
appointed until 1882, when two paid
judges of the judicial committee had
died or resigned.
5 12 Rep. 107. 12 Mod. 56. 3
Rep. Dig. Pcerage, 93. In 1679,
during the debates concerning Lord
Danby's plea of a Royal pardon in
bar of his impeachment, an accom-
modation was proposed by the Court,
to avoid his attainder, that he should
be banished and degraded from his
peerage by Act of Parliament.—2
Burnet, Own Times, 202.
& See Lords' S. O., No. 61. “It
would be resolved what privilege
noblemen and peers have, betwixt
which this difference is to be ob-
served, that bishops are only lords of
Parliament, but not peers, for they
are not of tryal by nobility.”
16
HOUSE OF LORDS.
1
III. The
House of
Commons.
19
times such a distinction appears to have been unknown. The
votes of the spiritual and temporal lords are intermixed, and
the joint majority of the members of both estates determine
every question; but they sit apart, on separate benches, the
place assigned to the lords spiritual being the upper part of
the house, on the right hand of the throne.
By constant additions to the peerage the number of
members of the House of Lords, comprising the several
orders, spiritual and temporal, of which it is constituted, has
been raised to upwards of 500.
III. The third estate is that of the Commons of the realm,
represented in Parliament by the knights, citizens, and
burgesses. The date of their admission to a place in the
legislature has been a subject of controversy among his-
torians and constitutional writers; of whom some have
traced their claims up to the Saxon period, while others
deny them any share in the government, until long after the
Conquest. Without entering minutely upon a subject, which,
although of the deepest interest, is no longer of constitutional
import, a brief statement will serve to unfold the ancient
character of the House of Commons, and to render its present
constitution the more intelligible.
It is agreed by many writers of learning and authority,
that the Commons formed part of the great synods or
councils before the Conquest; but how they were summoned
or selected, and what degree of power they possessed, is a
matter of doubt and obscurity. Under the Saxon kings, all
the forms of local government were undoubtedly popular.
Shire-gemót. The shire-gemót was a kind of county Parliament, over
which the ealdorman, or earl of the shire, prezided, with the
bishop, the shire-gerieve, or sheriff, and the assessors ap-
pointed to assist their deliberations upon points of law. A
shire-gemót was held at least twice a year in every county,
when the magistrates, thanes, and abbots, with all the clergy
Saxon institu-
tions.
1 In February, 1883, there were 518.~-Roll of Lords Spiritual and Temporal.
HOUSE OF COMMONS.
17
and landholders, were required to be present; and a variety
of business was transacted: but the proceedings of these
assemblies generally partook more of the character of a court
of justice, than of a legislative body.
That the constitution of the witena-gemót, or national Witena-
gemot.
council, was equally popular, cannot be affirmed with any
confidence. Although the smaller proprietors of land may
not have been actually disqualified by law from taking part
in the proceedings; yet the distance of the council from their
homes, and the absence of sufficient means or inducement to
undertake a difficult and dangerous journey, must practically
have prevented them from attending. It has been con-
jectured that they were represented by their tithing men,
and the inhabitants of towns by their chief magistrates : but
notwithstanding the learning and ingenuity which have been
devoted to the inquiry, no system of election or political
representation, properly so called, can be distinctly traced
back to that time.
The clergy may have been virtually represented by the
bishops and abbots, and the absent laity of each shire by
the ealdorman, the sheriff, and such of the rich proprietors
of land as may have been able to attend the gemot. The
people may thus have been held to be present at the making
of laws, and their name accordingly introduced into the
records. That they were actually present on some occasions,
is certain ; but that they had any right to attend, either by
themselves or by elected representatives, may indeed be fairly
conjectured, but has not yet been historically proved.?
But whatever may have been the position of the people in The Conquest.
the Saxon government, the Conquest, and the strictly feudal
character of the Norman institutions, must have brought
them completely under the subjection of their feudal supe-
1 Kemble, Saxons in England, ii.
193–201.
2 See Sir F. Palgrave's English
Commonwealth, 314. 631. 364-658,
and Proofs, ccxxix.ccclxxxy. Turner,
Hist. of the Anglo-Saxons, iii. 180.
184. Thorpe, Leg. Sax. i. 358. Chron.
Sax. An. 1020. Ingulfus, 863. Stubbs,
Const. Hist. i. 121.
P.
С
18
KNIGHTS OF THE SHIRE.
ܪ
riors. From the haughty character of the Norman barons,
and the helpless condition of a conquered people, it is
probable that the commonalty, as a class, were not admitted
to any share in the national councils, until some time after
the Conquest, but were bound by the acts of their feudal
lords; and that the Norman councils were formed of the
spiritual lords, and mainly, if not exclusively, of the tenants
in chief of the Crown, who held by military service.
This inference is confirmed by the peculiar character of
feudal institutions, which made the revenue of the early
Norman kings independent of the people. As feudal supe-
riors they were entitled to receive various services, fines and
pecuniary aids from their tenants, who held under them all
the lands in the kingdom. These sources of revenue were
augmented by pecuniary commutations of feudal services,
and by customs levied upon corporate towns in return for
commercial privileges, which were, from time to time, con-
ceded to them. Wars were the principal causes of expense,
when it was natural for kings to seek the advice of the chief
barons, upon whose military services they depended. Nor
had they any interest in consulting the people, from whom
they had no taxes to demand, and whose personal services
in war were already due to their feudal lords. In the
absence of any distinct evidence, it is not, therefore, pro-
bable that the Norman kings should have summoned repre-
sentatives of the people until these sources of revenue had
failed, and the commonalty had become more wealthy.
Consistently with the feudal character of the Norman
councils, the first knights of the shire are supposed to have
been the lesser barons, who, though still summoned to
Parliament, gradually forebore to attend, and selected some
of the richest and most influential of their body to represent
them. The words of the charter of King John favour this
position; for it is there promised that the greater barons
Knights of
the shire,
1
Rep. Dignity of Peerage, 34.
CITIZENS AND BURGESSES.
19
shall be summoned personally by letters from the king, and
all other tenants in chief under the Crown by the sheriffs
and bailiffs. The summons to the lesser barons being thus
only general, no peculiar obligation of personal attendance
was imposed ; and, as their numbers increased, and their
wealth was subdivided, they were naturally reluctant to
incur the charge of distant journeys, and the mortification
of being held in slight esteem by the greater barons. This
position receives confirmation from the ancient law of Scot-
land, in which the small barons and free tenants were
classed together, and jointly required to send representa-
tives. To the tenants in chief by knight's service were Citizens and
added, from time to time, the representatives of the richer
burgesses.
cities and boroughs; and this addition to the legislature may
be regarded as the origin of the Commons, as a distinct estate
of the realm in Parliament.
It is not known at what time these important changes in
the constitution of Parliament occurred, for no mention is
made of the Commons, in any of the early records after the
Conquest. William the Conqueror in the fourth year of his
reign, summoned, by the advice of his barons, a council of
noble and wise men, learned in the law of England, and
twelve were returned out of every county to show what the
customs of the kingdom were :but this assembly, although,
in the opinion of Lord Hale, it was “as sufficient and
effectual a Parliament as ever was held in England,” 3 bore
little resemblance to a legal summons of the commonalty, as
an estate of the realm. 4
After this period, the laws and charters of William and
his immediate successors constantly mention councils of
bishops, abbots, barons, and the chief persons of the kingdom,
but are silent as to the Commons. But in the 22nd year of
Henry II. (A.D. 1176), Benedict Abbas relates, that about
1 1427, c. 102.
2 1 Hoveden, 343.
31 Hale, Hist. of the Common
Law, 202.
4 2 Hallam, Middle Ages, 146.
02
20
CITIZENS AND BURGESSES.
1
the feast of St. Paul, the king came to Northampton, and
there held a great council concerning the statutes 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
Commons 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 four discreet 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.
Magna Charta Two years afterwards, the great charter of King John
of King John.
defined the constitution of Parliament more clearly than any
earlier record : 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 summons to Parliament,
which is there promised, was then first instituted, or whether
it was an ancient privilege confirmed and guaranteed for the
future, the words of the charter do not sufficiently explain.
From this time, however, 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, as was marked out so long ago as the seventeenth year of
King John, A.D. 1215, in the great charter granted by that prince,
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, with forty days' notice, to assess aids and scutages when
necessary.”
Growth of Notwithstanding the distinctness of this promise, the
representa-
1 2 Prynne, Register, 16. See also Palgrave, English Commonwealth,
Chap. IX.
tion.
REPRESENTATION.
21
charters of Henry III. omitted the engagement to summon
the tenants in chief by the sheriff and bailiffs; and it is
doubtful 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.
Moreover, the practice of summoning citizens and others
before the council, for particular purposes, continued long
after the regular summons of members to Parliament from
cities and boroughs had commenced. Nevertheless, repre-
sentation of some kind then existed, and it is interesting to
observe how early the people had a share in granting sub-
sidies. Another writ, in 1261, directs the sheriffs to cause
knights to repair, from each county, to the king at Windsor.3
At length, in the 49th Henry III. (A.D. 1265), writs were
issued to the sheriffs by Simon de Montfort, Earl of Lei-
cester, in the king's name, directing them to return two
knights for each county, and two citizens or burgesses 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 after-
wards summoned without intermission : but there is evidence
to prove that they were repeatedly assembled by Edward I.,
especially in the 11th, the 21st, 22nd, and 23rd years of his
1 2 Prynne, Register, 23.
2 For instances in the reign of
Edward III. and Richard II. sec
Rep. Dig. Peerage, App. I. 450. 457.
458. 469. 474. 741. Rym. Fød. 186.
3 2 Plynne, Register, 27.
* See Lord Lyttelton, Hist. of
Hen. II. ii. 276 ; iv. 79 ,ct
scq.
Stubbs, Const. Hist. ii. 93.
22
LORDS AND COMMONS
reign.? Passing over less prominent records of the partici-
pation of the Commons in the government, the statute of the
25th Edward I., " 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, with-
out 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 tax themselves; and a few years later a general power
of
legislation was also recognised as inherent in them. A statute
was passed in the 15th Edward II. (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 realm and of the
people, should be treated, accorded, and established in Par-
liament, by the king and by the assent of the prelates, earls,
and barons, and the commonalty of the realm, according as
had been before accustomed.' In reference to this statute
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.”? It may be added, in conclusion, that during
the reign of Edward III. the Commons were regularly men-
tioned in the enacting part of the statutes, having been rarely
mentioned there in previous reigns.3
So far the constituent parts of Parliament may be traced ;
ginally sat in and the three estates of the realm originally sat together
one Chamber. in one chamber. When the lesser barons began to secede
from personal attendance, as a body, and to send represen-
Lords and
Commons ori-
en
1 See Table of Writs, Rep. Dig.
Peerage, 489. Writs of Summons to
Parliament, by Palgrave, 1827–1834.
Parry, Parliaments and Councils of
England, Iutr.; and 49–69. Ruff-
head, Pref. to Statutes. The writ
of the 22nd Edw. I. is for knights
only. Lord Colchester's Diary, iii.
27. 40. 47, 54-66.
2 1 Const. Hist. 4, n. See also
Guizot, Histoire des origines du
Gouvernement Représentatif
Europe. Sir Roger Twysden's
Tract, Camden Soc. Pub. 1849.
Stubbs, Const. Hist. Chap. xiv.-
xvi.
3 2. Hallam, Middle Age:9, 180.
Hakewel, 101. Cotton, Abridg-
ment, Pref.
IN ONE CHAMBER.
23
tatives, they continued to sit with the greater barons as
before : but when they were joined by the citizens and bur-
gesses, who, by reason of their order, had no claim to sit
with the barons, it is natural that they should have consulted
with the other representatives, although they continued to
sit in the same chamber as the Lords. The ancient treatise,
“De modo tenendi Parliamentum,” if of unquestioned autho-
rity, would be conclusive of the fact that 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 II., and its authority is
only useful so far as it may be evidence of tradition, believed
and relied on at that period. Misled by its supposed authen-
ticity, 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 I. (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.
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 had no speaker so late as the 28th of
Edward I.;' for in the 44th of Henry III., Peter de Mont-
fort signed and sealed an answer of the Parliament to Pope
Alexander after the Lords, “vice totius communitatis." 3
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 complete separation ensued.
The first speaker of the Commons to whom that title
was expressly given was Sir T. Hungerford, in the 51st
Edward III. (1376).*
1
1
1 13 Howell, St. Trials, 1130.
24th Inst. 2.
3 Elsynge, 155. Hakewel, 200.
4 2 Rot. Parl. 374. 2 Hatsell,
24
LORDS AND COMMONS IN ONE CHAMBER.
It appears from several entries in the rolls of Parliament
in the early part of the reign of Edward III., 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, and sometimes even the citizens and
burgesses,by themselves; and that they all delivered their
joint answer to the king.2
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 admission 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 used in the sanc-
tion of Acts of Parliament, they ordinarily appeared as peti-
tioners. 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 Henry VI., no laws were actually
written and enacted until the end of the Parliament.
Various dates have been assigned for the formal separa-
tion of the two houses, some as early as the 49th Henry III.,
When sepa-
rated.
3
212, 12. 2 Hallam, Middle Ages,
190. In 1377, Sir Peter de la Mare
was chosen speaker, and is said in
the Parliamentary History to be the
first on record. 1 Parl. Hist. 339.
349. 2 Hatsell, 212.
1 In the. 46 Edw. III., after the
Parliament had granted supplies, and
the petitions of the Commons had
been read and answered, the knights
of the shire had leave to depart, and
writs for their wages and expeuses
were made out for them by the chan-
cellor's order; but he commanded the
citizens and burgesses to stay, who
being again assembled before the
prince, prelates, and lords, granted
for the safe conveying their ships
and goods 25. on every tun of wine
imported or exported out of the
kingdom, and 6d. in the pound on
all their goods and merchandise for
one year.—2 Rot. Parl. 310.
2 Rot. Parl. 5 & 6 Edward III.
4 Inst. 2. Elsynge, 102.
3 Per Lord Ellenborough, in Bur
dett v. Abbut.
WHEN SEPARATED.
25
2
the Commons
and others so late as the 17th Edward III.:1 but as it is
admitted that they often sat apart for deliberation, particular
instances in which they met in different places will not de-
termine whether their separation, at those times, was tem-
porary or permanent. When the Commons deliberated apart,
they sat in the chapter-house of the abbot of Westminster;
and they continued their sittings in that place, after their
final separation.
The number of members admitted to the House of Commons Number of
has varied considerably at different periods. In addition to at different
those boroughs which appear from the first to have returned times.
burgesses to Parliament, many others had that privilege
conferred upon them by charter, or by statute, in succeeding
reigns; while some were omitted by the negligence or cor-
ruption of sheriffs, and others were discharged from what
they considered a heavy burthen,- the expense of maintain-
ing their members. In the time of Edward III. 4s. a day Wages of
were allowed to a knight of the shire, and 2s. to a citizen or
burgess ; 3 and this charge was, in the case of poor and small
communities, too great an evil to be compensated by the
possible benefit of representation. In the reign of Henry VI.,
there were not more than 300 members of the House of
Commons, being about 25 more than in the reign of
Edward I., and 50 more than in the reign of Edward III.
The legislature added 27 for Wales," and four for the county
and city of Chester, in the reign of Henry VIII., and four
for the county and city of Durham, in the reign of Charles II. ;
while 180 new members were added by royal charter between
the reigns of Henry VIII. and Charles II.?
Forty-five members were assigned to Scotland, as her pro- Union of Scot-
portion of members in the British Parliament, on the union land.
members.
6
land and Ire-
i Carte, Hist. 451.
2 Elsynge, 104. i Parl. Hist. 91.
2 Rot. Parl. 289. 351.
3 4 Inst. 16. Prynnc, 4th Register,
pp. 53. 49€.
4 27 Hen. VIII. c. 26.
5 34 Hen. VIII. c. 13.
6 25 Car. II. c. 9.
7 Christian's Notes to Blackstone.
2 Hatsell, 413.
26
REFORM ACTS.
of that kingdom with England;' and one hundred to Ireland
at the commencement of the present century, when her
Parliament became incorporated with that of the United
Kingdom. By these successive additions the number was
increased to 658; and notwithstanding the changes effected
in the distribution of the elective franchise by the Reform
Acts in 1832, that number continued unaltered until the dis-
franchisement of Sudbury, in 1844. The full complement
was restored by the Reform Acts of 1867-68, but was after-
wards reduced to 651, by the disfranchisement of Bridgwater,
Beverley, Sligo, and Cashel, and by the temporary suspension
of one seat for Norwich. And since 1881, it has been enacted,
from time to time, that no election should be held for Boston,
Canterbury, Chester, Gloucester, Macclesfield, Oxford, and
Sandwich.
Reform Acts The object of the English Reform Act of 1832, as stated
for England
and Wales,
in the preamble, was to correct divers abuses that had long
1832 and 1867. prevailed in the choice of members; to deprive many incon-
siderable 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 Eng-
land and Wales were entirely disfranchised, and 30 which
1 The election of representatives by
the freeholders in Scotland had been
recognized by the statute law so far
back as the reign of James I. By Act
1425, c. 52, all freeholders were re-
quired to give personal attendance in
Parliament, and not by a procurator;
from which it is evident that repre-
sentation 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 parlia-
ments; 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 spcaker,
who shall propose all and sundry
needs and causes pertaining to the
commons in Parliament."
2 2 & 3 Will. IV. c. 45.
REFORM ACTS,
27
had previously returned two members were restricted to one
member; while 42 new boroughs were created, of which 22
were each to return two members, and 20 a single member.
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, was that the two universities and
the several cities and boroughs contributed 341 citizens and
burgesses for England and Wales.1
By the Reform Act of 1867, the boroughs of Totnes,
Reigate, Yarmouth, and Lancaster were disfranchised ; 38
boroughs previously returning two members were reduced to
one. Manchester, Liverpool, Birmingham, and Leeds each
received a third member; Merthyr Tydfil and Salford each
a second member; the Tower Hamlets were divided into two
boroughs, each returning two members; 10 new boroughs
were created, of which Chelsea returned two members, and
every other borough one only. By these arrangements the
representatives for boroughs were reduced by 26; and the
University of London became entitled to return one member.
But before this Act came into operation, seven English
boroughs, tis., Arundel, Ashburton, Dartmouth, Honiton,
Lyme Regis, Thetford, and Wells, were disfranchised by
the Scotch Reform Act of 1868, and the seats added to
Scotland. Several of the counties were divided, by the
Reform Act of 1332, into electoral districts or divisions,
by which the number of knights of the shire was increased
to 162. And, again, by the Reform Act of 1867, 13
counties were further divided, and received an addition of
25 members.
The number of members for Scotland was increased by For Scotland,
1832 and 1868;
1 Until 1872, the ancient terms
of knights, citizens, and burgesses,
barons of the cinque ports and bur-
gesses of the universitics, were uscd
in the writs and returns; but by the
Parliamentary and Municipal Elec-
tions Act, 1872, these distinctions
were discontinued, and all are alike
termcd members, in the writs and
returns.
28
ELECTIVE FRANCHISE.
the Scotch Reform Act of 1832 1 from 15 to 53; 30 of whom
were commissioners of shires, and 23 commissioners of
burghs, representing towns, burghs, or districts of small
burghs. And again, by the Scotch Reform Act of 1868, the
number of members for Scotland was increased to 60; three
new members being given to shires, two to the universities,
and two to cities and burghs.
And Ireland, By the Irish Reform Act of 1832, the number of represen-
1832 and 1868.
tatives for Ireland 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. By the
Irish Reform Act of 1868, no change was made in the
number of members representing that part of the United
Kingdom, nor in the distribution of seats; but the two dis-
franchised boroughs of Sligo and Cashel are still left without
representation.
Constituency The classes of persons by whom these representatives are
of English
counties. elected may be described, generally, in few words, if the
legal questions connected with the franchise, which are both
numerous and intricate, be avoided. To begin with the
English counties. Before the Sth of Henry VI. all free-
holders or suitors present at the county courts had a right
to vote (or, as is affirmed by some, all freemen): but by a
statute passed in that year (c. 7), the right was limited to
“people dwelling and resident in the same counties, whereof
every one of them shall have free land or tenement to the
value of 40s. by the year, at the least, above all charges.'
By the Reform Act of 1832 this franchise of a 40s. freehold
of inheritance was not disturbed ; but limitations were im-
posed upon freehold tenures for life. No person, if not seised
at the passing of the Act, was entitled to vote in respect of
such tenures, unless he was in bonâ fide occupation of lands
and tenements, or unless they came to him by marriage,
marriage-settlement, devise, or promotion to any benefice or
1 2 & S Will. IV. c. €5.
2 Ib. c. 88.
3 Sce Act 7 Hen. IV. c. 15.
ELECTIVE FRANCHISE.
29
office, or unless they were of the clear yearly value of 101.,
which value was reduced to 51. by the Reform Act of 1867.
Copyholders having an estate of 101. a year; leaseholders of
land of that value whose leases were originally granted for
60 years; leaseholders of 501., with 20 years' leases; and
tenants-at-will occupying lands or tenements paying a rent
of not less than 501. a year, had the right of voting conferred
upon them by the Reform Act of 1832; and the Act of
1867 reduced the franchise of copyholders and leaseholders
from 101. to 51., and the occupation franchise from 501. to 121.
In cities and boroughs the right of voting formerly varied Of cities and
boroughs.
according to the ancient custom prevailing in each. With
certain modifications, some of these ancient rights were re-
tained by the Reform Act of 1832, as that of freemen, and
other corporate qualifications : but all occupiers of houses of
the clear yearly value of 101. were enfranchised by that Act.
The Reform Act of 1867 extended the borough franchise to
all occupiers of dwelling-houses? who have resided for twelve
months on the 31st July, in any year, and have been rated
to the poor rates as ordinary occupiers, and have, on or
before the 20th July, paid such rates up to the preceding
5th January, and to lodgers who have occupied, for the
same period, lodgings of the annual value, unfurnished, of
101. By the 32 & 33 Vict. c. 41, owners may pay the rates
upon houses under 201., without disqualifying the occupier ;
and vestries may rate the owner instead of the occupier.
By whatever right these various classes of persons claim Registration.
to vote, either for counties or for cities and boroughs, it is
necessary that they shall be registered in lists prepared by
the overseers of each parish. On certain days courts are
held, by barristers appointed by the Lord Chief Justice of
England and the Senior Judge of each Summer Circuit, to
| Dwelling-house defined by 41
& 42 Vict. c. 26, S. 5; and see 41 &
42 Vict.cc. 3 and 5 (House Occupiers'
Disqualification, England and Scot-
land).
2 30 & 31 Vict. c. 102, s. 3.
3 Lodgings more fully defined by
41 & 42 Vict. c. 26, ss. 5, 6.
30
ELECTIVE FRANCHISE.
In Scotland.
revise these lists, when claims may be made by persons
omitted, and objections may be offered to any name inserted
by the overseers. If an objection be sustained, the name is
struck off the list; and the claimant will have no right to
vote at any ensuing election unless he shall succeed, at a
subsequent registration, in establishing his claim: but, in
certain cases, there is an appeal to the Queen's Bench Divi-
sion of the High Court of Justice from the decisions of
revising barristers ;t and the register is corrected in accord-
ance with the judgment of that court.
The Scotch Reform Act of 18322 reserved the rights of all
persons 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 101.,
and to certain classes of leaseholders. In cities, towns and
burghs, the Act substituted a 101. household franchise for the
system of electing members by the town councils, which had
previously existed. By the Scotch Reform Act of 1868, the
county franchise was extended to owners of lands and herit-
ages of 51. yearly value, and to occupiers of the rateable value
of 141.; and the borough franchise to all occupiers of dwelling-
houses paying their rates; and to tenants of lodgings of 101.
clear annual value, unfurnished.
In Ireland various classes of freeholders and leaseholders
were invested with the county franchise, by the Reform Act
of 1832,3 to whom were added, by the 13 & 14 Vict. c. 69,
occupiers of land, rated for the poor rate at a net annual
value of 121.; and persons entitled to estates in fee, or in
tail, or for life, of the rated value of 51. And by the latter
Act, in addition to the borough constituency under the
Reform Act, the occupiers of lands or premises rated at 81.
were entitled to vote for cities and boroughs. By 16 & 17
Vict. c. 58, provision was made for the annual revision of
the lists of voters for the city of Dublin. By the Irish
In Ireland.
1 2 & 3 Will. IV. c. 45; 6 & 7 Vict.
c. 18; 41 & 42 Vict. c. 26.
2 2 & 3 Will. IV. c. 65.
2 & 3 Will, IV. c. 88.
3
QUALIFICATIONS OF MEMBERS.
31
1
of voters.
Reform Act of 1868, the borough franchise was extended to
occupiers of houses rated at 41., and of lodgings of the annual
value of 101. unfurnished. No change was made in the
qualification of county voters.
It has not been attempted to explain, in detail, all the dis- Qualification
tinctions on the elective franchise; neither is it proposed to
state all the grounds upon which persons may be disqualified
from voting. Aliens, persons under 21 years of age, of un-
sound mind, in receipt of parochial relief, or convicted of
certain offences, are incapable of voting. Many officers, also,
concerned in the collection of the revenue were formerly dis-
qualified: but by recent statutes all these disabilities have
been removed.2
The legal qualifications and disqualifications for sitting and Property
qualification
voting in Parliament may now be briefly enumerated. The of members
3 abolished.
property qualification which, since the reign of Queen Anne,
had been required for members sitting for places in England
and Ireland, was in the year 1858 entirely abolished.
Formerly it was necessary that the member chosen should Qualifications
and disquali-
himself be one of the body represented. The law, however, fications.
was constantly disregarded, and in 1774 was repealed. An
alien is disqualified to be a member of either House of Par- Aliens.
liament. The Act 12 & 13 Will. III. c. 2, declared that
no persons 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 are born
of English parents), shall be capable to be of the privy
council, or a member of either House of Parliament.” The
1st George I., stat. 2, c. 4, in order to enforce the provisions
2
| The law of registration in Ire-
land was also amended by a separate
Act, 31 & 32 Vict. c. 112.
By Act 31 & 32 Vict. c. 73,
revenue officers disfranchised by 7 &
8 Geo. III. c. 53, 22 Geo. III. c. 41,
and 43 Geo. III. c. 25, were restored
to the right of voting; and by 37 &
38 Vict. c. 22, they were relieved
from all remaining disabilities.
3 By 9 Anne, c. 5; 33 Geo. II.
c. 20; 1 & 2 Vict. c. 48.
4 1 Peck. 19. 1 Hen. V. c. 1.
8 Hen. VI. c. 7. 10 Hen. VI. c. 2.
23 Hen. VI. c. 15.
5 14 Geo. III. c. 58.
6 7 & 8 Vict. c. 66, s. 6.
32
DISQUALIFICATIONS OF MEMBERS.
Minors.
of the Act of William, required a special clause of disquali-
fication to be inserted in every Naturalization Act: but as
no clause of this nature could bind any future Parliament,
occasional exceptions were permitted, as in the cases of Prince
Leopold in 1816, and Prince Albert in 1840;1 and this
pro-
vision of the 1st George I. has since been altogether repealed
by the 7 & 8 Vict. c. 66, s. 2. Later Naturalization Acts
have since been passed, without such a disqualifying clause.?
And by the 33 & 34 Vict. c. 14, an alien to whom a certi-
ficate of naturalization is granted by the Secretary of State,
becomes entitled to all political and other rights, powers, and
privileges, and is subject to all the obligations of a British
subject.
By the 7 & 8 Will. III. c. 25, s. 8, a minor was disquali-
fied to be elected. Before the passing of that Act, several
members were notoriously under age, yet their sitting was
not objected to. Sir Edward Coke said that they sat “by
connivance : but if questioned would be put out;" yet on the
16th of December 1690, on the hearing of a controverted
election, Mr. Trenchard, though admitted by his counsel to
be a minor, was declared upon a division to be duly elected.5
On the 18th of December 1667, however, the House of Lords
had declared, “ That according to the law of the realm, and
the ancient constitution of Parliament, minors ought not to
sit nor vote in Parliament." In 1717, Sir Wilfred Lawson,
returned for Cockermouth, on a double return, withdrew his
petition against the other sitting member, admitting that he
1 In 1765 the judges were unani-
mously of opinion, “That an alien
married to a King of Great Britain
is, by operation of the law of the
Crown (which is part of the common
law), to be deemed as a natural-born
person from the time of such mar-
riage, so as not to be disabled by the
Act 12 Will. III.” 31 Lords' J.
174.
2 Lowther's Naturalization Act,
1866; Bischoffsheim, Baron de Fer-
rieres, and Lange's Acts, 1867; Bolc-
kow's Act, 1868 ; De Virte's and
Mackay's Acts, 1877; Ramingen's
Act, 188ů.
3 See also 33 & 34 Vict. c. 102 ;
35 & 36 Vict. c. 39.
10 March, 1623; 1 Com. J. 681.
5 2 Hatsell, 9; 10 Com. J. 508.
0 12 Lords' J. 174,
4
DISQUALIFICATIONS OF MEMBERS.
33
3
was a minor at the time of his election. But even after the
passing of the Act of Will. III., some minors sat “by con-
nivance." Charles James Fox was returned for Midhurst
when he was 19 years and four months old, and sat and
spoke before he was of age;" and Lord John Russell was
returned for Tavistock a month before he came of age.
By the law of Parliament a member already returned for Members al-
one place, is ineligible for any other, until his first seat is ready sitting.
vacated; and hence it is the practice for a member, desiring
to represent some other place, to accept the Chiltern Hun-
dreds, or other similar office under the Crown, in order to
render himself eligible at the election.
Mental imbecility is a disqualification; and should a Mental imbe-
member, who was sane at the time of his election, afterwards cility.
become a lunatic, his seat may be avoided, as in the case of
Grampound in 1566 :4 but the house will require proof that
the malady is incurable.5 English peers are ineligible to the Peers and
House of Commons, as having a seat in the upper house ;
judges.
and Scotch peers, as being represented there, by virtue of the
Act of Union :? but Irish peers, unless elected as one of the
representative peers of Ireland, may sit for any place in Great
Britain.8 The English, Scotch, and Irish judges are dis-
qualified, together with the holders of various offices parti- Offices.
1 18 Com. J. 672.
2 1 Memorials of Fox, 51.
3 Earl Russell, Recollections and
Suggestions.
4 D'Ewes, 126.
1 Com. J. 75.
Rogers, 57.
6 Mr. Alcock's case in 1811; 66
Com. J. 226. 265. App. (687). There
is a curious entry in the Journal of
14 Feb. 1609, “ Hassard—69-in-
curable-bed-rid-a new writ;" 1
Com. J. 392. See also complaint
that Mr. A. Steuart, a certified lu-
natic patient, had voted in a divi-
sion 13th May 1861; 162 Hans. Deb.,
3rd Ser. 1941.
6 See Chnp. XXII (Elections).
? The provisions of the law are
sufficiently distinct upon that point;
and there are numerous precedents
of new vrits issued in the room of
members becoming peers of Scotland;
e.g., Earl of Dysert, 10th Nov. 1707;
Lord Galloway, 13th Jan. 1774; Earl
of Lauderdale, 22nd Jan. 1790; Earl
of Eglinton, 3rd Nov. 1796 ; Mar-
quess of Queensberry, 3rd Feb. 1857,
&c.
8 Act of Union, 39 & 40 Geo. III.
C. 67.
9 The English judges by the law
of Parliament, i Com. J. 257; and
by the Judicature Act, 1873, s. 9;
and Judicature Act Amendment Act,
P
D
34
DISQUALIFICATIONS OF MEMBERS.
Pensions.
Sheriffs and
returning
officers,
cularly excluded by statutes.' A large class of offices which
incapacitate the holders for Parliament are ner offices, or
places of profit under the Crown, created since the 25th of
October, 1705, as defined by the 6th of Anne, c. 7;2 and also
new offices in Ireland under the 33rd Geo. III. c. 41. The
holders of certain pensions from the Crown are disqualified
by statute. But pensions granted under 4 & 5 Will. IV.
c. 24 and 22 Vict. c. 26, for civil and diplomatic services, do
not disqualify the holders from being elected, or sitting and
voting: 4
The sheriff of a county has been held ineligible for that
county; and also for any city or borough to which his pre-
cept extended : 5 but he is eligible for any other county, or
for any county of a city or borough within his county, or
elsewhere, provided the writ for the election is directed to
some other returning officer, and not to himself. And no
returning officer is capable of being elected for his own city or
borough. By the Scotch Reform Act, 1832 (s. 36), no sheriff
substitute, sheriff clerk, or deputy sheriff clerk is entitled to
be elected for his own shire; nor any town clerk, or deputy
town clerk, for his own city, borough, town or district.
1875, s. 5; the Scotch judges, by
7 Geo. II. c. 16; the Irish judges,
by 1 & 2 Geo. IV. c. 44; the judge of
the Admiralty Court, by 3 & 4 Vict.
c. 66. See Debate on the Judges'
Exclusion Bill, 1st June 1863. The
Master of the Rolls alone enjoyed an
exemption from this disability until
the passing of the Judicature Act,
1873.
1 That all the special disqualifica-
tions for Parliament cannot be enu-
merated within the limits of this
chapter, will be believed, when it is
stated that they were to be collected
from at least 116 statutes. See
Pamphlet by the Author, on the
Consolidation of the Election Laws,
1850. Sce also Index to Statutes, by
Statute Law Committee, tit. House
of Commons, 2 (a), (b).
2 See Rogers on Elections, 187;
and General Journal Indexes, tit.
Elections (Writs) ; and infra, Ch.
XXII.
36 Anne, c. 41, s. 24; 1 Geo. I.
stat. 2, c. 56.
4 32 & 33 Vict. 0. 15; 32 & 33 Vict.
c. 43, 8. 17.
5 But the application of this law
has been much restricted by the 16
& 17 Vict. c. 68, which requires
writs to be directed to the returning
officers of boroughs, instead of to the
sheriff.
6 2 Hatşell, 30–34. 4 Dougl. 87.
123.
79 Com. J. 725 (Thetford Case).
Wakefield Case, Barron & Austiu,
293. Rogers on Elections, 184.
DISQUALIFICATIONS OF MEMBERS.
35
By the 41 Geo. III. c. 63, which arose out of Mr. Horne Clergy.
Tooke's election, it is declared that “no person having been
ordained to the office of priest or deacon, or being a minister
of the Church of Scotland, is capable of being elected ;” and
that if he should sit or vote, he is liable to forfeit 5001. for
each day, to anyone who may sue for the same. It is doubt-
ful whether, before the passing of this Act, persons in holy
orders had not been disqualified by the law of Parliament.
The precedents collected upon the subject in 18011 were
obscure and inconclusive; and there was much difference of
opinion, amongst legal and parliamentary authorities, as to
the existing state of the law. The House of Commons
refused to declare Mr. Horne Tooke ineligible: and, having
been already elected, he was excepted from the operation of
the Act. The Roman Catholic clergy were also excluded by
10 Geo. IV. c. 7, s. 9. But by the 33 & 34 Vict. c. 91,
when a person has relinquished in due form his office of priest
or deacon in the Church of England, he is discharged from
all disabilities and disqualifications, including that of 41
Geo. III. c. 63, and is therefore eligible to sit in Parliament.
Government contractors, being supposed to be liable to the Contractors.
influence of their employers, are disqualified from serving in
Parliament. The Act 22 Geo. III. 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 govern-
ment 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 companies, contracting in their corporate capacity.
The penalties for violations of the Act are peculiarly severe.
A contractor sitting or voting is liable to forfeit 5001. for
1 See Reports of Precedents : 35 sell, 12.
Parl. Hist. 1343. 8 Com. J. 341. 2 35 Parl. Hist. 1402. 1414. 1642.
346. i Com. J. 27 (13 Oct. 1553). 1544.
1 Com. J. 513 (8 Feb. 1620). 2 Hat-
D 2
36
DISQUALIFICATIONS OF MEMBERS.
tors.
every day on which he shall sit or vote, to any person who
may sue for the same; and every person against whom this
penalty shall be recovered, is incapable of holding any con-
tract. The Act goes still further (s. 10), and even imposes
a penalty of 5001. upon any person who admits a member of
the House of Commons to a share of a contract. The
Act 41 Geo. III. c. 52, disqualifies in the same manner, and
under similar penalties, all persons holding contracts with
any of the government departments in Ireland.
Loan contrac- But the provisions of these Acts have been held not to
apply to contractors for government loans. In June 1855,
the attention of the House was directed to the fact that
Messrs. Rothschild had entered into a contract with the
government for a loan of 16,000,0001. for the public service;
and a committee was appointed to inquire whether Baron
Lionel Nathan de Rothschild, who was a partner in that
house, had vacated his seat by reason of this contract. The
committee, after hearing Baron Rothschild by counsel, re-
ported their opinion that there was no contract, agreement,
or commission between Messrs. R. and the Treasury within
the true intent and meaning of the 22nd Geo. III. C. 45;2
and in order to avoid future doubts upon this question, a
clause has been introduced into the Acts which have since
been passed for raising loans, providing that the Act of
Geo. III. shall not be construed to extend to any subscriber
or contributor to the loan.
Bankrupts. Originally by the 52 Geo. III. c. 144, and now by the
Bankruptcy Act, 1869, s. 121-124, if a member of the House
of Commons is adjudged bankrupt, he shall be, for one year
from the date of the order of adjudication, incapable of sitting
and voting, unless within that time the order is annulled, or
the creditors are fully paid or satisfied. At the expiration
of that time the court is required to certify the bankruptcy
to the Speaker; when the seat of the member is vacant, and
3
2
1 See Report, 15th March, 1869,
on case of Sir Sydney Waterlow.
Report, 1855 (401).
3 19 & 20 Vict. cc. 5, 6. 21.
DISQUALIFICATIONS OF MEMBERS.
37
a new writ is issued. As no penalty attaches to a bankrupt
for sitting and voting, and as no official notice of his bank-
ruptcy is required to be given to the Speaker for a year, he
may sit with impunity in the meantime, unless the House
take notice of his sitting, and order him to withdraw. On
the 15th June 1858, a copy of the record of adjudication of
bankruptcy against Mr. Townsend, a member, which had
been ordered and presented, was read. The Acts 52 Geo. III.
0. 144; and 12 & 13 Vict. c. 106, s. 5 (Bankrupt Law Con-
solidation), were also read; and a motion being made, and
question proposed, " That Mr. John Townsend, the member
for the borough of Greenwich, having on the 29th day of
March last been found, declared, and adjudged a bankrupt,
has since been, and still is, by law incapable of sitting and
voting in this house,” Mr. Townsend was heard in his place,
and withdrew; when the question was put, and agreed to.
The house then ordered, “That the said Mr. John Townsend
do withdraw from this house until his bankruptcy shall have
been superseded or annulled, or until his creditors, proving
their debts, shall have been paid or satisfied to the full
amount of their debts.” And notice being taken, that Mr.
Townsend had, since his bankruptcy, voted in several divi-
sions, it was ordered that the said votes be disallowed.2 It
appears, however, that a member whose estate is under liqui-
dation, pursuant to the 24th section of the Bankruptcy Act,
1869, is in a different position from that of a bankrupt.
The estate of a member had been under liquidation, upon
his own petition, since the 9th March 1870; but he con-
tinued to sit and vote in Parliament. On the 26th March
1872, a creditor applied to the Court of Bankruptcy to issue
a certificate to the Speaker of the House of Commons, stating
that after more than a year this member's debts had not
been fully paid and satisfied, so as to vacate his seat. But
the registrar, holding that liquidation by arrangement was
2 113 Com. J. 229,
1 See 85 Com. J. 3, for the form
of proceeding in such cases.
38
DISQUALIFICATIONS OF MEMBERS.
Bankrupt
peers.
quite distinct from an adjudication of bankruptcy, refused
the application, with costs. 1 This decision was afterwards
affirmed, upon appeal, by the Lords Justices. It does not
appear that disqualification arises in the case of a Scotch
sequestration. But bankruptcy in Ireland creates disabilities
similar to those under the English law.3 By the Bankruptcy
Act, 1869, s. 120, if a person having privilege of Parliament
commits an act of bankruptcy, he may be dealt with in like
manner as if he had not such privilege. It would not appear
that a bankrupt is ineligible as a member, but he would be
disabled from sitting and voting; and if his bankruptcy were
not annulled, a new writ would ultimately be issued.
On the 7th July 1870, it was adjudged, upon appeal, by
the House of Lords, that a peer of the realm enjoying the
privileges of Parliament was subject, in 1869 (before the
passing of the Bankruptcy Act of that year), to an adjudi-
cation in bankruptcy, under the 24 & 25 Vict. c. 134. The
Act of 1869 more distinctly set aside the privileges of Parlia-
ment in cases of bankruptcy; and in 1871 the disqualification
for sitting and voting was extended to the House of Lords.
By 34 & 35 Vict. c. 50, “Every peer who becomes a bank-
rupt shall be disqualified from sitting or voting in the House
of Lords, or on any Committee thereof; and further, if a
peer of Scotland or Ireland, shall be disqualified from being
elected to sit and vote in the House of Lords.” In England,
he becomes bankrupt when an order has been made under
any Act adjudging him a bankrupt; or when a special
resolution has been passed, in pursuance of the Bankruptcy
Act, 1869, declaring that his affairs are to be liquidated by
arrangement; in Scotland, when sequestration of his estate
has been awarded: in Ireland, when he is adjudged bank-
rupt, or has filed a petition for an arrangement. When a
bankruptcy has been determined in the manner prescribed by
1 « Times," 27 March 1872.
2 " Weekly Reporter," XX. 735,
7 Chancery Appeal Cases, 519.
3 19 & 20 Geo. III. c. 25, 8. 9.
$ 102 Lords' J. 397.
IDISQUALIFICATIONS OF MEMBERS.
39
the Act, these disqualifications cease.
The seat of a repre-
sentative peer for Scotland and Ireland, unless his bankruptcy
is determined within one year, is vacated at the end of the
year, and a new election is to be held. A disqualified person
who sits or votes, or attempts to sit or vote, is guilty of a
breach of privilege.
The Court is to certify the bankruptcy to the Speaker of
the House of Lords, and the Clerk of the Crown. A writ of
summons is not to be issued to any peer for the time being
disqualified; but a disqualified peer is not deprived of his
privileges of peerage, or entitled to be elected to, or to sit
in, the House of Commons. And this Act has since been
applied to certain peers who had come within its provisions.?
A person attainted, or adjudged guilty 3 of treason or Persons at-
felony, and not having endured the punishment to which he
was adjudged, or received a pardon,t is disqualified: but an
indictment for felony causes no disqualification until convic-
tion;5 and even after conviction a new writ will not be
tainted.
1 April 9th and 25th, 1872 ; 104
Lords' J. 138. 206. June 4th and
25th, 1872; Ib. 321, 322, 342. 429.
27th January 1881.
2 Lord Coke, 4th Inst. 47.
3 W. Smith O'Brien, 1849. O'Do-
novan Rossa, 10th Feb. 1870. In the
latter case, as the person had been
convicted and sentenced to imprison-
ment under the Treason-Felony Act,
11 & 12 Vict c. 12, it was contended
that, not being attainted, there was
no disqualification ; but the House
determined that he was disqualified.
The resolution in this case was that,
J. O'D. R. “Iraving been adjudged
guilty of felony, and sentenced to
penal servitude for life, and being
now imprisoned under such sentence,
has become, and continues incapable
of being elected or returned as a
member of this House."
4 Case of John Mitchel, 18th Feb.
1875; Acts 9 Geo. IV. C. 32, 6. 3;
9 Geo. IV. c. 54, s. 33; 33 & 34
Vict. c. 22, s. 2; Parl. Paper, No.
50, 1875; 222 Hans. Deb., 3rd Ser.
493. John Mitchel having been re-
elected, after a contest, a petition
was filed against his return, and
praying for the seat, when this
ground of disqualification was con-
firmed by the Court of Common
Pleas in Ireland, and the petitioner,
who had given due notice of the dis-
qualification, was seated as member
for Tipperary. 3 O'Malley & Hard-
castle, Reports, 37. Case of Michael
Davitt; 28th Feb. 1882 ; 137 Com. J.
77; Hans. Deb., 27th and 28th Feb.
1882.
5 21st Jan. 1580; 1 Com. J. 118,
119, A motion was made to know
the mind of this House touching a
burgess of this House standing in-
dicted of felony, whether he ought
in that case to remain a member of
this House; or else to be removed :
40
MODE OF ELECTION.
Mode of
election.
issued, where a writ of error is pending, until the judgment
has been affirmed.
These are the chief but not the only grounds of disqualifi-
cation for sitting in the House of Commons. Many 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.2
To these explanations concerning the persons of whom
Parliament is composed, it is not necessary to add any par-
ticulars as to the mode of election; further than that the
elections are held by the sheriffs or other returning officers,
in obedience to the Queen's writ out of Chancery, and are
determined by the majority of registered electors.
Parliamentary and Municipal Elections Act, 1872, the public
nomination of candidates was discontinued, and the votes of
electors are taken by ballot. In the case of a county, the
Returning Officer is to give notice of the day of election
within two days after he receives the writ, and in a borough,
on the day on which he receives the writ, or the following day.
By the
it was adjudged, he ought to remain
still of this House, unless he were
convicted.” 1 Com. J. 119.
i Case of Mr. S. O'Brien, 104 Com.
J. 319.
2 Rogers, Shepherd, Stephens,
Montagu & Neale, Wordsworth,
&c. See also Chapter XXII.
3 By 16 & 17 Vict. c. 68, writs are
now directed to the returning officers
of boroughs instead of to the sheriff
of the county. The poll at the Uni-
versities is also restricted to five days.
By 24 & 25 Vict. c. 53, amended by
31 & 32 Vict. c. 65, voting papers
are allowed in University elections.
By 16 Vict. c. 16, c. 28, the poll at
county elections in England and
Wales and Scotland, was reduced to
one day. By 25 & 26 Vict. cc. 62
and 92, similar prorision was made
for Ireland. By the Parliamentary
and Municipal Elections Act, 1872,
a new form of writ was introduced,
and the present mode of conducting
elections, and the several duties of
returning officers, are prescribed.
On the 27th Feb. 1880, a new writ
was issued for West Norfolk. On
the previous day, the Queen in Coun-
cil had pricked the list of sheriffs
for the year; and by the post which
bore the writ to Norwich, was de-
spatched the warrant to the new
sheriff, Meanwhile, however, the
outgoing sheriff received the writ
and indorsed it, and a question arose
whether it should be executed by the
outgoing or the incoming sheriff.
On reference to the 3 & 4 Will. IV.
c. 99, s. 9, it was held that the in-
coming sheriff should execute the
trit, and he was at once sworn in
for that purpose.
VODE OF ELECTION.
41
In the case of a county or district borough election, the day
of election is to be fixed by the Returning Officer, not later
than the ninth day after the day on which he receives the writ,
with an interval of not less than three clear days between the
day on which he gives the notice and the day of election ;
and in a borough, not later than the fourth day after the day
on which he receives the writ, with an interval of not less
than two clear days between the notice and the election. In
counties, or district boroughs, the poll is to be taken not less
than two, nor more than six clear days after the nomination;
and in boroughs, not more than three clear days after the
nomination. In reckoning time for all election proceedings,
Sunday, Christmas Day, Good Friday, and public fast and
thanksgiving days are to be excluded.2
1 Ballot Act, 1872, 1st Schedule, ss. 1, 2.
2 Ib. sect. 56.
42
POWER AND JURISDICTION
CHAPTER II.
POWER AND JURISDICTION OF PARLIAMENT COLLECTIVELY.-RIGIITS
AND POWERS OF EACII OF ITS CONSTITUENT PARTS.
Legislative
authority of
Parliament,
collectively.
The legislative authority of Parliament extends over the
United Kingdom, and all its colonies and foreign posses-
sions; and there are no other limits to its power of making
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 constitutional 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; and the introduction
of responsible government has necessarily limited the occa-
sions for such legislation. For some colonies the Queen in
council legislates, while others have legislatures of their
own, which propound laws for their internal government,
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 and their laws
are both subordinate to the supreme power of the mother
country. For example, the constitution of Lower Canada
was suspended in 1838; and a provisional government, with
legislative functions and great executive powers, was esta-
blished by the British Parliament.? Slavery, also, was
abolished by an Act of Parliament, in 1833, throughout all
1 «Parliamentary legislation, on l'escrved for extreme cases, in which
any subject of exclusively internal ucccssity at once creutes and justifies
concern to any British colony, pos- the exception." Lord Glenelg.
sessing a representative assembly, is, (Parl. Pap. 1839 (118), p. 7.)
as a general rule, unconstitutional. 2 1 & 2 Vict. c. 9; 2 & 3 Vict.
It is a right of which the exercise is c. 53. Sce also the Parliament of
1
OF PARLIAMENT.
43
the British possessions, whether governed by local legisla-
tures or not: but certain measures for carrying into effect
the intentions of Parliament were left for subsequent enact-
ment by the local bodies, or by the Queen in council. In
1838, the house of assembly of Jamaica 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, resenting the
interference of the mother country, withheld the supplies,
and otherwise neglected their functions; but Parliament
reduced them to submission by an Act to suspend the
colonial constitution, unless within a given time they should
resume their duties.And again, in 1846, that ancient
constitution was surrendered by acts of the local legislature,
confirmed by an Act of the Imperial Parliament. In 1849,
the constitutions of the Australian colonies were defined by
statute: but the colonial governors and legislative councils
were permitted to amend them, with the assent of the Queen
in council. The vast territories of British India, which
had long been subject to the anomalous government of the
East India Company, were transferred, by statute, to the
Crown, in 1858, and have since been under the immediate
legislative authority of Parliament.5 And in 1867, the
dominion of Canada was constituted by statute.
There are
some subjects upon which Parliament, in
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 principles
of government: but Parliament is not controlled in its dis-
cretion, and when it errs, its errors can only be corrected
by itself. To adopt the words of Sir Edward Coke, the
6
Canada Act, 1875, and the Canada
Copyright Act, 1875, as examples
of the interposition of Parliament in
colonial legislation.
11& 2 Vict. c. 67.
2 2 & 3 Vict. c. 26.
3 29 & 30 Vict. c. 12.
4 13 & 14 Vict. c. 69.
6 21 & 22 Vict. c. 106.
0 30 & 31 Vict. C. 3.
44
SUMMONS
power of Parliament “is so transcendant and absolute, that
it cannot be confined, either for causes or persons, within
any bounds.”1
in reference
ment.
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.
Prerogatives It is by the act of the Crown alone that Parliament can
of the Crown
be assembled. The only occasions on which the Lords and
to the Parlia- Commons have met by their own authority, were previously
to the restoration of King Charles II., and at the Revolution
in 1688. The first act of Charles the Second's reign declared
the Lords and Commons to be the two houses of Parliament,
notwithstanding the irregular manner in which they had
been assembled ; and all their acts were confirmed by the
succeeding Parliament summoned by the king, which how-
ever qualified the confirmation of them, by declaring that
“ the manner of the assembling, enforced by the difficulties
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 and 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 recognised the legality of
their acts.
Annual meet- But although the Queen may determine the period for
ing of Parlia-
calling Parliaments, her prerogative is restrained within
certain limits; as she is bound by statute to issue writs
within three years after the determination of a Parliament;
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 Parliament, now placed beyond
the power of the Crown by a system of finance rather than
ment.
1 4 Inst. 36.
? 16 Chas. II. c. 1, and 6 & 7
Vill. & Mary, c. 2.
OF PARLIAMENT.
45
by distinct enactment, had, in fact, been the law of England
from very early times. By the statute 4 Edw. III. c. 14,
- it is accorded that Parliament shall be holden every year
once, [and] [or] more often if need be.”ı
And again, in the
36 Edw. III. c. 10, it was granted "for redress of divers mis-
chiefs and grievances which daily happen [a Parliament shall
be holden or] be the Parliament holden erery year, as another
time was ordained by statute."2
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, however,
for any words to be more distinct than those of the 36th
Edward III., and it is plain from many records that they
were rightly understood at the time. In the 50th Edward
III., the Commons petitioned 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 kept."4 So also to a similar petition
in the 1st Richard II., it was answered, “ So far as relates to
the holding of Parliament each year, let the statutes there-
upon be kept and observed; and as for the place of meeting,
the king will therein do his pleasure.”5 And in the follow-
ing year the king declared that he had summoned Parliament,
because at the prayer of the Lords and Commons it had been
ordained and agreed that Parliament should be held each
year.
In the preamble of the Act 16 Chas. I. c. 1, it was also
distinctly affirmed, that "by the laws and statutes of this
realm, Parliament ought to be holden at least once every year
6
1 Record Comm. Statutes of the
Realm.
2 Ib.
roi tiegae Parlement une foiz p an',
ou deu foiz si mestier soit." i Rot.
Parl. 285.
4 2 Rot. Parl. 335.
5 3 Ib. 23.
6 Ib. 32.
3 By an ordinance in the 5th Edw.
III., the object of the law had been
more clearly explained ; viz., “Qe le
46
MEETING OF PARLIAMENT.
1ور
very often.'
Summons.
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 Chas. II. c. 1, a recognition of these ancient
laws was withheld: for the Act of Charles I. was repealed as
“ derogatory of his majesty's just rights and prerogative;"
and the statutes of Edward III. were incorrectly construed
to signify no more than that “ Parliaments are to be held
All these statutes, however, were repealed, by
implication, by this Act, and also by the 6 & 7 Will. & Mary,
c. 2, which declares and enacts that from henceforth Parlia-
ment shall be holden once in three years, at the least.”
The Parliament is summoned by the Queen's writ or letter
issued out of Chancery, by advice of the privy council. By
the 7 & 8 Will. III. c. 25, it was required that there shall be
forty days ? between the teste and the return of the writ of
summons; and since the union with Scotland, it had been the
invariable custom to extend this period to fifty days, such
being the period assigned in the case of the first Parliament
of Great Britain after the Union. But by the 15 Vict. c. 23,
this period has been reduced to thirty-five days after the
proclamation appointing a time for the first meeting of the
Parliament. The writ of summons has always named the
day and place of meeting, without which the requisition to
meet would be imperfect and nugatory.
The demise of the Crown is the only contingency upon
which Parliament is required to meet without summons in
the usual form. By the 6 Anne, c. 7, on the demise of the
Crown, Parliament, if sitting, is immediately to proceed to
act : and, if separated by adjournment or prorogation, is
immediately to meet and sit. Before the passing of this Act,
Demise of the
Crown,
I "Act for preventing of incon-
venience happening from long inter-
mission of Parliaments."
2 Forty days were assigned for the
period of the summons by the great
charter of King John, in which are
these words : "Faciemus summoneri
ad certum diem, scilicet
ad terminum quadraginta dierum ad
minus, et ad certum locum.'
3 See 22 Art. of Union, 5th Anne,
c. 8. 2 Hatsell, 290.
MEETING OF PARLIAMENT.
47
Parliament met on a Sunday, 8th March 1701, on the death
of William III. ; 1 and has since met three times, on similar
occasions, on Sunday. By the 37 Geo. III. c. 127, in case
of the demise of the Crown after the dissolution or expiration
of a Parliament, and before the day appointed by the writs of
summons for assembling a new Parliament, the last preceding
Parliament is immediately to convene and sit at Westminster,
and be a Parliament for six months, subject in the meantime
to prorogation or dissolution. In the event of another demise
of the Crown during this interval of six months, before the
dissolution of the Parliament thus revived, or before the
meeting of a new Parliament, it is to convene again and sit
immediately, as before, and to be a Parliament for six months
from the date of such demise, subject, in the same manner, to
be prorogued or dissolved. If the demise of the Crown
should occur on the day appointed by the writs of summons
for the assembling of a new Parliament, or after that day and
before it has met and sat, the new Parliament is immediately
to convene and sit, and be a Parliament for six months, as
in the preceding cases. This statute, however, needs revision
in reference to the latest enactment concerning the demise of
the Crown.3
As the Queen appoints the time and place of meeting, so Causes of
also at the commencement of every session she declares to
both houses the causes of summons, by a speech delivered 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 Par-
liament 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,t in order to assert their
1 13 Com. J. 782.
see 20 ib. 866 (George I.); 85 ib. 589
2 Queen Anne, 18 Com. J. 3; (George IV.); 92 ib. 490 (William
George II., 28 ib. 929. 933; George IV.).
III., 75 ib. 82. 89. For other oc- 3 See infra, p. 53.
casions of the demise of the Crown, 4 This is done in the Lords in com-
summons,
48
MEETING OF PARLIAMENT.
1
right to act without reference to any authority but their own,
invariably read a bill a first time, pro formâ, before they take
the speech into consideration. Other business may also be
transacted 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. On the 3rd of May, 1880, a
Select Committee was appointed to inquire into the claim of
Mr. Bradlaugh to make an affirmation, before the Queen's
speech had been delivered.
On two occasions, during the illness of George III., the
name and authority of the Crown were used for the purpose
of opening the Parliament, when the sovereign was personally
incapable of exercising his constitutional functions. On the
first occasion, Parliament had been prorogued till the 20th
November 1788, then to meet for the despatch of business.
When Parliament assembled on that day, the king was under
the care of his physicians, and unable to open Parliament, ,
and declare the causes of summons. Both houses, however,
proceeded to consider the measures necessary for a regency;
and on the 3rd February 1789, Parliament was opened by
a commission, to which the great seal had been affixed by the
lord chancellor, without the authority of the king. Again,
in 1810, Parliament stood prorogued till the 1st November,
and met at a time when the king was incapable of issuing a
commission. His illness continued, and on the 15th January
without any personal exercise of authority by the king,
Parliament was formally opened, and the causes of summons
declared in virtue of a commission under the great seal, and
“in his majesty's name." 2
pliance with a standing order (No. 8), ? For a full statement of these
and in the Commons by usage. procecdings, see May, Constitutional
| 135 Coin. J. 124, and see infra, History, i. 175-195 (7th Ed.).
P. 210.
PROROGATION AND ADJOURNMENT.
49
It may here be incidentally remarked, that the Crown has
also an important privilege in regard to the deliberations 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 the 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 Prorogation
and adjouru-
deliberations at the time appointed by the Queen; neither ment.
can it continue them any longer than she pleases. She may
prorogue Parliament by having her command signified, in
her presence, by the lord chancellor or speaker of the House
of Lords, to both houses ; by writ under the great seal," by
commission, or by proclamation. Prior to 1867, the proroga-
tion of Parliament from the day to which it stood summoned
or prorogued to any further day, was effected by a writ or
commission under the great seal: but by the 30 & 31 Vict.
c. 81, the royal proclamation alone prorogues the Parliament,
except at the close of a session. The effect of a prorogation
is at once to suspend all business until Parliament shall be
summoned again. Not only are the sittings of Parliament
at an end, but all proceedings pending at the time are
quashed, except impeachments by the Commons, and writs
of error and appeals before the House of Lords. Every bill
must be renewed after a prorogation, as if it had never been
introduced, though the prorogation be for no more than a
day. William III. prorogued Parliament from the 21st to
the 23rd of October 1689, in order to renew the Bill of
Rights, concerning which a difference had arisen between
1 But Parliament is never pro-
portant affairs.
rogued by writ after its first meet- 2 See also infra, Chap. VII.
ing. In 1847, Parliament stood 3 By 1 Geo. IV. c. 101, an Indian
prorogued by writ till Thursday, divorce bill is excepted from this
11th Nov. On that day it was again rule, in certain cases. And by the
prorogued by writ till Thursday, 11 & 12 Vict. c. 98, election com-
18th Nov., 1. e., one week; to as-
mittees were not dissolved by proro-
semble and be held, and sit for the gation,
despatch of diver's urgent and im-
P.
E
50
PROROGATION AND ADJOURNMENT.
the two houses, that was fatal to its progress. As it is a
rule that a bill of the same substance cannot be passed in
either house twice in the same session, a prorogation has
been resorted to, in other cases, to enable another bill to be
brought in.
Parliament When Parliament stands prorogued to a certain day, her
assembled by
proclamation. majesty is empowered by Act 37 Geo. III. c. 127, amended
by 33 & 34 Vict. c. 81, to issue a proclamation, giving notice
of her royal intention that Parliament shall meet for the
despatch of business on any other day, not less than six
days from the date of the proclamation; and Parliament
then stands prorogued to that day, notwithstanding the
previous prorogation. Pursuant to the first of these Acts,
Parliament was assembled in September 1799 ;4 and again
on the 12th December 1854, Parliament then standing
prorogued to the 14th ; and, in 1857, in consequence of the
suspension of the Bank Act of 1844, a proclamation was
issued on the 16th November, assembling Parliament on the
3rd December. Under the latter Act, Parliament, which
stood prorogued to the 30th November 1878, was further
prorogued, on the 27th, to the 5th December, on account of
the Afghan war. And other Acts have provided, that
whenever the Crown shall cause the supplementary militia
to be raised and enrolled, or drawn out and embodied, either
in England or Scotland, when Parliament stands prorogued
or adjourned for more than fourteen days, the Queen shall
issue a proclamation for the meeting of Parliament within
fourteen days. In compliance with this law, on the 1st
December 1792, Parliament, which stood prorogued till the
1st January, was summoned by proclamation to meet on the
13th December. And by the Militia Acts Consolidation
1 10 Com. J. 271.
2 Viz., in 1707, 1721, and 1831.
See Chap. X.
3 No such interval is required, if
Parliament, while sitting, be pro.
rogued by the Queen in person or
by Commission.
4 54 Com. J. 745; 55 Ib. 3.
5 See Appendix.
6 42 Geo. III. c. 90, 8. 147, and
C. 91, 8. 142; 15 & 16 Vict. c. 50,
8. 31.
PROROGATION ANI) 51
)
ADJOURNMENT.
Act, 1875, this period of fourteen days was reduced to
ten.1
When her majesty, by the advice of her privy council, Proclamation
has determined upon the prorogation of Parliament, a procla- Fogation.
prior to pro-
mation is issued, declaring that on a certain day Parliament
will be prorogued until a day mentioned; and when it is
intended that Parliament shall meet on that day, for despatch
of business, the proclamation states that Parliament will then
« assemble and be holden for the despatch of divers urgent
and important affairs." It was formerly customary to give
forty days' notice, by proclamation, of a meeting of Parlia-
ment for despatch of business :? but under the 37 George III.
c. 127, amended by 33 & 34 Vict. c. 81, a notice of six days
is sufficient for that purpose. In December 1877, Parliament
having been recently prorogued to Thursday, 17th January
(not for despatch of business), a further proclamation was
issued on the 22nd December, declaring the Royal will and
pleasure that Parliament should assemble on the said 17th
January for despatch of business.
When Parliament has been dissolved and summoned for a
certain day, it meets on that day for despatch of business, if
not previously prorogued, without any proclamation for that
purpose, the notice of such meeting being comprised in the Adjournment.
proclamation of the dissolution, and the writs then issued.
Adjournment is solely in the power of each house respec-
tively. It has not been unusual, indeed, for the pleasure of
the Crown to be signified in person, by message, commission,
or proclamation, that both houses should adjourn; and in
some cases such adjournments have scarcely differed from
prorogations. But although no instance has occurred in
which either house has refused to adjourn, the communication
might be disregarded. Business has frequently been trans-
1 38 & 39 Vict. c. 69, s. 45.
3 In 1621, an adjournment for five
2 2 Hatsell, 230. 3 Chatham Corr., months was directed by a royal com-
126, 12.
mission, and agreed to. I Com.J.639;
2 Rapin's Hist. 205. & Com. J. 158.
* 2
52
PROROGATION AND ADJOURNMENT.
1
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, amendment,
and division.
Under these circumstances it is surprising that so many
instances of this practice should have occurred in compa-
ratively 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 ministers
need only assign a sufficient cause for adjournment, when each
house could adjourn, of its own accord, and for any period,
however extended, which the occasion may require. The
pleasure of the Crown was last signified on the 1st March
1814;3 and it is probable that the practice will not be
revived.
A power of interfering with adjournments in certain cases
has been conceded to the Crown by statute. The 39 & 40
Geo. III. c. 14, amended by 33 & 34 Vict. c. 81, enacts,
that when both houses of Parliament stand adjourned for
1 2 Hatsell, 312. 316, 317. i Com. journed until the 24th October, in
J. 807, 308, 309; 10 Ib. 694; 17 Ib. order to enable the Commons to
26. 275. In 1799, 55 Ib. 49; 34 Parl. conclude the consideration of new
Hist. 1196, Lord Colchester's Diary, rules of procedure.
On the re-
i. 192.
assembling of Parliament, the regu-
2 In 1785 there was an adjourn- larity of this adjournment was chal-
ment from the 2nd August to the lenged in the House of Commons,
27th October, in order to give time mainly on the ground that the Ap-
to the Irish Parliament to consider propriation Act having been passed,
the commercial resolutions. 25 Parl. no further business could be pro-
Hist. 934. In 1799, an adjournment ceeded with. But, on the other
extended from the 12th October to hand, the precedent of 1820 was
the 21st January; and in 1813, from relied upon as conclusive, the con-
the 20th December to the 1st March. stitutional objections were answered,
In 1820, while the bill of pains and and the adjournment was approved
penalties against the Queen was by a large majority. 137 Com. J.
pending in the House of Lords, the 489; 274 Hans. Deb. 3rd Ser. 3.
Commons adjourned, by four succes- See also, infra, Chap. XXI. (Supply
sive adjournments, from the 26th and Ways and Means).
July to the 23rd November, when 3 49 Lords' J. 747. 69 Com. J.
Parliament was prorogued. On the 132,
18th August, 1882, both houses ad-
DISSOLUTIOX OF PARLIMEVT.
53
more than fourteen days, the Queen may issue a proclama-
tion, with the advice of her privy council, declaring that the
Parliament shall meet on a day not less than six 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 appointed for the original day of meeting, or
any subsequent day, stand appointed for the day named in
the proclamation.
The Queen may also close the existence of Parliament Dissolution.
by a dissolution. She is not, however, entirely free to
define the duration of a Parliament. Before the Triennial
Act, 6th of William and Mary, c. 2, there was no constitu-
tional limit to the continuance of a Parliament but the will
of the Crown : but under the Statute 1 Geo. I. c. 38, com-
monly known as the Septennial Act, it ceases to exist after
seven years from the day on which, by the writ of summons,
it was appointed to meet. Before the Revolution of 1688, a
Parliament was dissolved by the demise of the Crown : but
by the 7 & 8 Will. III. c. 15, and by the 6 Anne, c. 37, a
Parliament was determined six months after the demise of
the Crown, and so the law continued until, by the Reform
Act of 1867, it was wisely provided that the Parliament in
being, at any future demise of the Crown, shall not be deter-
mined by such demise, but shall continue as long as it would
have otherwise continued, unless dissolved by the Crown.3
Parliament is usually dissolved by proclamation under the
great seal, after having been prorogued to a certain day.
This proclamation is issued by the Queen, with the advice of
her privy council; and announces that the Queen has given
order to the lord chancellor of Great Britain and the lord
chancellor of Ireland to issue out writs in due form, and
1 Blackstone, Com. i. 177.
the names of the Whig chiefs, Somers,
2 Even the Privy Council expired Halifax, and Orford. Lord Stan-
at the demise of the Crown, and its hope, Reign of Anne, p. 44.
members were re-appointed in the 3 30 & 31 Vict. c. 102, s. 51.
new reign, and Queen Anne omitted
54
DISSOLUTION OF PARLIAMENT.
according to law, for calling a new Parliament; and that the
writs are to be returnable on a certain day.
Since the dissolution of the 28th March 1681, by Charles
II., the sovereign had not dissolved Parliament in person
until the 10th June 1818, when it was dissolved by the
Prince Regent in person. Parliament has not since been
dissolved in that form; but proceedings not very dissimilar
have occurred in recent times. On the 22nd April 1831,
William IV., having come down to prorogue Parliament, said,
"I have come to meet you for the purpose of proroguing
Parliament, with a view to its immediate dissolution :"2 and
Parliament was dissolved by proclamation on the following
day. On the 17th July 1837, Parliament was prorogued and
dissolved on the same day. On the 23rd July 1847, the
Queen, in proroguing Parliament, announced her intention
immediately to dissolve it; and it was accordingly dissolved
by proclamation on the same day, and the writs were des-
patched by that evening's post. The same course has also
been adopted on later occasions, and is now the ordinary
practice.
Assembling The interval between a dissolution and the assembling of
after dissolu- the new Parliament varies according to the period of the
year, the state of public business, and the political conditions
under which an appeal to the people may have become neces-
sary. When the Session has been concluded, and no ques-
tion of ministerial confidence or responsibility is at issue, the
recess is generally continued, by prorogations, until the usual
time for the meeting of Parliament.
5
of Parliament
tion,
+
1 73 Com. J. 427.
2 86 Ib. 517.
3 92 Ib. 671; 93 Ib. 3.
4 102 Ib. 960; 103 Ib. 3.
5 21st March 1857; 23rd April
1859; 6th July 1865; 26th January
1874; and 24th March 1880.
6 In 1807, Parliament was dissolved
on 27th May, and met 27th Novem-
ber. In 1818, Parliament was dis-
solved 10th Junc, and met for cle-
spatch of business 14th January. In
1826, Parliament was dissolved 2nd
June, and met 14th November. In
1847, Parliament was dissolved 25th
July, and was not intended to meet
until February, but was assembled
18th November, in consequence of
the commercial crisis.
In 1865,
Parliament was dissolved 6th July,
PEERS OF TIIE REALM.
55
Lords.
realm.
In addition to these several powers of calling a Parliament,
appointing its meeting, directing the commencement of its
proceedings, determining them from time to time by proro-
gation, and finally of dissolving it altogether, the Crown has
other parliamentary powers, which will hereafter be noticed
in treating of the functions of the two houses.
Peers of the realm enjoy rights and exercise functions in House of
five distinct characters: First, they possess, individually,
titles of honour which give them rank and precedence ;
secondly, they are, individually, hereditary counsellors of the
Crown; thirdly, they are, collectively, together with the lords Peers of the
spiritual, when not assembled in Parliament, the permanent
council of the Crown; fourthly, they are, collectively, together
with the lords spiritual, when assembled in Parliament, a court
of judicature; and lastly, they are, conjointly with the lords
spiritual and the Commons, in Parliament assembled, the
legislative assembly of the kingdom, by whose advice, con-
sent, and authority, with the sanction of the Crown, all laws
are made. 1
The most distinguishing characteristic of the Lords is their Judicature of
judicature, of which they exercise several kinds. They have
a judicature in the trial of peers; and another in claims of
peerage and offices of honour, under references from the
Crown, but not otherwise. Since the union with Scotland,
they have also had a judicature for controverted elections of
the sixteen representative peers of Scotland ;3 and by the act
of union with Ireland all questions touching the rotation or
election of lords spiritual or temporal of Ireland were to be
the Lords.
and met ist February. In 1868,
Parliament was dissolved early in
November, and met on the 10th De-
cember. In 1874, Parliament was
dissolved on the 26th January, and
met on the 5th March.
In 1880,
Parliament was dissolved on the 24th
March and met on the 29th April.
1 See 1 Rep. Dig. of Peerage, 14.
2 See Knolly's case, 12 St. Tr.
1167–1207. i Lord Raym. 10. Salk.
509. Carth. 297. 2 Lord Campbell,
Lives of Ch. Just. 148. Lord Camp-
bell's Speeches, 326. But see De-
bates and Proceedings upon the
Wensleydale Life Peerage, 1856.
3 Act of the Parl. of Scotland, 5
Ann. c. S. 6 Ann. c. 23. 10 & 11 Vict.
c. 52.
56
JUDICATURE OF THE LORDS.
decided by the House of Lords:1 but part of this judicature
was superseded in 1869, when Irish bishops ceased to have
seats in Parliament. 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. Their appellate
jurisdiction would also appear to have received statutory
confirmation from the 14 Edw. III. c. 5, A.D. 1310. In the
17th century they assumed a jurisdiction, in many points,
which has since been abandoned. They claimed an original
jurisdiction in civil causes, which was resisted by the Com-
mons, and has not been enforced for the last century and a
half. They claimed an original jurisdiction over crimes,
without impeachment by the Commons: but that claim was
also abandoned. Their claim to an appellate jurisdiction
over causes in equity, on petition to themselves, without
reference from the Crown, has been exercised since the reign
of Charles I.; and notwithstanding the resistance of the
Commons in 1675,5 they have since remained in undisputed
possession of it. They had a jurisdiction over causes brought,
on writs of error, from the courts of law, originally derived
from the Crown, and confirmed by statute, and to hear
appeals from courts of equity. In 1873, indeed, their ancient
appellate jurisdiction was surrendered by the Judicature Act:
but before that Act came into operation this provision was
repealed ;' their jurisdiction was restored and defined, while
their efficiency as a court of appeal was increased by the
immediate addition of two lords of appeal in ordinary, and
of a third lord of appeal, upon the death or resignation of
1 4th Art. of Union. 89 Lords' J.
289. 295. 329, &c.
2 Hale, Jurisdiction of the House
of Lords, c. 14. Barrington on the
Statutes, 244.
3 See 5 Howell, St. Tr. 711. 4 Parl.
Hist. 431. 413. 3 Hatsell, 336.
+ 8 Com. J. 38.
5 See 6 Howell, St. Tr. 1121.
6 27 Eliz. c. 8. See also Intr. to
Sugden, Law of Real Prop. 2.
7 37 & 38 Vict. c. 83.
JUDICATURE OF TIIE LORDS.
57
nions.
two paid judges of the Judicial Committee of the Privy
Council. The power of hearing causes during a prorogation
or dissolution of Parliament was also given. An appeal now
lies to the House of Lords from the Court of Appeal in
England, and from any Court in Scotland and Ireland from
which a writ of error or appeal previously lay by common
law or by statute. But appeals in ecclesiastical, maritime,
or prize causes, and colonial appeals, both at law and in
equity, are determined 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 consilium Judges' opi-
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 :3 but the opinion of the judges
alone is now desired on points of law, on which the Lords
wish to be informed.
In passing Acts of attainder and of pains and penalties, Impeach-
the judicature of the entire Parliament is exercised; and
there is another high parliamentary judicature in which both
houses also have a share. In impeachments the Commons,
as a great representative inquest of the nation, first 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 a jury, try and adjudicate
upon 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 has
ments.
1 Appellate Jurisdiction Act, 1876.
Judicature (Ireland) Act, 1877.
2 Hargrave's Preface to Hale's
Jurisdiction of the Lords.
3 31 Hen. VIII. c. 10, s. 8. Lords'
S. O. Nos. 6, 7. 4th Inst. 4. The
order of Queen's Serjeants, however,
is soon likely to be extinct.
58
IMPEACHMENT BY THE COMMONS.
rarely been resorted to, in former periods of our history it
was of frequent occurrence. The earliest recorded instance
of impeachment by the Commons at the bar of the House of
Lords was in 1376, in the reign of Edward III. 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 Edward IV., Henry VII.,
Henry VIII., Edward VI., Queen Mary, or Queen Elizabeth.
The institution had fallen into disuse," says Hallam, “partly
from the loss of that control which the Commons had obtained
under Richard II. and the Lancastrian kings, and partly
from the preference the Tudor princes had given to bills of
attainder or of pains and penalties, when they wished to turn
the arm of Parliament against an obnoxious subject.”l
Prosecutions also in the Star Chamber, during that time,
were perpetually resorted to by the Crown for the punishment
of state offenders. In the reign of James I., 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 Mompesson and Lord Bacon were im-
peached, and the Revolution in 1688, there were about 40
cases of impeachment. In the reigns of William III., Queen
Anne, and George I., there were 15; and in the reign of
George II., none but that of Lord Lovat, in 1746, for high
treason. The last memorable cases
The last memorable cases are those of Warren
Hastings, in 1788, and Lord Melville, in 1805. A descrip-
tion of the proceedings of both houses, in cases of impeach-
ment, is reserved for a later part of this treatise.?
The most important power vested in any branch of the
rightof voting legislature, is the right of imposing taxes upon the people,
supplies.
and of voting money for the exigencies of the public service.
The Com-
mons: their
1 Const. Hist. 357.
? See Chap. XXIII.
RIGHT OF VOTING SUPPLIES.
59
It has been already noticed that the exercise of this right by
the Commons, is practically a law for the annual meeting 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 complicated 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 another
chapter.1
Another important power peculiar to the Commons, is that Right of de-
of determining all matters touching the election of their own elections
members. This right had been regularly claimed and exer-
cised since the reign of Queen Elizabeth, and probably in
earlier times, although such matters had been ordinarily
determined in chancery. Their exclusive right to deter-
mine the legality of returns and the conduct of returning
officers in making them, was fully recognized in the case of
Barnardiston v. Soame, by the Court of Exchequer Chamber
in 1674,2 by the House of Lords in 1689,3 and also by the
courts, in the cases of Onslow in 1680,4 and of Prideaux v.
Morris in 1702. Their jurisdiction in determining the
right of election was further acknowledged by Statute
7 Will. III. c.7: but in regard to the rights of electors,
a memorable contest arose between the Lords and Com-
mons in 1704. Ashby, a burgess of Aylesbury, brought an Case of Ashby
and White.
action at common law against William White and others,
the returning officers of that 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;"
>
1 Sec Chap. XXI.
2 6 Howell, St. Tr. 1092.
3 Ib. 1119.
4 2 Vent. 37. 3 Lev. 39.
5 2 Salk. 502. 1 Lutw. 82. 7 Mod.
13,
1
60
RIGHT OF DETERMINING ELECTIONS,
and in opposition to the opinion of Lord Chief Justice Holt,
judgment was entered for the defendant, 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 determining the 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 different voices in other courts, which
would make confusion, and be dishonourable 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 the Act 7 Will. III.
c. 7, by which it had been declared that “the last determi-
nation of the House of Commons concerning the right of
elections is to be pursued.' 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 hâc rice; 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
RIGHT OF DETERMINING ELECTIONS.
61
1
men.
1
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 Case of the
Aylesbury
other burgesses of Aylesbury, now familiarly known as “the
Aylesbury men,” commenced actions against the constables
of their borough, and were committed to Newgate, 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 Commons declared
their counsel, agents, and solicitors guilty of a breach of
privilege, and committed them also. Resolutions condemn-
ing these proceedings were passed by the Lords,-confer-
ences were held, and addresses presented to the Queen. At
length the Queen prorogued Parliament, and thus put an
end to the contest, and to the imprisonment of the Aylesbury
men and their counsel. The plaintiffs, no longer impeded by
the interposition of privilege, and supported by the judgment
of the House of Lords, obtained verdicts and execution
against the returning officers.
The question which was agitated at that time has never Later cases.
since arisen, so as to bring the Commons into conflict with
the courts of law. Complaints, however, have been made to
the house, of proceedings in courts of law, having reference
to elections;. and in 1767, certain electors of the county of
Pembroke having brought actions of trespass on the case
against the high sheriff for refusing their votes, were ordered
to attend the house : but having discontinued their actions,
no further proceedings were taken against them. In 1857,
a complaint was made, by petition, that certain voters had
1 See all the proceedings collected,
in App. to 3rd vol. of Hatsell's Pre-
cedents. The whole of this report,
together with another of the 13th
March, may be read with interest. .
2 Rye case, 17th November 1704 ;
14 Com. J. 425; Penryn case, 22nd
February 1710; 16 Com. J. 514 (00
further proceedings on these cases).
3 31 Com. J. 211. 279. 293. See
also cases of the Mayor of Hastings,
Easter Term, 1786, and the Mayor of
Abingdon, 1847; Price 2. Fletcher,
4 C. P. Rep.
62
RIGHT OF DETERMINING ELECTIONS.
brought actions against the returning officer of the borough
of Sligo for refusing their votes at the last election : but the
committee to whom the matter was referred reported that
there were no circumstances affecting the privileges of the
house. In 1784, Mr. Fox obtained a verdict, with damages,
against the high bailiff of Westminster, for vexatiously with-
holding his return when he had a majority of votes; and
this proceeding, being clearly free from any question of
privilege, did not call for the interposition of Parliament.2
The Commons continued to exercise (what was not denied to
them by the House of Lords) the sole right of determining
whether electors had the right to vote, while inquiring into
the conflicting claims of candidates for seats in Parliament;
and specific modes for trying the right of election by the
house were prescribed by statutes, and its determination de-
clared to be final and conclusive. 3 Meanwhile the various
rights of election, which formerly rested upon the decision of
the house, were defined by the statute law; and, at length,
in 1868, the house delegated its judicature in controverted
elections to the courts of law:t but without relinquishing its
general jurisdiction in cases not otherwise provided for by
statute.5
Although all writs are issued out of Chancery, every
vacancy after a general election is supplied by the authority
of the Commons. The Speaker is empowered to issue war-
rants 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 the Speaker, by
order of the house; and during a recess, after a prorogation
New writs
issued by
order of the
House of
Commons.
1 146 Hans. Deb. 3rd Ser. 1557 ;
112 Com. J. 310. 314. 340.
2 3 Hughes' Hist. 245.
9 Geo. IV. c. 22, s. 54, &c.
4 Election Petitions Act, 1868 ;
amended by Parliamentary Elections
and Corrupt Practices Act, 1879, by
which the trial of election petitions
are conducted by two judges instead
of one.
6 See infra, Chapter XXII., on
Elections.
3
EXPULSION OF MEMBERS.
63
or adjournment, he is required to issue warrants, in certain
cases, without an order.1
But notwithstanding their extensive jurisdiction in regard Expulsion of
members does
to elections, the Commons have no control over the eligibility not create
of candidates, except in the administration of the laws which disability.
define their qualifications. No power exercised by the Com-
mons is more undoubted than that of expelling a member
from the house, as a punishment for grave offences; yet ex-
pulsion, though it vacates the seat of a member, and a new
writ is immediately issued, does not create any disability to
serve again in Parliament. John Wilkes was expelled, in
1764, for being the author of a seditious libel. In the next
Parliament (3rd February 1769) he was again 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 of Parliament
expelled this house, he was and is incapable of being elected
à member to serve in this present Parliament." 2 The
election was declared void : but Mr. Wilkes was 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 Hun-
dreds, and stood against Mr. Wilkes at the election, and,
being defeated, petitioned the house against the return of his
opponent. The house resolved that, although a majority of
the electors had voted for Mr. Wilkes, Mr. Luttrell ought to
have been returned, and they amended the return accordingly.
Against this proceeding the electors 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 proved
by unanswerable arguments 3 to be illegal; and on the 3rd of
1 24 Geo. III. sess. 2, c. 26. 52
Geo. III. c. 144. 21 & 22 Vict. c. 110.
See also Chapter XXII., on Elections.
2 32 Com. J. 229.
3 See particularly the speech of
Mr. Wedderburn, 1 Cavendish Deb.
61
EXPULSIOX OF MEMBERS.
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.”l
In 1882, Mr. Bradlaugh, having been expelled, was imme-
diately returned by the electors of Northampton; and no
question was raised as to the validity of his return.?
Disabilities Espulsion and perpetual disability had been part of the
formerly in-
flicted by the punishments inflicted upon Arthur Hall in 1580; and on the
Commons.
27th May 1641, Mr. Taylor, a member, was expelled, and
adjudged to be for ever incapable of being a member of the
house. And in the same year, Mr. Benson was resolved to
be “unfit and incapable ever to sit in Parliament, or to be a
member of this house hereafter;"+ and Mr. Trelawny was
"disabled from sitting as a member of this house during this
Parliament.” During the Long Parliament, incapacity for
serving in the Parliament then assembled was frequently
part of the sentence of expulsion. On the Restoration, in
1660, the house went so far as to expel Mr. Wallop, and
resolve him to be "made incapable of bearing any office or
place of public trust in this kingdom." In 1711, Mr. Robert
Walpole, on being re-elected after his expulsion, was declared
incapable of serving in the present Parliament, having been
expelled for an offence. But all these cases can only be
regarded as examples of an excess of their jurisdiction by the
Commons; for one house of Parliament cannot create a dis-
ability unknown to the law.
Suspension of A temporary disability, however, has been sometimes created
by the suspension of members from the service of the house.
On the 27th April 1641, Mr. Gervaise Hollis, a member, was
suspended the house during the Session. On the 6th Novem-
ber 1643, Sir Norton Knatchbull was suspended the house
members.
352. See also 2 May, Const. Hist.
2-26 (7th Ed.).
1 38 Com. J. 977.
2 137 Ib. 62.
3 2 Ib. 158.
4 Ib. 301.
5 Ib. 473.
6 Ib. 700. 729, &c.
7 8 Ib. 60.
8 17 Ib. 128.
9 2 Ib. 128.
EXPULSION OF MEMBERS.
65
--
during the pleasure of the house." On the 26th January
1648, Mr. Frye was suspended from sitting in the house,
and executing his duty there, as a member, until he shall
give satisfaction to the house.? On the 3rd July 1661,
Mr. Love, not having received the sacrament of the Lord's
Supper, was suspended until he shall communicate.3 On
the 10th November 1669, Sir George Carteret was suspended
the house. On the 8th April 1670, Sir John Prettiman
was suspended his sitting in the house, and from all privi-
leges as a member, until he shall produce Robert Humes,
who had falsely claimed privilege as his servant. And on
the 9th March 1692, Mr. Cullingford was suspended from
the benefit of the privilege of the house until he shall attend
in his place. The temporary suspension of a member from
the service of the house is a modified form of punishment,
by which the rights of electors are no more infringed than
if the house exercised its unquestionable power of imprison-
ment. For nearly two centuries, however, the house appears
to have preferred the latter punishment, no case of suspen-
sion having occurred since 1692. But on the 25th July
1877, it was laid down from the chair that any member
guilty of a contempt “would be liable to such punishment,
whether by censure, by suspension from the service of the
house, or by commitment, as the house may adjudge."
And by a Standing Order 28th February, amended 22nd
November 1882, suspension was adopted for the punishment
of the offence of disregarding the authority of the chair, or
of obstruction; and has since been imposed in numerous
997
8
cases.
Expulsion is generally reserved for offences which render Grounds of
members unfit for a seat in Parliament, and which, if not expulsion.
1 3 Com. J. 302.
2 6 Ib. 123.
3 8 Ib. 289.
4 9 Ib. 120.
6 9 Ib. 156.
6 10 Ib. 846.
1 132 lb. 375.
8 See infra, Chap. XI. (Debate.)
P.
E
66
EXPULSION OF MEMBERS,
Evidence of
offences.
so punished, would bring discredit upon Parliament itself.
Members have been expelled, as being in open rebellion ;)
as having been guilty of forgery;s of perjury; of frauds
and breaches of trust;4 of misappropriation of public money ;)
of conspiracy to defraud ;o of corruption in the adminis-
tration of justice, or in public offices, or in the execution
of their duties as members of the house ;9 of conduct un-
becoming the character of an officer and a gentleman ;lº and
of contempts, libels and other offences committed against the
house itself. 11
Where members have been legally convicted of any of-
fences, it has been customary to require the record of con-
viction to be laid before the house. 12 In other cases the pro-
ceedings have been founded upon reports of commissions, or
committees of the house, or other sufficient evidence.13 And it
has been customary to order the member, if absent, to attend
in his place, before an order is made for his expulsion.14
A member has also been expelled who has fled from justice,
without any conviction, or judgment of outlawry. On the
18th July 1856, a true bill was found against James Sadleir
for fraud, and a warrant was then issued for his apprehen-
sion. On the 24th, a motion was made for his expulsion,
on the ground of his having absconded, which, being con-
1 Mr. Foster and Mr. Carnegy,
1715; 18 Ib. 336. 467.
2 Mr. Ward, 1726 ; 20 Ib. 702.
3 Mr. Atkinson, 1783; 39 Ib. 770.
4 South Sea Directors, 1720; 19
Ib. 406. 412, 413. Commissioners of
Forfeited Estates, 1732; 21 Ib. 871.
Benjamin Walsh, 1812; 67 Ib. 176;
Lord Colchester's Diary, i. 373.
5 Earl of Ranelagh, 1702. 14 Com.
J. 171. Mr. Hunt, 1810; 65 Ib. 433.
6 Lord Cochrane and Mr. Coch-
rane Johnstone, 1814; 69 Ib. 433.
? Sir J. Bennet, 1621; 1 Ib. 588.
8 Mr. Walpole and Mr. Carbonell,
1711; 17 Ib. 30. 97.
9 Mr. Ashburnham, 1667; 9 Ib.
24. Sir J. Trevor (Speaker), 1694 ;
11 Ib. 274; 5 Parl. Hist. 900–910.
Mr. Hungerford, 1695; 11 Com. J.
283,
10 Col. Cawthorne, 1796; 51 Ib.
552.
11 1 Com. J. 917; 2 Ib. 301. 537;
9 Ib. 431 ; 17 Ib. 513; 18 Ib. 411;
20 Ib. 391; 137 Ib. 61. See also
Report of Precedents, 1807.
12 39 Com. J. 770; 67 Ib. 176; 69
Ib. 433.
13 11 Ib. 283; 20 Ib. 141, 391;
21 Ib. 870; 65 Ib. 433, &c.
14.51 Ib. 661; 65 Ib. 399; 67 Ib.
176; 69 Ib. 433; 111 Ib. 367.
EXPULSION OF MEMBERS.
67
sidered premature, the house refused to entertain. But on
the 16th February 1857, when the reports of the Crown
solicitor and officers of the constabulary, showing the mea-
sures which had since been ineffectually taken to apprehend
Mr. Sadleir, and bring him to trial, had been laid before the
house, he was expelled, as having fled from justice.1
5 143 Hans. Deb., 3rd Ser. 1386; 144 Ib. 702; 111 Com. J. 379; 112 Ib. 48.
F 2
68
PRIVILEGE.
CHAPTER III.
GENERAL VIEW OF THE PRIVILEGES OF PARLIAVENT: POWER OF
COMMITMENT BY BOTII HOUSES, FOR BREACIIES OF PRIVILEGE.
CAUSES OF COMMITMENT CANNOT BE INQUIRED INTO BY COURTS
OF LAW: NOR TIIE PRISONERS BE ADUITTED TO BAIL.
ACTS CON-
STRUED AS BREACHES OF PRIVILEGE.
DIFFERENT PUNISIIMENTS
INFLICTED BY THE TWO HOUSES.
tom of Par-
liament and
Privileges en- Both houses of Parliament enjoy various privileges in their
joyed by the
ïaw and cus-
collective capacity, as constituent parts of the High Court
of Parliament; which are necessary for the support of their
by statute.
authority, and for the proper exercise of the functions
entrusted to them by the constitution. Other privileges,
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 because " they
have place and voice in Parliament;'l but a practice has
obtained with the Commons, that would appear to submit
their privileges to the royal favour. At the commencement
of every Parliament since the 6th of Henry VIII., it has
been the custom for the Speaker,
Speaker's
petition.
“In the name, and on behalf of the Commons, to lay claim by
humble petition to their ancient and undoubted rights and privi-
1 Hakewel, 82.
See the memorable protestation of
the Commons, in answer to James I.,
who took offence at the words used
by the speaker in praying for their
privileges as "their anticnt and un.
doubted right and inheritance.” 5
Parl. Hist. 512; 2 Proceedings and
Debates of the Commons, 1620-1,
359.
PRIVILEGE.
69
loges; particularly that their persons and servants! might be free from
arrests and all molestations; that they may enjoy liberty of speech in
all their debates; may have access to her Majesty's royal person when-
over occasion shall require ; and that all their proceedings may receive
from her Majesty the most favourable construction.”
$
To which the Lord Chancellor replies, that
“Her Majesty most readily confirms all the rights and privileges
which havo ever been granted to or conferred upon the Commons, by
her Majesty or any of her royal predecessors." 2
The authority 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." 3
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 Edward IV., the petition of the Com-
mons 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 Parliament, graciously have ratified
and confirmed to us, your said Commons, now assembled
by your said royal commandment in this your said present
Parliament." 4
But whatever may have been the origin and cause of this
custom, and however great the concession to the Crown may
1 The claim of privilege in respect
of their cstates was omitted for the
first time in 1853. The claimi for ser-
vants was retained, as it was doubt-
ful whether certain privileges might
not attach to the servants of members,
in attendance at the house; and the
officers and servants of the house are
still privileged, within its precincts.
108 Com. J.7; 2 Hatsell, 225; Lord
Colchester's Diary, i. 64.
2 73 Lords' J. 571; 80 Ib. 8, &c.
3 112 Com. J. 119, &c.
46 Rot. Parl. 191.
70
FREEDOM OF ACCESS TO THE QUEEX.
Freedom of
access for the
Commons.
appear, the privileges of the Commons are nevertheless inde-
pendent of the Crown, and are enjoyed irrespectively of their
petition.
Some have been confirmed by statute, and are,
therefore, beyond the control either of the Crown or of any
other power but Parliament; while others, having been
limited or even abolished by statute, cannot be granted or
allowed by the Crown.
Every privilege will be separately treated; beginning with
such as are enjoyed by each house collectively, and pro-
ceeding thence to such as attach to individual members;
but, before these are explained, two of the points enumerated
in the Speaker's petition may be disposed of, as being mat-
ters 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.”
1. The first request for freedom of access to the sove-
reign is recorded in the 28th Henry VIII.; “but,” says
Elsynge, “it appeareth plainly they ever enjoyed this, even
when the kings were absent from Parliament;" and in the
times of Richard II., Henry IV., and downwards, the
Commons, with the Speaker, were ever admitted to the king's
presence in Parliament to deliver their answers; and often-
times, under Richard II., Henry IV., and Henry VI., they
did propound matters to the king which were not given them
in charge to treat of.”! The privilege of access is not en-
joyed 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 pre-
sented to her Majesty by the whole house. Without this
privilege, it is undeniable that the Queen might refuse to
receive such an address presented in that manner; and that
so far as the attendance of the whole house may give effect
to an address, it is a valuable privilege, But addresses of
the house may be communicated by any members who have
1 Elsynge, 175, 176.
FREEDOM OF ACCESS TO THE QUEEX.
71
for Peers.
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.
The only right claimed and exercised by individual mem-
bers, in availing themselves 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 sup-
posed to entitle them, as members, to dispense with the forms
and ceremonies of the court.1
Far different is the privilege enjoyed by the House of Free access
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 privileged to have
an audience of her Majesty.?
2. That all the proceedings of the Commons may receive Favourable
construction
from her Majesty the most favourable construction, is con- of the Com-
ducive to that cordial co-operation of the several branches mons' pro-
ceedings.
of the legislature which is essential to order and good govern-
ment; but it cannot be classed among the privileges of Par-
liament. It is not a constitutional right, but a personal
courtesy; and if not observed, the proceedings 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 courtesy are also limited;
as by the law and custom of Parliament the Queen cannot
take notice of anything said or done in the house, but by the
report of the house itself.3
Each house, as a constituent part of Parliament, exercises Privileges of
its own privileges independently of the other. They are en- collectively.
joyed, however, not by any separate right peculiar to each,
each houso
i See also Chap. XVII., on Ad-
dresses.
2 See 3 Lord Colchester's Diary,
604. 606, 607.
3 4 Inst. 15. See also infra,
Chap. IV., on Freçdom of Speech.
72
LAW AND CUSTOM OF PARLIAMENT.
tom of Parlia-
but solely by virtue of the law and custom of Parliament.
There are rights or powers peculiar to each, as explained
in the last chapter: but all privileges, properly so called,
appertain equally to both houses. These are declared and
expounded by each house; and breaches of privilege are
adjudged and censured by each; but still it is the law of
Parliament that is thus administered.
Law and cus- The law of Parliament is thus defined by two eminent
nient.
authorities : “As every court of justice hath laws and cus-
toms 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 own peculiar
law, called the lex et consuetudo Parliamenti."1 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 expe-
rience;" to which it is added, that “whatever matter arises
concerning either house of Parliament, ought to be dis-
cussed and adjudged in that house to which it relates, and
not elsewhere."
Hence it follows that whatever the Parliament has con-
stantly declared to be a privilege, is the sole 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 showing 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 ex-
pounding of the unwritten law of Parliament.
New privi- But although either house may expound the law of
leges may not
Parliament, and vindicate its own privileges, it is agreed
that no new privilege can be created. In 1704, the Lords
973
be created.
1
1 Blackstone,
1 Coke, 4 Inst. 15.
Comm. 163,
2 4 Inst. 15.
3 1 Comm. 68. 71.
BREACHES OF PRIVILEGE.
73
communicated a resolution to the Commons at a conference,
“ That neither house of Parliament have power, by any
vote or declaration, to create to themselves new privileges,
not warranted by the known laws and customs of Parlia-
ment;'! 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 privi-
leges 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 mem-
bers. 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 in Breach of
matters of privilege. They declare what cases, by the law contempt of
and custom of Parliament, are breaches of privilege: and thou High
punish the offenders by censure or commitment, in the same Parli
manner as courts of justice punish for contempt. The
modes of punishment may occasionally differ, in some re-
spects, in consequence of the different powers of the two
houses : but the principle upon which the offence is deter-
mined, 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, has often
been 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
nent.
1 14 Com. J. 555,
2 Ib. 560.
3 8 Grey's Debates, 232.
74
COMMITMENT.
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 vigilance when they
appear to be capricious or unjust: but it is unreasonable
to cavil at privileges in general which have been long esta-
blished by law and custom, and which are essential to the
dignity and power of Parliament.
So essential to the functions of a legislature is the right
to judge contempts of its authority, and to punish them,
that in the United States, where the constitution is silent
upon this subject, it has been repeatedly exercised, not only
by the House of Representatives, but also by local legisla-
tures; and has been upheld by the Supreme Court, on the
ground of inherent right and necessity. Here there was no
prescription or ancient custom to rely upon; and the silence
of the constitution, whence all powers are derived, was a
fact undoubtedly adverse to the claim. The same power
has also been exercised by colonial legislatures.?
The power of the House of Lords to commit for contempt
was questioned in the cases of the Earl of Shaftesbury, in
1675, and of Flower, 4 in 1779: but was admitted without
hesitation by the Court of King's Bench.
The power of commitment by the Commons is established
upon the ground and evidence of immemorial usage. It
By the Lords.
By the Com-
mons.
1 See 2 Story's Comm. 305-317,
and notes.
2 Journ. of Leg. Assembly of
Canada, 20th and 23rd April 1840;
12th March 1849; vol. 5, p. 119.
150 ; vol. 7, p. 148. 282.
Journ.
of House of Assembly of Prince
Edward Island, 17th Feb. 1836 ;
19th March and 9th April 1846, &c.
But on the 11th Aug. 1875, tho
Standing Orders Committee of the
Legislative Assembly of New South
Wales reported that the Assembly
had no power to punish for a breach
of its privilege, nor to enforce any
order for the attendance of a person
charged with such breach ; and re-
commended that a bill should be in-
troduced to define the privileges and
powers of the Assembly, and to affix
penalties for the breach of them,
Votes of the Assembly.
3 6 Howell, St. Tr. 1269 et seq.
8 Durnf. & East, 314.
5 Mr. Wynn states thatnearly 1,000
instances of its exercise have occurred
since 1547, the period at which the
Journals commence (Argument, p. 7);
and numerous cases have occurred
since the publication of Mr. Wynn's
treatise.
AUTHORITY OF OFFICERS,
75
was admitted, most distinctly, by the Lords, at the con-
ference between the two houses, in the case of Ashby and
White, in 1704,1 and it has been repeatedly recognised by
the courts of law: viz. by eleven of the judges, in the case
of the Aylesbury men ;2 by the Court of King's Bench, in
Murray's case;3 by the Court of Common Pleas in Crosby's
case ;t by the Court of Exchequer, in the case of Oliver
(1771) ;' by the Court of King's Bench, in Burdett’s case,
in 1811 ;5 in the case of Mr. Hobhouse, in 1819;9 and in the
case of the Sheriff of Middlesex, in 1840 ;and lastly, by the
Court of Exchequer Chamber, in Howard's case, in 1846.8
The power is also virtually admitted by the Statute 1 James I.
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.”
The right of commitment being thus admitted, it becomes Authority and
protection of
an important question to determine what authority and pro- officers in exe-
tection are acquired by officers of either house, in executing of either
cuting orders
the orders of their respective courts.
Any resistance to the serjeant-at-arms, or his officers, or
others acting in execution of the orders of either house, has
always been treated as a contempt; and the parties, in
numerous instances, have suffered punishment accordingly.
The Lords will not suffer any persons, whether officers Lords.
of the house or others, to be molested for executing their
orders, or the orders of a committee, 10 and will protect them
from actions.
On the 28th November 1768, the house being informed
that an action had been commenced against Mr. Hesse, a
justice of the peace for Westminster, who had acted under
house.
1 17 Lords' J. 714.
2 2 Lord Raym. 1105; 3 Wils. 205.
3 1 Wils. 299 (1751).
4 3 Ib. 203 (1771).
5 14 East, 1.
6 2 Chit. Rep. 207; 3 Barn. & Ald.
? 11 Adolphus & Ellis, 273.
s Printed Papers, 2nd Report, 1845
(305), (397); 1847 (39).
9 13 Lords' J. 104; 15 Ib. 565; 21
Ib. 190; 39 Ib. 649; 15 Ib. 340. 610.
10 13 Ib. 412.
420,
76
AUTHORITY OF OFFICERS.
1
2
the immediate orders of the house in suppressing a riot at
the doors of the house, in Palace-yard, Biggs, the plaintiff,
and Aylett, his attorney, were ordered to attend. On the 1st
December, Biggs was attached, but afterwards discharged
out of custody, with a reprimand, upon his signing a release
to Mr. Hesse. Aylett was sent to Newgate, whence he was
discharged on the 9th December, on his petition expressing
contrition for his offence,
On the 26th June 1788, Aldern, a constable, complained
that, in pursuance of an order of the house, he had refused
Mr. Hyde admittance to Westminster Hall during the trial
of Warren Hastings, for which he had been indicted for an
assault, and put to much expense. Mr. Hyde was ordered
to attend, and committed for his offence. On the 30th June
he was discharged, with a reprimand, on submitting himself
to the house.
The last case of the kind was that commonly known as
“the umbrella case.'' On the 26th March 1827, complaint
was made that John Bell had served F. Plass, a doorkeeper,
when attending his duty in the house, with process from the
Westminster Court of Requests, first to appear, and after-
wards to pay a debt and costs awarded against him by that
court, for the loss of an umbrella which had been left with
the doorkeeper during a debate. Bell, and the clerks of the
Court of Requests were summoned; the former was admo-
nished, and the latter, not being aware of the nature of the
complaint, were directed to withdraw.3
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 attending the
Commons, for executing the orders of the house in arresting
Commons.
1 32 Lords' J. 187. 197.
2 38 Ib. 249, 250, 251.
3 59 Ib. 199. 206.
4 1 Hatsell, 53.
>
ASSISTANCE OF THE CIVIL POTVER.
77
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 privi-
lege, and committed Sir F. Pemberton and Sir T. Jones,
who had been the judges in the case, to the custody of the
serjeant-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 Miller, one
of the printers concerned in publishing the debates, to be
taken into custody; and he 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 (Brass Crosby),
were committed to the Tower.2
It cannot, indeed, be supposed that when the house has Assistance of
ordered the serjeant to execute a warrant, it will not sustain
his authority, and punish those who resist him. But a
question still arises concerning the authority with which 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. Both houses have always
considered every branch of the civil government as bound to
assist, when required, in executing their warrants and orders,
and have repeatedly required such assistance.
In 1640, all mayors, justices, &c. in England and Ireland
were ordered by the Commons to aid in the apprehension
of Sir G. Ratcliffe. In 1660, the serjeant was expressly
the civil
power.
1 33 Com. J. 263; and Report of
Committee, 1771.
2 33 Com. J. 285. 289. See also 1
May, Const. Hist. (7th ed.) 429.
3 See other Cases, 9 Com. J. 341.
587; 13 Ib. 826.
4 2 Ib. 29.
78
ASSISTANCE OF THE CIVIL POWER.
2
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 he shall see cause; and who are required to assist
him accordingly.” 1 And on the 23rd October 1690, the
Lords authorized the black rod to break open the doors of
any house, in the presence of a constable, and there search
for and seize Lord Keveton.
On the 24th January 1670, the House of Commons or-
dered 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.”3
And again, on the 5th April 1679, 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.”+ The Lords also have frequently
required the assistance of the civil power in a similar manner.5
And at the present time, by every Speaker's warrant to the
serjeant-at-arms for taking a person into custody, "all mayors,
sheriffs, under-sheriffs, bailiffs, constables, headboroughs, and
officers of the house are required to be aiding and assisting
in the execution thereof." 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 Parliament,
in punishing resistance.
Breaking open In the case of Sir Francis Burdett, in 1810, a doubt arose
concerning the power of the serjeant-at-arms to break into
the dwelling-house of a person against whom a Speaker's
1 8 Com. J. 222.
j 21st December 1678, 13 Lords' J.
2 14 Lords' J. 530.
429; 21st and 23rd October 1690, 14
3 9 Com. J. 193.
Ib. 527, 530; 21st May 1747, 27 Ib.
4 8 Ib. 586. See also 2 Ib. 371; 118.
9 Ib. 353.
outer doors.
.
SIR F. BURDETT.
79
warrant had been issued. The serjeant-at-arms 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 con-
cealed, for the purpose of apprehending him; and whether he might
take to his assistance a sufficient civil or military force for that pur-
pose, 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 Attorney-General answered all these questions, except
the last, in the affirmative ;? and acting upon his opinion,
the serjeant-at-arms forced an entrance into Sir F. Burdett's
house, down the area, and conveyed his prisoner to the
Tower, with the assistance of a military force. Sir F. Bur- Burdett v.
dett subsequently brought actions against the Speaker and Burdett v.
Colman,
the serjeant-at-arms, in the Court of King's Bench. The
house directed the Attorney-General to defend them. The
causes were both tried, and verdicts were obtained for the
defendants.
With respect to the authority of the serjeant-at-arms to
break open the outer door of Sir F. Burdett's house, Lord
Ellenborough said :
“ Upon authorities the most unquestionable this point has been
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
process 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 legislature are less
strongly armed in point of protection and remedy against contempts
towards them, than the courts of justice are."3
The opinion of the Attorney-General, upon which the serjeant
1 65 Com. J. 264; Ann. Reg. 1810,
p. 344, &c. Hans. Deb. xvi. 257.
454, &c. Lord Colchester's Diary,
ii. 245, &c.
2 This opinion is printed in the
Journal, and in the earlier editions
of this work.
3 14 East, 157.
80
HOWARD L. GOSSET.
1
Howard v.
Gosset.
1st Action,
1842.
had acted, was thus confirmed. 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 entrance,
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 executing 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 messengers 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 1001.
damages. The verdict proceeded entirely upon the ground
of the defendants having exceeded their authority, and
without any reference to the jurisdiction of the House of
Commons: but if the officer should not exceed his authority,
he will be protected by the courts, even if the warrant should
not be technically formal, according to the rules by which the
warrants of inferior courts are tested.
In 1843, Mr. Howard commenced another action of tres-
pass against Sir W. Gosset, the serjeant-at-arms, and the
Court of Queen's Bench gave judgment for the plaintiff, on
the ground that the warrant was technically informal, and
Howard v.
Gosset.
2nd Action,
1843.
!
14 Taunt. 401.
2 5 Dow, 165.
3 Carrington & Marshman, 382.
LINES 2. RUSSELL.
81
did not justify the acts of the serjeant. This judgment,
however, was reversed by the Court of Exchequer Chamber,
by whom the broader grounds on which they upheld the
privileges of Parliament were thus expounded : “They con-
strue the warrant as they would that of a magistrate; we
construe it as a writ from a superior court; the authorities
relied upon by them relate to the warrants and commitments
of magistrates; they do not apply to the writs and mandates
of superior courts, still less to those of either branch of the
High Court of Parliament:” “Writs issued by a superior
court, not appearing to be out of the scope of their jurisdic-
tion, are valid of themselves, without any further allegation,
and a protection to all officers and others in their aid, acting
under them; and that, although on the face of them they be
irregular, as a capias against a peeress (Countess of Rutland's
case, 6 Coke's Rep. 54a), or void in form, as a capias ad re-
spondendum not returnable the next term (Parsons v. Lloyd,
3 Wilson, 341); for the officers ought not to examine the
judicial act of the court, whose servants they are, nor exer-
cise their judgment touching the validity of the process in
point of law, but are bound to execute it, and are therefore
protected by it.” 1
In 1852, Mr. Lines, who had been committed to custody, Lines v.
by a warrant of the chairman of the St. Albans Election Warrant of
Committee, brought an action of trespass against Lord Chairman of
Charles Russell, the serjeant-at-arms. By the “Election mittee.
Petitions Act 1848," s. 83, if any witness before an election
committee “give false evidence, or prevaricate, or otherwise
misbehave, in giving or refusing to give evidence, the chair-
man, by their direction,” may commit him for a limited
time. In this case the committee were of opinion that Mr.
Lines had prevaricated, and he was committed by virtue of
the following warrant:-
“Whereas a select committee appointed to try and determine the
merits of the petition complaining of an undue election and return
1 10 Q. B. 359. Shorthand writer's notes, 1817 (39), p. 166. 168.
Russell.
Election Coin-
P.
G
82
CAL'SES OF COMMITMENT
for the borough of St. Albans, have this day resolved that William
Lines, of St. Albans, having been guilty of prevarication and mis-
behaviour before the said committee, be committed to the custody of
the serjeant-at-arms attending this house. Now, these presents are
therefore to require you to take into your custody the body of the
said William Lines, and to keep him in such custody until twelve of
the clock on Tuesday next.”
It was argued that this warrant was invalid, as it did not
state that Lines was a witness summoned to give evidence;
nor that he had been sworn and examined; nor that he had
prevaricated and misbehaved in giving evidence. It was
also urged that the warrant ought not to be judged in the
same manner as a warrant issued by the House of Commons,
or any superior court, but as the warrant of a tribunal of
inferior and limited jurisdiction constituted by Act of
Parliament.
The Lord Chief Baron, however, having consulted some of
the judges, was of opinion that the warrant was “entitled
to precisely the same respect that would be paid to a war-
rant, order, or rule of the highest court in the country,"
and, “in reading the warrant, could entertain no reasonable
doubt that the plaintiff was before the committee as
witness." He therefore directed the jury to find a verdict
for the defendant. A bill of exceptions was tendered, but
afterwards waived, and a rule moved to show cause why
there should not be a new trial on the ground of misdirec-
tion. It appeared to be the opinion of the court that the
warrant was to be regarded as proceeding from “a part of
a superior court;" but a rule nisi was granted, which was
subsequently discharged without any decision upon the ques-
tion raised.
Causes of The power of commitment, with all the authority which
commitment
cannot be can be given by law, being thus established, it becomes the
inquired into
by the courts key-stone of parliamentary privilege. Either house may
adjudge that any act is a breach of privilege and contempt;
a
1
of law.
1 Shorthand writer's notes, 25th
June, 3rd and 13th November 1852.
16 Justice of the Peace, 491. 19 Law
Times, 364.
SOT TO BE INQUIRED INTO,
83
pus.
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 committed.
The Habeas Corpus Act 1 is binding upon all persons Habeas Cor-
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 1675, 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 Prisoners can-
parties who stand committed for contempt cannot be ad-
mitted to bail, nor the causes of commitment inquired into,
by the courts of law. It had been so adjudged by the
courts, during the Commonwealth, in the cases of Captain
Streater 6 and Sir Robert Pye. The same opinion was
expressed in Sheridan's case, by many of the first lawyers
in the House of Commons, shortly after the passing of the
1
not be bailed.
1 31 Car. II. c. 2.
to make returns to writs of habeas
2 9 Com. J. 356.
corpus, with the causes of detention;
3 14 Ib. 565.
but the Judges are not to proceed to
4 95 Ib. 25, 24th January 1840. bail or discharge the prisoners with-
51 Hans. Deb., 3rd Ser. 550. 106 out notice to the House. 5 Com. J.
Com. J. 147.
221. See also 2 Ib. 960.
By order of the House of Com- 6 5 Howell, St. Tr. 365. Styles,
mons, 23rd June 1647, the serjeant 415.
and keepers of persons are directed ? 5 Howell, St. Tr. 948.
5
ci 2
84
CAUSES OF COMMITMENT
Earl of
Shaftesbury's
case.
Habeas Corpus Act;1 and it has been confirmed by resolu-
tions of the House of Commons? and by numerous subse-
quent decisions of the courts of law; of which the following
are some of the most remarkable.
In 1675, Lord Shaftesbury, who had been committed by
the House of Lords for a contempt, was brought before the
Court of King's Bench, but remanded. In that case Lord
Chief Justice Rainsford said,
“He is in execution of the judgment given by the Lords for con-
tempt; and therefore if he should be bailed, he would be delivered
out of execution.” And again, “This court has no jurisdiction of the
cause; and therefore the form of the return is not considerable." 3
Paty's case.
In the case of the Queen r. Paty,t objections had been
taken to the form of the warrant, but Mr. Justice Gould
said, “If this had been a return of a commitment by an
inferior court, it had been naught, because it did not set
out a sufficient cause of commitment; but this return being
of a commitment by the House of Commons, which is
superior to this court, it is not reversible for form.” And
Mr. Justice Powys, relying upon the analogy of commit-
ments by the House of Commons and by the superior
courts, said, “ The House of Commons is a great court,
and all things done by them are to be intended to have
been rite acta, and the matter need not be so specially recited
in their warrants, by the same reason as we commit people
by a rule of court of two lines; and such commitments are
held good, because it is to be intended that we understand
what we do." And in the record of this case it is expressed,
that he was remitted to custody, "quod cognitio causæ cap-
tionis et detentionis prædicti Johannis Paty non pertinet ad
curiam."
In 1751, Mr. Murray was committed to Newgate by the
22
Murray's
case.
1 A.D. 1680; 4 Hans. Parl. Hist.
1262.
2 9 Com. J. 356, 357 ; 12 Ib. 174;
14 Ib. 565. 699.
3 6 Howell, St. Tr. 1269. 1 Freem.
153. 1 Mod. 144. 3 Keble, 792.
42 Lord Raymond, 1109. Salk.
503.
YOT TO BE INQUIRED INTO.
85
Commons for a contempt, and was brought up to the Court
of King's Bench by a habeas corpus. The court refused to
admit him to bail, Mr. Justice Wright 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 supe-
rior 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 Brass Crosby's case, in 1771, Chief Justice De Grey Brass
Crosby's case.
said,
" When the House of Commons adjudge anything to be a contempt
or a breach of privilege, their adjudication is a conviction, and their
commitment, in consequence, an execution; and no court can discharge
or bail a person that is in execution by the judgment of any other
court." And again,
And again, “ Courts of justice have no cognizance of the
acts of the Houses of Parliament, because they belong 'ad aliud
examen.'»2
Again, in 1779, in the case of Flower, who had been com- Flower's case.
mitted by the House of Lords, for a libel on the Bishop of
Llandaff, the prisoner applied 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.'"3
In the case of Mr. Hobhouse, in 1819, Lord Chief Justice Hobhouse's
Abbott said, -
case.
“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 question
the privileges of the House of Commons, on a commitment for an
offence which they have adjudged to be a contempt of those privi-
leges.” And again, “We cannot inquire into the form of the com-
mitment, even supposing it to be open to objection on the ground of
informality."
1
1 Wils. 200.
2 19 Howell, St. Tr. 1137. 3 Wils.
188. 203.
3 8 Durnf. & East, 314.
4 2 Chit. Rep. 207. 3 Barn. &
Ald. 420.
86
CAUSES OF COMMITMENT
Sheriff of
Middlesex.
In 1840 occurred the case of the Sheriff of Middlesex, who
had been committed for executing a judgment of the Court
of Queen's Bench against the printers of the House of Com-
mons. 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:-
“Whereas the House of Commons have this day resolved that
W. Evans, esq. and J. Wheelton, esq., Sheriff 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 attending this
house ; these are therefore to require you to take into your custody
the bodies of the said W. Evans and J. Wheelton, 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. III. 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 the
contempt arose; and that the warrant did not show a suffi-
cient 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.
On the 7th April 1851, the serjeant acquainted the house
that he had received W. Lines into his custody, by virtue
of a warrant from the chairman of the St. Albans Election
Committee; and that he had since been served with a writ
of habeas corpus. He was directed to make a return to the
writ, that he held the body of W. Lines by virtue of a
warrant under the hand of the chairman of the election com-
mittee, and to annex the warrant to the return. In the
meantime, however, Lines had given his evidence satisfac-
Case of
W. Lines.
3 106 Com. J. 147, 148.
1 95 Com. J. 25.
2 11 Adol, & Ellis, 273.
.
VEED NOT BE STATED.
87
1
claims the
same power
as the courts.
torily, and had been discharged out of custody before the
return was made to the writ; and this fact was accordingly
stated in the return.
From these cases it may now be considered as established, Parliament
beyond all question, that the causes of commitment 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.” Nor, indeed, could any other
rule be adopted consistently with the independence of either
house of Parliament. It has been seen that no greater power
is claimed by Parliament than is readily conceded by the
courts to one another, of which a comparatively recent
example may be given. On the 18th November 1845,
Mr. William Cobbett was brought before the Court of
Common Pleas by the keeper of the Queen's Prison, in
obedience to a writ of habeas corpus. It appeared that the
prisoner was detained under a writ of attachment which had
been issued against him by the Court of Chancery, for a
contempt of that court, in not having paid certain costs.
Upon which the court said, that “ if Mr. Cobbett had any
complaint to make against the legality of the detainer (and
the court were far from saying that he might not have a just
ground for such a complaint), he ought to apply to the Court
of Chancery. This court had no right and no power to
interfere with the proceedings of a court of co-ordinate
jurisdiction, and therefore Mr. Cobbett must be remanded to
his former custody."?
One qualification of this doctrine, however, must not be Commitment
omitted. When it appears, upon the return of the writ, beyond the
simply that the party has been committed for a contempt and jurisdiction
breach of privilege, it has been universally admitted that it is
incompetent for the courts to inquire further into the nature
of the contempt: but if the causes of commitment were
of the house.
1 The return to the writ is entered,
106 Com, J. 153.
2 See also In re W. Dimes, 17
January 1850, 14 Jurist, 198.
88
PERSONS SENT FOR IN ('USTODY.
stated on the warrant, and appeared to be beyond the juris-
diction of the house, it is probable that their sufficiency
would be examined. Lord Ellenborough, 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 that 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 appearing on
the return, which could by no reasonable intendment be considered
as a contempt of the court committing, but a ground of commitment
palpably and evidently arbitrary, unjust and contrary to every prin-
ciple 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 whatever 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. The
same principle may be collected from the judgment of the
Exchequer Chamber in Gosset v. Howard, where it is said,
“It is presumed, with respect to such writs as are actually
issued by superior courts, that they are duly issued, and in a
case in which they have jurisdiction, unless the contrary appear
on the face of them."
Not necessary
But it is not necessary that any cause of commitment
to express any
cause of com-
should
appear upon the warrant, nor that the prisoner should
mitment.
have been adjudged guilty of contempt. It has been a very
Persons sent ancient practice in both houses to send for persons in custody
for in custody. to answer charges of contempt ;2 and in the Lords, to order
them to be attached and brought before the house to answer
14 East, 1.
June 1675); 17 Ib. 493 (12th March
2 2 Lords' J. 201 (26th November 1713); 21 Ib. 705 (30th March 1731);
1597); Ib. 256 (17th Dec. 1601); Ib. 23 Ib. 146. 451, 452 (1738-9); 35 Ib.
296 ; and for several other cases, see 323 (27th April 1775); 80 Ib. 445
Calendar to Lords' Journ. (1509– (20th May 1825); 82 Ib. 561 (14th
1642), p. 117 et seq., and 257 et seq. June 1827); 95 Ib. 30. 56. 59 (4th
11 Lords' J. 252, &c. 1 Com. J. Feb. 1840). Mr. Grissell, 2nd March
175. 680 (9th March 1623); 1 Ib. 886 1880; 135 Com. J. 70.
(22nd April 1628) ; 9 Ib. 351 (2nd
1
ARRESTS WITHOUT WARRANT.
89
complaints of breaches of privilege, contempts and other
offences. This practice is analogous to writs of attachment
upon mesne process in the superior courts, and is unques-
tionably legal.
In the judgment of the Court of Exchequer Chamber,
in the case of Gosset v. Howard, already alluded to, it was
stated that
- Writs of attachment from superior courts do not state the previous
steps of a charge of contempt, the rule of the court that they should
issue, or the nature of the contempt." "It appears, indeed, that if a
writ of a superior court expressed no cause at all, it would be legal, and
the defendant not bailable, according to what Lord Coke says in the
Brewers' case, 1 Roll. R. 13t. It was a mistake to assert, as was done
at the bar, that an adjudication of a contempt was a necessary part
of every committal for a contempt, and that an attachment would be
invalid without it. It is not so in the superior courts of common law,
as has been stated, nor in the Court of Chancery, as Lord Lyndhurst
has lately decided, after an inquiry into precedents.”-(Ex parte Van
Sandan, 1 Phillips' Rep. 605.)
In earlier times it was not the custom to prepare a formal Arrests with-
out warrant.
warrant for executing the orders of the House of Commons:
but the serjeant arrested persons with the mace, without
any written authority;2 and at the present day he takes
strangers into custody who intrude themselves into the
house, or otherwise misconduct themselves, in virtue of the
general orders of the house, and without any specific instruc-
tions. The Speaker has also directed the serjeant to take
offenders into custody.4
The Lords attach and commit persons by order, without Attachment
any warrant. The order of the house is signed by the by the Lords.
clerk of the Parliaments, and is the authority under which
the officers of the house and others execute their duty.
Wilful disobedience to orders, within its jurisdiction, is Breaches of
privilege
defined.
See precedents collected in App. 2nd Rep. Printed Papers, 1845, p. vi.
to 2nd Rep. on Printed Papers, 1845 3 29 Com. J. 23; 74 Ib. 537; 85
(397), p. 104.
Ib. 461; 86 Ib. 323; 88 Ib. 246;
2 Bainbrigge's case, 29th February
1575. 1 Com. J. 109. 1 Hatsell, 92. 4 79 Ib. 483.
102 Ib. 99.
90
BREACHES OF PRIVILEGE.
a contempt of any court, and disobedience to the orders and
rules of Parliament, in the exercise 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
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. Disobedience
to general orders or rules of either house; 2. Disobedience
to particular orders; 3. Indignities offered to the character
or proceedings of Parliament; 4. Assaults or insults upon
members, or reflections upon their character and conduct
in Parliament; or interference with officers of the house in
discharge of their duty.
1. Disobedience to any of the orders or rules which are
made for the convenience or efficiency 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 chapterl upon the jurisdiction of the
courts in matters of privilege.
As examples of general orders, the violation of which will
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 especially
false and perverted reports of them; and no doubt can exist
Disobedience
of general
orders and
rules.
Publication
of debates.
1 Chapter VI.
PUBLICATION OF DEBATES.
91
that if either house desire to withhold their proceedings from
the public, it is within the strictest limits of their jurisdiction
to do so, and to punish any violation of their orders. The
Lords have a Standing Order of the 27th February 1698, by Lords.
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 pro-
ceedings of the house without the leave of this house."
In 1801, Allan Macleod, a prisoner in Newgate, convicted Cases.
for a misdemeanor, was fined 1001., and committed to New-
gate 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 para-
graphs, was fined 6s. 8d., 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. In the same year, H. Brown
and T. Glassington were committed to the custody of the
black rod, for printing and publishing, in the Morning Herald,
some paragraphs purporting to be an account of what passed
in debate, but which the house declared to be a scandalous
misrepresentation."
On the 13th July 1641, it was ordered by the Commons, Commons.
" That no member shall either give a copy or publish in
print anything that he shall speak here, without leave of the
house." And on the 22nd, “That all the members of the
house are enjoined to deliver out no copy or notes of anything
that is brought into the house, propounded or agitated in the
house."
977
1 Lords' Journ. 27 Feb. 1698.
2 43 Lords' J. 105.
6 2 Com. J. 209. This proceeding
arose out of the printing of a speech
of Lord Digby.
ī Ib. 220.
3 Ib.
4. Ib. 115. 225. 230.
5 Ib. 60.
92
PUBLICATION OF DEBATES.
On the 28th March 1642, it was resolved,
" That what person soever shall print (or) sell any act or passages
of this house, under the name of a diurnal or otherwise, without the
particular license of this house, shall be reputed a high contemner
and breaker of the privilege of Parliament, and so punished accord-
>1
ingly."
The Commons have also ordered at different times,
" 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 do presume to insert in any such papers, any
debates or any other proceedings of this house, or of any committee
thereof."3
“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 debates or other proceedings.
That, upon discovery of the authors, printers or publishers of any such
newspaper, this house will proceed 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,
however, have long since fallen into disuse; debates are daily
cited in Parliament from printed reports-galleries have been
constructed for the accommodation of reporters--committees
have been appointed to provide increased facilities for report-
ing, and complaints have been repeatedly made, in both
houses, that the reports of debates have sometimes not been
sufficiently full. But when any wilful misrepresentation of
the debate arises; or when on any particular occasion it may
be necessary to enforce the restriction, the house will censure
or otherwise punish the offender, whether he be a member
of the house or a stranger admitted to its debates. But
as orders prohibiting the publication of debates are still
1 2 Com. J. 501.
2 Orders, 22nd Dec. 1694. 11th
Feb. 1695. 18th Jan. 1697. 3rd Jan.
1703. 23rd Jan, 1722. 11 Com. J.
193; Ib. 439; 12 Ib. 48; 14 Ib. 270;
20 Ib. 99.
3 20 Com. J. 99.
4 26 Feb. 1728; 21 Com. J. 238.
5 13th April 1738. 10th April 1753.
3rd March 1752. 23 Com. J. 148.
26 Ib. 754; 29 Ib. 207.
6 67 Com. J. 432. 74 Ib. 537.
88 Ib. 606. See also Chap. VII.
PUBLICATION OF DEBATES.
93
retained upon the Journals, the formal proceedings of the
house, in case of any misrepresentation of its debates, are
somewhat anomalous. The ground of complaint is, that a Newspaper
speech has been incorrectly reported; but the motion for the reports made
punishment of the printer assumes that the publication of
the debate at all is a breach of privilege.' The principle,
however, by which both houses are governed is now suffi-
ciently acknowledged. So long as the debates are correctly
and faithfully reported, the privilege which prohibits their
publication is waived; but when they are reported malâ fide,
the publishers of newspapers are liable to censure. The late
Lord Campbell endeavoured, by legislation, to protect reports
of parliamentary proceedings, when published bonâ fide, from
the law of libel ;3 and the same object was pursued by Sir
Colman O’Loghlen. In the meantime, Lord Chief Justice
Cockburn held that the proprietor of a newspaper is not
liable to an action for libel for the publication of a fair and
faithful report of a debate in Parliament." And by the Newspaper
44 & 45 Vict. c. 60, fair and accurate newspaper reports of
reports of
meetings
the proceedings of public meetings, published without malice privileged.
and for the public benefit, are privileged.
It is declared to be a breach of privilege for a member, Evidence be-
or any other person, to publish the evidence taken before
a
fore com-
mittees.
1 See Debate on Mr. Christie's
Motion, 12th Feb. 1844; 72 Hans.
Deb., 3rd Series, 580. Debate, 1st
May 1849; 104 Hans. Deb., 3rd
Series, 1054.
2 On the 4th May 1875, a resolu-
tion was proposed by Lord Harting-
ton, “That this House will not en-
tertain any complaint, in respect of
the publication of the Debates or
Proceedings of the House, or of any
Committee thereof, except when any
such Debates or Proceedings shall
have been conducted with closed
doors, or when such publication shall
have been expressly prohibited by
the House, or by any Committee, or
in case of wilful misrepresentation,
or other offence in relation to such
publication:" but the House de-
clined to accept it. 224 Hans. Deb.,
3rd Ser. 48. For proceedings rela-
tive to the taking of notes in the
side gallery, by an officer of the
House, in July 1879, see 248 Hans.
Deb., 3rd Ser. 47. 163. 228.
3 See Report of Lords' Committee,
on the Privilege of Reports, 1857;
149 Hans. Deb. 947; 13th April
1858.
Libel bills, 1867, 1867-8, 1869.
5 Wason 2. Walter, 21st Dec. 1867.
94
DISOBEDIENCE TO ORDERS.
select committee, until it has been reported to the house ;)
and the publisher of a newspaper has been committed for
this offence? by the House of Commons. On the 13th April
1875, complaint was made of the publication in two news-
papers of the proceedings and evidence taken before the Select
Committee on Foreign Loans. The publication was declared
a breach of privilege; and the printers were ordered to
attend; but as it appeared in debate that the publication had
not been unauthorized by the committee, they were directed
to report the circumstances under which the documents had
been communicated to the newspapers. A special report was
accordingly made, and no further proceedings were taken.3
There are various other orders and rules connected with
parliamentary proceedings; for example, to prevent the
forgery of signatures to a petition ;4 for the protection of
witnesses ;5 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 different 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 the
to particular attendance of persons before the house or committees ;8 the
production of papers or records ;' for enforcing answers to
questions put by the house, or by committees; 10 and, in short,
for compelling persons to do, or not to do, any acts over
which the jurisdiction of the house extends. If orders be
1 92 Com. J. 282.
2 87 Ib. 360. See also Report on
Postal Communication with France,
1850 (351).
3 130 Com. 141. 148; 223 Hans.
Deb., 3rd Series, 789.
34 Com, J. 800.
5 22 Ib. 146.
6 A witness committed for preva-
rication, 64 Ib. 54.
7 4 Lords' J. 705 ; 37 Ib. 613 ; 38
Ib. 338. 649. Lords' J. 12th April
1850 (Mr. Nash); 13th August 1850
(Liverpool Corporation Waterworks).
8 21 Com. J. 338.
9 Col. Fairman (Orange Lodges),
90 Com. J. 564. 575; 19th April
1849; 134 Hans. Deb., 3rd Series,
452.
10 88 Com. J. 218; 90 Ib. 504.
.
LIBELS UPON THE HOUSE.
95
the house.
made beyond its jurisdiction, the house, as already shown, may
punish the parties who refuse compliance with, or obstruct
the execution of them ;' but the enforcement of them may
become a matter liable to question before the courts of law.
3. Indignities offered to the character or proceedings of Libels upon
Parliament, by libellous reflections, have frequently been re-
sented and punished as breaches of privilege. Some of the
offenders have escaped with a reprimand, or admonition ;?
others have been committed to the custody of the black rod,
or the serjeant-at-arms; while many have been confined in
the Tower and in Newgate; and in the Lords, fine, imprison-
ment, and the pillory have been adjudged. Prosecutions at
law have also been ordered against the parties. The cases
are so numerous, that only a few of the most remarkable
need be given.
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 offeuces have been committed against the honour and
dignity of the house in general, or any member thereof, the house
have proceeded, both by way of fine and corporal punishment, upon
such offenders; but in other cases the Attorney-General has been
ordered to prosecute the offenders according to law; and the committee,
on perusal of the several orders directing prosecutions by the Attorney-
General, do not find that, at any time, addresses have been made to
the king for such prosecutions.":
But for other offences, not directly concerning the house, Prosecutions
by Attorney-
the House of Lords has repeatedly addressed the Crown to General.
direct the Attorney-General to prosecute, and the practice
of the House of Commons is substantially the same. In
some cases, it orders the Attorney-General to prosecute, of
com-
i See 4 Lords' J. 247, where Har-
wood and Drinkwater were
mitted to the Fleet, and pilloried,
for disobedience to an order for
quieting the possessions of Lord
Lindsey; and 6 Ib. 493.
2 72 Com. J. 245; 77 Ib. 432, &c.
3 34 Lords' J. 330. 11 Com. J.
774; 23 Ib. 546 ; 26 Ib. 9. 304 ; 34
Ib. 464; 44 Ib. 463.
4 20 Lords' J. 362.
6 16 Ib. 286; 17 Ib. 114; 21 Ib.
344; 30 Ib. 420; 36 Ib. 143; 52 Ib.
881.
96
LIBELS LPOX THE IIOLSE.
Commitment
and fines.
its own authority, and in other cases addresses the Crown
to direct such prosecutions. The principle of this distinc-
tion, though not invariably observed, appears to have been,
that in offences against the house, or connected with elec-
tions, the Attorney-General has been directed to prosecute;?
but in offences of a more general character against the public
law of the country, addresses have been presented to the
Crown.3
Very severe punishments were formerly awarded by the
Lords in cases of libel, as fine, imprisonment, and pillory ; 4
but in modern times commitment, with or without fine, has
been the ordinary punishment." On the 15th December
1756, George King was fined 501., and committed to New-
gate for six months, for publishing “a spurious and forged
printed paper, dispensed and publicly sold as his Majesty's
speech to both houses of parliament.” 6 In 1798, Messrs.
Lambert and Perry were fined 501. each, and committed to
Newgate for three months, for a newspaper paragraph highly
reflecting on the honour of the house.?
In the Commons, William Thrower was committed to the
the Commons.
custody of the serjeant, in 1559, for a contempt in words
against the dignity of the house. In 1580, Mr. Arthur
Hall, a member, was imprisoned, fined, and expelled, for
having printed and published a libel containing “matter
of infamy of sundry 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." 10 In 1628, Henry
Aleyn was committed to the custody of the serjeant for
a libel on the last Parliament.11 In 1643, the Archdeacon
Precedents in
8
1 1 Hatsell, 128, 12.
2 96 Com. J. 394. 413; 109 Ib.
159 ; 112 Ib. 355.
3 From 1711 to 1852 there were
20 addresses, two only being election
cases; and 17 orders to prosecute,
all being libel or election cases except
one, which was for a riot.
4 4 Lords' J. 615; 5 Ib. 241. 244;
20 Ib. 363; 22 Ib. 353, 354.
6 22 Ib. 351. 367. 380.
6 29 Ib. 16; 15 Parl. Hist. 779.
7 41 Ib. 506.
8 1 Com. J. 60.
9 See infra, p. 113.
10 i Com.J. 126. D'Ewes, 291-298.
il 1 Com. J. 925.
+
LIBELS UPON THE HOUSE.
97
1
of Bath was committed for abusing the last Parliament.
In 1701, Thomas Colepepper was committed for reflections
upon
the last House of Commons; and the Attorney-General
was directed to prosecute 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
of Commons, or any member thereof, for or relating to his
service therein, is a high violation of the rights and privileges
of the House of Commons. In 1805, Peter Stuart was
committed for printing, in his paper, libellous reflections on
the character and conduct of the house. In 1810, Sir F.
Burdett, a member, was sent to the Tower for publishing “ a
libellous and scandalous paper reflecting upon the just rights
and privileges of the house." In 1819, Mr. Hobhouse,
having acknowledged himself the author of a pamphlet,
was committed to Newgate. The house had previously de-
clared his pamphlet to be “a scandalous libel, containing
matter calculated to inflame the people into acts of violence
against the legislature, and against this house in particular;
and that it is a high contempt of the privileges and of the
constitutional authority of this house.” On the 26th
February 1838, complaint was made of certain espressions
in a speech of Mr. O'Connell, a member, at a public meeting,
as containing a charge of foul perjury against members of
the house, in the discharge of their judicial duties in election
committees. Mr. O'Connell was heard in his place, and
avowed that he had used the expressions complained of.
He was declared guilty of a breach of privilege, and, by
order of the house, was reprimanded in his place by the
Speaker."
The power of the house to commit the authors of libels was
1 2 Com. J. 63.
2 13 Ib. 735.
3 13 Ib. 767.
4 60 b. 113.
6 65 Ib. 252.
875 Ib. 57. Many other cases
are cited in the Appendix to the
Second Report on Sir F. Burdett, in
1810.
? 93 Com. J. 307, 312, 316; 41
Hans. Deb. 3rd Ser. 99. 207.
P.
H
98
LIBELS UPON MEMBERS.
questioned before the Court of King's Bench, in 1811, by
Sir F. Burdett, but was admitted by all the judges of that
court, without a single expression of doubt. I
On the 21st May 1790, a general resolution was passed by
the Commons:
“ That it is against the law and usage of Parliament, and a high
breach of the privilege of this house, to write or publish, or cause to be
written or published, any scandalous and libellous reflection on the
honour and justice of this house, in any of the impeachments or prose-
cutions in which it is engaged.”
Assaults, in-
sults, or libels
upon mem-
bers.
Lords.
4. Interference with or reflections upon members, have
often been resented as indignities to the house itself.
In the Lords, this offence has been visited with peculiar
severity, of which numerous instances are to be found in the
earlier volumes of their Journals. Of these only a few of
the most remarkable need be particularly mentioned.
On the 22nd March 1623, Thomas Morley was fined
1,0001., sent to the pillory, and imprisoned in the Fleet, for
a libel on the lord keeper. On the 9th July 1663, Alex-
ander Fitton was fined 5001., and committed 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
imprisoned in the Fleet, and ordered to give security for
their good behaviour during life. On the 18th December
1667, William Carr, for dispersing scandalous and seditious
printed papers against the same nobleman, was fined 1,0001.,
sentenced to stand thrice in the pillory, to be imprisoned in
the Fleet, and the papers to be burned by the hand of the
hangman. On the 8th March 1688, W. Downing was com-
mitted to the Gatehouse, and fined 1001. for printing a paper
reflecting on the Lord Grey of Wark.
i Burdett v. Abbot, 14 East, 1.
2 45 Com, J. 508.
3 3 Lords' J. 842.851 ; 4 Ib. 131 ;
5 Ib. 24.
4 3 Ib. 276.
5 11 Ib. 554.
6 12 Ib. 174.
7 14 Ib, 144,
BREACHES OF PRIVILEGE.
99
In later times, parties have been attached for libels on
peers, as in 1722, for printing libels concerning Lord
Strafford, and Lord Kinnoul ;2 and fined and committed,
as in the case of Flower, in 1799, for a libel on the Bishop of
Llandaff.3 In 1776, Richard Cooksey was attached for send-
ing 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."4 In 1834, Thomas
Bittleston, editor of the Morning Post, was committed to the
custody of the usher of the black rod for a paragraph in that
newspaper reflecting upon the conduct of Lord Chancellor
Brougham, in the discharge of his judicial duties in the
House of Lords.5
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 this Assaulting,
house, in his coming to or going from the house, or upon the account obstructing,
of his behaviour in Parliament, is an high infringement of the pri- members.
or threatening
vilege of this house, a most outrageous and dangerous violation of the
rights of Parliament, and an high crime and misdemeanor.
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."7
And in numerous instances, as well before as after these
resolutions, persons assaulting, challenging, threatening, or
otherwise molesting members on account of their conduct in
Parliament, have been committed or otherwise punished by
the house.
On the 22nd June 1781, complaint was made that Sir J.
1 22 Lords' J. 129.
2 Ib. 149.
3 42 Ib. 181.
4 39 Ib. 314. 331.
6 66 Ib. 704.737. 743. 764 ; Hans.
Deb. 27th, 28th, and 30th June 1834.
6 22 Com. J. 115:
9 37 Ib. 902.
8 15 Ib. 405; 16 Ib. 562, &c.
Il 2
100
LIBELS UPON MEMBERS.
Wrottesley had received a challenge for his conduct as a
member of the Worcester election committee; and Swift, the
person complained of, was committed to the custody of the
serjeant-at-arms. On the 13th April 1809, Sir Charles
Hamilton complained that he had been arrested and other-
wise 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 in-
formation that a member had been assaulted in the lobby,
ordered the serjeant-at-arms to take the person into custody;
and doubts being entertained of his sanity, he was ordered to
stand committed to the custody of the serjeant.s
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 acknow-
ledged that the letters were written by him, and was declared
guilty of a breach of privilege : but was suffered to escape
with a reprimand from the Speaker. On the 12th June 1876,
complaint was made of a letter to a member, intimating that,
under the rules of the Reform Club, he was liable to be re-
moved for his political conduct : but no action was taken by
the house.
Libels upon members have also been constantly punished :
but to constitute a breach of privilege they must concern the
character or conduct of members in that capacity. Asper-
sions upon the conduct of members as magistrates, or officers
in the army or navy, or as counsel, or employers of labour,
or in private life, or otherwise than in relation to parliament,
are within the cognizance of the courts, and are not fit sub-
jects for complaints to the House of Commons. In 1680,
5
Libels on
members.
1 38 Com. J. 535. 537.
2 64 Ib. 210. 213.
3 79 Ib. 483.
4 32 Ib. 395. 399.
5 131 Ib. 252 ; 229 Hans. Deb. 3rd
Ser. 1670.
6 Dr. Kenealy's case, 4th March
1875; 222 Hans. Deb. 3rd Ser. 1185.
BREACHES OF PRIVILEGE.
101
A. Yarrington and R. Groome were committed for a libel
against a member. In 1689, Christopher Smelt was com-
mitted for spreading a false and scandalous report of Peter
Rich, a member.2 In 1696, 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 com-
mitted 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, H. S. Woodfall was committed for publishing a
letter reflecting on the character of the Speaker. In 1821,
the author of a paragraph in the John Bull newspaper, con-
taining a false and scandalous libel on a member, was com-
mitted to Newgate.?
On the 1st March 1824, Mr. Abercromby made a com-
plaint to the house that the Lord Chancellor in his court had
used offensive expressions with reference to what had been
said by himself in debate ;8 but on division the matter was
not allowed to proceed any further.
In 1832, Messrs. Kidson & Wright, solicitors, were ad-
monished for having addressed to the committee on the
Sunderland Dock Bill, a letter reflecting on the conduct of
members of the committee, copies of which were circulated in
printed handbills. On the 1st June 1874, Mr. France was
admonished at the bar, by the Speaker, for addressing a
letter to the chairman of the committee on explosive sub-
stances, imputing unfair conduct to him and other members
of the committee. 10
Other cases, too numerous to mention, have occurred, in
1 9 Com. J. 654. 656.
2 10 Ib. 244,
3 11 Ib. 656.
4 14 Ib. 565.
5 23 Ib. 245.
6 34 Ib. 456.
7 76 Ib. 335.
6 10 Hans. Deb. N. S. 571.
987 Com. J. 278. 294. For simi-
lar cases of libels upon committees,
see 72 Com. J. 232 (Police Commit-
tee, 1816); 93 Com. J.. 436 (Shaftes-
bury Election); 113 Com. J. 189,
&c. (Carlisle and Hawick Railways);
150 Hans. Deb. 1022. 1063. 1198, &c.
10 129 Com. J. 181. 189; 219 Hans.
Deb. 3rd Ser. 755.
102
BREACHES OF PRIVILEGE.
Misrepre-
sentation.
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 publishers.In 1844, a member having made charges at
a public meeting against two members of the house, was
ordered to attend in his place; and after he had been heard,
the house resolved that his imputations were wholly unfounded
and calumnious, and did not affect the honour and character
of the members concerned.?
On some occasions the house has also directed prosecu-
tions against persons who have published libels reflecting
upon members, in the same manner as if the publications had
affected the house collectively.3
Wilful misrepresentation of the proceedings of members is
an offence of the same character as a libel.
On the 22nd 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 Parlia-
ment, is a breach of the privilege of this house, and destructive of the
freedom of Parliament."
On the 2nd May 1695, it was resolved,
“That the offer of any money, or other advantage, to any member
of Parliament, for the promoting of any matter whatsoever, depending
or to be transacted in Parliament, is a high crime and misdemeanor,
and tends to the subversion of the English constitution.”5
And in the spirit of this resolution, the offer of a bribe,
in order to influence a member in any of the proceedings of
the house, or of a committee, has been treated as a breach of
privilege, being an insult not only to the member himself,
but to the house.
Offering
bribes to
members.
1 See the head of PRIVILEGES in
the General Journ. Ind. 1547–1713,
and COMPLAINTS in the other Journal
Indexes; and recent cases of Mr.
Aston in 1872; Mr. Plimsoll and Pall
Mall Gazette in 1873; Mr. O'Donnell
and the Globe in 1878; and Mr. Plim-
soll's placards reflecting upon Sir
Charles Russell, 17th Feb. 1880 ;
135 Com. J. 46. 54; 250 Hans. Deb.
3rd Ser. 797. 1108.
2 Mr. Ferrand's case, 24th and
26th April 1844, 99 Com. J. 235.239.
3 13 Ib. 230; 14 Ib. 37.
4 12 Ib. 661.
5 11 Ib. 331.
6 11 Ib. 274, 275; 14 Ib. 474 ; 17
Ib. 493, 494 ; 19 Ib. 542.
BREACHES OF PRIVILEGE.
103
1
On the 18th March 1694-5, Mr. Bird was reprimanded for
offering a bribe to Mr. Musgrave, a member, and gentleman
of the long robe, in the form of a guinea fee, for preparing a
petition to the house.
An offer to control the decision of the committee on a Offer to
influence a
private bill, for a corrupt consideration, has also been treated committee.
as a breach of privilege, and punished accordingly.?
So also the acceptance of a bribe by a member has ever, Acceptance
of bribes by
by the law of Parliament, been a grave offence, which has members.
been visited with the severest punishments. In 1677, Mr.
John Ashburnham was expelled for receiving 5001. from the
French merchants for business done in the house.3 In 1694,
Sir John Trevor was declared guilty of a high crime and
misdemeanor, in having, while Speaker of the house, received
à gratuity of a thousand guineas from the City of London,
after passing the Orphans Bill, and was expelled. In 1695,
Mr. Guy, secretary to the Treasury, was committed to the
Tower for taking a bribe of two hundred guineas; 5 and in
the same year Mr. Hungerford was expelled, as guilty of a
high crime and misdemeanor, in receiving twenty guineas for
his pains and service as chairman of the committee on the
Orphans Bill.
Nor has the law of Parliament been confined to the
repres-
sion of direct pecuniary corruption. To guard against in-
direct influence, it has further restrained the acceptance of
fees by its members, for professional services connected with
proceedings in Parliament. And on the 22nd June 1858,
the House of Commons resolved,
“That it is contrary to the usage, and derogatory to the dignity of
this house, that any of its members should bring forward, promote, or
advocate in this house, any proceeding or measure in which he may
6
1 5 Parl. Hist. 910.
2 Tower High Level Bridge Bill,
1879: cases of Grissell and Ward,
134 Com. J. 322. 326. 348. 366, &c.
3 9 Ib. 24.
4 11 Ib. 274; 5 Parl. Hist. 900–
910.
5 5 Parl. Hist. 886.
6 11 Com. J. 283; 5 Parl. Hist.
911.
7 See infra, Chap. XII., on Divi-
sions.
104
BREACHES OF PRIVILEGE.
have acted or been concerned, for or in consideration of any pecuniary
fee or reward."
Interference
with officers.
Tampering
with wit-
nesses,
Assaults, or interference with officers of the house, while in
the execution of their duty, have also been punished as
breaches of privilege.?
To tamper with a witness in regard to the evidence to be
given by him before the house, or any committee of the house,
is a breach of privilege. On the 9th February 1809, during
the inquiry into the conduct of the Duke of York, Mrs. Clarke
read a letter she had received from the Rev. W. Williams,
and stated that he had proposed that she should leave the
country. The inquiry being in committee of the whole house,
progress was immediately reported, the doors of the house
directed to be secured, and the Rev. W. Williams ordered to
be taken into custody. On being afterwards examined in
custody, he was closely pressed and obliged to answer all the
questions relating to his interviews with Mrs. Clarke, and his
objects in giving her advice as to her evidence. He appealed
to the chairman, whether he was bound to answer questions
to prove himself guilty of a breach of privilege. No actual
decision was given upon this appeal: but throughout his ex-
amination, questions of that character had been addressed to
him.4
On the 19th June 1857, a petition was presented, com-
plaining that Peter Johnson had offered the sum of 501. to
Abraham Rothwell, a witness, who had been served with the
Speaker's warrant to attend before the Rochdale election
committee, to, induce him to go to New Orleans for the
purpose of avoiding giving evidence before the committee.
John Newall, the petitioner, and Abraham Rothwell were
ordered to attend the house forthwith; and were examined.
i See Hans. Deb. 22nd June 1858.
On the 13th April, a similar motion
had been made, in other terms, and
withdrawn. See also proceedings
and report on the petition of Ed-
ward Coffey, 1858 ; 148 Hans. Deb.
3rd Ser. 1855, &c.
2 19 Com. J. 366. 370 ; 20 Ib. 185.
3 Sessional Order.
4 12 Hans. Deb. 461.
BREACHES OF PRIVILEGE.
105
1
Peter Johnson and John Lord were also ordered to attend
forthwith; the former absconded, and was ordered into
custody, the latter was examined; and a select committee
was appointed to continue the inquiry, which resulted, how-
ever, in no definite conclusion. Out of this case there arose,
incidentally, a question how far a person accused of a breach
of privilege is bound to answer questions tending to criminate
himself, on which considerable differences of opinion were
entertained.
When the Speaker is accompanied by the mace, he has Persons com-
mitted by the
power to order persons into custody for disrespect, or other Speaker.
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;2 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.3
In 1675, Sir Edward Seymour, the Speaker, seized Mr. Ser-
jeant Pemberton, and delivered him into the custody of a
messenger : but in that case Pemberton had already been in
custody, and had escaped from the serjeant-at-arms.4
In all these classes of offences, both houses will commit, or Inquiry into
otherwise punish, in the manner described : but not without breaches of
due inquiry into the alleged offence.
privilege.
By a Standing Order of the Lords of 11th January 1699, Lords.
it is ordered, --
" That in case of complaint by any lord of this house of a breach of
privilege, wherein any person shall be taken into custody for the
future; if the house, upon examination of the matter complained of,
shall judge the 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
1 146 Hans. Deb, 3rd Ser. 97. In
1857, the Congress of the United
States passed a bill making it a mis-
demeanor to refuse to answer ques-
tions put in either House of Legis-
lature.
2 2 Hatsell, 241, n.
3 D'Ewes, 629.
4 9 Com. J. 351. 353.
Ib. 157. 210. 972.
See also 1
106
BREACHES OF PRIVILEGE.
complaint of a breach of privilege, but upon oath made at the bar of
this house." I
This order was explained, on the 3rd June 1720, " to be understood
only of breaches of privilege committed in Great Britain : but that
oath made by affidavit, in writing, 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."2
Commons
Before the year 1845, it had been customary for the House
of Lords, when inquiring into any alleged breach of privilege,
to conduct such inquiries with closed doors :3 but, in later
cases, strangers have not been ordered to withdraw.
In the Commons it was resolved, 31st January 1694,
" That no person shall be taken into custody, upon 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 the said
order is not to extend to any breach of privilege upon the person of
any member of this house." 4
Committee of
privileges.
Again, on the 3rd 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 committee of privileges,
and reported to the house, and that the same be a Standing Order of
the house." 5
It is no longer the practice to refer such matters to the
Committee of Privileges, although that committee is still
nominally appointed. Its appointment, at the commence-
ment of each session, was discontinued in 1833, together with
that of the ancient grand committees : but has since been
revived, pro formâ. It has not been customary, however, to
nominate the committee : but in 1847, a complaint having
been made of the interference of a peer in the West
Gloucester election, the order for the appointment of the
Committee of Privileges was read, and the committee was
1 Lords' S. O. No. 70.
2 Ib. No. 71.
3 Lord Hawarden's case, 31 Jan.
1828 ; 59 Hans. Deb. 69. The um-
brella case, 26 March 1827; 58 Hans.
Deb. 35.
4 11 Com. J. 219.
5 13 Ib. 648.
BREACHES OF PRIVILEGE.
107
upon com-
nominated, consisting of nine members, and of all knights of
the shire, gentlemen of the long robe, and merchants in the
house.1 In 1857, a committee, constituted in a similar
manner, was appointed to consider the oaths of members,
and consisted of twenty-five members, nominated by the
house, and all gentlemen of the long robe.?
It is the present practice, when a complaint is made, to Proceedings
order the person complained of to attend the house ;3 and on plaints.
his appearance at the bar, he is examined and dealt with, ,
according as the explanations of his conduct 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.
When a complaint is made of a newspaper, the newspaper Complaints of
itself must be produced, in order that the paragraphs complained
of may be read. And a member complaining of the report
of his speech in a newspaper, has been stopped by the Speaker,
where it appeared that he had no copy of the newspaper on
which to found his complaint. On the 23rd February 1880,
a complaint having been made of articles in several news-
papers, Mr. Speaker said that if he called upon the clerk to
read all those articles he should be trifling with the house,
and he should therefore take leave to depart from the ordinary
newspapers.
1 103 Com. J. 139.
2 112 Ib. 369. This term is un-
derstood to comprise all members
who, at the time, would be qualified
to practise as counsel, according to
the rules and usage of the profession,
whether actually practising or not.
3 112 Ib. 231; 113 Ib. 189, &c.
4 Rochdale Election Case, 19th
June 1857. 112 Com. J. 232. 146
Hans. Deb. 3rd Ser. 97, &c. Tower
High Level Bridge Bill, 1879, cases
of Grissell and Ward, 134 Com. J.
326.
5 113 Com. J. 189, 150 Hans. Deb.
3rd Ser. 1022. 1063.
6 On the 4th April 1878, Mr. Par-
nell, having complained of three
newspapers, brought up certain ex-
tracts pasted upon paper, and upon
the clerk calling Mr. Speaker's at-
tention to the irregularity, further
proceedings were at once arrested.
239 Hans. Deb. 532-536.
108
BREACHES OF PRIVILEGE.
4
Frivolous
complaints.
A
course. The member who makes the complaint must also
be prepared with the names of the printer or publisher ;2 and
it is irregular to make such a complaint, unless the member
intends to follow it up with a motion. But such a motion
has been confined to declaring the article, or letter, to be a
breach of privilege, without further action.
In order to discourage frivolous complaints, a Standing
Order, similar to that of the Lords, was agreed to, on the
11th February 1768:
“That in case of any complaint of a breach of privilego hereafter
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 satis-
faction to the person complained of, for his costs and expenses incurred
by reason of such complaint."5
This order may be regarded as obsolete; nor is its operation
needed, as the house will refuse to entertain any complaint
which appears to be frivolous.
In some cases proceedings against a member have been
commenced by a question addressed to him upon the subject;
and where an apology or retractation is expected, a more
forinal proceeding may thus be averted. But generally the
more regular and convenient course is to make a complaint,
and to found a motion upon it. The matter may then be
regularly discussed by the house. On the 4th March 1875,
Dr. Kenealy having addressed a question to Mr. Evelyn
Ashley, and received an answer, proceeded to give notice to
bring the matter forward on the following day. But Mr.
Lowe rose to discuss it at once, in moving an adjournment.
Upon that question a debate ensued, and, on the withdrawal
of the motion, the house resolved to proceed to the orders of
the day, and thus arrested further proceedings."
1 135 Com. J. 57. 250 Hans. Deb. 6 31 Ib. 602.
3rd Ser. 1221.
Mr. O'Connell's case, 1848. Mr.
2 Debate 1st May 1849 (Mr. J. Sullivan and Mr. Lopes, 12th Feb-
O'Connell).
ruary 1875; 222 Hans. Deb. 3rd
3.59 Hans. Deb. 3rd Ser. 507, 17th Ser. 269. Mr. Yorke and Mr. Her-
March 1859 (Mr. Stuart Wortley). bert Gladstone, 16th March 1883.
4 136 Com. J. 272.
7 222 Hans. Deb. 3rd Ser. 1185.
PUNISHMENTS BY LORDS AND COMMONS.
109
On the 17th February 1880, a complaint was made of the
publication of printed placards throughout the city of West-
minster, reflecting upon the conduct of Sir Charles Russell,
member for that city, and signed by Mr. Plimsoll, a member.
On the 20th February Mr. Plimsoll, having withdrawn the
expressions complained of, and apologised for having used :
them, the house condemned the conduct of the hon. member
as a breach of privilege, but having regard to his withdrawal
of the expressions complained of, resolved that no further
action was necessary.
Either house will punish in one session offences that have Offences in
former ses-
been committed in another. On the 4th and 14th April sion.
1707, it was resolved by the Commons, nem. 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 beginning of the
next session of Parliament, and that this be declared to be a Standing
Order of the house."3
1
In 1751, Mr. Murray, who had been imprisoned in New-
gate until the close of the session for a libel, was, on the
next meeting of Parliament, again ordered to be committed :
but he had absconded, in the meantime, to escape a second
imprisonment. In 1879, Charles Edward Grissell, having
neglected to attend the house to answer for a breach of privi-
lege, was ordered into the custody of the serjeant-at-arms;
but evaded the execution of the Speaker's warrant, by going
abroad, until two days before the close of the session, when
he was committed to Newgate. On the 2nd March 1880, a
petition submitting himself to the house was presented, when
he was ordered to be sent for in the custody of the serjeant-
at-arms. Being taken into custody on the same day, he was
ordered to stand committed to the custody of the serjeant,
and to be brought in custody to the bar on the following day;
4 26 Ib. 303.
5 134 Ib. 366. 432. 435. And see
1 135 Com. J. 46. 54.
2 21 Lords' J. 189. 17 Com. J.
293 ; 20 Ib. 549; 22 Ib. 210.
3 15 Ib. 376. 386.
supra, p. 103.
110
PUNISHMENTS BY
Differences
Commons.
when, having failed to satisfy the house by his apologies, it
was ordered that “having evaded punishment for his offences,
until the close of the last session, he be committed to the gaol
of Newgate."1
It also appears, that a breach of privilege committed
against one Parliament may be punished by another; and
libels against former Parliaments have often been punished.2
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.”3
In all the cases that have been noticed as breaches of
in the punish-
ment inflicted privilege, both houses have agreed in their adjudication :
by the Lords
and by the
but in 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 secu-
rity to be given for good conduct; and their customary form
of commitment is by attachment. The Commons, on the
other hand, commit for no specified period, and of late years,
have not imposed fines.
There can be no question 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, instances too numerous
to mention have occurred, in which the Lords have sentenced
Fines imposed parties to pay fines. Many have already been noticed in
by the Lords. 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. The following Standing Order,
now obsolete, was made by the Lords, on the 3rd April 1624:
" Whereas this high court of the Upper House of Parliament do
often find cause in their judicature to impose fines, amongst other
1 135 Com, J. 70. 73. 77.
2 1 Ib. 925; 2 Ib. 63; 13 Ib. 735.
3 1 Hatsell, 184.
4 Lords' Minutes, 22nd July and
13th Aug. 1850.
5 Flower's case, 1779. 8 Durnf.
& East, 314.
6 3 Lords' J. 276; 11 Ib. 554 ; 12
Ib.. 174; 14 Ib. 144; 30 Ib. 493
(Report of Precedents); 42 Ib. 181 ;
43 Ib. 60. 105.
7 11 Ib. 551 ; 39 Ib. 331.
LORDS AND COMMONS.
111
punishments, upon 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 Parliament, do
acquaint the lords with all the fines that have been laid that session,
that thereupon their lordships may use that power which they justly
have, to take off or mitigate such fines, either wholly or in part,
according to the measure of penitence or ability in the offenders, or
suffer all to stand, as in equity their lordships shall think fit.” 1
.2
term,
The Lords have power to commit offenders to prison for Commitment
for a specified
a specified term, even beyond the duration of the session ;
and thus on the 13th August 1850, being within two days of
the prorogation, certain prisoners were committed for a fort-
night. If no time were mentioned, and the commitment
were general, it has been said that the prisoners could not
be discharged on habeas corpus even after a prorogation :*
but 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. The latter
opinion derives confirmation from the following precedent.
On the 14th January 1744, the serjeant-at-arms acquainted
the house that he had kept a prisoner in his custody, "until
he was discharged of course by the prorogation of Parliament,
without his having made his submission;" whereupon the
offender was ordered to be re-attached.6
Whether the House of Commons be, in law, a court of Whether
record, it would be difficult to determine; for this claim, Commons be
once firmly maintained, has latterly been virtually abandoned, a court of
although never distinctly renounced. In Fitzherbert's case,
in 1592, the house resolved, “That this house being a court
House of
Stockdale v. Hansard, 1839 (283),
p. 147.
1 Lords' Journ. 3rd April 1624.
2 43 Lords' J. 105.
3 Lords' Minutes, 13th August
1850.
4 Lord Denman's Judgment in
5 Howell, St. Tr. 1296. 1 Mod.
Rep. 144.
6 26 Lords' J, 420,
112
PUNISHMENTS BY
2
of record, would 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 1604, the apology of the Commons contains these
words: “ We arouch also that our house is a court of record,
and ever so esteemed.” On the other hand, in Jones v.
Randall,4 Lord Mansfield said the House of Commons was
not a court of record.
It may be argued that if the Commons, as a branch of
the High Court of Parliament, 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 judicature for their
privileges, and for the determination of all claims of peerage;
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 deliberations they are both legislative, but
when their privileges 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
1 D'Ewes, 502.
2 1 Com. J. 604.
3 1 Hatsell, 233.
4 1 Cowp. 17.
LORDS AND COMMONS.
113
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.
Acting as a court of record, the Commons formerly imposed Fines imposed
by the Com-
fines and imprisoned offenders for a time certain. In 1575, mons.
Smalley, a member's servant, who had fraudulently procured
himself to be arrested, in order to be discharged of a debt
and execution, was committed to the Tower, for a month, and
until he should pay to W. Hewett the sum of 1001.2 Again,
in 1580, Mr. Arthur 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 so much
longer as until himself should rillingly make retractation of the
said book, 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.3
There are also several other cases in the earlier Journals, in
which offenders were committed by the house for a time
certain ;4 and in which prisoners have been admitted to bail.
In 1586, Bland, a currier, was fined 201. for having used
contumacious expressions against the House of Commons.
In Floyde's case, in 1621, the Commons clearly exceeded Floyde's case.
their jurisdiction. That person had spoken offensive words
concerning the daughter of James I., 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 took cognizance of the offence, and sen-
tenced Floyde to pay a fine of 1,0001., to stand twice in the
pillory, and to ride backwards 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
6
+
See also Chapters VII. and XV.
2 1 Com. J. 112, 113.
3 1 Ib. 125, 126.
4 1 Ib. 269. 333. 639. 656; 7 Ib.
631. 591; 9 Ib. 543. 637, 737.
6 1 Ib. 621; 2 Ib. 806 ; 9 Ib. 96.
216; 10 Ib. 84 ; 12 Ib. 255, 256;
13 Ib. 318, &c.
6 D’Ewes, J. 366.
71 Com. J. 609. i Hans. Parl.
Hist. 1250.
P.
I
114
PUNISHMENTS BY
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 rights by an ambiguous protestation that their
proceedings 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 privi-
leges of both houses should remain in the selfsame state and
plight as before.” 1 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 be taken
in any court or cause; that he should ride twice to the pillory
with his face to the horse's tail, holding the tail in his hand;
that he should be branded with the letter Kon his forehead,
be whipped at the cart's tail, be fined 5,0001. to the King,
and be imprisoned in Newgate for life.?
The last case of a fine by the Commons occurred in 1666,
when a fine of 1,0001. was imposed upon Thomas White, who
had absconded after he had been ordered into the custody of
the serjeant-at-arms.3
Present modes The modern practice of the Commons is to commit
of punish-
persons
ment. to the custody of the serjeant-at-arms, to Newgate, or to the
Tower, during the pleasure of the house ; and to keep of-
fenders there until they present petitions praying for their
release, and expressing contrition for their offences;4 or until,
upon motion made in the house, it is resolved that they shall
11 Com. J. 619.
2 3 Lords' J. 134. See also "Pro.
ceedings and Debates of the Com-
mons," 1620, 1621 (Oxford), and 1
Hans. Parl, Hist, 1259.
3 3 Com. J. 690.
4 It has been customary to order
such petitions to be printed and con-
sidered on a future day. 97 Com. J.
180. 209; 106 Ib. 151; 113 Ib. 196 ;
134 Ib. 381 ; 150 Hans. Deb. 3rd
Ser. 1198.
LORDS AND COMMONS.
115
be discharged. It is then usual for the parties to be brought
to the bar, by the serjeant with his mace, and after a repri-
mand from the Speaker, to be discharged on payment of their
fees. But occasionally their attendance at the bar,4 and the
reprimand, have been dispensed with.
It is not customary to order a person to be reprimanded Reprimand
unless he be in custody, though there are some examples of a tion.
different practice. When the offence has not been so grave
as to cause the commitment of the offender, he is generally
directed to be “admonished” only.? What is said by Mr.
Speaker, in reprimanding or admonishing persons at the bar,
is always ordered to be entered in the Journals. Where the
offence has been slight, or the apology is accepted as satis-
factory, even an admonition has been dispensed with ; and
the house has resolved to proceed no further in the matter
(such resolution being communicated to the person concerned,
by the Speaker);9 or that the person be excused or discharged
from further attendance.9
It cannot fail to be remarked that this condition of the Payment
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, 10 as, for example, on
of fees.
1 95 Com. J. 291. 337; 97 Ib. 224. 5 86 Com. J. 333; 90 Ib. 532; 95
2 On the 9th May 1604, it was Ib. 96; 101 Ib. 768.
" delivered for a rule, that no delin- 6 5 Parl. Hist. 910; 32 Com. J.
quent is to be brought in, but by the 399; 93 Ib. 316.
serjeant with his mace." 1 Com. J. 7 87 Com. J. 294; 88 Ib. 218; 97
204.
Ib. 143.
3 82 Ib. 399; 87 Ib. 365 ; 97 Ib. 8 Case of Mr. Hope, 17th July
240; 106 Ib. 289.
1822; 77 Com. J. 432; 7 Hans.
4 75 Ib. 467; 103 Ib. 263; 113 Deb. 2nd Ser. 1668.
Ib. 203; 150 Hans. Deb. 3rd Ser. 9 Case of Mr. Menzies, 17th July
1313. 1404. John Sandilands Ward, 1822. Ibid. Case of Mr. Reed, 27th
29th July 1879; 134 Com. J. 385. February 1863; 118 Com. J. 106.
Mr. Bradlaugh, 24th June 1880; 10 58 Com. J. 221; 74 Ib. 192; 80
135 Ib. 241.
Ib. 470; 83 Ib. 199; 90 Ib. 532;
106 Ib. 147 ; 108 Ib. 595, &c.
I 2
116
PUNISHMENTS BY
1
Imprison-
ment by the
Commons
concluded by
prorogation.
account of the poverty of the parties, or because the prisoner
was labouring under mental delusion; and, in one case, as
arrangements had been made for his immediate removal to a
lunatic asylum.3
No period of imprisonment is named by the Commons, and
the prisoners committed by them, if not sooner discharged by
the house, are immediately released from their confinement
on a prorogation, whether they have paid the fees or not.
If they were held longer in custody, 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 the contempt, the House of Commons can only
commit till the close of the existing session. Their privilege to com-
mit is not better known than this limitation of it. Though the party
should deserve the severest penalties, yet, his offence being committed
the day before the prorogation, if the house ordered his imprisonment
but for a week, every court in Westminster Hall, and every judge of
all the courts, would be bound to discharge him by habeas corpus.'
"75
Prisoners
Kneeling at
the bar.
It was formerly the practice to make prisoners receive the
judgment of the house, kneeling at the bar. In both houses,
however, this practice has long since been discontinued ;
although the entries in the Lords' Journals still assume that
the prisoners are " on their knees” at the bar. 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 dis-
charged 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 dis-
charge, 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.
1 74 Com. J. 192.
2 85 Ib. 465.
3 107 Ib. 301.
4 But this law never extended to
an adjournment, even when it was
in the nature of a prorogation. See
10 Com. J. 537.
5 Judgment in Stockdale v. Han-
sard, 1839 (283), p. 142.
6 77 Lords' J. 737, &c.
7 33 Com. J. 694.
LORDS AND COMMONS.
117
The discontinuance of this practice arose from the refusal
of Mr. Murray to kneel, when brought up to the bar of the
House of Commons, on the 4th of February 1750. For this
refusal he was declared "guilty of a high and most dangerous
contempt of the authority and privilege of this house;" was
committed close prisoner to Newgate, and not allowed the use
of pen, ink, and paper. It appears that there had previously
been only one other instance of such a refusal to kneel.?
1 14 Hans. Parl. Hist. 894. i Wal-
pole's Memoirs of George II., 15.
Report of Precedents; 26 Com.
J. 48. There had, however, been
similar cases before the Lords ; 3
Parl. Hist. 844. 880.
2
118
FREEDOM OF SPEECH.
CHAPTER IV.
PRIVILEGE OF FREEDOM OF SPEECH CONFIRMED BY THE ANCIENT
LAW
OF
PARLIAMENT
AND
BY
STATUTE :
ITS
NATURE
AND
LIMITS.
Necessity of
freedom of
speech.
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 Parliament,
and inherent in its constitution. Its principle was well stated
by the Commons, at a conference on the 11th of December
1667: “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 cannot disturb the state;
therefore the debate that tends to it cannot; for it must be
propounded and debated before it can be enacted.” 1
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 recognized and con-
firmed as part of the law of the land. According to Elsynge,
the “ Commons did oftentimes, under Edward III., discuss
and debate amongst themselves many things concerning the
King's prerogative, and agreed upon petitions for laws to be
made directly against his prerogative, 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."2
Confirmed by
law of Par-
liament.
1 12 Lords' J. 166.
? Elsynge, 177.
FREEDOM OF SPEECH.
119
In the 20th of Richard II., however, a case occurred in Haxey's case.
which this ancient privilege was first violated, and afterwards
signally confirmed. Haxey, a member of the Commons,
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 accession of Henry IV.,
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.1
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 Par-
liament, and in annihilation of the customs of the Com-
mons;” and prayed that the judgment might be reversed,
“ as well for the furtherance of justice as for the saving 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."
In the 33rd Henry VI., Thomas Young, a member, pre- Young's casc.
sented a petition, complaining that he had been imprisoned
“for matters by him showed in the house." The Commons
transmitted his petition to the Lords, and the King “willed
that the lords of his council do and provide for the said sup-
pliant, as in their discretion shall be thought convenient and
reasonable."4
Again, in the 4th Henry VIII. (1512), Mr. Strode, a Strode's case.
3
1 i Hen. IV.; 3 Rot. Parl. 430.
2 “Si bien en accomplissement de
droit, come pur salvation des libertés
de lez ditz communes."
3 3 Rot. Parl. 434.
4 5 Ib. 337.
120
FREEDOM OF SPEECH.
member of the House of Commons, was prosecuted in the
Stannary Court, for having proposed certain bills to regulate
the tinners in Cornwall, and was fined and imprisoned 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 which here, in this High Court
of Parliament, should and ought to be communed and treated
of,” declared the proceedings of the Stannary Court to be
void, and further enacted,
“That all suits, condemnations, executions, fines, amerciaments,
punishments, &c. 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 that of any Parliament thereafter
shall be, for any bill, speaking, reasoning, or declaring of any matter
or matters concerning the Parliament, to bo communed and treated of,
be utterly void and of none effect.”
Petition of
the Commons.
As the proceedings which 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 on account of their speeches
or votes in Parliament.
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 33rd Henry VIII.
(1541), when it was made by Thomas Moyle, Speaker.3
But although the petitions for freedom of speech had not
been previously made in that form, there is a remarkable
petition of the Commons, and answer of the King, in the
2nd Henry IV., relating to this privilege. The Commons
prayed the King not to take notice of any reports that might
1 4 Parl. Hist. 85. 1 Hatsell, 86.
2 4 Hen. VIII. C. 8.
Elsynge, 176.
3
FREEDOM OF SPEECH.
121
be made to him of their proceedings; to which the King
replied, that it was his wish that the Commons should deli-
berate 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 any
credit, before such matters were brought before the King
by the advice and assent of all the Commons, according to
the purport of their petition.
The independent right of free discussion in Parliament
was further confirmed by the same King, in the ninth year
of his reign, who, in a disagreement between the houses
concerning the grant of subsidies, declared, by the advice
and consent of the Lords,-
1
" That it shall be lawful for the Lords to debate together in this
jresent Parliament, and in every other for time to come, in the king's
absence, concerning the condition of the kingdom, and the remedies
nccessary for it; and in like manner it shall be lawful for the Com-
mons, on their part, to debate together concerning the said condition
and remedies; provided always, that neither the Lords on their part,
nor the Commons on their part, do make any report to our lord the
king of any grant granted by the Commons, and agreed to by the
Lords, nor of the communications of the said grant, before the said
Lords and Commons are of one accord and agreement in the said
.
matter." 2
tion of the
But notwithstanding the repeated recognition of this privi-
Interpreta-
lege, the Crown and the Commons were not always agreed privilege.
upon
its limits. In reply to the usual petition of the Speaker,
Sir Edward Coke, in 1593, the lord keeper said, “Liberty of
speech is granted you, but you must know what privilege
you have; not to speak every one what he listeth, or what
cometh in his brain to utter: but your privilege is ‘aye' or
*no.'"3 In 1621, the Commons, in their protestation, de-
fined their privilege more consistently with its present limits.
They affirmed “that every member hath freedom from all
1 3 Rot. Parl. 456.
2 Ib. 611.
3 1 Parl. Hist. 862.
122
FREEDOM OF SPEECH.
Violations of
the privilege.
Sir J. Eliot
and others.
impeachment, imprisonment, or molestation, other than by
censure of the house itself, for or concerning any bill, speak-
ing, reasoning, or declaring of any matter or matters touching
the Parliament or Parliament business.” 1
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 VIII. extended no further than to pro-
tect 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.
Wentworth, and others, in 1586,3 and of Sir Edwin Sandys,
in 1621,4 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 Eliot, Denzil Hollis, and Benjamin Valentine,
against whom a judgment was obtained in the King's Bench,
in the 5th Charles I., 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 I. It was strongly condemned in the Petition of
Right, and, after the Restoration, 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 VIII. 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,
! 1 Hatsell, 79.
2 D'Ewes, 166. 4 Parl. Hist. 153.
3 D'Ewes, 410.
4 1 Com.J.635. 1 Hatsell, 136, 137.
5 2 Com. J. 203. 3 St. Tr. 235-
335.
FREEDOM OF SPEECH,
123
“That the Act of Parliament in 4th Henry VIII., com-
monly intituled 'An Act concerning Richard Strode,' is a
general lau, extending to indemnify all and every the mem-
bers 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 communed and treated of; and is a declaratory law of
the ancient and necessary rights and privileges of Parliament."'ı
And on a subsequent day they also resolved, “That the
judgment given, 5 Car., against Sir John Eliot, 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 ;3 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 1668.4
This would have been a sufficient recognition by law of Its recogni-
tion by
the privilege of freedom of speech: but a further and last statute.
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 Par-
liament, ought not to be impeached or questioned in any
court or place out of Parliament."
But, although by the 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 offen-
sive words spoken before the house, are too numerous to
mention. Some have been admonished, others imprisoned,
and in the Commons some have even been expelled.? Mem-
75
$
1 9 Com. J. 19.
2 Ib. 25.
3 12 Lords' J. 166.
4 Ib. 223.
51 Will. & Mary, segs. 2, c. 2.
6 4 Lords' J. 475; 5 Ib. 77. Sir
R. Canne, 1680; 9 Com. J. 642.
Mr. Manley, 1696 ; 11 Ib. 581.
? Mr. Shepherd, 1 Ib. 524.
124
FREEDOM OF SPEECH.
viduals;
bers using unparliamentary language are promptly called to
order, and generally satisfy the house with an explanation
or apology ;' if not, they will be suspended under the recent
Standing Order, or punished as the House may think fit.?
Privilege does If a member should say nothing disrespectful to the house
not extend
to speeches or the chair, or personally opprobrious to other members,
separately
published.
or in violation of other rules of the House, he may state
whatever he thinks fit in debate, however offensive it may
be to the feelings, or injurious to the character, of indi-
and he is protected by his privilege from any action
for libel, as well as from any other question or molestation.
And here it may be noticed, that the rule by which all pub-
lished reports of debates are ignored by Parliament, is an
auxiliary to the privilege of freedom of speech. What is
said in Parliament, is supposed to be unknown elsewhere,
and cannot be noticed without a breach of privilege : but if
a member should proceed to publish his speech, his printed
statement will be regarded as a separate publication, uncon-
nected with any proceedings in Parliament. This construc-
tion of the law cannot be complained of by the houses of
Parliament, as by their rules and orders, the publication of a
debate is forbidden; and it is therefore impossible to protect,
by privilege, an irregular act, which is itself declared to be a
breach of privilege. This view of the law has been esta-
blished by two remarkable cases.
Lord Abing- In 1795, an information was filed against Lord Abingdon
don's case.
for a libel. His lordship had accused his attorney of im-
proper conduct in his profession, in a speech delivered in the
House of Lords, which he afterwards had printed in several
newspapers, at his own expense. His lordship pleaded his
own case in the Court of King's Bench, and contended that
he had a right to print what he had, by the law of Parlia-
ment, a right to speak: but Lord Kenyon said, that “
member of Parliament had certainly a right to publish his
a
See Chapter XI. on DEBATE.
2 Case of Mr. O'Donnell, 30th June
and 3rd July 1882 ; 137 Com. J.
323. 328.
FREEDOM OF SPEECH.
125
case.
speech, but that speech should not be made a vehicle of slander
against any individual; if it was, it was a libel." The court
gave judgment that his lordship should be imprisoned for
three months, pay a fine of 1001., and find security for his
good behaviour.1
In 1813, a much stronger case occurred. Mr. Creevey, a Mr. Creerey's
member of the House of Commons, had made a charge
against an individual in the house, and incorrect reports of
his speech having appeared in several newspapers, Mr. C.
sent a correct report to the editor of a Liverpool paper, with
a request that he would publish it in his newspaper. Upon
an information filed against him, the jury found the defendant
guilty of libel, and the King's Bench refused an application
for a new trial, Lord Ellenborough saying :
“A member of that house has spoken what he thought material, and
what he was at liberty to speak, in his character as a member of that
house. So far he is privileged; but he has not stopped there; but,
unauthorized by the house, has chosen to publish an account of that
speech, in what he has pleased to call a corrected form; and in that
publication has thrown out reflections injurious to the character of an
individual."?
case.
Mr. Creevey, who had been fined 1001., complained to the
house of the proceedings of the King's Bench; but the house
refused to admit that they were a breach of privilege.3
The Lord Chief Justice of England, in a more recent case, Mr. Wason's
further laid it down, that "if a member publishes his own
speech, reflecting upon the character of another person, and
omits to publish the rest of the debate, the publication would
not be fair, and so would not be privileged," but that a
fair and faithful report of the whole debate would not be
actionable.4
The privilege which protects debates, extends also to re- Rex v.
Wright.
ports and other proceedings in Parliament. In the case of
Rex v. Wright," Mr. Horne Tooke applied for a criminal
1 i Esp. N. P. C. 228.
2 1 M. & S. 278.
3 68 Com. J. 704. Hans. Deb.
25th June 1813.
4 Wason v. Walter, 21st Dec. 1867.
5 8 Term Reports, 293.
126
FREEDOM OF SPEECH.
information against a bookseller for publishing the copy of
a report made by a Committee of the House of Commons,
which appeared to imply a charge of high treason against
Mr. Tooke, after he had been tried for that crime and
acquitted. The rule, however, was discharged by the court,
partly because the report did not appear to bear the meaning
imputed to it, and partly because the court would not regard
a proceeding of either house of Parliament as a libel.
Publication of
By the 3 & 4 Vict. c. 9, which was passed in consequence
parliamentary
papers.
of the decision of the Court of Queen's Bench in the memo-
rable case of Stockdale r. Hansard, it was enacted that pro-
ceedings, criminal or civil, against persons for the publication
of papers printed by order of either house of Parliament,
shall be immediately stayed, on the production of a certificate,
verified by affidavit, to the effect that such publication is by
order of either house of Parliament. Proceedings are also to
be stayed, if commenced on account of the publication of a
copy of a Parliamentary paper, upon the verification of the
correctness of such copy; and in proceedings commenced for
printing any extract from, or abstract of, a Parliamentary re-
port or paper, the defendant may give the report in evidence
under the general issue, and prove that his own extract or
abstract was published bonâ fide and without malice ; and if
such shall be the opinion of the jury, a verdict of Not guilty
will be entered.i
13 & 4 Vict. c. 9, s. 3.
FREEDOM FROM ARREST AND DISTRESS OF GOODS,
127
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.
The privilege of freedom from arrest or molestation is of Antiquity of
this privilege.
great antiquity, and dates, probably, from the first existence
of parliaments or national councils in England. By some
writers its recognition by the law has been traced so far back
as the time of Ethelbert, at the end of the sixth century, in
whose laws it is said, “If the king call his people to him,
(i.e. in the witena-gemót), and any one does an injury to
one of them, let him pay a fine." Blackstone has shown
that it existed in the reign of Edward the Confessor, in whose
laws we find this precept, “ Ad synodos venientibus, sive
summoniti sint, sive per se quid agendum habuerint, sit
summa pax;" and so, too, in the old Gothic constitutions,
“ Extenditur hæc pax et securitas ad quatuordecim dies, con-
vocato regni senatu.” In later times there are various pre-
cedents explanatory of the nature and extent of this privi-
lege, and of the mode in which it was sustained. From these
it will be seen that not only are the persons of members of
both Houses of Parliament free from arrest on mesne process
or in execution, but that formerly the same immunity was
enjoyed in regard to their servants and their property. The
privilege was strained still further, and even claimed to pro-
tect members and their servants from all civil actions or suits,
during the time over which privilege was supposed to extend.
1 Wilkins, Leges Anglo-Sax. p. 2.
2 Hallam, Middle Ages, 231. 2 Kem-
ble, Saxons in England, 33.
2 1 Comm. 165. Stiernh. de Jure
Goth.
128
FREEDOM FROM ARREST
Privileges
enumerated.
The privilege of freedom from arrest has also been construed
to discharge members and their servants from all liability to
answer subpoenas in other courts and to serve on juries, and
in some cases to relieve them from commitments by courts of
justice.
These various immunities have undergone considerable
changes and restrictions; and being now defined, for the
most part, with tolerable certainty, they will be best under-
stood by considering them in the following order : 1. Privi-
lege of members and their servants from arrest and distress,
and the mode of enforcing it. 2. Their protection from being
impleaded in civil actions. 3. Their liability to be summoned
by subpoena, or to serve on juries. 4. Their privilege in re-
gard to commitments by legal tribunals. 5. Privilege of
witnesses and others in attendance on Parliament. It may,
however, be stated at once, that although many cases that
will be given, apply equally to members and to their servants,
according to the privilege existing in those times, the latter
have, at present, no privilege whatever. These cases, thoughı
at variance with modern usage, could not be omitted consist-
ently with a complete view of the privilege of freedom from
arrest and molestation.
So far back as the 19th of Edward I., in answer to a peti-
tion of the Master of the Temple for leave to distrain for the
rent of a house held of him by the Bishop of St. David's,
the king said, “It does not seem fit that the king should
grant that they who are of his council should be distrained
in time of Parliament.” From this precedent Sir Edward
Coke infers that at that time a member of Parliament had
privilege, not only for his servants, but for his horses or other
goods distrainable. The privilege was also acknowledged
very distinctly by the Crown in the case of the Prior of
Malton, in the 9th Edward II.4
The freedom, both of the Lords and Commons, and their
Freedom from
arrest and
distress of
goods.
i See supra, p. 69, note.
2 i Rot. Parl. 61.
3 4th Inst. 24 E.
4 1 Hatsell, 12.
AND DISTRESS OF GOODS.
129
servants, from all assaults or molestation, when coming to
Parliament, remaining there, and returning thence, was dis-
tinctly recognized in the case of Richard Chedder, a member, Chedder's
by statute 5 Henry IV. c. 6, and again by another statute case.
of the 11th Henry VI. c. 11. In the 5th Henry IV.,
the Commons, in a petition to the king, alleged that, ac-
cording to the custom of the realm, the lords, knights,
citizens, and burgesses were entitled to this privilege; and
this was admitted by the king : who, instead of agreeing to
the proposition of the Commons, that treble damages should
be paid by parties violating their privilege, answered that
there was already a sufficient remedy. Hence this privilege
appears, distinctly, not to have been created by statute,
but to have been confirmed as the ancient law and custom
of Parliament and of the realm. Much later, viz., in the
17th Edward IV., the Commons affirmed in Atwyll's case, Atwyll's case.
that the privilege had existed “whereof tyme that mannys
mynde is not the contrarie;"2 thus placing it on the ground
of prescription, and not on the authority of statutes then in
force.
The only exception to the recognition of this privilege Thorpe's case.
was in the extraordinary case of Thorpe, the Speaker of the
Commons who was imprisoned in 1452, under execution
from the Court of Exchequer, at the suit of the Duke of
York. The judges delivered their opinion to the Lords,
“That if any person that is a member of this High Court of
Parliament be arrested in such cases as be not for treason
or felony, or surety of the peace, or for a condemnation had
before the Parliament, it is used that all such persons should
be released of such arrests, and make an attorney, so that
they may have their freedom and liberty freely to attend
upon the Parliament.” As Thorpe was in execution for a
civil action that had been brought during an adjournment,
he was obviously entitled to his release, according to the
opinion of the judges; yet it is entered on the rolls of
1 3 Rot. Parl. 541.
2 6 Rot. Parl. 191.
P.
K
130
FREEDOM FROM ARREST
Parliament, that after having “heard this answer and
declaration, it was thoroughly agreed, assented, and con-
cluded, by the lords spiritual and temporal, that the said
Thomas, according to the law, should still remain in prison,
the privilege of Parliament, or that the said Thomas was
Speaker of the Parliament, notwithstanding."ı
Yet even
here it is worthy of notice, that the privilege of Parliament
was admitted, though adjudged to be overruled by the law.
The whole case, however, has been regarded as irregular and
Release of
“begotten by the iniquity of the times.”2 Down to 1543,
members from
custody. although the privilege had been recognized by statute, by
declaration of both houses, by the frequent assent of the
king, 4 and by the opinions of the judges, the Commons did
not deliver their members out of custody by their own autho-
rity: but when the members were in execution, in order to
save the rights of the plaintiff, they obtained special statutes
to authorize the lord chancellor to issue writs for their
release ;6 and when confined on mesne process only, they
were delivered by a writ of privilege issued by the lord chan-
cellor. And in the singular case of Mr. Speaker Thorpe,
already mentioned, the Commons even submitted the vindi-
cation of their privilege to the House of Peers, as well as to
the king:
Case of
At length, with sudden energy, the Commons, for the first
George
Ferrers. time, vindicated the privilege of Parliament, and acted inde-
pendently of any other power. In 1543, George Ferrers,
a member, was arrested in London, by a process out of the
King's Bench, at the suit of one White, as surety for the debt-
of another. The house, on hearing of his arrest, ordered the
serjeant to go to the Compter and demand his delivery. The
1 5 Rot, Parl. 239.
Parr's case, 5 Rot. Parl. 111. Hyde's
2 1 Com. J. 546.
case, 6 Rot. Parl. 160.
"Le Roi, par advis 5 Thorpe's case, 5 Rot. Parl. 239.
des seigneurs espirituelx et tempo- 6 Cases of Larke, Clerk, Hyde,
relx, et a les especiales requestes and Atwyll, 4 Rot. Parl. 357; 5 Ib.
des communes.”_4 Rot. Parl. 357. 374 ; 6 Ib. 160. 191.
Atwyll's case, 6 Rot. Parl. 191.
i Sadcliff's case, i Hatsell, 51.
4 Larke's case, 4 Rot. Parl. 357. 8 32 Hen. VI., 5 Rot. Parl. 239.
8
3 Larke's case,
AND DISTRESS OF GOODS.
131
serjeant was resisted by the city officers, who were protected
by the sheriffs ; and he was obliged to return without the
prisoner. The house then rose as a body, and laid their case
before the Lords, “who, judging the contempt to be very great,
referred the punishment thereof to the order of the Commons'
house." The Commons ordered the serjeant to repair to the
sheriffs, and to require the delivery 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 show 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 committed
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 are 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 member of the house, is
to be judged as done against our person and the whole court of Par-
liament; which prerogative 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
Montague, the lord chief justice, very gravely declared his
K 2
132
FREEDOM FROM ARREST
opinion, confirming by divers reasons all that the king had
said, which was assented unto by all the residue, none speak-
ing to the contrary.”
As this case rests upon the authority of Holinshed, and
not upon parliamentary records, its accuracy has sometimes
been doubted: but the positions there maintained 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 con-
firmed by the fact that Ferrers was a servant of the King,
and the proceedings of the Commons on his behalf were there-
fore the more likely to be acceptable to his Majesty, 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 suf-
ferred to be obtained without a warrant previously signed by
Smalleys the Speaker. Thirty years later, Smalley, the servant of a
member, being under airest, “ was ordered to be brought
hither to-morrow by the serjeant, and so set at liberty by
Fitzherbert's warrant of the mace, and not by writ.”3 Again, in 1592,
in the case of Mr. Fitzherbert, a member, who had been out-
lawed and taken in execution, the house, after many discus-
sions as to his title to privilege, 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 ar-
rested by the way, and the state of the matter then considered
of and examined into."4 In this case, however, the house
determined that the member should not have privilege ; “first,
case.
case.
1 i Holinshed, 824.
2 i Hatsell, 57.
3 27th Feb. 1575, 1 Com. J. 108.
4 D'Ewes, 482. 514. 1 Hatsell,
107.
AND DISTRESS OF GOODS.
133
Lords.
because he was taken in execution before the return of the
indenture of his election ; secondly, because he had been out-
lawed at the Queen's suit, and was now taken in execution
for her Majesty's debt; thirdly, in regard that he was so
taken by the sheriff, neither sedente Parliamento, nor eundo,
nor redeundo."1
This case was scarcely settled, when Mr. Neale, a member, Neale's case.
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 ac-
quaint them with it. Upon which the house committed to
the Tower the person at whose suit the execution was ob-
tained, and the officer who executed it. Three days after-
wards the prisoners were reprimanded and discharged.?
The principal cases in the Lords, up to this period, show Cases in the
an uncertainty in their practice similar to that of the Com-
mons; privileged persons being sometimes released imme-
diately, and sometimes by writs of privilege. On the 1st
December 1585, they ordered to be enlarged and set at
liberty James Diggs, servant to the Archbishop of Canter-
bury, “by virtue of the privilege of this court:"3 and again,
in the same year, a servant of Lord Leicester,4 and in 1597,
the servants of Lord Chandois and the Archbishop of Canter-
bury,5 In the two last cases the officers who had arrested
the prisoners were committed by the house. Later still, in
November 1601, 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
1 D'Ewes, 518.
2 Ib. 518. 520.
3 2 Lords' J. 66.
4 Ib. 93.
5 Ib. 201. 205.
134
FREEDOM FROM ARREST.
2
Sir T. Shir-
ley's case.
order, he was brought up and discharged on giving a bond
for the payment of his debt; and the under-sheriff was com-
mitted to the Fleet for having arrested him. Yet, soon
afterwards, in Vaughan's case, the Lords resorted to the old
method of discharging a 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, inci-
dentally, upon the general law. and privilege of Parliament.
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 im-
provement in the law. Sir Thomas had been imprisoned in
the Fleet, in 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 com-
mitted to the Tower for his contempt. Many proposals were
made for releasing their member: but as none were free from
objection, the house endeavoured 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 pri-
soner, and was discharged, after a reprimand.3 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
1
1 2 Lords' J. 230. D’Ewes, 603.
2 2 Lords' J. 238. 240. D'Ewes,
3 1 Com. J. 155 et seq. 5 Parl.
Hist. 113, &c. 1 Hatsell, 157.
607.
FREEDOM FROM ARREST.
135
arrest.
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 I. c. 13, after stating that “doubts had Statutes
relating to
been made, if any person, being arrested in execution, and by freedom from
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 such 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,
&c. 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 recognized; 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 Parliament
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 persons had
been imprisoned in execution, to issue warrants for a writ of
privilege or a writ of habeas corpus. In 1625, however, the
Commons declared, “that the house hath power, when they
see cause, to send the serjeant immediately to deliver a
i See 1 Com. J. 173. 195; and Col-
lection of Precedents, 10 Ib. 401.
2 2 Lords' J. 270. 296. 299. 302.
588; 3 Ib. 30. i Hatsell, 167, 168.
136
STATUTES.
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, as Lord Baltinglasse in
1641,3 Lord Rich in 1646,4 and Sir Robert Holt in 1677.5
During the same period also, when the property of peers
or of their servants was distrained, the Lords were accus-
tomed 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:? but
privilege did not attach to property held by a peer as a
trustee only.8 In cases of arrest on mesne process, the
practice of releasing the prisoners directly by a warrant, or
by sending the black rod or serjeant, in the name of the
house, to demand them, 10 was continually adopted.
At length, in the year 1700, an Act was passed, 12 which,
while it retained the privilege of freedom from arrest with
more distinctness than the 1st James I., made the goods of
privileged persons liable to distress infinite and sequestration,
between a dissolution or prorogation and the next meeting of
Parliament, and during adjournments for more than fourteen
days. In suits against the king's immediate debtors, execu-
tion against members was permitted even during the sitting
of Parliament, and the privilege of freedom from arrest in
such suits was not reserved to servants. Again, by the 2 & 3
Anne, c. 18, executions for penalties, forfeitures, &c. against
privileged persons, being employed in the revenue or any
1
1 Com. J. 820.
2 Hatsell states, that "since the
end of Elizabeth's reign we have not
actually met with any instance where
a person entitled to privilege, if in
custody in execution, hath been de-
livered by any other mode than by
virtue of a writ of privilege, or by
a writ of habeas corpus.''-(Vol. i.
p. 167.) But this statement had re-
ference to the period from the acces-
sion of James I. to 1628; and unless
it be understood with this limitation,
it is calculated to mislead.
3 4 Lords' J. 654.
4 8 Ib. 635. 639.
5 9 Com. J. 411.
3 Lords' J. 776, 777.
ī 10 Ib. 611.
8 12 Ib. 194. 390 ; 14 Ib. 36. 78;
16 Ib. 294; 22 Ib. 412.
9 Bassett's case, 1 Com. J. 807.
10 4 Lords' J. 65t; 8 Ib. 577. 601.
Boteler's case, 17 Com. J. 6.
11 12 & 13 Will. III. c. 3, after-
wards extended by 11 Geo. II. c. 24.
SERVANTS' PRIVILEGE.
137
office of trust, were not to be stayed by privilege. Freedom
from arrest, however, was still maintained for the members
of both houses, in such cases, but not for their servants.
By the 10 Geo. III. c. 50, a very important limitation of Servants'
the freedom of arrest was effected. Down to that time the discontinued.
privilege
servants of members had been entitled to all the privileges
of their masters, except as regards the limitations effected by
the two last statutes: but by the 3rd section of the 10
Geo. III., the privileges 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,
arrest has become a legal right rather than a parliamentary at present.
how released
privilege. The arrest of a member has been held, therefore,
to be irregular, ab initio, and he may be discharged immedi-
ately, upon motion in the court from which the process issued.?
For the same reason writs of privilege have been discon-
tinued. In 1707, a few years after the passing of the 12 & 13
Will. III., 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 execu-
tion.2 Peers, peeresses, and members are now discharged
directly by order or warrant, and the parties who cause the
arrest are liable to censure and punishment, as in the case of
the Baroness Le Cale, in 1811;3 and Viscount Hawarden, in
1828.4
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 discharged out of
i Colonel Pitt's case, 2 Strange,
985. K. B. Cases, temp. Hard. 28.
2 15 Com. J. 471.
3 48 Lords' J. 60. 63.
4 60 Ib. 34 (and Report of Prece-
dents, 28).
138
DURATION OF PRIVILEGE.
Duration of
privilege.
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 dis-
charged out of the custody of the warden of the Fleet.2 An
action was brought 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 :3 but having acknowledged their offence by petition,
they were not subjected to any punishment.
It now only remains to inquire what is the duration of the
privilege of freedom from arrest; and it is singular that this
important point has never been expressly defined by Parlia-
ment. The person of a peer (by the privilege of peerage)
“is for ever sacred and inviolable." This immunity rests
upon ancient custom, and is recognized by the Acts 12 & 13
Will. III. c. 3, and 2 & 3 Anne, c. 18. It would seem to
have been an ancient feudal privilege of the barons, the law
assuming that there would always be, upon the demesnes of
their baronies, sufficient to distrain for the satisfaction of any
debt.5. Peeresses are entitled to the same privilege as peers,
whether they be peeresses by birth, by creation, or by mar-
riage ; but if a peeress by marriage should afterwards inter-
marry with a commoner, she forfeits her privilege. It is
also ordered and declared by the Lords, that privilege of Par-
liament shall not be allowed to minor peers, noblewomen, or
widows of peers (saving their right of peerage). 8
And by the 23rd Article of the Act of Union with Scotland
Peeresses.
Representa-
tive peers.
1 62 Com. J. 654,
2 74 Ib. 44.
3 75 Ib. 286.
4 1 Blackstone, Comm. 165.
5 I West. Inq. 27.
6 Countess of Rutland's case, 6 Co.
52. Cases of Lady Purbeck, 1625;
Lady Della' Warr, 1642; Lady
D'Acre, 1660; Lady Petre, 1664 ;
Countess of Huntingdon, 1676 ;
Countess of Newport, 1699 ; Lady
Abergavenny, 1727; 60 Lords' J.
28-31.
7 Co. Litt. 166. 4 Bacon's Abridg.
229. Lords' S. O. No. 53. 11 Lords'
J. 298; 15 Ib. 241.
8 Lords' S. O. No. 53. See also 12
Lords' J. 714; 13 Ib. 67. 79, 80. 659.
:
DURATION OF PRIVILEGE,
139
as to the
(5 Anne, c. 8), the sixteen 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.2
With regard to members of the House of Commons, "the Authorities
time of privilege” has been repeatedly mentioned in statutes, duration of
but never explained. It is stated by Blackstone and others, privileges.
and has been the general opinion, that the privilege of free-
dom from arrest remains with a member of the House of
Commons “for forty days after every prorogation, and forty
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 twenty days only, before and after each session ;
and the report adds, “But, it is said, the Commons never
assented to this, but claim forty days after and before each
session.” In another report of the same case, it is also said,
that “they claim forty days ;"4 and in another report,
that the Commons claimed forty days, which ought not to
be allowed.” But that the Commons have claimed so long
a duration of this immunity, there are no precedents to show.
By the original law of Parliament, privilege extended to the
protection of members and their servants, "eundo, morando
et exinde redeundo:" but Parliament has never yet deter-
mined what time shall be considered convenient for this pur-
pose; and Prynne expresses an opinion, that no such definite
extent of privilege is claimable by the law of Parliament.
There has, however, been a general belief and tradition
1 2 Strange, 990. 60 Lords' J. 28.
2 Case of Viscount Hawarden, an
Irish Peer, 31st Jan. 1828; 60 Lords'
J. 15; Rep. Com. of Privileges, Ib.
28; 18 Hans. Deb. 2nd Ser. 69; Lord
Colchester's Diary, iii. 544, 545.
3 2 Levinz, 72.
41 Chan. Cas. 221.
5 Sid. 29.
6 4 Prynne, Reg. 1216.
140
DURATION OF PRIVILEGE.
Pledall's case.
(founded, probably, upon the ancient law and custom, by
which writs of summons for a Parliament were always issued
at least forty days before its appointed meeting), that privi-
lege extended to forty days; and several acts of the Irish
Parliament have defined that time as the duration of privilege
in Ireland. Parliamentary precedents alone will not be
found to establish this extent of privilege in England: but
it has been allowed by the courts of law, on the ground of
usage and universal opinion. And by reason of frequent
prorogations, the enjoyment of this privilege is never liable
to interruption.
On the 6th December 1555, a case occurred, which has
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-
nizance in the Star Chamber, to appear before the council
within twelve days after the end of the Parliament, which
was about to be dissolved.
A message was afterwards re-
ceived for six members to confer with the Lords, who went,
and reported, on their return, “that the chief justices, master
of the rolls, and serjeants, do clearly affirm that the recogniz-
ance is no breach of the privilege.” From this case Prynne
infers that the Commons "have not twelve, much less twenty
or forty days, after the Parliament ended :" but no such in-
ference can be supported, for it does not appear whether the
opinion of the judges related to the recognizance itself, or to
the duration of the privilege after the dissolution. 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.
In the case of Mr. Marten, in 1586, who had been
Mr. Marten's
case.
2 i Com. J. 46.
I See 3 Edw. IV. c. 1, Ir. 6 Anne,
c. 3, Ir. i Geo. II. c. 8, s. 2, Ir.
DURATION OF PRIVILEGE.
141
both houses.
arrested twenty days before the meeting of Parliament, the
question was put, whether the house would limit any time
for privilege ? The house answered a convenient time: but
they determined that the twenty days were within a con-
venient 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 Resolutions in
servants were free from arrest “for twenty days before and
after every session; in which time the Lords may conye-
niently go home to their houses, in the most remote parts
of this kingdom.”? And again,
"2 And again, on the 28th May 1624, they
adopted a similar resolution. On the 27th January 1628,
they added, that this freedom should " begin with the date
of the writ of summons, in the beginning of every Parliament,
and continue twenty days before and after every session of
Parliament." 4 On the 24th April 1640, it was "said in the
House of Commons, and not contradicted, that members had
privilege for sixteen days exclusive, and fifteen days inclusive,
before the beginning and ending of every Parliament;” and
in a case of privilege considered on that day, it is entered,
" the contempt of his arrest to be declined, because it was not
committed within time of privilege, viz., within sixteen days
before the beginning of the Parliament, or so many days
after.”5 And on the 17th January 1689, the Lords declared
that the freedom of their servants should begin twenty days
before the return of the writ of summons, and continue
twenty days before and after every session.
A confirmation of the claim of forty days, however, has
been indirectly found in the several Acts of Parliament re-
lating to the privilege of franking letters (since abolished by
statute), in which the power of franking was given to mem-
| D’Ewes, 410. i Hatsell, 100.
2 3 Lords' J. 195.
3 Ib. 417.
$ 4 Lords' J. 13. 1 Hatsell, 41, n.
5 2 Com, J. 10.
6 Lords' S. O. No, 55.
142
DURATION OF PRIVILEGE.
Mr. Dun-
combe's case.
It was
a
bers for forty days before any summons, and forty days after
any prorogation."
On the 7th September 1847, Mr. Duncombe claimed and
was allowed his privilege, by a judge's order. He had been
elected, at the general election, on the 28th of July, and it was
argued that his privilege had expired on the 2nd September.
The writs for the new Parliament were returnable on the 21st
September: but Parliament was prorogued, by writ, to the
12th October. The 2nd September was forty days after the
dissolution, but within twenty days of the 21st September, the
day first appointed for the meeting of Parliament.
contended, in opposition to the claim of privilege--1st, that
twenty days was a sufficient time; and, secondly, supposing
longer period to be allowed, that the period should be reckoned
to the 12th October, which would leave the member forty
days for coming to Parliament. Mr. Justice Williams, how-
ever, was satisfied that the privilege extended to forty days,
and that the period must be reckoned to the 21st September
only. On a motion for rescinding the judge's order, the
Chief Baron, in delivering the judgment of the court, at once
determined that the period must be reckoned to the 21st Sep-
tember, as the day on which the writs were returnable; and
after citing the authorities as to the duration of privilege,
concluded in these words: “ We think that the conclusion to
be drawn from all that is to be found in the books on the
subject is this: that whether the rule was originally for a
convenient time, or for a time certain, the period of forty
days before and after the meeting of Parliament has for about
two centuries, at least, been considered either a convenient
time, or the actual time to be allowed. Such has been the
usage, the universally prevailing opinion on the subject; and
such, we think, is the law.”2
It has been determined by the courts of law, that the privi-
After dissolu-
tion.
2
Welsby, H. & G. 430.
1 For a history of this privilege,
see Report, 16th April 1735.
DURATION OF PRIVILEGE.
143
execution
election.
lege, even after a dissolution, is still enjoyed for a convenient
and reasonable time for returning home. What this con-
venient time may be, has never been determined; but the
general claim of exemption from arrest, eundo et redeundo,
extends as well to dissolutions as to prorogations, as no dis-
tinction is made between them.
These cases apply to arrests made after the privilege has Members in
accrued : but the effect of the election of a person already in before their
execution still remains to be considered. In Thorpe's case
the judges excepted from privilege the case of “a condemna-
tion had before the Parliament;" but their opinion has not
been sustained by the judgment of Parliament itself. 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 Parlia-
ment 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 Parliament;"2 and, not to
mention intermediate cases, or any which are of doubtful
authority,3 Mr. Christie Burton obtained his release in 1819,
although he had been in the custody of the warden of the
Fleet before his election.
A person succeeding to a peerage while under arrest, is Persons under
entitled to his discharge in virtue of his privilege. On the ing peers.
1st January 1849, Lord Harley having succeeded, by the
death of his father, to the earldom of Oxford, applied to a
judge in chambers (Mr. Baron Platt), for his discharge from
the Queen's Prison. It was submitted that he was not en-
titled to privilege until he had taken his seat as a peer: but
this position could not be supported by any authorities,
and the earl was ordered to be discharged. It has been
decided by the Lords that a peer is entitled to privilege
i Colonel Pitt's case, i Strange, 3 See Reports of Precedents, 10
985. Barnardo v. Mordaunt, 1 Lord Com. J. 401. 62 Com. J. 642.653, 654.
2 Hatsell, 37.
2 9 Com. J. 411.
4 74 Com. J. 44; 75 Ib. 230.
5 M.Cabe v. Lord Harley.
4
arrest becom,
Ken. 125.
144
IMPLEADING MEMBERS, ETC.
Members not
admitted as
bail.
de Clare.
when he has not qualified himself to sit, by taking the
oaths.1
As a consequence of the immunity of a member of Parlia-
ment, it has been held that he cannot be admitted as bail ;
for not being liable to attachment, by reason of his privilege,
he cannot be effectually proceeded against, in the event of
the recognizancés being forfeited.2
Not to be The earliest case in which the privilege of not being im-
impleaded.
Case of Bogo pleaded appears to be recorded, is that of Bogo de Clare, in
the 18th Edward I. (1290). 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 West-
minster Hall, in Parliament time, to appear before the Lord
Archbishop of Canterbury. Both of them were sent for, to
answer before the kiug, and having appeared, and submitted
themselves, were sent to the Tower. Bogo de Clare after-
wards came and paid a fine of two thousand marks to the
king This case has been cited by Sir E. Coke, Elsynge, and
others, as a claim of parliamentary privilege: but has latterly
been held to have arisen out of the service of a citation in a
privileged place ;' although the words “in Parliament time."
would suggest an opposite conclusion.
In the 8th Edward II., writs of supersedeas were issued
supersedeas.
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 dis-
use, for in the 12th Edward IV., it was disallowed in the
case of Walsh, a servant of the Earl of Essex. That person
Writ of
i Lords' J. 24th Feb. 1691 ; 13th
May 1720.
2 Duncan v. Hill (1 Dowling &
Ryland's Rep. 126); Graham v. Sturt
(4 Taunton's Rep. 249); Burton v.
Atherton (2 Marsh. 232); and case of
Mr. Feargus O'Connor, who offered
himself as bail for Mr. Ernest Jones,
Ilth June 1848, at Bow Street.
3 i Rot. Parl. 17.
4 Burdett v. Abbot.
5 i Hatsell, 7, 8. "Ne per eorum
absentiam, dum sic in dicto Parlia-
mento steterint, exhæredacionem ali-
quam sustineant, aliqualiter vel
incurrant.” And again, “presertim
cum absentes jura sua defendere
nequeant, ut presentes.”'
İMPLEADING MEMBERS, ETC.
145
Walsh and
pleaded a king's writ, in which his right not to be impleaded Cases of
was affirmed: but the Lords, with the advice of the judges, Cosyn.
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
similar decision was given in the case of Cosyn. Yet, while
this was held to be the law in England, the privilege thus
disallowed had been confirmed, not long before, by a statuto
in the Parliament of Ireland. A few years later, the
Commons, in Atwyll's case, claimed it as a prescriptive
privilege, that they “should not be impleaded in any action
personal;" and their claim seems to have been admitted both
by the king and by the House of Lords.
One of the most marked cases of 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 super-
sedeas 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 resolved, “ 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 awarding of such writs accordingly.
At the beginning of the reign of James I., another practice Suits stayed
by letter.
was adopted. 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 attorneys who commenced the actions
>> 5
11 Hatsell, 41, 42.
2 Ib. 43.
3 3 Edw. IV. c. 1.
4 Atwyll's case, 17 Edw. IV. ; 6
Rot. Parl. 191.
5 D'Ewes, 436.
6 1 Com. J. 286. 331. 421, &c.
i Ib. 304.
P.
L
146
IMPLEADING MEMBERS, ETC.
4
were brought, by the serjeant, to the bar of the house.' Ap-
plications 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 Mr. Speaker's hand, for stay thereof, with-
out further motion in the house." This power af staying
suits appears to have been generally acquiesced in by the
courts : but in the case of Hodges and Moore, in 1626, 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 dissolved. In numerous instances, however, members
agreed to waive their privilege; and upon the petitions of the
parties, suits were occasionally allowed to proceed.
Limitations of
The privilege insisted upon in this manner, continued
the privilege
by statute. until the end of the seventeenth century, when it underwent a
considerable limitation by statute. The 12 & 13 Will. III.
c. 3, enacted, that any person might commence and prosecute
actions against any peer, or member of Parliament, 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
fourteen days; and that during such times, the court might
give judgment and award execution. Processes and bills
against members were authorized, during the same intervals,
to be had or exhibited; and to be enforced by distress infinite
or sequestration; and actions 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 operation :
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.
1 1 Com. J. 304.'
Com. J. 861. 1 Hatsell, 184, 185.
2 1620; Ib. 525.
4 1 Com. J. 378. 421. 595, &c. ; 10
3 Prynne's 4th Register, 810. 1 Ib. 280. 300. 596 ; 11 Ib. 557,. &c.
IN CIVIL SUITS.
147
Soon afterwards, it was enacted, by the 2 & 3 Anne, c. 18,
that no action, suit, process, proceeding, judgment, or exe-
cution, 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 colour or pretence
of privilege of Parliament. The Act of William III. had
extended only to the principal courts of law and equity : but
by the 11 Geo. II. c. 24, all actions in relation to real and per-
sonal property were allowed to be commenced and prosecuted
in the recess and during adjournments of more than fourteen
days, in any court of record.
Still more important limitations of the privilege were
effected by the Act 10 Geo. III. c. 50. The preamble of that
Act states, that the previous laws were insufficient to obviate
the inconveniences 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 Parliament 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 privi-
lege of Parliament: and no such action, suit, or any other process or
proceeding thereupon, shall at any time be impeached, stayed, or de-
layed, by or under any colour or pretence of any privilege of Parlia-
ment."
“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 being,
to be arrested or imprisoned upon any such suit or proceeding.”
Stringent modes of enforcing the processes of the courts
were enacted by this Act, and still further facilities were given
to plaintiffs by the 45 Geo. III. c. 124, and the 47 Geo. III.
sess. 2, c. 40. Under these Acts members of Parliament may
be coerced by every legal process, except the attachment of
their bodies. By the Bankruptcy Act, 1869, persons having
1 The 4th Article of the Act of
Union extends all privileges of Eng-
lish peers to the peers of Ireland.
2. It has been doubted whether a
writ of summons to appear in a civil
action can be gerved upon a member
L 2
148
SUBPENAS AND JURIES.
Subpoenas
and juries.
privilege of Parliament are subject to the processes of the
Court.
The claim to resist subpoenas was founded upon the same
principle as other personal privileges, viz., the paramount
right of Parliament to the attendance and service of its
members. Yet it does not appear to have been maintained
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 Huntingdon ; to
which the Commons returned an answer, “that they take this
writ to be no breach of privilege."2 Yet, in 1557, on a com-
plaint being made that Mr. T. Eyms, a member of the Com-
mons, had been served with a subpoena, two members were
sent to the chancellor, to require that the process might be
revoked ;3 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 bad
no such liberty of privilege for subpoenas.” A committee
was then appointed to search for precedents, but made no
report. Immediately afterwards, the house punished a per-
son who had served a member with a subpoena. Various
within the precincts of the houses of
Parliament; but as it is only a pro-
cess upon such action, it would appear
to be warranted by the statutes cited
above. But "no arrest can be made
in the king's presence, nor within the
verge of the Palace of Westminster,
nor in any palace where he resides,
nor in any place where the king's
justices are sitting.” 3rd Inst. 148.
| Before that Act came into opera-
tion it was adjudged, that a peer was
liable to be made a bankrupt, under
the Act of 1861; Ex parte Morris, re
The Duke of Newcastle: Lord Justice
Giffard, 20th Nov. 1869, affirmed by
the House of Lords, upon appeal, on
the 7th July 1870. 102 Lords' J.
397.
2 1 Com. J. 34.
3 Ib. 48.
1 Parl. Hist. 630.
4 D'Ewes, 347. i Hatsell, 96, 97.
1 Hatsell, 97.
5
SURPENAS AND JURIES.
149,
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 mem-
bers as witnesses in courts of justice, the Commons have fre-
quently granted leave of absence to their members on the
express ground that they had 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 house 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 protect a member
served with a subpæna, from the legal consequences of non-
attendance in a court of justice, if permission had not been
previously granted by the house for his attendance. No
officer of either house should be served with a subpoena to
give evidence concerning any proceedings in Parliament, or
to produce documents in his custody, until leave has been
given to him to attend."
As the withdrawal of a witness may affect the administra- Members
tion of justice, the privilege has very properly been waived :
jurors.
but the service of members upon juries not being absolutely
necessary, their more immediate duties in Parliament are
held to supersede the obligation of attendance in other courts.
The privilege is of great antiquity: the tenure per baronian
having conferred an exemption from serving on juries, not
only upon those summoned to Parliament, but also upon all
tenants per baroniam.
summoned as
1 i Hatsell, 169. 175. 3 Lords' J.
630. 1 Com. J. 203. 205. 211. 368.
1040, &c.; 9 Ib. 339.
2 56 Com. J. 122; 68 Ib. 218. 243.
292; 71 Ib. 110; 82 Ib. 306. 379.
See also Hans. Deb. 1st March 1844
(Earl of Devon).
3 48 Com. J. 318.
4 78 Ib. 132.
5 91 Lords' J. 508 ; 92 Ib. 590.
103 Com. J. 40; 106 Ib. 277, &c.;
but see infra, p. 185.
6 1 West, Ing. 28.
150
SUBPOENAS AND JURIES.
1
The first complaint of a member being summoned on a
jury, appears to have been made on the 22nd November
1597, in the case of Sir J. Tracy. In that case the serjeant
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 non-appearance."3 Lord Hardwicke is said
to have fined the member for Shoreham for not attending as
a juror, Parliament not being then sitting : but admitted the
exemption during the sitting of Parliament. On the 20th
February 1826, Mr. Holford complained that he had been
fined for non-attendance as a juryman by the Court of Ex-
chequer, his excuse that he was attending the service of
Parliament, not being admitted; and Mr. Ellice, another
member, stated that he had also been fined for non-attendance,
in the same court:- but these cases obviously arose from
misinformation on the part of the court. A committee of
privileges was immediately appointed, and the house, on
receiving its report, resolved, nem. con., that it is “ amongst
the most ancient and undoubted privileges of Parliament,
that no member shall be withdrawn from his attendance on
his duty in Parliament to attend on any other court."6 Before
this committee had reported, another member, Mr. Bennet,
having been summoned as a juror, asked the advice of the
Speaker, who stated “his answer would be, that, conceiving
+
6 Ib.
1 D'Ewes, 560. 1 Hatsell, 112.
2 1 Com. J. 369.
3 Ib. 898.
1
14 Hans, Deb. N. S. 569.
8 81 Com. J. 82. 87. 14 Hans.
Deb. N. S. 568, 642.
SUBPENAS AND JURIES.
151
his duty to that house was his first obligation, he should per-
form it, he would not say neglecting every other duty, for
that would imply a fault, but omitting all others which would
clash therewith."i On the 12th June 1829, Mr. Macleod
complained that he had been summoned as a juror, during
an adjournment of the house, but had declined to attend.
The Speaker said, “it was clear that members of that house
were not liable to be called upon to serve on juries, during
the sitting of Parliament. The next point to be considered
was, whether an adjournment of the house was to be looked
upon as a sitting, so far as the question of privilege was con-
cerned; and he believed it was admitted by every member
that it was so considered.”2 To this it may be added, that in
the last clause of the Act of 1825, for consolidating the laws
relating to jurors and juries, there was an express reservation
that nothing shall“ abridge or affect any privilege of Parlia-
ment;" and further, this privilege has been fully recognised
by the courts. In the case of Viscount Enfield, 6th February
1861, Chief Justice Erle stated, that “ his lordship ought not
to have been summoned as a juror, as members were not
bound to serve in any other court than that in which they
had been returned to serve, viz., the high court of Parliament,
which was the highest court of the realm.” And in later
cases, where members have been inadvertently summoned,
their privilege has been promptly acknowledged. Exemption
was not ordinarily claimed by members after a prorogation;
and there was no distinct authority for its existence at that
time: but by the Juries Act, 1870, peers and members of
Parliament are included among the persons exempted from
serving on juries, without reference to the sitting of Par-
liament; and their privilege has since become a legal
exemption.
The privilege of freedom from arrest has always been Criminal
commitments.
limited to civil causes, and has not been allowed to interfere
1 14 Hans. Deb. 2nd Ser. 643.
2 21 Hans. Deb. N. S. 1770.
3 6 Geo. IV. c. 50.
152
CRIMINAL COMMITMENTS,
the peace;
with the administration of criminal justice. In Larke's
case, in 1429, 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, 18th April 1626:
“ 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 for treason or felony, or for refusing to give surety of
"3 and again, by a resolution of the Commons,
20th May 1675, “ that by the laws and usage of Parliament,
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 by the Commons, at a conference, on the
17th August 1641 :
“1. That no privilege is allowable in case of peace betwixt private
men, much more in case of the peace of the kingdom. 2. That
privilege cannot be pleaded against an indictment for anything done
out of Parliament, because all indictments are 'contra pacem domini
regis.' 3. Privilege of Parliament is granted in regard of the service
of the Commonwealth, and is not to be used to the danger of the Com-
monwealth. 4. That all privilege of Parliament is in the power of
Parliament, and is a restraint to the proceedings of other inferior
courts, but is no restraint to the proceedings of Parliament, and, there-
fore, 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 1697, it was resolved, “That no member
of this house has any privilege in case of breach of the peace,
or forcible entries, or forcible detainers."
In Wilkes' case, 29th November 1763, although the Court
of Common Pleas had decided otherwise, it was resolved by
both houses,
“That privilege of Parliament does not extend to the case of writing
Seditious
libels.
!
1 4 Rot. Parl. 357.
2 5 Ib. 339.
3 3 Lords' J. 562.
4 2 Com. J. 261. 4 Lords' J. 369.
5 11 Com. J. 784.
• 2 Wils. Rep. 150. 19 St. Tr. 981.
CRIMINAL COMMITMENTS.
153
1
Cochrane.
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 dangerous 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."2
These being the general declarations of the law of Par- Case of Lord
liament, one case will be sufficient to show how little pro-
tection is practically afforded by privilege, in criminal of-
fences. In 1815, Lord Cochrane, a member, having been
indicted and convicted of a conspiracy, was committed 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 councillor's 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 re-
ported 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 pro-
ceedings against the marshal of the King's Bench."3
Thus the house will not allow even the sanctuary of its Causes of
walls to protect a member from the process of criminal law. commitment
But in all cases in which members are arrested on criminal inunicated.
charges, the house must be informed of the cause for which
they are detained from their service in Parliament. Several
Acts which have suspended for a time the Habeas Corpus
Act, have contained provisions to the effect that no member
of Parliament shall be imprisoned during the sitting of Par-
liament, until the matter of which he stands suspected shall
be first communicated to the house of which he shall be a
1 29 Com. J. 689. 15 Parl. Hist.
1362-1378.
2 Sess. Paper, 1831 (114). See also
case of Lord Oliphant, in 1709; 19
Lords' J. 31. 34; and 26 Ib. 492
(Gaming-houses).
3 Sess. Paper, 1814-15 (239). 30
Hans. Deb. 1st Ser. 309. 336. Lord
Colchester's Diary, ii. 534-536.
154
BANKRUPTS.
2
s
member, and the consent of the said house obtained for his
commitment. By the Protection of Person and Property
Act, 1881, it was provided that "if any member of either
House of Parliament be arrested under this Act, the fact shall
be immediately communicated to the house of which he is a
member, if Parliament be sitting at the time, or if Parlia-
ment be not sitting, then immediately after Parliament re-
assembles, in like manner as if he were arrested on a criminal
charge." And the arrests of members, under this Act, were
communicated to the House of Commons accordingly. In
cases not affected by Acts of this special character, it has
been usual to communicate the cause of commitment, after
the arrest, as in the cases of Lord George Gordon in 1780,3
and Mr. Smith O'Brien in 1848,4 for high treason; and
whenever members have been in custody in order to be tried
by naval or military courts martial,” or have been committed
for any criminal offence by a court or magistrate."
The same distinction between civil and criminal processes
has been observed in the case of bankrupts. By the Bank-
rupt Law Consolidation Act, 1849, s. 66, it was enacted that
“If any trader having privilege of Parliament shall commit
any act of bankruptcy, he may be dealt with under the Act
in like manner as any other trader : but such person shall
not be subject to be arrested or imprisoned during the term
of such privilege, except in cases made felonies and misde-
meanors by this Act.”8 By the Bankruptcy Act, 1869,
Bankrupts.
1 See 17 Geo. II. c. 6. 45 Geo. III.
C. 4, s. 2. 57 Geo. III. c. 3, s. 4.
57 Geo. III. c. 55, s. 4. 3 Geo. IV.
C. 2, 8. 4.
2 Mr. Dillon, 4th May 1881; 136
Com. J. 213; 260 Hans. Deb. 3rd
Ser. 1744. Mr. Parnell, Mr. Sexton,
Mr. O'Kelly, and Mr, Dillon, also
the release of Mr. Sexton, 7th Feb.
1882. A motion for a committee of
inquiry was negatived. 137 Com. J.
8; 266 Hans, Deb. 3rd Ser. 98.
3 37 Com. J. 903.
4 103 Ib. 888.
5 37 Ib. 57. 39 Ib. 479. 51 Ib.
139. 557. 58 Ib. 597. 59 Ib. 33.
67 Ib. 246, &c. 70 Ib. 70. 47 Lords'
J.349 (Lord Gambier); and see case
of Lord Torrington, 14 Ib. 521. 523.
525. 527.
6 Mr. Healy, 15th Feb. 1883. A
motion for a committee of inquiry
was negatived.
3 Mr. F. O'Connor, 107 Com. J. 28.
8 12 & 13 Vict. c. 106.
CONTEMPT OF COURT.
155
Cromwell,
s. 120, a person having privilege of Parliament is to be dealt
with as if he had not such privilege.
Another description of offence, partaking of a criminal Commitment
of members
character, is a contempt of a court of justice; and it was for contempt.
for some time doubtful how far privilege would extend to
the protection of a member committed for a contempt. On Case of Lord
the 30th June 1572, a complaint was 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 Parliament and peers of
this realm, in such cases used and allowed.” The Lords,
after examining this case in the presence 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 Chancery," 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 prerogative, or by common law or custom,
or by any statute or precedents, the persons of Lords of
Parliament are attachable, the order in this case should not
affect their decision in judging according to the cause shown.
Prynne, in reference to this case, lays it down that the
persons of peers would 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.”
1 1 Lords' J. 727.
2 4th Reg. 792.
156
CONTEMPT OF COURT,
2
:
Mr. Brereton.
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 privi-
leges, and their persons to be free from such attachments,
with the same proviso as in the case of Lord Cromwell;" to
which the Lords generally assented. But on the 22nd
October 1667, a report of the committee of privileges, con-
taining the same proviso, was confirmed by the house, leaving
out the proviso.
In 1605, in the case of Mr. Brereton, who had been com-
mitted 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 the 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 of this house, they would have indicted them
for stroke in face of the court; and many for less offences
have lost their hands." 5
On the 9th February 1625, the Lord Vaux claimed his
privilege, for stay of the proceedings in an information
against him in the Star Chamber; and it was granted ; and
shortly afterwards, in the case of the Earl of Arundel, the
Lords' committee maintained that “though a lord, at the
suit of the king, be sued in the Star Chamber for a con-
tempt, yet the suit is to be stayed, by privilege of Parlia-
Lord Vaux.
Earl of
Arundel.
1 4 Lords' J. 27.
2 12 Ib. 122.
3 1 Com. J. 269.
4 Ib. 466.
5 Ib. 513.
6 3 Lords' J. 496.
CONTEMPT OF COURT.
157
ment, 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 Parlia-
ment, 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.2
And it was decided, in the case of Earl Ferrers, that an
attachment may be granted, if a peer refuses obedience to
the writ.3
In more recent cases, members committed by courts for Mr. Long
Wellesley.
open contempt, have failed in obtaining their release by
virtue of privilege. In 1831, Mr. Long Wellesley, a mem-
ber, 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 com-
mitted 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,
which 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 compli-
ance with, their privileges, that a member of either house of Parlia-
ment, breaking the rules of this court, and breaking the law of the
land by a contempt committed against this court, should stand com-
mitted for that contempt.”
The lord chancellor acquainted the Speaker of this com-
mitment; and Mr. Wellesley also appealed, through the
Speaker, to the House of Commons, and claimed his privilege.
1
3 Lords' J. 558 (Report of Pre-
cedents), 562, &c.
2 29 Ib. 181.
3 Burr. 631. It is said in Bacon's
Abridgment (vol. 6, p. 546), “ Also
peers of the realm are punishable by
attachment for contempts in many
instances : as for rescuing a person
arrested by due course of law; for
proceeding in a cause against the
king's writ of prohibition ; for dis-
obeying other writs wherein the
king's prerogative, or the libert.y of
the subject, is nearly concerned; and
for other contempts which are of an
enormous nature.”--2 Hawk. P. C.,
c. 22, s. 33; 1 Burr. 634. "But the
courts will not grant an attachment
against a peer or member of Parlia-
ment for non-payment of money ac-
cording to award."'-7 Term Rep.
171. 448. And see dicta of Lord
Brougham, in Westmeath v. West-
meath, 8 Law Journ. (1st Series,
Chancery), 177.
158
CONTEMPT OF COURT.
Charlton.
His case was referred to the committee of privileges, who
reported, " that his claim to be discharged from imprison-
ment, by reason of privilege of Parliament, ought not to be
admitted."
Mr. Lechmere
The next case was that of Mr. Lechmere Charlton, in
1837. That member had been committed by the lord chan-
cellor, 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.”
The lord chancellor stated the grounds of this commitment,
in a letter to the Speaker, to whom Mr. Charlton also com-
plained of his commitment; and these letters were referred
to a committee 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 con-
tempt before they could decide whether the contempt was of such a
character as would justify the imprisonment of a member."
Mr. Whalley.
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.2
The case of Mr. Whalley in 1874, was, in some respects,
exceptional. On the 23rd January, he was committed by
the Court of Queen's Bench for a contempt, Parliament not
then being sitting. On the 26th, Parliament was dissolved,
and, in the meantime, Mr. Whalley had been discharged
from custody. Doubts were raised whether, under these
circumstances, it was necessary for the court to communicate
this commitment to the house ; but, on the meeting of the new
Parliament, the Lord Chief Justice addressed a letter to the
Speaker, explaining all the facts of the case. A committee
1 86 Com. J. 701.
2 92 Ib. 3 et seq.; 1 Parl. Rep.
1837, No. 45.
CONTEMPT OF COURT,
159
case,
on privilege, to whom this letter was referred, reported that it
did not demand the further attention of the house, and they
also expressed their opinion “ that the Lord Chief Justice
fulfilled his duty in informing the house that a member of
the House of Commons had been imprisoned by the Court of
Queen's Bench.” 1
On the 17th August 1882, Mr. Speaker acquainted the Mr. Gray's
house that he had received a letter from Mr. Justice Lawson,
sitting under a commission in Dublin, informing him that he
had committed Mr. Gray, a member, for contempt of court, in
publishing certain articles, calculated to prejudice the ad-
ministration of justice. As the house was on the eve of a
long adjournment, no further action was taken: but on the
next meeting of the house, on the 24th October, a select
committee was appointed to consider the matter. Meanwhile
Mr. Gray had been discharged; and his discharge was com-
municated to the house. The committee, having examined
Mr. Gray and other witnesses, and considered various docu-
ments, reported, in the terms of former committees, that the
matters referred to them do not demand the further atten-
tion of the house.?
Before these last cases, the ordinary process for contempts
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.3 In 1829, an order for the com-
mitment of Lord Roscommon, for contempt, had been made
by the lord chancellor, but was never executed, nor even
taken out of the registrar's office. Nor must it be omitted
that, so late as 1832, an Act was passed,t by which contempts
of the ecclesiastical courts," in face of the court, or any other
contempt towards such court, or the process thereof, are
1 Report of Committee, 1874 (77); Privilege (Mr. Gray), 1882, Parl.
218 Hans. Deb. 3rd Ser. 52. 108.
2 137 Com. J. 487.491; 273 Hans. 3 2 Peere Williams, 110.
Deb. 3rd Ser. 1978. 2049; 274
1 2 & 3 Will. IV. c. 93.
Report of Committee on
No. 406.
Ib. 34.
160
CONTEMPT OF COURT.
of court.
court and
directed to be signified to the lord chancellor, who is to issue
a writ de contumace capiendo, for taking into custody persons
charged with 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 members
are committed for contempt. Each case is open to conside-
ration when it arises; and although protection has not been
extended to flagrant contempts, privilege might still be
allowed against commitment under any civil process, or if
the circumstances of the case appeared otherwise to justify it.
Members fined In January 1873, the Court of Queen's Bench fined Mr.
for contempt
Onslow and Mr. Whalley, two members of the House of
Commons, for a contempt of that court, when Chief Justice
Cockburn took Occasion to state that the court would not
have been restrained by privilege from committing these
members, if it had thought fit.
Contempt of But it is only in cases of quasi criminal contempts that
privilege.
members of either house may be committed, without an
invasion of privilege. Such a commitment, as part of a civil
process for the recovery of a debt, will not be resorted to by a
court, nor would it be allowed in Parliament.
On the 24th March 1880, application was made to Vice-
Chancellor Hall for an order for
order for the committal of
Mr. Fortescue Harrison, a member, for contempt, in not
having complied with an order of the court for payment
of certain moneys, and the delivery of documents to the
liquidator of a company.
The vice-chancellor, however,
held that privilege protected a member, except in cases of
a gross character, and that the contempt, in this case, was
not such as to justify the court in committing a member.
On that same day Parliament was dissolved, and Mr.
Fortescue Harrison did not seek re-election. On the 15th
April, application was again made to the court for his com-
mitment; but the vice-chancellor held that privilege extended
to a period of forty days after a prorogation or dissolution of
PRIVILEGE OF WITNESSES, ETC.
161
Parliament, and as that time had not yet expired, he refused
to entertain the motion, on the ground of privilege, and
without reference to the merits of the case. A similar case
affecting a peer had been decided, after full consideration, by
the judge of the Brompton County Court, in 1879.
As yet the personal privilege of members, and the ancient Privilege of
witnesses,
privilege of their servants, have alone been noticed. These suitors, and
were founded upon the necessity of enabling members freely others.
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 before parliamentary
committees, and to others in personal attendance upon the
business of Parliament, in coming, staying and returning;
and to officers of either house, in immediate attendance upon
the service of Parliament.” In the early Journals there are
numerous orders that all persons attending in obedience to
the orders of the house, and of committees, shall have the
privilege or protection of the house. A few precedents will
serve to explain the nature and extent of this privilege.
Instances of protections given by the Lords to witnesses Their freedom
and to parties, while their causes or bills were depending, from arrest.
appear very frequently on the Journals of that house.
In 1640, Sir Pierce Crosbie, sworn as a witness in Lord
Strafford's cause, being threatened with arrest, was allowed
privilege, "to protect him during the time that this house
examine him;"4 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
1 66
Times," 16th April 1880, and
see Reports.
2 1 Lex Parl, 380. 1 Hatsell, 9.
11. 172.
3 1 Com. J. 505, 2 Ib. 107. 9
Ib. 62. 13 Ib. 521, &c.
4 4 Lords' J. 143. 144.
6 25 Ib. 625. 27 Ib. 19.
P.
M
162
PRIVILEGE OF WITNESSES, ETC.
shall be before their lordships in agitation ;'l and many
similar orders have been made in the case of other parties,
who have had causes depending, or bills before the house.3
On the 12th May 1624, the master and others of the felt-
makers were ordered, by the Commons, to be enlarged 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." 4 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 extended to persons who had bills
depending, on the 22nd and 29th January 1628, on the
3rd May 1701, and the 11th May 1758.6 On the 23rd
January 1640, certain persons 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 committing any waste upon the lands mentioned
in the petition, during the dependency of the business here."
Numerous instances have occurred, in which witnesses, who
have been arrested on 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 prosecuting any
business in Parliament. 9 On the 2nd May 1678, Mr, J.
Gardener, solicitor in the cause concerning Lyndsey Level,
who had been arrested as he was coming to attend on the
house, was discharged from his arrest.10 On the 9th April
1742, complaint was made, that Mr. Gilbert Douglas, a soli-
citor for several bills depending in the House of Commons,
14 Lords' J. 262.
2 Ib. 263. 289. 330.477. 5 Ib. 476.
3 5 Ib. 563. 574. 653. 680. 27 Ib.
538. 28 Ib. 512.
4 1 Com. J. 702.
5 Ib. 863.
o Ib.921.924. 13Ib.512. 28 Ib.244.
7 2 Ib. 72.
8 8 Ib. 525. 9 Ib. 20. 366. 472.
12 Ib. 364. 610. 66 Ib. 226. 232.
90 Ib. 521.
9 88 Lords' J. 189; 92 Ib. 75, 76.
10 9 Com. J. 472.
PROTECTION OF WITNESSES.
163
914
had been arrested as he was attending the house, and he was
immediately ordered to be discharged from his arrest.1 In
the same way, solicitors for bills depending in the house,
were discharged from arrest, on the 30th April 1753, on the
12th February, and the 22nd March 1756.3
On the 29th March 1756, Mr. Aubrey, who had an estate
bill depending in the House of Commons, presented a peti-
tion, 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.
Having received the usual notice to attend, by himself, his
counsel, or agents, he had attended the sittings of the elec-
tion 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
precedents, ordered, nem. con., that he should be discharged
out of the custody of the sheriff of Middlesex.5
tection, in short, is the same as that given by courts of law
to witnesses and others, which has even been extended to
arbitrations.
Witnesses, petitioners, and others, being thus free from Protection of
arrest while in attendance on Parliament, are further pro- others from
tected, by privilege, from the consequences of any statements suits and
which they may have made before either house; and any
molestation, threats, or legal proceedings against them, will
be treated by the house as a breach of privilege.
On the 23rd November 1696, “ A complaint being made
This pro-
6
witnesses and
molestation.
1 24 Com. J. 170.
2 26 Ib. 797.
3 27 Ib. 447. 537.
4 Ib. 548.
5 48 Ib. 426.
6 Court of Q. B. in banco, Nov. 7th
1857.
u 2
164
PROTECTION OF WITNESSES.
that Sir George Meggott had prosecuted at law several per-
sons for what they testified, the last session, at the committee
of privileges and elections," it was referred to that committee
to examine the matter of the complaint. It appeared from
their report, 4th December, that Sir G. Meggott, “having
thought himself injured by their evidence, did think he
might lawfully have done himself right by an action; but
as soon as he was better advised, he desisted, and suffered
himself to be nonsuited, and had paid them their costs.”
Notwithstanding his submission, however, the house agreed
with the committee in a resolution, that he had been guilty
of a breach of privilege, and committed him to the custody of
the serjeant-at-arms.
On the 27th November 1696, a petition was presented
from T. Kemp and other hackney coachmen, complaining
that an action had been brought against them by Mr. Gee,
for libel, on account of a petition which had been presented
to the house from them, in the last session. From the
report of the committee of privileges, to whom the matter
was referred, 9th February 1696, it appeared that Mr. Gee
had desisted from his action when he understood it was
taken notice of by the house, and offered to release the
The house agreed with the committee in a resolu-
tion that Mr. Gee, “for prosecuting at law the hackney
coachmen for petitioning this house, is guilty of a high
misdemeanor and breach of privilege," and committed him
to the custody of the serjeant-at-arms.3
On the 8th April 1697, the Lords attached T. Stone, for
striking and giving opprobrious language to a witness, below
the bar, who had been summoned to attend a committee,
and directed the attorney-general to prosecutę him for his
offence. On the 5th March 1710, on the report from a
committee that John Hare, a soldier, was afraid of giving
evidence, the Commons resolved," that this house will pro-
same.
+
1 11 Com. J. 591. 613.
2 Ib. 699.
3 Ib. 699.
4 16 Lords' J. 144.
PROTECTION OF WITNESSES.
165
ceed with the utmost severity against any person that shall
threaten, or any way injure, or send away the said J. Hare,
or any other person that shall give evidence to any committee
of this house."1
On the 9th February 1715, a complaint was made that
C. Medlycot, esq., had been abused and insulted, “in respect
to the evidence by him given” before a committee. Mr.
Tovey, the person complained of, was declared to be guilty
of a breach of privilege, and was committed to the custody
of the serjeant-at-arms.?
On the 28th February 1728, it was reported to the house,
by a committee appointed to inquire into the state of the
gaols, that Sir W. Rich, a prisoner in the Fleet, had been
misused by the warden of the Fleet, in consequence of evi-
dence given by the former to the committee. The house
declared, nem. con., that the warden was guilty of contempt,
and committed him to the custody of the serjeant-at-arms.
On the 10th May 1733, complaint was made that Jeremiah
Dunbar, esq., had been censured by the House of Repre-
sentatives of Massachusetts Bay, for evidence given by him
before a committee on a Bill, upon which the house resolved,
nem. con., “That the presuming to call any person to account,
or to pass a censure upon him, for evidence given by such
person before this house, or any committee thereof, is an
audacious proceeding, and a high violation of the privileges
of this house."'4
On the 12th March 1819, the house being informed that
Mr. Goold, who had given his evidence at the bar, had been
insulted and threatened, in consequence of such evidence,
resolved, nem. con., that,
3
“T. W. Grady having used insulting language to a witness attend-
ing this house, and having threatened him with personal violence on
account of evidence already given by him, and which he may here-
after be called upon to give at the bar of the house, has been guilty
1 16 Com. J. 535.
2 18 Ib. 371.
3 21 Ib. 247.
4 22 Ib. 146.
166
PROTECTION OF WITNESSES.
of a high contempt, &c.," and committed him to the custody of the
serjeant-at-arms.
In 1819, Thomas Henton, a soldier examined before the
Worcester Election Committee, was arrested by the serjeant
of his regiment, in the lobby, for absenting himself from
drill. There were, however, other circumstances in the case,
which induced the house not to regard this as a breach of
privilege.
On the 2nd July 1845, Mr. Jasper Parrott complained to
the house, by petition, that an action had been commenced
against him in respect of evidence which he had given before
a committee. On the 3rd July a copy of the declaration
was delivered in by Mr. Parrott's agent, and the plaintiff
and his solicitors were ordered to attend on a future day."
On the 7th July they all attended, and having disclaimed
any intention of violating the privileges of the house, and
having declared that the action would be discontinued, they
were severally discharged from further attendance, although
the commencement of the action was declared to be a breach
of privilege. It is worthy of remark, that the plaintiff's
solicitor stated, in a petition to the house, that the declaration
had been framed upon the assumption that a witness would
not be protected, by privilege, in respect of any evidence
which was wilfully and maliciously false, any more than
the powers of the superior courts at Westminster would be
exerted to protect any witness from an indictment for
perjury. The house, however, did not recognise any such
analogy : but resolved to protect the witness from all pro-
ceedings against him, in respect of the evidence given by him
before a committee.
In the same year, a similar case occurred in the House of
Lords. Peter Taite Harbin had brought an action, by John
1 74 Com. J. 223.
2 39 Hans. Deb. 1st Ser. 1168.
1226.
3 100 Com. J. 672.
4 Ib. 680.
5 Ib. 697.
Ser. 1436.
81 Hans. Deb. 3rd
PROTECTION OF COUNSEL.
167
counsel.
Harlow, his attorney, against Thomas Baker, for false and
malicious language uttered before the House of Lords, in
giving evidence before a committee. On the 14th July, the
plaintiff and his attorney were summoned to the bar, and on
their refusal to state that the action should not be proceeded
with, were both declared guilty of a breach of privilege, and
committed. On the following day, the prisoners submitted
themselves to the house by petition, and stated that the
action had been withdrawn, upon which they were brought
to the bar, reprimanded by the lord chancellor, and dis-
charged.”
The privilege of protection from all molestation in respect Protectiou to
of what they have stated professionally, is also extended to
counsel. On the 21st March 1826, complaint was made
that an insulting letter had been written by John Lee
Wharton to Mr. Fonblanque, Q.C., in relation to a speech Mr. Fon-
blanque.
made by him, at the bar of the House of Lords, on the 16th
March. Wharton attended, according to order, and on
making a proper submission and apology, was discharged
from further attendance.3
And apart from the protection afforded by privilege, it Statements to
appears that statements made to Parliament in the course of not action-
its proceedings are not actionable at law. In Lake v. King,
which was an action upon the case for printing a false and
scandalous petition to the committee of Parliament for
grievances, it was agreed by the court, " that the exhibiting
the petition to a committee of Parliament was lawful, and
that no action lies for it, although the matter contained in
the petition was false and scandalous, because it is in a sum-
mary course of justice, and before those who have power to
examine whether it be true or false. But the question was,
whether the printing and publishing of it, in the manner
Parliament
4 able.
1 82 Hans. Deb. 3rd Series, 431.
See also the protest in the Lords'
Journal.
2 Ib. 494.
3 58 Lords' J. 128. 145.
4 1 Saunders' Reports, 131 b. 1
Lev. 240. 2 Keb. 361. 383.462. 496.
659. 801. See also 2 Inst. 228, as
to evidence before a jury being pri-
vileged.
168
STATEMENTS NOT ACTIONABLE.
But are ad-
: missible in
evidence.
alleged by the defendant in his plea,” viz., by delivering
printed copies to the members of the committee, "according
to custom used by others in that behalf, and approved of by
the members of the said committee,” was justifiable or not?
After this case had depended twelve terms, judgment was
given in Hilary Term, 19 & 20 Charles II., for the defendant,
by Hale, C. J., upon the ground, " that it was the order and
course of proceedings in Parliament to print and deliver
copies, whereof they ought to take judicial notice.'
In Rex v. Merceron there was an indictment against a
magistrate of the county of Middlesex for misconduct in his
office, in having corruptly. and improperly granted licences to
public-houses, which were his own property. In the course
of the evidence for the prosecution, it was proposed to prove
what had been said by the defendant, in the course of his
examination before a committee of the House of Commons,
appointed for the purpose of inquiring into the police of the
metropolis. The defendant had been compelled to appear
before this committee, and had, upon examination, delivered
in a list of certain public-houses, with the names of the owners
and other particulars. On the part of the defendant it was
objected, that since this statement had been made under a
compulsory process, from the House of Commons, and under
the pain of incurring punishment as for a contempt of that
house, the declarations were not voluntary, and could not be
admitted for the purpose of criminating the defendant; but
Abbott, C. J., was of opinion that the evidence was ad-
missible.1
2 Starlie's Nisi Prius Cases, 366.
1
t
JURISDICTION OF COURTS.
169
CHAPTER VI.
JURISDICTION OF COURTS OF LAY IN MATTERS OF PRIVILEGE.
The precise jurisdiction of courts of law in matters of privi- Difficulty of
the question.
lege, is one of the most difficult questions of constitutional
law that has ever arisen. Upon this point the precedents 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 jurisdiction of the courts, or
the bounds of parliamentary privilege: 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 Parliament Principles
stated.
claims to be sole and exclusive judge of its own privileges,
and that the courts have repeatedly acknowledged 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 jurisdic-
tion 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 courts may decline to
acknowledge the right of one house to supersede, by its sole
authority, the laws which have been made by the assent, or
which exist with the acquiescence, of all the branches of the
legislature. It is true that, in a general sense, the law of
170
JURISDICTION OF COURTS.
Parliament is the law of the land: but if one law should
appear to clash with the other, how are they to be reconciled?
Is the declaration of one component part of Parliament to be
conclusive as to the law; or are the legality of the declara-
tion, and the jurisdiction of the house, to be measured by
the general law of the land ? In these questions are com-
prised all the difficulties attendant upon the conflicting juris-
dictions 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 declaration
of either house of Parliament, in matters of privilege 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 declaring its privileges, Parliament
may assume to enlarge 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 as-
serted, in Parliament, upon the principles and with the limi-
tations 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 parti-
cular cases are cited, it will be advisable to take a general
view of the legal authorities which are favourable or adverse
to the claim, in its fullest extent, as asserted by Parliament.
The earliest authority on which reliance is usually placed,
in support of the claim, is the well-known answer of the
jurisdiction of judges in Thorpe's case.
In the 31st Henry VI., on the
.
Thorpe's case. Lords putting a case to the judges, whether Thomas Thorpe,
Authorities in
favour of the
exclusive
i See supra, p. 72.
EXCLUSIVE JURISDICTION OF PARLIAMENT.
171
the Speaker of the Commons, then imprisoned upon judg-
ment in the Court of Exchequer, at the suit of the Duke of
York, "should be delivered from prison by virtue of the
privilege of Parliament 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 privilege which was
clearly within the immediate jurisdiction 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 judges 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 confirmed Sir E. Coke.
by Sir Edward Coke, who lays it down that “whatever
matter arises concerning either house of Parliament, ought
to be discussed and adjudged in that house to which it re-
lates, and not elsewhere;? and again, that "judges ought
not to give any opinion of a matter of privilege, because it
is not to be decided by the common laws, but secundum leges
1 5 Rot. Parl. 240. See also Lord
Ellenborough's observations upon
this case, 14 East, 29.
2 4th Inst. 15.
172
EXCLUSIVE JURISDICTION
Lord Claren-
don.
2
Lord C. J.
North.
et consuetudinem Parliamenti; and so the judges, in divers
Parliaments, have confessed."1
These general declarations were explained and qualified by
Lord Clarendon, who, in his “History of the Rebellion,” thus
defines the jurisdiction of the Commons:
" They are the only 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. Soame, in 1674, Lord Chief
Justice North said:
“I can see no other way to avoid consequences derogatory to the
honour of the 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 province; for if we err, privilege of
Parliament will be invaded, which we ought not in any way to en-
damage.”3
But in the same argument he alleged "that actions may
be brought for giving Parliament protections wrongfully; actions
may be brought against the clerk of the Parliaments, 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 them to act by."4
In the case of Paty, one of the Aylesbury men, brought up
by habeas corpus, Mr. Justice Powell thus defined the juris-
diction of the courts in matters of privilege:
"This court may judge of privilege, but not contrary to the judg-
ment of the House of Commons.” 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." "The court of Parliament
is a superior court; and though the King's Bench have a power to
prevent excesses of jurisdiction in courts, yet they cannot prevent
such excesses in Parliament, because that is a superior court, and a
prohibition was never moved for to the Parliament."5
1 4th Inst. 15.
3 6 Howell, St. Tr. 1110.
2 Clarendon's Hist. of the Rebel-
lion, vol. ii. book iv. p. 195. 8vo. 5 2 Lord Raym. 1105.
edit. Oxf.
Mr. Justice
Powell.
4 Ib.
OF PARLIAMENT.
173
Blackstone.
In several other cases which related solely to commitments
by either house of Parliament, very decided opinions have
been expressed by the judges, in favour of privilege, and ad-
verse 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 Mr. Justice
so far as to affirm that “it is our duty to presume the orders
of that house [of Commons], and their execution, to be accord-
ing to law;" and in Rex v. Wright, Lord Kenyon said, Lord Kenyon.
“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 justified in any parti-
cular measure."
It is laid down by Hawkins that
Hawkins.
“ 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 presumed
that they act within their jurisdiction, and agreeably to the usages of
Parliament, and the rules of law and justice.'
112
And Lord Chief Baron Comyn, following the opinion of Lord C. B.
Coinyn.
Sir Edward Coke, affirms that
“ All matters moved concerning the Peers and Commons in Parlia-
ment, ought to be determined according to the usage and customs of
Parliament, and not by the law of any inferior court."3
These authorities are sufficient, for the present purpose, to
show the general confirmation of the exclusive jurisdiction of
Parliament, in matters of privilege: but even here the parlia-
mentary claim is occasionally modified and limited, as in the
opinions of Lord Clarendon, Chief Justice North, and Lord Authorities in
Kenyon. In other cases, the jurisdiction of courts of law has support of the
jurisdiction of
been more extensively urged, and the privileges of Parliament courts in
matters of pri-
vilege.
1 See supra, p. 82.
3 Digest, “Parliament" (G. 1).
2 Pleas of the Crown, c. 15, s. 73.
%
174
JURISDICTION OF COURTS.
man.
proportionately limited. In Benyon v. Evelyn, the Lord Chief
Sir 0. Bridg- Justice, Sir Orlando Bridgman, came to the conclusion,
“That resolutions or resolves of either house of Parliament, singly,
in the absence of parties concerned, are not so concludent upon courts
of law, but that we may, nay (with due respect, nevertheless, had to
their resolves and resolutions,) we must, give our judgment according
as we upon our oath conceive the law to be, though our opinions fall
out to be contrary to those resolutions or votes of either house."
Lord C. J.
Willes.
On another occasion Lord Chief Justice Willes said,
“I declare for myself, that I will never be bound by any determina-
tion of the House of Commons, against bringing an action at common
law for a false or double return; and a party may proceed in West-
minster Hall, notwithstanding any order of the house." 2
Lord Mans-
field.
Lord Mansfield, in arguing for the exclusive right of the
Commons to decide upon elections, said,
- That, in his opinion, declarations of the law by either House of
Parliament were always attended with bad effects: he had constantly
opposed them whenever he had an opportunity; and, in his judicial
capacity, thought himself bound never to pay the least regard to
them:" "but he made a wide distinction between general declarations
of law, and the particular decision which might be made by either
house, in their judicial capacity, on a case coming regularly before
them, and properly the subject of their jurisdiction.”3
Lord Ellen-
borough.
At another time the same great authority declared that "a
resolution of the House of Commons, ordering a judgment to
be given in a particular manner, would not be binding in the
courts of Westminster Hall."4 And in Burdett v. Abbot,
Lord Ellenborough said, “The question in all cases would be,
whether the House of Commons were a court of competent
jurisdiction, for the purpose of issuing a warrant to do the
act.'
Passing now to the most recent judicial opinions, the cases
of Stockdale v. Hansard and Howard v. Gosset present them-
selves. An outline of all the proceedings in these cases (the
99 5
i Benyon v. Evelyn, Bridgman,
324.
2 Wynne v. Middleton, 1 Wile.
3 16 Hansard, Parl. Hist. 653.
4 24 Ib. 517.
5 14 East, 128.
128.
JURISDICTION OF COURTS.
175
most important that had arisen since that of Ashby and
White), will be presently attempted : but, for the present,
the expositions of the judges, in reference to the general
jurisdiction of the courts, will be necessary to close this sum-
mary of authorities.
In giving judgment in the former case on the 31st May Stockdale v.
Hansard.
1839, Lord Denman used these words :
“But having convinced myself that the mere order of the house
will not justify an act otherwise illegal, and that the simple declara-
tion that that order is made in exercise of a privilege, does not prove
the privilege; it is no longer optional with me to decline or accept the
office of deciding whether this privilege exist in law. If it does, the
defendant's prayer must be granted, and judgment awarded in his
favour: or, if it does not, the plaintiff, under whatever disadvantage
he may appear before us, has a right to obtain at our hands, as an
English subject, the establishment of his lawful rights, and the means
of enforcing them.'
> 1
In the same trial Mr. Justice Littledale argued,
" It is said the House of Commons is the sole judge of its own privi-
leges; and so I admit, as far as proceedings in the house, and some
other things, are concerned: but I do not think it follows that they
have a power to declare what their privileges are, so as to preclude
inquiry whether what they declare are part of their privileges. The
attorney-general admits that they are not entitled to create new pri-
vileges: but they declare this (the publication of papers) to be their
privilege. But how are we to know that this is part of their privileges
without inquiring into it, when no such privilege was ever declared
before? We must therefore be enabled to determine whether it be
part of their privileges or not.”?
To this argument, however, it is an obvious answer that,
assuming the house to be the judge of its own privileges, it
is its province to determine whether a privilege be new or
not, from an examination of the Journals and other autho-
rities. The learned judge said further :
“I think that the mere statement that the act complained of was
done by the authority of the House of Commons is not of itself, with-
out more, sufficient to call at once for the judgment of the court for
the defendant." 3
1 Proceedings, printed by the Com-
mons, 1839 (283), p. 155.
? Ib. pp. 161, 162.
3 Ib. p. 162.
176
JURISDICTION OF COURTS.
Mr. Justice Patteson thus expressed his opinion:
“If the orders (of the House of Commons) be illegal, and not merely
erroneous, upon no principle known to the laws of this country, can
those who carry them into effect justify under them. A servant can-
not shelter himself under the illegal orders of his master, nor could
an officer under the illegal orders of a magistrate, until the legislature
interposed and enabled him to do so. The mere circumstance, there-
fore, that the act complained of was done under the order and au-
thority of the House of Commons, cannot of itself excuse the act, if it
be in its nature illegal; and it is necessary, in answer to an action for
the commission of such illegal act, to show, not only the authority
under which it was done, but the power and right of the House of
Commons to give such authority.”
1
And upon the question of jurisdiction he laid it down,
"That every court in which an action is brought upon a subject
matter generally and primâ facie within its jurisdiction, and in which,
by the course of the proceedings in that action, the powers and privi-
leges and jurisdiction of another court come into question, must of
necessity determine as to the extent of those powers, privileges, and
jurisdiction; and the decisions of that court, whose powers, privileges,
and jurisdiction are so brought into question as to their extent, are
authorities, and, if I may so say, evidences in law upon the subject,
but not conclusive," 2
In conclusion, Mr. Justice Coleridge thus summed up his
view of the duties of a court of law :
“The cause is before us; we are sworn to decide it according to our
notions of the law; we do not bring it here, and being here, a neces-
sity is laid upon us to deliver judgment; that judgment we can receive
at the dictation of no power; we may decide the cause erroneously,
but we cannot be guilty of any contempt in deciding it according to
our consciences.'
13
Howard v.
Gosset.
In the case of Howard v. Gosset, Mr. Justice Coleridge
again expressed his opinion as to the powers of a court of
law in matters of privilege:
“It is enough to say that the law is supreme over the House of
Commons, and over the Crown itself. If the limits of the law be
passed by either, for most satisfactory reasons, they are indeed them-
selyes irresponsible, but the law will require a strict account of the
1 Proceedings, printed by the
Commons, 1839 (283), p. 169.
2 Ib. p. 174.
3 Ib. p. 188.
ADVERSE JUDGMENTS.
177
1
adverse to
claims of
courts from inquirin.
acts of all persons and their agents; and these, according to the
nature of the illegality, will be answerable civilly or criminally."
With these conflicting opinions as to the limits of parlia- Judyments
mentary privilege, and the jurisdiction of courts of law, if
either House of Parliament insist upon precluding other privilege.
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 effect to them. But
if the courts regard a question of privilege as any other
point of law, and assume to define the jurisdiction of the
house,-in what manner, and at what point, can their ad-
verse 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 Parlia-
ment, one house would be constituted a judge of the privi-
leges claimed by the other. And if the privilege be denied
by the courts, the house has no other remedy, in the ordinary
courts of law, but an ultimate 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 inferior
tribunal. With these perplexities before them, it is not sur-
prising that the Commons should frequently have viewed
all legal proceedings, in derogation of their authority, as a
breach of privilege and contempt. They have restrained
1 Arguments and Judgment, as printed by the House of Commons, 1845
(305), p. 105.
P.
N
178
ADVERSE JUDGMENTS.
Case of Sir W.
Williams
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 a
narrative of the most important cases in which the privileges
of Parliament have been called in question.
Sir William Williams, Speaker of the House of Commons,
in the reigns of Charles II. and James II., 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 II., 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 Com-
mons, 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 made, but withdrawn; his plea,
that the order of the house was a justification, was set aside
by the court, without argument, as “an idle and insignificant
plea ;” and he was fined 10,0001. 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 con-
tempt of their authority, and declared the judgment to be
an illegal judgment and against the freedom of Parliament.1
It was also included in the general condemnation by the Bill
of Rights, of “prosecutions in the Court of King's Bench for
matters and causes cognisable only in Parliament."2 Three
bills were brought in, in 1689, in 1690, 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
information as Attorney-General.3
1 12th July 1689, 10 Com. J. 215.
2 See 10 Com. J. 146. 177.
3 2 Shower, 471. 13 Howell, St.
Tr. 1370. Wynn's Argument. 10
Com. J. 177. 205.
ADVERSE JUDGMENTS.
179
ham.
The next important case is that of Jay v. Topham, in 1689. Jay v. Top-
After a dissolution of Parliament, an action was brought in
the Court of King's Bench against John Topham, Esq.,
serjeant-at-arms, for executing the orders of the house in
arresting certain persons. Mr. Topham pleaded to the juris-
diction of the court the said orders : but his plea was over-
ruled, and judgment given against him. The house declared
this judgment to be a breach of privilege, and committed Sir
F. Pemberton and Sir T. Jones, who had been the judges in
the cause, to the custody of the serjeant-at-arms.
They had protested, in their examination, that they had
not questioned the legality of the orders of the house, but had
overruled, on technical grounds, the plea to the jurisdiction.
They averred also, that if there had been a plea in bar,
the defendant would have been entitled to a judgment.?
Assuming the truth of their statements, it has been generally
acknowledged that these proceedings against the judges were
liable to great objection. Lord Ellenborough 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 differed from." And Lord Denman,
in Stockdale v. Hansard, said that this judgment was
righteous, and that the judges " vindicated their conduct by
unanswerable reasoning ;'3 and again, in Howard v. Gosset,
he called the commitment of these judges “a flagrant abuse
of privilege :" but, on the other hand, Lord Campbell has
pointed out that there had been a plea in bar, which had
been overruled, as stated in the petition of Topham to the
House of Commons, and that the authority of that house
had, in fact, been questioned by the judges.
1 10 Com. J. 227.
2 12 Howell, St. Tr. 829. 831.
3 Shorthand writer's notes, 1839
(283), 149.
4 10 Com. J. 104.
5 Shorthand writer's notes of argu-
ment in Stockdale v. Hansard, 76.
2 Lives of the Ch. Justices, 57. 2
Nelson's Abridg. 1248.
X2
180
COMMITMENT OF PARTIES.
Ashby and
White.
The remarkable cases of Ashby and White, and the Ayles-
bury 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 elections :1 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 Com-
mons declared that such an action was a breach of privilege ;
6 and 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.” 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 declarations,
and resolved that the parties were" guilty of commencing and
prosecuting actions,” “ contrary to the declaration, in high
contempt of the jurisdiction, and in breach of the known
privileges, of this house :"2 for which offence, the parties and
their attorney were committed to Newgate. Thence they
endeavoured to obtain their release by 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
tumultuous session, occupied with addresses, conferences,
and resolutions upon privilege, the Queen prorogued the
Parliament.
On this occasion, the Commons, consistently with ancient
usage,5 endeavoured to stop the actions at their commence-
1 See supra, p. 59.
2 14 Com. J. 444,
3 Ib. 445.
4 Ib. 552.
6 See supra, p. 145.
STOCKDALE V. HANSARD.
181
ment, and thus to prevent the courts from giving any judg-
ment. 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 determine whether
commencing such actions, in future, will, in any case, be
regarded as a breach of privilege or not.
When Sir Francis Burdett brought actions against the Burdett v.
Abbot; Bur-
Speaker and the serjeant-at-arms, in 1810, for taking him to dett v. Col-
the Tower in obedience to the orders of the House of Com- man.
mons, 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. The judgment of that court was afterwards affirmed,
on a writ of error, by the Exchequer Chamber, and ultimately
by the House of Lords.
At a later period 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 debated and canvassed,
that nothing is needed but a succinct statement of the pro-
4
1 65 Com. J. 355. 16 Hans. Deb.
1st Ser. 915. 956. 969. Lord Col-
chester's Diary, ü. 263–277.
2 14 East, 1.
3 4 Taunt. 401.
4 5 Dow, 165,
182
STOCKDALE V. HANSARD.
Printed
papers;
Stockdale v.
Hansard.
ceedings, and a commentary upon the present position of
parliamentary privilege and jurisdiction.
Messrs. Hansard, the printers of the House of Commons,
had printed, by order of that house, the reports of the in-
spectors of prisons, in one of which a book published by
John Joseph Stockdale was described in a manner which
he conceived to be libellous. He brought an action against
Messrs. Hansard, during the recess in 1836, who pleaded
the general issue, and proved the order of the house to print
the report. This order, however, was held to be no defence
to the action : but Stockdale had a verdict against him upon
a plea of justification, 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. In 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.
The result of these inquiries was the passing of the following
resolutions by the house:
"That the power of publishing such of its reports, votes, and pro-
ceedings 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 such privilege, and renders all parties
STOCKDALE V. HANSARD,
183
concerned therein amenable to its just displeasure, and to the punish-
ment consequent thereon.
" That for any court or tribunal to assume to decide upon matters
of privilege inconsistent with the determination of either house of
Parliament thereon, is contrary to the law of Parliament, and is a
breach and contempt of the privileges of Parliament.”ı
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 plea 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 privileges and
order of the house were alone relied upon in their defence,
and the Court of Queen's Bench unanimously decided against
them.
Still the House of Commons was reluctant to act upon its
Damages
own resolutions, and instead of punishing the plaintiff, and paid.
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
publication of the same report. 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
6001. The Sheriffs of Middlesex levied for that amount,
but having been served with copies of the resolutions of the
house, they were anxious to delay paying the money to
1 92 Com. J. 418.
184
PRINTED PAPERS..
Stockdale as long as possible, in order to avoid its threatened
displeasure.
Commitment At the opening of the session of Parliament in 1840, the
of the sheriffs.
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 Court of 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 damages 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 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
Act for the not to plead. At length, as there appeared to be no proba-
publication
bility of these vexatious actions being discontinued, a bill
was introduced into the Commons, by which proceedings,
criminal or civil, against persons for publication of any
of papers.
| 11 Adolphus & Ellis, 253.
HOWARD 1. GOSSET.
185
Gosset and
reports, papers, votes, or proceedings published by order or
under the authority of either house of Parliament, are to be
stayed by the courts, upon delivery of a certificate and
affidavit that such publication is by order or under the
authority of either house of Parliament. An extract from,
or abstract of, a parliamentary paper, published bonâ fide and
without malice, is also protected by this act. This bill was
agreed to by the Lords, and received the royal assent. It
has removed one ground for disputing the authority of Par-
liament:? but has left the general question of privilege and
jurisdiction in the same uncertain state as before.
In executing the Speaker's warrant for taking Mr. Howard Howard v.
into custody, the officers employed by the serjeant-at-arms, others.
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 might have exceeded
their authority, and as the right of the house to commit was
not directly brought into question, the defendants were, in
this case, permitted to appear, and defend the action ;3 al-
though 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
15th 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
give evidence. At the same time the clerk of the journals,
who had received a subpoena, had leave to attend and give
1 3 & 4 Vict. c. 9.
2 The action of Harlow v. Hansard
was stayed 14th July 1845, by Mr.
Justice Wightman in chambers, on
the production of the Speaker's cer-
tificate. In the case of Houghton
and others v. Plimsoll, tried at Liver-
pool, 1st April 1874, Baron Amphlett
directed the jury that the report of
a Royal Commission, presented to
Parliament in a printed form, came
within the provisions of the Act
for the publication of Parliamentary
papers, “since it was a report which
had been adopted by Parliament, and
of which a distribution of copies had
been ordered by Parliament."
3 95 Com. J. 236. Hans. Deb. 31st
March 1840.
186
HOWARD V. GOSSET.
Howard's
second action.
evidence, and to produce the journal of the house. The
cause was tried before Lord Denman, in the sittings after
Michaelmas term, 1842, when Parliament was not sitting,
and a verdict was given for the plaintiff, with 1001. 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 from
home. The Attorney-General, who appeared in their defence,
admitted that they were not justified in their conduct; and
the case can scarcely be cited as one of privilege.
But other actions were afterwards commenced by Mr.
Howard against Sir William Gosset and other officers 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 gave all the defendants
leave to appear and defend the actions, and directed the
Attorney-General to defend them. The only action that
came on for trial was that against the serjeant himself :
but three other actions were commenced against the officers
of the house, in one of which the damages were laid at
100,0001.
The second action of Howard v. Gosset came on for trial
on the 15th November 1844; and the circumstances in
which it originated, and the results to which it led, may be
briefly described. Mr. Howard, having expressed his regret
for commencing Stockdale's third action against Messrs.
Hansard, had been reprimanded by the Speaker and dis-
charged; when he immediately commenced a fourth action.
He was then ordered to attend the house forth with : but it
appeared from the evidence of the messengers, that he was
wilfully evading the service of the order, and could not be
found. The house, instead of resolving that he was in
.
1 97 Com. J. 378.
2 11 Adolphus & Ellis, 273.
3 98 Com. J. 59.
4 Ib. 118. Hans. Deb, 15th March
1843,
*
HOWARD V. GOSSET.
187
contempt, adopted the precedent of 31st March 1771, and,
according to ancient custom, ordered that he should be
sent for in the custody of the serjeant-at-arms,2 and that
Mr. Speaker should issue his warrant accordingly. The
warrant was in the following form:
“Whereas the House of Commons have this day ordered that Form of
Thomas Burton Howard be sent for in the custody of the serjeant- warrant.
at-arms attending this house: these are therefore to require you to
take into your custody the body of the said Thomas Burton Howard,"
&c. &c.
Howard was taken into custody on this warrant, and
brought to the bar; and it was for this arrest that the action
of trespass was brought. Pleas were put in justifying the
acts of the serjeant, under the authority of the warrant, to
which there were special demurrers, denying their sufficiency
in law.
In the argument it was contended, not only that the war- Arguments
and judg-
rant was informal, but that the house had exceeded its juris- ment.
diction in sending for a person in custody, without having
previously adjudged him guilty of a contempt. The house
might have sent for him, it was urged, and when he did not
appear, have declared him in contempt, and committed him
for his offence: but they had no right to bring him in custody,
and thus imprison him upon a charge instead of on con-
viction. This doctrine, however, was not supported by the
court: but judgment was given for the plaintiff on other
grounds. The three judges whose opinion was for the
plaintiff, each differed as to the grounds of the judgment.
Mr. Justice Wightman thought the warrant technically bad,
because in the mandatory part it merely directed the serjeant
to take the plaintiff into custody, whereas in the recital it
appeared that he was to be sent for in custody. Mr. Justice
Coleridge differed upon this point, and thought the mandatory
part was to be read with the recital, and thus made consistent.
His main objection to the warrant was, that it did not express
1 21 Com. J. 705.
2 95 Ib, 30.
188
HOWARD V. GOSSET.
the cause for which the plaintiff was to be sent for. From
this opinion, again, Lord Denman expressed his dissent; but
thought the warrant otherwise bad. On the other hand,
Mr. Justice Williams was of opinion that there should be
judgment for the defendant. The grounds upon which the
judgment was pronounced were so far technical, that the
judges considered that no question of privilege was involved
in their decision; and “that the form of the warrants issued
by Mr. Speaker, by order of the house, may be questioned
and adjudged to be bad, without impugning the authority of
the house, or in any way disputing its privileges.” From
this doctrine a committee of the Commons? entirely dissented.
“They could not admit the right of any court of law to
decide on the propriety of those forms of warrants which the
house, through its highest officer, has thought proper to adopt
on any particular occasion. If the highest court of law has
this right, it is impossible to deny it to the lowest.” The
committee, in considering the course to be adopted by the
house in consequence of this judgment, thus expressed the
difficulties of their situation :-
They are not insensible to the public evil which might result from
the adoption by the House of Commons of decisive measures for
resisting the execution of a judgment of a court of law. They are
not without apprehension that such measures may hereafter become
inevitable; but they entertain a strong conviction that it would be
inexpedient for the house needlessly to precipitate such a crisis; and
they think that every other legitimate mode of asserting and defending
its privileges should be exhausted before it resorts to the exercise of
that power which it possesses, of preventing, by its own authority, the
further progress of an action in which judgment has been obtained.”
Writ of error.
The house concurred in the opinion of the committee, and
ordered that a writ of error be brought upon the judgment
of the Court of Queen's Bench. In the meantime, in order
to avoid “submitting to abide by the judgment of the court
of error, in the event of its being adverse,” the serjeant was
1 2nd Report on Printed Papers,
1845 (397), p. vi.
2 100 Com. J. 642. See also Hans.
Deb. 30th May and 26th June 1845
PRESENT POSITION OF PRIVILEGE.
189
Russell.
not authorised to give bail, and execution was levied on his
goods. Judgment was given by the Court of Exchequer
Chamber, on the writ of error, on the 2nd February 1847,
when the judgment of the court below was reversed by the
unanimous opinion of all the judges of whom the court was
composed. They found,“ that the privileges involved in this
case are not in the least doubtful, and the warrant of the
Speaker is, in our opinion, valid, so as to be a protection to
the officer of the house."2
On the 19th February 1852, the serjeant-at-arms acquainted Lines v.
the house that he had been served with a writ and declaration,
at the suit of William Lines, a witness before the St. Albans
Election Committee of the previous session, whom he had
taken into custody by virtue of a warrant from the chairman
of that committee. The serjeant stated, that before he
pleaded, he thought it necessary to make this fact known to
the house. On the following day the house resolved, that
the serjeant have leave to plead to and defend the action.
He pleaded accordingly, and it was held that he was justified
by the warrant.
On the 5th May 1882, the serjeant having informed Bradlaugh v.
the house that an action had been commenced against
Mr. Erskine, the deputy serjeant, by Mr. Bradlaugh, for an
assault in removing him from the lobby, the house on the 9th
gave
leave to Mr. Erskine to appear and plead in the action,
and directed the Attorney-General to defend him. In the
following January, judgment was given for the defendant
on demurrer, it being held by the court that the order of the
house furnished a sufficient justification of anything done by
the defendant under it, and within its scope,' and on the 20th
February 1883, final judgment was given for the defendant.8
Thus far the course adopted by the house has led, for the Present
5
Erskine.
1 100 Com. J. 562.
2 Shorthand writer's notes, 1847
(39), p. 164. See also supra, p. 176.
3 107 Com. J. 64.
Ib. 68.
5 See supra, p. 86.
6 137 Com. J. 182. 187.
“Times,” 12th January 1883.
$ Ib. 21st February 1883.
190
REMEDY BY STATUTE.
position of
privilege.
present, to a fortunate termination of its contests with the
courts of law; but, if any judgment had been ultimately
adverse to their privileges, they would have been involved in
still greater embarrassments. Later decisions of the courts
encourage the hope that further contests may be remote, but
it must be acknowledged that the 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 pro-
ceeding with them, by some legal process acknowledged by
the courts, can only be coerced by an unpopular exercise of
privilege, which does not stay the actions. If 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 judges who gave the obnoxious judgment to pass with-
out censure, is inconsistent in principle, and betrays hesita-
tion 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 the 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 contest is pending, and
when its provisions may be calmly examined, without refer-
ence to a particular privilege, or a particular judgment of the
Remedy by
statute.
REMEDY BY STATUTE.
191
courts. It is not desired that Parliament should, on the one
hand, surrender any privilege that is essential to its dignity,
and to the proper exercise of its authority; nor, on the other,
that its privileges should be enlarged. But some mode of
enforcing them should be authorized by law, analogous to an
injunction issued by a court of equity to restrain parties from
proceeding with an action at common law, and even with a
private bill, or an opposition to a private bill, in Parliament;2
and such a prohibition should be made binding, not only upon
the parties, but upon the courts.
1 These views, expressed long since, way Bill, 1850. Stockton and Har-
receive confirmation from a letter of tlepool Railway Company v. Leeds
Lord Jeffrey, 2 Cockburn's Life, 353. and Thirsk and Clarence Railway
2 Hartlepool Junction Railway Companies, 5 Railway and Canal
Bill, 1848. See 100 Hans. Deb. 3rd Cases, 691. Kingstown Township
Ser. 783. North Staffordshire Rail- Bill, 1873.
( 192 )
BOOK II.
PRACTICE AND PROCEEDINGS IN PARLIAMENT.
CHAPTER VII.
INTRODUCTORY REMARKS.
MEETING OF A NEW PARLIAMENT.
ELEC-
TION AND ROYAL APPROBATION OF THE SPEAKER OF THE COMMONS.
OATHS. QUEEN'S SPEECH AND ADDRESSES IN ANSWER. PLACES
OF PEERS AND MEMBERS OF THE HOUSE OF COMMONS.
ATTEND-
ANCE ON THE SERVICE OF PARLIAMENT.
OFFICE OF SPEAKER IN
BOTH HOUSES.
PRINCIPAL OFFICERS.
JOURNALS,
ADMISSION OF
STRANGERS.
PROROGATION.
remarks.
Ancient
usage.
Introductory The proceedings of Parliament are regulated chiefly by
ancient usage, or by the settled practice of modern times,
apart from distinct orders and rules : but usage has frequently
been declared and explained by both houses, and new rules
have been established by positive orders and resolutions.
Ancient usage, when not otherwise declared, is collected from
the Journals, from history and early treatises, and from the
continued experience of practised members. Modern prac-
practice.
tice is often undefined in any written form; it is not recorded
in the Journals; it is not to be traced in the published de-
bates; nor is it known in any certain manner but by personal
experience, and by the daily practice of Parliament, in con-
ducting its various descriptions of business.
Numerous orders and resolutions for regulating the pro-
ceedings of Parliament are to be found in the Journals of
Modern
INTRODUCTORY REMARKS.
193
both houses, which may be divided into : 1, standing orders;
2, sessional orders; and 3, orders or resolutions, undeter-
mined in regard to their permanence.
1. Both houses have agreed, at various times, to standing Standing
orders.
orders, for the permanent guidance and order of their pro-
ceedings; which, if not vacated or repealed, endure from one
Parliament to another, and are of equal force in all. They
occasionally fall into desuetude, and are regarded as practi-
cally 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 opera-
tion is concluded by another vote of the house, upon the same
matter. But on the 1st December 1882, resolutions con-
stituting standing committees were made standing orders
until the end of the next session.
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 dispensing
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. Until 1854, no authorized collection of the standing
orders of the House of Commons had ever been compiled,
except in relation to private bills.3
2. At the commencement of each session both houses agree Sessional
orders.
to certain orders and resolutions, which, from being con-
stantly renewed from year to year, are evidently not intended
1 In the Lords, the rescinding of a read and made standing orders.
standing order istermed“ vacating;" 2 Lords' S. O. No. 49,
in the Commons, “repealing.” The 3 In 1854, a manual of “Rules, Or-
earliest example of a standing order ders and Forms of Proceeding of the
being repealed, was on the 21st Nov. House of Commons, relating to Public
1722, 20 Com. J. 61. On the 23rd Business,” was drawn up by the
May 1678, certain standing orders author of this work, under the direc-
against written protections were tion of the Speaker; and was printed
ordered to be published by being set by order of the house in 1854, and in
up in Westminster Hall. Sometimes each succeeding Parliament.
resolutions of a former session are
P.
o
194
PLAN OF SECOND BOOK.
Orders and
resolutions,
Statutes and
prerogative.
to endure beyond the existing session. They are few in
number, and have but a partial effect upon the business of
Parliament.
3. The operation of orders or resolutions of either house,
of which the duration is undetermined, is not settled upon
any certain principle. By the custom of Parliament they
would be concluded by a prorogation : but many of them are ;
practically observed and 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.1
In addition to these several descriptions of internal autho-
rity, by which the proceedings of both houses are regulated,
they are governed, in some few particulars, by statutes and
by royal prerogative.
The proceedings of Parliament will now be followed in the
order which appears the best adapted for rendering them in-
telligible, without repetition, and apart from any presumption
of previous knowledge on the part of the reader. In this
chapter it is proposed to present an outline of the general
forms of procedure, in reference to the meeting, sittings,
adjournment, and prorogation of Parliament; and, in future
chapters, to proceed to the explanation of the various modes
of conducting parliamentary business, with as close an atten-
tion to methodical arrangement, 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 proceeding: but wherever there is no difference, one
Plan of the
Second Book
1 See Report of Committee on Jew-
ish Relief Act 1859, Sess. 1, No. 205;
and 152 Hans. Deb. 3rd Ser. 459.
For examples of resolutions being
observed as permanent, without being
made Standing Orders, may be cited,
the ballot for preredence of men-
bers at the opening and prorogation
of Parliament by the Queen, see infra,
p. 220; the resolutions relating to the
exclusion of strangers ; the time for
presenting estimates; and the new
rules of the Committee of Supply.
MEETING OF PARLIAMENT.
195
new Parlia-
account of a rule or form of proceeding, without more parti-
cular explanation, may be understood as applicable equally
to both Houses of Parliament.
On the day appointed by royal proclamation for the first Meeting of a
meeting of a new Parliament for despatch of business, the ment.
members of both houses assemble in their respective chambers.
In the House of Lords, the lord chancellor acquaints the
house, " that her Majesty not thinking it fit to be personally
present here this day, 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 five 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 Commons know the lords commissioners
desire their immediate attendance in this house, to hear the
commission read.”
Meanwhile, the clerk of the Crown in Chancery has de- Commons
livered to the clerk of the House of Commons a book, con- House of
taining the names of the members returned to serve in the Peers.
Parliament;2 after which, on receiving the message from the
black rod, the Commons go up to the House of Peers. The
lord chancellor there 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, con-
stituting us, and other lords therein mentioned, her commis-
sioners, to do all things in her Majesty's name, on her part
necessary to be performed in this Parliament," &c. These
attend in the
1 See supra, p. 51. It may be ob-
served that Parliament is generally
summoned to meet on a Tuesday or
Thursday, which are convenient days
for the arrival of members. In 1809,
Monday having been proposed for
the meeting, Mr. Wilberforce pro-
tested that it would involve travel-
ling on Sunday, and the day was
accordingly changed.-3 Wilber-
force's Diary, 397, 398. 1 Wal-
pole, Life of Spencer Perceval, 302.
2 If any returns are outstanding
at the return of the General Election
Writs, the deputy clerk of the Crown
attends the clerk of the journals of
the House of Commons, and there
enters every return as it comes in,
until the book is complete. This
regulation was made by Mr. Speaker
Abbot on the general election, Nov.
1812.-Crown Office Precedent Book.
02
196
MEETING OF PARLIAMENT.
?
letters patent are next read at length by the clerk; after
which the lord chancellor, acting in obedience to these general
directions,' again addresses both houses, and acquaints them,
“That ber 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.'
Proceedings In 1868, an exceptional course, in the opening of Parlia-
on change of
ministry ment, was rendered necessary by peculiar circumstances.
during recess. Parliament had been dissolved in November, and was sum-
moned to meet on Thursday, 10th December. A week
before this time, however, ministers having resigned, Mr.
Gladstone had been charged to form a new administration,
which was sworn in on the 9th December. To have pro-
rogued Parliament, at so short a notice, would have been
highly inconvenient: while without any ministers in the
1 On the opening of a new Parlia- functi officio. In all similar cases,
ment, the Commissioners, without there had been a Commission ; but
any express directions to that effect it happened that on each of those occa-
in the Commission, direct the Com- sions, Parliament had been opened by
mons to elect a Speaker, and after- the king or queen in person.
wards signify her Majesty's approval. 2 The forms hêre described have
But when a vacancy occurs in the been in use, with little variation,
office of Speaker, during a session, a since the 12th Anne (1713). Before
special commission is required to sig- that time the sovereign usually came
nify the Queen's approval. (Mr. down on the first day of the new Par-
Speaker Shaw Lefevre, 1839; Mr. liament, and on one occasion Queen
Speaker Brand, 1872.) Mr. Speaker Anne came down three times, viz. to
Evelyn Denison having resigned very open Parliament, to approve the
early in the session of 1872, it was Speaker, and to declare the causes
suggested that the Commissioners, of summons in a speech from the
under the recent Commission for throne (1707), 15 Com. J. 393; 17
opening and holding Parliament, Ib. 472. In 1774, 1780, 1784, and
were empowered to signify this 1790, George III. came down, on
approval. After full consideration, the first day, when the Commons
however, it was determined by the were directed to chose their Speaker,
Lord Chancellor that a new Com- 35 Com. J. 5; 38 Ib. 5; 40 Ib. 5; 46
mission was required, the Commis- Ib. 5.
sioners who opened Parliament being
MEETING OF PARLIAMENT.
197
1
House of Commons, and without previous consultation, it
was not possible to open Parliament in the accustomed
manner, with a Queen's speech and addresses from both
houses. A precedent was found in December 1765, when
the Rockingham ministry having come into office during the
recess, the king, in person, opened Parliament in a speech,
in which he adverted briefly to the troubles then commenc-
ing in the American colonies, but said he had then called
Parliament together to give an opportunity of issuing writs.
This precedent, however, was open to objection, as the speech
having all the usual solemnities, required addresses in answer,
and was, in fact, the occasion of amendments and debates.
A more convenient course was therefore taken. Instead of
a Queen's speech, the lords' commissioners, under the great
seal for opening and holding the Parliament, after the elec-
tion of the Speaker, and some days spent in the swearing in
of members of both houses, had it further in command to
acquaint both houses that since the time when her Majesty
had deemed it right to call them together, several vacancies
had been caused by the acceptance of office from the Crown;
and that it was her Majesty's pleasure that an opportunity
should now be given to issue writs, and that after a suitable
recess they might proceed to the consideration of such matters
as would then be laid before them.2 By this proceeding,
which was merely formal, the necessity of addresses was
avoided : there were no debates: the new writs were issued,
and both houses adjourned.S
The same course was followed under similar circumstances
in March 1874,4 and again in April 1880.5 On the latter
occasion her Majesty's pleasure was further signified that the
1 17th December 1765, 31 Lords'
J. 223.
2 15th December 1868, 124 Com.
J. 5.
3 In 1828, when there was a change
of ministry, during the recess, no such
preliminaries were deemed necessary.
On the 29th January, sixteen new
writs were moved; but the King's
speech was delivered as usual, and
the debate upon the address was con-
ducted as if nothing had happened.
4 129 Com. J. 5.
5 135 Ib. 123.
198
INTRODUCTION OF PEERS.
Proceedings
in the Lords.
Prayers.
recess should not be an impediment to the meeting of the
House of Lords for judicial business.
But,--to proceed with the accustomed forms,—the Com-
mons withdraw immediately after the Queen's pleasure for
the election of a Speaker has been signified, and return to
their own house, while the House of Lords is adjourned
during pleasure, to unrobe. On that house being resumed,
the prayers, with which the business of each day is com-
menced, are read, for the first time, by a bishop, or if no
bishop be present, by any peer in holy orders ; 2 or if there
be none present, then by the lord chancellor or lord on the
woolsack, or by any peer who may be in the house. The
lord chancellor first takes and subscribes the oath singly, at
the table. The clerk of the Crown delivers a certificate of
the return of the sixteen representative peers of Scotland;
and Garter king of arms the roll of the lords temporal ;
after which the lords who are present present their writs ó at
the table, and take and subscribe the oath required by law.6
A peer of the blood royal takes the oath singly, like the
lord chancellor.
At this time, also, peers are introduced who have received
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 intro-
duced in their robes, between two other peers of their own
dignity, also in their robes, and are preceded by the gentle-
1 Usually the junior bishop, 1.c. first time, is required to prove his
the bishop last admitted to the house. right, to the satisfaction of the lord
2 73 Lords' J. 568.
chancellor,
3 On the 19th July 1879, the 17th 6 See infra, p. 205.
January 1881, and again on the fol- 7 89 Lords' J. 26 (Duke of Edin-
lowing day, prayers were read by burgh); 98 Ib. 382; the same cere-
the Lord Chancellor, no bishop being monies were observed in the cases
present. Lords' Minutes.
of the Duke of Connaught, and tho
426 Lords' J. 138. 157.
Duke of Albany.
5 A new writ is issued to every 8 73 Lords' J. 569; 89 Ib. 6. For
peer, except Scotch representative proceedings on the introduction of
peers, at the commencement of each the Prince of Wales, see Lords'
new Parliament. A peer by descent, Minutes, Feb. 5th, 1863.
beforc he can take his seat for the
Introduction
of peers.
ELECTION OF SPEAKER.
199
man usher of the black rod (or in his absence by the yeoman
usher), by Garter king of arms (or in his absence by Claren-
ceux king of arms, or any other herald officiating for Garter
king of arms), and by the earl marshal, and lord great
chamberlain. It is not necessary, however, that the two last
officers should be present. Being thus introduced, peers are
conducted to their seats, according to their dignity.
When a new representative peer of Ireland has been
elected, he is not introduced, but simply takes and subscribes
the oath. The clerk of the Crown in Ireland attends with
the writs and returns, with his certificate annexed, which
certificate is read and entered on the Journal.
A bishop is introduced by two other bishops, presents his And bishops.
writ, on his knee, to the lord chancellor, and is conducted to
his seat amongst the spiritual lords : but without some of the
formalities observed in the case of the temporal peers.
With regard to peers by descent, or by special limitation Peers by
in remainder, there are the following Standing Orders :
“ That all peers of this realm by descent, being of the age of one
and twenty years, have right to come and sit in the House of Peers
without any introduction.
“That no such peers ought to pay any fee or fees to any herald 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 herald, or with any ceremony, though they shall desire
the same, &c.?
“ That every peer of this realm claiming by virtue of a special By special
limitation in remainder, and not claiming by descent, shall be intro- limitations in
duced.”3
descent.
remainder.
v
The Commons, in the meantime, proceed to the election of Election of a
Speaker by
their Speaker. A member, addressing himself to the clerk the Commons.
(who, standing up, points to him, and then sits down), pro-
poses to the house some other member then present, and
moves that he, “ do take the chair of this house as Speaker,''
which motion is seconded by another member. If no other
1 73 Lords' J. 575.
2 Lords' S. O. No. 13.
3 Ib. No. 14.
4 Mr. Pitt was desirous of pro-
posing Mr. Addington himself: but
Mr. Hatsell on being consulted said,
200
ELECTION OF SPEAKER.
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, without any question being put.?
He now 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. 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 the claims of each
candidate, 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 first pro-
posed “do take the chair of this house as Speaker," and if
the house divide, he directs one party to go into the right
lobby, and the other into the left lobby, and appoints two
tellers for each. If the majority be in favour of the member
first proposed, he is at once conducted to the chair : but if
otherwise, a similar question is put in relation to the other,
which being resolved in the affirmative, that member is con-
ducted to the chair by his proposer and seconder.4
"I think that the choice of the seconder to be taken from different
Speaker should not be un the motion sides of the house, as in 1852, 1859,
of the minister. Indeed an invidious 1866, 1868, 1874, and 1880.
use might be made of it, to represent 1 96 Com. J. 463.
you as the friend of the minister, 2 108 Ib. 7; Hans. Deb. 4th No-
rather than the choice of the house. vember 1852. 2 Hatsell, 218 and
Mr. Pitt acknowledged the force of note. 112 Com. J. 119; 114 Ib. 191 ;
this objection. 1 Pellew, Life of 121 Ib. 9.
Lord Sidmouth, 78, 79. A county
3 Election of Mr. Shaw Lefevre,
and a borough member are generally 94 Com. J. 274. It had previously
selected for proposing and seconding been the custom to appoint one teller
the Speaker. In 1868, a borough only, for each party. See Chap. XII,
and an university member performed DIVISIONS.
this office. When a Speaker is re- 4 Election of Mr. Abercromby, 9th
elected without opposition, it has February 1835; 90 Com. J. 5.
been usual for the proposer and
SPEAKER OF THE COMMONS.
201
returns
The Speaker elect, on being conducted to the chair, stands Speaker elect
on the upper step and “expresses his grateful thanks,”” or thanks.
“humble acknowledgments,""? “for the high honour the house
had been pleased to confer upon him;" and then takes his
seat. The mace, which up to this time has been under the The mace.
table, is now laid upon the table, where it is always placed
during the sitting of the house, with the Speaker in the
chair.3 Mr. Speaker elect is then congratulated by some
leading 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 rod, Speaker elect.
from the lords commissioners. When that officer has deli-
vered his message, Mr. Speaker elect, with the house, goes
up to the House of Peers, and acquaints the lords commis-
sioners, -
is that in obedience to her Majesty's commands her Majesty's faithful
Commons, in the exercise of their undoubted right and privilege, 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.”
bation of the
In reply, the lord chancellor assures him of her Majesty'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 Lays claim to
the privileges
behalf of the Commons,“ by humble petition to her Majesty, of the
to all their ancient and undoubted rights and privileges,
» Commons.
1 90 Com. J. 5.
the same year.
6 Ib. 166; 7 Ib. 282.
2 96 Ib. 465 ; 103 Ib. 7; 108 Ib. 7; 4 80 Lords' J. 8; 89 Ib. 7, &c. It
112 Ib. 119; 135 Ib. 123.
was formerly customary for the
3 The present mace dates from the Speaker elect to declare that he felt
restoration of Charles II., when a the difficulties of his high and ar-
new mace was ordered, 21st May duous office, and that, “ if it should
1660. 8 Com. J.39. After the death be her Majesty's pleasure to disap-
of Charles I., in 1648, a new mace prove of this choice, her Majesty's
had been made, which was the
faithful Commons will at once select
celebrated “bauble" taken away by some other member of their house,
Cromwell's order, on the 19th April better qualified to fill the station than
1653, and restored on the 8th July of himself."
202
SPEAKER OF THE COMMONS.
Speaker
elected for
the whole
Parliament.
Vacancy
during the
session,
"2
which being confirmed, the Speaker, with the Commons,
retires from the bar of the House of Lords.
The Speaker thus elected and approved, continues in that
office during the whole Parliament, unless in the meantime he
resigns, or is removed by death. In the event of a vacancy
during the session, similar forms are observed in the election
and approval of a Speaker:' except that instead of her
Majesty's desire being signified by the lord chancellor in the
House of Lords, a minister of the Crown, in the Commons,
acquaints the house that her Majesty “gives leave to the
house to proceed forthwith to the choice of a new Speaker;
and when the Speaker has been chosen, the same minister
acquaints the house that it is her Majesty's pleasure that the
house should present their Speaker to-morrow (at an hour
stated) in the House of Peers, for her Majesty's royal appro-
bation. Mr. Speaker elect puts the question for adjournment,
and when the house adjourns, he leaves the house, without
the mace before him. On the following day the royal appro-
bation is given by the lords commissioners under a commis-
sion for that purpose, with the same forms as at the meeting
of a new Parliament, except that the claim of privileges is
omitted.3
1 These forms preclude the pro-
posal of any member as Speaker
during the session, who has not taken
the oaths and his seat. See case of
Mr. Charles Dundas, proposed by
Mr. Sheridan, 11th February 1801.
35 Parl. Hist. 951; 1 Pellew, Life
of Sidmouth, 304. In 1822, this con-
sideration prevented Mr. Speaker
Manners Sutton from vacating his
seat, in order to stand for the Uni.
versity of Cambridge. i Court and
Cabinets of Geo. IV. 394 ; Lord Col-
chester's Diary, iii. 260.
2 94 Com. J. 274. 127 Ib. 23.
For probably the earliest instance
of proceedings on the death of a
Speaker, see 1 Com. J. 116; 1 Parl.
Hist. 811.
3 71 Lords' J. 308; 11 Com. J.
272; 94 Ib. 274; 127 Ib. 23 ; 1
Pellew, Life of Lord Sidmouth,
304. On the election of Mr. Ad-
dington in 1789, the king himself
came down to the House of Lords,
to signify his approbation in person.
44 Com. J. 435; 1 Pellew, Life of
Lord Sidmouth, 66–68. For pro-
ceedings taken upon the retirement
of a Speaker, see Journals and De-
bates, 30th May, and 3rd and 5th
June 1817 (Mr. Speaker Abbot);
15th May 1839 (Mr. Speaker Aber-
cromby); 9th and 10th March 1857
(Mr. Speaker Shaw Lefevre); Feb-
ruary 1872 (Mr. Speaker Evelyn
Denison).
SPEAKER OF THE COMMONS.
203
these forms.
The ceremony of receiving the royal permission to elect a Exceptions to
Speaker, and the royal approbation of him when elected, has
been constantly observed, except during the Civil War, and
the Commonwealth, and on three other occasions, when from
peculiar circumstances it could not be followed.
1. Previous to the Restoration in 1660, Sir Harbottle
Grimston was called to the chair without any authority from
Charles II., who had not yet been formally recognized by
the Convention Parliament. 2. On the meeting of the Con-
vention Parliament on the 22nd January 1688, James II.
had fled, and the Prince of Orange had not yet been declared
king; when the Commons chose Mr. Henry Powle as Speaker,
by their own authority. 3. Mr. Speaker Cornwall died on
the 2nd January 1789, at which time George III. was men-
tally incapable of attending to any public duties: and on the
5th, the house proceeded to the choice of another Speaker,
who immediately took his seat, and performed all the duties
of his office.3
So strong had been the sense of the Commons, of the
necessity of having their choice confirmed, that in 1647,
when the king had been delivered up by the Scots, and
was under the guard of the Parliament and the army,
they resorted to the singular expedient of presenting their
Speaker, Mr. Henry Pelham, to the Lords, who signified
their approval.
The only instance of the royal approbation being refused Royal
was in the case of Sir Edward Seymour in 1678.5 Sir John approbation
Popham, indeed, had been chosen Speaker in 1449, but his
excuse being admitted by the king, another was chosen by
1 8 Com. J. 1.
2 10 Ib. 9.
3 44 Ib. 45.
45 Ib. 259, 260; 5 Clarendon,
Hist. 462.
5 6th March 1678-79. 4 Parl. Hist.
1092; 6 Grey's Deb. 404 et seq., 424.
Mr. Parry inadvertently states that
Mr. Serjcant Gregory was elected on
that day, and rejected by the king
(Parliaments and Councils of Eng-
land, 586); but the latter was not
elected until the 17th, after a short
prorogation, by which the contention
between the Court and the Commons,
arising out of the disapproval of Sir
E. Seymour, had been compromised.
204
OATHS.
Oaths in the
Commons.
the Commons in his place;' and Sir Edward Seymour, who
knew that it had been determined to take advantage of his
excuse, purposely avoided making any, so as not to give the
king an opportunity of treating him in the same manner as
his predecessor had been treated in a former reign.?
The Speaker, on returning from the Lords, reports to the
house his approval by her Majesty, and her confirmation of
their privileges, and “repeats his most respectful acknowledg-
ments to the house for the high honour they have done him.'
He then puts the house in mind that the first thing to be
done is to take and subscribe the oath required by law;; and
himself first, alone, standing upon the upper step of the chair,
takes and subscribes the oath accordingly; in which cere-
monies he is followed by the other members who are present.
On the following day, the daily prayers are read, for the first
time, by Mr. Speaker's chaplain. The Speaker also, for the
1
1 Hans. Parl. Hist. 385 ; 5 Rot.
Parl. 171. The excuse was genuine,
Sir J. Popham being an old soldier,
who had been wounded in the wars
of the late reigns. His excuse is en-
tered " debilitate sui corporis, guer-
rarum fremitibus . . . ac diversarum
infirmitatum vexationibus, necnon
senii gravitate multipliciter de-
pressi.'
2 See also the case of John Cheyne,
1st Hen. IV., 1399, who excused
himself on account of illness, after
he had been approved by the king.
3 Rot. Parl. 424.
3 The out-door oaths,” formerly
taken by members of both houses
before the lord steward, in addition
to the oaths taken in the house itself,
were abolished by 1 & 2 Will. IV.
c. 9.
4 In case of the accidental absence
of the chaplain, Mr. Speaker reads
prayers, as was done once by Mr.
Speaker Abercromby, and three times
by his successor. On the last of
these occasions (May 8th 1856), the
Speaker was in his full dress robes,
the house having met to proceed to
Buckingham Palace with an address.
On the 26th July 1858, and on the
31st March 1860, Mr. Speaker Deni-
son also read prayers; and the pre-
sent Speaker has read prayers on
several occasions. Chaplains or min-
isters were first appointed “to pray
with the house daily," during the
Long Parliament 3 Com. J. 365 ;
7 Ib. 366. 424. 595. Before that time
prayers had been read by the clerk,
and sometimes by the Speaker. On
the 23rd March 1603, prayers “were
read by the clerk of the house (to
whose place that service anciently
appertains), and one other special
prayer, fitly conceived for that time
and purpose, wasread by Mr. Speaker;
which was voluntary, and not of duty
or necessity, though heretofore of late
time the like hath been done by other
Speakers." i Com. J. 150. On the
8th June 1657, there being no minis-
OATHS.
205
first time, now counts the house, and cannot take the chair
until forty members are present;' as there is no commission
on that day, to make a house, and the oath is required, by
statute, to be taken whilst a full House of Commons is there
duly sitting, with their Speaker in his chair. The members
continue to take the oath on that and the succeeding day,
after which the greater part are sworn, and qualified to sit
and vote.?
The oaths of allegiance, supremacy and abjuration, were Oaths for-
formerly prescribed by the statutes 30 Chas. II. stat. 2, the merly taken.
13 Will. III. c. 6, and 1 Geo. I. stat. 2, c. 13; and were
required to be taken by every member. By the 10 Geo. IV.
c. 7, a special oath was provided for Roman Catholic mem-
bers. But by the 21 & 22 Vict. c. 48, one oath for Pro- One oath
testant members was substituted for the oaths of allegiance, for former
supremacy and abjuration ; and by the 29 & 30 Vict. c. 19,
a single oath was prescribed for members of all religious
denominations, which, by the 31 & 32 Vict. c. 72, is now in
the following form :"I —— do swear that I will be faith-
ful and bear true allegiance to her Majesty Queen Victoria,
her heirs and successors, according to law. So help me God.'
The oaths were required, by former statutes, to be Time and
solemnly and publicly made and subscribed" between the
taking the
hours of nine in the morning and four in the afternoon, at oath.
the table, in the middle of the house, and whilst a full house
is there, with their Speaker “in his place," or "in his chair.'
This provision caused the ordinary meeting of the House
of Commons to be fixed for a quarter before four o'clock in
substituted
oaths.
973
manner of
ter present, and it being uncertain
whether the Speaker or clerk should
read prayers, the house proceeded to
business without any prayers.
2
Burton, Diary, 191.
1 2 Hatsell, 173.
2 See 1 Pellew, Life of Sidmouth,
176.
3 In one case, an attempt was made
to obtain from a member, who was
about to bring forward a motion, a
repudiation of statements made else-
where, which were alleged to be at
variance with the oath he had taken:
but the Speaker stated that it was no
part of his duty to determine what
was consistent with that oath, and
that the terms of the motion were not
in violation of any rules of the house.
210 Hans. Deb. 3rd Ser. 252.
206
OATHS.
the afternoon; and the appearance of a member to be sworn,
before four o'clock, interrupted any other business.
By the Oaths Act of 1866,2 the same solemnities are to be
observed : but the oath may be taken at such hours and
according to such regulations as each house may, by its
Standing Orders, direct. Until 1843, the time for taking
the oaths, by both houses, continued limited to the hours
between nine and four: but, by 6 & 9 Vict. c. 6, the Lords
were enabled to take the oaths until five o'clock in the
afternoon. After the passing of the Oaths Act of 1866, the
Lords agreed to a Standing Order, on the 3rd May, requiring
the oath to be taken, as usual, between the hours of nine
and five. But the House of Commons by Standing Order,
30th April 1866, provided, -
“ That members may take and subscribe the oath required by law,
at any time during the sitting of the house, before the orders of the
day and notices of motions have been entered upon, or after they have
been disposed of: but no debate or business shall be interrupted for
that purpose."
Refusal to
take oaths.
When the oaths of allegiance and supremacy were re-
quired, members who refused to take them were adjudged by
the house to be disqualified by the statutes from sitting, and
new writs were issued in their room. Soon after the Revolu-
tion of 1688, Sir H. Mounson and Lord Fanshaw refused to
take the oaths, and were discharged from being members
of the house ;4 and on the 9th of January following, Mr.
Cholmly, who said he could not yet take the oaths, was
committed to the Tower for his contempt.5 But the most
remarkable precedent is that of Mr. O'Connell, who had been
returned for the county of Clare, in May 1829, before the
passing of the Roman Catholic Relief Act. On the oaths
being tendered to him by the clerk, he refused to take the
| 2 Hatsell, 90. 105 Com. J. 629.
108 Ib. 178. 114 Ib. 98 (Mr. Sotheron
Estcourt). 121 Ib. 140.
2 29 & 30 Vict. c. 19.
3 3 Lords' S. O. No. 15.
4 10 Com. J. 131. 5 Parl. Hist.
254.
5 10 Com, J. 328.
OATHS.
207
to take the
oath of supremacy, and claimed to take the new oath con-
tained in the Roman Catholic Relief Act, which had been
substituted for the other oaths, as regards Roman Catholic
members to be returned after the passing of the Act. Mr.
O'Connell was afterwards heard upon his claim; but the
house resolved that he was not entitled to sit or vote, unless
he took the oath of supremacy. Mr. O'Connell persisted in
his refusal to take that oath, and a new writ was issued for
the county of Clare.?
The only legal obstacle which, prior to 1858, prevented a Jews unable
Jew from sitting and voting in Parliament, arose from the oaths until
words,“ upon the true faith of a Christian,” at the end of the 1858.
oath of abjuration. These words were omitted from the oath
when taken by a Jew, in certain cases, by the 10 Geo. I. c. 4;
and again, by the 13 Geo. II. c. 7, for the naturalizing
foreign Protestants; and lastly, on admission to municipal
offices, by the 8 & 9 Vict. c. 52; but as regards the parlia-
mentary oaths, there was no statute which could be construed
so as to justify the omission of these words. In 1850, Baron Baron Roths-
Lionel Nathan de Rothschild, who during the two previous
sessions had been one of the members for the city of London,
but had not taken the oaths and his seat, was admitted to be
sworn on the Old Testament, being the form most binding
on his conscience. Having taken the oaths of allegiance
and supremacy, he proceeded to take the oath of abjuration,
but omitted the concluding words," on the true faith of a
Christian,” “as not binding on his conscience,” adding the
words “so help me God;" whereupon he was directed to
withdraw. After debate, the house resolved that he was
“not entitled to vote in this house, or to sit in this house
during any debate, until he shall take the oath of abjuration,
in the form appointed by law."5 No new writ, however, was
1 10 Geo. IV. c. 7.
4 105 Com. J. 590; Hans. Deb.
2 84 Com. J. 303. 311. 314. 325. 30th July 1850.
3 105 Com. J. 584; Hans. Deb. 6 105 Com. J. 612; Hans. Deb.
29th July 1850. See 1 & 2 Vict. 5th August 1850.
child.
c. 105.
208
OATHS.
Mr. Alderman
Salomons.
words “
issued, as it appeared that the statutes by which the oath of
abjuration was appointed to be taken did not attach the
penalty of disability to the refusal to take that oath, but
solely to the offence of sitting and voting without having
taken it.
In 1851, Mr. Alderman Salomons, having been returned
for the borough of Greenwich, pressed his claim even further
than Baron Rothschild. He was sworn on the Old Testa-
ment, and omitting the words “ upon the true faith of a
Christian," in the oath of abjuration, concluded with the
so help me God.” This omission being reported to
the Speaker, he directed Mr. Salomons to withdraw. On
a subsequent day, while further proceedings in this case were
under discussion, Mr. Alderman Salomons entered the house
and took his seat within the bar. He was directed by the
Speaker to withdraw, but continued in his seat. He was
then ordered by the house to withdraw, but being called
upon by the Speaker to obey it, he still persisted in retaining
his seat. Upon which the Speaker directed the serjeant to
remove him below the bar; and the serjeant having placed
his hand upon Mr. Salomons, he was conducted below the
bar. In the meantime, however, he had not only sat during
debates in the house, but had voted in three divisions. In
this case, as in the last, the house did not think fit to issue a
new writ; but, having refused to hear counsel on the matter,
agreed to a resolution in the same form, declaring that he
was not entitled to sit or vote. The legal validity of this
resolution was afterwards established, beyond further ques-
tion, by judgments in the Court of Exchequer, and the
Court of Exchequer Chamber.
6
1 13 Will. III. c. 6. 6 Anne, c. 7.
6 Geo. III. c. 53. Debates 30th July
and 5th August 1850. See also Re-
port of the Committee on Oaths of
Members, 1850 (268).
2 106 Com. J. 372; Hans. Deb.
18th July 1851.
3 106 Com. J. 381; Hans. Deb.
21st July 1851.
4 106 Com. J. 373. 407.
5 Miller v. Salomons, 19th April
1852; Law Journ. vol. 21, N. S., p.
160. 7 Exch. Reports, 475.
6 Salomons v. Miller, ilth May
OATHS.
209
the Jews to
After repeated attempts to remove this disability from the Admission of
Jews by legislation, an Act was at length passed in 1858, Parliament.
by which it was provided, that either house might resolve
that henceforth any person professing the Jewish religion
may omit the words, “and I make this declaration on the
true faith of a Christian.” And on the 26th July 1858,
Baron Lionel Nathan de Rothschild came to the table to
be sworn; and the house having agreed to resolutions in
the terms of the recent Act, he was sworn upon the Old
Testament, and took and subscribed the oath in the modified
form. As a resolution of the house, under this Act, did
not continue in force beyond the current session, it was
necessary to renew it, in the next session, before other mem-
bers could be admitted to be sworn, in the same manner::
but by another Act, passed in 1860, a Standing Order was
substituted for a resolution, when Jewish members were
entitled to be sworn without any preliminary proceedings.
The 29 & 30 Vict. c. 19, however, finally removed every
invidious distinction, by omitting the words “on the true faith
of a Christian” from the new form of oath; and henceforward
Jews were placed in the same position as other members.
Quakers, Moravians, Separatists, and persons who have Declarations
by Quakers,
ceased to be Quakers and Moravians, having a conscientious
objection to an oath, are permitted to make affirmations to
the same effect. In 1693, John Archdale, a Quaker, having
declined to take the oaths, “in regard to a principle of his
religion,” a new writ was issued in his room. But subse-
quently to that case, several statutes permitting Quakers to
make affirmations instead of oaths were passed ; 4 and upon a
1853 ; Law Journ. vol. 22, N. S., p.
169. 8 Exch. Rep. 778. A writ of
error was lodged in the House of
Lords, but the parties did not apply
for a hearing; 147 Hans. Deb. 3rd
Ser. 108,
113 Com. J. 345.
2 Proceedings on admission of
Baron Meyer de Rothschild, 16th
Feb. 1859. 114 Com. J. 59. 192.
Hans. Deb. 3rd Ser. 459.
3 12 Com. J. 386. 388.
4 6 Anne, c. 23.
i Geo. I. st. 2,
c. 6 and c. 13. 8 Geo. I. c. 6. 22
Gev. II. C. 46.
1
P.
P
210
OATHS.
general construction of these statutes, in 1833, Mr. Pease, a
Quaker, was admitted to sit and vote, upon making affirma-
tion to the effect of the oaths directed to be taken at the
table. In the same year an Act was passed 2 to allow
Quakers and Moravians to make affirmation in all cases
where an oath is or shall be required. Acts were also passed
giving the same privilege to persons who had ceased to be
Quakers and Moravians, and to Separatists;+ and several
members of these different religious denominations afterwards
made affirmations instead of oaths. And by the 29 & 30
Vict. c. 19, and 31 & 32 Vict. c. 72, s. 11, all such persons
are allowed to make a solemn affirmation or declaration
instead of taking the oath prescribed by the latter Act.
Mr. Brad- On the 3rd May 1880, Mr. Bradlaugh, member for
laugh's affir-
mation, 1880. Northampton, claimed to make the affirmation, not under any
of these Acts, but by virtue of the Evidence Amendment Acts
1869 and 1870. A select committee being appointed to con-
sider this novel claim, reported that persons entitled, under
these Acts, to make a declaration in courts of justice cannot be
admitted to make an affirmation or declaration in the House
of Commons. After this decision Mr. Bradlaugh, on the
21st May, came to the table to take the oath ; but this being
objected to, on the ground of his previous claim to make an
affirmation, by virtue of Acts under which the presiding judge
at a trial had been satisfied that an oath would have no binding
effect on his conscience, a select committee was appointed,
after much discussion, to consider the facts and circumstances
under which Mr. Bradlaugh claimed to have the oath ad-
ministered to him, and as to the right and jurisdiction of the
house to refuse to allow the oath to be administered to him.
S
1 88 Com. J. 41. See also report
of the Committee on his case, 1833
(6).
2 3.& 4 Will. IV. c. 49.
3 1 & 2 Vict. c. 77.
4 3 & 4 Will. IV. c. 82.
6 90 Com. J.5; 98 Ib. 3; 103 Ib. 7.
566; 106 Ib. 3 ; 108 Ib. 7; 124 Ib. 5,
&c.
6 135 Ib. 124.
? Report (159, Sess. 2).
8 135 Com. J. 137. Hans. Deb.
21st May 1880.
OATHS.
211
1
This committee reported that “the house can, and, in the
opinion of the committee, ought to prevent Mr. Bradlaugh
going through the form" of taking the oath. At the same
time they recommended that he should be allowed to make
the affirmation, subject to its legality being tested in a court
of justice.
In accordance with this report, a motion was made, on the
21st June, to admit Mr. Bradlaugh to make an affirmation;
to which, however, an amendment was made, that, having
regard to the reports of two select committees, he be not
permitted to take the oath or make the affirmation.2
Being now refused either the oath or affirmation, Mr.
Bradlaugh again came to the table, on the 23rd June, and
claimed to take the oath. On being formally acquainted
with the recent resolution of the house, he desired to be heard
upon his claim; and the house having resolved that he be
heard at the bar, he was heard accordingly, and withdrew.
When afterwards informed, by Mr. Speaker, that the house
had made no further order concerning his claim, and directed
to withdraw, he insisted upon his right, as a duly-elected
member, to take the oath and his seat, and refused to
withdraw. The house now ordered his withdrawal, but he
refused to obey the order of the house as being against the
law; and Mr. Speaker then called upon the serjeant to
remove him; and that officer, having placed his hand upon
Mr. Bradlaugh, conducted him below the bar; but Mr.
Bradlaugh again advancing within the bar, and asserting
his determination to resist the order of the house, he was
committed to the custody of the serjeant-at-arms. On the
following day he was discharged.
The next step taken, in this perplexing case, was the passing
of a Standing Order, on the 1st July, allowing any member
claiming to be a person, for the time being, permitted to make
an affirmation, to make it without question, subject to any
| Report (226, Sess. 2).
2 135 Com. J. 228. 233, 234.
3 Ib. 235. Hans. Deb. 23rd June
1880.
P 2
212
OATHS.
Mr. Brad-
laugh's oath,
1881.
5
liability by statute, and under this order Mr. Bradlaugh at
length took his seat.2
The house was relieved from further difficulties until the
next session ; but upon an action for penalties, which w
immediately commenced, the High Court of Justice adjudged
that Mr. Bradlaugh had not qualified himself to sit by taking
the affirmation, and this judgment was affirmed by the Court
of Appeal. Having already sat and voted, his seat was now
vacant, unless the judgment should be reversed by the House
of Lords; and, without awaiting further steps in the suit,
he agreed to the issue of a new writ.
Being returned a second time, he came to the table, on the
26th April, to take the oath. The resolution of the previous
session was no longer in force; but he was interrupted by
a motion that he be not permitted to go through the form
of repeating the words of the oath. On being directed to
withdraw, he claimed to be heard against this motion, and he
was accordingly heard at the bar. The debate continued,
and after the failure of an amendment, the resolution was
carried. Mr. Bradlaugh again came to the table to be sworn,
and on refusing to withdraw, in obedience to the order of the
house, was conducted below the bar by the serjeant. Once
more he advanced within the bar, and was again removed,
when the house adjourned.
On the 10th May, Mr. Bradlaugh again came to the table,
and on refusing to withdraw when directed by Mr. Speaker,
was conducted by the serjeant below the bar. Standing at
the bar he declared that he refused to obey the order of
the house, as it was illegal; whereupon the serjeant was
ordered to remove him from the house until he shall en-
gage not further to disturb the proceedings of the house.
6
1 S. O. No. 67. 135 Com. J. 267.
2 2nd July.
3 7 Q. B. D.39-61; 50 Law Journ.
342.
the Lords, he obtained judgment, on
the 9th April 1883, that a common
informer could not bring the action
and recover costs.
6 136 Com. J. 198. Hans. Deb.
26th April 1881.
4 Ib.
5 1st April 1881. Upon appeal to
OATHS.
213
Hitherto he had been admitted to a seat below the bar, like
other members before they have taken the oath ; but now he
was not permitted to enter the door of the house. Otherwise,
he had free access to the lobby, the libraries, and all other
parts of the building.
On the 4th July, he gave notice in writing to Mr. Speaker,
the clerk of the house, and the serjeant, that on or before the
3rd August he should again present himself at the table,
and would resist, and endeavour to overcome, any force used
against him. On that day he came, and strove to force an
entrance, when the serjeant, acting under directions from
Mr. Speaker, removed him from the door; and in order to
prevent further attempts to enter the house, and to restrain
disorders in the lobby and approaches, conducted him beyond
the precincts of the house. The house approved the action
of the Speaker, and of the officers acting under his orders.?
Mr. Bradlaugh afterwards brought an action against the Bradlaugh v.
deputy-serjeant; but on demurrer judgment was given for
the defendant;3 and on the 20th February 1883, final
judgment was given for the defendant.
An attempt was made during this session to avoid further
troubles, by an amendment of the law; but being strongly
opposed, it was abandoned.
At the opening of Parliament on the 7th February 1882, Mr. Brad-
laugh's case,
Mr. Bradlaugh again presented himself to take the oath ; but 1882.
was at once met, as on previous occasions, by a motion for-
bidding him to go through the form of taking the oath.
The previous question was moved, and Mr. Bradlaugh was
heard, at the bar, in support of his claim. The resolution,
however, was carried, when Mr. Bradlaugh immediately
returned, in order to take the oath, and refused to withdraw
until his withdrawal had been ordered by the house.
Erskine.
5
1 136 Com. J. 227. Hans. Deb.
10th May 1881.
2 136 Hans. Deb. 426. 264 Ib.
3rd Ser. 695.
3 « Times” Report, 12th January
1883.
4 Ib. 21st February 1883.
5 137 Com. J. 3. Hans. Deb. 7th
Feb. 1882.
214
OATHS.
The proceedings in this case now assumed another form.
On the 21st February 1882, a motion for a new writ for North-
ampton was made, on the obviously insufficient ground that
Mr. Bradlaugh had been prevented from taking the oath,
and was negatived. Upon the numbers being declared, Mr.
Bradlaugh suddenly advanced to the table, and read from a
paper, in his hand, the words of the oath, and having kissed
a copy of the New Testament which he had brought with
him, signed the paper. The Speaker at once ordered him to
withdraw, and he retired below the bar, leaving the paper
and the copy of the New Testament on the table. But he
immediately re-entered the house, and took a seat within the
bar. Being directed by the Speaker to withdraw, he stated,
from his place, that he had now taken the oath required by
law, and had also taken his seat, and then retired below the
bar.
A motion was now made for a new writ, on the ground
that Mr. Bradlaugh had sat in the house without taking the
oath ; but the debate was adjourned. On the following day
it was resumed, when Mr. Bradlaugh, having failed to obtain
the pleasure of the house for his being heard at the bar, again
took a seat in the house. The Speaker called the attention
of the house to his presence, when Mr. Bradlaugh stated that
it was his desire to obtain the indulgence of the house that
he might be heard : but maintained his right to sit for North-
ampton. The Speaker now called attention to the repeated
acts of disobedience committed by Mr. Bradlaugh, and
directed him to withdraw, which he did, while repeating
that he claimed his right to sit within the bar. The house
now deemed it necessary to vindicate its own authority,
and visited Mr. Bradlaugh's disobedience to its orders by
expulsion.
A new writ having been issued for Northampton, Mr.
1 A friendly suit was brought to Gurney v. Bradlaugh 1882.
try the legality of this act, but as, in 2 137 Com. J. 59. 61. Hans. Deb.
the judgment of the court, the plead- 21st February 1882.
ings were collusive, it was not tried.
OATHS.
215
Bradlaugh was again returned: but as soon as his return had
been received, and before he had offered himself to be sworn,
the house, on the 6th March re-affirmed the resolution of the
7th February, by which he had been prevented from going
through the form of taking the oath. On the 7th March the
Speaker stated that having regard to the resolution of the
previous day, it would be irregular and disorderly for two
members to introduce Mr. Bradlaugh, and that he should
consider himself bound not to call upon him to come to the
table.2
At the commencement of the session of 1883, Mr. Bradlaugh Affirmation
Bill, 1883.
refrained from again presenting himself to take the oath, in
expectation of an Affirmation Bill, which was shortly intro-
duced. But, on the 4th May, when this bill had been lost,
he renewed his claim to take the oath. Once more he was
heard at the bar: but the house re-affirmed its former
resolutions.
By the 30th Chas. II. stat. 2, the 13th Will. III. c. 6, Omission to
take the
and 1 Geo. I. stat. 2, c. 13, severe penalties and disabilities oaths.
were inflicted upon any member of either house who sat or Penalties.
voted without having taken the oaths. By the 29 & 30
Vict. c. 19, any peer voting by himself or his proxy, or
sitting in the house of peers without having taken the oath,
is subject, for every such offence, to a penalty of 5001.; and
any member of the House of Commons who votes as such, or
sits during any debate after the Speaker has been chosen,
without having taken the oath, is subject to the same penalty,
and his seat is also vacated in the same manner as if he were
dead. When members have neglected to take the oaths from
haste, accident, or inadvertence, it has been usual to pass
Acts of indemnity, to relieve them from the consequences of
their neglect. In the Commons, however, it is necessary to
1 137 Com. J. 87. Hans. Deb. notorious, or within the cognizance
6th March 1882. On the 9th March of the house, would be simply vexa-
1882, the Speaker stated that to tious. 267 Hans. Deb. 3rd Ser. 442
object to any member taking the 2 267 Hans. Deb. 3rd Ser. 390.
oath except on grounds public or
3 45 Geo. III.c. 5 (Lord J. Thynne),
216
OATHS.
Members
entitled to
privileges
before they
are swom.
2
move a new writ immediately the omission is discovered, as
the member's seat is vacated.
But although a member may not sit and vote until he has
taken the oaths, he is entitled to all the other privileges of a
member, and is otherwise regarded, both by the house and by
the laws, as qualified to serve, until some other disqualifica-
tion has been shown to exist. Thus, on the 13th April 1715,
it was resolved, “that Sir Joseph Jekyll was capable of being
chosen of a committee of secrecy, though he had not been
sworn at the clerk's table.' On the 11th May 1858, acting
upon this precedent, the house added Baron Rothschild, who
had now continued a member for eleven years, without
having taken the oaths, to the committee appointed to draw
up reasons to be offered to the Lords at a conference, for
disagreeing to the Lords' amendments to the Oaths Bill ;3
and on the 18th, he was appointed one of the managers
of
the conference. On the 11th May 1880, Mr. Bright, who
had not yet made his affirmation, was appointed a member
of the Parliamentary Oath Committee, upon which he served
and voted, before he had made his affirmation.
But a
member may not present a petition until he has been
sworn, as that is a proceeding within the house itself.5
In 1849, Baron Lionel Nathan de Rothschild had been
a member for two sessions, without having taken the oaths;
when he accepted the Chiltern Hundreds. On the 27th
June, a new writ was issued for the city of London, and he
was again returned, and continued to be a member without
56 Geo. III. c. 48 (Earl Gower). 1
Will. IV. c. 8 (Lord R. Grosvenor).
5 Vict. c. 3 (Earl of Scarborough).
Lord Plunket, 1880.
1 60 Com. J. 148; 67 Ib. 286; 69
Ib. 144; 71 Ib. 42; 86 Ib. 353.
2 18 Ib. 59; Chandler's Debates;
7 Parl. Hist. 57; 2 Hatsell, 88, n.
3 113 Com. J. 167. 150 Hans. Deb.
3rd Ser. 336. 430.
4 113 Com. J. 182.
5 On the 14th March 1881, objection
was taken to Mr. Bradlaugh present-
ing a petition, after the High Court of
Justice had adjudged that the making
an affirmation had not qualified him
to sit and vote: but as notice of an
appeal had been given, he was allowed
to present the petition. 259 Hans.
Deb. 3rd Ser. 892. But on the 22nd
June 1882, he was informed by Mr.
Speaker, that he could not present a
petition, until he had taken the oath.
137 Com. J. 295.
OATHS.
217
taking the oaths : but being again returned in succeeding
Parliaments, he accepted the Chiltern Hundreds a second
time in 1857; and on the 23rd July a new writ was issued
for the city of London, and he was for the fifth time re-
turned. It is usual for members who have not yet taken
the oaths, to sit below the bar;1 and care must be taken that
they do not, inadvertently, take a seat within the bar, by
which they would render themselves liable to the penalties
and disqualifications imposed by the statute.
At the beginning of a Parliament, the Return Book, Certificate of
received from the clerk of the Crown, is sufficient evidence clerk of the
Crown.
of the return of a member, and the oaths are at once admi-
nistered. If a member be elected after a general election,
the clerk of the Crown sends to the clerk of the house a
certificate of the return received in the Crown Office; and
the member is required to produce this certificate from the
Public Business Office, before the clerk of the house will
administer the oaths. The neglect of this rule in 1848,
gave rise to doubts as to the validity of the oaths taken by
a member
Mr. Hawes was elected for Kinsale on the
11th March ; on the 15th, he was sworn at the table: but
his return was not received by the clerk of the Crown until
the 18th; and it was questioned whether the oaths which he
had taken before the receipt of the return, had been duly
taken. A committee was appointed to inquire into the
matter, who reported, “that although the return of the
indenture to the Crown Office has always been required by
the house, as the best evidence of a member's title to be
sworn, yet that the absence of that proof cannot affect the
validity of the election, nor the rigḥt of a person duly
elected, to be held a member of the house." The com-
1 On the 18th May 1849, when
notice was taken that strangers were
present, Baron Rothschild was sitting
below the bar, and retained his seat
there during the exclusion of stran-
gers, in virtue of his return to the
house, although he had not taken
the oaths and his seat; and Mr.
Bradlaugh was present below the
bar, during many divisions, while
forbidden to take the oath.
2 1848, Sess. No. 256.
218
OATHS.
sworn after
mittee, at the same time, recommended a strict adherence to
the practice of requiring the production of the usual cer-
tificate, 1
Subscription As no property qualification is now required, so soon as a
of oaths.
member has been sworn, he subscribes the oath which he has
taken, in a book, at the table, commonly called the “ test
roll;" and is then introduced to the Speaker by the clerk of
the house.
New members Members returned upon new writs issued after the general
general
election, take the oaths in the same manner; and, “in com-
election.
pliance with an ancient order and custom,” explained by a
resolution of the 23rd February 1688, “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;"s but this practice is not observed in regard to
Members members who come in upon petition,4 after a general election,
petition.
for they are supposed to have been returned at the beginning
of the Parliament, when no such introduction is customary.
On the 18th February 1874, Dr. Kenealy, a new member,
came to the table to be sworn, without being introduced,
according to custom, by two members; but the Speaker
acquainted him with the order and custom of the house, and,
refusing to hear any comments from him, directed him to
withdraw. After discussion, the house resolved that the
order and custom be dispensed with, on this occasion.
Another difference of form is to be remarked, in reference
to new members, and members seated on petition, when
coming to be sworn. The former not being in the original
return-book, must bring with them, as already stated, a cer-
tificate of their return from the clerk of the Crown : but the
seated on
-
5
1 It was stated in evidence, that in
July 1846, Lord Alfred Paget being
returned for Lichfield, brought up
the return himself, which he took
with him and produced at the table
of the house; and after he had been
sworn, the return was sent to the
Crown Office. Questions, 87-89.
2 21 & 22 Vict. c. 26.
3 10 Com. J. 34.
4 2 Hatsell, 85, 12.
5 130 Com. J. 52; 222 Hans. Deb.
3rd Ser. 486.
THE QUEEN'S SPEECH.
219
Crown,
1
in the absence
1855.
latter having become members by the adjudication of an
election judge, the clerk of the Crown amends the return by
order of the house; and their names are consequently entered
in the return-book, as if they had been originally returned.
In the event of the demise of the Crown, all the members Demise of the
of both houses again take the oaths.
On the 5th and 6th June 1855, certain members took the Oaths taken
oaths at the table, while the chair was occupied by Mr. of the
FitzRoy, the chairman of ways and means, in the absence Speaker, in
of the Speaker, by virtue of recent resolutions, and before an
Act had been passed for the performance of the Speaker's
duties in his absence; and doubts having been raised as to
the validity of oaths administered by the Commons, in the
absence of “their Speaker," it was deemed advisable to pass
an Act to declare these proceedings to have been as valid as if
the Speaker himself had been in the chair.2
To return to the ordinary business of the session. When Queen's
the greater part of the members of both houses are sworn, the speech.
causes of summons are declared by her Majesty in person, or
by commission. This proceeding is, in fact, the true com-
mencement 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 preliminary proceedings in
either house. In the Commons, prayers are said before the
Queen's speech, but in the Lords usually not until their
second meeting, later in the afternoon. The Speaker, after
prayers, sits in the clerk's chair until black rod approaches
the door, when he proceeds to his own chair to receive him.
This form is observed, because no business can be commenced
until Parliament has been opened by the Crown. The house
is not counted on this day, as the Queen's message makes a
house, as soon as it is capable of sitting.
1 6 Anne, c. 7; 37 Geo. III. c. 137;
92 Com. J. 490, &c.
2 18 & 19 Vict. c. 33.
3 When a prince of the blood is to
be introduced, prayers are said before
the arrival of her Majesty.
220
THE QUEEN'S SPEE('H.
When the Queen meets Parliament in person, she proceeds
in 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, the Prince of Wales (in his robes)
sitting in his chair on her Majesty's right hand (all the
Lords being in their robes, and standing until her Majesty
desires them to be seated), 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 three times 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
immediately 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, with the
house, immediately goes up to the bar of the House of Peers ;1
upon which the Queen reads her speech to both houses of
Parliament, which is delivered into her hands by the lord
chancellor, kneeling upon one knee.
In 1866 and 1867, and again in 1871, 1876, 1877 and 1880,
the form of these proceedings was so far changed, that her
Majesty's speech, instead of being delivered by herself, was
read by her chancellor, taking directions from her Majesty.2
This was no more, indeed, than the revival of an ancient
custom, there being numerous precedents of the lord chancellor
or lord keeper addressing both houses, in the presence of the
sovereign, and by his command. Henry VIII., proud as
he was of his royal state and personal accomplishments,
always entrusted to his chancellor the task of addressing
| The precedence of members in 7th August 1831; 106 Com. J. 443.
going to the House of Lords on the
opening and prorogation of Parlia- 2 98 Lords' J. 14, and 5th Feb-
ment by her Majesty, is determined
ruary 1880.
by ballot, in pursuance of resolutions,
445.
THE QUEEN'S SPEECH.
221
the Parliaments assembled in his presence. On the 9th
November 1605, the chancellor made a speech concerning
the recent plot, in the presence of James 1.2 Charles I.,
who was unduly given to making speeches to his refractory
Parliaments, was yet accustomed to make his chancellors, and
sometimes other councillors, his spokesmen. In February
1625, he told the Lords and Commons that he did not love
long speeches," and was not “very good to speak much ;" he
would, therefore, “ bring in the old customs which many of
his predecessors had used before him, that the lord keeper
should tell you at large what I should speak to you in
Parliament.” Again, in 1627, to use his own words, the
lord keeper added a “short paraphrase upon the text he
had himself delivered.”+ And the same practice was pur-
sued by Charles II. But the example exactly followed by
her Majesty was that of George I., throughout whose reign
the royal speech was delivered by the Chancellor.G
When her Majesty is not personally present, the causes By commis-
of summons are declared by the lords commissioners. The
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 com-
mission read;' and when the Speaker and the house have
reached the bar of the House of Peers, the Lord Chancellor
reads the royal speech to both houses. Until the end of
the session of 1867, the Lords Commissioners' speech was
framed as proceeding from themselves; and her Majesty's
name was used throughout in the third person. But on
sion.
! See especially 21st January 1609,
1 Lords' J. 3; 8th June 1536, Ib. 84;
6th January 1541, Ib. 164.
2 2 Lords' J. 357.
3 3 Ib. 435. 470.
4 Ib. 637.
5 11 Ib. 240. 684. 12 Ib. 287. 652.
0 21st March 1714. 20 Lords' J.
22, &c.
7 On the 19th May 1880, the
usher of the black rod having inad-
vertently used the word “require,”
attention was called to the infor-
mality, when the proper form was
explained from the chair. 251 Hans.
Deb. 3rd Ser. 1221.
222
REPORT OF QUEEN'S SPEECH.
2
Report of
Queen's
speech.
that and subsequent occasions, the speech has been that of
the Queen herself, in the first person, and delivered by
the Lord Chancellor, or one of the commissioners, by her
command.
When the speech has been delivered, either by her Majesty
in person, or by commission, the House of Lords is adjourned
during pleasure. The Commons retire from the bar, and
returning to their own house, pass through it, the mace
being placed upon the table by the serjeant; and, as there
have generally been new members desiring to be sworn on
that day, it has been usual for the house to re-assemble at
a quarter before four o'clock.
When the houses are resumed in the afternoon, the main
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 first by the Lord
Chancellor and then 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 time pro formâ, 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 in the Journal of the 22nd March 1603, “That the
first day of every sitting, in every Parliament, some one bill,
and no more, receiveth a first reading for form sake." And
this practice has continued till the present time. By the
Lords' Standing Order, it would appear necessary that this
Bill read
pro formd.
1 97 Lords' J. 639. At the pro-
rogation, 10th August 1872, the Lord
Chancellor's sight being impaired,
the speech was read by Earl Gran-
ville.
2 Under the recent statute and order
of the house (see supra, p. 206), the
meeting at this hour is no longer
necessary, but it has since been ob-
served as the customary hour of
meeting.
3 Lords' S. O. No. 2.
4 1 Com. J. 150. See also supra,
p. 47. Jeremy Bentham condemned
this proceeding as an absurd form ;
Political Tactics, Works, ii. 335.
ADDRESS IN ANSWER.
223
2
form should be observed immediately after the oaths · have
been taken : but in the Commons, the bill is only required 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 consideration of matters of
privilege, and questions relating to oaths and affirmations,
the presentation of papers, and the usual sessional orders and
resolutions. But no questions are asked, or petitions pre-
sented. In 1794, Mr. Sheridan raised a debate upon the first
reading of the Clandestine Outlawries Bill, and the Speaker
decided that he was in order ;4 but such a proceeding is now
prohibited by the Standing Orders.
When the royal speech had been read, an address in Address.
answer 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 levee dress, for that purpose. The address is an answer,
paragraph by paragraph, to the Queen's speech. Amend-
ments may be made to any paragraph of the proposed
address, in the same form as amendments to other questions ;)
and when the question for an address, whether amended or
not, has been agreed to, a committee is appointed in the
Commons, “to prepare" or " draw up" an address, who
withdraw immediately for that purpose. When the address,
1 95 Com. J. 3. See also proceed-
ings on the opening of the session, in
1763, relative to the reading of the
bill before the consideration of the
question of privilege arising out of
the North Briton, No. 45. 15 Parl. .
Hist. 1354.
2 Mr. Bradlaugh's affirmation ;
appointment of committee, 3rd May
1880. 135 Com. J. 124. Mr. Brad-
laugh's oath, 7th Feb. 1882. 137
Ib. 3.
3 96 Ib. 467 ; 121 Ib. 10, &c.
4 31 Parl. Hist. 994.
5 99 Com. J. 6; 103 Ib. 9; 104 Ib.
5; 105 Ib. 6. In 1812, the address
vas moved as an amendment to a
question for an address proposed by
Sir F. Burdett. 21 Hans. Deb. 18.
34. Lord Colchester's Diary, ii. 351.
o On the 20th January 1881, the
report of the address was received and
proceeded with on the same day. 136
Com, J. 209; 257 Hans. Deb. 3rd
Ser. 1064. And again, on the 1st
March 1883, immediately after the
address had been agreed to. Votes,
100. Since 1861, the appointment of
a Committee to prepare the address
has been discontinued in the House
of Lords; and the uses of such a
Committee are not very apparent.
224
ADDRESS IN ANSWER.
as drawn up by this committee, is reported, it is brought up
and read a first time (short) by direction of the Speaker, and
a second time (at length), upon question. Amendments may
be proposed to any paragraph, either when the clerk has read
such paragraph, or after the second reading of the whole
address. But no amendment can be proposed to the address,
after the question has been proposed from the chair for
agreeing with the committee in the address. After the
address has been finally agreed to, it is ordered to be presented
to her Majesty. When the speech has been delivered by the
Queen in person, and she remains in town, the address is
presented by the whole house : but when it has been read by
the Lords Commissioners, or the Queen is in the country, 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
Presented by 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 “humbly
to know her Majesty's pleasure when she will be attended'
with the address. Each house meets when it is understood
that this ceremony will take place, and, after her Majesty's
pleasure has been reported, proceeds separately to the palace.
For this purpose, care must be taken to make a house at the
proper time: 1st, because it has been ordered that the address
shall be presented by the whole house; and, 2ndly, because
the house, properly constituted, has to receive her Majesty's
pleasure, which can only be communicated to the house at
the whole
house.
1
1 Of the royal household.
2 On the 22nd January 1806, an
address in answer to a speech of the
Lords' Commissioners, on the battle
of Trafalgar, and the death of Nel-
son, was presented by the whole
House. In 1869, both Houses re-
solved to present their addresses, in
answer to a speech delivered by the
Lords' Commissioners; and the Queen
had arranged to come from Osborne
to Buckingham Palace, to receive
them; but her Majesty being detained
by the illness of Prince Leopold, the
orders for the attendance of the
Houses were discharged, and the
addresses were presented in the
usual manner. 124 Com. J. 32.
37. 42.
3 74 Lords' J. 10; 96 Com. J. 11;
101 Ib. 10; 111 Ib. 184, &c.
PLACES OF PEERS.
225'
large. From a neglect of this precaution, her Majesty was
kept waiting by the Commons, for upwards of half an hour,
on the 6th February 1845. If before the presentation of
the address, by the whole house, any circumstance should be
communicated which would make it inconvenient for her
Majesty to receive the house, the address is presented by the
“lords with white staves" and privy councillors, as was done
on the 3rd February 1844. The proceedings upon addresses
need not be pursued any further, as they will be described
more fully in a separate chapter.?
In case the debate upon the address in answer to the
Queen's speech should be adjourned, all the bills, of which
notice has been given, may be introduced. In February
1880, and again in 1881, 1882 and 1883, the debate upon
the address having been adjourned, the several bills, of which
notice had been given, were brought in, and ordered to be
read a second time, as if the address had been agreed to.3
In the upper house, “ the lords are to sit in the same order Places in the
as is prescribed by the Act of Parliament, except that the Lords.
Lord Chancellor sitteth on the woolsack as Speaker to the
house." But this order is not usually 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
divisions, 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
House of
1 99 Com. J. 12.
2 Chapter XVII.
3 135 Com. J. 12, &c.
4 Lords' S.O. No.4; 31 Hen. VIII.
c. 10. By this statute the precedence
of princes of the blood royal, and of
the bishops, peers, and high officers
of state, is defined. See also 1 Will.
& Mary, c. 21, s. 2; 5 Ann. c. 8;
10 Ann. c. 4.
P.
Q
226
PLACES IN THE COMMONS.
maintain a political neutrality, sit upon the cross benches
which are placed between the table and the bar. The Stand-
ing Order, however, is occasionally enforced. 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 February 1771.2 On the 10th February 1740, "it was
insisted that the Lords should take their due places, and the
Act 31 Hen. VIII., 'for placing of the lords, being read, it
was moved that the house be called over, but this motion was
negatived;"3 and on the 4th December 1741, “it was insisted
on, that the lords should take their due places."4 On the
22nd April 1831, notice being taken that peers were not
seated in their proper places, a debate to order arose, but the
Standing Order was not read or enforced. On the 22nd
January 1740, it was agreed by the house that the end of
the lowest cross bench, next the bishop's bench, is the place
of the junior baron.
If the eldest son of a peer be summoned to Parliament by
the style of an ancient barony held by his father, he takes
precedence amongst the peers according to the antiquity of
his barony; whereas if he be created by patent a baron, by
a new style or title, he ranks as junior baron.
In the Commons no places are particularly allotted to
members: but it is the custom for the front bench, on the
right hand of the chair, to be appropriated for the members
of the Administration, which is called the Treasury, or privy
councillors' bench. The front bench on the opposite side is.
also usually reserved for the leading members of the Oppo-
sition 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
6
Ancient
baronies.
Places in the
Commons.
+
1 25 Lords' J. 572.
2 33 Ib. 47.
3 25 Ib. 593.
26 Ib. 9.
5 69 Hans. Deb. 31'd Ser. 1806.
6 25 Lords' J. 575.
? Baron Mowbray, eldest son of
Duke of Norfolk, 32 Chas. II., was
summoned by writ, and sat as pre-
mier baron, West, Inq. 49; and Lord
Stanley, in 1845, 77 Lords' J. 18.
PLACES IN THE COMMONS.
227
new Parliament, the members for the city of London claim,
and generally exercise, 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;2 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 Secured at
any of these grounds, can only secure a place for the debate
prayers.
by being present at prayers. On the back of each seat there
is a brass plate, in which a member may put a cards with his
name, if he be at prayers: but by a Standing Order of the
6th April 1835, “No member's name may be affixed to any
seat in the house before the hour of prayers."4 Attempts
having been made to evade this order, by placing cards on
the seats before prayers, they were brought to the notice of
the house 20th April 1866; and the practice was discontinued
by order of the Speaker to the serjeant.5 But another prac-
tice has since acquired recognition, by which members, being
within the precincts of the house, are allowed to leave their
hats upon particular seats, in order to retain them until they
acquire a right to them by subsequent attendance at prayers.
On the 4th June 1880, the Speaker explained that when
members secured places, before prayers, by leaving their hats,
it is assumed that they are in immediate attendance upon the
house or a committee. No seat could be secured by a card,
paper, or gloves.?
Places secured at prayers may be retained until the rising
6
1 Iu 1628, a question was raised put upon the table for the convenience
whether the members for the city of of members.
London were “knights ; " but there 4 90 Com. J. 202. See also 22 Ib.
appears to have been no decision. 406. 414.
1 Com. J. 894.
5 182 Hans. Deb. 3rd Ser. 1765.
2 2 Hatsell, 94.
6 See 20th June 1867; 188 Tb. 163;
3 Cards, with the words "at 2nd April 1868 ; 191 Ib. 698.
prayers” printed on them, are always 7 252 Hans. Deb. 3rd Ser. 1200.
Q2
0
228
SERVICE OF PARLIAMENT.
of the house. Prior to 1855, the claim to a seat was super-
seded by a division, or by the members attending the Speaker
to the House of Lords, when there was a commission for
giving the royal assent to bills. Disputes sometimes arise
when members leave their seats for a short time, and on re-
turning, find them occupied by others. On the 14th April
1842, Mr. Speaker thus explained the rule of the house upon
this point:-
“A member having been present at prayers, and having put a card
at the back of his seat, is entitled to it for the whole night.
should a member who had not been present at prayers, leave his 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 ab-
sence, by a book, glove, or hat.”
- But
Service of
Parliament.
Every member of the Parliament is under a constitutional
obligation to attend the service of the house to which he be-
longs. A member of the upper house has the privilege of
serving by proxy, by virtue of a royal license which authorises
him to be personally absent, and to appoint another lord of
Parliament as his proxy;? but since 1868, the use of this
privilege has been discontinued. In the House of Commons
the personal service of every member is required. By the
5 Rich. II. c. 4, "if any person summoned to Parliament do
absent himself, and come not at the said summons (except he
may reasonably and honestly excuse himself to our lord the
king), he shall be amerced, or otherwise punished according
as of old times hath been used to be done within the said
realm, in the said case.” And by an Act, 6 Hen. VIII. c. 16,
it was declared that no member should absent himself "with-
out the license of the Speaker and Commons, which license
was ordered to be entered of record in the book of the clerk of
the Parliaments, appointed for the Commons' House." The
1 Resolution 29th March 1856,
made a Standing Order 29th April
1858.
2 During the king's illuess in 1811,
it was doubtful whether proxies were
admissible. See 18 Hans. Deb. 976.
See also further concerning proxies,
Chapter XII. on DIVISIONS.
ATTENDANCE OF MEMBERS.
229
2
of members,
penalty upon a member for absence was the forfeiture of his
wages; and although that penalty is no longer applicable, the
legislative declaration of the duty of a member remains upon
the statute-book. In 1554, informations were filed in the
Court of Queen's Bench against several members who had
seceded from Parliament, of whom six submitted to fines.
And numerous orders are to be found in the Journals, for
summoning absent members to attend the service of the
house.
On ordinary occasions, however, the attendance of members Attendance
upon their service in Parliament, is not enforced by any
orders or regulations: but when any special business is about
to be undertaken, means are taken to secure their presence.
In the upper house, the most common mode of obtaining a Lords
summoned.
larger attendance than usual, is to order the lords to be sum-
moned; upon which a notice is sent to each lord who is
known to be in town, 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 in the Journal.
When any urgent business is deemed to require the atten- Call of the
dance of the lords, it has been usual to order the house to Lords.
be called over; and this order has sometimes been enforced
by fines and imprisonment upon absent lords.3
On some
occasions the lord chancellor has addressed letters to all the
peers, desiring their attendance, as on the illness of George
the Third, 1st November 1810. The most important occa-
sion on which the house was called over in modern times, was
House of
11 Parl. Hist. 625.
2 15th August 1643 ; 3 Com. J.
206 ; 6th February 1688; 10 Ib. 20;
15th March 1715; 18 Ib. 401; 17th
Dicember 1783; 39 Ib. 841; 18th
Aprl, 1785, &c.
3 16 Lords' J. 16. 26. 31. 40, &c.
All the cases in which this order has
been enforced, and the various modes
of enforcement, are collected in the
53rd volume of the Lords' Journals,
p. 356 et seq.
4 18 Hans, Deb. 1.
230
ATTENDANCE OF MENIBERS.
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 1001.
for each day's absence, pending the three first days of such proceed-
ings, and of 501. for each subsequent day's absence from the same;
and in default of payment, of being taken into custody. That no ex-
cuses be admitted, save disability from age, being 70 and upwards, or
from sickness, 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 resolutions.”ı
Order in
which the
peers are
called.
The lords were accordingly called over by the clerk on each
day during the pendency of that bill, beginning, according
to ancient custom, with the junior baron. The custom of
beginning with the junior baron applies to every occasion
upon which the whole house is called over for any purpose,
within the house, or for the purpose of proceeding to West-
minster Hall, or upon any public solemnity. But when the
house appoints a Select Committee, the lords appointed to
serve upon it are named in the order of their rank, beginning
with the highest; and in the same manner, when a committee
is sent to a conference with the Commons, the lord highest
in rank is called first, and the other lords follow in the order
of their rank
When the House of Commons is ordered to be called
over;
it is usual to name a day which will enable the members to
attend from all parts of the country. The interval, however,
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 resolution,
that such members as shall not then attend, be sent for, in
Call of the
House of
Commons.
1 53 Lords' J. 364.
2 87 Com, J. 311.
3 77 Ib. 101.
ATTENDANCE OF MEMBERS.
231
custody of the serjeant-at-arms." And it was formerly the
custom to desire Mr. Speaker to write to all the sheriffs, to
summon the members to attend. On the day appointed for
the call, the order of the day is read and proceeded with,
postponed, or discharged, at the pleasure of the house. If Order in
which names
proceeded with, the names are called over from the Return are called.
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 difference in the
time at which a member is required to be in his place. The
Return Book is corrected from time to time: but unless a
member, returned after a general election, has produced the
certificate of his return (which is delivered at the table when
he comes to be sworn), his name will not be entered in the
Return Book, and will not therefore be called, at the call of
the house. On the 10th May 1858, Baron Rothschild having
been returned upon a new writ, and not having brought up
the certificate of his return, the certificate from the clerk of
the crown was ordered to be read, before a motion was made
for adding Baron Rothschild to a committee.
The names of members who do not answer when called, When
members are
are taken down by the clerk of the house, and are afterwards absent.
called over again. If they appear in their places at this
time, or in the course of the evening, it is usual to excuse
1 12 Com. J. 502; 16 Ib. 565; 17 member, in point of service, being
Ib. 184, &c.
returned at the head of the poll, was
2 Who is senior member for a entered first in the Return Book.
place ? He who has sat longest in Earl Russell and the Speaker con-
the house, or he who was returned curred in opinion that the member
at the head of the poll? This ques- who stands first in the Return Book
tion arose in 1866, between the Lord must be accounted the senior mem-
Advocate (Mr. Moncrieff) and Mr. ber.-Mr. Spcaker's Note-book.
M'Laren, members for Edinburgh; 3 See Sir R. Peel's Mem. vol. ii.
and also between Mr. Hastings Rus- 134 (Clare Election).
sell and Colonel Gilpin, members for 1 113 Com. J. 162.
Bedfordshire. In each case the junior
4
232
ATTENDANCE OF MEMBERS.
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 ;4 by public service,5
or being abroad. If a member should not attend, and no
excuse is offered, he is liable to be committed 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.'
In earlier times it was customary for the house to inflict fines
upon defaulters, as well as other punishments.10 But in later
years calls were enforced less strictly. The attendance of
members is generally ample; and a call is of little avail in
taking the sense of the house, as there is no compulsory
process by which members can be obliged to vote.11 Hence
calls of the house have long since ceased to find favour; and
no call of the house has been enforced since 1836.12 On
several subsequent occasions calls of the house have been
ordered ; 13 but in every case the order was subsequently
discharged. On the 10th July 1855,14 and again, on the
23rd March 1882, motions for a call of the house were
negatived.15
On the 3rd March 1801, when a call of the house was
Leave of
absence.
! 80 Com. J. 147
2 84 Ib. 106.
3 80 Ib. 130.
4 Ib.
5 Ib.
6 91 Ib. 278.
7 80 Ib. 150. 153, 157.
8 91 Ib. 278.
g 90 Ib. 132.
10 i Ib. 300. 862; 2 Ib. 294; 9 Ib.
75.
11 See Hans. Deb. 19th and 22nd
Nov. 1852, 123, N. S., 266. 302.
12 Mr. Whittle Harvey's motion
on the Pension List, April 19th
1836; 91 Com. J. 265.
13 22nd Feb. 1838, 93 Ib. 300;
Repeal of the Corn Laws, 15th Mar.
1839, 94 Ib. 121; National Educa-
tion, 4th June 1839, 94 Ib. 302; 24th
March 1840, 95 Ib. 207; Repeal of
the Corn Laws, 19th Nov. 1852, 108
Ib. 53.
14 110 Com. J. 367; 205 Hans. Deb.
3rd Ser. 746.
15 137 Com. J. 117.
ATTENDANCE OF MEMBERS,
233
91
deferred for a fortnight, it was ordered, “that no member
do presume to go out of town without leave of the house.'
And, in the absence of any specific orders to that effect,
members are presumed to be in attendance upon their ser-
vice in Parliament. When they desire to remain in the
country, they should apply to the house for “leave of
absence;" for which sufficient reasons must be given ; as,
that they are about to attend the assizes, or sessions, or to
go circuits; or that they desire to be absent on account of
urgent business, the illness or death of near relations,
domestic affliction, illness in their families, or their own ill-
health. Upon these and other grounds, leave of absence is
generally given, but has been occasionally refused. Some-
times leave of absence to a member has been enlarged. A
member will forfeit his leave of absence, if he should attend
the service of the house before its expiration.
Attendance upon the service of Parliament includes the Obligation
obligation to fulfil all the duties imposed upon members by committees.
the orders and regulations of the house. And unless leave
of absence has been obtained, a member cannot excuse him-
self from serving upon committees to which he may be
appointed; or for not attending them, where his attendance
is made compulsory by the orders of the house. In 1846,
Mr. W. Smith O'Brien declined serving as a selected mem-
ber of a railway committee, and the Committee of Selection,
not being satisfied with his excuses, nominated him to a
committee, in the usual manner. He did not attend the
committee, and his absence being reported to the house, he
was ordered to attend the committee on the following day.
Being again absent, and his absence being reported to the
house, he attended in his place, and stated that he adhered
to his determination not to attend the committee; upon which
to attend
1 56 Com. J. 103.
2 75 Ib. 338; 82 Ib. 376; 86 Ib.
863.
3 126 Ib. 266; 127 Ib. 96.
4 See Debates on the absenco of
Lord Gardner from a private bill
committee in the House of Lords,
24th and 26th June 1845. 81 Hans.
Deb. 3rd Ser. 1104. 1190.
234
TIME OF MEETING,
Time of
meeting.
he was declared guilty of a contempt, and committed to the
custody of the serjeant-at-arms.
The Lords have usually met, for despatch of legislative
business, at five o'clock in the afternoon: but, on the 24th
March 1882, they resolved to meet at a quarter past four
instead of at five, in order to extend the time for debate
before the dinner hour, and to encourage young peers to take
part in the discussion of public affairs;" and this arrange-
ment has since been continued. The Commons ordinarily
meet at a quarter before four, except on Wednesday, and on
other days specially appointed for morning sittings. The
sittings were formerly held at an early hour in the morning,
generally at eight o'clock, but often even at six or seven
o'clock,+ and continued till eleven, the committees being ap-
pointed to sit in the afternoon. In the time of Charles II.
nine o'clock was the usual hour for commencing public busi-
ness, and four o'clock for disposing of it. At a later period
ten o'clock was the ordinary time of meeting; and the prac-
tice of nominally adjourning the house until that hour con-
tinued until 1806, though so early a meeting had long been
discontinued. According to the present practice, no hour is
named by the house for its next meeting, but it is announced
in the Votes and Proceedings, at what hour Mr. Speaker will
take the chair. Occasionally the house has adjourned to a
later hour than four, as on the opening of the Great Exhi-
bition, 1st May 1851, to six o'clock ;5 on the naval review at
Spithead, 11th August 1853, to ten o'clock at night ;6 and on
Thursday, 11th May 1882, the house met at nine o'clock, in
order to enable ministers and members to attend the funeral
of Lord Frederick Cavendish, at Chatsworth.
1 101 Com. J. 566. 582. 603; and
Special Rep. of Committee of Selec-
tion, 24th April 1846 ; Ib. 555. See
also case of Mr. Hennessy, March
1860; 115 Com, J. 106; 156 Hans.
Deb. 3rd Ser. 2047.
2 267 Hans. Deb. 3rd Ser. 1784.
3 Vowel's Order and Usage of the
Parliaments in England, 1572.
41 Com. J. 156. 705 ; 2 Ib. 116.
120; 8 Ib. 271 ; 9 Ib. 606; 13 Ib.
858.
5 106 Ib. 189.
6 108 Ib. 816.
QUORUM OF LORDS AND COMMONS.
235
To facilitate the attendance of members without interrup- Obstructions
in the streets,
tion, both houses order, at the commencement of each ses- &c.
sion,
" That the commissioners of the police of the metropolis do take care
that, during the session of Parliament, the passages through the streets
leading to this house be kept free and open, and that no obstruction be
permitted to hinder the passage of the lords (or members) to and from
this house; and that no disorder be allowed in Westminster Hall, or in
the passages leading to this house, during the sitting of Parliament;
and that there be no annoyance therein or thereabouts; and that the
gentleman usher of the black rod (or the serjeant-at-arms) attend-
ing this house do communicate this order to the commissioners afore-
said."
And on various occasions, when tumultuous assemblages of Tumultuous
people have obstructed the thoroughfares, lobby, or passages,
assemblages.
orders have been given to the local authorities, to disperse
them. 1
The upper house may proceed with business if only three Quorum in
lords be present, of whom one may be a lord attending to Commons.
take the oath: but the Commons require as many as forty,
including the Speaker, to enable them to sit. This rule, how-
ever, which appears to have been first established in 1640,2 is
only one of usage, and may be altered at pleasure. On the
1st March 1793, the house resolved, that for the purpose
of receiving messages from the Lords relating to further
pro-
ceedings on the trial of Warren Hastings, Mr. Speaker might
take the chair and direct the messengers to be called in,
although forty members were not present. And such mes-
1 31 Lords' J. 206.209. 213; 32 Ib.
147. 187; 36 Ib. 142; 11 Com. J. 667;
13 Ib. 230; 17 Ib. 661; 33 Ib. 285;
37 Ib. 901.
2 5th January 1640, 2 Com. J. 63.
"Forty maketh a House of Com-
mons.” Gaudy's Notes of Long Par-
liament; MSS. Brit. Mus. From
an entry, 20th April 1607, it would
appear that sixty was not then a
sufficient number; 1 Com. J. 364.
A motion was made by Mr. Pierre-
point, 18th March 1801, being the
first Parliament of the United King-
dom, " That Mr. Speaker do not take
the chair until, at least, sixty mem-
bers are present in the house ;" but
negatived. 35 Parl. Hist. 1203. In
both houses of Congress, and the
greater part of the state legislatures
of the United States, a majority of
the house forms a quorum. Cushing
on Legislative Assemblies, 96.
3 48 Com. J. 305.
236
HOUSE COUNTED.
House
counted.
sages were afterwards received when six, three, and even one
member only were present. 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 sittings the house should transact business with only
twenty members. Immediately after prayers each day, after
Parliament has been opened, the Speaker counts the house
from the clerk's chair, and, if forty members be not present,
he waits until four o'clock, when, standing on the upper step
of the Speaker's chair, 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 sitting day. The only exception to this rule, is
when a message is received from the Queen or the lords
commissioners, for the attendance of the Commons in the
House of Lords. This proceeding often occurs in the course
of a session, for the purpose of giving the royal assent to
bills, from time to time; and is held to constitute the
house as duly sitting, without the usual number of members.
But should be But for that purpose the commission should be appointed
appointed
before four o'clock; otherwise it is of no avail. On the 3rd
June 1856, a commission was appointed for four o'clock.
The Speaker counted the house, and waited till past four
before he proceeded to count it a second time; when, there
being thirty-nine members only, including himself, he
declared the house adjourned. When the house meets at an
earlier hour than four, the Speaker cannot adjourn the house
for want of forty members: but no business is transacted
until the proper number are present; and at four o'clock he
will adjourn the house.
After the house has been made, if notice be taken by a
member, that forty members are not present, the Speaker
immediately counts the house ; and when it is before four
Commission
makes a
house.
1
before four
o'clock.
House
counted out.
1 48 Com. J. 310. 660. S04.
2 88 Ib. 95.
3 See supra, p. 219. When the
Speaker sees a full house, he counts
generally with the eye, and not in
detail.
1
HOUSE COUNTED.
237
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. The two-
minute sand glass is turned, and strangers are required to
withdraw from below the bar, before the Speaker begins to
count; and thus the same time is given to members to enter
the house as in the case of a division. When it appears, on
the report of a division, after four o'clock, that forty members
are not present, the house is adjourned immediately; but
when the house is in committee, and forty members are dis-
covered to be wanting, either upon a division, or upon notice
being taken of the fact, the chairman reports the circum-
stance; when the Speaker again counts the house, and, if
forty members be not then present, he adjourns the house
forthwith. In the meantime, while the house is being counted,
the doors continue open, and members can enter during the
whole time occupied by the counting. When these accidents
1 The importance attached to the
hour of four has been said to arise
from the provisions of the Acts which
required theoaths to be taken between
the hours of nine in the morning, and
four in the afternoon (2 Hatsell, 90):
but is, perhaps, more properly refer-
able to usage; four o'clock having
been the customary hour for the
rising of the house when those Acts
were passed.
In all times, the pro-
ceedings of the house have been liable
to such interruptions from the en-
gagements or recreations of members.
Writing of the grave Long Parlia-
ment in 1641, Mr. Palgrave relates
that, one day's discourse' was
stopped because the Earl of Straf-
ford came in his barge to the upper
house from the Tower, and divers
ran to the east windows of the house,
who with them sat by, looked out at
the said windows, and opened them;
and others quitted their seats with
uoise and tumult;' and another sit-
ting was, in like manner, broken up,
in the very crisis of national anxiety,
because such members preferred 'the
play-houses and bowling alleys' to
the Committee of Supply.”—Death
of the Earl of Strafford, in “Fraser's
Magazine,” for April 1873, citing
D'Ewes Harleian MSS. I have my-
self seen the benches nearly deserted
during a boat race, which could be
seen from the same east windows,
before the great fire of 1834.
2 On the 10th June 1874, com-
plaint was made that members had
been obstructed on their return to
the house during a count. The
Speaker said it was the duty of the
serjeant to keep free access to the
house, and he believed that duty had
been properly discharged; 219 Hans.
Deb. 3rd Ser. 1301.
238
EXTRAORDINARY SITTINGS.
2
earlotte
happen on Saturday, the Speaker adjourns the house until
Monday. A second count will not be allowed, immediately
after it has been declared that forty members are present :
nor will à count be permitted after a question has been put
from the chair, as the division will determine whether forty
members be present.
Sittings on Saturday not being an ordinary day of meeting, it was
Wednesday
the house, at its rising, do adjourn till Monday next, lest the
Speaker should be obliged, by the want of members, to ad-
journ the house till Saturday: but, while the committees of
supply and ways and means are open, this adjournment is
now effected by Standing Order, unless the house shall other-
wise resolve. It is not until the end of a session, or on other
exceptional occasions, when there is an unusual pressure of
business, that the Commons sit on Saturday ;4 in which case
it is usual to resolve on Friday, that the house, at its rising,
do adjourn till to-morrow, or to appoint a bill, or other
matter, for consideration on that day. Sometimes the hour
of meeting is appointed by the order of the house, but more
often by the Speaker, twelve o'clock being the customary
hour on Saturday." The Lords very rarely sit either on
Wednesday or Saturday. On a Wednesday, the Speaker,
in the Commons, adjourns the house at six o'clock, without
putting any question, by virtue of a Standing Order. Ex-
1 78 Com. J. 8.
ruary 1830; 250 Hans. Deb. 3rd
2 24 July 1877; 235 Hans. Deb. Ser. 1668.
3rd Ser. 1771.
8 On Saturday, the 4th April 1829,
3 31 July 1882 ; 273 Ib. 331. the debate in the House of Lords, on
4 This holiday is said to have arisen the second reading of the Catholic
from Sir Robert Walpole's devo- Relief Bill, was adjourned from two
tion to hunting. 1 Lecky, Hist. of o'clock in the morning till two o'clock
Eighteenth Century, 331.
the same afternoon.
45 25th March 1870; 2nd August 9 See infra, p. 282. On Tuesday,
1872; 212 Hans. Deb. 3rd Ser. 1953; 31st July 1877, the house, having
221 Ib. 704 ; 242 Ib. 1640.
met at quarter before four, continued
6 127 Com. J. 411; 128 Ib. 122. sitting until Wednesday afternoon
? See Speaker's ruling, 27th Feb- at quarter past six, a period of
EXTRAORDINARY SITTINGS.
239
ments from a
cept on these occasions, the house can only be adjourned by
Mr. Speaker, upon question put, and resolved in the affirma-
tive. Sometimes the house resolves that it will, at its rising, Adjourn-
on a future day, adjourn to some more distant time, as for future day.
the Easter Holidays, or other longer period.3
It need scarcely be stated that the meeting of either house Occasional
sittings on
on a Sunday, is a very rare occurrence. On the demise of the
Sunday.
Crown, as already noticed,4 Parliament has occasionally been
assembled on a Sunday. During the Commonwealth period
the Commons met, on several occasions, on a Sunday,5 as well
as on Good Friday and Christmas-day.? During the mania
of the popish plot, also, both houses met occasionally on Sun-
days. On the 18th May 1794, the debate on the bill for
twenty-six and a-half hours, and
the longest sitting in the previous
history of Parliament.
This long
sitting was held to overcome an
obstructive opposition to the South
Africa bill. As there was no ad-
journment of the house on Tuesday,
the twelve o'clock Wednesday sitting,
under the Standing Orders, wassuper-
seded, and absorbed in the prolonged
sitting of the previous day. On
Monday, 31st January 1981, the house
having met at a quarter before four
continued sitting until Wednesday
morning at half-past nine,--a con-
tinuous sitting of upwards of forty-
one and a-half hours, 136 Com. J.
49-51. Among the longest sittings
previously on record were the follow-
ing:-On the 14th February 1764,
on Wilkes' case, till half-past seven
in the morning; the 17th February
1783, on the address concerning the
peace with France, Spain and Ame-
rica, till nearly eight; on the 12th
May 1785, on commercial intercourse
with Ireland, till after eight; on the
30th March 1810, on the Scheldt ex-
pedition, till after seven; and on the
5th April, on the commitment of Sir
F. Burdett, till half-past seven; on
the 12th July 1831, on the reform
bill, till after seven; on the 13th
May 1878, until half-past nine; and
on the 11th August 1879, to a quar-
ter-past seven.
1 9 Com. J. 560.
? 3rd April 1871; 126 Com. J.
129; 25th March 1872 ; 127 Ib. 114.
3 17th August 1882, until the
24th October, 137 Ib. 487.
4 Supra, p. 47.
5 Aug. 8th 1641, to stay the king's
journey into Scotland, 2 Com. J. 245;
6th and 13th June 1647 (chicfly for
prayer), 5 Ib. 200. 209; 1st August
1647, for secular affairs, 5 Ib. 263;
8th May 1659, for prayers and a
sermon, 7 Ib. 646.
6 23rd April 1641 ; 2 Com. J. 126.
? In 1689, the House of Commons
met on Easter Monday, as the Puri-
tans and Latitudinarians objected to
the usual adjournment. 3 Macaulay,
Hist. 113. See Com. J. 28th March,
1st April 1689.
8 1st December 1678, the House of
Commons met to take the oaths of
allegiance and supremacy under the
Act 30 Car. II., recently passed; 9
240
EXTRAORDINARY SITTINGS.
securing suspected persons, was not concluded until nearly
three o'clock on Sunday morning. The Reform Bill was
read a second time by the Commons on Sunday morning, the
18th December 1831.2 The royal assent was signified to the
Habeas Corpus Suspension (Ireland) Act at a quarter before
one o'clock on Sunday morning, the 18th February 1866 ;3
and on some later occasions, the house has continued its
sitting until Sunday morning. *
Sunday, the 4th May 1856, having been appointed a day
of thanksgiving, in respect of the treaty of peace with Russia,
the House of Lords met and proceeded to Westminster
Abbey ;5 and the Speaker and the members of the House of
Commons met at the house, and thence proceeded to St. Mar-
garet's church to attend divine service; but in the meantime
the house had adjourned from Friday till the Monday fol-
lowing
Whenever a day of thanksgiving, or of fast and humilia-
tion, is appointed during the sitting of Parliament, it is cus-
tomary for both houses to attend divine service; the Lords
at Westminster Abbey; and the Commons at St. Margaret's
church.s . Each house appoints a preacher: the Lords appoint
a bishop, the Commons a dean, a doctor of divinity, or the
Speaker's chaplain.10 On the 31st January 1699, the house
resolved, “ that for the future no person be recommended to
preach before this house, who is under the dignity of a dean
in the church, or hath not taken his degree of doctor of
divinity."11 On the 4th June 1762, this resolution was
repeated, making an exception, however, in favour of the
6
Days of
thanksgiving
or fast.
Com. J. 551; and again 27th April
and 11th May 1679; 9 Ib. 605. 619.
On the latter day thu Lords also met,
13 Lords' J. 506.
1 49 Com. J. 613.
2 9 Hans. Deb. 3rd Ser. 646.
3 121 Com. J. 89.
4 5th July 1879; 134 Com. J. 322;
3rd July 1880 ; 135 Com. J. 273.
5 88 Lords' J. 123.
6 111 Com. J. 175.
7 88 Lords' J. 123.
8 40 Com. J. 305; 57 Ib. 483; 111
Ib. 175, &c. On the 13th February
1801, the Commons went to St. John
the Evangelist's church, St. Mar-
garet's being then under repair.
9 88 Lords' J. 120.
10 92 Com. J. 279 ; 111 Ib. 177.
11 13 Ib. 162.
EXTRAORDINARY SITTINGS.
241
3
coronations.
chaplain of the house ;1 but a bachelor of divinity has also
been selected for this honour. It is customary to thank the
preacher, and to desire him to print his sermon.
On some occasions of special solemnity, the King and both Houses of
houses of Parliament have attended divine service at St. Paul's to St. Paul's.
Parliament go
cathedral; as on the King's recovery from his illness in
1789,4 after the naval victories in 1797,5 on the conclusion of
peace in 1814, and on the recovery of the Prince of Wales,
in 1872. In 1852, both houses attended the Duke of Wel-
lington's funeral, at St. Paul's.8
If Parliament be sitting at the time of a coronation, it has Attendance at
been customary for both houses to attend the ceremony in
Westminster Abbey; and to make orders concerning such
attendance."
The sitting of the house is often suspended, and afterwards Sittings
suspended.
resumed without any formal adjournment.10 The Speaker
retires from the house, the mace being left upon the table,
and returns at a later hour, when the business proceeds in the
accustomed manner without counting the house. When this
occurs, there is no entry in the Journal of the circumstance,
as technically the house has continued sitting. But when
the house meets in the morning, and adjourns to a later hour
on the same day, the house is again counted at its second
meeting
Sometimes an adjournment is agreed to as a mark of respect Adjourn-
to a deceased member. On the 15th September 1646, both mark of
houses adjourned to mark their sense of the loss of the Earl respect to
ments as a
deceased
members.
1 24 Com. J. 272.
2 Rev. H. Melvill, B.D., 13th Mar.
1855; 110 Com. J. 121.
3 88 Lords' J. 124; 98 Com. J. 339.
23rd April 1789; 38 Lords' J.
397; 44 Com. J. 288.
5 53 Ib. 140.
6 7th July 1814 (the Prince Re-
gent); 49 Lords' J. 1046; 69 Com. J.
441. After the peace of 1815, no
day of thanksgiving was appointed.
7 127 Com, J. 52. 61.
8 108 Ib. 29. Reports of Com-
mittee on the Fineral,
9 William & Mary, 1689; 10 Com.
J. 82, &c.; Anne, 1702; 13 Ib. 851;
William IV. 1831; 86 Ib. 793, &c.;
Her Majesty, 1838 ; 93 Com. J. 621,
&c.
10 See infra, p. 283.
P.
R
242
SPECIAL ADJOURNMENTS.
of Essex. On the 3rd July 1850 an adjournment was
agreed to by the Commons, nem. con., as a suitable mode of
expressing the grief of the house on hearing of the death of
its most distinguished member, Sir Robert Peel ;and on the
14th April 1863, the like tribute was paid to the memory of
Sir George Cornewall Lewis. On Friday, 31st May 1878,
the house adjourned, in the course of a debate, in consequence
of the sudden death of one of its members, Mr. Wykeham-
Martin, in the Library of the house, where his body was then
lying. 4 On Monday, 8th May 1882, the house adjourned,
nem. con., at quarter past four, without transacting any
public business, on account of the assassination of Lord
Frederick Cavendish, Chief Secretary to the Lord Lieutenant
of Ireland, and Mr. Burke, Under Secretary, on the previous
Saturday in Phoenix Park, Dublin. On the 24th June
1861, the Lords adjourned, nem. diss., on the death of the
Lord Chancellor, Lord Campbell.
Occasionally the house adjourns on the occasion of royal
funerals. The funeral of the Duke of Sussex was appointed
for 4th May 1843, and the house adjourned over that day.
The Duke of Cambridge was buried on the 16th July 1850,
when the house sat from twelve till three, and then adjourned
in consequence of the funeral. But on the funeral of the
Princess Sophia, 5th June 1848, the house did not adjourn;
Royal
funerals.
14 Com. J. 670.
2 105 Ib. 484. On the 5th July,
the French Assembly entered in their
Procès Verbal, an expression of regret
at the loss of this eminent statesman.
163 Hans. Deb. 3rd Ser. 772.
3 14th April 1863. Notwithstand-
ing the universal respect in which
Sir G. Lewis was held on both sides
of the house, the propriety of this
proceeding was questioned, in pri-
vate, by many eminent statesmen, on
the ground of the invidious distinc-
tions which might be drawn between
the claims of different members to
such an honour, and the contentions
likely to arise in times of party ex-
citement.-Mr. Speaker's Note Book.
4 133 Com. J. 264.
5 137 Ib. 185. On the 3rd June
1882, the Italian Chamber of Depu-
ties adjourned until the 12th in con-
sequence of the death of Garibaldi.
The Hall was also ordered to be
draped in mourning for two months;
and other measures were at once
voted for doing honour to his me-
mory, for his funeral, and for pen-
sions to his family.
t
OFFICE OF SPEAKER.
243
and again, the Duchess of Gloucester was buried on Friday,
the 8th May 1857 (the day after the lords commissioners'
speech had been delivered), but the house sat on that day as
usual; and not without due consideration. The funeral was
at Windsor, at twelve; and the house did not meet until a
quarter before four.
The Lords never sit either on Ash Wednesday or Ascension- Ash Wednes-
day. On Ash Wednesday it is customary for the House of sion-day, &c.
day, Ascen-
Commons to meet at two o'clock, instead of twelve, in order
to give members an opportunity of attending divine service.1
And on Ascension-day, since 1849, orders were frequently
made, for the same purpose, that no committees have leave
to sit until two o'clock. But, in 1872, this customary
motion was negatived. In 1873, however, a motion restrain-
ing committees from sitting until two, but giving them leave
to sit until six, was carried by a large majority ;4 and this
resolution has since been repeated in every succeeding year.
On the 19th March 1866, appointed by the Bishop of
London as a day of prayer and humiliation, it was ordered
that no committees do meet before one o'clock.
When the Queen's birthday is kept on any day except Queen's
birthday and
Saturday, the house has frequently adjourned over that other daye.
day;5 and for many years it has been customary to adjourn
over the Derby day, though latterly not without a debate
and division.
The duties of the Lord Speaker of the upper house, and Speaker of
of the Speaker of the Commons, will appear in the various Lords.
the House of
i Resolved on division, 25th Feb. 1856 and 1871 inclusive.
1873.
4 20 May 1873.
2 So far back as 15th May 1604, 5 Tuesday, 24th May 1864 ; Wed-
it “being put to question whether nesday, 24th May 1865 ; Wednesday,
we should sit on Ascension-day," 2nd June 1869.
upon division " resolved to sit." 6 This adjournment was generally
But on the 1st June 1614, it was moved by the leader of the house
resolved, upon division, not to sit. from 1856 until 1878, when it was
3 122 Com. J. 255; 125 Ib. 225; left in the hands of an independent
126 Ib. 202. This order was re- member.
peated on nine occasions between
R2
244
OFFICE OF SPEAKER.
His duty to
attend.
Not neces-
sarily a peer.
proceedings of both houses, as they are explained in different
parts of this work ;1 but a general view of the office is neces-
sary, in this place, for understanding the forms of parlia-
mentary procedure.
The lord chancellor, or lord keeper of the great seal of
England, is prolocutor or Speaker of the House of Lords, by
prescription ;? and by a Standing Order of the Lords, it is
declared to be his duty 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.3
It is singular that the president of this deliberative body is
not necessarily a member. It has even happened that the
lord keeper has officiated, for years, as Speaker, without
having been raised to the peerage. On the 22nd November
1830, Mr. Brougham sat on the woolsack as Speaker, being
at that time lord chancellor, although his patent of creation
as a peer had not yet been made out. On the 4th March
1852, Sir Edward Sugden sat as Speaker, before he was
introduced as a peer. On the 26th February 1858, a new
writ was issued in the room of Sir Frederick Thesiger, who
had accepted the office of lord chancellor;' and on the 1st
March, before he had been called to the upper house, he
sat as Speaker.8 On the 27th June 1861, Sir Richard
1 See Index, tit. “ SPEAKER.'
2 Lord Ellesmere; Office of Lord
Chancellor, Ed. 1651.
3 Lords' S. 0. No. 5. And see
observations as to the obligations of
the lord chancellor to attend, 23rd
August 1831, and 20th June 1834;
6 Hans. Deb. 3rd Series, 453; 7 Ib.
646—662; 24 Ib. 597. 600. 604.
4 When Sir Robert Henley was
keeper of the great seal, and pre-
sided in the House of Lords as lord
keeper, he could not enter into de-
bate as a chancellor, being a peer,
does, and therefore when there was
an appeal from his judgments in the
Court of Chancery, and the law lords
then in the house moved to reverse
his judgments
the lord
keeper could not state the grounds
of his opinions given in judgment
and support his decisions.”_Lord
Eldon's Anecdote Book, 1 Twiss,
Life, 319.5 Lord Campbell, Lives
of Chancellors, 188.
5 63 Lords' J. 114.
6 84 Ib. 34.
7 113 Com. J. 73.
8 Lords' Minutes, 1858, p. 123.
OFFICE OF SPEAKER.
245
Bethell, having been appointed chancellor, sat as Speaker,
and was introduced, on the same day, as Baron Westbury.
On the 10th, 11th, and 15th December 1868, Sir William
Page Wood sat as Speaker, and on the latter day was intro-
duced and sworn, as Baron Hatherley. The woolsack,
indeed, is not strictly within the house, for the Lords may
not speak from that part of the chamber, and if they sit there
during a division, their votes are not reckoned.
When the great seal has been in commission, it was usual for Great seal in
commission.
the Crown to appoint (if he be a peer) the chief justice of the
Court of Queen's Bench, or Common Pleas, the chief baron
of the Exchequer, or the Master of the Rolls, to be Lord
Speaker. In 1827, Sir John Leach, master of the rolls,
and Sir William Alexander, chief baron of the Court of
Exchequer, and in 1835, Sir L. Shadwell, vice-chancellor,3
though not peers, were appointed Lord Speakers, while the
great seal was in commission. On the meeting of Parlia-
ment in 1819, the lord chancellor being absent, the Prince
Regent appointed Sir R. Richards, lord chief baron of the
exchequer, to supply his place, as Speaker.
At all times there are deputy Speakers, appointed by com- Deputy
Speakers.
mission to officiate 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 ; 5 but he gives place
immediately to any of the lords commissioners, on their
arrival in the house ; who, in their turn, give place to each
other according to their precedence, and all at last to the
lord chancellor. In 1824, Lord Gifford, chief justice of the
1 66 Lords' J. 113; 70 Ib. 42; 82
Ib. 71 ; 84 Ib. 126.
2 59 Ib. 278.
3 67 Ib. 291. On the 25th Oct.
1566, Sir R. Cattelyn, C. J. of Q. B.,
was appointed Lord Speaker, by
commission, which appears to be the
first instance of a commoner holding
that office. 1 Ib. 637.
4 Ib. 7. This was said to be in
accordance with the precedent of
Sir Robert Atkins in the reign of
King William. Lord Colchester's
Diary, iü. 68.
5 E.g., 24th Feb. 1873, when Lord
Chelmsford was chosen Speaker; and
on several occasions in 1882.
246
OFFICE OF SPEAKER.
Common Pleas, was appointed sole deputy Speaker. For
several years from 1851, there was only one deputy Speaker
in the commission, the chairman of the Lords' committees;
but on the 24th April 1881, the lord chancellor acquainted
the house that her Majesty had appointed four peers to be
deputy Speakers, in the absence of the lord chancellor and
the chairman of committees. On the 6th July 1865, the
lord president of the council, being unanimously chosen
Lord Speaker pro tempore, in the absence of the lord chan-
cellor, and of Lord Redesdale, the deputy Speaker, sat as
Lord Speaker, and, as one of the lords commissioners, delivered
the royal speech, and prorogued the Parliament.
The duties of the office are thus generally defined by the
Standing Orders :-
“The lord chancellor, when he speaks to the house, is always to
speak uncovered, and is not to adjourn the house, or to do anything
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."4
Duties of
Speaker in
the Lords.
His anoma-
The position of the Speaker of the House of Lords is
lous position. somewhat anomalous; for though he is the president of a
deliberative assembly, he is invested with no more authority
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."
!
1 56 Lords' J. 39. Lord Colches-
ter's Diary, ii. 311.
2 267 Hans, Deb. 3rd Ser. 1204.
3 97 Lords' J. 639.
4 Lords' S. O. No. 19. But if lord
chancellor, he goes, by virtue of his
office, to the left of the chamber
above all dukes not being of the
blood royal. 31 Hen. VIII. c. 10,
s. 4.
5 See Debate in the Lords, 22nd
June 1869, in which it was suggested
that the chancellor should be invested
with more extended powers: but it
OFFICE OF SPEAKER.
247
The duties of the Speaker of the House of Commons are Speaker of
the Commons.
as various as they are important. He presides over the
deliberations of the house, and enforces the observance of
all rules for preserving order in its proceedings; he puts
every question, and declares the determination of the house.
As “mouth of the house," he communicates 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 commitment of
offenders, for the issue of writs, for the attendance of wit-
nesses in custody, for the bringing up prisoners in custody,
and giving effect to other orders requiring the sanction of
a legal form. He is, in fact, the representative 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 remains with the Speaker, and accompanies
him upon all state occasions.
In rank, the Speaker takes precedence of all commoners, His rank.
both by ancient custom and by legislative declaration. The
Act 1 Will. & Mary, c. 21, enacts, that the lords commis-
sioners for the great seal "not being peers, shall have and
take place next after the peers of this realm, and the Speaker
of the House of Commons."
--
"1
was pointed out, on the other side, whilst a member of the House of
by some peers and by the chancellor Commons, upon any occasion out of
himself, that as he was a minister of Parliament where strict rank was to
the Crown, not chosen by the house be observed, such as the signing
itself, and was often a member of the solemn instruments of state. Garter
least experience in the house, he King-at-Arms inclined strongly to
could not properly exercise the same think that such Irish peer would
powers as those of the Speaker of have the precedence, notwithstand-
the Commons.
ing the express words in the Act of
1 See also 2 Hatsell, 249, n.; "I Union, as to the loss of privileges.”
had a correspondence with Garter Lord Colchester's Diary, i. 413. At
King-at-Arms about the precedence Mr. Pitt's funeral, “My place was
between the Speaker of the House after the eldest sons of viscounts,
of Commons and a peer of Ireland,
and before barons' sons." Ibid. ii. 40,
9
248
OFFICE OF SPEAKER.
Duration of
By the 2 & 3 Will. IV. c. 105, s. 4, it is provided that, in
office after
dissolution. case of a dissolution, the then Speaker shall be deemed to be
the Speaker until a Speaker shall be chosen by the new
Parliament; and by the 9 & 10 Vict. c. 77, s. 5, in case
of his death, disability, or absence from the realm during
any dissolution or prorogation, three of the commissioners of
the House of Commons may act for him in regard to the
offices of the house.
When absent. Until 1853, no provision had been made for supplying
the place of the Speaker by a deputy Speaker or Speaker
pro tempore, as in the upper house ;1 and when he was
unavoidably absent, no business could be done, but the clerk
acquainted the house with the cause of his absence, and put
the question for adjournment. Though doubts were formerly
entertained whether the house could be adjourned in this
manner, otherwise than from day to day, no such limitation
was practically observed. When the Speaker was so ill as
to be unable to attend for a considerable time, it was neces-
sary to elect another Speaker, with the usual formalties of
the permission of the Crown, and the royal approval. On
the recovery of the Speaker, the latter would resign, or “fall
sick," and the former was re-elected, with a repetition of the
same ceremonies.
Chairman of In 1853, a committee was appointed to consider the best
Ways and
Means to take means of providing for this obvious defect in the constitu-
the Chair,
tion of the house, which on the 4th August resulted in the
adoption of the following Resolution, the consent of the
Crown having been first signified :
"That whenever the house shall be informed of the unavoidable
absence of Mr. Speaker, the chairman of the committee of ways and
means do take the chair for that day only; and in the event of Mr.
Speaker's absence continuing for more than one day, do if the house
shall think fit, and shall so order it, take the chair in like manner, on
any subsequent day during such absence." 5
1 During the Protectorate, Speakers 3 1 Ib. 353; 25 Ib. 532; 39 Ib.
pro tempore were appointed. 7 Com. 841; 44 Ib. 45.
J. 482, 483. 612. 811.
4 9-Ib. 463. 476; 11 Ib. 271, 272.
2 83 Ib. 547.
5 108 Ib. 758. 766.
OFFICE OF SPEAKER.
249
No provision, however, was made for the execution of any
of the duties performed by the Speaker out of the chair, and
the arrangements were otherwise inadequate, for meeting the
emergencies arising out of the Speaker's absence.
On the 7th May 1855, this resolution was acted upon for Cases of
the first time. The Speaker had shown indisposition early absence.
Speaker's
in the evening; and afterwards, while the house was in
committee of supply, he wrote a letter to the clerk, to inform
the house of his unavoidable absence for the remainder of
the night and went home. Meanwhile the committee of
supply proceeded with its sitting ; and as soon as the chair-
manº left the chair of the committee, to report resolutions,
the clerk acquainted the house that he had received a letter
from Mr. Speaker, which he read to the house. Whereupon
Mr. FitzRoy, the chairman of the committee of ways and
means, took the chair, the mace was immediately placed upon
the table, and the house proceeded with the business of the
evening.
Again, on the 4th June 1855, the house met, and the
Speaker not being present, no prayers were read. The clerk
at the table acquainted the house that he had received a
letter from Mr. Speaker, together with a medical certificate,
which he read to the house. Whereupon Mr. FitzRoy, the
chairman of the committee of ways and means, having
counted the house, took the chair. It being afterwards
stated that Mr. Speaker's indisposition would probably be of
some days' duration, it was ordered, “that in the event of
Mr. Speaker's absence continuing for more than this day,
Mr. FitzRoy do take the chair on each subsequent day during
the present week."5
On the 5th, 6th, 7th and 8th June, the Speaker being still
1 See Report on the Office of
Speaker, 1853 (478).
2 Mr. FitzRoy had given up the
chair, before the last vote, to Mr.
Bouverie.
3 110 Com. J. 210.
4 The omission of prayers, though
consistent with precedent, was un-
necessary, and was not afterwards
observed.
5 110 Com. J. 261. 264.
250
OFFICE OF SPEAKER.
absent, Mr. FitzRoy again took the chair, pursuant to the
resolution of the 4th, prayers being first said, and the house
counted, in the usual manner. On the 11th June the
Speaker returned, and having thanked the house for their
indulgence, called attention to the circumstance that two
members had taken the oaths and their seats in his absence,
and suggested whether any doubts as to the validity of the
oaths should not be removed, which led to the passing of the
bill already alluded to.1
Deputy The imperfection of the arrangements made in 1853 was
Speaker in the
Commons.
now too obvious to be overlooked ; and, accordingly, the
Queen's consent being signified, the following Standing
Order was agreed to :-
"That whenever the house shall be informed by the clerk at the
table of the unavoidable absence of Mr. Speaker, the chairman of the
committee of ways and means do perform the duties and exercise the
authority of Speaker, in relation to all proceedings of this house, as
deputy Speaker, until the next meeting of the house, and so on from
day to day, on the like information being given to the house, until the
house shall otherwise order: provided that if the house shall adjourn
for more than twenty-four hours, the deputy Speaker shall continue to
perform the duties and exercise the authority of Speaker, for twenty-
four hours only after such adjournment."
Recognition
of deputy
Speaker by
statute.
An Act was also passed, providing that if in the temporary
absence of the Speaker, a deputy Speaker shall perform his
duties and exercise his authority, pursuant to the Standing
Orders, or other order or resolution, every act done and
proceeding taken in or by the house, pursuant to any statute,
shall be as valid as if the Speaker himself were in the chair;
and every act done by the deputy Speaker shall have the
same effect and validity as if it had been done by the
Speaker.3
i See supra, p. 219.
2 110 Com. J. 395.
3 18 & 19 Vict. c. 84. Report on
Office of Speaker, 1855. A bill in
almost the same terms had been sub-
mitted to the committee of 1853, but
they were contented to rely upon a
resolution of the house. Under this
Act, Mr. Massey, acting as deputy
Speaker, in May 1861, signed cer-
tificates of the withdrawal of tho
London, Buckinghamshire and West
OFFICE OF SPEAKER.
251
The Speaker was absent on the 26th April 1861; and again
on the 1st, 2nd, and 3rd May 1861, when Mr. Massey, the
chairman of the committee of ways and means, officiated as
deputy Speaker, pursuant to the Standing Order.1
It was not, however, until 1866, that the value and
efficiency of this new system were fully tested. In that
session, Mr. Speaker being unfortunately disabled by an
accident, was absent from Friday the 9th, until Friday the
23rd March, on which latter day the house adjourned for the
Easter vacation. On the re-assembling of the house on the
9th April, he resumed the chair, but was obliged to absent
himself on this and several other evenings, before the con-
clusion of the sitting, as well as on the whole of one evening,
and three Wednesday sittings, the last of these being on the
25th April. On each of these occasions, on the house being
informed of the unavoidable absence of Mr. Speaker, Mr.
Dodson, the chairman of ways and means, at once pro-
ceeded to act as deputy Speaker, and performed all the
duties of Speaker in and out of the chair. On the 20th April,
when Mr. Speaker was convalescent, he informed the house
that a commission was ordered, and that being disabled from
attending with the house in the House of Peers, he should
be obliged, by permission of the house, to withdraw before
the arrival of black rod. Thereupon the house resolved that
Midland Junction Railway, and of table, and, after prayers, counted
the Ellesmere and Whitchurch Rail- the house and took the chair. On
way, to authorize the repayment of the 2nd May, the principal business
the deposit required by the Standing being in Committee of Ways and
Orders, pursuant to 9 & 10 Vict. c. 20, Means, the chairman first took the
8. 5. And in March 1866, Mr. Dod- chair of the house, and then of the
son signed several similar certificates, committee. It was thought better,
and warrants for new writs, 121 however, not to follow the precedent
Com. J. 158.
of 1855; and the chairman himself
1 116 Ib. 168. 174, &c. The put the question for reporting pro-
serjeant, accompanied by the chap- gress, and then left the house for a
lain, entered the
entered the house with the time. On returning, he took the
mace, which he placed upon the chair of the house, and Mr. Pecl, the
table. The clerk informed the house Secretary of the Treasury, reported
of the Speaker's unavoidable ab- that the chairman had been directed
sence, and read a letter from him.
to report progress.
Mr. Massey then proceeded to the
252
OFFICE OF SPEAKER.
during his absence, the chairman of ways and means should
take the chair as deputy Speaker, and attend with the house
in the House of Peers, and report the royal assent to the Acts.
On the approach of black rod, Mr. Speaker retired, his place
being taken by Mr. Dodson; and when the royal assent to
the Acts had been reported, he resumed the chair. This pro-
ceeding was resorted to on two other occasions ;and since
that time, the chairman of ways and means has repeatedly
taken the chair in the absence of the Speaker.2 On the
20th June 1870, the Speaker asked the indulgence of the
house to enable him to receive the degree of D.C.L. at
Oxford, when the chairman of ways and means was ordered
to take the chair, as deputy Speaker, during his temporary
absence.3
Speaker On the 31st January 1881, during a protracted sitting, the
chair during Speaker retired, and after some time the clerk informed the
sitting.
house of his unavoidable absence. Mr. Playfair, the chair-
man of ways and means, now took the chair, which, after
several hours, was resumed by the Speaker. Objection was
immediately taken that the Speaker, having once left the
chair, was, according to the terms of the Standing Order,
unable to resume it until the following day; but
resumes the
the same
“Mr. Speaker ruled that this Standing Order is enabling only, and
provides for the appointment and duties of the deputy Speaker, during
the unavoidable absence of the Speaker. If that absence should con-
tinue until the sitting of the house is closed, it provides for the execu-
tion of his duties until its next sitting; but it does not assume to
restrain the inherent authority of the Speaker himself, in the event of
his resuming the chair, while the house is still sitting. In that case
his unavoidable absence is at an end: he is in the chair again, and
exercises the authority of his office. Mr. Speaker, under the present
circumstances, did not consider that the Standing Order had any
application.”
When the debate had further continued for many hours,
the Speaker was again replaced by the chairman of ways and
1 121 Com. J. 234. 239. 261. 331.
2 125 Ib. 356; 126 Ib. 309 ; 131
Ib. 355 ; 16th Feb. 1880; 26th June
and 28th and 29th Nov. 1882.
3 125 Ib. 265.
ASSISTANTS OF THE LORDS.
253
means; but resumed the chair in the morning, and occupied
it until the close of the debate.1
Formerly the difference in the constitution of the office of Office of
Speaker in the
Speaker in the two houses had an important influence upon two houses.
the 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
22nd April 1831, when the king was approaching to prorogue
Parliament, the lord chancellor suddenly left the woolsack to
attend his Majesty, upon which Lord Shaftesbury was ap-
pointed Speaker pro tempore, and the debate, which had been
interrupted for a time, proceeded until his Majesty entered
the house. But in the Commons, before these recent arrange-
ments, if the Speaker was absent, the house was powerless,
except for the purpose of adjournment. This general descrip-
tion 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 were, according to Assistants of
ancient custom, the judges of the Courts of Queen's Bench
and Common Pleas, and such barons of the Exchequer as
were of the degree of the coif, the master of the rolls, the
attorney and solicitor-general, and the Queen's serjeants.
They were summoned, at the beginning of every Parliament,
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."3 They were present in the ancient concilium
regis, either as members of that high court, or as assistants;
and their presence has been continued, in different forms,
until this day. But since the Judicature Acts, the ancient
titles of the judges have been changed, the degree of the coif
has been discontinued, and Queen's serjeants are no longer
the Lords.
1 136 Com. J. 50; 257 Hans. Deb.
3rd Ser. 1707.
2 63 Lords' J. 511; 80 Ib. 10.
Hans. Deb. 22nd April 1831.
3 Macqueen, 36, n.
254
ASSISTANTS OF THE LORDS.
appointed. The judges, as assistants of the Lords, held a
more important place in Parliament, in ancient times, than
that which is now assigned to them, having had a voice of
suffrage, as well as a voice of advice. When the petitions
of the Commons and the answers of the king were drawn up
into the form of statutes after the session, the judges, if not
regarded as legislators themselves, were at least concerned in
an important part of legislation. They were also occasionally
made joint committees with the Lords of Parliament, a prac-
tice which continued until the latter end of the reign of Queen
Elizabeth. Their attendance was formerly enforced on all
occasions, but they are now summoned by a special order,
when their advice is required. Their place is on the wool-
sacks, and they
are not to be covered until the Lords give them leave, which they
ordinarily signify by the lord chancellor; and they being then ap-
pointed to attend the house, are not to speak or deliver any opinion
until it be required, and they be admitted so to do by the major part
of the house, in case of difference.'
Scotch
judges.
After the union with Scotland, it became a question in
what manner the Scotch judges should be received by the
house, when called upon to deliver their opinions. On the
29th April 1737, the lord justice clerk and the other judges
of the Court of Justiciary having been ordered to attend, it
was referred to a committee of the whole house to consider in
what places they should be heard. This committee reported
that they should be heard at the bar, to which the house
agreed, though not without objection; and chairs were ordered
to be set for them at the bar. The question was again raised
in 1807, and a committee appointed to search for precedents:
but the house adhered to the previous practice, ordering
2
1 Hale, Hist. of H. of Lords.
Intro. to Sugden's Law of Real
Property, 2. See also Lord Lynd-
hurst's speech, 23rd June 1851 ; 117
Hans. Deb, 3rd Ser. 1069.
1 Lords' J. 586. 606, 26th Jan.,
20th March 1563. West, Inq. 48.
3 Lords' S. O. No. 6.
4 25 Lords' J. 99, 100.
CHIEF OFFICERS OF THE LORDS.
255
chairs to be placed for the judges below the bar, and desiring
them to be seated. 1
The masters in ordinary in chancery also, until the aboli- Attendants.
tion of their offices, attended in the House of Lords as attend-
ants, and were usually employed in carrying bills and messages
to the House of Commons. They were not summoned by
writ, but one of them attended each day, by rotation. Like
the assistants, they also sat upon the woolsacks, but were never
covered.4
The chief officers of the upper house are the clerk of the Chief officers
of the Lords.
Parliaments, the gentleman usher of the black rod, the clerk
assistant, and the serjeant-at-arms. The clerk of the Parlia-
ments is appointed by the Crown, by letters patent. On
entering office, he makes a declaration at the table, before
the lord chancellor, to make true entries and records of the
things done and passed in the “ Parliaments, and to keep
secret all such matters as shall be treated" therein, “and
not disclose the same before they shall be published, but to
such as it ought to be disclosed unto." The clerk assistant Lords'
and the reading clerk are appointed by the Lord Chancellor, Journals.
the appointments being subject to the approbation of the
house. They attend at the table, with the clerk, and take
minutes of all the proceedings, orders, and judgments of the
house. These have been published daily since 18249 as the
“Minutes of the Proceedings," and they are printed, in a
corrected and enlarged form, as the Lords Journals, after
being examined" by the sub-committees for privileges and
perusal of the Journal Book." 10
Minutes and
6
1 46 Lords' J. 172. 189.
2 See Chapters XVI. and XVIII.
By Act 15 & 16 Vict. c. 80, the office
of master in ordinary was abolished,
subject to a temporary performance
of duties by certain of the present
masters.
3 Macqueen, 66.
4 Lords' S. O. No. 7.
5 Until 1855, this office had been
executed by the clerk assistant, who
on the death of Sir George Rose,
succeeded to his office, pursuant to the
Act 7 Geo. IV. c. 82; 87 Lords' J. 243.
By Promissory Oaths Act, 1868.
7 87 Lords' J. 44.
8 5 Geo. IV. c. 82, 8. 3.
9 56 Lords' J. 369 a.
10 84 Ib. 91. Lords' S. 0, No. 51.
Sinco 1860, the Lords' Minutes have
256
CHIEF OFFICERS OF THE COMMONS.
Black rod.
1
Serjeant-at-
arms.
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 Com-
mons in the House of Peers, at the opening and proroguing
of Parliament, when the royal assent is given to bills by the
Queen or the lords commissioners, and on other occasions.
He executes orders for the commitment of parties guilty of
breaches of privilege and contempt, and assists at the intro-
duction 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 attachment of delinquents, when
they are in the country. He is, however, the officer of the
lord chancellor, rather than of the house.
The chief officers of the House of Commons are, the clerk
of the house, the serjeant-at-arms, the clerk assistant, and
second clerk assistant. The clerk of the house is appointed
by the Crown, for life, by letters patent, in which he is styled
“ Under clerk of the Parliaments, to attend upon the Com-
mons." He makes a declaration before the lord chancellor,
on entering upon his office, " to make true entries, remem-
brances, and journals of the things done and passed in the
House of Commons." He signs all orders of the house,
endorses the bills sent or returned to the lords, and reads
whatever is required to be read in the house. He has the
custody of all records or other documents, and is responsible
Chief officers
of the
Commons.
Clerk of the
House.
been laid daily on the table cf the
House of Commons; 149 Hans. Deb.
3rd Ser. 856.
1 In 1878, the committee on the
office of the Clerk of the Parliaments,
&c., reported that “it is the duty of
the Lord Great Chamberlain, with
the assistance of the Gentleman
Usher of the Black Rod, to receive
sovereigns, princes and royal per-
sonages visiting the House of Lords,
during the sitting of the house for
business, and to give the necessary
directions to the doorkeepers and
police on such occasions." First
Rep. of Committee.
2 2 Hatsell, 255. London Gazette,
1st October 1850; 3rd February 1871.
See also 3 Com. J. 54. 57.
3 Substituted for an oath, by the
Promissory Oaths Act, 1868.
4 1 Com. J. 306; 6 Ib. 542; 17 Ib.
724, &c.
JOURNALS OF THE TWO HOUSES.
257
for the regulation of all matters connected with the business
of the house, in the several official departments under his
control. He also assists the Speaker, and advises members,
in regard to questions of order and the proceedings of the
house. The clerks assistant are appointed by the Crown,
under the sign manual, on the recommendation of the Speaker,
and are removable only upon an address of the House of
Commons. They sit at the table of the house, on the left
hand of the clerk.
The short entries of the proceedings of the house, which Votes and
Proceedings,
are made by the clerks at the table, have, since 1817, been and Journals.
printed and distributed every day, and are entitled, the
“Votes and Proceedings."? From these the Journal is after-
wards 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, without 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:3 but all the later volumes record nothing but the
les gestæ. It was formerly the practice for a committee " to
survey the clerk's book every Saturday,”+ and to be entrusted
with a certain discretion in revising the entries:' but now the
votes are prepared on the responsibility of the clerk; and
after “being first perused by Mr. Speaker,"6 are printed
for the use of members, and for general circulation. But
no person may print them, who is not authorised by the
Speaker.
A few words may here be interposed in regard to the legal Lords'
character of the Journals of the two houses. The Journals
Journals.
| 19 & 20 Vict. c. l; Treasury
Minute, 1856 (Sess. Paper, No. 132).
2 They had been printed, with
some interruptions, since 1680.
3 1 Com. J.885; 2 Ib. 12.42. For
a history of the early Journals, see
24 Com. J. 262.
1 Ib. 673.
5 1 Ib. 676. 683; 2 Ib. 42.
6 Sess, order since 1680. 9.Com.
J. 643. In 1866, the old form of
Latin dates prefixed to the Votes and
Journals of each day's proceedings
was discontinued, by order of Mr.
Speaker.
P.
258
JOURNALS OF THE TWO HOUSES.
Commons
Journals.
of the House of Lords? have always been held to be public
records. They were formerly "recorded every day on rolls
of parchment," and in 1621 it was ordered that the Journals
of the House of Commons shall be reviewed and recorded
on rolls of parchment.” But this practice has long since
been discontinued by the Lords, and does not appear to have
been adopted by the Commons. All persons may have
access to the Commons' Journals, in the same manner as to
the Journals of the other house.
The Journals of the House of Commons, however, are not
regarded as records, although their claim to that character is
upheld by weighty considerations. Sir Edward Coke speaks
of “ the book of the clerk of the House of Commons, which
is a record, as it is affirmed by Act of Parliament, in anno
6 Hen. VIII. c. 16."5 This is the statute already alluded
to, which prohibits the departure of any member of the
House of Comnions “except he have license,” &c.;
the same license be entered of record in the book of the clerk
of the Parliament, appointed or to be appointed for the
Commons' House.” This entry was obviously intended to
be a legal record, to be given in evidence in any claim for
wages, from the payment of which the counties, cities, and
boroughs were discharged, in case of the unauthorized de-
parture of their members. The Clerk's Book and the
Journals were unquestionably the same, and the latter are
still prepared from the former. A license was granted by a
66 and
1 Before the commencement of the
Lords' Journals, the proceedings of
Parliament were recorded in the
Rolls of Parliament, A.D. 1278–1503,
6 Edward I. to 19 Henry VII. The
Lords' Journals commence in 1509,
i Henry VIII.
22 Oxford Debs. 22. 1 Com. J.
608. 3 Hatsell, 37.
3 The Journals of the Commons
commence in 1547, i Edw. VI.; and,
with the exception of a short period
during the reign of Elizabeth, aro
complete to the present time.
4 Jones 2. Randall, 1 Cowp. 17.
Per Lord Mansfield: “Formerly a
doubt was entertained whether the
minutes of the House of Commons
were admissible, because it is not a
court of record: but the Journals
of the House of Lords have always
been admitted, even in criminal
1 Starkie on Ev. 199. 2
Phil. & Amos, 591.
54th Inst. 23.
cases."
GIVEN IN EVIDENCE.
259
vote of the house, and necessarily formed part of its ordinary
proceedings, which were entered at the same time, and by
the same person, in the Clerk's. Book; and the words of the
statute raise no inference that the entry of a license was
distinguishable, in law, from the other entries in the same
book. This statute was urged by the Commons in 1606, at
a conference with the Lords, as evidence in support of their
claim to be a court of record, to which the Lords took no
distinct objection, though they answered that “in all points
they were not satisfied.”l
The only point of importance in reference to the question, Given in
evidence.
is that of the legal effect of the Journals as evidence in a
court of law; and no difference is then perceptible in respect
to the Journals of either house. An unstamped copy of the
minutes of the reversal of a judgment in the House of Lords,
as entered in the Journals, is evidence of the reversal, like
the record of a judgment in another court. And an entry
in the Lords' Journals has been admitted by the Committee
of Privileges, as evidence of limitations in a patent of peerage,
without requiring the production of the patent.3 The Journals
of that house would also be evidence of a proceeding in Par-
liament having taken place, as that an address had been
presented to the king, and his answer;4 and in certain cases
they might be admitted as evidence of other facts, as in the
cause just cited, that there had been differences between the
king of England and the king of Spain; but, undoubtedly,
a resolution of the House of Lords, affirming a particular
fact, would not be admitted as evidence of the fact itself,
although the Journals would be evidence of such a resolution
having been agreed to.
In the same manner, a copy of the Journals of the House
of Commons has constantly been admitted as evidence of a
1 1 Com. J. 168. 319.
Finnelly, 568.
2 Jones v. Randall, i Cowp. 17. Francklin's Cise, 17 Howell, St.
3 Case of Lord Dufferin, 4 Clark & Tr. 635, 636.
S
s 2
260
JOURNALS OF THE TWO HOUSES.
proceeding in that house :1 but a resolution would not be
evidence of a fact. Thus, upon the indictment of Titus
Oates for perjury, a resolution of the House of Commons,
alleging the existence of a popish plot, was rejected as
evidence of that fact;2 and although that trial must be held
of doubtful authority, and the reasons assigned for the re-
jection of the evidence were not sound, yet upon general
principles the determination of this matter was right. As
evidence, therefore, the Journals of the two houses stand
upon the same grounds; they are good evidence of proceed-
ings in Parliament: but are not conclusive of facts alleged
by either house, unless they be within their immediate juris-
diction Thus a resolution might be agreed to by either
house, that certain parties had been guilty of bribery: but
in a prosecution for that offence, such a resolution would not
be admitted as evidence of the fact, although in both cases it
may have been founded upon evidence taken upon oath. But
the reversal of a judgment by the Lords, and the proceedings
of the Commons upon an election or return, would be equally
proved by their respective Journals. In the same manner,
a resolution of either house as entered in the Journals, that
a party had been guilty of a breach of privilege, would be
conclusive evidence of the fact that the party had been
adjudged by the house to be guilty of such offence. And
indeed, upon all other points, except, perhaps, when the
House of Lords is sitting in its judicial capacity, the Journals
of the two houses cannot be viewed as differing in character.
Every vote of either house upon a bill is of equal force; in
legislation their jurisdiction is identically the same: they
are equally constituent parts of the High Court of Parlia-
ment; and whatever is done in either house, is, in law, a
proceeding in Parliament, and an act of that high court at
large. There are bills also of a strictly judicial character,
1 Doug. 593. 1 Cowp. 17. Str. 126.
See also R. 2. Knollys, 1 Lord Raym.
10. 15. Bruyeres v. Halcomb, 5 Nev.
& M. (K.B.) 149. 3 Adol. & Ell. 381.
2 R. v. Oates, 10 Howell, St. Tr.
1165-1167.
JOURNALS OF THE TWO HOUSES.
261
in which the Commons have equal voice with the Lords.
Acts of attainder, of pains and penalties, of grace or pardon,
and of divorce, require the sanction of the Commons to
become law. The endorsement of these bills by the clerk
of the house is evidence of their agreement, by whom an
entry is made at the same time in the Journal Book, to
record the same proceeding. To use the words of Sir Edward
Coke, "The Lords in their house have power of judicature,
and the Commons in their house have power of judicature,
and both houses together have power of judicature.” 1 Their
legislative and judicial functions are sometimes merged ; at
one sitting, they constantly exercise both functions separately,
and their proceedings upon both are entered by their sworn
officers, in the same form and in the same page of one book.
If the judicature of the Lords be held to constitute them a
court of record, and their Journals a public record, the judi-
cature of the Commons in Parliament, it may be argued,
would constitute them equally a court of record, and would
also give to their Journals the same character as a public
record. When the Commons desire information concerning
any proceeding in the House of Lords, they appoint a com-
mittee to search the Lords' Journal. The Lords, on their
side, have appointed committees to search the Commons'
votes :? but their Lordships have also accepted the votes on
the table of the house as sufficient evidence of proceedings of
the Commons, without further search, or authentication.
When the Journals of the House of Lords are required How authen-
3
ticated.
1 4th Inst. 23.
of the votes of the Commons, as evi-
2 75 Lords' J. 590; 77 Ib. 505. dence of the proceedings of that
3 On the 31st Dec. 1691, they re- house in the conferences relative to
solved, “That the printed vote of the case of Ashby and White, Ib.
the House of Commons is sufficient 304. On the 24th Feb. 1820, they
ground for the Lords to take notice resolved, “That it appears from the
of that vote, to the House of Com- votes of the House of Commons, now
mons.” And again, on the 2nd Jan. on the table of the house, that the
following, they considered a resolu- Commons have voted the following
tion of the Commons, as it appeared resolutions," which are entered at
in their printed votes ; 3 Hatsell, 33. length in the Lords' Journal; 53
59. In 1704, the Lords took notice Lords' J. 17; 41 Hans. Deb. 1632.
262
HOW AUTHENTICATED.
as evidence, a party may have a copy or extract, authen-
ticated by the signature of the clerk of the Parliaments,
which it may be as well that he should be able to prove on
oath, by having been personally present when the copy was
signed by that officer; and in some cases the Lords have
allowed an officer of their house to attend a trial with the
original Journal. 1 In the Commons it is usual for an
officer of the house to attend with the printed Journal,
when a cause is tried in London : but when it is tried at
the assizes, or at a distance, a party may either obtain
from the Journal Office a copy of the entries required,
without the signature of any officer, and swear himself
that it is a true copy; or, with the permission of the
house, or, during the recess, of the Speaker, he may secure
the attendance of an officer to produce the printed Journal,
or extracts which he certifies to be true copies; or, if
necessary, the original manuscript Journal book. In some
cases the printed Journals have not been admitted by the
courts as evidence, unless examined with the original
Journal.3 On the trial of Lord Melville, a printed copy
of the Journal of the House of Commons was tendered
in evidence : but Lord Erskine, C., ruled that “the printed
Journal, if the party producing it had examined it with
the original, would be as good evidence as the original
Journal itself; but unless your copy be so examined, you
must produce the original Journal.”+ By Act 8 & 9 Vict.
c. 113, s. 3 (which does not extend to Scotland), it is
enacted that all copies of the Journals of either House of
Parliament purporting to be printed by the printers to
either House of Parliament, or by any or either of them,
shall be admitted as evidence thereof by all courts, judges,
justices, and others, without any proof being given that
i Lords'J., 13th and 15th February
1844.
2 99 Com. J. 128 ;. 100 Ib. 11+.
3 See Lord Melville's case, 29
Howell, St. Tr. 683. R. v. Lord
G. Gordon, 2 Doug. 593.
| 29 Howell, St. Tr. 685.
ENTRIES IN JOURNAL EXPUNGED.
263
such copies were so printed. But in Chubb v. Salomons,
a printed copy of the Journal of the House of Commons
was produced, and a witness proved that he had “examined
the printed book with the manuscript from which it was
printed,” or rather “the proof-sheets with the manuscript
and not the last printed copy;" and the court rejected the
printed Journal as evidence. An examined extract of the
minute book, kept by the clerk at the table, was afterwards
given in evidence.
Entries in the Journal have occasionally been ordered to Entries in
the Journal
be expunged. When the resolution of the 17th February
expunged.
1769, affirming the incapacity of Wilkes, was ordered to be
expunged, on the 3rd May 1782," the same was expunged
by the clerk at the table accordingly;"3 and the entry is
found to be erased in the manuscript Journal of that day:
but the printed Journal, though reprinted since that time,
still contains the obnoxious resolution.
On the 16th May 1833, a motion was made by Mr. Cobbett, Expunging
impugning the conduct of Sir Robert Peel. Lord Althorp the clerk's
moved, “That the resolution which has been moved be not minute book.
entered in the minutes :" but the Speaker put the question
thus, “That the proceedings be expunged," on the ground
that the minutes had already been entered in the clerk's
book. The question thus put was carried by 295 to 4, and
no entry of the motion or other proceedings was made in
the Votes.
On the 6th March 1855, a motion was made relative to the
appointment of a recorder for Brighton; and on proceeding
to a division the mover was left alone, his seconder, pro
formâ, declining to vote with him. A member immediately
rose and moved that the motion should not be entered in
the Votes, which was agreed to by all the members except
motions from
4
1 3 Carrington & Kirwan, 75.
2 4 Com. J. 397, &c.; 5 Ib. 197;
7 Ib. 317, &c. ; 9 Ib. 126; 11 Ib.
210; 33 Ib. 509.
3 38 Ib. 977.
4 2 Pcel's Speeches, 704; 17 Hans,
Deb. 3rd Ser. 1324.
264
SERJEANT-AT-ARMS.
the mover of the original motion. Accordingly, there is no
entry of either motion in the Votes.
In extreme cases the house, in this manner, marks its in-
dignant reprobation of an unseemly motion : but the practice
is resorted to with caution, as it infringes upon the rights of
individual members, and, unless exercised with forbearance,
would be liable to dangerous abuse. The expunging of a
motion from the minutes is also deprived of much of its
significance, by the publication of all parliamentary debates
and proceedings in every public journal.
This notice with regard to the Journals has necessarily
interrupted the account of the chief officers of the House of
Commons, to which it is now time to return.
The serjeant-at-arms is the last officer, immediately con-
nected with the proceedings of the house, to whom reference
need be made. He is appointed by the Queen, under a
warrant from the lord chamberlain, and by patent under
the great seal, “to attend upon her Majesty's person when
there is no Parliament; and, at the time of every Parlia-
ment, to attend upon the Speaker of the House of Com-
mons :"but after his appointment he is the servant of the
house, and may be removed for misconduct. On the 2nd
June 1675, the house committed Sir James Norfolke to
the Tower, for “betraying his trust," and addressed the
Crown to appoint another serjeant-at-arms “in his stead.” 4
His duties are, to attend the Speaker with the mace on
Serjeant-at-
aims.
1 137 Hans. Deb. 3rd Ser. 202,
2 Lord Charles Russell having sent
in his resignation of the office of
serjeant-at-arms to the Lord Cham-
berlain, in February 1875, Mr.
Disraeli stated on the 1st March, in
answer to a question, that the ap-
pointment of serjeant-at-arms is in
the gift, and entirely in the gift, of
her Majesty the Queen: “ There is
no person, whatever his position, in
the house, who has any influence in
that appointment; but I have been
commanded by the Queen to state
that being aware of the strong, not
to say unanimous, feeling of the
house on the subject, her Majesty,
as a gracious favour to her faithful
Commons, has been pleased to ap-
point to the office the gentleman
who is at present deputy serjeant-
at-arms.”_222 Hans. Deb. 3rd Ser.
998.
3 Officers and Usages of the House.
MS. 1805.
4 9 Com. J. 361.
SERJEANT-AT-ARMS.
265
entering and leaving the house, or going to the House of
Lords, or attending her Majesty with addresses: to keep
clear the gangway at the bar, and below it; to take strangers
into custody who are irregularly admitted into the house,
or who misconduct themselves there; to cause the removal
of strangers whenever they are directed to withdraw; to give
orders, to the doorkeepers and other officers under him, for
the locking of all doors upon a division; to introduce, with
the mace, peers or judges attending within the bar, and
messengers from the Lords; to attend the sheriffs of London
at the bar, on presenting petitions; to bring to the bar
prisoners to be reprimanded by the Speaker, or persons in
custody to be examined as witnesses. For the better execu-
tion of these duties he has a chair close to the bar of the
house, and is assisted by a deputy serjeant. Out of the
house, he is intrusted with the execution of all warrants for
the commitment of persons ordered into custody by the
house, and for removing them to the Tower or Newgate, or
retaining them in his own custody. He serves, by his
messengers, all orders of the house, upon those whom they
He also maintains order in the lobby and passages
of the house. On the 5th March 1807, complaints having
been made by members of the crowds of strangers which had
collected in the lobby, to their obstruction, the Speaker
“declared it to be the duty of the serjeant, when he found
that the accesses to the house were crowded with strangers,
to provide proper persons to clear them and to maintain
order."
It is another of his duties to give notice to all committees,
when the house is going to prayers. He has the appointment
and supervision of the several officers in his department; and,
as housekeeper of the house, has charge of all its committee-
rooms and other buildings, during the sitting of Parliament.
By the ancient custom of Parliament,2 and by orders of Admission of
strangers.
concern,
1 9 Hans. Deb. 1.
2 1 Com. J. 105. 118. 417. 484 ; 2 Ib. 74. 433, &c.
266
ADMISSION OF STRANGERS.
Lords.
both houses, strangers are supposed not to be admitted while
the houses are sitting.
It is ordered by the Lords,
"That for the future no person shall be in any part of the house
during the sitting of the house, except lords of Parliament and peers
of the United Kingdom not being members of the House of Commons,
and heirs apparent of such peers or of peeresses of the United Kingdom
in their own right, and such other persons as attend this house as
assistants."
at any
Ladies'
gallery.
Commons.
Strangers, however, are regularly admitted below the bar,
and in the galleries: but the Standing Order may
time be enforced.
Until 1845, the sessional orders of the Commons had also
contemplated the entire exclusion of strangers from every
part of the house: but since that time the presence of strangers
has been recognised in those parts of the house not appro-
priated to the use of members. On the 3rd May 1836, the
house, in pursuance of the report of a select committee,
ordered that arrangements should be made for the accommo-
dation of ladies, during the debates.?
By the Standing Orders of the Commons, the serjeant-at-
arms is directed,
"From time to time to take into his custody any stranger or
strangers that he shall see, or who may be reported to him to be, in
any part of the house or gallery appropriated to the members of this
house, and also any stranger who, having been admitted into any
other part of the house or gallery, shall misconduct himself, or shall
not withdraw when strangers are directed to withdraw, while the
house, or any committee of the whole house, is sitting; and that no
person, so taken into custody, be discharged out of custody without
the special order of the house.” And it is also ordered, “That no
member of this house do presume to bring any stranger into any part
of the house or gallery appropriated to the members of this house,
while the house, or a committee of the whole house, is sitting."!
" In
1 Lords' S. O. No. 8.
2 91 Com. J. 319.
3 An exception to this rule has
always been made in favour of clerks
and officers of the house.
+ Orders 5th Feb. 1845, made
Standing Orders. Stow says,
the year 1584, a new Parliament sat
in November, when one Robinson, a
lewd fellow, and a skinner, had the
confidence to sit in the house all the
day, though no member, and heard
ADNIISSION OF STRANGERS.
267
And in compliance with the general orders of the house, the
serjeant has accordingly taken strangers into custody who
have come irregularly into the house, or have misconducted
themselves there. According to ancient usage, the exclusion
of strangers could, at any time, be enforced without an order
of the house ; for, on a member taking notice of their pre-
sence, the Speaker was obliged to order them to withdraw,
without putting a question. Nor did the recognition of
their presence, by the Standing Orders of 1845, supersede the
ancient usage, which was founded upon the principle of their
entire exclusion. On the 18th May 1849, a member took
notice that strangers were present, who were ordered to with-
draw.3 The doors were accordingly closed for upwards of
two hours, and no report of the debates, during that time,
appeared in the newspapers. Strangers were re-admitted
without any order of the Speaker. And again, on the
8th June, in the same year, strangers were ordered to with-
draw. The revival of this exceptional practice led to the
appointment of a committee, which unanimously declared
against any alteration of the rules of the house. It was
not until the 23rd May 1870, that strangers were again
4
all the speeches, wherein many
weighty matters were uttered relat-
ing to the concernments of the Queen
and the kingdom. When this
fellow was discovered, he was searched
and nothing found about him. Mr.
Fleetwood, the Recorder, Mr. Beal,
and other Parliament men and
Papist-finders, were sent to search
his lodgings, but found nothing.
He remained for some time in the
serjeant's custody, and so, it seems,
was dismist.”—Survey of the Cities
of London and Westminster (Skin-
ners' Company). See also 15 Com.
J. 527, from which it appears that
members had been prevented from
sitting by the pressure of strangers.
See also Hans. Deb. 12th Feb. 1844
(Mr. Christie's motion). On the 9th
March 1876, two strangers having
inadvertently found their way into
the body of the house, with a number
of members pressing in to a division,
and being discovered after the doors
were locked and the division was
proceeding, the serjeant removed
them, and reported their intrusion to
the Speaker. After the division they
were let out, without any report to
the house.
1 29 Com. J. 23; 74 Ib. 537; 86
Ib. 323; 88 Ib. 246.
2 15 Hans. Deb. 310 (Walcheren
Expedition, 1810); 77 Hans. Deb.
3rd Ser. 138 (see Mr. Speaker's
explanation of the rule).
3 105 Hans. Deb. 3rd Ser. 662.
4 Ib. 1320.
5 Rep. 1849 (498).
268
ADMISSION OF STRANGERS.
1
ordered to withdraw, in order to avoid publicity being given
to a debate upon the Contagious Diseases Aots. This led
to further discussion:2 but the house still adhered to the
old rule of exclusion, which was again enforced on the
19th March 1872.3
At length, however, the extreme inconvenience of such a
rule forced itself upon the serious attention of the house, and
on the 31st May 1875, it was resolved :
“ That if at any sitting of the house, or in committee, any member
shall take notice that strangers are present, Mr. Speaker, or the chair-
man (as the case may be), shall forthwith put the question that
strangers be ordered to withdraw, without permitting any debate or
amendment: Provided that Mr. Speaker, or the chairman, may, when-
ever he thinks fit, order the withdrawal of strangers from any part of
the house."
This resolution was not made a Standing Order; but on
the 3rd March 1876, when notice was taken of the presence
of strangers, Mr. Speaker, instead of directing them to with-
draw, put the question in pursuance of the resolution. On
Monday the 6th, he called the attention of the house to this
proceeding, and explained that he had considered himself
bound to follow the practice prescribed by that resolution,
until otherwise instructed by the house; but he thought it
proper to give the house an opportunity of further declaring
its purpose, and determining whether that resolution should
be permanent. Again, on the 19th July in the same year,
notice being taken that strangers were present, Mr. Speaker
reminded the House of the resolution of the 31st May 1875,
and stated that he had, on a previous occasion, during the
present session, explained that he considered himself bound
to follow the practice prescribed by that resolution, until
otherwise instructed by the house; and that as no such
instruction had since been given, he should proceed to put
1 201 Hans. Deb. 3rd Ser. 1307.
2 30th May 1870; Ib. 1640.
3 203 Hans. Deb. 3rd Ser. 651.
4 131 Com. J. 77. 79; 227 Hans.
Deb. 3rd Ser. 1420.
ADMISSION OF STRANGERS.
269
!
the question, in pursuance of that resolution. And on the
12th of April 1878, during a debate upon the murder of
the Earl of Leitrim, notice being taken that strangers were
present, Mr. Speaker put the question for their withdrawal,
which was affirmed by a large majority. The same course
was pursued on the 22nd May, in the same year; but, as
no second teller could be found for the motion, the Speaker
declared that the Noes had it. This rule may, therefore,
be taken as established. It must be observed, however,
that an order for the withdrawal of strangers does not ex-
tend to the ladies' gallery, which is not supposed to be
within the house. Ladies can therefore only be informed
of the subject of debate, and left to withdraw or not, at their
own discretion. Upon divisions of the house, strangers were Strangers
entirely excluded until 1853, but are now merely desired to during a
withdraw from below the bar.5
On the 3rd August 1855, notice was taken that two Soldiers in
soldiers in uniform, lately returned from the Crimea, had uniform.
been refused admission to the Strangers' gallery. The Speaker
stated that there was no rule for their exclusion: but since a
complaint had been made of their admission (it was after-
wards said by Sir F. Burdett), they had not been admitted
except in plain clothes. Soldiers in uniform, but unarmed,
have since been freely admitted.
The only other matters connected with the meeting and
sitting of the two houses which will not be more particu-
larly described elsewhere, are the forms observed on the
prorogation of Parliament. Some of these, also, will be ad-
verted to again: but a general description of the ceremony of
prorogation will bring this chapter to a close.
According to former usage, when a new Parliament was Parliament
prorogued to any further day than that appointed for its prorogued
before its first
1 131 Com. J. 348; 230 Hans. 4 230 Ib. 1553-1555.
meeting.
Deb. 3rd Ser. 1555.
5 See infra, Chapter XII.--DIVI-
2 133 Com. J. 186; 239 Hans.
6 139 Hans. Deb. 3rd Ser. 1748.
3 240 Hans. Deb. 3rd Ser, 478.
SIONS.
Deb. 3rd Ser. 1262.
270
PROROGATION OF PARLIAMENT.
After its first
meeting.
meeting by the writ of summons, it was prorogued by writ
directed to both houses. On the day first appointed for the
meeting of Parliament, the Commons proceeded directly to
the door of the House of Lords, without going into their own
house, or expecting any message from the Lords. They
were admitted by the usher of the black rod to the bar, and
the writ being read, the Parliament stood prorogued by virtue
of the writ, without further formality. But, in 1867, this
ceremony was superseded by the simpler form of a royal
proclamation.2
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 im-
portant measures that have received the sanction of Parlia-
ment during the session. The royal assent is then given to
the bills which are awaiting that sanction,4 and her Majesty
reads her speech to both Houses of Parliament herself, or by
her chancellor ;5 after which the lord chancellor, having re-
ceived 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 certain 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, Parlia-
ment is prorogued by a commission under the great seal,
directed to certain peers, who, by virtue of their commission,
1 59 Lords' J. 3. 82 Com. J. 4. 2
Hatsell, 328.
2 30 & 31 Vict. c. 81. By this
Act a proclamation may be issued
"to prorogue Parliament from the
day to which it shall then stand
summoned or prorogucd, to any fur-
ther day, being not less than fourteen
days from the date thereof."
3 See debate in 1814, on Mr. Speaker
Abbot's speech, referring to a bill
which had not received the assent of
the house. 27 Hans. Deb. 466. See
also Chapter XXI.--SUPPLY. Lord
Colchester's Diary, ii. 453-459. 483-
496.
* See Chapter XVIII.-BILLS.
5 See supra, p. 220.
PROROGATION OF PARLIAMENT.
271
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 of the Parliaments, 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 commands, 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 commission, prorogues the Parliament accordingly. On
further prorogations, prior to 1867, the Commons were repre-
sented at the bar of the House of Lords by their clerk, clerk
assistant, or second clerk assistant;' the commission was read,
and the lord chancellor prorogued the Parliament in the
usual manner: but by the 30 & 31 Vict. c. 81, this obsolete
and unimpressive ceremony was discontinued, and Parliament
has since been prorogued by royal proclamation only.
1 The Speaker formerly attended;
the earliest instance of the clerk
attending being in 1672 (9 Com. J.
244); and of the clerk assistant in
1706 (15 Ib. 199). George III. as-
signed a later date to this practice,
saying, “Oh, I'll tell you how all
that came about. Sir John Cust
wanted to go to Spa, and desired I
would excuse his attendance upon
the prorogation during the recess.
Then came Sir Fletcher Norton, and
he took advantage of the last prece-
dent; Mr. Cornwall followed the
same; and so the Speakers have all
considered themselves as going to
Spa ever since.” Lord Colchester's
Diary, Nov. 1st, 1809, ü. 213.
272
MOTIONS AND QUESTIONS.
CHAPTER VIII.
MOTIONS AND QUESTIONS.
NOTICES OF MOTIONS, AND ORDERS OF
THE DAY.
QUESTIONS MOVED AND SECONDED.
MOTIONS WITH-
DRAWN. QUESTIONS SUPERSEDED BY ADJOURNMENT ; OR BY
READING THE ORDERS OF THE DAY. PREVIOUS QUESTIONS. NEW
QUESTIONS SUBSTITUTED BY AMENDMENT.
COMPLICATED QUES-
TIONS.
QUESTIONS PUT.
Questions a
part of every
proceeding.
EVERY matter is determined, in both houses, upon questions
put by the Speaker, and resolved in the affirmative or nega-
tive, 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 in the Journals of either house; but the practice of
Parliament has established certain forms of procedure, which
numerous precedents rarely fail to make intelligible.
Every member is entitled to 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, and to secure an opportunity of being heard, it
has long been customary to state the form of the motion on a
previous day, and to have it entered in the Order Book or
Notice Paper.
Notices of
motions.
1 3rd Feb. 1806. Before the rising
of the house, Mr. Fox moved for
leave to bring in a bill to enable
Lord Grenville to hold the two offices
of auditor of the Exchequer and first
Lord of the Treasury. "I objected
to such a motion without notice.
Mr. Fox inclined to persist; but the
house was of my opinion for adhering
to the present practice of giving
notice of new matters. And he gave
a notice accordingly.” Lord Col-
NOTICES OF MOTIONS.
273
Formerly, the pressure of business in the House of Lords House of
Lords.
had not been so great as to require any strict rules in regard
to notices: but on the 26th March 1852, the following resolu-
tions were agreed to:1
"That all notices of proceedings on public bills, and of other matters,
be inserted in the minutes of each day, according to the priority of
every such notice, or as the lords giving the same may have agreed,
and that the house do always proceed with the same in the order in
which they shall so stand, unless the lord who shall have given any
such notice shall withdraw the same, or shall, with the leave of the
house, consent to its postponement, or shall be absent at the appointed
time after the house shall have entered upon the consideration of the
said notices, in which latter case it shall be held to be a lapsed order,
and not be proceeded with, until after the notice shall have been
renewed.
“That on all occasions notices to suspend any of the Standing
Orders of the house, and notices relating to private bills, shall be dis-
posed of before the house proceeds to the other notices.
“That on Tuesdays and Thursdays the bills which are entered for
consideration on the minutes of the day, shall, with the before-men-
tioned exception, have precedence of all other notices: but petitions
relating to any such bill may be presented immediately before the
motion is made to proceed with the bill.
“That any business for which notice is not required, and all pro-
ceedings relating to private bills, may, in accordance with present
usage, be entered upon before the notices of the day are called for:
but the house will proceed with the notices in preference to other
matters at any time after a quarter past five o'clock, at the request of
any lord who may have a notice on the minutes."
In the Lords, the usual order of business is occasionally
changed, by special order. For example, on the 9th July
1868, it was ordered that third readings, on the orders of
the day, for this day, be taken after the City of London
Gas Bill, and before the other orders of the day. And on
the 10th July, it was ordered that the Representation of the
People (Scotland) Bill, and the bills appointed for third
chester's Diary, ii. 35. On the 27th
of the same month, Mr. Speaker
Abbot stated it to be then a settled
practice, that previous notice was
required to be given of motions of a
public nature. 6 Hans. Deb. Ist
Ser. 229. Lord Colchester's Diary,
ii. 41. See also 12th March 1836 ;
31 Hans. Deb. 3rd Ser. 1154.
1 84 Lords' J. 74.
2 100 Ib. 393.
P.
T
274
NOTICES OF MOTIONS,
1
days.”2
House of
Commons.
Restriction in
giving
notices.
reading, be taken before the notices and the other orders of the
day.
On the 20th July 1868, it was ordered “ that for the
remainder of the session, the bill or bills which are entered
for consideration on the minutes of the day, shall have the
same precedence which bills have on Tuesdays and Thurs-
A similar order was made on the 14th August
1871,9 and has become usual at the close of a session. The
public business appointed for the day commences at half-past
four o'clock.
In order to apportion the public business according to the
convenience of the house, it is usual for the House of Com-
mons to set apart 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.
Subject to this regulation, it was formerly the practice to
allow members to give notices for any day, however distant;
but by a Standing Order, it is now provided,
“ That no notice shall be given beyond the period which shall include
the four days next following on which notices are entitled to prece-
dence; due allowance being made for any intervening adjournment of
the house, and the period being in that case so far extended as to in-
clude four notice days falling during the sitting of the house."
The Order Book cannot, therefore, be occupied in advance,
with notices, for a longer period than a month, when the
house is sitting without interruption. No allowance is made
for an intended adjournment, until the house has actually
agreed to it. Thus, for example, if it be intended to move
the Easter adjournment on a Thursday until the Monday
week following, a member cannot, on the Tuesday preceding
such adjournment, give notice for a later day than that day
month : but immediately the house has agreed, at its rising,
to adjourn for the holidays, notices may be given for the four
next notice nights during the sitting of the house after the
1 100 Lords' J. 401,
2 Ib. 442.
3 103 Ib. 656.
AND ORDERS OF THE DAY.
275
adjournment. Notices may be given for days on which
orders of the day are allowed precedence, as well as for notice
days: but as the orders usually occupy the greater part of
the night, notices of importance are rarely given for such
days, unless it has been agreed that the orders shall be post-
poned. The priority of members desiring to give notices on
the same day is determined by ballot; and on being called
by Mr. Speaker, they rise and give their notices, without
debate or comment.
By the latest Standing Orders of the House, it is directed,
"That unless the house shall otherwise direct, all orders of the day Orders of the
set down in the Order Book for Mondays, Wednesdays, Thursdays, day.
and Fridays, shall be disposed of before the house will proceed upon
any motions of which notices shall have been given ; the right being
reserved to her Majesty's ministers of placing government orders at
the head of the list on every order day, except Wednesday.”
“That at the time fixed for the commencement of public business, Orders of the
on days on which orders have precedence of notices of motions, and day read.
after the notices of motions have been disposed of on all other days,
Mr. Speaker do direct the clerk at the table to read the orders of the
day, without any question being put."
" That the orders of the day be disposed of in the order in which Precedence of
they stand upon the paper, the right being reserved to her Majesty's
day.
ministers of placing government orders at the head of the list, in the
rotation in which they are to be taken, on the days on which govern-
ment bills have precedence.”?
- That while the committees of supply and ways and means are Supply on
open, the first order of the day on Friday shall be either supply or
Friday.
ways and means, and that on that order being read, the question shall
be proposed that Mr. Speaker do now leave the chair.''
Monday, Thursday, and Friday are accordingly set apart Distribution
of business.
for the government orders, Wednesday for the orders of
independent members, and Tuesday for notices of motions.
orders of the
1 The first resolution giving prece- lowing order, 15th November 1670:
dence to orders of the day was in " That Mondays and Fridays be ap-
1811, and applied to Monday and pointed for the only sitting of com-
Friday only ; 66 Com. J. 148; 19 mittees to whom public bills are
Hans. Deb. 106. 244. In 1835, it
In 1835, it committed ; and that no private
was extended to Wednesday.
committee do sit on the said days."
2 The origin of government nights 9 Com. J. 164. See also 1 Ib. 523.
may probably be traced to the fol. 640 (Committee of Grievances, 1621).
T 2
276
NOTICES OF MOTIONS,
Government
orders.
But as the committee of supply or ways and means is the
first order on Friday, it is practically a notice night, the
government merely having the residue of the evening, after
all the notices and debates on going into committee have
been disposed of. At the close of the session, Tuesday has
also usually been appropriated, when necessary, for orders of
the day, government orders having priority.' Occasionally,
also, the orders of the day have been directed to take pre-
cedence of notices, on a particular day.”
Wednesday having been recognised as the day set apart
for the bills promoted by members unconnected with the
government, there is a tacit understanding that, at the
commencement of the session, no government orders shall
be set down so as to compete, for precedence, with other
orders of the day. Towards the end of the session, how-
ever, when the pressure of public business becomes exces-
sive, and the greater part of the bills of private members
have been disposed of, or are without hope of further
progress, government orders are continually appointed for
Wednesday, and are taken in their turn with the other
orders. But the interposition of government orders, though
exercised with much forbearance, is liable to objections on
the part of independent members in charge of other bills.
On Wednesday, 5th August 1857, the committee of supply
stood the fourth order, and notice had been given of moving
estimates in committee. On the order of the day being
read, and motion made for the Speaker leaving the chair,
an amendment was moved to postpone that and the seven
succeeding (government) orders, till after the Election
Petitions Bill, which was the first order of the day of a
1 15th June, 1868; 123 Com. J.
243. 25th July 1870; 125 Ib. 358.
31st July 1871 ; 126 Ib. 382. 19th
July 1872 ; 127 Ib. 365. 23rd July
1877 ; 132 Ib. 367. 15th July 1878;
133 Ib. 354. 14th July 1879; 134
Ib. 340, &c.
? 17th Aug. 1860; 115 Com. J.477.
15th July 1878; 133 Ib. 354.
3 The committee of supply has
frequently sat on Wednesday ; 109
Com. J. 465; 112 Ib. 377 ; 113 Ib.
311; 122 Ib. 417.
AND ORDERS OF THE DAY,
277
private member. This amendment was withdrawn on the
government consenting to postpone the committee of supply
till after the other orders, but taking all the other govern-
ment orders as they stood in the Order Book. On several
Occasions an order has been made that government orders
have precedence on Wednesdays. Generally, towards the
close of the session, it has been ordered that during the
remainder of the session, government orders should have pre-
cedence upon Wednesdays. And of late years it has been
customary to include Tuesday and Wednesday in the same
resolution, giving precedence to government orders on those
days. When such an order has been made, it has been
ruled that the government can give priority to the bill of one
private member over that of another. Occasionally the
Standing Orders relating to Wednesday sittings have been
suspended.On Wednesday, 7th August 1872, these orders
were suspended until the proceedings upon the Licensing
Bill had been concluded ;? and again, on Wednesday, 15th
July 1874, until the adjourned debate on the Public Worship
Regulation Bill had been disposed of.8
When it becomes necessary to disturb the appointed order Orders of the
of business, and to give precedence to some important subject till after cer-
of debate, a special order is made for that purpose. If tain notices.
it be desired to give priority to a notice of motion on any
day on which orders of the day are entitled to precedence,
notice having previously been given, a motion is made that
1 112 Com. J. 377; 147 Hans.
Deb. 3rd Ser. 1083.
2 8th Aug. 1853 ; 2nd Aug. 1869;
6th Aug. 1872. See Debate, 129
Hans. Deb. 3rd Ser. 1463. 124 Com.
J. 387. 127 Ib. 421.
3 4th Aug. 1871; 126 Com. J.
397. 23rd July 1877; 132 Com. J.
367, &c.
4 14th July 1879; 134 Com. J.
340.
12th July 1880; 135 Com. J.
294. 1st Aug. 1881 ; 136 Com. J.
419. 24th July 1882 ; 137 Com. J.
395. On this latter occasion the
period fixed was the end of August,
as an autumn session was contem.
plated.
5 30th July, 1873; 217 Hans. Deb.
1256.
6 4th July 1865; the house then
sat on the 5th, at a quarter before
four, instead of 12; 120 Com. J. 449.
7 127 Ib. 426.
8 129 Ib. 303.
278
NOTICES OF MOTIONS,
the orders of the day be postponed until after such notice
of motion. On the 11th March 1873, in order to give pre-
cedence to the adjourned debate on the University Educa-
tion (Ireland) Bill, it was ordered that the notices of motions,
and the first six orders of the day appointed for this day, be
deferred till Thursday next, when they shall be taken into
consideration before the orders of the day now standing in
the Order Book for Thursday. On the 12th May 1873, it
was ordered that the orders of the day subsequent to the
order for the committee of supply be postponed till after the
notice of motion for the appointment of a select committee
on the boundaries of parishes, unions, and counties. Similar
orders were made on the 9th and 12th June 1873, on the
27th June 1877, and on other occasions.
The orders being thus postponed by order of the house,
the particular notice of motion is accordingly called by the
Speaker, and proceeded with. When it has been disposed
of, the house reverts to the orders of the day. Sometimes
the orders of the day have been postponed, generally until
after the notices of motions. Occasionally, also, some of
the orders of the day have been disposed of, and others post-
poned until after a particular notice of motion. And, again,
some orders of the day are postponed until after the other
orders, or until after particular orders of the day. On Friday,
the 11th May 1877, the order of the day for the Committee
of Supply (which stood first, pursuant to the Standing Order,)
was postponed until after the order of the day for resuming
the adjourned debate upon the Eastern Question. On Tues-
day, the 21st February 1860, the house adopted an un-
precedented course. Mr. Ducane having given notice of a
resolution in committee on the Customs Acts, which could
not regularly be proposed in that committee, Sir J. Graham
1 3rd and 5th June 1852; 107 Com.
J. 186. 320.
2 25th July 1856 (Motion for return
of Public Bills); 111 Com. J. 386.
3 115 Com. J. 97. 158; 117 Ib. 81;
119 Ib. 93; 176 Hans. Deb. 3rd Ser.
826; 6th July 1868; 123 Com. J.
298; 17th June 1869; 124 Com. J.
256; 125 Ib. 106; 132 Ib. 302.
AND ORDERS OF THE DAY.
279
suggested that it might be moved as a substantive motion
after the other notices. Though this course was at variance
with the Standing Orders, which require the orders of the
day to be proceeded with after the notices, and the Speaker
pointed out its irregularity, the house agreed to it by accla-
mation. On Monday, the 22nd June 1863, Lord Palmerston
having agreed to give up that evening to Mr. Hennessy's
motion relative to Poland, moved the postponement of the
orders of the day for that purpose : but the house did not
concur in this arrangement, and upon a division refused, by a
large majority, to postpone the orders of the day.?
Facilities of this kind are conceded by Government ac-
cording to the importance and urgency of the motions to be
discussed, and the state of public business. They have gene-
rally been given to motions amounting to a distinct vote of
want of confidence in ministers, proposed by leaders of the
opposition; but not to motions or bills of other members,
which, if carried in opposition to ministers, would probably
cause their resignation ; for if such a principle were admitted,
the arrangement of public business entrusted to them, would
be taken out of their hands.
When it is desired to resume an adjourned debate, or to Notices post-
give precedence to any other order of the day, on a notice poned until
after an order
day, it is usual to induce members, who have notices on the of the day.
paper, voluntarily to postpone them: but when they decline
to forego their privilege, or it is deemed right to interpose the
authority of the house, notice having previously been given,
1 156 Hans. Deb. 3rd Ser. 1473. given to this bill in a modified form.
2 118 Com. J. 303; 171 Hans. Deb. See, also, questions and debates, in
3rd Ser. 119. Mr. Speaker's Note- March and April 1883, concerning fa-
cilities for a debate on the Transvaal,
3 Special facilities were afforded in the release of prisoners from Kil-
1868, to the discussion of Mr. Glad- mainham, and the Cuban refugees.
stone's Resolutions upon the Irish 5 On Tuesday, 10th February 1880,
Church; 191 Hans. Deb. 3rd Ser. such a motion was made without
31–35. 826. 1679. 1707. 1745.
notice, with the general assent of the
4 See Debates, April 1872, in rela- house, the first notice on the paper
tion to Mr. Fawcett's University of having been postponed. See Speaker's
Dublin Bill. In 1873, facilities were ruling, Hans. Deb. 10th Feb. 1880.
Book.
280
NOTICES OF MOTIONS,
an order is made that the notices of motions be postponed
until after the particular order of the day, which it is desired
to consider, or that such order of the day have precedence of
notices. Special orders are occasionally made for the more
convenient arrangement of business, as that an order of the
day have precedence of motions on one day, and of orders of
the day on another. Such order of the day is then read and
proceeded with, after which the notices of motions are called,
and, lastly, the other orders of the day.
On Tuesday, 29th April 1856, the mover of the first notice
having refused to postpone it, his motion, together with all
the other notices, was disposed of by a motion that the house
do now pass to the orders of the day, which being at once put
and agreed to, the orders of the day were read and proceeded
with. On Thursday, 15th May 1873, the orders of the day
having been postponed till after a notice of motion for a
Select Committee to inquire into the case of the Callan
Schools, an amendment was moved to that motion, to the
effect that the house having already papers before it upon
that subject, "do pass to the orders of the day.” If this
amendment had been carried, the house would have imme-
diately reverted to the orders of the day, which had lately
been postponed.
On special occasions of urgency, a general precedence has
to particular been given to particular bills over all other business. Thus,
on the 25th January 1881, it was ordered that the introduc-
tion and the several stages of the Protection of Persons and
Property (Ireland) Bill, and of the Peace Preservation (Ireland)
Bill, have precedence of all orders of the day and notices of
General pre-
cedence given
bills.
1 Tuesday, May 6th 1856, ad-
journed Debate on the Treaty of
Peace; Tuesday, March 3rd 1857,
adjourned debate on China; Tuesday,
8th May 1877, adjourned debate on
the Eastern Question; Tuesday, 15th
May 1877, Universities of Oxford
and Cambridge Bill, 132 Com, J.
208. 226; 11th January 1881, 136
Com. J. 18, &c.
April 23rd 1860, third reading
of Church Rates Abolition Bill, 115
Com. J. 199.
3 136 Com. J. 24.
* Depopulation of rural districts in
Ireland, 111 Com. J. 167.
AND ORDERS OF THE DAY.
281
motions, until the house shall otherwise order. On the
23rd May 1882, it was resolved that the several stages of
the Prevention of Crime (Ireland) Bill, and the adjourned
debate on the second reading of the Arrears of Rent (Ireland)
Bill, have precedence of all orders of the day and notices of
motions, from day to day until the house shall otherwise
order. And again, on the 20th June 1882, it was ordered
that the Arrears of Rent (Ireland) Bill have precedence, on
every day for which it is set down, of all other orders of the
day and notices of motions, except the Prevention of Crime
(Ireland) Bill. On the 24th October 1882, it was ordered
that the consideration of the new rules of procedure have
precedence of all orders of the day and notices of motions,
on every day for which they may be set down.
Occasionally an order of the day is specially appointed for Orders ap-
half-past four o'clock, and is considered at that hour, by itself, half-past
pointed for
four,
before the other business is proceeded with. This course is
generally adopted in regard to the third reading of financial
or other bills, which it is important to have read a first time,
in the Lords, on the same day. It has also been resorted to
on Fridays, when, by the Standing Orders, supply stands as
the first order; and the regularity of the practice, in such
cases, has been fully recognised.?
When the house has appointed a day for the consideration Orders cannot
of a bill or other matter, no earlier day can afterwards be an earlier day.
be changed to
substituted. This rule is necessary to avoid surprises, and so
rigorously is it enforced, that even when it has been admitted
1 136 Com. J. 32. For a con- 113 Com. J. 167. Tobacco Duties
struction of this order, see 258 Hans. Bill, third reading, 23rd March 1863;
Deb. 3rd Ser. 1744.
118 Com. J. 130, &c.
2 137 Com. J. 224.
6 Consolidated Fund Bill, third
3 Ib. 289.
reading, Friday, 28th March 1873;
4 Ib. 491.
Friday, 27th March 1874; Friday,
5 Exchequer Bills Bill, and Ways 24th March 1876 ; Friday, 24th
and Means Report, Tuesday, 9th May March 1882, &c.
1854 ; 109 Com. J. 226. Annuities 7 Speaker's ruling, 31st March
Bill, Tuesday, 27th May 1856; 111 1868 ; 191 Hans. Deb. 3rd Ser. 573;
Com. J. 220. Oaths Bill, adjourned and see debate, Friday, 24th March
debate, Tuesday, 11th May 1858; 1876; 228 Hans. Deb. 3rd Ser. 564.
282
NOTICES OF MOTIONS,
Sittings on
Wednesday.
that a day had been named by mistake, and no one objected
to the appointment of an earlier day, the change was not
permitted.
The business of the house on Wednesday is regulated by
the following Standing Orders :-
" That the house do meet every Wednesday, at twelve o'clock at
noon, for private business, petitions, orders of the day, and notices of
motions, and do continue to sit until six o'clock, unless previously
adjourned.
“ That when such business has been disposed of, or at six o'clock
precisely, notwithstanding thero may be business under discussion,
Mr. Speaker do adjourn the house, without putting any question.
" That the business under discussion, and any business not disposed
of at the time of such adjournment, do stand as orders of the day, for
the next day on which the house shall sit.
" That at a quarter before six o'clock on Wednesday, the debate on
any business then under discussion shall stand adjourned until the
next day on which the house shall sit; after which no opposed busi-
ness shall be proceeded with.
" That whenever the house shall be in committee on Wednesday,
at a quarter before six o'clock, the chairman do report progress, and
Mr. Speaker do resume the chair." 2
Other morn-
ing sittings.
The forced adjournment of a debate, under these orders,
at a quarter before six, frequently causes the anomaly of such
an adjournment immediately following upon a determination
of the house that the debate shall not be adjourned.3
By other Standing Orders, of the 5th August 1853, and
19th July 1854, provision was made for morning sittings on
other days from twelve till four: the sittings being resumed
at six. Under these orders it was customary, during the
later months of the session, to appoint morning sittings, from
twelve till four, on Tuesdays and Fridays. In 1867, the
i London, Chatham and Dover
Railway Bill, 6th July 1863. In
this case the Standing Orders wero
suspended in order to accelerate the
next stage of the bill; 118 Com. J.
237; 172 Hans. Deb. 3rd Ser. 246.
2 On Wednesday, 28th Mar. 1860,
it being a quarter before six, the
chairman reported progress on the
Income Tax Bill, when, as there was
no opposition to it, the house again
resolved itself into committee on the
bill, and the committee proceeded
through the bill, and reported it.
3 127 Com. J. 105. '187. 356 ; 132
Ib. 302.
AND ORDERS OF THE DAY.
283
progress of the Reform Bill was facilitated by a change in
the hours of these morning sittings. The house met at two
on Tuesdays and Fridays, instead of twelve; its sitting being
suspended at seven, and resumed at nine. The only difficulty
incident to this arrangement was that of securing the attend-
ance of forty members at nine o'clock, which has frequently
caused the loss of the evening sitting. Notwithstanding this
difficulty, however, the new arrangement was found so con-
venient, that it has since virtually superseded the 12 o'clock
sittings; but hitherto it has been founded upon resolutions
of 30th April 1869, revived each session, and not by Standing
Orders. These Resolutions are as follows:
That, unless the house shall otherwise order, whenever the house
shall meet at two o'clock, the house will proceed with private business,
petitions, motions for unopposed returns, and leave of absence to mem-
bers, giving notices of motions, questions to ministers, and such orders
of the day as shall have been appointed for the morning sitting,
“That on such days, if the business be not sooner disposed of, the
house will suspond its sitting at seven o'clock; and at ten minutes be-
fore seven o'clock, unless the house shall otherwise order, Mr. Speaker
shall adjourn the debate on any business then under discussion, or the
chairman shall report progress, as the case may be, and no opposed
business shall then be proceeded with.
That when such business has not boon disposed of at seven o'clock,
unless the house shall otherwise order, Mr. Speaker (or the chairman,
in case the house shall be in committee) do leavo the chair, and the
house will resume its sitting at nine o'clock, when the orders of the
day not disposed of at the morning sitting, and any motion which was
under discussion at ton minutes to seven o'clock, shall be set down in
the order book after the other orders of the day.
" That whenever the house shall be in committee at seven o'clock,
the chairman do report progress when the house resumes its sitting."
Government orders have precedence at these morning
sittings. On the 26th June 1851, Mr. Speaker Shaw-
Lefevre said, “ that the practice of the house, -for no rule
existed on the subject,—had always been, since he had had
the honour of sitting in that chair, that at the morning sit-
tings the government bills took precedence over other bills :
but other members were not precluded from putting down
284
NOTICES OF MOTIONS,
Dropped
orders.
their own bills for the morning sittings; and if they were
put down, they would come on, in the regular order, after
the government bills, if there were any."
." Again, on the
21st June 1872, Mr. Speaker Brand, being referred to upon
the same subject, after citing the above ruling, added : “There
has been no departure from that ruling, nor could any depar-
ture from such ruling be sanctioned without the express
authority of the house itself.” 2
Sometimes a special order is made at the commencement
of a morning sitting, that a Committee have leave to sit till
seven, and report at nine; in which case the Speaker is not
required to resume the chair during the morning sitting: 3
It is ordered " that all dropped orders of the day be set
down in the Order Book, after the orders of the day for the
next day on which the house shall sit.” But in construing
this order it must be understood, that if an order of the day
has been read and proceeded with, and the house is adjourned
before it is disposed of, it is not treated as a dropped order,
but, being superseded, must be revived before it takes its
place again in the Order Book.4
Bills of private members have rarely been appointed for
Saturday sittings, and government orders are entitled to
precedence on that day.5
When the clerk is proceeding to read the orders of the
day, the course of business may not be interrupted by any
other business or debate, or motion for adjournment, which
members may endeavour to interpose. So soon as an order
of the day has been read, the business to which it relates is to
be immediately proceeded with ; and the Speaker, therefore,
Order of
business on
Saturdays.
Orders of the
day read.
:
1 117 Hans. Deb. 3rd Ser. 1254 ;
see also Ib. 1150.
2 212 Ib. 22; see also Ib. 704–
708.
3 Irish Land Bill, 1870; 125 Com.
J. 137. 314. 7th Aug. 1852; 213
Hans. Deb. 3rd Ser. 646.
4 Reformatory Schools (Scotland)
Bill, 8th May 1856; Joint Stock
Companies Winding-up Acts Amend-
ment Bill, 19th May 1856. See also
119 Com. J. 131. 256; 120 Ib. 225.
352; 121 Ib. 78; 122 Ib. 377. 404.
5 9th Aug. 1878; 242 Hans. Deb.
3rd Ser. 1640.
6 213 Ib. 644.
AND ORDERS OF THE DAY.
285
will not permit any question to be put to a minister or other
member, unless it relate to such order of the day. Petitions,
however, relating to the order of the day may be presented
after it has been read, but not after the next question conse-
quent upon it, has been proposed. Thus, when the order for
resuming an adjourned debate on the second reading of a bill
had been read, and the question had been again proposed, the
Speaker would not permit petitions to be presented relating
to such bill, as the adjourned debate had then been, in fact,
resumed. When an order of the day has been read, the
minister or member having charge of the bill or proceeding,
is entitled to priority in making a motion concerning it, and
no other member will be allowed to interpose, unless with his
consent.2
When a member desires to give notice of a motion, he Notices, how
given.
should first examine the Order Book,; or the printed notices
and orders of the day, which are printed with the Votes
every Saturday morning. When he has fixed upon the
most convenient day, he should be present at the meeting of
the house, and enter his name on the notice paper, which is
placed upon the table. Each name upon this paper is num-
bered; and when the Speaker calls on the notices, at half-
past four o'clock, the clerk-assistant having put the numbers
into a ballot-box, and shuffled them, draws them out, one by
As each number is drawn, the name of the member to
which it is attached, in the notice paper, is called by the
Speaker. Each member, in his turn, then rises and states the
notice he is desirous of giving, without comment or debate,
one.
6
1 Dublin Consolidation Water-
works Bill; 27th Feb. 1849.
2 Refreshment Houses Bill, March
26th 1860; 157 Hans. Deb. 3rd Ser.
1301. See also 160 Ib. 349. Sir J.
Fergusson on the Representation of
the People Bill, 7th June 1860; 159
Hans. Deb. 3rd Ser. 26.
3 Since 1856, the convenient prac-
tice has been adopted, of printing
the Order Book daily.
4 Since February 1865, this paper
has comprised the Order Book for the
whole session. 177 Hans. Deb. 3rd
Ser. 323.
5 When the private business of the
session has been advanced, public
business is commenced at quarter-
past four.
6 On the 30th April 1792, the
286
NOTICES OF MOTIONS,
and afterwards takes it to the table, and delivers it, fairly
written out, and with the day named, to the second clerk-
assistant: but only one notice may be given by a member,
until the other names upon the list have been called over.
When all the names have been called, any members may
give further notices. In 1876, attention was called to a
practice by which several members combined to give notice
of the same motion, in order to secure an undue priority for
that motion in the ballot. Such a practice was condemned
from the chair as irregular, and an evasion of the rules of the
house. It is not necessary that the notice should originally
comprise all the words of the intended motion : but if the
subject only be stated in the first instance, the question, pre-
cisely as it is intended to be proposed, should, if possible, be
given in some days before that on which it stands in the
Order Book; or, at least, it should be printed at length with
the Votes of the previous day. And the same rule is gene-
rally applicable to notices of amendments on going into com-
mittee of supply. If a motion differs materially from the
terms of the notice, it can only be made with the consent of
the house, or by a renewal of the notice. It is not sufficient
to give notice of calling attention to a question, and moving
a resolution, without stating the actual words of the motion."
But it is not necessary to give notice of the express terms of
resolutions intended to be proposed in committee of the whole
Speaker allowed Mr. Grey to make a
speech on giving notice of a motion
on the subject of Parliamentary re-
presentation, which was followed by
a debate. He said to Mr. Pitt, “that
in strictness it was not allowable;
but that it was the spirit of his duty
to consult the wishes of the house."
Lord Sidmouth's Life, 88. On the
5th July 1872, a member on rising
to give a notice, proposed to move
the adjournment of the house, but
was at once stopped by the Speaker;
212 Hans. Deb. 698. And so again
7th July 1876; 230 Ib. 1135.
1 9th March and 19th and 22nd
June 1876 ; 227 Hans. Deb. 3rd Ser.
1718; 230 Ib. 14. 260.
And again,
in March 1883, the same question
was raised, when the Speaker referred
to his previous ruling.
2 Vote of Thanks for services in
India, 8th Feb. 1858; 148 Hans.
Deb. 3rd Ser. 865.
3 191 Hans. Deb. 3rd Ser. 2053.
4 Fiji Islands, 26th June 1872; 212
Hans. Deb. 3rd Ser. 219,
5 205 Ib. 774; 207 Tb. 143.
AND ORDERS OF THE DAY.
287
house. Should a member desire to change the day, after he
has given his notice, he must repeat it for a more distant day,
it being irregular to fix an earlier day than that originally
proposed in the house;" even if it should assume the form of
an amendment to another question. One member 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.4
It is usual to concede priority to the government in making
announcements relative to public business; and on the first
day of the session, members of the government are allowed
to give their notices before the ballot. But they do not avail
themselves of this privilege, to anticipate other members, on
the days appropriated to notices.5
No positive rule 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 import-
ance of the subject. Notices of motions for leave to bring
in bills, 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.
Navigation Laws, 15th May,
1848; Sardinian Loan, 12th June
1856 ; Annual Budgets.
2 Mirror of Parl. 1835, p. 275; 122
Hans. Deb. 3rd Ser. 959. 154 Ib.
537. In 1814, Mr. Brougham gave
notice of an address, on the subject
of the orders in council, for the 23rd
June, which he afterwards changed
for the 16th. Objections were taken
by Mr. Rose to the irregularity of
this proceeding, but were not sus-
tained by the Speaker; Lord
Brougham's Life, ü. 19.
Subse-
quently, however, it was found ne-
cessary to introduce a stricter prac-
tice.
3 21 Hans. Deb. 3rd Ser. 225; 30
Ib. 8.
4 Hans. Deb. 27th April 1843.
5 On the 26th Feb. 1867, this pri-
vilege gave ministers a strategic ad-
vantage over their opponents. Mr.
Gladstone desired to give notice of
an amendment for the 28th, on going
into committee to consider resolutions
on the representation of the people :
but before the ballot, he was antici-
pated by the Chancellor of the Ex-
chequer, who rose and announced,
with reference to public business,
that he should not ask the house to
proceed with that committee.
6 It was ruled, July 9th 1861, that
a notice could not be given, at a
morning sitting, for the same even-
ing. Mr. Speaker's Note Book; 164
Hans. Deb. 3rd Ser. 630.
288
NOTICES OF MOTIONS.
Notices for unopposed returns are printed in their order,
amongst the other notices : but members who enter their
names in a paper for unopposed returns, upon the table of
the house, are called out of their turn, before the com-
mencement of the regular business of the day. For the
purpose 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; or he may give his notice,
at the table, without further formality.
On the 11th April 1854 (the last day before the Easter
recess), it was ordered “that members wishing to move
amendments to the Oxford University Bill, do send them
to the clerk of the house on or before Monday, the 24th day
of this instant April, and that the same be printed and
circulated with the Votes."
Motions with An unopposed motion can be brought on, by consent of
the house, without any previous notice : but if any member
should object, it cannot be pressed. If a minister moves for
a return which he is prepared to present immediately, it is
customary to make such a motion without previous notice.
Questions of Questions of privilege, also, and other matters suddenly
privilege, &c.
arising, may be considered without previous notice; and
the former take precedence, not only of other motions, but
of all orders of the day. But in order to entitle a question
of privilege to precedence, it must refer to some matter
which has recently arisen, which directly concerns the privi-
leges of the house, and calls for its present interposition.3
out notice.
1 Votes, p. 295.
24th Dec. 1640: " And it is fur-
ther ordered that the business then
in agitation being ended, no new
motion of any new matter shall be
made without leave of the house."
2 Com. J. 45; Mr. Speaker Bromley's
Note Book.
3 12th May 1848, interference of a
peer with the election for Stamford ;
98 Hans. Deb. 3rd Ser. 931. 22nd
May 1848, Sligo election compro-
mise; 98 Hans. Deb. 3rd Ser. 1236.
Peterborough election, appointment
and nomination of committee, 18th
and 21st July 1853; 108 Com. J.
691. 703. Ameer Ali Moorad's claim,
22nd Feb. 1858; 113 Com. J. 68.
QUESTIONS OF PRIVILEGE.
289
Where the question is bonâ file one of privilege, the house
will at once entertain it before any other business. This
ancient rule was thus expressed in debate by an eminent
authority : "Nothing can be so regular, according to the
practice of this house, as when any member brings under
the consideration of the house a breach of its privileges,
for the house to hear it-nay, to hear it with or without
notice--whether any question is or is not before it; and
even in the midst of another discussion, if a member should
rise to complain of a breach of the privileges of the house,
they have always instantly heard him."! The latter part of
this statement, it need scarcely be said, is limited to breaches
of privilege committed during a discussion, or so immediately
before it, that no earlier opportunity of making a complaint
had arisen; as, for example, an insult or assault upon a
member,” or any sudden act of disorder. In such cases,
debates have been interrupted by complaints of breaches of
privilege. But in other cases, equally affecting the privileges
of the house, but of less immediate urgency, the matter is
ordinarily brought forward, without notice, at the commence-
ment of public business. Such priority is conceded on the
assumption that the earliest opportunity has been taken for
bringing such a question before the house, which precludes
previous notice; and that the dignity of the house demands
its immediate consideration.
When such a question is not at once disposed of, but a
future day is appointed for its consideration, it has been
Lisburn election, 21st April 1864; Clare writ, 17th April 1879 ; see Mr.
119 Ib. 184. Azeem Jah (forged Speaker's ruling, 245 Hans. Deb.
signatures to petitions), 8th May
518, &c.
1865; 120 Ib. 247. King's County 1 Mr. Williams Wynn, Feb. 11th,
election, 12th Feb. 1866; 121 Ib. 55. 1836; 31 Hans. Deb. 3rd Ser. 274.
Complaint of Mr. Plimsoll's book, 2 79 Com. J. 483.
20th Feb. 1873. Complaint of Mr.
3 65 Ib. 134.
Sullivan against Dr. Kenealy, 11th Forgery of a petition, 1829, 84
April 1877; 132 Ib. 144. Forged Com. J. 187. Complaints against
signatures to petitions, 21st March newspapers, 93 Ib. 306; 106 Ib. 320,
1878; 238 Hans. Deb. 3rd Ser. 1741. &c.
4
}.
U
290
QUESTIONS OF PRIVILEGE,
customary, on that day also, to give it priority. Thus, on
Tuesday, the 16th February 1836, the consideration of a peti-
tion relating to a corrupt agreement between Mr. O'Connell
and Mr. Raphael, in connexion with the Carlow election,
stood ninth order of the day, but was taken before all the
notices of motions which had precedence of orders on that
day. So also on the 5th June 1837, similar precedence was
given to the consideration of petitions from the printers of
the house, on a matter of privilege. On the 6th May 1842,
precedence was given to Mr. Roebuck's motion for a com-
mittee to inquire into election compromises. Again, on
Friday 26th April 1844, the consideration of the complaint
against Mr. Ferrand for a breach of privilege stood eleventh
order of the day, but was taken first; and, not to enumerate
other intermediate cases, on Tuesday the 1st June 1858,
precedence was given to the consideration of the petition of a
person in custody, praying for his discharge, though standing
sixth order of the day on a notice night; and again, on the
following day, the like precedence was given to a second
petition from the same person. In 1859, other questions
connected with election compromises were allowed precedence.5
On the 5th July 1860, Lord Palmerston proposed resolutions
founded on the report of the committee on Tax Bills, as a
matter of privilege, before the orders of the day: but on the
17th, Lord Fermoy having given notice of another resolution
on that subject, the Speaker held that he was not entitled to
precedence, his object being merely to review a former deter-
mination of the house. On the 22nd July 1861, a motion
being proposed concerning the conduct of a member, in
connection with a joint-stock company, the Speaker said it
was doubtful whether it was properly a matter of privilege:
1 91 Com. J. 24. 42, and Votes ; 31
Hans. Deb. 3rd Ser. 272 et
SC!
2 92 Com. J. 436.
3 97 Ib. 263.
4 Case of Washington Wilks :
Votes, 1st and 2nd June 1858.
5 Mr. Roebuck (Chiltern Huu-
dreds), 155 Hans. Deb. 3rd Ser, 945,
&c.; Mr. Bright (Pontefract elec-
tion), Ib. 1254; 114 Com. J. 357.
362. 376.
QUESTIONS OF PRIVILEGE..
291
but as it affected the character of a member, it could be
proceeded with, if it was the pleasure of the house. The
member concerned having expressed his desire that the dis-
cussion should be proceeded with, the motion was made at
once. 1
It has been said that a question of privilege is, properly,
one not admitting of notice: but where the circumstances
have been such as to enable the member to give notice, and
the matter was, nevertheless, bonâ fide a question of privilege,
precedence has still been conceded to it. Yet the giving
notice has sometimes been a test of the character of the
motion, and of its title to precedence on the ground of privi-
lege. Thus precedence has always been given to a motion for
a new writ, and such a motion is ordinarily made without
notice :: but when the house had, from time to time, resolved
that where a seat had been declared void, on the ground of
bribery and treating, no motion for a new writ should be
made without previous notice, it was held that a motion for a
new writ, under those circumstances, was not entitled to the
customary precedence on the ground of privilege. But in
1874 and 1875, and in subsequent years, precedence was
expressly given to such motions, before orders of the day and
notices, by resolutions of the house. On the 24th March
1882, precedence was claimed for a motion for a new writ for
the borough of Northampton, but the Speaker stated that
1 164 Hans. Deb. 3rd Ser. 1285.
2 Stamford borough, 12th May
1848 ; 98 Hans. Deb. 3rd Ser. 931.
Sligo election compromise, 22nd May
1848 ; 98 Hans. Deb. 3rd Ser. 1236.
Peterborough clection, 18th and 21st
July 1853 ; 108 Com. J. 691. 703.
Expulsion of James Sadleir, 24th
July 1856, and 16th February 1857;
143 Hans. Dob. 3rd Ser. 1386; 144
Ib. 702. Mr. Townsend's bank-
ruptcy, 1858; 113 Com. J. 229. Caso
of Mr. Bradlaugh, 11th and 12th
May 1881 ; 261 Hans. Deb. 3rd Ser.
218. 282. 131.
3 See Speaker's ruling, 25th Aug.
1881; 265 Hans. Deb. 386.
4 Bit on the 23rd March 1860,
AIr. Duncombe having given notice
of a motion to issue a now writ for
Norwich, at half-past four o'clock,
claimed the indulgence of the house
to make his motion at that time, and,
being in ill-health, was permitted to
proceed, instead of waiting to a later
hour,
5 129 Com. J. 141; 130 Ib. 23 ;
137 Ib. 20, &c.
U 2
292
QUESTIONS OF PRIVILEGE.
Adjourned
debates on
questions of
privilege.
such motions were founded upon recent events, c. 9., the
death of a member, his acceptance of office, or the report of
election judges : but here it was designed to raise an irregu-
lar debate upon the claim of Mr. Bradlaugh to take the oath,
and the motion was not therefore entitled to privilege. As
precedence is naturally desired by members, care has been
taken not to extend that claim to any motion which does not
strictly relate to an urgent matter of privilege, properly so
called ; and many motions, more or less affecting privilege,
have been brought on in their turn, with other notices of
motions. A question of order cannot be treated as a question
of privilege.
Where debates have been adjourned upon urgent questions
of privilege, similar precedence has been given to the ad-
journed debates. Thus, on the 8th June 1837, the adjourned
debate on the petitions of the printers of the house, relating to
Stockdale's action, was resumed before all other business ;5
and in 1840, adjourned debates upon the same important
question of privilege were repeatedly renewed at the com-
mencement of public business. So also, on Tuesday, 27th
February 1838, the adjourned debate on the question of
privilege arising out of Mr. O'Connell's case, was taken first,
before all the notices which had precedence on that day.
And, again, on Tuesday, 9th May 1865, the adjourned de-
bate on the consideration of the report of the committee on
the forgery of signatures to the petitions in favour of the
1 267 Hans. Deb. 3rd Ser. 1821.
2 146 Hans. Deb. 3rd Ser. 769 ;
159 Ib. 2035; 174 Ib. 190. 306; 187
Ib. 14; 236 Ib. 829; 239 Ib. 671;
252 Ib. 667. 788; 261 Ib. 694. 1785;
262 Ib. 1936; 266 Ib. 788; Ib. 7th
February, 1881.
3 Mr. Isaac Butt's notice relating
to the “ Times" newspaper, 7th
February 1854; 109 Com. J. 40:
Mr. C. Foster's notice for a com-
mittee on the forgery of signatures
to prtitions, 23rd March 1865; 120
Ib. 156: Mr. Callan's motion for a
committee to inquire how Mr. New-
degate's name was affixed to a pe-
tition, 7th April 1876, &c.
4 2nd February 1881 ; 258 Hans.
Deb. 3rdSer. 8. Mr. Speaker's Note
Book.
5 92 Com. J. 450; 38 Hans. Deb.
3rd Ser. 1249.
6 95 Com. J. 13. 15. 19. 23. 70;
51 Hans. Deb. 3rd Ser. 196. 251.
358. 422 ; 52 Ib. 7.
QUESTIONS OF PRIVILEGE.
293
claims of Azeem Jah, which stood as the third order of the
day, was resumed before all the notices, and other orders of
the day.' So, also, in Mr. Plimsoll's case, on the 29th July
1875. It is now the practice to place an order of the day,
relating to an unquestionable matter of privilege, above, and
apart from, all the other orders, and without any number;
and this order is called separately, when any motion is also
to be taken before the other orders of the day. And a
motion relating to the business of the house will be allowed
precedence of an order of the day relative to privilege, if
proposed at the proper time. But in some other cases of
privilege, of a less urgent character, it has been ruled that
adjourned debates were not entitled to precedence.5
It may here be noticed that precedence is given, by usage, Motions taken
at half-past
to a particular class of motions relating to the business of the four o'clock.
house, which are usually set down for half-past four o'clock;
and are disposed of before the commencement of the public
business appointed for the day. In this class are compre-
hended motions for the adjournment of the house, at its
rising, beyond the next day, the postponement of the orders
1 120 Com. J. 252.
2 226 Hans. Deb. 3rd Ser. 178;
see also 238 Ib. 1741.
3 On the 3rd July 1882, Mr. Glad-
stone moved the postponement of the
orders of the day, after a question of
privilege had been disposed of; 271
Hans. Deb. 1303.
4 252 Hans. Deb. 3rd Ser. 422.
5 Bridport election; 63 Hans. Deb.
3rd Ser. 561. Aylesbury election,
5th May 1851.
6 On the 18th May 1847, upon a
motion for adjournment over the
Derby day, the Speaker said; “The
practice has always been to tako
these notices for the adjournment of
the house early in the evening, for
the convenience of honorable mem-
bers, because they cannot otherwise
tell on what day the house will sit,
and might not know for what day
to fix 'notices." 92 Hans. Deb.
3rd Ser. 1052. And again on the
23rd May 1848, and the 22nd May
1849, it was ruled by the Speaker
that a notice for the adjournment of
the house (for the Derby day) took
precedence of other motions on a
notice day. 105 Hans. Deb. 3rd
Ser. 843. These precedents were
again followed without objection in
1850, 1851, 1852 and 1858. From
1856 the adjournment was generally
moved by the government; but on
the 3rd June 1878 (the government
having intimated its intention not to
make the usual motion), Mr. Chaplin
gave notice of it, and the Speaker,
on being appealed to, stated that
according to precedents he would
have precedence. Accordingly, on
294
XOTICES EXPUNGED.
Votes of
thanks.
2
Leave to
make motions.
of the day, leave of absence to members, and other formal
motions relating to public business. It is usual to give pre-
cedence, as a matter of courtesy, to a motion for a vote of
thanks.
Entries are occasionally found in the Journals, of leave
being given to make a motion. In these cases, it appears
that all the orders of the day had been previously disposed
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
actually made when the time arrives, the Order Book has some-
times been used for the expression of opinions, not intended
to be ultimately proposed for adoption. This is a deviation
from the true object of the Order Book; but it is not a practical
evil of much importance, nor is there, perhaps, any remedy
for it: but in resorting to this practice, members must be
careful lest they give offence to the house by unbecoming
Notices
expunged.
the following day, he moved the
adjournment before the commence-
ment of public business, at a morn-
ing sitting, without objection (240
Hans. Deb. 1076. 1171), and the same
ractice has since been observed.
136 Com. J. 276, &c.
1 A notice relating to public busi-
ness, standing on the notice paper
for the evening sitting, has been
allowed to be made at two o'clock,
with the general consent of the house,
declared without a dissentient voice,
27th July 1875. 226 Hans. Deb.
3rd Ser. 94. 127.
2 24th April 1849. Operations in
the Crimea, 15th December 1854.
Operations in India, 8th February
1858; 148 Hans. Deb. 3rd Ser. 865.
Afghanistan, 4th August 1879; 134
Com. J. 397. Egyptian Expedi-
tion, 26th October 1882; 137 Com.
J. 492. On this occasion, the vote
of thanks took precedence of the fur-
ther discussion of the new rules of
procedure, to which priority had
been given over all orders of the
day and notices of motions, by a
special order of the house.
3 75 Com. J. 155, 156; 85 Ib. 107;
S6 Ib. 857. There was an order of
the house, 25th November 1695, that
no new motion be made after one
o'clock. This probably 'occasioned
the practice of giving leave to make
motions, although the order has long
since been inapplicable to modern
usage and regulations. See also 1
Com. J. 45.
MOTIONS MADE.
295
expressions; for the notice may, for such a cause, be ex-
punged from the notice paper. In one case, the Speaker
having observed, in a notice, unbecoming expressions affect-
ing religion, directed them to be altered, and called the atten-
tion of the house to the alteration. The notice paper being
published by authority of the house, a notice of a question
infringing any of its rules, or otherwise irregular or informal,
is corrected by the clerks at the table, before it is printed,
-if possible in communication with the member himself,
-and, in cases of special difficulty, under the direction of
Mr. Speaker. If a notice, when publicly given, is obviously
irregular or unbecoming, the Speaker will interpose, and the
notice will not be received in that form ;4 or if an objection
be raised to a notice of motion in the Order Book, the
Speaker will decide as to its regularity; and the notice will
be amended accordingly, or withdrawn.5
On the 7th June 1858, the House of Lords adopted a Notice refused
novel and very effectual course in regard to a notice. The to be received.
Lord Kingston having proposed to renew a notice of putting
certain questions, the house resolved “that the said questions
have been sufficiently answered, and ought not to be re-
newed;">6 and, accordingly, the proposed notice was not
received by the clerk. And on the 12th March 1883, Lord
Stanley of Alderley having given notice of certain questions,
it was resolved “that such questions be not put."
If a notice of motion be dropped, by the adjournment of Dropped
notices.
the house, before it has been disposed of, it is usually renewed
and put down in the notice paper for some other day, under
1 90 Com. J. 435.
711; 212 Ib. 706; 223 Ib. 607;
2 12th Feb. 1861; 161 Hans. Deb. Dr. Kenealy, 5th April 1878 ; 239
3rd Ser. 342.
Ib. 669; and similar cases, 15th
3 188 Hans. Deb. 3rd Ser. 1066. July and 25th Aug. 1881, and 2nd
206 Ib. 468; 207 Ib. 1881 ; 212 Ib. Nov. 1882; 263 Ib. 1012; 265 Ib.
700; 223 Ib. 607; 24th May 1878; 880; 274 Ib. 632.
240 Hans. Deb. 643 ; 5th July 1880; 5 228 Hans. Deb. 3rd Ser. 1183;
253 Ib. 1632 ; 16th June 1882 ; 270 250 Ib. 1313; 267 Ib. 388.
Ib. 1409.
6 Lords' Minutes, 7th June 1958,
4 Mr. Rearden's notice, 22nd May 7 Lords' Minutes, 191.
1868; 192 Hans. Dcb. 3rd Scr.
977
296
MOTIONS VADE.
Motions
made.
the same conditions as an original notice. If, however, it be
merely a motion for an unopposed return, a member is per-
mitted to make it on the next sitting day, without renewing
the notice.
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, 2ndly, that he concludes by
proposing his motion formally. In the case of unopposed
returns, or other formal or uncontested business, one member
is permitted, by courtesy, to bring forward the motion of
another : but it has been pointed out from the chair that it
would be highly inconvenient to extend this practice to
motions open to controversy and debate;. nor has the making
of motions by proxy ever received parliamentary sanction.
In the absence of one minister, however, another minister
has been allowed to make motions standing in his name,
or to move stages of opposed bills.3
In the upper house, any lord may submit a motion for the
decision of their lordships without a seconder,-the only
motion requiring a seconder, by usage, being that for the
address in answer to the Queen's speech : but in the Com-
mons, after a motion has been made, it must be seconded by
another member; otherwise it is immediately dropped, and
all further debate must be discontinued, as no question is
2
Questions
moved and
seconded.
i Church Rates Abolition Bill, 11th
Feb. 1862 (Sir C. Douglas). Colonel
Dunne, and the nomination of the
Committee on Holyhead Harbour,
May 19th 1863.
? On the 12th May 1864, in the
absence of Lord Palmerston, Sir G.
Grey was permitted, on behalf of
the government, to move the post-
ponement of the orders of the day,
and make a motion relating to in-
spectors of schools. On the 28th
Nov. 1867, in the absence of the
Chancellor of the Exchequer, Mr.
Hunt, the secretary of the Treasury,
made bis financial statement in Com-
mittee of Ways and Means. On the
24th Feb. 1881, in the absence of
Mr. Gladstone, First Lord of the
Treasury, objection being taken to
the proposal of a motion relating to
public business, standing in his name,
by Lord Hartington, Mr. Speaker
ruled that it would be competent for
any minister of the crown to make
that motion; 258 Hans. Deb. 3rd
Ser. 1664.
3 176 Hans. Deb. 2034.
OBJECTIOXIBLE WORDS OMITTEI).
297
seconded.
before the house. When a motion is not seconded, no entry Motions not
appears in the Votes, as the house is not put in possession
of it, and res gestae only are entered. In the case of an
original motion, the Speaker satisfies himself that the motion
has been formally seconded, before he puts the question: but
where an unopposed return is moved, or other formal motion
made, the formality of seconding the motion is not generally
observed, but is taken to be tacitly complied with. An order
of the day may be moved without a seconder.
The motion should be carefully prepared, and placed, in The motion to
be in print or
print or writing, in the Speaker's hands; as, except in the writing.
event of any informality in the form of the motion, the
Speaker proposes the question in the words of the mover.
A member will be allowed to make verbal alterations in the
original terms of his motion; but not such substantial
changes as would vitiate the notice, except by leave of the
house. Formerly it was customary for the Speaker, when
he thought fit, to frame a motion out of the debate. This
ancient custom, however, was open to abuses and miscon-
ception, and has long since been disused. On the 15th
February 1770, Sir Fletcher Norton revived it in the
debate on the Sudbury election petition.
No notice was
taken of it at the moment, but it did not afterwards escape
animadversion; 5 and the practice has not since been re-
verted to.
In 1794, Earl Stanhope had proposed a resolution with Objectionable
a long preamble, which, on putting the question, the lord from a motion.
1 But see Debates, Sth February
1844.
2 148 Hans. Deb. 3rd Ser. 719;
161 Ib. 854 ; 212 Ib. 219.
3 Scobell, 22; 2 Hatsell, 112.
4 Bishop Burnet relates of Mr.
Speaker Seymour, that, “ if any.
thing was put, when the Court party
was not well gathered together, he
would have held the house from
doing anything by a wilful mistak-
ing, or misstating the question. By
that he gave time to those who were
appointed for that mercenary work,
to go about and gather in all their
party. And he would discern when
they had got the majority; and then
he would very fairly state the ques-
tion, when he saw he was sure to
carry it.” 2 Burnet's Own Time, 72.
51 Cavendish Deb. 458.
298
QUESTIONS PROPOSED.
2
chancellor had omitted. On a subsequent day, complaint
was made of this omission, and a question was proposed by
Lord Lauderdale, “That any motion proposed by any lord
of Parliament, and given to the Speaker of that house, ought
to be put in the words given by the mover, and the question
of content or not content decided upon it in that form."
After a debate, from which it appeared that the words
omitted had been of an objectionable character, and that the
lord chancellor had collected the unanimous opinion of the
house for their omission, the question was superseded by
adjournment.
Irregular If any motion or amendment be offered, in contravention
questions not
put from the of the rules and orders of the house, the Speaker will decline
chair.
to put the question, or will call the attention of the house
to the irregularity; as if the question had already been de-
cided in the same session, or required the recommendation
or consent of the Crown, which had not been signified :+ or
anticipated the discussion of another motion appointed for a
later day, or were otherwise out of order. But the formal
interposition of the Speaker is ordinarily avoided, by a private
intimation to the member who has given notice of an irregular
motion.
Proposed by In the Lords, when a motion has been made, a question
the Speaker.
is generally proposed " that that motion be agreed to:” but
on the stages of bills, and on some other occasions, the
motion is put directly as a question. In the Commons,
when the motion has been seconded, it merges in the
question, which is then proposed by the Speaker to the
house, and read by him; after which the house are said
to be in possession of the question, and must dispose of
131 Parl. Hist. 149; 6 Lord Camp-
bell's Lives of the Chancellors, 271.
2 31 Hans. Parl. Hist. 197.
3 95 Com. J. 495 ; 76 Hans. Deb.
3rd Ser. 1021; 201 Ib. 824 ; 214
IL. 287.
4 2 Hatsell, 168, n.; 59 Com. J.
335; 63 Ib. 266; 164 Hans. Deb.
997; 241 Ib. 1591.
5 207 Hans. Deb. 3rd Ser. 500.
1640; 224 Ib. 915.
6 112 Com. J. 157 ; 115 Ib. 494 ;
20th Jan. 1880; 257 Hans. Deb.
1010.
QUESTIONS PROPOSED.
299
arises.
it in one way or another, before they can proceed with
any other business. At this stage of the proceeding, the When debate
debate upon the question arises in both houses. If 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 question, 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. 1
It may happen, however, that it is desired by members Motions, by
to avoid any distinct expression of opinion; in which case drawn.
leave, with
it is competent for the majority of the house to evade the
question in various ways: but the member who proposed
it, can only withdraw it by leave of the house, granted
without any negative voice. This leave is signified, not
upon question, as is sometimes erroneously supposed, but
by the Speaker taking the pleasure of the house. He asks,
“Is it your pleasure that this motion be withdrawn?” If
no one dissents, he says, “The motion is withdrawn:" but
if any dissentient voice be heard, he proceeds to put the
question, which, under such circumstances, is ordinarily
negatived without a division. Sometimes the house have
refused to allow a motion to be withdrawn: but after further
debate have consented to its withdrawal. Occasionally a
motion is, by leave, withdrawn, and another motion sub-
stituted, in order to meet the views of the house, as expressed
in debate : but that course can only be taken with the general
assent of the house. 5
Where an amendment has been proposed to a question, the Withdrawing
original motion cannot be withdrawn until the amendment amendments.
motions and
1 See infra, p. 310, and Chapter
XII.-DIVISIONS.
2 A motion cannot be withdrawn
in the absence of the member who
proposed it; 159 Hans. Deb. 3rd
Ser. 1310.
3 247 Ib. 811.
4 186 Ib. 887.
5 See discussion on Fiji Islands,
25th June 1872; 212 Hans. Deb. 3rd
Ser. 219. Church Patronage, 1877;
132 Com. J. 301.
300
QUESTIONS SUPERSEDED.
Question
superseded.
By adjourn-
ment.
has been first withdrawn, or negatived;1 as the latter, until
disposed of, is in fact more immediately under consideration,
having been interposed after the original question was pro-
posed. Nor can an amendment be withdrawn in the absence
of the member who had proposed it.?
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, which interrupts and supersedes that
already under consideration. It need scarcely be explained
that such a motion cannot be made while a member is
speaking, but can only be offered by a member who, on
being called by the Speaker in the course of the debate, is
in possession of the house. 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.3 In the Commons, 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 ad-
journment. But in the Lords, a future day may be specified
in the motion for adjournment. A motion for the adjourn-
ment of the debate, upon a question for the adjournment of
the house, being an obvious solecism, will not be entertained.
The house may also be suddenly adjourned, even while a
5
1 227 Hans. Deb. 3rd Ser. 787;
230 Ib. 1026.
2 151 Ib. 952.
3 Third reading of Justices of the
Peace Qualification Bill, 10th July
1855; 110 Com. J. 367. Volunteers
(Ireland) Bill, 17th July 1860; 115
Ib. 393.
4 2 Hatsell, 113-115.
Supreme Court of Judicature
Act, Address, 25th Feb. 1881; Lords'
Minutes, 306.
6 Speaker's ruling, 5th Mar. 1857;
144 Hans. Deb. 3rd Ser. 1906.
QUESTIONS SUPERSEDED.
301
member is speaking, by notice being taken that forty mem-
bers 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
Speaker, it is not even entered in the Votes, as the house was
not fully in possession of the question before the adjournment.
But where the question is superseded in this manner, after it
has been proposed from the chair, the question, having been
entered on the Minutes, is, of course, printed in the Votes.
If the second reading or other stage of a bill be superseded
by adjournment, the bill disappears from the Order Book,
until the house appoints another day for proceeding with it.
If a motion for adjournment be negatived, it may not be Motions for
adjourning
proposed again without some intermediate proceeding ;? and, the house and
in order to avoid any infringement of this rule, it is a
common practice for those who desire to avoid a decision
upon the original question, on that day, to move alternately
that “this house do now adjourn,” and “that the debate
be now adjourned.” 3 But a member who has moved the
adjournment of the house is not entitled to move the
adjournment of the debate, as he has already spoken to the
main question. The latter motion, if carried, merely defers
the decision of the house, while the former, as already ex-
plained, supersedes 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 support. This distinction should always be
the debate.
1 This distinction is not explained
by Hatsell (ii. 115).
2 2 Hatsell, 109, note. Lord Col-
chester's Diary, ii. 129.
3 See proceedings, Nov. 23rd, 1819;
41 Hans. Deb. 136. Ecclesiastical
Titles Bill, 12th May 1851; 106 Com.
J. 216. Election Petitions Bill, 29th
June 1857. Night Poaching Pre-
vention Bill, 1st Aug. 1862; 117 Ib.
388; Protection of Person and Pro-
perty (Ireland) Bill, 1881; 136 Ib.
49-51, &c.
# 184 Hang. Deb. 3rd Ser. 1450.
302
QUESTIONS SUPERSEDET).
By reading
the orders of
the day.
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 adjournment 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 supporters have
themselves contributed to its defeat. Restrictions have lately
been placed upon the use of these motions, for purposes of
obstruction, which will be treated among the rules of debate.?
2. On a day upon which notices of motions have precedence,
a motion “that the orders of the day be now read," is 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 immediately, 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. Sometimes questions have been superseded by amendments
for reading the other orders of the day. On the 10th May
1852, the orders of the day having been postponed until
after the motion for assigning the vacant seats of St. Alban's
and Sudbury, an amendment was made to the question for
leave to bring in the bill, by leaving out all the words after
" that," in order to add the words " this house do pass to the
other orders of the day.” 4 And on the 19th May 1852, on
resuming an adjourned debate on the Colonial Bishopricks
Bill, an amendment was made to the question for the second
1 An instance of this occurred on
the 23rd March 1848, on a motion
relative to the game laws; 97 Hans.
Deb. 3rd Ser. 963; and again on the
2nd of March 1875, on Mr. Fawcett's
motion relating to education in rural
districts.
2 Chapter XI.--RULES OF DEBATE.
3 77 Com. J. 356; 111 Ib. 167.
107 Ib. 205.
PREVIOUS QUESTION.
303
A ques-
reading, by leaving out all the words after that the," and
adding, “other orders of the day be now read."1 A
tion has also been superseded by an amendment for reading
a particular order of the day.?
3. The previous question is an ingenious method of avoid - Previous
question.
ing 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
ordinarily puts the question as a matter of course, without
any direction from the house: but, by a motion for the
previous question, this act of the Speaker may be intercepted
and forbidden. In the Lords, the Lord Speaker puts the
question, “whether the original question be now put." In
the Commons, the words of this motion are, “that that
question be now put ;” and those who wish to avoid the
putting of the main question, vote against the previous (or
latter) question; and, if it be resolved in the negative, the
Speaker is prevented from putting the main question, as the
house have thus refused to allow it to be put. It may,
however, be brought forward again on another day; as the
negation of the previous question merely 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 amendment;
nor is any further debate allowed, or motion for adjournment,
before the question is put, as the house have resolved “that
that question be now.put," and it must accordingly be put at
once to the vote. The anomaly of this proceeding is very
obvious. The members who move and second the previous
question, which is put in the affirmative form, yet vote
1 107 Com. J. 225.
2 Negro Apprenticeship, 30th March
1838; 93 Com. J. 418. Mortmain
Bill, 28th June 1854 ; 109 Ib. 342.
3 For examples of this question,
see 71 Lords' J. 581; 74 Ib. 87;
Lord Strathcden's motion respect-
ing Russia and the Porte, 28th Jan.
1878; 110 Lords' J. 22.
2 Hatsell, 122, 12. Lex Parl. 292.
Harbours of Refuge, 19th June 1860;
115 Com. J. 316. See also 2 Lord
Sidmouth's Life, 136. 1 Twiss, Life
of Eldon, 232.
304
QUESTIONS SUPERSEDED.
Previous
question
cannot be
amended.
Previous
question on
stages of
bills.
against it, and are generally appointed tellers for the "noes”;
being thus the most prominent opponents of the motion which
they have themselves proposed. In 1778, the congress of the
confederation of the United States adopted the “previous
question” in a negative form, i.e., “that the main question be
not now put,” which appears to be a superior form to that used
in this country, and is still followed, though with different
objects, in America. No amendment may be proposed to
the previous question, which, in this respect, stands in the
same position as a question of adjournment.
The previous question is, perhaps, less applicable to the
different stages of bills than to other questions : but it has
been frequently resorted to. The first instance of its being
moved on the second reading of a bill occurred on the 10th
June 1858, on the second reading of the County Franchise
Bill ;s and this precedent has since been followed on several
occasions. The previous question cannot be moved upon an
amendment, nor upon any question in a committee of the
whole house, or in a Select Committee.
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
6
1 In America, the effect of the
previous question is immediately to
suppress all further discussion of
the main question; Cushing, Law and
Practice of Legislative Assemblies,
1855, pp. 553, 554. And see Com.
J. 25th May 1604, 22nd Jan. 1628,
and 6th Sept. 1641, where the pre-
vious question appears to have been
put in a simpler form.
2 1 Com. J. 226. 825; 7 1b. 420; 3
Ib. 421 ; 10 Ib. 762 ; 13 Ib. 292; 17
Ib. 310 ; 26 Ib. 270. 594 ; 30 Ib. 418
(that a bill be recommitted); 99 Ib.
504 (that Mr. Speaker do now leave
the chair).
3 113 Com. J. 220.
- Second reading of County Fran-
chise Bill, Borough Franchise Bill,
and Presentment Sessions (Ireland)
Bill, 1861; 116 Ib. 103. 135. 177.
Second reading of County Franchise
Bill, 1864, and Borough Franchise
Bill, 1864 and 1865; 119 Com. J.
160.234; 120 Ib. 247. Second read-
ing of Municipal Elections (Cumula-
tive Vote) Bill, 14th July 1875; 130
Com. J. 356 ; second reading of
Fixity of Tenure (Ireland) Bill, 30th
June 1880; 135 Com. J. 261, &c.
5 2 Hatsell, 116.
6 The report of the Committee on
Privilege (Mr. Gray), in 1882, was
recommitted, on account of an over-
sight in its proceedings, in regard to
this rule ; 137 Com. J. 509.
QUESTIONS SUPERSEDED.
305
ments.
time (except, as already stated, when the previous question
has been resolved in the affirmative), and must always be
determined before other business can be proceeded with. The
debate upon the previous question may also be adjourned ;)
as there is no rule or practice which assigns a limit 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 day, in 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 By amend-
explained in the next chapter: but here such amendments
only will be mentioned as are intended to evade an expression
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 administration, 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
amendment was proposed and carried, which left out all the
1 131 Com. J. 45, &c.
2 24 Com. J. 650; 30 Ib. 70; 52
Ib. 203; 93 Ib. 418. Protection of
Life (Ireland) Bill, 30th March 1846.
Navigation Laws, 29th May 1848.
Mr. Churchward, 19th March 1867.
Employment of Indian Troops in
Europe, 1878; 133 Com. J. 240, &c.
P.
ܠ
306
QUESTIONS SUPERSEDED.
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 com-
mended. Immediately afterwards an address was moved in
both Houses of Parliament, condemning the treaty of Amiens,
in a long statement of facts and arguments. In each house
an amendment was moved and carried, by which all the
declamation in the proposed address was omitted, and a new
address resolved upon, by which Parliament was made to
justify the treaty.”
This practice has often been objected to as unfair, and
never with greater 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 the 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 for the removal of Mr. Pitt
had been defeated by an amendment, a distinct question was
proposed and carried 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."3 Thus, if no amendment had been moved,
the position 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 minority
can hope to compete with a majority. The forms of the
house can ultimately assist neither party : but, so far as they
1 57 Com. J. 419. 36 Hans. Par).
Hist. 598-654. 3 Lord Stanhope's
Life of Pitt, 375–379.
2 57 Com. J. 450. 43 Lords' J.
603. 36 Hans. Parl. Hist. 686.
3 A case precisely similar occurred
on the 14th May 1806, when a vote
of censure on Earl St. Vincent's naval
administration having been nega-
tived, was followed by a vote of
approbation immediately moved by
Mr. Fox. 7 Hans. Deb. 208.
INTERRUPTIONS.
307
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 Questions
interrupted.
intentionally avoided or superseded: but the consideration
of a question is also liable to casual interruption and post-
ponement from other causes; as, by a matter of privilege;
by words of heat between members in debate; by a question
of order and consequent proceedings;1 by a message from
the Queen or lords commissioners, requiring the attendance
of the house in the House of Peers ;? by an answer to an
address ; 3 by a message from the other house ;4 by a confer-
ence with the Lords ;5 by a report of reasons for disagreeing
to Lords' amendments; 6 by the clerk of the Crown amending
a return;? or by a report of the serjeant-at-arms that he had
taken a member, or other person, into custody. A motion for
reading an Act of Parliament, an entry in the Journal, or
other public document, which is not uncommon as a pre-
liminary to other proceedings, has, also, in some cases, been
interposed : but the practice by which such documents have
been permitted to be read, after the commencement of the
debate," though not absolutely without recognition in modern
1 See Chapter XI. (RULES OF DE- an address : but it might be very in-
BATE).
convenient to permit it to interrupt
2.93 Com. J. 227; 106 Ib. 443. a debate, as it is customary at once
On the 20th April 1863, the reading to found a motion upon it, which
of a petition was so interrupted, and might give rise to discussion.
was resumed on the return of the 4 By the recent practice, a message
Speaker from the Lords.
brought by the clerk does not ordi-
3 108 Ib. 438; 125 Ib. 377. 17th narily interrupt the business under
Dec. 1878. This rule, however, does discussion ; but there are occasions
not apply to a message from the when such an interruption is de-
Crown. On the 5th June 1866, a
sired. 126 Com. J. 57. See Chapter
message relating to the marriage of XVI.
Princess Mary of Cambridge was 5 98 Com. J. 347. 484.
brought up between one motion and 6 Ground Game Bill, 3rd Sept.
another: but not so as to interrupt 1880; 135 Com. J. 431.
a debate. A message is clearly 7 93 Com. J. 276. 308.
entitled, in principle, to the same
8 135 Ib. 236.
courteous reception as an answer to 9 2 Hatsell, 121.
X2
308
INTERRUPTIOXY.
times,' may be regarded as obsolete. In ono caso cortaiu
acts were directed to be read, by way of amendment to the
original question. An interruption, thus commenced, is
sometimes continued by further interruptions, before the
resumption of the debate.3
These proceedings, however, while they obstruct and delay
the decision of a question, do not alter its position before tho
louso; for, directly thoy are disposed of, the debato is re-
sumed 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 bo shut in, the sorjeant-at-arms
attending this house do take care that candles be brought in,
without any particular order for that purpose.
And this
order, again, has boon practically superseded by the instan-
taneous illumination of the house, at the propor time.
Opposod Sinco 1872, the house has endeavoured to limit the trans-
businoss after
half-past
action of opposed business after midnight, and a resolution,
twelvo.
often ronowod and amended, has now been permanently
adopted.
Ordors of the By Standing Order, 18th February 1879, as amended
day and
noticos after
9th May and 17th and 20th November 1882,-
hali-past
twelvo.
oxcopt for a monoy bill, no order of tho day or notico of motion bo
takon aftor half-past twolvo of tho clock at night, with r'ospoct to
which ordor or notice of inotion a notico of opposition or amondmont
shall havo boon printod on tho notico papor, or if such notico of motion
shall only havo boon given tho noxt provious day of sitting, and objoc-
. tion shall bo takon whon such notice is callod. That motions for tho
appointinont or nomination of Standing Committoos, and procoodings
mado in accordanco with tho provisions of any Act of Parliamont or
Standing Ordor, motions for louvo to bring in bills, and bills which
havo passod through Committoo of tho wholo houso, bo oxcoptod from
tho oporation of this ordor. Providod, that ovory such notico of oppo-
124.
| 80 Com. J. 637; 93 Ib. 204; 07
Ib. 129; 08 Ib. 112; 123 Ib. 148.
? 9th Murel 1951; 109 Com: J.
3 98 Com. J. 198; 103 Ib. 651. 756.
4 18 Ib. 718.
(OMPLICITEI) QUESTIONS,
309
sition or amonument bo signal in the houso by i nombor, ind ilutoch,
and shall lapso it tho ond of tho wook following that in which it was
given. Providlod also, that this rule shall not apply to tho nomination
of Soloct Committoos."
It has been decided that this rulo does not oxtond to
amondments in committee upon a bill, or upon the report, but
solely to amendments upon the order of the day itself. It has
further beon ruled, that an order of the day, upon which
notico of an amendment has been given, cannot be proceeded
with, oven when the amondmont is withdrawn. It has been
hold that an instruction to the committeo on a bill is not to
be rogarded as an amendment upon the order of the day.”
Tho rule does not apply to tho discharge of tho order of the
dny for committee on a bill, and the commitment of the bill
to a Select Committee, as tho bill is not advancod a stage by
such a motion ;} nor, for the same reason, to the commitment
of a bill pro forma. Such bills as the East India Loan Bill,
in 1873, the Publio Loans Remission Bill, and the Metro-
politan Board of Works (Money) Bill, in 1881, havo beon
treated as monoy bills. The committeo, or report of Ways
and Means, has also boon held to be excluded from this rule,
as the initial stage of a money bill."
If a question be complicated, the house may, if it think fit, Complicated
quostions.
order it to be divided, so that each part may be dotermined
separately.? A right has been claimed, in both houses, for an
individual momber to insist upon the division of a complicated
question : but it has not been recognised, nor can it be reason-
able to allow it, because, Ist, tho houso might not think the
question complicated; and, 2ndly, the member objecting to
its complexity may move its separation by amendments. On
the 19th February 1770, a rosolution, “That it is a rule of
1 210 Hans. Dob. 3rd Sor. 1977; 5 216 Ib. 1109; 21st and 22nd
212 Ib. 302.
July 1881.
2 So rulod (privately) by tho
Hans Dob. 26th Tob. 1878.
Spoakor, 6th May 1879.
7 2 Com. J. 43; 32 Ib). 710; 33 Ib.
33 270 Hans. Deb. 3rd Sor. 351. 89; 3.1 Ib. 330; 35 Ib. 217 (11 quos-
# 268 Ib. 116.
tion dividod into fivo). 17 Hang.
Parl. Hist. 129; 2 Hatsoll, 118.
310
COMPLICATED QUESTIONS.
"2
this house, that a complicated question which prevents any
member from giving his free assent or dissent to any part
thereof, ought, if required, to be divided," was proposed and
negatived. This motion, however, was intended to assert the
right of any one member to have the question divided ;' and
immediately afterwards, the very question in dispute was
separated, by order of the house.
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 Parliament,
that a complicated question, consisting of matters of a diffe-
rent 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."
It is probable that this claim arose out of the ancient cus-
tom by which the framing of a question was entrusted to the
Speaker, who prepared it during the debate. The member,
who had introduced the matter to the notice of the house,
would then very naturally have objected to a question which
did not express his own opinion only, but included also the
opinions of others. At that time, also, the subtle practice of
amendments was less perfectly understood. 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 pro-
ceeding, although the ordinary practice has been to resort to
amendments, instead of attempting the dissection of a ques-
tion, in another form. When several resolutions are proposed,
each is the subject of a separate question.
When all preliminary debates and objections to a question
are disposed of, the question must next be put, which is done
in the following manner. The Speaker, if necessary, takes
a written or printed copy of the question, and, rising from his
1
Question put.
i See 1 Cavendish Deb. 460-475.
2 Woodfall's Junius, 139.
2 22 Lords' J. 73. See also 24 Ib.
466, 467. 4 Timberland's Debates
of the Lords, 392.
QUESTION PUT.
311
or not approve the article."
chair, 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 (or is supposed to
precede) every vote of the house, however insignificant, except
in cases where a vote is a formal direction, in virtue of
previous orders.
In the Lords, when the question has been put, the Speaker
says, “ As many as are of that opinion say 'Content,'" and
As
many as are of a contrary opinion say "Not content;
and the respective parties exclaim “ Content,” or “Not con-
tent,” 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 distinguished in the Lords as con-
tents” and “not contents," and in the Commons as the
"ayes” and “noes."3 When each party have exclaimed
according to their opinion, the Speaker endeavours to judge,
from the loudness and general character of the opposing ex-
clamations, which party have the majority. As his judgment
is not final, he expresses his opinion thus: “I think the ('con-
tents,' 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
1 On the 9th April 1866, the any contradiction, there needeth no
Speaker, on returning to the house question.” (1621.) Ib. 650.
after an illness, said he should still 3 The form of putting the ques-
be obliged to claim some further in- tion, and taking the vote, was very
dulgence ; and he hoped he might be similar in the Roman senate. The
permitted to sit while putting the consul who presided there, was ac-
questions. 121 Com. J. 197.
customed to say, " Qui hæc sentitis
2 66 Order, that nothing pass by in hanc partem; qui alia omnia, in
order of the house without a ques- eam partem, ite, quâ sentitis.".
tion, and that no order be without a Plinii Epistolæ, lib. viii. ep. 14. In
question, affirmative and negative.' the Scottish Parliament, the form of
(1614.) 1 Com. J. 464. “Resolved, putting the question was, “Approve
that when a general vote of the
3 Lord
house concurreth in a motion pro- Macaulay, Hist. 693.
pounded by the Speaker, without
312
QUESTION PUT.
6
Questions
again stated.
Voices on the
question.
negative,” according to the supposed majority on either
side; but if the party thus declared to be the minority dis-
pute the fact, they say "The contents' (or “not contents”) the
ayes' (or‘noes') have it," as the case may be; and the actual
numbers must be counted, by means of what is termed a
division.1
The question is stated distinctly by the Speaker: but in
case it should not be heard, it will be stated again. On the
15th April 1825, notice was taken that several members had
not heard the question put, and the 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."2
It must be well understood by members that their opinion
is to be collected from their voices in the house, and not
merely by a division; and that if their voices and their votes
should be at variance, the former will be held more binding
than the latter. On the 7th July 1854, on the Middlesex
Industrial Schools Bill, notice was taken after the numbers
had been reported, that a member had given his voice with
the "noes," and had voted with the "ayes”; and the Speaker
directed his vote to be recorded with the "noes."3
All authorities have agreed that a member giving his voice
with the "ayes” (or "noes'), when the Speaker takes the
voices, is bound to vote with them. But members, after
giving their voices with that party with which they desire to
vote and actually divide, have occasionally questioned the
Speaker's decision, though given in their favour, in order to
force the opposite party to a division. It was for a long
time unsettled, whether a member, having given his voice
with the “ayes," may yet say “the ‘noes' have it,” with-
out being obliged to vote with the "noes.” On the 29th
February 1796, this question was debated in the house,
Mr. Pitt maintaining that a member was quite at liberty to
3 109 Ib. 373.
1 See Chapter XII., on DIVISIONS.
? 80 Com. J. 307,
QUESTION PUT.
313
force his opponents to a division: and though the Speaker
pronounced such conduct to be “unbecoming and contrary
to the rules and practice of Parliament," the house arrived at
no conclusion upon the subject. But it is obviously for the
minority alone, to appeal from the Speaker's decision to the
ultimate test of a division. If they are satisfied, the deter-
mination of the house is at once arrived at, upon the question,
without resorting to a division; and, upon this principle, it
has, of late years, been acknowledged as a rule, that a mem-
ber exclaiming “the ‘noes' have it,” will be taken to have
declared himself with the "noes," without inquiring on which
side his voice may previously have been given.
On the report of the Holyrood Park Bill, August 10th
1843, a member called out with the “noes,” “the 'noes'
have it,” and thus forced their party to a division, although
he was about to vote with the "ayes" 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
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. Again, on the
24th June 1864, notice being taken that a member having
given his voice with the “ayes” had voted with the “noes,"
he was called to the table by Mr. Speaker, and stated that
he had given his voice with the “noes,” but had called out
“the 'ayes' have it,” in order to force a division; where-
upon Mr. Speaker directed his vote to be recorded with the
66 noes.”
1 2 Hatsell, 201, n.
The debate is
not to be found in the Parl. Hist.
2 The committee of ways and
means was addressed in this man-
ner, 6th May 1853; and the house
on the 20th April 1883. See also
infra, p. 341, and Chapter XII.
(DIVISIONS)
314
QUESTION PUT.
A member
changing his
opinion.
5
Question put
before con-
clusion of
debate.
'
ayes;
»i and lastly, on the 4th June 1866, Mr. Speaker
condemned this practice of forcing a division as “irregular
and unparliamentary."2 Such an objection should be taken
either before the numbers are reported by the tellers, or im-
mediately afterwards; and will not be entertained after the
declaration of the numbers from the chair.3
It would seem, however, that by the ancient rules of the
house, a member was at liberty to change his opinion upon
à question. On the 1st May 1606, “A question moved,
whether a man saying 'yea,' may afterwards sit and change
his opinion. A precedent remembered in 39 Eliz., of Mr.
Morris, attorney of the court of wards, by Mr. Speaker, that
changed his opinion. Misliked somewhat, it should be so;
yet said that a man might change his opinion."4 A member
who has made a motion, is afterwards entitled to vote against
it, provided he gives his voice with the "noes” when the
question is put from the chair.
It has been said that the question is put when the debate
is concluded; but on one memorable occasion, the Speaker was
constrained, by an unexampled crisis, to put it when some
members were still desirous of speaking. On the morning
of Wednesday the 2nd February 1881, after a continuous
sitting from the previous Monday, the Speaker interposed,
and said:
The motion for leave to bring in the Protection of Person and Pro-
perty (Ireland) Bill has now been under discussion for above five days.
The present sitting, having commenced on Monday last at four o'clock,
has continued until this Wednesday morning, a period of forty-one
hours, the house having been occupied with discussions upon repeated
dilatory motions for adjournment. However prolonged and tedious
these discussions, the motions have been supported by small mino-
rities, in opposition to the general sense of the house.
"A crisis has thus arisen which demands the prompt interposition
of the chair, and of the house. The usual rules have proved power-
1 National Education, Ireland. 4 1 Com. J. 303.
Votes, p. 595.
5 Mr. Beresford Hope (on business
2 183 Hans. Deb. 3rd Ser. 1919. of the house), 17th February 1876;
3 Maynooth College Acts Com- 227 Hans. Deb. 3rd Ser. 473.
mittec, 15th April 1856.
QUESTIOX PUT.
315
less to ensuro orderly and effective debate. An important measure,
recommended in Her Majesty's Speech nearly a month since, and
declared to be urgent, in the interests of the State by a decisive
majority, is being arrested by the action of an inconsiderable minority,
the members of which have resorted to those modes of 'obstruction'
which have been recognized by the house as a Parliamentary offence.
" The dignity, the credit, and the authority of this house are
seriously threatened, and it is necessary that they should be vindi-
cated. Under the operation of the accustomed rules and methods of
procedure, the legislative powers of the house are paralyzed. A new
and exceptional course is imperatively demanded; and I am satisfied
that I shall best carry out the will of the house, and may rely upon
its support, if I decline to call upon any more members to speak, and
at once proceed to put the question from the chair. I feel assured
that the house will be prepared to exercise all its powers in giving
effect to these proceedings.
“Future measures for ensuring orderly debate I must leave to the
judgment of the house. But I may add that it will be necessary
either for the house itself to assume more effectual control over its
debates, or to entrust greater authority to the chair.” 1
He then proceeded to put the question, which being decided
in the affirmative, the bill was brought in, and the house at
length adjourned. The Speaker's appeal, for a further con-
trol of debates, was followed by temporary rules of urgency,
and by new rules of procedure, which will be described
elsewhere.?
Every question when agreed to, assumes the form either Orders and
of an order, or a resolution of the house. By its orders, the resolutions.
house directs its committees, its members, its officers, the
order of its own proceedings, and the acts of all persons
whom they concern: by its resolutions, the house declares its
own opinions and purposes.
1 136 Com. J. 50; Hans. Deb. 31st
January, 1st and 2nd February 1881;
Mr. Speaker Brand's Note Book.
2 Chapter XI. (RULES OF DE-
BATE).
316
AMENDMENTS TO QUESTIONS.
CHAPTER IX.
AMENDIENTS TO QUESTIONS, AND AMENDMENTS TO
PROPOSED AMENDMENTS.
Objects and The object of an amendment is, generally, to effect such
principle of an
amendment.
an alteration 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 opinions with con-
sistency: they would either be obliged to affirm a whole
question, to parts of which they entertained objections, or to
negative a whole question, to parts of which they assented.
In both cases a contradiction would ensue, if they afterwards
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.
Sometimes the object of an amendment is to present to
the house an alternative proposition, either wholly or par-
tially opposed to the original question; and the form of an
amendment is here convenient, as affording the house an
opportunity of deciding, in one proceeding, upon the two
propositions.
The confusion which must arise from any irregularity in
the mode of putting amendments, is often exemplified at
public meetings, where fixed principles and rules are not
observed; and it would be well for persons in the habit of
presiding at meetings of any description, to make themselves
familiar with the rules of Parliament, in regard to questions
1 See also supra, p. 305.
AJENDMENTS TO QUESTIONS.
317
modes of
without
and amendments ;? which have been tested by long experi-
ence, and are found as simple and efficient in practice as they
are logical in principle.
An amendment may be made to a question, 1, by leaving Various
out certain words; 2, by leaving out certain words, in order amendment.
to insert or add others; 3, by inserting or adding certain
words. The time for moving an amendment is after a
question has been proposed by the Speaker, and before it
has been put. It is customary, and more convenient, to
give notice of an amendment; but it is competent for any Amendments
member to propose an amendment without notice; and when notice.
notice has been given of an amendment, it can only be moved
by the member in whose name it stands upon the notice paper.?
But another member, who has given notice of an amendment,
is not entitled to precedence on that account:3 as, according
to the rules of debate, the member who first rises, and is
called by the Speaker, being in possession of the house, is
entitled to conclude with any motion, which may properly
be made at that time. Nor is a member who has given
notice of an amendment entitled to be heard before a mem-
ber who rises to speak to the question. The order and form
in which the points arising out of amendments are deter-
mined, are as follows:---
1. When the proposed amendment is, to leave out certain To leave out
»
words, the Speaker says: “ The original question was this,”
stating the question at length; “Since which, an amend-
ent has been proposed to leave out the words,” which are
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.
words.
1 Mr. Palgrave has done good ser-
vice in this respect, by the publication
of “ The Chairman's Handbook."
? 257 Hans. Deb. 1321. 265 Ib. 169.
3 Sec 84 Hans. Deb. 3rd Ser, 6-11,
5th March 1846 (Andover Union),
where it was so ruled by Mr.
Speaker.
4 Mr. Speaker Brand's Note Book,
13th May 1879.
318
AMENDMENTS TO QUESTIONS.
others.
Where the
amendment
are both
If, however, the question, “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 insertion or addition of other words.
To leave out 2. When the proposed amendment is to leave out certain
words, and to
insert or add words, in order to insert or add others, the proceeding
commences in the same manner as the last. If the house
resolve “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. It is sometimes erroneously supposed that a member
question and
who is adverse both to the original question, and to the
objected to. proposed amendment, would express an opinion favourable
to the question, by voting “That the words proposed to be
left out stand part of the question.” By such a vote, how-
ever, he merely declares his opinion to be adverse to the
amendment. After the amendment has been disposed of, the
question itself remains to be put, upon which each member
may declare himself as distinctly as if no amendment what-
ever had been proposed. If, however, he be equally opposed
to the question and to the amendment, it is quite competent
for him to vote with the “noes" on both.
Questions On the 19th June 1822, the house having struck out all
mutilated by
amendments. the words of a question after “ That” relative to tithes in
Ireland, an amendment to add other words, was superseded
by the house passing to the other orders of the day; and the
original question was thus left, reduced to the initial word
" that." ? Again, on the 8th December 1857, a majority of
the house being adverse to a motion relating to joint-stock
1 It is not competent to move to
leave out all the words of a question.
The initial word “that” must, at
least, be retained.
2 77 Com. J. 356.
AMENDMENTS TO QUESTIONS.
319
banks, and also to a proposed amendment, the original ques-
tion was ultimately reduced to the word “ that;" when, no
other amendment being proposed, the Speaker called upon
the member whose notice stood next upon the paper. Similar
proceedings occurred on the 4th April 1876, upon a motion
relating to the blending of whiskey ; on the 13th February
1877, upon a motion relating to East India finance; on the
24th February 1880, upon a motion relating to freedom from
arrest;t on the 2nd March, in the same year, upon a motion
relating to the game laws ;5 on the 27th March 1881, on
a motion relating to the decimal coinage ;6 and again, on the
16th February 1883, in regard to an amendment to the
Address, when nothing but the word “But” was left, and
the discussion of the Address was proceeded with.
On the 21st June 1870, a motion being made that it is
undesirable that opposed business should be proceeded with
after 12 o'clock, an amendment was proposed to leave out
"12" and insert “one." Upon division, the house resolved
first, that "12" should not stand part of the question; and
secondly, that "one" should not be inserted.
tion thus stood with a blank, which no one proposed to fill
up with any other words: when the house was happily
relieved from its embarrassment by the withdrawal of the
original motion. And again, on the 2nd July 1872, upon
all the words of a motion relating to the established church
after “that” having been left out, and the question for
adding the words of the proposed amendment being nega-
tived, the main question, as amended, was also put and
negatived.
3. In the case of an amendment to insert or add words, To insert or
the proceeding is more simple. The question is merely put, add words.
that the proposed words “be there inserted" or
or " added.' ”
The ques-
8
1 113 Com. J. 10.
2 131 Ib. 139.
3 132 Ib. 40.
4 135 Ib. 60.
6 Ib. 74.
6 136 Ib. 163.
ñ 125 Ib. 270.
8 127 Ib. 314.
320
AMENDMENTS TO QUESTIONS,
If it be carried, the words are inserted or added accordingly,
and the main question, so amended, is put: but if negatived,
the question is put as it originally stood, unless it be after-
wards proposed to insert or add other words. Sometimes an
amendment has been moved to an amendment to a proposed
amendment. 2
Restrictions Several amendments may be moved to the same question,
in proposing but subject to these restrictions : 1. No amendment can be
made in the first part of a question, after the latter part has
been amended, or has been proposed to be amended, if a
question has been proposed from the chair upon such amend-
ment: but if an amendment to a question be withdrawn, by
leave of the house, the fact of that amendment having been
proposed will not preclude the proposal of another amend-
ment, affecting an earlier part of the question, so long as it
does not extend further back than the last words upon which
the house have already expressed an opinion: for the with-
drawal of the first amendment leaves the question in precisely
the same condition as if no amendment had been proposed.
Each separate amendment should be proposed in the order in
which, if agreed to, it would stand in the amended question ;
and should a member, being in possession of the house, move
an amendment, another member, before the question upon
such amendment has been proposed from the chair, may
intimate his intention of moving an amendment to an earlier
part of the question, in which case the latter amendment
will be allowed precedence. But if the question has been
already proposed from the chair upon the first amendment,
the latter cannot be moved, unless the first be, by leave of
the house, withdrawn. 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
1 113 Com. J. 201.
4 2 Hatsell, 123.
2 Business of the House, 22nd 5 See Debate on Address, 1st Feb.
Nov. 1882 ; 137 Ib. 514.
1849. 102 Hans. Deb. 3rd Ser. 117;
3 So ruled (privately) by Mr.
Mr. Disraeli and Mr. Grattan.
Speaker, 19th February 1845.
3
AMENDMENTS TO QUESTIONS.
321
of the house has already been pronounced in their favour:
but this rule does not exclude an addition to the words, if
proposed at the proper time. In the case of a second reading
or other stage of a bill, however, it is not allowable to add
words to the question, after the house has decided that words
proposed to be left out should stand part of that question.
Every stage of a bill, being founded upon a previous order of
the house, is passed by means of a recognised formula, and
may be postponed or arrested by acknowledged forms of
amendment: but when any such amendment has been nega-
tived, no other amendment, by way of addition to the ques-
tion, can be proposed, which is not, in some degree, inconsistent
with the previous determination of the house; and it has,
therefore, never been permitted.3 Nor can an amendment be
made, by the addition of words to the question, for reading
a bill a second time. The same rule applies to amendments
on going into committee of supply. 3. In the same manner,
when the house have agreed to add or insert words in a
question, their decision may not be disturbed by any amend-
ment of those words : but here, again, other words may be
added. Such words, however, may not be to the same effect
as those omitted by the amendment.5
But when a member desires to move an amendment to a
part of the question proposed to be omitted by another
1 See Debate
on Ecclesiastical
Speaker Denison's Note-Book. See
Titles Bill, 12th May 1851.
also 240 Hans. Deb. 1602.
2 8th June 1810 (Address concern- 4 On the 21st July 1871, the Duke
ing the Lord Lieutenant of Ireland), of Richmond gave notice of a reso-
65 Com. J. 480.
lution, by way of addition to the
3 Such an amendment having been question, for the second reading of
suggested on the 28th May 1866, on the Army Regulation Bill : but on
going into committee on the Repre- the 27th, on the representation of
sentation of the People Bill, Mr. Viscount Eversley, this notice was
Speaker (privately) ruled that it would amended : and on the 31st the reso-
be irregular; and after a careful lution was moved as an amendment
search, no such case could be found
to the question, in the usual form.
in the Journals. On the 4th June, 5 Elementary Education, 5th March
Mr. Speaker also stated the rule from 1872. (Mr. Mundella's amendment
the chair; 183 Hans. Deb. 3rd Ser. not moved.)
1918; and again, 186 Ib. 1285. Mr.
l'.
Y
322
AMENDMENTS TO PROPOSED AMENDMENTS.
amendment, 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 the second amend-
ment. This course is not often resorted to in the house itself,
except upon the consideration of bills, as amended, or ad-
dresses to the Crown, or extended resolutions : but is con-
tinually adopted in the proceedings of committees of the
whole house. The convenience of the house may also be
consulted, in some cases, by the withdrawal of an amendment,
and the substitution of another, the same in substance as
the first, but omitting certain words to which objections are
entertained. An amendment may, at any time, be with-
drawn, in the same manner and subject to the same conditions
as a motion. On the 2nd May 1882, an amendment was, by
leave of the house, withdrawn, after the words of the original
motion had been negatived, and the question had been pro-
posed for adding the words of the amendment. An amend-
ment cannot be withdrawn in the absence of the member
who moved it.
Amendments Another proceeding may also be resorted to, by which an
to proposed
amendments. 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. In such cases the questions put by the
Speaker deal with the first amendment as if it were a distinct
question, and with the second as if it were an ordinary
amendment. The original question is, indeed, for a time,
laid aside; and the amendment becomes, as it were, a sub-
stantive question itself. Unless this were done, there would
be three points under consideration at once, viz., the question,
the proposed amendment, and the amendment of that amend-
5
i Resolutions relating to public
business, 26th Feb. 1880; 250 Hans.
Deb. 1450; and in 1882; 274 Ib. 46.
247. 252. Mr. Speaker Brand's Note
Book, 4th April 1879.
2 See Amendments in Committee
on the Government of India, 7th and
14th June 1858, &c.
3 See Mr. Duncombe's amendment
(Education), 22nd April 1847; 91
Hans. Deb. 3rd Ser. 1236.
4 Wigan writ; 137 Com. J. 172.
5 151 Ib. 952.
AMENDMENTS TO PROPOSED AVENDAIENI'S.
323
ment: but when the question for adopting the words of an
amendment is put forward distinctly, and apart from the
original question, no confusion arises from moving amend-
ments to it, before its ultimate adoption is proposed.
1
1 It appears, from a curious letter the majority of an assembly; being
of the younger Pliny (Plinii Epistolæ, calculated to leave the decision to a
lib. viii. ep. 14), that the Roman minority of the members then pre-
senate were perplexed in the mode sent, if the majority were not agreed.
of disentangling a question that in- The only correct mode of ascertaining
volved three different propositions. the will of a majority, is to put but one
It was doubtful whether the consul, question at a time, and to have that
Afranius Dexter, had died by his resolved in the affirmative or nega-
own hand, or by that of a domestic; tive by the whole body.
The com-
and if by the latter, whether at his binations of different parties against
own request, or criminally; and the a third cannot be avoided (which after
senate had to decide on the fate of all was proved in the senate); and
his freedmen. One senator proposed the only method of obtaining the
that the freedmen ought not to be ultimate judgment of a majority, and
punished at all; another, that they l'econciling different opinions, is by
should be banislied; and a third, amending the proposed question
that they should suffer death. As until a majority of all the parties
these judgments differed so much, it agree to affirm or deny it, as it is
was urged that they must be put ultimately put to the vote. I was
the question distinctly, and that those indebted to the late Mr. Rickman
who were in favour of each of the for a reference to Pliny's letter, ac-
three opinions should sit separately, companied by a very animated trans-
in order to prevent two parties, each lation, which I regret is too long to
differing with the other, from joining be inserted.
against the third. On the other The following is another example
hand, it was contended that those of the mode of determining a ques-
who would put to death, and those tion without amendment, which in-
who would banish, ought jointly to
volved a distinct contradiction. Dur-
be compared with the number who ing the rivalry between Pompey and
voted for acquittal, and afterwards Caesar, it was proposed in the senate,
among themselves. The first opinion either that they should both give up
prevailed, and it was agreed, that or both retain their troops. It is
each question should be put sepa- stated by Plutarch, that " Curio,
rately. It happened, however, that with the assistance of Antonius and
the senator who had proposed death, Piso, prevailed so far as to have it
at last joined the party in favour of put to the regular vote. Accordingly
banishment, in order to prevent the he proposed that those senators should
acquittal of the freedınen, which move off to one side who were in
would have been the result of sepa- favour of Cæsar alone laying down
rating the senate into three distinct his arms and Pompeius remaining
parties. The mode of proceeding in command; and the majority went
adopted by the senate was clearly over to that side. Again, upon his
inconsistent with a determination by proposing that all who were of opiniou
12
324
AMENDAIENTS TO PROPOSED AMEYDMENTS,
Where the original amendment is either simply to insert,
add, or omit words, an amendment may at once be proposed
to it, without reference to the question itself, which will be
dealt with when the amendment has been disposed of.
Amendments The most difficult form, perhaps, is when the amendment
to proposed
amendments, first proposed is to leave out certain words of the original
leaving out
words.
question; and an amendment is proposed to such proposed
amendment, by leaving thereout some of the words pro-
posed to be omitted, and thus, in effect, restoring them to the
original question. In such a case a question is first put, ,
that the words proposed to be omitted, stand part of the pro-
posed amendment. If that question be affirmed, the ques-
tion is then put, that all the words proposed to be omitted,
by the first amendment, stand part of the original question.
But if it be negatived, a question is put, that the words
comprised in the amendment, so amended, stand part of such
original question.
Leaving out But where the original amendment is to leave out certain
adding others. words, in order to insert or add other words, no amendment
can be moved to the words proposed to be substituted, until
the house have resolved that the words proposed to be left
out, shall not stand part of the question. But so soon as the
question is proposed for inserting or adding the words of the
amendment, an amendment may be moved thereto.
A short example will make this latter proceeding more in-
telligible. To avoid a difficult illustration, (of which there
are many in the Journals,2) let the simple question be,“ That
this bill be now read a second time;" to which an amend-
ment has been proposed, by leaving out the word “now,”
and adding "upon this day six months;” and let the question
that the word "now" stand part of the question, be negatived,
1
words and
that both should lay down their arms,
and that neither should hold a com-
mand, only twenty-two were in favour
of Pompeius, and all the rest were on
the side of Curio."-Plutarch, Life
of Pompey, by Professor Long, p. 80.
1 27 Com. J. 298; 39 Ib. 842; 64
Ib. 131; 134 Ib. 136.
2 See Com. Gen. Journ. Indexes,
1774-1865, tit. Amendments. 108
Com. J. 516.
AMENDJEXTS TO QUESTIONS.
325
and the question for adding “ upon this day six months,” be
proposed. An amendment may then be proposed to such pro-
posed amendment, by leaving out “six months,” and adding
fortnight," instead thereof. The question will then be put,
“That the words six months' 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 ques-
tion, 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 “fortnight" be added ; and, if that be
agreed to, the first amendment, so amended, is put, viz. that
the words “ this day fortnight” be added to the original ques-
tion. That being agreed to, the main question, so amended,
is put, viz. “That this bill be read a second time this day
fortnight.”i Several amendments may be moved, in succes-
sion, to a proposed amendment-subject to the same rules as
amendments to questions. An amendment to a proposed
amendment cannot be moved, if it proposes to leave out all the
words of such proposed amendment: but in such a case the
first amendment must be negatived, before the second can be
offered.3
An amendment should be relevant to the question to which Amendments
it is proposed to be made. On the 28th February 1882, on
a motion for declaring Michael Davitt incapable of being
elected or returned as a member, an amendment was about
to be proposed for an address to the Crown for a free pardon;
but the Speaker interposed and pointed out that such an
amendment was inadmissible, as it had no relation to the
question before the house, but should form the subject of a
distinct motion, after notice given in the usual manner. But
to be relevant.
i Dublin Waterworks Bill, 27th
February 1849.
2 6th March 1840 (Supply), 101
Com. J. 865.
3 Education in rural districts (Mr.
Pell and Mr. Wilbraham Egerton),
2nd March 1875; 130 Com. J. 70.
4 266 Hans. Deb. 3rd Ser. 1846 ;
11th May 1882; 269 Ib. 461; 3rd
July 1882; 271 Ib. 1290; but see
also 23 Ib. 785; 38 Ib. 174.
326
AMENDMENTS TO QUESTIONS.
and con-
sistent.
on a question re-affirming a resolution restraining Mr. Brad-
laugh from taking the oath, an amendment in favour of an
amendment of the Oaths Acts was held to be relevant and
admissible. And in the case of an order of the day, the
relevancy of amendments is specially enforced, except on
going into Committee of Supply or Ways and Means.?
And must be Every amendment proposed to be made, either to a question
intelligible
or to a proposed amendment, should be so framed that, if
agreed to by the house, the question, or amendment as
amended, would be intelligible and consistent with itself.
Amendments It may sometimes happen, that an amendment clashes
moved before
previous with the proposal of the previous question; in which case the
question.
priority of either would depend upon the period at which the
conflict arises. If the members who are about to offer these
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 mani-
festly reasonable to consider, in the first place, what the
question shall be, if put at all; and, secondly, whether the
question shall be put or not. Unless this course were adopted,
an amendment, which might alter the question so as to re-
move objections to its being put, could not be proposed; for
if the previous question were resolved in the affirmative, it
must be put immediately by the Speaker, as it stands; and
if in the negative the question would no longer be open to
consideration. But if the amendment has been first pro-
posed, it must be withdrawn or otherwise disposed of, before
a motion for the previous question can be admitted.3
After previous If, on the other hand, the previous question has been first
question pro-
posed, proposed by the Speaker, no amendment can be received until
1 267 Hans. Deb. 3rd Ser. 1882. negative; 117 Com. J. 129. And
2 See Chapter XXI. (Supply and the like proceeding occurred on the
Ways and Means).
9th June 1863 (Uniformity Act); 118
3 On the 1st April 1862, after an Ib. 269. See also proceedings rela-
amendment had been proposed but tive to Kagosima, 119 Ib. 45; Den-
not made to a question relative to mark, Ib. 179; 174 Hans, Deb. 3rd
the Civil Service, the previous ques- Scr. 1376; Malt Duty, 120 Com. J.
tion was moved, and passed in the 117; 212 Hans. Deb. 926.
AMENDMENTS TO QUESTIONS.
327
the previous question is withdrawn.? If the members who
moved and seconded the previous question agree, by leave of
the house, to withdraw it, the amendment may be proposed,
but not otherwise. If they refuse to withdraw it, the pre-
vious question must be put and determined. If, however, the
house should generally concur in the amendments which were
precluded from being put, they would permit a new and
distinct question to be afterwards proposed, embodying the
spirit of those amendments, upon which a separate vote might
be taken.3
In the Commons, every amendment must be proposed and
seconded in the saine manner as an original motion; and if
no seconder can be found, the amendment is not proposed by
the Speaker, but drops, as a matter of course,* and no entry
of it appears in the Votes.
1 Lord Lieutenant of Ireland, 25th
Mar. 1858; 149 Hans. Deb. 3rd Ser.
712.
2 36 Com. J. 825.
3 2 Hatsell, 121.
+ 177 Hans. Deb. 3rd Ser. 1528.
328
SAME QUESTION MAY NOT BE TWICE OFFERED.
CHAPTER X.
THE SAME QUESTION OR BILL MAY NOT BE TWICE OFFERED
IN A SESSION.
rule.
Object of the It is a rule, in both houses, not to permit any question or
bill to be offered, which is substantially the same as one on
which their judgment has already been expressed, in the
current session. This is necessary in order to avoid contra-
dictory decisions, to prevent surprises, and to afford proper
opportunities for determining the several questions as they
arise. If the same question could be proposed again and
again, a session would have no end, or only one question
could be determined; and it would be resolved first in the
affirmative, and then in the negative, according to the acci-
dents to which all voting is liable.
Exceptions. · But, however wise the general principle of this rule may
be, if it were too strictly applied, the discretion of Parliament
would be confined, and its votes be subject to irrevocable
error. A resolution may therefore be rescinded, and an
rescinded.
order of the house discharged, notwithstanding a rule urged
(April 2nd 1604), “ That a question being once made, and
carried in the affirmative or negative, cannot be questioned
again, but must stand as a judgment of the house." 3
Technically, indeed, the rescinding of a vote is the matter
of a new question; the form being to read the resolution of
the house, and to move that it be rescinded; and thus the
same question which had been resolved in the affirmative is
not again offered, although its effect is annulled. The same
result is produced when a resolution has been agreed to, and
Votes
Ii Com. J. 306. 434.
? Baron Smith; 89 Com. J. 59.
Education (Inspectors' Reports) 1864,
119 Ib. 463.
3 1 Ib. 162.
SAME QUESTION MAY NOT BE TWICE OFFERED,
329
a motion for bringing in a bill thereupon is afterwards
negatived, as in the proposed reduction of the malt duty in
1833.1
To rescind a negative vote, except in the different stages
of bills, is a proceeding of greater difficulty, because the same
question would have to be offered again. The only means,
therefore, by which a negative vote can be revoked, is by
proposing another question, similar in its general purport to
that which had been rejected, but with sufficient variance to
constitute a new question; and the house would determine
whether it were substantially the same question or not.
There is also a difficulty in discharging an order for an
address to the Crown, after it has been presented to her
Majesty; and thus, in 1850, an address having been agreed
to for discontinuing the collection and delivery of letters on
Sunday, and for inquiry into the subject, another address
was agreed to, some time afterwards, for inquiring whether
Sunday labour might not be reduced in the Post Office, with-
out completely putting an end to the collection and delivery
of letters. Again, in 1856, when an address had been voted
on the subject of national education in Ireland, in which the
majority of the house did not concur, instead of discharging
the order for the address, a resolution was agreed to, for the
purpose of qualifying the opinions embodied in the address : 4
and her Majesty's answer was framed in the spirit of the
resolution, as well as of the address.5
Sometimes the house may not be prepared to rescind a
resolution, but may be willing to modify its judgment. In
such cases, the former resolution is read, and another resolu-
tion relating to the same subject is agreed to. Thus, a
resolution having been agreed to on the 16th July 1877, con-
demning a recent appointment of controller of the stationery
office, as calculated to diminish the usefulness of select com-
1 88 Com. J. 317. 329.
2 105 Ib. 383. 609.
3 111 Ib. 272.
4 Ib. 289.
5 111 Ib. 298. See also 111 Hans.
Deb. 3rd Ser. 1404.
330
SAME QUESTION MAY NOT BE TWICE OFFERED.
Evasions of
the rule.
mittees, and to discourage the zeal of officials, the house re-
solved on the 23rd July~
“That this house, while most anxious to maintain the usefulness
and influence of its select committees, and to encourage the interest
and zeal of officials employed in the public departments of the state,
after hearing the further explanations concerning the recent appoint-
ment of the controller of her Majesty's stationery office, withdraws the
censure conveyed in the said resolution.” 1
A mere alteration of the words of a question without any
substantial change in its object, will not be sufficient to evade
this rule. On the 7th July 1840, Mr. Speaker called atten-
tion to a motion for a bill to relieve dissenters from the pay-
ment of church rates, before he proposed the question from
the chair. Its form and words were different from those of
a previous motion, but its object was substantially the same;
and the house agreed that it was irregular, and ought not to
be proposed from the chair. Again, on the 15th May 1860,
the order for the second reading of the Charity Trustees Bill
was withdrawn, as it was discovered to be substantially the
same as the Endowed Schools Bill, which the house had
already put off for six months. So, also, on the 17th May
1870, a motion for an address in favour of emigration was
not allowed to be made, being substantially the same as a
resolution which had been negatived in the same session.
On the 1st July 1880, objection was taken that a general
resolution allowing all members to affirm, subject to any
liability by statute, was substantially the same as a previous
resolution forbidding Mr. Bradlaugh to take the oath or
affirmation, was overruled. On the 9th May 1882, it was
ruled by Mr. Speaker that a. motion affirming the neces-
sity of legislation to enable members duly elected to take
their seats, was inadmissible, as an amendment to the same
effect, but in different words, had been negatived on the 7th
4
1 132 Com. J. 345, 367.
2 95 Ib. 495; Mirror of Parl. 1840,
3 115 Com. J. 249; Mr. Speaker
Denison's Note-Book.
| 201 Ilaus. Deb. 3rd Ser. 821.
5 233 Ib. 1261.
p. 1387.
SAME QUESTION MAY NOT BE TWICE OFFERED,
331
March. But when a motion for leave to bring in a bill has
been rejected, it is competent to move for a committee of the
whole house to consider the laws relating to the subject to
which that bill referred; and this expedient has been used to
evade the orders of the house.
It is also possible, in other ways, so far to vary the
character of a motion, as to withdraw it from the operation
of the rule. Thus, in the session of 1845, no less than five
distinct motions were made upon the subject of opening
letters at the Post-office, under warrants from the secretary
of state. They all varied in form and matter, so far as to
place them beyond the restriction: but in purpose they were
the same, and the debates raised upon them embraced the
same matters. But the rule cannot be evaded by renewing,
in the form of an amendment, a motion which has been
already disposed of. On the 18th July 1844, an amendment
was proposed to a question, by leaving out all the words after
" that," in order to add, “Thomas Slingsby Duncombe, esq.,
be added to the committee of secrecy on the Post-office :"
but Mr. Speaker stated, that on the 2nd July, a motion had
been made, “ that Mr. Duncombe be one other member of
the said committee;" that the question had been negatived;
“ and that he considered it was contrary to the usage and
practice of the house that a question which had passed in the
negative should be again proposed in the same session."
The amendment was consequently withdrawn.3 On the
19th February 1873, an amendment was proposed to a
question relating to the sittings of the committee of supply
on Mondays, to leave out from “ that” to the end of the
question, in order to add “a select committee be appointed
to consider the best means of facilitating the despatch of
public business.” The house, upon a division, determined
1 See, for example, General Con-
way's motions on the American war,
22nd and 27th Feb. 1782 ; 38 Com.
J. 814. 861. Proceedings upon the
Malt duty in 1833 ; 88 Ib. 195. 317;
and upon the Sugar duties in 1845;
100 Ib. 59. 69. S1.
2 100 Com. J. 42. 54. 185. 199.
214,
3 76 Hans. Deb. 3rd Ser. 1021.
332
QUESTIONS TWICE OFFERED.
that the words proposed to be left out should stand part
of the question, and the amendment was consequently lost.
On the following day, upon a motion that on Tuesdays the
house should meet at 2 p.m., and rise at 7 p.m., a member
rose to move an amendment in nearly the same terms as that
proposed on the former day. But the Speaker interposed,
and said: “The house, last night, on the amendment of the
hon, member for Essex, refused to entertain the proposal that
the mode of conducting the business of the house should be
referred to a select committee, and it is therefore out of order
to propose now, by another amendment, that such a course
should be taken."
On the 9th May 1870, it was ruled, that when an order
for the appointment of a select committee had been discharged,
and another order substituted, for the express purpose of
onitting certain words in the original order of reference, an
instruction to restore those words could not be entertained.
Motions with- The rule, however, does not apply to cases in which a motion
drawn may be
repeated.
has been by leave of the house withdrawn, or has not been
seconded; for such a motion has not been submitted to the
judgment of the house, and may, therefore, be repeated.3
On the 7th December 1857, a resolution was proposed for
superseded.
extending limited liability to joint-stock banks, to which an
amendment was proposed affirming the same principle in a
modified form. The house refused to permit either of these
propositions to form part of the question, which was, con-
sequently, reduced to the single word “that.' On the 11th
February following, a bill to the same effect was brought in
without objection, the house having pronounced its judgment
upon a question not substantially the same. So, again, on
the 31st March 1859, an amendment was proposed, but not
2
And motions
1 214 Hans. Deb. 3rd Ser. 287;
Mr. Speaker Brand's Note-Book.
2 Conventual and Monastic Insti-
tutions (Mr. Whalley).
3 See motion on Railway Bills
withdrawn 16th, and renewed 23rd
May 1845; 80 Hans. Deb. 3rd Ser.
432. 798.
4 See also proceedings on Negro
Apprenticeship, 1838; 93 Com. J.
418. 541.
QUESTIONS TWICE OFFERED.
333
1
made, to a proposed amendment on the second reading of the
Representation of the People Bill, expressing an opinion in
favour of the ballot: but this was held not to preclude a
motion, on a later day, for bringing in a bill for the taking
of votes by way of ballot.
On the 5th March 1872, a resolution was moved impugning
the general operation of the Elementary Education Act, 1870,
and enumerating several points in which it failed, including
the payment of school fees to denominational schools. In
opposition to it, an amendment was carried, affirming that
it was too soon to review the provisions of the Act. On the
23rd April, Mr. Candlish brought forward a motion for leave
to bring in a bill to repeal the 25th clause of the Education
Act, which authorised the payment of school fees to denomi-
national schools. Exception was taken to this motion, on
the ground that substantially it had been embraced in the
resolution of the 5th March, and was excluded from considera-
tion by the amendment. But it was held that a resolution in
terms so general could not prevent a member from moving
for leave to bring in a bill to repeal a single clause of the
Act. Moreover a motion for leave to bring in this bill
differed essentially from a resolution condemning, in general
terms, the operation of the Act. On the 1st May 1877, upon
the nomination of the select committee on the Cattle Plague,
an amendment to leave out the name of Colonel Kingscote,
in order to insert the name of Mr. Biggar, having been
negatived, the Speaker ruled that a separate motion might
nevertheless be made at a later period, that Mr. Biggar be
another member of the committee. From these various
illustrations it will be seen that the rule has been strictly, but
equitably applied, in restriction of repeated motions or
amendments, relating to the same subject-matter.
It will now be necessary to anticipate, in some measure,
the proceedings upon bills, which are reserved for future
1 114 Cim. J. 145. 170.
334
QUESTIONS TWICE OFFERED.
Rule as ap-
plied to bills.
explanation :I but it is desirable to understand, at one view,
the precise effect of a decision or vote, whatever may be the
nature of the question.
In passing bills, a greater freedom is admitted in proposing
questions, as the object of different stages is to afford the
opportunity of reconsideration; and an entire bill may be
regarded as one question, which is not decided until it has
passed. Upon this principle it is laid down by Hatsell, and
is constantly exemplified, “ that in every stage of a bill, every
part of the bill is open to amendment, either for insertion or
omission, whether the same amendment has been, in a former
stage, accepted or rejected.”? The same clauses or amend-
ments may be decided in one manner by the committee, in a
second by the house on the report, and, formerly, might have
been dealt with again on the third reading; and yet the in-
consistency of the several decisions will not be manifest when
the bill has passed.
On the 8th August 1836, a clause was, after divisions,
added on the report of the Pensions Duties Bill, to exempt
the pension of the Duke of Marlborough from the provisions
of that bill. On the third reading an amendment was pro-
posed, by leaving out this clause, and the question that it
should stand part of the bill was, on division, passed in the
negative. In 1864, in committee on the Poisoned Flesh
Prohibition Bill, a clause was added, providing that the bill
should not extend to Ireland. This clause was left out on
the consideration of the bill, as amended, and lastly, on the
third reading, the bill was recommitted, when a proviso was
introduced imposing restrictions upon the operation of the
1 Chapter XVIII.
2 2 Hatsell, 135.
3 91 Com. J. 762.
4 91 Com. J. 817. In 1844, an
amendment of Lord Ashley's (for
ten hours' labour) having been car-
ried against the Government in the
Factories Bill (which limited the
hours of labour to twelve), the
Government withdrew the bill, and
brought in another to the same effect,
which was ultimately carried; and
thus the decision of the house, upon
Lord Ashley's amendment, was vir-
tually reversed.
3 Lord Dalling,
Life of Lord Palmerston, 136, n.
QUESTIONS TIVICE OFFERED.
335
bill in Ireland. But in committee on a bill, a new clause
or amendment will not be allowed, in contravention of a
previous decision of the committee, unless there be some
substantial variation in its purport.?
When bills have ultimately passed, or have been rejected, Bills once
the rules of both houses are positive, that they shall not be rejected.
passed or
introduced again: but the practice is not strictly in accord-
ance with them. The principle is thus stated by the Lords,
17th May 1606;3
" That when a bill hath been brought into the house, and rejected,
another bill of the same argument and matter may not be renewed
and begun again in the same house in the same session where the
former bill was begun; but if a bill begun in one of the houses, and
there allowed and passed, be disliked and refused in the other, a new
bill of the same matter may be drawn and begun again in that house
whereunto it was sent; and if, a bill being begun in either of the
houses, and committed, it be thought by the committees that tho
matter may better proceed by a now bill, it is likewise holden agrec-
able to order in such case, to draw a new bill, and to bring it into the
house."
It was also declared, in a protest, signed by seven lords,
23rd February 1691, in reference to the Poll Bill, in which
a proviso contained the substance of a bill which had dropped
in the same session; "that a bill having been dropped,
from a disagreement between the two houses, ought not, by
the known and constant methods of proceedings, 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 declare solemnly, and to enter upon
their books, for a record to all posterity, that they will not
1 119 Com. J. 42.5. 136, &c.;
176 Hans. Deb. 1611; Mr. Speaker
Denison's Note-Book.
2 Poor Relief (Ireland) Bill, 29th
May 1862. Representation of tho
People Bill, 17th June and 1st July
1867 (amendments of Mr. Laing and
Mr. Horsfall). Parliamentary and
Municipal Elections Bill, 2nd May
1872; amendment of Mr. Samuelson,
for distinguishing candidates by
colours. 211 Hans. Deb. 3rd Ser.
137.
3 2 Lords' J. 435.
1 ló Ib. 90.
336
SAME QUESTIONS OFFERED.
4
Lords?
Journals in
spected.
hereafter admit, upon any occasion whatsoever, of a proceed-
ing so contrary to the rules and methods of Parliament.”ı
In the Commons it was agreed for a rule, 1st June 1610,
that "no bill of the same substance be brought in the same
session. But a second bill has been ordered, with a special
entry of the reasons which induced the house to depart from
the usage of Parliament.
of Parliament. And when part of a bill has been
omitted by the Lords, and the Commons have agreed to such
amendment, the part so omitted has been renewed, in the
same session, in the form of a separate bill.
A common practice, however, has since grown up, with the
sanction of both houses, by which these rules are partially
disregarded. When the Lords, out of regard for the privi-
leges of the Commons, defer the consideration of the amend-
ments made by the committee on a bill, received from the
Commons, for a period beyond the probable duration of the
session, it is usual, if such amendments be otherwise accept-
able, for the Commons to appoint a committee to inspect the
Lords' Journals; and, on receiving their report, which ex-
plains the position of the bill in the Lords, 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 objec-
tion, 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' committee have
inserted clauses imposing rates or tolls, or have otherwise
amended a bill involving charges upon the people. The
House of Lords cannot agree to such clauses or amendments,
1 15 Lords' J, 00.
2 1 Com. J. 434. See also 158
Hans. Deb. 3rd Ser, 1318.
3 62 Com. J. 61.
Drainage (Ireland) Bill; and
Drainage and Improvement of
Land (Ireland) Bill, 1863.
5 Sce further Chapter XXI.
SAJE QUESTIONS OFFERED.
337
aside.
without infringing upon the privileges of the Commons, and
the bill is therefore dropped: but the Commons, by bringing
in another bill, and adopting the amendments to which, in
themselves, they are willing to agree, avoid any clashing of
privileges : and the bill is ultimately agreed to by both
houses.
A proceeding somewhat similar may arise, when a bill is Bills laid
returned from the Lords to the Commons, with amendments
which the latter cannot, consistently with their own privileges,
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.
If a bill has been postponed or laid aside in the Commons, Lords search
the Lords sometimes appoint a committee to search the Votes votes.
and Proceedings of the Commons, and may, if they think
fit, introduce another bill, and send it to the Commons.
But in all the preceding cases, the disagreement of the Prorogation
two houses is only partial and formal, and there is no dif- bills.
ference 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 regu-
lar way of reviving it in the same session ; and so imperative
has that regulation been esteemed, that in 1707, Parliament
was prorogued for a week, in order to admit the revival of a
Commons'
to renew
1 91 Com. J. 777.810; 100 Ib. 664;
103 Ib. 888. Deodands Abolition bill,
1815. Revenue Charges bill, 1854.
Reformatory and Industrial Schools
P.
bill, 1872.
275 Lords' J. 590; 77 Ib. 505.
See also supra, p. 261.
Z
338
SAJIE QUESTIONS OFFERED.
Acts of the
bill which had been rejected by the Lords. In 1831, Parlia-
ment was prorogued from the 20th October to the 6th
December, in order to bring in the third Reform Bill.2
Amending The rule has been construed with equal strictness in pre-
same session. venting the introduction of a second bill, at variance with
the provisions of a bill already passed; and, in 1721, a
prorogation for two days was resorted to, in order to enable
Acts relating to the South Sea Company to be passed, con-
tradictory 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 expe-
dient of a prorogation," as the ancient usage and established
rules of Parliament make it impracticable” otherwise to
prepare the bills. Such a rule, however, was inconveniently
restrictive of the discretionary power of Parliament: while
recognized, it was not invariably observed,4 and now it has
been wholly set aside.
In order to avoid the embarrassment arising from the
irregularity of dealing with a statute passed in the same
session, it had, for many 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." And by 13 & 14 Vict. c. 21, “ "every Act
may be altered, amended or repealed in the same session of
Parliament, any law or usage to the contrary notwithstand-
ing;” and the usual clause has, therefore, been omitted from
all Acts passed since the session of 1850.
Proposals for Schemes have also been introduced by high authorities, to
suspending or
resuming
provide, either by statute or resolution, for the suspension of
bills, from one session to another, or for resuming proceed-
ings upon such bills, notwithstanding a prorogation. These
schemes have been discussed in Parliament, and carefully
considered by committees : but various considerations have
bills.
1 2 Burnet's Own Times, 467. 2
Coxe's Walpole, 8. 2 Hatsell, 127.
2 86 Com. J. 935.
3 19 Ib. 639.
4 4th May 1772.
33 Ib. 726.
SAME QUESTIONS OFFEREI).
339
restrained the legislature from disturbing the constitutional
law by which Parliamentary proceedings are discontinued by
a prorogation.
1 Earl of Derby's Parliamentary
Proceedings Adjournment bill in
1848 ; 98 Hans. Deb. 3rd Ser. 329.
981. 1235; 99 Ib. 246; 100 Ib. 131.
Report of Commons' Committee on
Public Business, 1848. Report of
Lords' Committee on Public Busi-
ness, 1861. Report of Commons'
Committee on Business of the House,
1861. Marquess of Salisbury's Par-
liamentary Proceedings bill in 1869;
194 Hans. Deb. 588, &c. Report
of Joint Committee on Despatch
of Business in Parliament, 1869.
Report of Commons' Committee on
Public Business, 1878.
22
340
DEBATE.
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.
Manner of
speaking.
Reading
speeches.
In the House of Lords, a peer addresses his speech “ to the
rest of the lords in general.”] In the Commons, a 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. A member is not permitted to read his speech, but
may refresh his memory by a reference to notes. The read-
ing of written speeches, which has been allowed in other
deliberative assemblies, has never been recognized in either
house of Parliament. A member may read extracts from
documents, but his own language must be delivered bonâ fide,
in the form of an unwritten composition. Any other rule
would be at once inconvenient, and repugnant to the true
theory of debate.
2
1 Lords' S. O. No. 23.
2 1 Com. J. 494. 7 Hans. Deb.
208. 17 Ib. 3rd Ser. 1169, 19th
Feb. 1846, Interference of peers at
elections. But it seems to have been
permitted in the Lords, 26th Juno
1845; 15 Ib. 3rd Ser. 1190. See
also 1 Com. J. 272; and 17 Hans.
Deb. 3rd Ser. 1281 (Mr. Cobbett).
“14th May 1803, Mr. Jeffrey having
read a long written speech without
interruption, before putting the ques-
tion, I called the attention of the
house to it, and stated this to be a
practice contrary to the received and
established usage of debate, and
necessary to be remarked upon, lest
it should grow into a precedent: to
which interposition the house entirely
assented. At the close of the debate,
Mr. J. again reading written argu-
ments as a reply, I was called upon
to interfere; and it seemed to be
agreed that this was not to be done
at all, except so far as resorting to
notes and figures. I had in my mind
the reprobation of this very practice
of reading written arguments ; as
mentioned in vol. ii. of Grey's
Debates." Lord Colchester's Diary,
ii. 60. 24th Feb. 1813, Mr. Cochrane
Johnstone then read a short speech,
apologising for reading it instead
of delivering it in the usual way)
by alleging indisposition, and the
house allowed it. Ib. i. 432. See
also 223 Hans. Deb, 3rd Ser. 178;
23.5 Ib. 773.
DEBITE.
311
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 the rule is in cases of
sickness or infirmity, when the indulgence of a seat is fre-
quently allowed, at the suggestion of a member, and with
the general acquiescence of the house. In both houses, also,
during a division, with closed doors, it is the practice for
members to speak sitting and covered ; but this practice is
confined to questions of order, arising out of the division, and
does not apply to distinct motions proposed for the adoption
of the house. On the 10th July 1844, after the numbers
had been reported by the tellers, but before they had been
declared by the Speaker, motions were made for disallowing
the votes of certain members on the ground of personal
interest, and as the doors were still closed, the member who
made the first motion was proceeding to speak sitting and
covered: but the Speaker desired him to rise in his place,
and the debate proceeded in the same way as if the doors had
been opened. A member may speak from the side galleries,
appropriated to members, but not from below the bar.
It has been said, when treating of questions, that the Time of
speaking
proper time for a debate is after a question has been proposed
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 upon.
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, however, entitled
to be heard even after the voice has been given in the affir-
mative; but if it has also been given in the negative, they
have lost their opportunity ; the question is fully put, and
1 Lord Wynford, 64 Lords' J. 167,
Mr. Wynn, Hans. Deb. 9th March
1843; and 9th July 1844 (Sudbury
Disfranchisement), Lord Lyndhurst.
On the 18th June 1877, Mr. Ward-
Hunt was offered this indulgence,
but declined it.
2 246 Hans. Deb. 3rd Ser. 1363.
Speaking from the galleries is in-
convenient, and rarely resorted to.
342
DEBITE.
nothing remains but the vote. It is explained in the Stand-
ing 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;2 and a question being entirely put,
implies that the voices have also been given.
On the 3rd May 1819, on the debate on the Catholic
Question, the Speaker had fully put the question (saying
he thought the “noes” had it), when several members,
including Mr. Peel and Mr. Plunket, desired to address the
house ; but the Speaker ruled that the debate could not be
re-opened, and that if members desired to speak upon the
point of order, their observations could only be delivered in
the way of advice to the Speaker, by the members sitting and
covered. 3
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 ques-
tion had been disposed of, before his offer to speak had
attracted attention.!
Who entitled From the limited authority of the Speaker of the House
to speak.
of Lords, in directing the proceedings of the house, and in
In the Lords. maintaining order, the right of a peer to aildress 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 of them to speak; and if each be
supported by a party, there is no alternative but a division.
1 12th May 1606, “Any man may
speak after the affirmative and before
the negative.” 13th February, 18
Jac., “No man to speak after a
question has been once put, but the
question, if doubtful, to be put
again.”
Mr. Spcaker Bromley's
Notc-book.
? Lords' S. O. No. 28.
3 40 Hans. Dob. 79.
3rd May
1819, "after 010 negative voice
given, Plunket pretended that he
wished to spcak, but this Mr. Wynn's
solitary point of order withstood, and
it was not permitted.” Mr. Rick-
man to Lord Colchester ; Lord Col-
chester's Diary, iii. 74.
4 2 Hatsell, 102, n.
DEBITE.
343
Thus, on the 3rd February 1775, the Earl of Dartmouth
and the Marquis of Rockingham both rising to speak, it
was resolved, upon question, that the former “shall now
be heard.”! So again, on the 28th May 1846, in a debate
on the Corn Bill, the Earl of Eglintoun, Lord Beaumont,
and the Earl of Essex rose together. The Duke of Rich-
mond moved that Lord Eglintoun be heard ; but the lord
chancellor then rose and moved that Lord Essex be heard,
and having immediately put the question, declared that the
contents had it. His decision was demurred to, but Lord
Essex proceeded with his speech. On the 4th January 1811,
in committee on the state of the nation, several peers rose to
speak, and the chairman, Lord Walsingham, being appealed
to, stated that he had no authority to call upon any noble
lord to speak, in preference to another, that being a question
which the house alone could determine. In the debate which
ensued, several lords concurred in opinion, that though the
ultimate determination was with the house, yet the lord in
the chair or on the woolsack, ought in the first instance to
point out the noble lord who appeared to him to have risen
first.? And it appears that if the lord chancellor rises from
the woolsack, to address the house, it is customary to give
him precedence over other peers who may rise at the same
time.3
In the Commons, the member who, on rising in his place, In the
Commons.
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
1 34 Lords' J. 306.
Lord Chancellor and Lord Kenyon
2 18 Hans. Deb. 719, 12.
rose together (see speeches of Lords
3 Debate on Roman Catholic Re- Holland and Farnham).
licf Bill, 3rd April 1820, when the
314
DEBATE.
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, more especially
as a member is often called upon to speak, not because he was
up the first, but because the house desire to hear him. 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 twenty members have often 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 same
time, 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, 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.” On the 20th March 1782, Lord North and the
Earl of Surrey rose together; and on Mr. Fox moving that
the latter be now heard, Lord North, with happy adroitness
When two or
more mem-
bers rise
together.
1 Seo debate, 12th March 1771,
when a question arose between Col.
Barré and Mr. Onslow, and the
Speaker's call upon the latter was
disputed ; 2 Cavendish Deb. 386.
2 On the 26th Feb. 1872, observa-
tions were made concerning a sup-
posed “Speaker's List" by which
his choice was governed.
Such a
list, however, was disclaimed by the
Speaker himself, and by Mr. Glad-
stonc on bchalf of himself and the
Secretary to the Treasury. 209 Hans.
Deb. 3rd Ser. 1032; Mr. Speaker
Brand's Note-Book.
DEBITE.
345
and presence of mind, spoke to that question, and announced
his resignation, which he had been anxious to communicate
to the house. A similar contest arose between Mr. Pitt and
Mr. Fox on the 20th February 1784;? and more recently
between Sir R. Peel and Sir F. Burdett;3 and between
Lord Sandon and Mr. Duncombe. On the 9th July 1850,
Mr. Locke being called upon by Mr. Speaker to proceed
with a motion, of which he had given notice, and several
members objecting on account of the lateness of the hour,
Mr. Forbes Mackenzie rose in his place to speak upon the
question that certain petitions do lie upon the table, and
objection having been made to his proceeding,-a motion was
made, “ that Mr. Mackenzie do now speak,” which was put
and negatived; and Mr. Locke proceeded with his motion."
On the 18th May 1863, in committee of supply, the Solicitor
General and Mr. Nicol both rising, the former was called by
the chairman: but several members calling upon the latter, a
motion was made that Mr. Solicitor General do now speak.
This motion, however, was withdrawn, and Mr. Nicol pro-
ceeded to address the committee. In a debate upon a bill,
the priority of a member might formerly have been deter-
mined in another way, 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.” 6 This rule, however, may be treated as obsolete;
for, in order to elicit discussion, in the most convenient form,
it has long been the practice for the Speaker to call upon
members on either side of the house alternately, who answer
one another."
1 1 Memorials of Fox, 295.
2 39 Com. J. 943. On the 12th
January another dispute had arisen.
Mr. Pitt claimed precedence, as hav-
ing a message from the king ; but
as Mr. Fox had been in possession of
the house before Mr. Pitt rose, and
was interrupted by members coming
to be sworn, the Speaker decided in
his favour; 2- Hans. Parl. Hist. 269.
3 86 Com. J. 517.
4 95 Ib. 557.
5 105 Ib. 509. 112 Hans. Dcb.
3rd Ser. 1190.
6 1 Com. J. 232.
7 7th March 1592,
33 Eliz. :
"At the meeting of the committees
in the afternoon this point of order
was settled. Two or three stood up
and strove who might speak first,
346
DEBATE.
Motion that As the house may determine whether members shall speak,
a member do
not speak.
or not, so it has been called upon to interpose directly to pre-
vent members from speaking. Thus, on the 9th May 1604,
Sir Robert Litton offering to speak, it grew to question
whether he should speak any more in this matter, and over-
ruled that he ought not.”! And on the 31st March 1610,
“question put whether they think fit any further debate :
resolved, no further debate.” On the 3rd April 1845, a ques-
tion that Mr. Dodd be heard upon a motion intended to be
made by him was negatived. On the 20th June 1880, on a
motion for adjournment, Mr. O'Donnell was proceeding with
grave charges against the French Ambassador, when the
Speaker pointed out that such charges should not be made in
that manner, but should form the subject of a distinct motion,
after due notice. On Mr. O'Donnell, nevertheless, persisting in
his charges, in opposition to the Speaker's ruling, and at the
risk of a misunderstanding with a friendly power, Mr.
Gladstone moved, “That Mr. O'Donnell be not now heard."
The motion was well fitted for such an occasion, and, if carried
by acclamation, would have presented a good example of the
value of an ancient rule : but being open to debate, and
amendment, it provoked an angry discussion, and was
eventually withdrawn.3
Precedence to On resuming an adjourned debate, the member who moved
has moved the its adjournment is, by courtesy, entitled to speak first; but
adjournment for that purpose, he must rise in his place at the proper time,
in order to avail himself of his privilege. On the 6th May
1853, the Speaker said, “According to the practice of the
house, when any honourable member moves the adjournment
of a debate, he is said to be in possession of the house: but it
is not on that account that the Speaker calls on that member
member who
of the debate.
1
and it was proposed by Mr. Speaker
(who was present) as an order of the
house, in such a case, to ask the
parties on which side they would
speak, whether with him that spake
next beforc, or against him, and the
party that spcakcíh against the last
speaker is to be heard first;" Mr.
Speaker Bromley's Note-Book.
1 Com. J. 205. 968.
2 100 Ib. 191.
3 135 Ib. 206. 232 Hans. Deb.
3rd Scr. 1902. 1917.
DEB.ITE.
347
when the question is put, on the resumption of the debate;
because unless he rises and addresses the chair, it is not the
duty of the Speaker to call upon him. It often happens,
indeed, that when a member moves the adjournment of a
debate, he does not take advantage of his privilege of opening
the debate, on the following night. If, however, he rises in
his place when the question is put, and another member rises
at the same time, he is entitled to precedence : but that
depends upon the member himself, who ought to rise in his
place, if he wishes to claim any privilege.”] But it has been
ruled that where a member has moved or seconded a motion
for the adjournment of a debate, and his motion has been
negatived, he is not entitled to speak again to the main
question ;' and that the member whose subsequent motion for
adjournment had been agreed to, was, therefore, entitled to
be called upon, on resuming the debate.3
When a debate has been adjourned, upon a Wednesday,
at a quarter before six, by virtue of the Standing Order, while
a member was speaking, he has been allowed to resume the
adjourned debate, and continue his speech. A member
having spoken upon the question that a bill be now read a
second time, without concluding with an amendment, cannot
afterwards move such an amendment, having been already
heard upon the original question.
1 126 Hans. Dob. 3rd Ser. 1243.
This rule has since been repeatedly
maintained by the Speaker, as in the
case of Mr. Warren, 9th Feb. 1858.
2 Mr. Beresford Hope and Mr.
Cavendish Bentinck, 15th and 16th
March 1869; 194 Hans. Deb. 3rd
Scr. 1451. 1497; 227 Ib. 1098; 232
Ib. 1341.
3 Galway Election, Sth August
1872 (Sir Colman O’Loghlen). 213
Hans. Deb. 3rd Ser. 761. On the
6th July 1874, Mr. Jenkins having
moved the adjournment of the de-
bate upon the second reading of the
Church Patronage (Scotland) Bill,
which was negatived, and Mr. An-
derson having moved the adjourn-
ment of the house, which was also
negatired, Mr. Cameron moved the
adjournment of the debate, which
was agreed to; and accordingly, on
the resumption of the debate, on the
13th July, the latter rose and was
called upon by the Speaker. See
also p. 363.
4 Hypothec (Scotland) Bill, 21st
July 1869 (Mr. Orr Ewing).
5 191 Hans. Deb. 3rd Ser. 1083.
318
DEBITE.
New
members.
where noticos
A new member who has not previously spoken, is generally
called upon, by courtesy, in preference to other members,
rising at the same time: but this privilege will not be con-
ceded unless claimed within the Parliament to which the
member was first returned.
Priority A difficulty sometimes arises where notices have been given
of amond-
of several amendments to a question, as on going into com-
ments given. mittee of supply. The member who rises first, after the
question has been proposed, is entitled to be heard: but the
members who have given notices of amendments are ordinarily
called, as far as possible, in the order in which they stand
upon the notice paper.2
Must speak to When a member is in possession of the house (as it is
the qucstion.
called), he has not obtained a 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,3 or upon a point of order. Whenever
he wanders from it, he is liable to be interrupted by cries of
question ;” and in the Commons, if the topics he has intro-
duced are clearly irrelevant, the Speaker acquaints him that
he must speak to the question. Thus, he has pointed out
that, upon a motion for the appointment of a Committee
upon the Game Laws, a member could not enter into a
criticism of the various provisions of certain bills before the
house, for the amendment of those laws;s nor, during the
debate upon any stage of a bill, is a member, who moves
the adjournment of the house, at liberty to discuss any matter
but reasons for such adjournment. The relevancy of an
argument is not always perceptible, and the impatience and
1 On the 25th March 1859, it was
claimed in vain for Mr. Beaumont,
who had sat in the provious Parlia-
mont.
2 163 Hans. Dob. 3rd Scr. 1424,
1486.
3 59 Ib. 507.
4. “If any man speak not to tho
mattor in question, tho Spoakor is to
moderato.” 18th May 1604, 1 Com.
J. 975.
0 195 Hans. Dob. 3rd Scr. 1718.
Standing Order, 28th November
1882.
? Soo tho colobratod dobato, 6th
May 1791, on the Quoboo Govern-
DEBATE.
349
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 neverthe-
less, when not mistimed, they often have the intended effect,
and discourage a continuance of the debate. When they are
immoderate and riotous, they not only disgrace the proceed-
ings of the house, but frequently defeat the object they are
intended to attain, by causing an adjournment of the debate.
Akin to irrelevancy is the frequent repetition of the same
arguments, by which the forbearance of the house is sorely
tried. 1 On the 25th January 1881, Mr. Speaker having
repeatedly called Mr. Biggar to order, who nevertheless
insisted upon pursuing the same line of argument, named
him as disregarding the authority of the chair; and Mr.
Biggar was accordingly suspended.?
Such aberrations from a proper argument have ever been Irrelevance or
repetition.
condemned as irregular. On the 14th April 1604, it was
agreed that “if any man speak impertinently or beside the
question in hand, it stands with the orders of the house for
Mr. Speaker to interrupt him ; and to have the pleasure of
the house, whether they will further hear him.”3 Again, on
the 17th April 1604, it was agreed for a general rule, that if
any superfluous motion or tedious speech be offered in the
house, the party is to be directed and ordered by Mr. Speaker.
And on the 31st March 1610,"it was conceived for a rule that
Mr. Speaker may stay impertinent speeches." In order to give
prompt and practical effect to this ancient and acknowledged
ment bill, in which Mr. Burko in-
sisted upon the relevancy of Paino's
Rights of Man, and the recent events
of tho French Revolution. 2 Lord J.
Russell's Life of Fox, 253.
1 210 Hans. Dob. 3rd Ser. 1662.
2 257 Hans, Dob. 3rd Ser. 1349.
3 1 Com. J. 172.
41 Ib. 948; Mr. Speaker Brom-
loy's Notc-book.
5 i Com. J. 423.
350
DEBATE,
rule, it was provided by Standing Order, 27th November
1882, that
“Mr. Speaker, or the Chairman of Ways and Means, may call the
attention of the House, or of the Committee, to continued irrelevance
or tedious repetition on the part of a member; and may direct the
member to discontinue his speech."
Debates on Considerable laxity had long prevailed in allowing irrelevant
motions for
adjournment. speeches upon questions of adjournment, which were regarded
as exceptions to the general rule. In 1849, the Speaker
endeavoured to enforce a stricter practice, and called upon
members to confine their observations upon such motions to
the question properly before the house, viz., whether the
house should adjourn or not. But the house was reluctant
to acquiesce in any limitation of the supposed privilege of
members, to speak upon every subject but that of the colour-
able question of adjournment. In moving an adjournment,
however, during a debate upon any question, it was necessary
that a member should confine his remarks to that question.3
But this restriction was found inadequate for ensuring the
rational conduct of debates, and on the 27th November 1882,
the following Standing Orders were made, in further restraint
of discussions upon questions of adjournment:-
" That when a motion is made for the adjournment of a debate, or of
the house, during any debate, or that the chairman of a committee do
report progress, or do leave the chair, the debate thereupon shall be
confined to the matter of such motion; and no member, having moved
or seconded any such motion, shall be entitled to move, or second, any
similar motion during the same debate.
" That if Mr. Speaker, or the chairman of a committee of the whole
house, shall be of opinion that a motion for the adjournment of a
debate, or of the house, during any debate, or that the chairman do
report progress, or do leave the chair, is an abuse of the rules of the
house, he may forthwith put the question thereupon from the chair."
Motions for the adjournment of the house, when there is
1 See Hans. Deb. 23rd and 26th
June, and 24th and 25th Aug. 1848.
2 See Hans. Deb. 5th Feb, and
22nd Feb. 1849; 102 Hans. Deb.
3rd Ser. 1100.
3 232 Hans. Deb. 3rd Ser. 1733.
JEBATE.
351
time.
no question under discussion, must be clearly distinguished
from similar motions during a debate. The former can have
no object but the discussion of some extraneous subject; the
latter has reference only to the adjournment of the question
then before the house.
Until the discontinuance of the weekly question of adjourn-
ment from Friday till Monday, in 1861, an inconvenient
latitude of discussion was permitted. Nor did the house
deprive members of this opportunity of raising general
debates, without an equivalent: but required the committee
of supply to be the first order of the day on Friday, when
there is the like freedom of discussion.
But though irrelevant discussions have been permitted on No amend-
certain questions of adjournment, it should be well understood missible to
that no amendment can be proposed to such questions unless question of
adjournment,
it relate to the time of adjournment. On Friday, 25th April except as to
1856, on the question of adjournment till Monday, a noble
lord rose to move an amendment relating to a day of thanks-
giving on the restoration of peace, when the Speaker acquainted
him that such an amendment was quite irregular; the only
amendment which could be moved being that the house shall
adjourn to some other day than Monday. On Tuesday, the
27th May 1856, it was ruled, that on the question " that the
house, at its rising, do adjourn till Friday,” an amendment
to leave out the words " at its rising," in order to insert the
word “now," was not admissible; the question “that this
house do now adjourn” being always put as a distinct ques-
tion, having no reference to the time at which it is proposed
that the house should meet again. Accordingly, as soon as
the question had been agreed to, a motion was made that this
house do now adjourn. No motion for the adjournment of
the house can be made, while a question for the adjournment
of the debate is under discussion. Nor will a question of
1 141 Hans. Deb. 3rd Ser. 1541;
and again, 242 Ib. 2076.
2 Privately.
3 111 Com. J. 221.
1 260 Hans. Deb. 3rd Ser. 1617.
352
DEBATE.
be discussed
privilege be allowed to be raised, upon a motion for the
adjournment of the house.1
Orders of the
Nor under cover of a question of adjournment, is it com-
day and
notices not to petent for a member to discuss the subject of any order of the
on question of day, as the house has appointed another time for its consi-
adjournment. deration; nor of any motion of which notice has been given. .
On Friday, the 7th March 1856, a member rose on the ques-
tion for adjournment till Monday, to call attention to the
Metropolis Local Management Bill, which stood as an order
of the day, for the same day. On proceeding to advert to
that bill, the Speaker interposed, and stated that it was highly
irregular to anticipate, in this manner, the discussion of the
order of the day, more particularly as the honourable member
had a notice on the paper to move the postponement of the
bill.? On Friday, 17th July 1857, on the question of ad-
journment till Monday, a noble lord raised a debate upon
the subject of a bill of which he had given notice for the
same evening; and being called to order, endeavoured to set
himself right by moving "that this house do now adjourn,
”
à course which, in no respect, corrected the irregularity.3
Again, on the 24th November 1882, the Speaker explained
that it was an established and fundamental rule of debate
that, on a motion for adjournment, a motion standing on the
Order Book could not be discussed, and that this rule was,
in no way, affected by the new Standing Order regulating
motions for adjournment,4 and this rule applies even when
no day has been fixed for a motion."
The same restraint is imposed on members, in debates on
going into committee of supply and ways and means, where
a similar latitude of discussion is otherwise permitted. On
the 5th June 1856, on the.question that the Speaker do leave
the chair to go into committee of supply, a discussion upon
1 154 Hans. Deb. 3rd Ser. 445.
2 140 Ib. 2037.
3 140 Ib. 1699. Sce also 176 IL.
1797 ; 185 Ib. 886; 187 Ib. 775 ; 189
Ib. 91 ; 210 Ib. 1815.
4 275 Hans. Deb. 3rd Ser. 26.
5 238 Ib. 1492.
DEBATE.
373
the Tenant Right Bill, which had been read a second time
and appointed for committee on a future day, was stopped by
the interposition of the Speaker. And the same rule has
been uniformly enforced in all later cases, whenever attempts
have been made to anticipate the discussion of motions or
bills already appointed for consideration.? In June 1863, Mr.
Osborne having given notice of an amendment to a motion
of Mr. Dillwyn, relative to the Church of Ireland, withdrew
that notice of amendment after the first night's debate, and
gave notice of it, as an independent amendment, on going
into supply. This course was obviously irregular, as antici-
pating the adjourned debate upon Mr. Dillwyn's motion; and
the matter was ultimately arranged by discharging the order
for resuming the adjourned debate; and the ground being
thus cleared, Mr. Osborne, on the 26th June, brought forward
his amendment on going into committee of supply.
On the 25th May 1875, the Speaker ruled that Mr. Dillwyn
could not bring on a motion, of which he had given notice,
concerning the exclusion of strangers; as an order of the day
had been appointed for the ensuing Monday, for resuming
an adjourned debate upon the first of three resolutions, of
which the two latter related to the same subject. These
resolutions were comprised in the same order of the day, and
their discussion would be anticipated, if the present notice
were proceeded with.3
It is not regular to discuss the merits of a bill, or other Restraints on
order of the day, upon a motion for its postponement. Other- bills.
wise, the merits of a bill might be debated not only upon its
several stages, but whenever its postponement is proposed.
And, further, the discussion of each stage might be anti-
cipated, by resuming debates before the day appointed for its
consideration by the house. On 1st June 1875, a member
discussion of
1 142 Hans. Dob. 1026.
2 153 Hans. Deb. 3rd Ser. 333;
157 Ib. 116. 1804; 159 Ib. 349;
165 Ib. 799 ; 167 Ib. 1139 ; 189 Ib.
91. 96; 210 IV. 1815; 211 Ib. 1281;
212 Ib. 1430 ; 219 Ib. 1054; 238
Ib. 1492; 239 Ib. 1249 ; 241 Ib.
807; 242 Ib. 1443.
3 224 Ib. 915.
* 240 Ib. 8.38.
P.
A A
354
DEBATE.
having moved the postponement of the second reading of a
bill, from the next day until a more distant day, another
member rose to move that the order be discharged; but upon
the Speaker representing the inconvenience and impropriety
of such an amendment, which would raise a debate upon the
merits of the bill, when its postponement only was in question,
the amendment was not proceeded with. Nor is it regular to
anticipate, by a question, the discussion of a motion of which
notice has been given, or of any bill already pending?
The same rule has been applied to restrain the discussion
of a bill which has been passed, and sent to the Lords. On
the 4th April 1876, it being proposed that a motion of Mr.
Fawcett, for an address to the Crown, on the Royal Titles,
should be discussed on Friday next, the Speaker pointed out
that the Royal Titles Bill, which had passed the Commons,
stood for third reading, in the Lords, on that day, and that
it would be irregular to discuss the proposed motion until the
bill had been passed by the Lords. The motion was accord-
ingly appointed for the following Monday. ?
It is a rule that should always be strictly observed, that
no member may speak except when there is a question
already before the house, or the member is about to conclude
with a motion or amendment. The only exceptions which are
admitted are, 1, in putting questions to particular 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. In both houses questions are constantly put to ministers
of the Crown 4 concerning measures pending in Parliament,
or public affairs and matters of administration; and to par-
ticular members who have charge of a bill, or who have given
notices of motions, or are otherwise concerned in some busi-
ness before the house. A question may be asked concerning
on the 9th February 1721, when Lord
Cowper asked a question of the admi.
nistration, and was answered by the
4 Perhaps the earliest example of Earl of Sunderland. 7 Parl. Hist. 709.
a question to ministers is to be found 5 192 Hans. Deb. 3rd Ser, 717.
When no
question is
before the
house.
Questions to
other mem-
bers.
1 224 Hans. Deb. 3rd Ser. 1235.
2 228 Ib. 1557. 1764.
3 Ib. 1183.
DEBATE.
355
the intentions of the Government, in any matters of legisla-
tion or administration, but not as to their abstract opinions
upon general questions of policy. When a question affects
the character of a member, or reflects upon the conduct of
other persons, it is more properly the subject of a motion
which can be conveniently debated. Notice is usually given
of such questions in the Votes,, unless they relate to some
matter of urgency, or to the course of public business. But
no notice can be given of a question to be addressed to the
Speaker, who can only be properly-appealed to, on points of
order, as they arise in debate, or otherwise directly concern
the proceedings of the House. All questions should be
limited, as far as possible, to matters immediately connected
with the business of Parliament, or administration ;5 and
should not involve opinion, argument, inference, imputations,
irony, or hypothetical cases; nor are any facts to be stated,
unless they be necessary to make the question intelligible,
and can be authenticated. An answer should be confined to
Of late years, questions have been
permitted to the chairman, or other
member of the Metropolitan Board of
Works, as being concerned in the ad-
ministration of the metropolis. Hans.
Deb. 14th March 1859; 12th May
1864; 27th April and 14th May 1868;
13th May 1869; 22nd June 1871; 14th
March 1872. 209 Hans. Deb. 3rd Ser.
1954; 17th February 1878; Mr.
Speaker Brand's Note-Book. Also
to the chairman or other members
of royal commissions; 18th Feb.,
12th March 1868 ; 12th April 1869 ;
15th Feb., 11th April, 30th June
1870; 28th March and 25th May
1871. Also to trustecs of the British
Museum ; 26th April 1869; 6th and
16th May 1870; 234 Hans. Deb.
3rd Ser. 1239; 233 Ib. 684.
1 204 Hans. Deb. 3rd Ser. 1764.
2 See Mr. Speaker's observations,
210 Hans. Deb. 3rd Ser. 39; 213
Ib. 554.
3 It was not until 1849 that a
special place was assigned to such
questions in the notice paper; and I
can find no example of a question
being printed at all before 1835 (27th
February and 25th March 1835).
4 155 Hans. Deb. 3rd Ser. 870;
198 Ib. 368 ; 261 Ib. 695; 271 Ib.
1622.
6 See Speaker's ruling, 22nd Feb.
1849; 102 Hans. Deb. 3rd Ser. 1100;
and 155 Ib. 1345; and 22nd May
1862; 166 Ib. 2027; 29th April 1864;
174 Ib. 1914; 17th Dec. 1878.
6 Hans. Deb. 13th Dec. 1847. See
also Hans. Deb. 12th June, 1853 (Sir
F. Baring); 4th, 11th and 18th May
1855; 17th July 1857; 25th August
1860; 6th May 1864 ; 175 Hans.
Deb. 3rd Ser. 101; 203 Ib. 262;
204 Ib. 176; 206 Ib. 1602; 208 Ib.
781. 783. 842; 210 Ib. 1088; 247
Ib. 430; 270 Ib. 1132.
ta2
356
DEBATE.
the points contained in the question, with such explanation
only as will render the answer intelligible, without discussion:1
but a certain latitude is sometimes permitted, by courtesy, to
ministers of the Crown.2 It is irregular to refer to past
debates of the same session, either in a question or answer,
but a departure from this rule has been occasionally per-
mitted, in order to clear up misunderstandings. When a
question has been fully answered, a member will not be
allowed to repeat it. A minister may decline to answer
a question, in the interests of the public service. Where
notice has been given of an irregular question, it is either
corrected at the table,-if possible, in conference with the
member himself,—or wholly omitted by direction of the
Speaker. On the 24th May 1878, Dr. Kenealy complained
of this practice as a breach of privilege, obstructing the
freedom and independence of members : but its propriety
was fully explained by the Speaker, and supported in debate
as being in accordance with the rules of the house.5
The adjournment of the house had often been moved, in
putting questions, but such a course was generally reserved
for occasions of urgency ;6 and, if otherwise used, was met
by the house with impatience and disfavour, and by grave
remonstrances from the chair.? And, at length, the incon-
venience became so serious that the following Standing
Order was made, on the 27th November 1882:-
Motions for " That no motion for the adjournment of the house shall be made
adjournment until all the questions on the notice paper have been disposed of, and
before public
business.
no such motion shall be made before the orders of the day, or notices
of motions have been entered upon, except by leave of the house,
unless a member rising in his place shall propose to move the adjourn-
ment, for the purpose of discussing a definite matter of urgent public
importance, and not less than forty members shall thereupon rise in
1 240 Hans, Deb. 3rd Ser. 1617;
241 Ib. 964.
2 161 Ib. 497 ; 174 Ib. 1423; 209
Ib. 466 ; 210 Ib. 153. 596.
3 210 Ib. 251.
4 225 Ib. 792, 952. 1142; 235 Ib.
1796.
5 240 Ib. 643; 270 Ib. 1409 ; see
also supra, p. 295.
6 196 Ib. 19.
7 233 Ib. 978; 234 Ib. 33. 1301; 237
Ib..1539; 238 Ib. 1951; 241 Ib. 130;
Mr. Speaker Brand's Note-Book, 14th
June 1972; and 12th April 1877.
DKRITE.
357
their places to support the motion; or unloss, if fower than forty
members and not less than ten shall thereupon rise in their places, the
house shall, on a division, upon question put forthwith, determine
whether such motion shall be made."
When members have since availed themselves of this Precedents.
Standing Order, the Speaker has desired them to state, in
writing, the matter of urgent public importance, which they
desire to discuss, before the pleasure of the house is taken ;
and it is for the house itself to judge whether the matter so
stated be of such urgent public importance as to warrant the
setting aside of the other business, appointed for the day, in
favour of a motion for adjournment. All rules restricting
irregular discussions upon motions for adjournment, apply
equally to motions when made under this Standing Order.2
If less than forty members rise in their places in support
of the adjournment, the house will proceed at once to the
orders of the day, or other business, unless ten members
should then rise and claim a division.s
Sometimes when an answer has been given, further ques-
tions are addressed to the minister upon the same subject, but
no observations or comments are then permitted to be made.
In 1880, the practice of reading questions was discontinued, Questions
and members have been contented to refer to the number of briefly put.
the question on the Notice Paper. And on the 4th July
1881, it was suggested that notices of questions should not
be read, but brought to the table.
Ini the Lords, a greater license of debate is permitted, in
putting and answering questions, and commenting upon
them, without any question being before the house. In
1867, the Lords' committee on public business, while recog-
nizing and approving this practice, recommended that notice
of questions should be given in the minutes, except in cases
1 137 Com. J. 515, 516. 518, 519;
Hans. Deb, 14th, 15th, 23rd, 24th,
28th and 30th Nov. 1882.
2 275 Hans. Deb. 3rd Ser. 26.
3 275 Ib. 409.
4 211 Ib. 1994; 212 Ib. 298. 1624.
5 253 Ib. 1920; 255 Ib. 311; Mr.
Speaker Brand's Note-Book.
6 262 Hans. Deb. 3rd Ser. 1966.
7 Hans. Deb. 14th Dec. 1847,
358
DEBATE.
Personal
explanation.
of urgency. And on the 2nd April 1868, it was resolved,“ That
it is desirable when it is intended to make a statement or raise
a discussion, on asking a question, that notice of the question
should be given in the orders of the day and notices.”l And
under these conditions, important debates are frequently raised.
If questions are put to ministers, when a question for
adjournment has been proposed, a minister will not be
permitted to answer a second question, as he has already
spoken. Sometimes replies have been given to questions
addressed to ministers on a previous day, without a repeti-
tion of the question.3
2. In regard to the explanation of personal matters, the
house is usually indulgent; and will permit a statement of
that character to be made without any question being before
the house. General arguments, however, or observations
beyond the fair bounds of explanation, or too distinct a
reference to previous debates, ought not to be used by the
member who is permitted to speak, under these circum-
stances :4 but if his object be clearly confined to the removal
of any impression concerning his own conduct or words, he
is generally permitted to proceed without interruption. This
indulgence, however, should be granted with caution ; for,
unless discreetly used, it is apt to lead to irregular debates.
In one case personal explanations were permitted to be
made by one member, on behalf of another who was abroad.
5
1 100 Lords' J. 103.
2 Hans. Deb. 11th Feb. 1853, &c.
3 Ib. 17th May 1852 (Frome Vicar-
age).
4 Lord C. Paget, 14th March 1864;
173 Hans. Deb. 3rd Ser. 1913.
5 See Hans. Deb. 10th and 12th
Feb. 1857; 16th April 1858; 4th Juno
1863 (Holyhead Packets). Lord
Castlereagh, Lord J. Russell, and
Mr. Disraeli, 19th April 1849; also
cases of Mr. Keogh, Hans. Deb. 16th
June 1853 ; of Mr. Stuart Wortley,
17th March, and of Mr.T.Duncombe,
18th March 1859; Lord Clarence
Paget and Lord Robert Montagu,
23rd Feb. 1863; Mr. Sheridan and
the Chancellor of the Exchcquer,
17th March 1864 ; 174 Hans. Deb.
3rd Ser. 191; Mr. Lowe, Lord R.
Cecil, Mr. Disraeli and Mr. Walter,
18th April 1864; 174 Ib. 1203. Mr.
Baillie Cochrane, the Chancellor of
the Exchequer, and Mr. Roebuck,
28th March 1865 ; 178 Ib. 372, &c.
( Mr. Bright, 16th March 1860, for
Mr. Cobden.
DEBATE.
359
Explanations have also been allowed on behalf of gentlemen
whose conduct had been reflected upon in debate. 1
It is a rule strictly to be observed in both houses, that no To speak
member shall speak twice to the same question, except, 1st, to
once only.
explain some part of his speech which has been misunder-
stood ; 2ndly, in certain cases, to reply at the end of a
debate; and 3rdly, in committee.
1. It is an ancient order of the House of Lords, that- To explain.
“No man is to speak twice to a bill at one time of reading it, or to
any other proposition, unless it be to explain himself in some material
part of his speech : but no new matter, and that not without the leave
of the house first obtained. That if any lord stand up and desire to
speak again, or to explain himself, the lord keeper is to demand of the
house first whether the lord shall be permitted to speak or not; and
that none may speak again to the same matter, though upon new
reason arising out of the same; and that none may speak 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 the 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, or to reply to other members, he is called
to order by the house or by the Speaker, and is desired by the
latter to confine himself to simple explanation. But here,
again, a greater latitude is permitted in cases of personal ex-
planation, where a member's character or conduct has been
impugned in debate.
The proper time for explanation is at the conclusion of the Proper time
for explana-
speech which calls for it: but it is a common practice for the tion.
4
1 Case of Dr. Beke, 29th Nov.
1867; 190 Hans. Deb. 3rd Ser. 422;
case of Mr. Reed, 210 Ib. 403.
2 3 Lords' J. 590. Lords' S. O.
No. 25.
3 165 Hans. Deb. 3rd Ser. 1032;
167 Ib. 1216. Mr. Lowe and Lord
R. Cecil, 13th May 1864; 175 Hans.
Deb. 3rd Ser. 462 ; 223 Ib. 367.
1009; 226 Ib. 525. 567; 231 Ib.
301; 241 Ib. 332; 242 Ib. 1709.
4 15th June 1846 (Sir R. Peel and
Mr. Disraeli).
360
DEBATE.
member desiring to explain, to rise immediately the state-
ment is made to which his explanation is directed, when, if
the member in possession of the house gives way and resumes
his seat, the explanation is at once received: but if the mem-
ber who is speaking declines to give way, the explanation
cannot then be offered.1
A second speech has been allowed to a minister, who had
spoken early in the debate, in answer to a question which
had rendered a ministerial explanation necessary," or to
answer a question addressed to him after he had spoken ;3
and also to members who had merely spoken upon an inci-
dental issue, and not upon the main question.
2. A reply is only allowed, by courtesy, to the peer or
member who has proposed a substantive 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, or to a select committee, or of a motion for referring
a bill to a committee specially constituted, and enlarging its
terms of reference, nor to the mover of any amendment, or
of the previous question, which is in the nature of an amend-
ment. Under these circumstances, 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
Reply.
I See explanation of this rule as
stated by the Speaker, 24th Nov.
1819; 41 Hans. Deb. 157. 27th
March 1860, Mr. Gladstone and Mr.
Whiteside; 157 Hans. Deb. 3rd Ser.
1407. Mr. Gladstone and Mr. New.
degate, 27th May 1861; 163 Ib. 83.
Mr. Denman and the Chancellor of
the Exchequer, 19th May 1865.; 179
Ib. 572. Mr. Maguire and Sir R.
Peel, 11th May 1866; 183 Ib. 800.
Mr. Lawson and Mr. Gathorne
Hardy, 22nd May 1868; 192 Ib.
749; 208 Ib. 343. 1190 ; 213 Ib. 728.
2 Lord J. Russell, 3rd Feb. 1852;
119 Hans, Deb. 3rd Ser. 88. 153.
3 The Attorney General, 8th April
1864 ; 174 Hans. Deb. 3rd Ser. 695.
4 Government Annuities Bill, 7th
March 1864 (the Chancellor of the
Exchequer and Mr. H. B. Sheridan);
173 Hans. Deb. 3rd Ser. 1549.
5 186 Hans. Deb. 3rd Ser. 1443.
6 Conventual and monastic institu-
tions, 9th May 1870 (Mr. Matthews).
7 Charing Cross and Victoria Em-
bankment Bill, 1873 (Lord Elcho).
8 174 Hans. Deb. 3rd Ser. 2022;
240 Ib. 1527.
9 8th Feb. 1858 (Operations in
India, Mr. Disraeli).
DEBITE.
361
in the debate. Formerly a member who had moved an order
of the day, or seconded a motion, was precluded from after-
wards addressing the house upon the same question, or was
heard merely by the indulgence of the house :1 but of late
years, the option of speaking at a subsequent period of the
debate has been conceded, whenever the moving or seconding
is confined to the formality of raising the bat.2 But in
moving an amendment, a member cannot avail himself of
this privilege, as he must rise in his place to move an
amendment, and thus cannot avoid addressing the house,
however shortly. And as a member who moves an amend-
ment cannot speak again, so a member who speaks in
seconding an amendment, is equally unable to speak again
upon the original question, after the amendment has been
withdrawn, or otherwise disposed of. In both cases, the
members have already spoken while the question was before
the house, and before the amendment had been proposed
from the chair. For the same reason, a member who has
addressed the house in moving the second reading of a bill,
cannot move the adjournment of the debate, unless an
amendment has been since proposed. In some cases the
indulgence of the house has been extended so far as to allow
an explanatory reply, on questions which do not come within
the ordinary rules of courtesy. A reply is permitted upon
a substantive motion for an adjournment, but is never
allowed upon a motion for adjournment to supersede a
question.
3. In a comunittee of the whole house the restriction upon In committee.
1 28th Feb. 1821 ; 4 Hans. Deb.
N. S. 1013.
2 19th March 1872; 210 Hans.
Deb. 3rd Ser. 304.
3 Mr. Bernal Osborne, 21st July
1851; 118 Haus. Deb. 3rd Ser. 1147.
1163. Mr. Lowe, 11th June 1855 ;
138 Ib. 1300. 1756.
4 237 Ib. 1532; 240 Ib. 123; 241
Ib. 1311.
5 227 Ib. 1659.
6 Hans. Deb. Ist March 1844 (Mr.
T. Duncombe's amendment). 5th
July 1855 (Police in Hyde Park).
139 Hans. Deb. 3rd Ser. 463. 17th
March 1857; 144 Ib. 2398.
7 5th Feb. 1858. 4th April 1859
(Ministerial explanations). 11th
April 1867; 186 Hans. Deb. 3rd
Ser. 1505; 207 Ib. 1350; 210 Ib. 1846;
17th Dec, 1878, &c.
362
DEBITE.
New question.
question,"3
speaking more than once is altogether removed, as will be
more fully explained in speaking of the proceedings of com-
mittees. 1
The adjournment of a debate does not enable a member
to speak again upon a question, when the discussion is re-
newed 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
or an amendment, members are at liberty to
speak again ; as the rule applies strictly to the prevention of
more than one speech 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:
but a member who has already spoken to a question, may not
rise again to move an amendment, or the adjournment of the
house or of the debate, or any similar question, though he
may speak to these new questions when proposed by other
members. Then a member has moved the adjournment of
a debate, which is negatived, he has forfeited his right to
speak upon the main question, or to move an amendment.4
For the same reason, a member who has moved an amend-
ment, which has been negatived, cannot speak to the original
question, having already spoken to that question, in moving
that amendment.5 A member speaking to a question of
order, must confine himself to that question, and may not
refer to the general tenour of a speech. So also a member,
who has moved or seconded the adjournment of a debate,
may not afterwards rise to move or second the adjournment
of the house, having already spoken in the debate. On the
17th June 1870, no less then ten divisions took place upon
questions of adjournment, in order to defeat the Clerical
Disabilities Bill. On this occasion, the rule which prevents a
1 Chapter XIII.
2 1 Com. J. 245.
3 65 Hans. Deb. 3rd Ser. 826.
1 Case of Mr. Shaw, on the Address,
5th Feb. 1580, who having given
notice of an amendment, moved the
adjournment of the debate, which was
negatived, and so forfeited his right
to move the amendment.
5 190 Hans. Deb. 3rd Ser. 674 ;
211 Ib. 870; 212 Ib. 1118.
6 195 Ib. 2008.
ORDER IN DEB.ITE.
363
1
debate.
member, who has already moved or seconded a motion for
adjournment, from making another similar motion,-or in
other words which prohibits a member from speaking twice
to the same question,—was strictly enforced ; and as the
minority was reduced to 21, it happened that not more than
six members of that party were in a condition to move
further adjournments. Hence, if the contest had been
continued, the force of the minority would have been
exhausted by three more divisions. At this period, however,
the struggle was brought to a close : a division was taken on
the main question, and the house adjourned at a quarter
before four in the morning. Further restraints have been
imposed upon such proceedings as these, by recent Standing
Orders, already referred to.
For preserving decency and order in debate, various rules Order in
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 violation
of these rules any member may notice, either by a cry of
“ order," or by rising in his place, 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 inter-
rupts a member, and causes disturbance; but it is often
practised with good effect : it puts the member who is irre-
gular in his conduct upon his guard, arouses the attention of
the house and the Speaker, and prevents a speech to order, a
reply, and perhaps an 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.
The rules for the conduct of debates divide themselves into Rules for
two parts, viz. : I., such as are to be observed by members
speaking.
addressing the house; and, II., those which regard the
behaviour of members listening to the debate.
I Supra, p. 353.
members
364
ORDER IN DEB.ITE.
Referring to
prior debates.
I. (1) A member, while speaking to a question, may not
allude to debates of the same session upon any question or
bill not then under discussion; (2), nor speak against, or
reflect upon, any determination of the house, unless he in-
tends to conclude with a motion for rescinding it; (3), nor
allude to debates in the other house of Parliament; (4), nor
utter treasonable or seditious words, or use the Queen's name
irreverently, or to influence the debate; (5) nor speak
offensive and insulting words against the character or pro-
ceedings of either house ; (6), nor against particular parties
or members of the house, in which he is speaking : to which
may be added (7), nor abuse the rules of the house in order
to obstruct public business. A few words will suffice to
explain the object and application of each of these rules.
(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 30th 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 of the house. The Speaker said, " That rule applied in
all cases : but where a member had a personal complaint to
make, it was usual to grant him the indulgence of making
it.” And again on the 7th March 1850, he said, “The
house is always willing to extend its indulgence, when an
1 See Hans. Deb. 28th Feb. 1845, Hans. Deb. 3rd Ser. 749; 238 Ib.
where Mr. Roche had come from
Ireland on purpose to ask Mr. Roe- 2 59 Ib. 486. See also 65 Ib. 642,
buck a question, but was stopped by 26th July 1842.
Mr. Speaker; 7th August 1876 ; 231
1403.
ORDER IN DEBATE.
365
honorable member wishes to clear up any misrepresentation
of his character: but that indulgence ought to be strictly
limited to such misrepresentations, and ought not to extend
to any observations other than by way of correction.”ı
Again, on the 3rd March 1856, a noble lord was allowed to
refer to a former debate by way of personal explanation, but
directly he proposed to introduce new matter he was stopped
by the Speaker, with the general acquiescence of the house;?
and the same rule was explained and enforced on the
26th February 1858, on the 4th June 1863, and on other
occasions. Nor is a member allowed to refer to a speech
made in a committee of the whole house. This rule, how-
ever, does not apply to debates upon different stages of a
bill; and after the passing of an act, allusions have been
allowed to debates during its progress, while discussing a
proclamation issued under that act. And upon a motion for
practically rescinding a resolution of the house, reference has
been permitted to the debate upon that resolution. There
appears, however, to be a technical difficulty in the strict
enforcement of the rule in committee, where a debate in
another committee is referred to, as one committee is not
supposed to be cognisant of the debates of another.
A member may not read any portion of a speech, made in Reading from
the same session, from a printed book or newspaper. This newspapers.
rule, indeed, applies strictly to all debates whatsoever, the
publication of them being a breach of privilege; but of late
years it has been relaxed, by general acquiescence, in favour
S
1 7th March 1850 (Mr. Campbell
and Mr. B. Osborne), 109 Hans.
Deb. 3rd Ser. 462. See also 30th
March 1846 (Sir J. Graham and
Mr. Shaw), 85 Ib. 300.
2 140 Hans. Deb. 3rd Ser. 1708.
3 Sir R. Bethell, Mr. Scott, and
Mr. Warren; 149 Hans. Deb. 3rd
Ser. 10-14.
4 235 Ib. 503. 1192; 236 Ib. 36.
5 154 Ib. 985.
6 Royal Titles Act, May 11th,
1876; 129 Hans. Deb. 3rd Ser. 374.
Mr. Speaker Brand's Note-Book.
7 Controller of the Stationery Office,
1877; 235 Hans. Deb. 3rd Ser. 1703.
s In Committee of Supply, Edu-
cation Vote, 12th June 1856. 142
Hans. Deb. 1354.
9 203 Ib. 1613, &c.
172.
366
ORDER IN DEBATE.
of speeches delivered in former sessions. It is also irregular
to read extracts from newspapers, letters, or other documents
referring to debates in the house in the same session.?
Indeed, until 1840, the reading of any extracts from a
newspaper, whether referring to debates or not, had been
restrained as irregular. On the 9th March 1840, the Speaker
having called a member to order, who was reading from a
newspaper, as part of his speech, Sir Robert Peel said, it
would be drawing the rule too tight if members were re-
strained from reading relevant extracts from newspapers;
and after a debate, the member proceeded to read from the
newspaper, with the acquiescence of the house. And on the
14th February 1856, when a member was called to order for
reading from a newspaper, the Speaker stated that, on a
former occasion when he had attempted to enforce this rule,
he had been overruled by the house. And again, on the
9th March 1857, in Committee of Supply, the chairman,
adverting to the preceding cases, decided that this rule could
no longer be enforced.5
Reflecting (2.) The objections to the practice of referring to past
of the house. debates apply, with greater force, to reflections upon votes of
the house; for these not only revive discussion upon questions
already decided, but are also uncourteous to the house, and
irregular in principle, inasmuch as the member is himself in-
cluded in, and bound by, a vote agreed to by a majority.
It is very desirable that this rule should be observed; but
its enforcement is a matter of considerable difficulty, as
6
1 On the 17th May 1794, Sir W.
Young objected to the reading of a
speech of Sir R. Walpole: but the
Speaker decided it to be regular,
drawing a distinction between the
speeches of dead and living mem-
bers. 31 Parl. Hist. 527.
2 27th Feb. 1846 (Mr. Ferrand).
84 Hans. Deb. 3rd Ser. 232; also
154 Hans. Deb. 3rd Ser. 1200;
162 Ib. 1885; 168 Ib. 1198 ; 183
Ib. 826; 191 Ib. 2030; 206 Ib.
1330 ; 208 Ib. 1604 ; 241 Ib. 331.
3 52 Ib. 1063-1065.
4 140 Ib. 764.
5 144 Ib. 2106.
6 2 Hatsell, 234, 12. See also 185
Hans. Deb. 3rd Ser. 1122 ; 186 Ib.
885.
ORDER IN DEBATE.
367
debates in the
principles are always open to argument, although they may
have been affirmed or denied by the house.
(3.) The rule that allusions to debates in the other house Allusions to
are out of order, is convenient for preventing fruitless argu- other house.
ments between members of two distinct bodies who are unable
to reply to each other, and for guarding against recrimination
and offensive language, in the absence of the party assailed :
but it is mainly founded upon the understanding that the
debates of the other house are not known, and that the house
can take no notice of them. Thus when, in 1641, Lord
Peterborough complained of words spoken concerning him by
Mr. Tate, a member of the Commons, “their lordships were
of opinion that this house could not take any cognisance of
what is spoken or done in the House of Commons, unless it
be by themselves, in a parliamentary way, made known to
this house."1 The daily publication of debates in Parliament
offers a strong temptation to disregard this rule. The same
questions are discussed by persons belonging to the same
parties in both houses, and speeches are constantly referred to
by members, which this rule would exclude from their notice.2
The rule has been so frequently enforced, that most members,
in both houses, have learned a dexterous mode of evading it,
by transparent ambiguities of speech ; and although there are
few orders more important than this for the conduct of de-
bate, and for observing courtesy between the two houses, none,
perhaps, are more generally transgressed. An ingenious
1 4 Lords' J. 582.
2 See Lords' Debates, 3rd April
1845 (Lord Ashburton); Commons'
Debates, 4th April 1845 (Lord J.
Russell), on the Ashburton Treaty;
Commons' Debates (Mr. Ffrench),
21st and 23rd July 1845; and Lords'
Debates (Lord Brougham), 22nd and
24th July 1845, on the Irish Great
Western Railway Bill; Lords' De-
bates, 27th June 1848 (Earl Grey);
and Commons' Debates, 2nd April
1852 (Mr. Cobden); Lords' and Com-
mons' Debates, 26th Feb. and ist
March 1858 (Sir R. Bettell and Lord
Campbell), on the Conspiracy Bill,
139 Hans. Deb. 3rd Ser. 4, 69;
and 177 Ib. 1557; 183 Ib. 1098, as
examples of the violation of this
rule. See also 191 Ib. 1786; 229 Ib.
1630.
368
QUEEN'S XAVE USED).
used in de-
bate.
orator may break through any rules, in spirit, and yet ob-
serve them to the letter.1
Allusions to The rule applies to debates only, and not to reports of com-
reports or
proceedings. mittees of the other house. On the 9th June 1848, objection
was taken that a member was quoting from a report made to
the IIouse of Lords, which had not been communicated to the
Commons : but the Speaker decided that the member was not
out of order.2 Nor can the rule be extended to the votes or
proceedings of either house, as they are recorded and printed
by authority.3
Queen's name (4.) Treasonable or seditious language, or an irreverent use
of her Majesty's name would be rebuked by any subject out
of Parliament; and it is only consistent with decency, that
no member of the legislature should be permitted openly to
use such language, in his place in Parliament. Members
have not only been called to order for such offences, but
have been reprimanded, or committed to the custody of the
serjeant, and even sent to the Tower.f
The irregular use of the Queen's name to influence a deci-
a debate.
sion of the house is unconstitutional in principle, and incon-
sistent with the independence of Parliament. Where the
Crown has a distinct interest in a measure, there is an autho-
rised mode of communicating her Majesty's recommendation
or consent, through one of her ministers:5 but her Majesty
cannot be supposed to have a private opinion, apart from that
of her responsible advisers; and any attempt to use her name
in debate to influence the judgment of Parliament, would be
immediately checked and censured.
To influence
6
1 See discussions, 29th May 1868;
192 Hans. Dob. 3rd Ser. 1077; 208
Ib. 1682; and Speaker's ruling, 9th
June 1876; 231 Ib. 749; 237 Ib.
1262; 242 Ib. 228.
2 Hans. Deb. 9th June 1848.
3 Since 1860, the Lords' Minutes
have been placed upon the table of
the House of Cominons, for refer-
ence. 159 Hans. Deb. 3rd Ser. 856.
41 Com. J. 50, 51. 104. 333. 335.
866; 9 Ib. 760; 15 Ib. 70; 18 Ib. 49.
54. 653; 7 Hans. Parl. Hist. 511 ;
D'Ewes, 41. 244; Hans. Deb. 3rd
March 1881 (Mr. Dillon); Mr. Speaker
Brand's Note-Book.
6 See Chapter XVII.
61 Com. J. 697.
QUEEN'S NAME USED).
369
On the 12th November 1640, it was moved that some
course might be taken for preventing the inconvenience of
his Majesty being informed of anything that is in agitation
in this house before it is determined. In the remonstrance
of the Lords and Commons to Charles I., 16th December
1641, it was declared,
" That it is their ancient and undoubted right and privilege that
your majesty ought not to take notice of any matter in agitation or
debate in cither of the houses of Parliament, but by their information
or agreement; and that your majesty ought not to propound any
condition, provision, or limitation, to any bill or act in debate or
preparation in cither house of Parliament, or to manifest or declare
your consent or dissent, approbation or dislike, of the same, before it
bo presented to your majesty in due course of Parliament,” &c.?
On the 17th December 1783, the Commons resolved,
" That it is now necessary to declare, that to roport any opinion
or pretended opinion of his majesty, upon any bill or other proceeding
depending in either house of Parliament, with a viow to influence the
votes of the members, is a bigb crime and misdemeanor, derogatory to
the honour of the Crown, a breach of the fundamental privileges of
Parliament, and subversive of the constitution of this country.”3
On the 26th February 1808, in the debate on Mr. Canning's
motion for papers relating to Denmark, Mr. Tierney said "the
right hon. gentleman had forfeited the good opinion of the
country, the house, and, as I believe, of his sovereign.” This
the Speaker held to be such an introduction of the personal
opinion of the sovereign into debate, respecting the conduct
of a member of the house, as justified Mr. Tierney's being
called to crder. On the 19th March 1812, complaints were
made, in the House of Lords, of the use of the Prince Regent's
name in debate.5
The rule, however, must not be construed so as to exclude Explanations
a statement of facts, by a minister, in which the Queen's
name may be concerned. In the debate on the Foreign
Loans Bill, 24th February 1729, Sir R. Walpole stated that
of the rule.
1 2 Com. J. 27.
2 2 Ib. 344.
0 39 Ib. 812.
4 10 Hans. Deb. 757 ; 2 Lord
Colchester's Diary, 139.
5 22 Hans. Deb. 51 et seq.
1.
1} ]
370
QUEEN'S NAME USED.
On the 9th May 1843
he was “provoked to declare what he knew, what he had the
king's leave to declare, and what would effectually silence the
debate." Upon which his statement was called for, and he
declared that a subscription of 400,0001. was being raised in
England for the service of the emperor. When he sat down,
Mr. Wortley Montagu complained that the minister had in-
troduced the name of the king to "overbear their debates :"
but he replied, that as a privy councillor he was sworn to keep
the king's counsel secret, and that he had therefore asked his
majesty's permission to state what he knew, but which, with-
out his leave, he could not have divulged ; and thus the
matter appears to have ended, without any opinion being ex-
pressed by the Speaker, or by the house.
of her Majesty I am authorised to repeat the declaration
made by King William,” in a speech from the throne, in
reference to the legislative union between Great Britain and
Ireland. On the 19th, an objection was raised to these ex-
pressions: but the Speaker, after noticing the irregularity of
adverting to former debates, expressed his own opinion,
“That there was nothing inconsistent with the practice of the house
in using the name of the sovereign in the manner in which the right
hon. baronet had used it. It is quite true that it would be highly out
of order to use the name of the sovereign in that house, so as to en-
deavour to influence its decision, or that of any of its members, upon
any question under its consideration : but he apprehended that no
expression which had fallen from the right hon. gentleman could be
supposed to bear such a construction."
And Lord John Russell explained, that “the declaration
of the sovereign was made by the right hon. baronet's advice,
because any personal act or declaration of the sovereign ought
not to be introduced into that place ;" to which Sir R. Peel
added, “ that he had merely confirmed, on the part of her
Majesty, by the advice of the government, the declaration
made by the former sovereign." On the 2nd May 1876, the
1
1 7 Chandler's Debates, 61. 64.
2 69 Hans. Deb. 3rd Ser. 24. 574.
WORDS AGAINST PARLIAMENT.
371
1
premier, Mr. Disraeli, said he had her Majesty's authority to
make a statement on her part: but, as the name of the
sovereign could not be introduced in debate, it rested with
the house whether he should proceed. The Speaker observed
that “if the statement related to matters of fact, and was not
made to influence the judgment of the house, he was not
prepared to say that, with the indulgence of the house, her
Majesty's name might not be introduced.” Mr. Disraeli then
proceeded to make a statement, on the authority of the Queen,
in contradiction to Mr. Lowe, that her Majesty had never
made proposals to any minister for a change of the royal
titles.
(5.) It is obviously unbecoming to permit offensive ex- Words
pressions against the character and conduct of Parliament to liament, or
against Par-
be used without rebuke; for they are not only a contempt of either house.
that high court, but are calculated to degrade the legislature
in the estimation of the people. If directed against the other
house, and passed over without censure, they would appear
implicate one house in discourtesy to the other; if against the
house in which the words are spoken, it would be impossible
to overlook the disrespect of one of its own members. Words
of this objectionable character are never spoken but in anger;
and, when called to order, the member must see the error
into which he has been misled, and retract or explain his
words, and make a satisfactory apology. Should he fail to
satisfy the house in this manner, he will be punished by a
reprimand, or by commitment. It is most important that
the use of such words should be immediately reproved, in
order to avoid complaints and dissension between the two
houses.
In 1614, Dr. Richard Neile, Bishop of Lincoln, uttered
some words which gave offence to the Commons, and they
to
1 228 Hans. Deb. 3rd Ser. 2037-
Mr. Speaker Brand's Note-Book.
2 9 Com. J. 147. 760; 10 Ib. 512;
11 Ib. 580. Mr. Duffy's case, 5th
May 1853 ; 108 Com. J. 461.
B B 2
372
WORDS AGAINST PARLIAMENT.
complained of them in a message to the Lords, to which they
received an answer that the bishop
“ Had made solemn protestation, upon his salvation, that he had
not spoke anything with any evil intention to that house, which he
doth with all his heart duly respect and highly esteem, expressing
with many tears his sorrow that his words were so misconceived, and
strained further than he ever meant, which submissive and ingenuous
behaviour of himself had satisfied the Lords; and their lordships
assure the Commons that if they had conceived the lord bishop's
words to have been spoken, or meant, to cast any aspersion of sedition
or undutifulness upon that house, their lordships would forth with
have proceeded to the censuring and punishing thereof with all
severity.”
Their lordships added, that hereafter no member of their
house ought to be called in question, when there is no other
ground thereof but public and common fame only. In 1701,
a complaint was made, by the Commons, of expressions used
by Lord Haversham, at a free conference, and numerous
communications ensued, which were terminated by a proro-
gation. On the 14th December 1641, exception being taken
to words used by Lord Pierpoint, he was commanded to
withdraw, and committed to the custody of the gentleman
usher. On the 20th May 1642, the Lord Herbert of Cher-
bury, having used offensive words in debate, was commanded
to withdraw, and committed to the custody of the gentleman
usher: but on the following day was released upon his sub-
mission. On the 14th March 1770, exception was taken to.
certain words used in debate by the Earl of Chatham; and
the house resolved, " that nothing had appeared to this house
to justify his assertion.";
Disrespectful or abusive mention of a statute would seem
to be partly open to the same objections as improper language
applied to the Parliament itself; for it imputes discredit to
the legislature which passed it, and has a tendency to bring
Against a
statute.
1 2 Lords' J. 713. See also 4 Lords'
J. 582. 1 Com. J. 496. 499, &c. 3
Hatsell, 73.
2 13 Com. J. 629. 634. 637. 639.
3 4 Lords' J. 475.
4 5 Ib. 77.
5 32 Ib. 476.
PERSONAL ILLUSIONS,
373
allusions.
the law into contempt. More license, however, is allowed in
speaking of a statute, than is consistent with this view of its
danger; and, though intemperate language should always be
repressed, it must be admitted that the frequent necessity of
repealing laws justifies their condemnation in debate; and
the severity of the terms in which they are condemned, can
only be regarded as an argument for their repeal.
(6.) In order to guard against all appearance of person- Personal
ality in debate, it is a rule, in both houses, that no member
shall refer to another, by name. In the upper house, every
lord is alluded to by the rank he enjoys, as "the noble
marquess,” or “the right reverend prelate;" and in the
Commons, each member is distinguished by the office he
holds, by the place he represents, or by other designations,
as “the noble lord the secretary for foreign affairs," "the
honourable” or right honourable gentleman the member
for York,” or “the honourable and learned member who has
just sat down.”] The use of temperate and decorous lan- Against
guage is never more desirable than when a member is
canvassing the opinions and conduct of his opponents in
debate. The warmth of his own feelings is likely to betray
him into hasty and unguarded expressions, which the excite-
ment of his adversaries will exaggerate; and he cannot be
too careful in restraining himself within those bounds which
Parliament has wisely established. The imputation of bad
motives, or motives different from those acknowledged; mis-
representing the language of another, or accusing him, in
his turn, of misrepresentation; charging him with falsehood
or deceit; or contemptuous or insulting language of any
kind, -all these are unparliamentary, and call for prompt
interference. In one case it was proposed, some days after a
members.
1 Mr. Berkeley was called to order,
20th March 1860, for referring to
members by name, as having spoken,
in former sessions, against the ballot.
157 Hans. Deb. 3rd Ser. 939.
2 For examples of unparliamentary
expressions, see Debate, 3rd March
1864; 173 Hans. Deb. 3rd Ser. 1406;
and cases of Viscount Palmerston
and Mr. Layard, 27th April 1855,
and of Mr. Gathorne Hardy and
Mr. Layard, 7th July 1864 (Vote
374
WORDS OF HEAT.
In the Lords.
debate, to express the regret of the house that a minister had
not withdrawn certain imputations upon a member. The
motion was not treated as a question of privilege entitled to
precedence, nor was it held to relate to specific words used
in debate, to which exception ought to have been taken at
the time; and the motion merely served as an occasion for
further explanations.
The rules of the House of Lords upon this point are very
distinctly laid down in their Standing Orders, 13th June
1626:
" To prevent misunderstanding, and for avoiding of offensive
speeches, when matters are debating, cither in the house, or at com-
mittees, it is for honour sake thought fit, and so ordered, that all
personal, sharp, or taxing speeches be forborne; and whosoever
answereth another man's speech, shall apply his answer to the matter,
without wrong to the person; and as nothing offensive is to be spoken,
so nothing is to be ill taken, if the party that speaks it shall presently
make a fair exposition, or clear denial of the words that might bear
any ill construction; and if any offence be given in that kind, as the
house itself will be very sensible thereof, so it will sharply censure
the offender, and give the party offended a fit reparation and a full
satisfaction," 2
Words of
heat.
On the 10th December 1766, notice was taken of some
words that had passed between the Duke of Richmond and
the Earl of Chatham; upon which they were required by
the house to declare, upon their honour, “that they would
not pursue any further resentment." 3
of Confidence) as to the words
"calumnious charges,” 137 Haps.
Deb. 3rd Ser. 1895 ; 176 Ib. 1003:
also 186 Ib. 173. 422. 441. 884; 187
Ib. 953; 188 Ib. 1895. "Dodge'
ruled to be an unparliamentary ex-
pression ; 193 Ib. 1297; so also
“factious opposition,” Ib. 1741;
and s jockeyed,” 198 Ib. 512;
and accusing a member of having
"deliberately raised a false issue,
205 Ib. 1743; and having "passed
a somewhat impertinent censure,'
206 Ib. 1685. But not "calumnious,"
201 Ib. 1455. See also 211 Ib. 852;
212 Ib. 222. 1653; 213 Ib. 750; 219
Ib. 589; 223 Ib. 1015. Mr. Plimsoll's
case, "villains," 22 July 1875 ; 225
Ib. 1826 ; 226 Ib. 178; “imper-
tinence," 230 Ib. 863. The last
six years have been fruitful in
similar examples.
1 174 Hans. Deb. 3rd Ser. 306.
2 Lords' S. 0. No. 27. See also
12 Lords' J. 31; Mirror of Parl.
1833, p. 2855.
3 31 Lords' J. 448.
WORDS OF HEAT.
375
The Lords are also prompt in their interference to pre- Lords.
vent quarrels in debate between their members, and extend
their jurisdiction over them even further, by ordering
“That if any lord shall conceive himself to have received any affront
or injury from any other member, either in the Parliament house,
or at any committee, or in any of the rooms belonging to the Lords'
House of Parliament, he shall appeal to the Lords in Parliament for
his reparation; which if he shall not do, but occasion 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 Lords'
House of Parliament."2
Sometimes the Lords have extended this principle to the
prevention of quarrels which have arisen 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
proceedings of Parliament, declared the earl "guilty of a
high contempt of this house," and committed him to the
Tower.3
The House of Commons will insist upon all offensive Commons.
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 takes immediate measures for preventing the
quarrel from being pursued further, by committing 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.
5
1 16 Lords' J. 378; Earl Rivers and
Earl of Peterborow, Sth Feb. 1698.
2 Lords' S. O. No. 27.
3 36 Lords' J. 191.
4 78 Com. J. 224; 96 Ib. 401; 103
Ib. 442, 443; 107 Ib. 143. Sir R.
Peel and the O'Donoghue, 1862;
117 Ib. 64; 165 Hans. Deb. 3rd Ser.
617; 167 Ib. 854. Sir R. Peel and
Mr. Maguire, 11th May 1866 ; 183
Ib. 801.
5 8 Hans. Deb. N. S. 1091; Lord
Althorp and Mr. Sheil, 5th Feb.
1834 ; 89 Com. J. 9. 11; 91 Ib. 484,
485; 92 Ib. 270; 93 Ib. 657. 660.
376
WORDS OF HE.IT.
In 1770, words of heat having arisen between Mr. Fox
and Mr. Wedderburn, the former rose to leave the house,
upon which the Speaker ordered the serjeant to close all the
doors, so that neither Mr. Fox nor Mr. Wedderburn should
go out till they had promised the house that no further notice
should be taken of what had happened. If words of heat
arise in a committee of the whole house, they are reported
by the chairman, and the house interposes its authority to
restrain any hostile proceedings.?
Challenges The Commons will also interfere to prevent quarrels between
and quarrels. 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 gentle-
men, on refusing to assure the houso that he would not accept
a challenge sent from abroad, was placed in custody; and the
other, by whom the challenge 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.3
In such cases, the jurisdiction of the house is also extended
to the lobbies. On the 11th April 1877, on the numbers
being declared after a division, complaint was made to the
house, by Mr. Sullivan, of an offensive expression addressed
to him by Dr. Kenealy, in the lobby, during the division
just taken. Mr. Speaker observed, that had the expression
complained of been used in the house, it would have been
his duty to deal with the matter on his own authority ; but
as the complaint referred to words used in the lobby, he left
it to the consideration of the house : and Mr. Speaker called
upon Dr. Kenealy to explain his conduct. Dr. Kenealy was
heard in his place; and, having admitted that he had used
the expression complained of, desired to submit his conduct to
the decision of the house; after which he withdrew. It was
1 MS. Officers and Usages of the
House of Commons, 1805, p. 138.
2 106 Com. J. 313,
3 91 Com. J. 464. 468. 34 Hans.
Dob. 3rd Ser. 110. 486.
f
WORDS TIEX DOWX.
377
then resolved, that he be ordered to withdraw the offensive
expression, and to apologise to the house for having used it.
Dr. Kenealy being called in, Mr. Speaker acquainted him
with the resolution of the house, and he withdrew the offen-
sive expression complained of, and apologised to the house for
having used it.
The sending a challenge by one member to another, in con-
sequence of words spoken by him in his place in Parliament,
is a breach of privilege, and will be dealt with accordingly,
unless a full and ample apology be offered to the house.?
But it does not appear that the Speaker or the house would
interfere to prevent a quarrel from being proceeded with,
where it had arisen from a private misunderstanding, and not
from words spoken in debate, or in any proceedings of the
house, or of a committee. In such cases, if any interference
should be deemed necessary, information would probably be
given to the police. But in 1701, Mr. Mason, a member,
having sent a challenge to Mr. Molyneux, a merchant, the
house required his assurance that the matter should go no
further 4
Whenever any disorderly words have been used by a Words taken
member in debate, notice should be immediately taken of the
words objected to; and if any member desire that they may
be taken down, the Speaker or chairman, if it appear to be
the pleasure of the house or the committee, will direct the
clerk to take them down. Even the Speaker's own words
have been, in this way, directed to be taken down. The
down.
1 132 Com. J. 144; 233 Hans.
Deb. 3rd Ser. 951. Mr. Speaker
Brand's Note-Book.
2 Case of Mr. Roebuck and Mr.
Somers, 16th June 1815; 100 Com. J.
589. 81 Hans. Deb. 3rd Ser. 601.
In 1798, however, the Speaker did
not interfere to prevent the duel be-
tween Mr. Pitt and Mr. Tierney :
but went himself to Putney, where
it was fought. 1 Lord Sidmouth's
Life, 20.1. 206.
Private memorandum, 22nd Feb.
1819. But see case of Mr. Layard
and Mr. Harvey Lewis, where offen-
sive language had been used, in the
division lobby, concerning a speech
delivered at a public meeting, 16th
May 1867; 122 Com. J. 221.
4 13 Ib. 444.
5 2 Hatsell, 269. 272, n. 66 Com.J.
391; 68 Ib. 322; 93 Ib. 312, 313.
Debate 20th March 1851; 115 Hans.
Deb. örd Ser. 266. 275.
© Feb. 16th, 1770; 1 Cavendish
Dcb. 163.
378
CITING DOCUMENTS NOT BEFORE HOUSE.
> 1
Commons 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 on the 9th April 1807, the Speaker decided that the
words of Dr. Duigenan could not be taken down, though
Lord Howick had immediately risen to order, and had ob-
jected to the words used. But another member and the
Speaker had spoken to the question of order, before the house
expressed a wish to have the words taken down. And again,
when objection was taken to words, after a question had been
put from the chair, it was ruled to be too late. The same
principle would seem to apply, if the member had afterwards
been permitted to continue his speech without interruption;
and this appears to be the rule in the Lords, where the words
are required to be taken down instanter. If the words be
taken down in a committee of the whole house, they are
ordered to be reported, and the house deals with the matter
as it may think fit. The naming and suspension of a
member, however, have lately proved an effective substitute
for the taking down of words.
Another rule, or principle of debate, may be here added.
A minister of the Crown is not at liberty to read or quote
from a despatch or other state paper not before the house,
unless he be prepared to lay it upon the table. This restraint
is similar to that rule of evidence, in courts of law, which
prevents counsel from citing documents which have not been
produced in evidence. The principle is so reasonable that it
has not been contested; and when the objection has been
made in time, it has been generally acquiesced in. It has
6
Citing docu-
ments not
before the
house.
1 2 Hatsell, 269, n. Sec also 69
Hans. Deb. N. S. 566. 93 Com. J.
307. 312, 313; but see 13 Ib. 123.
2 9 Hans. Deb. 326.
3 205 Ib. 3rd Ser. 403.
4 48 Ib. 321, 17th June 1839 (Beer
Bill).
5 Case of Mr. More, 3rd June 1026,
i Com. J. 866; of Mr. Shippen, Ath
December 1717, 18 Ib. 653; of Mr.
Duffy, 5th May 1853, 108 Ib. 461.
466; of Mr. Parnell, 25th July 1877;
132 Com. J. 375. 3rd July 1879;
134 Com. J. 316. 24th July 1882 ;
270 Hans. Deb. 3rd Ser. 365; 272
Ib. 1561. 1565.
6 136 Com. J. 418; Hans. Deb. Ist
August 1881; Ib. 20th April 1882.
CITING DOCUMENTS NOT BEFORE HOUSE.
379
also been admitted that a document which has been cited,
ought to be laid upon the table of the house, if it can be
done without injury to the public interests. The same rule,
however, cannot be held to apply to private letters or memo-
randa. On the 18th May 1865, the attorney-general, on
being asked by Mr. Ferrand if he would lay upon the table
a written statement and a letter to which he had referred, on
a previous day, in answering a question relative to the Leeds
Bankruptcy Court, replied that he had made a statement to
the house upon his own responsibility, and that the docu-
ments he had referred to being private, he could not lay
them upon the table. Lord R. Cecil contended that the
papers, having been cited, should be produced: but the
Speaker declared that this rule applied to public documents
only. Indeed, it is obvious that as the house deals only
with public documents, in its proceedings, it could not thus
incidentally require the production of papers which, if moved
for separately, would be refused as beyond its jurisdiction.
Members not connected with the government have also cited
documents in their possession, both public and private,
which were not before the house : but though the house is
equally unable to form a correct judgment from partial ex-
tracts, inconvenient latitude has sometimes been permitted,
which it is doubtful whether any rule but that of good taste
could have restrained.
1 See Motion of Mr. Adam, March
4th, 1808, to censure Mr. Canning
for having read to the house de-
spatches and parts of despatches,
none of which had then been com-
municated to the house, and some of
which the house had determined
should not be produced. 10 Hans.
Deb. 1st Ser. 898; 2 Lord Colches-
ter's Diary, 141. Mr. Canning and
Mr. Tierney, 11th February 1818 ;
37 Hans. Deb. 338. Debate in Com-
mittee of Supply, 17th July 1857
(Sir C. Wood); 146 Hans. Deb. 3rd
Ser. 1759. See Debate 23rd May 1862,
on the Longford Election, in which
Sir Robert Peel referred to informa.
tion received by the Government
without citing documents; and com-
ments made upon this course, and
precedents cited. 166 Hans. Deb.
3rd Ser. 2116. Also statement of
rule by Viscount Palmerston, 12th
May 1863; and 176 Hans. Deb.
3rd Ser. 962; 235 Ib. 935.
2 179 Hans. Deb. 3rd Ser. 489.
3 Debate, Sth Mar. 1855, on naval
operations in the Baltic, 137 Hans.
Deb, 3rd Ser. 261.
380
OBSTRUCTION.
Obstruction,
The opinions of the law officers of the Crown, being confi-
dential, are not usually laid before Parliament, nor cited in
debate; and their production has frequently been refused :
but if a minister deems it expedient that such opinions should
be made known, for the information of the house, he is
entitled to cite them in debate.
(7.) The rules of Parliament are designed to afford every
legitimate opportunity of discussion, to ensure reasonable
delays in the passing of important measures, and to guard
the rights of minorities. In the observance of these rules,
both houses have displayed a generous regard for the liberty
of individual members, and of political parties. Freedom of
debate has been respected with rare patience and self-denial.
Nowhere have the principles of liberty and toleration been
more conspicuously illustrated than within the walls of Par-
liament.? On some memorable occasions, the power of a
majority has been withstood by a resolute minority, sup-
ported by public opinion. But, of late, these salutary rules
have been strained and perverted, in the House of Commons,
for purposes of obstruction. It became clear that such a
course, if persisted in, would frustrate the power and au-
thority of Parliament, and secure the domination of a small
minority, condemned by the deliberate judgment of the
house and of the country. That it was unparliamentary and
opposed to the principles of orderly government was manifest;
and on the 25th July 1877, it was declared by the Speaker,
“ that any member wilfully and persistently obstructing
1 Riots at Belfast, 17 Feb. 1865 ;
177 Hans. Deb. 3rd Ser. 354, 355.
2 Jeremy Bentham contrasts the
liberal spirit of the English parlia-
ment with the intolerance of revo-
lutionary France. “In France, the
terrible decrees of urgency, the de-
crees for closing the discussion, may
well be remembered with dread ;
they were formed for the subjuga-
tion of the minority,-for the pur-
pose of stifling arguments which
were dreaded.”—Political Tactics, 2,
Works, 361.
3 On the 12th March 1771, the
minority divided the house twenty-
three times, in resisting the punish-
ment of the printers of the debates;
and Burke said of these proceedings,
" Posterity will bless the pertinacity
of that day." 2 Cavendish, Deb.
377. 395.
t
OBSTRUCTION.
381
public business, without just and reasonable cause, is guilty
of a contempt of the house, and would be liable to such
punishment, whether by censure, by suspension from the
service of the house, or by commitment, as the house may
adjudge."1
of members.
The house was reluctant either to abridge the general
privileges of its members, or to visit with severity the evasion
and abuse of its rules: but the matter was gravely considered
by a Select Committee in 1878, and at length it was resolved
to devise measures for vindicating the authority of Parlia-
ment, and repressing a serious political evil.
The first step taken was the making of a Standing Order Suspension
on the 23rd February 1880, for suspending any member
named by the Speaker, or chairman of a committee of the
whole house, “as disregarding the authority of the chair, or
abusing the rules of the house by persistently and wilfully
obstructing the business of the house, or otherwise”; and in
that year one member was suspended, as disregarding the
authority of the chair, in a committee. In the following
session several members were suspended under this Standing
Order 4
But obstruction had now become so formidable, that stronger The Urgency
Resolution,
measures were found necessary; and on the 3rd February 1881.
1881, a resolution was agreed to, providing that if a motion
be made by a minister of the Crown that the state of public
business is urgent, and such minister shall declare that any
bill, motion, or other question then before the house is urgent,
and that it is of importance to the public interest that the
same should be proceeded with without delay, the question
shall be put forthwith without debate, amendment, or
adjournment, and if determined by a majority of three to
one in a house of not less than 300, the powers of the
1 132 Com. J. 375.
2 See Report of Committed on
Public Business, 1878.
3 135 Com. J. 432.
4 136 Ib. 31. 56. 111. 418. 157
Hans. Deb. 3rd Ser. 69-81 ; and see
infra, Chap. XII. (DIVISIONS).
382
OBSTRUCTION.
house for the regulation of its business should be vested in
the Speaker, for the purpose of proceeding with such bill,
motion, or other question. In accordance with this resolu-
tion, Mr. Gladstone at once declared the Protection of Person
and Property (Ireland) Bill to be urgent; the house resolved
that the state of public business was urgent; and the Speaker
promptly laid upon the table rules for the regulation of the
business of the house while the state of public business was
urgent. These rules introduced, for the first time, a pro-
vision for closing any debate unduly protracted, and other-
wise dealt with the principal abuses of the rules of debate
which had been practised as methods of obstruction. De-
signed, in the words of the Speaker, " to promote the proper
consideration of urgent measures, without unduly restricting
the freedom of orderly debate,” they were found simple and
effective; and having facilitated the passing of the Protection
of Person and Property (Ireland) Bill, they were again
applied, with no less efficacy, to the Peace Preservation
(Ireland) Bill.3
Meanwhile, the consideration of these urgent measures
having unduly delayed the consideration of the estimates,
Mr. Gladstone, on the 14th March, declared that certain
votes in Committee of Supply were urgent, but failed to
secure the requisite majority of three to one in support of his
motion for urgency.
By the aid of these rules of urgency, a serious political
crisis had been overcome; and their successful operation
demonstrated the necessity of revising the ordinary rules of
procedure, so as to ensure the orderly and effective despatch
of business at times of less special urgency. These revised
rules were accordingly submitted to the house at the com-
mencement of the ensuing session; but as they gave rise to
4
1 136 Com. J.58. 257 Hans. Deb.
3rd Ser. 88–155.
2 4th, 9th and 18th Feb., 1lth
March ; 136 Com. J. 78. $3. 123.
3 Ist March 1881; 136 Com. J.
100.
4 136 Ib. 124.
OBSTRUCTION.
383
protracted discussions, interrupted by other pressing affairs,
little progress had been made with their consideration, when,
on the 3rd July, it became necessary to revive the urgency
resolution of the 3rd February 1881, in order to expedite the
passing of the Prevention of Crime (Ireland) Bill. Several
members were also suspended, during this session, for wilful
and persistent obstruction, and other offences.?
It being now too late to conclude the discussion of the new
rules of procedure, within the ordinary limits of a session,
both houses adjourned from the 18th August to the 24th
October, when their consideration was resumed and com-
pleted. Mainly designed, like Mr. Speaker's urgency rules,
for imposing restraints upon obstruction, they also introduced
many valuable improvements in general procedure, which
will be found in their proper places. Here those only which
relate specifically to obstruction will be noticed.
The Standing Order of the 28th February 1880 was
amended, and agreed to in the following form :-
" That whenever any member shall have been named by the Speaker, Order in
or by the chairman of a committee of the whole house, immediately debate.
after the commission of the offence of disregarding the authority of
the chair, or of abusing the rules of the house by persistently and
wilfully obstructing the business of the house, or otherwise, then, if
the offence has been committed by such member in the house, the
Speaker shall forth with put the question, on a motion being made, no
amendment, adjournment, or debate being allowed, “That such
member be suspended from the service of the house;' and, if the
offence has been cominitted in a committee of the whole house, the
chairman shall, on a motion being made, put the same question in a
similar way, and if the motion is carried, shall forth with suspend the
proceedings of the committee and report the circumstance to the house;
and the Speaker shall thereupon put the same question, without
amendment, adjournment, or debate, as if the offence had been
committed in the house itself. If any member be suspended under
this order, his suspension on the first occasion shall continue for one
week, on the second occasion for a fortnight, and on the third, or any
1 137 Com. J. 328.
% 137 Ib. 149. 322. 346. 395. 483.
271 Hans. Deb. 3rd Ser. 1127. 1262;
273 Ib. 1280.
3 See Standing Orders of the
House of Commons, Part I. 1882 ;
Rules and Orders relating to Public
Business, 1883.
384
OBSTRICTION.
subsequent occasion, for a month : Provided always, that suspension
from the service of the house shall not exempt the member so suspended
from serving on any committee for the consideration of a private bill
to which he may have been appointed before his suspension: Provided
also, that not more than one member shall be named at the same time,
unless several members, present together, have jointly disregarded the
authority of the chair : Provided always, that nothing in this resolution
shall be taken to deprive the house of the power of proceeding against
any member according to ancient usages.”
Putting the
question.
The periods of suspension under the former order were now
extended,,continuing, on the first occasion, for a week, on
the second for a fortnight, and on the third, or any subsequent
occasion, for a month.1
One of the Speaker's urgency rules had provided for the
closing of a debate, unduly prolonged, and had been enforced
on more than one occasion ;? and the following Standing
Order, after much discussion, was now agreed to :
" That when it shall appear to Mr. Speaker, or to the chairman of
ways and means in a committee of the whole house, during any debate,
that the subject has been adequately discussed, and that it is the
evident sense of the house, or of the committee, that the question be
now put, he may so inform the house or the committee; and, if a
motion be made That the question be now put,' Mr. Speaker, or the
chairman, shall forthwith put such question; and, if the same be
decided in the affirmative, the question under discussion shall be put
forthwith : Provided that the question, That the question be now
put,' shall not be decided in the affirmative, if a division be taken,
unless it shall appear to have been supported by more than two
hundred members, or unless it shall appear to have been opposed by
less than forty members, and supported by more than one hundred
members.3
Limitations were also placed upon obstructive motions for
adjournment and vexatious divisions, and upon the operation
of the half-past twelve o'clock rule, which had become a
provoking instrument of obstruction.4 But in agreeing to
these rules, the house clearly aimed at the correction and
i S. O. XII.
2 136 Com. J. 96. 100.
3 S. O. XIV.
4 S. 0. IX. X. XI. XIV.; and
supra, pp. 308, 350 ; infra, p. 407.
t
RULES TO BE OBSERVED BY JEJBERS NOT SPEAKING.
385
restraint of acknowledged abuses, without interfering with
fair debate, or legitimate methods of opposition. A serious
attempt has been made to rescue parliamentary government
from its threatened paralysis; but it is to be feared that the
multiplied opportunities for debate, afforded by the forms of
the House, may still be so used as to frustrate the arduous,
and ever-increasing, work of legislation.
II. The rules to be observed by members present in the Rules to be
house during a debate are: (1) to keep their places; (2) to members not
enter and leave the house with decorum; (3) not to cross speaking.
the house irregularly; (4) not to read books, newspapers, or
letters; (5) to maintain silence; (6) not to hiss or interrupt."
(1.) "The lords in the upper house are to keep their dignity and To keep their
order in sitting, as much as may be, and are not to move out of their places.
places without just cause, to the hindrance of others that sit near them, Lords.
and the disorder of the house; but when they must cross the house,
they are to make obeisance to the cloth of estate."2
In the Commons, also, the members should keep their Commons.
places, and not walk about the house, or stand at the bar,
or in the passages. On the 10th February 1698, it was
ordered,
" That every member of this house, when he comes into the house,
do take his place, and not stand in the passage as he comes in or goes
out, or sit or stand in any of the passages to the seats, or in the passage
behind the chair, or elsewhere that is not a proper place.'
If after a call to “order," members who are standing at
the bar or elsewhere do not disperse, the Speaker orders them
to take their places; when it becomes the duty of the serjeant-
at-arms to clear the gangway, and to enforce the order of the
Speaker, by desiring those members who still obstruct the
passage immediately to take their places. If they refuse or
neglect to comply, or oppose the serjeant in the execution of
his duty, he may at once report their names to Mr. Speaker.
1 Another rule, “that no member
do take tobacco," is unworthy of a
place in the text. See 11 Com. J.
137.
2 Lords' S. O. No. 18.
3 12 Com. J. 496; 19 Ib. 425.
P.
CC
386
RULES TO BE OBSERVED
Entering
the house,
Lords.
(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 obeisance to the cloth of estate.”
»1
before mem-
Lords.
Commons.
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.?
Crossing (3.) In the Lords, it has been seen that care should be
bers speaking, taken in the manner of crossing the house, and it is especially
irregular to pass between the woolsack and any peer who is
addressing their lordships, or between the woolsack and the
Commons table. In the Commons, members are 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 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.
Silence.
(5.) Silence is required to be observed in both houses. In
the Lords, it is ordered,
Lords.
“That if any lord have occasion to speak with another lord in 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.”5
Commons.
In the Commons all members should be silent, or should
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.” On the 5th May 1641, it was resolved,
“That if any man shall whisper or stir out of his place to the dis-
i Lords' S. O. No. 17.
2 See 8 Com. J. 264.
· This rule, however, is not ob-
served when a member is speaking
from the third, or any higher bench
from the floor.
of 4 Com. J. 51.
5 Lords' S. O. No. 22.
BY MEMBERS NOT SPEAKING,
387
turbance of the house at any message or business of importance,
Mr. Speaker is ordered to present his name to the house, for the house
to proceed against him as they shall think fit.' » 1
(6.) They are not to disturb a member who is speaking by Hissing or
interruption,
hissing, 2 exclamations, or other interruption. The following
is the declaration of this rule by the House of Commons,
22nd January 1693:--
- To the end that all the debates in this house should be grave and
orderly, as becomes so great an assembly, and that all interruptions
should be prevented, be it ordered and declared, that no member of
this house do presume to make any noise or disturbance 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 the member, by name,
making such disturbance; and that every such person shall incur the
displeasure and censure of the house." 4
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 uproar
maintained when 500 or 600 members are impatiently wait-
ing for a division, it is scarcely possible to repress. On the
19th March 1872, while strangers were excluded, notice was
taken of the crowing of cocks, and other disorderly noises
proceeding from members, principally behind the chair; and
the Speaker condemned them as gross violations of the orders
of the house; and could not refrain from expressing the pain
with which he had heard them.5
Without any such noises, however, there are words of "Hear, hear."
1 2 Com. J. 135.
tempt of the house." 1 Com. J.
2 1 Ib. 473. 66 Motion against 243; Mr. Speaker Bromley's Note-
hissing, to the interruption and book.
hindrance of the speech of any man 3 13 Lords' J. 387 (E. of Clarendon
in the house, well approved of.” and M. of Winchester, 28th Novem-
1604. 1 Com. J. 935. 20th June
ber 1678).
1604, “Agreed, for order, that who- 4 11 Com. J. 66. See also 1 Ib.
soever hisseth or disturbeth any man 152.
in his speech shall answer it at the 5 210 Hans. Deb. 3rd Ser. 307;
bar, as a breach of order and con- Mr. Speaker Brand's Note-book.
CC 2
388 RULES TO BE OBSERVA) BY JEJBERS NOT SPEAKING,
interruption which, if used in moderation, are not unparlia-
mentary: but when frequent and loud, cause serious disorder.
The cry of “question" has already been noticed, and its
improper use condemned. Another is that of "hear, hear,"
which has been sanctioned by long parliamentary usage,
in both houses. It is generally intended to denote appro-
bation of the sentiments expressed, and in that form, is
a flattering encouragement to a member who is speaking;
it is not uttered till the end of a sentence, and offers no
interruption to the speech. But the same words may be
used for very different purposes, and pronounced with various
intonations. Instead of implying approbation, they may
distinctly 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 ex-
clamations of this kind are obviously intended to interrupt
a speech, the Speaker calls to “order," and, if persisted in, is
obliged to name the disorderly members, and leave them to
be censured or otherwise dealt with by the house.
On the 6th August 1878, Major O'Gorman having re-
peatedly interrupted the Secretary of State for War, by loud
and disorderly cries of "hear, hear," and having refused to
apologise when called to order, was at length named by the
Speaker. He was thereupon ordered to withdraw, and to
attend in his place on the following day; when he offered
his apologies to the Speaker and the house, which were
accepted as satisfactory.?
On the 15th December 1792, Mr. Whitmore having dis-
turbed the debate by a disorderly interruption, was " named”
by the Speaker, and directed by the house to withdraw.3
1
Misbehaviour
to members in
the house.
1 1 Com. J. 483; 2 Ib. 135. See
anecdotes of Mr. Speaker Onslow
and Sir F. Norton, as to the calling
of members by name; 1 Lord Sid.
mouth's Life, 692; Fox's Speech,
23rd April 1804.
2 242 Hans. Deb. 3rd Ser. 1380.
1438 ; Mr. Speaker Brand's Note-
book.
3 48 Com. J. 11. 13; 30 Parl.
Hist. 113.
INTERRUPTIONS IN COMMITTEE.
389
On the 8th June 1852, “complaint being made by a member
in his place, that Mr. Feargus O'Connor had been guilty of
misbehaviour to him; Mr. Speaker informed Mr. O'C., that
if he persisted in such conduct, it would be necessary for him
to call the particular attention of the house towards him, in
order that the house might take such steps as would prevent
a repetition of it for the future. Upon which Mr. O'Connor
rose in his place, and addressed the house, without expressing
his regret for what had occurred. Whereupon Mr. Speaker
called upon him by name; and Mr. O'Connor then apologised
to the house for his misconduct." On the 3rd February
1881, Mr. Dillon, Mr. Parnell, Mr. Finigan, Mr. O'Kelly
and Mr. O'Donnell, having persisted in repeated interrup-
tions of Mr. Gladstone, who had been called upon by Mr.
Speaker to move a resolution of which he had given notice,
and was in possession of the house, were named and sus-
pended ;? and on the 23rd February 1883, Mr. O'Kelly
was named, for a like offence, and suspended for a week,
under the recent Standing Order.3
Indecent interruptions of the debate or proceedings, in Interruptions
a committee of the whole house, are regarded in the same
light as similar disorders while the house is sitting. On the
27th February 1810, the committee on the expedition to the
Scheldt reported that a member had misbehaved himself
during the sitting of the committee, making use of profane
oaths and disturbing their proceedings. Mr. Fuller, the
member complained of, was heard to excuse himself; in
doing which he gave great offence by repeating and per-
sisting in his disorderly conduct; 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 offence for which he was ultimately
committed, may appear to have been his disorderly conduct
in committee.
1 107 Com. J. 277.
2 136 Ib. 55. 258 Haus. Deb.
3rd Ser. 68; see also infra, p. 407.
33 Votes, p. 66.
390
INTERRUPTIONS IN COMMITTEE.
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 in-
flicted some punishment, either by commitment or repri-
mand. This member further aggravated his offence by
breaking from the serjeant, and returning into the house in a
very violent and disorderly manner, whence he was removed
by the serjeant and his messengers.
On the 9th June 1852, the house being in committee, Mr.
F. O'Connor interrupted the proceedings of the committee
by disorderly and offensive conduct towards a member, and
the chairman was directed to report the same to the house.
On the Speaker resuming the chair, a motion was made that
Mr. O'Connor do attend in his place forth with : but it was
represented that on the previous day he had been disorderly
and had apologised, and that it was fruitless to deal with
him again in the same manner.
While his conduct was
under discussion, he twice entered the house and approached
the chair of Mr. Speaker, and then withdrew. It was thus
obvious to the house that he must be dealt with summarily;
and it was accordingly ordered, nem. con., that for his dis-
orderly conduct and contempt of this house, he be taken into
the custody of the serjeant-at-arms.?
In the enforcement of all these rules for maintaining order,
the Speaker of the House of Lords has no more 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 peer, perhaps of an opposite party;
and that an irregular argument is liable to ensue, in which
Authority of
Speaker.
Lords.
1 65 Com. J. 134. 136.
2 107 Ib. 278. Haus. Deb. Oth
June' 1852. On the 16th June he
was discharged, on the report of a
committee (to whom a petition of
his sister had been referred), that
arrangements had been made for
his immediate removal to a lunatic
asylum. 107 Com. J. 292. 301.
ORDER IN DEBATE.
391
each speaker imputes disorder to the last, and recrimination
takes the place of orderly debate. There is no impartial au-
thority to whom an appeal can be made, and the debate upon
a question of 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 imme-
diately checked by the Speaker: in other cases his attention
is directed to a point of order, when he at once gives his
decision, and calls upon the member who is at fault, to con-
form to the rule as explained from the chair. But doubtful
cases may arise, upon which the rules of the house are in-
distinct or obsolete, or do not apply directly to the point at
issue ; when the Speaker, being left without specific direc-
tions, 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.?
Whenever the Speaker rises to interpose, in the course of a Speaker
to
debate, he is to be heard in silence, and the member who is be heard.
speaking, or offering to speak, should immediately sit down.
It was agreed 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 :"3 but
this is an imperfect explanation of the practice, for the rising
1 1 Com. J. 187.
2 See Lord Colchester's cxplana-
tion of the Speaker's duty, in such
casos; 30th March 1808. 2 Diary,
141.
3 1 Com. J. 244.
392
ORDER IN DEBATE.
withdraw
when their
conduct is
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.” And it may here be observed that the authority
of the chair in maintaining order has been much strengthened
by the Standing Order of the 22nd November 1882.
Members to It is a rule in both houses, that when the conduct of a
member is under consideration, he is to withdraw during the
under debate. 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 docu-
ments, 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;º of Sir F. Burdett,
in 1810 ;: of Sir T. Troubridge, in 1833;4 of Mr. O'Connell,
in 1836 ;5 of Mr. S. O'Brien, in 1846 ;6 of Mr. Isaac Butt, in
1858;' and of Mr. Lever, in 1861. But if the charge be
contained in the question itself, the member is heard in his
place, and withdraws after the question has been proposed;
as in the cases of Mr. Secretary Canning, in 1808;' and of
Lord Brudenell, in 1836.10 If the member should neglect or
refuse to withdraw, at the proper time, the house would order
him to withdraw. Thus, in the Lords, Lord Pierpoint, in
1641,11 and Lord Herbert of Cherbury, in 1642,12 were com-
manded to withdraw; and in the Commons, in 1715, it was
ordered upon question and division, “that Sir W. Wyndham
1 Sec supra, p. 383.
2 21 Lords' J. 450.
3 65 Com. J. 224.
SS Ib. 470.
5 91 Ib. 42.
6 101 Ib. 582.
7 113 Ib. 68.
$ 116 Ib. 377. 381. See also Mr.
Plimsoll's case, 1873; 128 Ib. 61.
9 63 Ib. 149.
10 91 Ib. 319.
11 4 Lords' J. 476.
12 5 Ib. 77.
ORDER IN DEBATE.
393
do now withdraw."1 When a member's conduct has not
been directly impugned by the form of the question, he has
continued in the house and voted.?
On the 17th May 1849, petitions were presented com- Petitions
complaining
plaining of the conduct of three members, as railway directors. of members.
The members were permitted to explain and defend their
conduct, but did not afterwards withdraw. It being contrary
to the Standing Orders of the house to make a motion, or to
enter upon a debate on the presentation of a petition, unless
it complains of some present personal grievance, or relates to
à matter of privilege, the conduct of the members could
scarcely be regarded as under the consideration of the house
at that time, and as soon as the members were heard, the
petitions were ordered to lie upon the table, without further
debate. One of the members withdrew, but returned almost
immediately to his seat.
On the 28th April 1846, the house had resolved that Mr. Members in
contempt.
W. S. O'Brien, a member, had been guilty of a contempt:
but the debate upon the consequent motion for his commit-
ment was adjourned until a future day: upon which Mr.
O'Brien immediately entered the house, and proceeded to
his place. Mr. Speaker, however, acquainted him that it
would be advisable for him to withdraw, until after the de-
bate concerning him had been concluded. The reason for
this intimation was, that the member had been already de-
clared to be in contempt, although his punishment was not
yet determined upon. On the 30th, a request was made
through a member, that he should be heard in his place : but
this was regarded as clearly irregular, and he was not per-
mitted to be heard. But a member not yet adjudged guilty
of contempt may return to his place, when the debate is
concluded.5
1 18 Com. J. 49.
? Mr. Stansfeld, 17th March 1864;
174 Hans. Deb. 340.
3 85 Hans. Deb. 3rd Ser, 1198.
4 Ib. 1291.
5 Mr. Parnell, 26th July 1877;
Mr. Speaker Brand's Note-book.
394
ORDER IS DEBATE.
Adjournment
of debates.
A motion for adjourning the debate may be offered at
any period of the discussion ; and in 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 ques-
tion can be resumed. The Speaker, however, will not allow
a member to move the adjournment, if he have already spoken
in the debate, as he has spoken once to the main question :
but if the adjournment be moved by any other member, he
may then speak to that question. And by Standing Order,
27th November 1882,
“When a motion is made for the adjournment of a debate, or of the
house, during any debate, or that the chairman of a committee do
report progress, or do leave the chair, the debate thereupon shall be
confined to the matter of such motion; and no member, having
moved or seconded any such motion, shall be entitled to move, or
second, any similar motion during the same debate.”
Debates on
motions for
adjournment,
&c.
When a member moves the adjournment of a debate, with
a view to speaking upon the main question on a future day,
he should confine himself to that formal motion. On the
26th April 1866, Lord Cranborne rose to move the adjourn-
ment of the debate on the Representation of the People Bill :
but instead of making that motion, in the accustomed manner,
without observations, he proceeded to comment upon a
speech just delivered. Exception was taken to this course,
and doubts were expressed whether he had not forfeited his
right to speak on the following day. This objection was not
pressed, but there can be no doubt that by speaking before
the question of adjournment had been proposed from the
chair, he was, in fact, speaking to the main question before
the house, and could not claim to speak a second time, to the
same question. Unless such a restriction were observed, the
prohibition of more than one speech to each question, could
1 1st May 1846 (Lord G. Bentinck); 16th May 1851 (Mr. Reynolds).
ORDER IN DEBATE.
395
easily be evaded ; and its observance should, therefore, be
enforced, as it is usually maintained in practice, and is now
specifically directed by the Standing Order just cited.
It has been explained in a previous chapter,” in what manner
it has been customary to alternate motions for the adjourn-
ment 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, has been a recognised method of
obstruction.3 But debate must now be confined to the
matter of such motions;* and by a Standing Order of the
27th November 1882,
“If Mr. Speaker, or the chairman of a committee of the whole Debates on
house, shall be of opinion that a motion for the adjournment of a debate, motions for
adjournment.
or of the house, during any debate, or that the chairman do report
progress, or do leave the chair, is an abuse of the rules of the house, he
may forth with put the question thereupon from the chair.”
It need scarcely be added that no such motion can be
offered, so as to interrupt any member who is addressing the
house: but an adjournment of the debate has been agreed
upon, for the purpose of enabling a member to continue his
speech on another day.”
1 182 Hans. Deb. 3rd Ser. 2172 ;
183 Ib. 6.
2 Supra, pp. 301. 350.
3 See Mr. Speaker's Ev. before
Committees on Public Business, 1848,
1854, and Report of Committee on
Public Business, 1858.
* Supra, pp. 350. 394.
G Sth March 1809, “ Mr. Perceval
having spoken for three hours on the
charges against the Duke of York,
the house loudly called for an ad-
journment. Mr. Perceval stated that
he had more to offer in concluding,
and would go on or stop as the house
pleased. The adjournment of the
debate till the next day passed by
acclamation. N.B. The first in-
stance in my time of adjourning in
the middle of a speech." Lord Col-
chester's Diary, ii. 172. 13 Hans.
Deb. Ist Ser. 114.
396
DIVISIONS.
CHAPTER XII.
DIVISIONS.
MODE OF DIVIDING IN BOTH HOUSES.
PROXIES AND
PAIRS,
PROTESTS.
MEMBERS PERSONALLY INTERESTED,
cannot vote.
66 that
Members not In both houses, any member who desires to vote, is required
present, when
question put, to be present in the house when the question is put. If not
within the folding-doors of the house, when the question is
finally put from the chair, he is not entitled to vote; and the
following precedents will explain the various circumstances
under which this rule has been applied.
Precedents. 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 put; and the house resolved, nem. con.,
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 called to the table, and upon the
question being put to him by Mr. Speaker, he declared him-
self for the "noes;" he was then let out of the house by the
serjeant, and his name was not reckoned by the tellers for
the “noes," with whom he had voted.?
On the 3rd May 1819, after the numbers had been reported
by the tellers, notice was taken that several members had
1 76 Com. J. 172.
2 79 Ib. 106. This case is entered
80 ambiguously in the Journal, that
it might appear as if the member
had been let out into the lobby, in
order to vote with the "nocs," who
had gone forth; but such was not
the fact, nor would such a proceeding
have been consistent with the rules
of the house.
DIVISIONS,
397
1
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 “ayes" and from the “noes”
respectively; and the numbers so altered were reported by
Mr. Speaker to the house.
On the 2nd 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. The 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
1836, the house was informed by a member who had 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 yote
should be disallowed.3
On the 5th July 1855, the chairman of the committee on
the Tenants Improvements (Ireland) Bill, on reporting pro-
gress, stated that on a division in committee, when the numbers
were reported at the table by the tellers, his attention had
been called to the fact that three members, who had voted in
the majority, were in the lobby beyond the folding-doors, at
the back of the Speaker's chair, when the question was put,
and asked whether they were entitled to vote. The Speaker
ruled that to entitle a member to vote he must have been
in the house and within the folding-doors, and must have
heard the question put. After the glass has been turned, and
174 Com. J. 393.
2 30 Ib. 183.
3 91 Ib. 473.
398
DIVISIONS,
"2
before the question has been put, the officers of the house
are bound to clear the lobbies of all members; any member
not wishing to leave the house or to vote, is at liberty to retire
to the rooms beyond the lobby.” Mr. Speaker also stated,
in reply to a question from the chairman, “ that the vote of
anly member not present when the question is put, may be
challenged before the numbers are declared, or after the divi-
sion is over.” 1
On the 14th February 1856, a member having been in one
of the side lobbies when the question was put, refused to vote.
On coming to the table he was told by the Speaker " that
not having been within the walls of the house, and not
having heard the question put, he need not vote, but might
withdraw.'
These precedents show that at whatever time it may be
discovered that members were not present when the question
was put, whether during the division, before the numbers are
reported, or after they are declared, or even several days
after the votes were given, such votes are disallowed. And
in the Lords, a similar rule prevails. In order to prevent
the accidental absence of members at so critical a time, pre-
cautions are taken to secure their attendance, and to prevent
their escape between the putting of the question and the
division.
Until recently it was customary, before a division took
place in either house, to enforce the entire exclusion of
strangers : 4 but in the Commons, since 1853, strangers have
only been required to withdraw from below the bar; and in
the Lords, since 1857, strangers have not been required to
withdraw from the galleries and the space within the rails of
the throne. In fact, they withdraw from those parts of the
Strangers
withdraw.
1 110 Com. J. 352.
2 111 Ib. 47.
3 65 Lords' J. 481 (Local Juris-
diction Bill, 1833).
4 So recently as 1849, a committee
of the Commons reported against any
alteration of the practice : Rep. 1849
(498).
5 Resolutions, 29th July 1853, made
Standing Orders 19th July 1854.
6 Resolutions, 10th March 1857;
27th Junc 1865; Standing Order 30.
DIVISIONS.
399
house only in which, if they remained, they would interfere
with the division.
In the Commons the withdrawal of strangers formerly Proceedings
prior to a
occupied a considerable time when many were present, but division.
scarcely a minute when the galleries were not full. This
inconvenience was removed by permitting strangers to re-
main in the gallery, and by providing that so soon as the
voices have been taken, the clerk is to turn a two-minute
sand-glass, and the doors are to be closed as soon after the
lapse of two minutes as the Speaker or chairman shall direct.
The Speaker, directly the debate is closed, puts the question,
and when the voices have been taken, gives the order that
“strangers must withdraw." ] The clerk then turns the
sand-glass, and while the sand is running, the doorkeepers
ring a bell which communicates with every part of the build-
ing. This “ division bell” is heard in the libraries, the re-
freshment 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 imme-
diately, and two minutes enable them all to reach their
places. Directly the sand has run out, if all the members
appear to have then entered the house, the Speaker cries
order, order," and immediately the serjeant-at-arms, and
the doorkeepers and messengers under his orders, close and
lock all the doors leading into the house and the adjoining
lobbies, simultaneously. Those members who arrive after Members
the doors are shut, cannot gain admittance, and those who
present must
are within the house, must remain there and vote. If any
member has not heard the question put, the Speaker will
again state it to him. On the 31st March 1848, a member
yote.
1. In the Irish Parliament strangers
-were permitted to be present during
a division. See 1 Sir J. Barrington,
Personal Sketches, 195.
2 On the 16th June 1857, a peer
remained in one of the division lob-
bies until after the doors bad been
locked; and the serjeant was directed
to let him out, without making any
report. See also Lord Colchester's
Diary, 519.
3 80 Com. J. 307; 114 Ib. 112.
400
DIVISIONS,
having been found in the house who had not voted on either
side, he was brought to the table, and was informed by
Mr. Speaker that he must vote, whereupon the question was
stated to him, and he declared that he voted with the ayes.
On the 1st July 1856, three members who had been in the
house when the question was put, but had not voted, were
required to declare themselves, and the Speaker desired their
names to be added to the ages. Again, in 1862, a member
who, having heard the question put, had not passed the
tellers, declared himself with the ayes, and was added to the
numbers in the division. On the 7th March 1866, a member
having heard the question put, found the door locked before
he reached the left lobby; and on declaring himself with the
noes, his name was added to them ;4 and in other similar
cases the same rule has frequently been applied, as well in
the house as in committee. On the 29th November 1852,
however, notice having been taken that certain members had
avoided voting on the previous Friday, by withdrawing to
one of the rooms at the back of the Speaker's chair, the
Speaker stated that in the new house those rooms had always
been considered as out of the house, and that members with-
drawing into them could not be required to vote. On the
16th July 1880, some members having retired to a room.
behind the chair, after the outer doors of the house had been
locked for a division, the Speaker stated that the room in
question was not within the house for the purposes of a
division, and that it was only after the question had been
put a second time, that members present were bound to
vote. Certain members not having passed the tellers, it was
1 Election Recognizances Bill, 103
Com. J. 406.
2 111 Com. J. 313.
3 117 Ib. 151.
4 121 Il. 140. See, also, similar
cases 4th July 1870; 125 Com. J.
300; 19th June 1874; 129 Ib. 234.
5 125 Ib. 300; 203 Hans. Deb.
3rd Ser. 460. 129 Com. J. 234. 243;
130 Ib. 266; 131 Ib. 175.
6 See also 110 Com. J. 352 ; 123
Hans. Deb. 3rd Ser. 713; 254 Ib.
730.
7 254 Ib. 730.
243.
DIVISIONS.
401
ruled, that when the numbers have been reported, and not
challenged before the report was made, those numbers must
be accepted."
When all the doors are thus closed, the Speaker again Question
twice put.
puts the question, and the ayes and noes respectively declare
themselves. By the Standing Order of the 19th July 1854,
the Speaker is obliged to put the question twice, because the
sand-glass is not turned until the voices have been taken;
and in the meantime, members who were not present when
the question was put, gain admittance to the house. None
of these could vote unless the question were again put; and
it is therefore the practice to put the question a second time
after the doors are closed, in order that the whole house,
having had notice of a division, may be able to decide upon
the question when put by the Speaker: but after the question
has been once put, no member is permitted to speak;' and
the debate cannot, therefore, be re-opened after the turning
of the sand-glass.
It has happened, on a Wednesday morning sitting, that Divisions on
Wednesday.
the division on a question, which had been put by the
Speaker, was necessarily postponed until a future day. At
six o'clock the Speaker is bound by the Standing Orders to
adjourn the house ;3 and on the 13th May 1846, the voices
having been taken, and the house being about to divide at
six o'clock, the Speaker adjourned the house : but if the
division had commenced before six o'clock, the Speaker
would have allowed it to proceed, as by the rules of the
house the doors must remain closed until after the numbers
have been reported.4 As no opposed business is now pro-
ceeded with after a quarter before six, these difficulties are
avoided, sufficient time being thus allowed to conclude a
division before the adjournment; and on several occasions
1 245 Hans. Deb. 3rd Ser. 919.
2 See supra, pp. 311. 341.
3 See supra, p. 282.
1 On the 21st March 1877, the
numbers were reported after six
o'clock; Mr. Speaker Brand's Note-
Book.
P.
D 1)
402
DIVISIONS.
the doors have been closed just before a quarter to six, and
the division has proceeded.
Votes upon an
A member who has not voted upon an amendment is
amendment.
nevertheless entitled to vote upon the main question, when
subsequently put; and for that purpose has a right to be
admitted to the house, so soon as the numbers have been
declared after the first division. On the 28th May 1845,
some members complained that they had been denied ad-
mittance to the house, between a division upon an amend-
ment, and another upon the main question. The Speaker
stated that they had been improperly excluded, and that
proper directions should be given to prevent the recurrence
of such an accident.A similar complaint was made on
the 13th March 1849, and the Speaker again stated that the
doors should have been opened after the first division, for
the admission of members. On the 4th June 1866, a com-
plaint was made of obstructions to the return of members
who had left the house to avoid a division upon an amend-
ment. On that occasion, however, the doors were open, but
the crowd of members going out, after the division, opposed
the entrance of other members.3
Until 1857, a division was effected in the Lords by the
not-contents remaining within the bar, and the contents
going below the bar: but in that year their lordships
adopted nearly the same arrangements as those which had
been in successful operation, for many years, in the Com-
mons. The proceedings, as at present conducted, may be
briefly described. When the question has been “entirely
put," the lobbies on the right and left of the house are
cleared of strangers, and the doors locked. The Lord
Speaker appoints two tellers for each party, without respect
to their degree. The contents then go into the right lobby,
and the not-contents into the left lobby, and on returning
Division in
the Lords.
1 MS. note, 28th May 1845.
2. Ib. 13th March 1849 (Church
Rates division).
3 183 Hans. Deb. 3rd Ser. 1916.
4 Until 1857, the two tellers were
required to be of tho samc degrec.
DIVISIONS.
403
into the house are counted by the tellers, and their names
recorded by the clerks. The vote of the lord on the woolsack,
or in the chair, is taken first, in the house; and any lord
may, on the ground of infirmity, by permission of the house,
be told in his seat. The tellers having 'counted the votes,
announce them to the lord on the woolsack, or in the chair.
Alphabetical lists of the names are printed with the Lords'
Minutes ; and similar lists, but arranged according to the
rank of the peers on the roll, are also inserted in the
Journal. If a peer goes into the wrong lobby, the house
will permit him to correct his error, instead of binding him
to his vote, according to the practice of the other house.
On the 13th May 1862, the Bishop of Winchester having
intended to vote with the not-contents, inadvertently went
into the wrong lobby, and discovering his mistake after his
name had been noted by the division clerks, declined to pass
the tellers, who reported the numbers without counting him.
On stating to the house that he intended to vote with the
not-contents, his vote was added to the numbers on that side,
as reported by the tellers. On the 19th May, the same rule
was declared for similar cases ; 3 and in 1865, the practice
was thus defined by Standing Order :
"If lord shall have by mistake gone out with the contents or
not-contents (as the case may be), having intended to vote on the
other side, he shall wait until the other lords in the same lobby shall
have passed out, and on presenting himself to the tellers desire that
he may not be counted by them, he having entered that lobby by
mistako; and tho tellers shall thereupon come with such lord to the
table, and inform the house of the circumstance, and shall ask the
said lord whether he was in the house when the question was put, and
if he shall reply in the affirmative, whether he desires to vote content
or not-content on such question, and the vote of the said lord as then
declared by him shall be taken by the tellers in the house, and
recorded by them accordingly.”
If any
1 Resolutions, 10th March 1857. S. 0. 30.
Reports of the Lords' Committee on 2 166 Hans. Deb. 3rd Ser. 1608.
the Minutes and Journals, 1857. 3 94 Lords' J. 230, and Standing
Standing Orders, 16th June 1857, Orders, 27th June 1865.
amended 27th June 1865; Lords'
DD 2
404
DIVISIONS.
"1
Lav lords.
When voices
In case of an equality of voices the not-contents have it,
equal in the
Lords. and the question is declared to have been resolved in the
negative. When this occurs it is always entered in the
Journal. Then, according to the ancient rule of the law,'
or the ancient rule in the like cases, semper præsumitur
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 house refuses to reverse the
judgment, and an order is made that the judgment of the
court below be affirmed.
As a general rule, none but “law lords,” i.e. peers who have
held high judicial offices, and lords of appeal vote in judicial
cases, or otherwise interfere with the decisions of the house.
Votes of other All peers, however, are entitled to vote, if they think fit, and
peers in judi-
the right has been exercised in some very remarkable cases.
In 1685, in the case of Howard 2. The Duke of Norfolk,
a decree of the Lord Keeper Guildford was reversed, after
an angry debate, by a house attended by eighteen bishops
and sixty-seven temporal peers. In 1689, on Titus Oates?
writ of error, the judgment of the court below was affirmed,
on a division, by thirty-five peers against twenty-three, in
opposition to the unanimous opinion of the nine judges who
attended. A bill to annul this judgment was passed by the
Commons, but, after much discussion between the houses,
ultimately dropped in the Lords. In Reeve v. Long, in
1694, the judgment of the court below was reversed by all
the lords, without a division. In 1697, the cause of Bertie
v. Falkland was debated, like any other question, and the
lay lords entered protests. The case of Ashby v. White, in
1704, having been made a party question, and a subject of
cial cases.
1 33 Lords' J. 519.
2 14 Ib. 167, 168.
3 14 Ib. 50. Select Chancery Cases.
3 Lord Camp. Lives of Chancellors,
485, 486.
4 Lords' J., 31st May 1689.
5 3 Lord Macaulay, Hist. 388.
6 16 Lords' J. 446. Sugden, Law
of Real Prop., Introduction.
7 16 Lords' J. 230. 236. 240. 247.
DIVISIONS,
405
contest between the two houses, the judgment of the Court
of Queen's Bench was reversed, on a division, by fifty against
sixteen. In the Douglas peerage case, in 1769, some lay
lords took part in the debates and proceedings and entered
a protest, but abstained from voting.? In Smith v. Lord
Pomfret, in 1772, lay lords interfered and voted.3 In
Alexander 1. Montgomery, in 1773, the lay lords voted,
and the numbers being equal (four and four), the judgment
was affirmed. In 1775, judgment was given in Hill 2.
St. John, in the presence of lay lords, and with their autho-
rity, but without any division. In the case of the Bishop
of London 1. Fytche, in 1783, the bishops voted as well
as several lay lords, and the judgment was reversed, by
nineteen to eighteen. In June 1806, in the case of Lord
Hertford's guardianship of Lord Hugh Seymour's daughter,
there was a large attendance of lay peers. In the writ of
error of The Queen v. O'Connell, in 1844, a discussion arose,
in which some of the lay lords seemed inclined to exercise
their right, but abstained from voting. On the 9th April
1883, in the appeal of Bradlaugh v. Clarke, Lord Denman, à
lay peer, was present and expressed his opinion in support
of the dissentient Lord of Appeal, Lord Blackburn.
Any 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.
9
1 17 Lords' J. 369.
2 32 Ib. 264. 16 Parl. Hist. 518.
1 Cavendish Deb. 618.
3 33 Lords' J. 303. 4 Walpole,
Mem. of Geo. III. 285.
4 33 Lords' J. 519.
5 Sugden, Law of Real Prop.,
Intr. 21.
6 36 Lords' J. 687. 2 Brown's
Parl. Cases, 211. 5 Lord Campbell,
Chancellors, 523.
7 Lord Minto says, ifth June 1806,
- The House of Lords made a very
discreditable appearance on this oc-
casion, attending in great numbers,
at the solicitation or command of the
Prince of Wales." -Life and Letters
of Sir Gilbert Elliot, first Earl of
Minto, iii. 390.
8 11 Clar. & Fin. 155. 421.
9. On the second reading of Queen
Caroline's Degradation Bill, in 1820,
Lord Gage enforced an old order, and
each peer gave his vote, in his place,
seriatim. 53 Lords' J. 751. 754. 2
Plumer Ward's Mem. 91.
406
DIVISIONS.
In the
Commons.
Tellers.
No division
without two
tellers.
The practice in the Commons, 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 method of recording the names of members who voted,
and for this purpose several contrivances were proposed : but
by that adopted and now in operation, there are two lobbies,
one at each side of the house, and, on a division, the house is
entirely cleared ; one party being sent into each of the lobbies.
The Speaker, in the first place, directs the ages to go into
the right lobby, and the noes into the left lobby, and then
appoints two tellers for each party ;1 of whom one for the
ayes and another for the noes are associated, to check each
other in the telling. If two tellers cannot be found for one
of the parties, no division is allowed to take place. On the
4th June 1829, a member was appointed one of the tellers
for the ayes: but no other member remaining in the house
to be a teller for the ayes, the noes, who had gone forth,
returned into the house, and Mr. Speaker declared that the
noes had it.2 In another case, 14th August 1835, the ayes
were directed to go forth, and a member was appointed a
teller : but no member going forth, nor any other member
appearing to be a second teller for the ayes, Mr. Speaker
declared the noes had it;3 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. It
has often been suggested that a rule might be established, by
which no division should be allowed, unless a certain number
of members declared themselves with the minority, besides
4
Proposed
restrictions
upon divi.
sions.
1 A member is bound to act as
teller for that party with whom he
has declared himself, when appointed
by the Speaker; and his refusal
would be reported to the house.
Private Mem. 7th July 1859.
2 84 Com. J. 379.
3 90 Com. J. 550.
4 97 Ib. 183. 354; 98 Ib. 605. 23rd
May 1850; 105 Ib. 364. Votes, 16th
June 1863. 127 Com. J. 121. 347;
132 Ib. 61; 137 Ib. 172.
DIVISIONS,
407
the tellers. And, at length, by Standing Order of the 27th Divisions on
November 1882, it was provided " that, after the house has questions of
adjournment.
entered upon the orders of the day or notices of motions,
when, after the house has been cleared for a division, upon a
motion for the adjournment of a debate, or of the house
during any debate, or that the chairman of a committee do
report progress, or do leave the chair, the decision of Mr.
Speaker, or of the chairman of a committee, that the ages or
noes have it is challenged, Mr. Speaker or the chairman may,
after the lapse of two minutes, as indicated by the sand
glass, call upon the members challenging it to rise in their
places, and, if they be less than twenty in a house of forty
members or upwards, he may forthwith declare the deter-
mination of the house or of the committee."2
On the 20th April 1882, on a question for the suspension
of a member, he was proposed as a teller for the noes, but
Mr. Speaker said that unless another teller could be named,
he should declare that the ayes had it.3 And on the 30th
June 1882, a similar case occurred in committee.
When the house proceeds to a division, every member is Members to
bound to retire from the house into one of the lobbies. On
the 3rd February 1881, it being reported by one of the lobbies.
tellers that he was unable to clear the house, as several
members refused to quit their places, the Speaker, having
already called the attention of the house to their conduct
during a previous division, now cautioned them that if they
again refused to withdraw, he should consider that they were
4
retire into
one of the
1 In the American House of Re-
presentatives there is a rule very
similar to the suggestion contained
in the text; viz., “No division and
count of the house shall be in order,
but upon motion seconded by at least
one-fifth of a quorum of the mem-
bers." --Standing Orders and Rules,
No. 4. See also the author's pamph-
let on Public Business in Parliament,
1849, 2nd edit., pp. 29, 30, and the
second edition of this work, p. 274.
This recommendation was also made
by the Committeo on Public Busi-
ness, in 1878.
2 In Mr. Speaker's urgency rules,
this check was not confined to ad-
journments, but extended to all
divisions. On the 16th April 1883,
this rule was applied in committee.
Votes, p. 295.
3 268 Hans. Deb. 3rd Ser. 1017.
4 271 Ib. 1129.
408
DIVISIONS.
Form of
division in the
Commons.
disregarding the authority of the chair. As they persisted
in retaining their seats, the Speaker proceeded to name them,
twenty-eight in number, and they were severally suspended
from the service of the house during the remainder of that
day's sitting. Three other members were added to this
number, for refusing to withdraw during a division which
immediately followed.
When there are two tellers for each party, the division
proceeds, and the house is cleared. Two clerks are then
stationed near each of the entrances to the house, at desks,
on which are 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, at the same time, the
tellers count the numbers. Members disabled by infirmity
are told in the house.
When both parties have returned into the house, the tellers
on either side come up to the table (the tellers for the majority
being on the right); and one of the tellers for the majority
reports the numbers. 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 alterna-
tive but a second division, unless the tellers agree as to the
mistake, when the numbers will be correctly reported by the
Speaker.3 If a mistake is subsequently discovered, it will be
136 Com. J. 56. 258 Hans. Deb.
3rd Ser. 78-88.
? In one case a stranger had been
told with the noes. 33 Com. J. 212.
On the 30th March 1810, a second
division was taken on the Expedition
to the Scheldt, 65 Ib. 235; and again
on the 26th June 1860, in Committee
on the Tenure and Improvement of
Land (Ireland) Bill, 115 Com. J. 332.
In this case a question was raised pri-
vately, whether a member, who had
voted with the ayes in the first divi-
sion, could afterwards vote with the
noes: but it was held that as the first
division had become null and void,
the house could only deal with the
member's voice and vote in the last
and valid division. In committee
on Parliamentary and Municipal
Elections Bill, 13th April 1872; 127
Com. J. 140.
3 Roman Catholic Relief Bill, 8th
December 1847; 103 Com. J. 102.
16th June 1860 (in committee); 115
Com. J. 332.
DIVISIONS.
409
the wrong
ordered to be corrected in the Journal. On the 28th Novem-
ber 1867, an error in the numbers reported by the tellers in a
committee of the whole house, having been discovered before
the chairman had left the chair, the chairman ordered the
numbers to be corrected accordingly.?
The error of most frequent occurrence is that of a member Members in
going into the wrong lobby, through inadvertence; and in lobby.
the Commons it has been the rule, in direct opposition to the
practice of the Lords, in such cases, to hold the member
bound by the vote he has actually given, without regard to
his voice on the question, or his own declared intention. On
the 9th April 1856, “one of the tellers for the noes stated
that Mr. Wykeham Martin was with the noes, in the left
lobby, but had refused to vote with them,” —the fact being
that he had gone into that lobby by mistake. As he had heard
the question put, he was informed that having gone forth
into the left lobby, his vote must be recorded with the noes.3
On the 10th March 1859, one of the tellers, in committee,
having reported that a member had not voted, though he had
been in the house when the question was put, the member
was directed by the chairman to come to the table, and having
declared himself with the ages, the chairman directed his
name to be added to that party. On the 15th March 1859,
one of the tellers having reported that a member, not having
1 On the 19th February 1847, notice Com. J. 98, and on other similar
as taken that the number of the occasions.
noes reported by the tellers on a pre- 2 123 Com. J. 16; and 128 Ib. 223.
vious day on the Railways (Ireland) 3 111 Com. J. 129. It was after-
Bill did not correspond with the wards suggested that if he had stated
printed lists; and the tellers for the that he had given his voice with the
noes being present, stated that the ayes, that party might have claimed
number had been reported by them his vote; and it may be worthy of
by mistake. The clerk was ordered consideration whether a member,
to correct the number in the Journal, under such circumstances, should not
102 Com. J. 131. On the 2nd May, be allowed to declare himself at the
1860, a similar proceeding took place, table and have his vote recorded, ac-
upon the Aggravated Assaults Act cording to his opinion. See practice
Amendment Bill, 115 Com. J. 216; of the Lords, supra, p. 403.
and again, on the 13th March 1863, 4 114 Com. J. 102.
118 Ib. 111; 13th March 1882, 137
410
CASTING VOICE.
heard the question put, had not voted, the Speaker again
stated the question to him, when he declared himself with the
ayes, and the Speaker directed his vote to be added accord-
ingly. On the 8th May 1860, notice was taken that a member
had been in the division lobby with the noes, and having
passed the division clerks, had avoided being counted by the
tellers. The member stated that he had gone into the lobby
with the noes by mistake : but the Speaker directed his vote
to be added to the noes.2 Similar cases occurred on the 2nd
July 1861,3 on the 6th March 1866,4 on the 12th August
1878,5 and on the 2nd May 1882.6 On the 21st June 1864,
Sir Colman O’Loghlen, in committee on the Court of Chancery
(Ireland) Bill, went into the wrong lobby; and having stated
his case to the Speaker, when the house was resumed, was
told that having heard the question put, there was no remedy
for his error.? Exceptional cases have arisen in which
members have voted against their own motions, and the
regularity of such a proceeding was determined by the ques-
tion whether his voice, as well as his vote, had been given
with the noes.
If the numbers should happen to be equal, the Speaker
(and in 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 not to
make the decision of the house final, and to explain his
reasons, which are entered in the Journals.
On the 12th May 1796, on the third reading of the Suc-
S
Casting voice
of the
Speaker.
Precedents.
1 114 Com. J. 111.
2 115 Ib. 229.
3 164 Hans. Deb. 3rd Ser. 210.
$ 121 Com. J. 136.
5 142 Hans. Deb. 3rd Ser. 1814.
6 137 Com. J. 172.
7 176 Hans. Deb. 3rd Ser. 31.
For other similar cases, sce 111 Com.
J. 129 ; 119 Ib. 359; 121 Ib. 137.
8 18th February 1866; 227 Hans.
Deb. 3rd Ser. 473. 25th July 1879;
Sir H. Selwyn Ibbetson, in Commit-
tee of Supply; Votes, p. 697.
CASTING VOICE.
411
cession Duty on Real Estates Bill, there having been a
majority against "now" reading the bill a third time, and
also against reading it that day three months, there was an
equality of votes on a third question, that the bill be read a
third time to-morrow, when the Speaker gave his casting vote
with the ayes, saying " that upon all occasions when the
question was for or against giving to any measure a further
opportunity of discussion, he should always vote for the
further discussion, more especially when it had advanced so
far as a third reading; and that when the question turned
upon the measure itself,—for instance, that a bill do or do
not pass,-he should then vote for or against it, according to
his best judgment of its merits, assigning the reasons on
which such judgment would be founded."1 Mr. Pitt, how-
ever, abandoned the measure.
On the 24th February 1797, Mr. Speaker Addington gave
his casting vote in favour of going into committee on the
Quakers Bill, assigning as his reason, that he had prescribed
to himself an invariable rule of voting for the further discus-
sion of any measure which the house had previously sanc-
tioned, as in this instance it had, by having voted for the
second reading ; but that upon any question which was to be
governed by its merits, as, for instance, “that this bill do
pass," he should always give his vote according to his judg-
ment, and state the grounds of it. On the 8th April 1805,
in the proceedings against Lord Melville, prior to his im-
peachment, the numbers were equal upon the previous question,
and the Speaker gave his casting vote in favour of the
previous question, on the ground that “the original question
was now fit to be submitted to the judgment of the house.”3
1 1 Lord Colchester's Diary, 57.
2 1 Lord Sidmouth's Life, 187.
1 Lord Colchester's Diary, 85.
3 60 Com. J. 202. i Lord Colches-
ter's Diary, i. and xxii. 548. Mr.
Walpole, in his Life of Spencer
Perceval, is under some misappre-
hension concerning this vote. He
says, “It seems clear that it was.
wrong. It is the Speaker's duty, in
the case of a tie, to give a vote which
shall allow the question to be raised
again. The Speaker, therefore, on
this ground should have voted for
412
CASTING VOICE.
upon the bill."
On the 5th June 1811, on a question for the appointment of
a committee to inquire into delays in the Court of Chancery,
the Speaker voted with the ayes, it being upon a question
“ whether or not this house shall exercise its own power of
inquiring into the causes of existing grievances." ] On the
14th June 1821, the Speaker declared himself with the ayes,
on a question for reading the amendments made by a com-
mittee to a bill a second time, “upon the ground of affording
a further opportunity to the house of expressing an opinion
2
Upon the second reading of a bill, Ist May 1828, the
numbers being equal, Mr. Speaker stated, “that as the bill
had been entertained by the house, although they were now
undecided as to whether it should proceed or not, he consi-
dered that he should best discharge his duty by leaving the
bill open to further consideration, and therefore gave his vote
with the yeas."'3 The Speaker acted upon the same principle
on the third reading of a bill, 23rd June 1837;4 and a similar
course has generally been taken at other stages in the pro-
gress of bills-often, without stating any reason. On the
10th May 1860, the numbers being equal upon an amend-
ment to a bill, on report, the Speaker stated that as the house
was unable to form a judgment upon the propriety of the
proposed amendment, he should best perform his duty by
leaving the bill in the form in which the committee had re-
ported it to the house. On the 19th June 1861, the numbers
being equal on the third reading of the Church Rates Aboli-
tion Bill, Mr. Speaker gave his casting vote for reasons
the previous question," which was
precisely what he did, and for the
very reason assigned by Mr. Wal-
pole.—1 Walpole, Life of Spencer
Perceval, 160.
1 66 Com. J. 395. 2 Lord Col-
chester's Diary, 334.
2 76 Com. J. 439.
3 83 Ib. 292.
4 Caoutchouc Company Bill. 92
Com. J. 496. In this case the de.
bate upon the next question, “that
this bill do pass," was adjourned ;
and on the 28th June the bill was
passed on division, the numbers
being—ayes, 58; noes, 23. Ib. 519.
5 95 Com. J. 536; 96 Ib. 344; 98
Ib. 163; 102 Ib. 872 ; 113 Ib. 232.
6 115 Ib. 235.
!
CASTING VOICE.
413
partly determined by the stage of the bill, and partly by the
peculiar circumstances connected with the measure itself. He
stated that
They had now reached the third reading of the bill, and he found
that the house hesitated, and was unable to decide whether the law
should stand, or should be changed. As far as he was able to collect
the opinion of the house from the course of the debate, it appeared to
him that a prevailing opinion existed in favour of a settlement of the
question, different, in some degree, from that contained in the bill;
and he thought he should best discharge his duty by leaving to the
future and deliberate judgment of the house to decide what change in
the law should be made (if it should be their pleasure to make a
change), rather than of taking the responsibility of the change on his
single yote: he therefore declared himself with the noes.
971
On the third reading of the Tests Abolition (Oxford) Bill,
1st July 1864, an adverse amendment having been negatived
by a majority of ten, a debate was raised upon the main
question that the bill be now read a third time, during which
many members came into the house; and upon the division
the numbers were equal. Under these circumstances the
Speaker said he should afford the house another opportunity
of deciding upon the merits of the bill, by declaring himself
with the ayes; and the question that the bill do pass, was
negatived by a majority of two.2 On the 24th July 1862,
the numbers being equal on a question for disagreeing to a
Lords' amendment, the Speaker said he should support the
bill, as passed by this house. On the 2nd April 1821, how-
ever, the Speaker voted with the noes on the second reading
of a bill, and so threw it out, without assigning any reason
for his vote. And in some cases, not being the stages of
bills, the Speaker has given his casting vote without assigning
reasons.5
The principle by which the Speaker is usually guided in
giving his casting voice,—that of interfering as little as
possible with the judgment of the house itself,—has been
1 116 Com. J. 282.
2 119 Ib. 388.
3 168 Hans, Deb. 3rd Ser. 785;
Mr. Speaker Denison's Note-Book.
76 Com. J. 229.
5 93 Ib. 587.
414
CASTING VOICE.
"91
carried even further than in the case of bills. On the 26th
May 1826, 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 bribery at elections. The previous question
was moved, and, on a division, the numbers being equal,
Mr. Speaker said, “ that it being now his duty to give his
vote, and considering the proposed resolution as merely de-
claratory of what are the powers and what is the duty of the
house, and that any inaccuracy in the wording of the resolu-
tion might be amended, when in the new Parliament it must
be re-voted, he should give his vote with the yeas.
And on the 19th May 1846, on a question for referring
a petition, complaining of bribery at Bridport, to a com-
mittee of inquiry, the numbers being equal, Mr. Speaker
said, “that as the house had no better means of forming a
judgment upon the question than the election committee,
who had already declined to entertain it, and as it would
still be open to any elector of the borough, under the
provisions of the Act 5 & 6 Vict. c. 2, to present a petition
to the house, praying that a committee, having power to
examine upon oath, might be appointed to investigate the
subject of bribery and compromise, he therefore declared
himself with the noes.' On the 25th May. 1841, on a
motion for an address to the Crown in behalf of political
offenders, Mr. Speaker declared himself with the noes, as
the vote, if carried, would interfere with the prerogative
of the Crown."3 On the 6th May 1851, the numbers being
equal on a question for the house to resolve itself into com-
mittee on the duties on home-made spirits in bond, the
Speaker gave his casting vote in favour of the motion. His
reasons are not entered in the Journal : but his vote was
determined by the principle that the house would have
further opportunities of reconsidering its decision, if the
motion were carried.
"2
66
1 81 Com. J. 387.
2 101 Ib. 731,
3 96 Ib. 344,
4 106 Ib. 205.
CASTING VOICE.
415
On the 24th July 1867, the numbers being equal upon a
proposed resolution relative to Trinity College (Dublin),
Mr. Speaker stated "that this was an abstract resolution,
which, if agreed to by the house, would not even form the
basis of legislation : but undoubtedly the principle involved
in it was one of great importance, and, if affirmed by a
majority of the house, it would have much force. It should,
however, be affirmed by a majority of the house, and not
merely by the casting vote of its presiding officer. For
these reasons he declared himself with the noes." I On the
9th August 1878, the numbers being equal upon a question
for the postponement of a bill to that day, and an amend-
ment for postponing it till Tuesday, the Speaker stated “that
as in the case of the prior order of the day the house decided
upon its postponement till Tuesday,” he declared himself for
the amendment."
But while in the chair the Speaker is thus restrained, by Speakers
speaking in
usage, in the exercise of his independent judgment, in a committee.
committee of the whole house he is entitled to speak and
vote like any other member. Of late years, however, he
has generally abstained from the exercise of his right.
This punctilious impartiality was not formerly observed by
Speakers. Among the earliest examples are those of Mr.
Speaker Glanville, on the 4th May 1640, upon the granting
of twelve subsidies to the king ;3 and of Mr. Speaker
Lenthall, on the 22nd January 1641, against the “brotherly.
gift” to the Scottish nation. Sir Fletcher Norton spoke
strongly on the influence of the Crown, on the 6th April
1780; and Mr. Speaker Grenville, on the Regency question,
on the 16th January 1789.5 On the 17th December 1790,
Mr. Speaker argued, at length, the question of the abate-
ment of an impeachment, by a dissolution of Parliament,
1 122 Com. J. 395.
2 142 Hans. Deb. 3rd Ser, 1712.
3 1 Lord Clarendon, Hist. 242.
4 D'Ewes Notes on Long Parlia-
ment; Harleian MSS. (162), p. 160.
5 27 Parl. Hist. 970.
416
SPEAKERS SPEAKING IN COMMITTEE.
and cited a long list of precedents. On the 4th December
1797, Mr. Speaker Addington addressed the committee on
the assessed taxes, from the gallery. The same Speaker also
addressed a committee on the union with Ireland, in 1799;3
and again, 6th May 1800, in the committee upon the Inclo-
sure Bill.4 In committee on the charges against the Duke of
York, 16th February 1809, Mr. Speaker Abbot moved the
commitment of Captain Sandon, a witness, for prevarication.
Again, on the 1st June 1809, he made a speech in committee
on Mr. Curwen's bill for preventing the sale of seats in Par-
liament;6 and on the 4th February 1811, in committee on
the Lords' resolution for a commission for giving the royal
assent to the Regency Bill. Finally he addressed a com-
mittee on the Roman Catholic Relief Bill, in 1813, and
carried an amendment excluding Catholics from Parliament,
which caused the abandonment of the bill. On the 26th
March 1821, Mr. Speaker Manners Sutton spoke in com-
mittee on the Roman Catholic Disability Bill;9 and again on
the 6th May 1825, in committee on a similar bill; 10 and on
the 2nd July 1834, in committee on the bill for admitting
dissenters to the universities, he spoke against the principle
of the bill." On the 21st April 1856, in committee of supply,
the management and patronage of the British Museum by
the principal trustees having been called in question, Mr.
Speaker Shaw Lefevre spoke in defence of himself and his
colleagues, with great applause. And lastly, on the 9th June
1870, Mr. Speaker Denison spoke and voted in committee on
1 28 Parl. Hist. 1043.
2 Lord Colchester's Diary, i. 121.
3 12th Feb. 1799; 1 Lord Sid-
mouth's Life, 219. 225. 1 Lord
Colchester's Diary, 175; and see 34
Parl. Hist. 448; 2 Plowden's Hist.
of Ireland, 909.
4 1 Lord Colchester's Diary, 203.
5 12 Hans. Deb. 1st Ser. 743.
2 Lord Colchester's Diary, 166.
6 14 Hans. Deb. 1st Ser. 837.
2 Lord Colchester's Diary, 193.
17 18 Hans. Deb. 1st Ser. 1107.
2 Lord Colchester's Diary, 315.
Plumer Ward's Mem. i. 379.
6 Lord Colchester's Diary, i. p.
xxiii.; Ib. ii. 447.
9 4 Hans. Deb. N. S. 1451.
10 13 Ib. 434.
1 24 Hans. Deb. 3rd Ser. 1092.
DIVISION LISTS.-PROXIES.
417
lists.
the Customs and Inland Revenue Bill, in support of a clause
exempting horses kept for husbandry from licence duty, if
used in drawing materials for the repair of roads.
After the division, the sheets of pasteboard on which the Publication
of division
names of members are marked, are examined by the division
clerks, and sent off to the printer, who prints the marked
names in their order; and the division lists are delivered on
the following morning, together with the Votes and Pro-
ceedings of the house. This plan of recording the names of
members on a division has been quite successful; they are
taken down with great accuracy, and no delay is occasioned
by the process.
In committees of the whole house, divisions were formerly Divisions in
committee.
taken by the members of each party crossing over to the
opposite side of the house : but the same forms are now
observed in all divisions, whether in the house or in com-
mittee. A division in committee cannot be taken unless
there be two tellers for each side, as in the house itself.2
In the Lords, not only those peers who are present may
Proxies.
vote in a division, but on certain questions, absent peers
are entitled, by ancient usage, regulated by several Standing
Orders, to vote by proxy. In 1867, however, a Lords' com-
mittee recommended that the practice of using proxies should
be discontinued ; and on the 31st March 1868, the house
agreed to the following Standing Order:
" That the practice of calling for proxies, on a division, shall be dis-
continued, and that tiro days' notice be given of any motion for the
suspension of this Standing Order."
No attempt has since been made to suspend this order, and
the practice, though capable of being revived on any occasion,
at the pleasure of the house, may be regarded as in abeyance.
A practice, similar in effect to that of voting by proxy, has Pairs.
1 In 1872, the process was some- tions Bill). 23rd May 1850 (Wood
what accelerated by allowing a used in ship-building), 105 Com. J.
double stream of members to pass
the division clerks.
3 Lords' S. 0. 31; 100 Lords' J.
2 16th June 1848 (Borough Elec-
364.
99.
P.
E E
418
PROTESTS.
Protest.
for many years been resorted to in both houses. “A system
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 neutralised on each side of a question, and the relative
numbers in the division are precisely the same as if both
members were present. The division of the house into dis-
tinct political parties facilitates this arrangement, and mem-
bers 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 recogni-
tion of this practice, although it has never been expressly con-
demned;1 and it is therefore conducted privately by individual
members, or arranged by the peers or gentlemen who are
entrusted by their political parties, with the office of collect-
ing their respective forces on a division.
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.
On the 27th February and 3rd March 1721, it was ordered,
“That such lords as shall make protestation, or enter their dissents
to any votes of this house, as they 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, other-
wise the same shall not be entered; and shall sign the same before the
rising of the house the same day.” 2
Sometimes leave is given to lords to enter a protest against
any vote of the house, some time after the period limited by
the Standing Order.
1 On the 6th March 1743, a motion members as shall offend therein ;''
was made," that no member of this but it was negatived, on division.
house do presume to make any agree-
24 Com. J. 602.
ment with another member to absent 2 Lords' S. O. No. 32. As to dis-
themselves from any service of this dents in judicial cases, see Macqueen,
house, or any committee thereof; and
28, 29.
that this house will proceed with 3 101 Lords' J. 257. 180.
the utmost severity against all such
When to be
entered.
PROTESTS.
419
.1
When a protest has been drawn up by any peer, other lords
may either subscribe it without remark, if they assent to all
the reasons assigned in it; or they may signify the particular
reasons which have induced them to attach their signatures ;
but, by the usage of the House of Lords, the privilege of
entering a protest is restricted to those lords who were present
and voted upon the question to which they desire to express
their dissent. But leave is sometimes given to lords to sign
the protest of another peer, although they were not present
when the question was put. Any protest or reasons, or parts Protest
thereof, if considered by the house to be unbecoming, or
expunged.
otherwise irregular, may be ordered to be expunged. Pro-
tests or reasons expunged by order of the house, have also
been followed by a second protest against the expunging of
the first protest or reasons, by which the object of the house
has been defeated. On the 10th April 1690, certain reasons
having been expunged, the Duke of Somerset desired that,
as he had protested for those very reasons, he might have
leave to withdraw his name from the protest, which was
granted to him, and to any other lords who pleased. On the Protest
24th June 1824, leave was given to the peers who had entered
a protest against the Earl Marshal's bill, to withdraw and
amend it, as it stated certain facts incorrectly.
In both houses, personal interest affects the right of mem- Personal
bers to vote, in certain cases. In 1796, a general resolution
withdrawn.
6
interest.
1 Protests with reasons date from
1641. 2 Lord Clarendon, Hist. Reb.
b. 4, p. 407.
2 101 Lords' J.493; 10th Feb. 1823.
"The Duke of Somerset had not
voted on the question for the ad-
dress, but had nevertheless protested
against it; and upon motion, his
protest, he having been present at
the debate, though he had not voted,
was allowed to stand on the Journal."
55 Lords' J. 492. Lord Colchester's
Diary, üi. 273. See 87 Hans. Deb.
3rd Ser. p. 1137; protest against
Corn Importation Bill, where certain
peers who had not been present,
signed the protest.
3 16 Lords' J. 655. 757; 17 Ib. 55;
19 Ib. 220. 480, 481; 40 Ib. 49; 43
Ib. 82. See also Mr. Thorold Rogers's
interesting collection of Protests of
the House of Lords, Preface.
4 14 Ib. 459 (8th and 10th April
1690); 2 Burnet's Own Time, 41;
16 Lords' J. 655; 19 Ib. 220; 21 Ib.
695. 710; 22 Ib. 73; 43 Ib. 82.
5 14 Ib. 459.
6 11 Hans. Deb. N. 9. 1482.
E E 2
420
PERSONAL INTEREST.
Peers.
a
Commons.
was proposed in the Lords, "That no peers shall vote who are
interested in a question :" but it was not adopted. It is
presumed, however, that such a resolution was deemed un-
necessary; and that it was held that the personal honour of
peer will prevent him from forwarding his own pecuniary
interest by his votes in Parliament. By Standing Order
No. 98, lords are “exempted from serving on the com-
mittee on any private bill, wherein they shall have any in-
terest.
In the Commons, it is a distinct rule, that no member who
has a direct pecuniary interest in a question, shall be allowed
to vote upon it: but, in order to operate as a disqualification,
this interest must be immediate and personal, and not merely
of a general or remote character. On the 17th July 1811,
the rule was thus explained by Mr. Speaker Abbot: “ This
interest must be a direct pecuniary interest, and separately
belonging to the persons whose votes were questioned, and
not in common with the rest of his Majesty's subjects, or on
a matter of state policy." 2 This opinion was given upon a
motion for disallowing the votes of the bank directors upon
the Gold Coin Bill, which was afterwards negatived without
a division.
No instance is to be found in the Journals in which the
vote of a member has been disallowed, upon questions of
public policy. On the 1st June 1797, however, Mr. Manning
submitted to the Speaker whether he might vote, consistently
with the rules of the house, upon the proposition of Mr. Pitt,
for granting compensation to the subscribers to the Loyalty
Loan, he being himself a subscriber. The Speaker explained
generally the rule of the house, and Mr. Manning declined to
vote. After the division, the votes of two other members
were objected to as being subscribers, but one stated that he
had parted with his subscription, and the other that he had
determined not to derive any advantage to himself; upon
1 40 Lords’ J. 640. 650.
2 20 Hans. Deb. 1001,
Questions of
public policy.
3 33 Hans. Parl. Hist. 791.
PERSONAL INTEREST.
421
1
which questions for disallowing their votes were severally
negatived.
On the 3rd June 1824, a division took place on a " Bill for
repealing so much of an Act 6 Geo. I., 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 ayes were personally 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 10th
July 1844, on the question for hearing counsel against a bill
for suspending certain actions for penalties under the gaming
laws, objections were taken to the votes of members who
were defendants : but one stated that it was not his intention
to take advantage of the provisions of the bill, and plead the
same in bar of such action; and the other that he had not
been served with any process. Motions for disallowing their
votes were, therefore, withdrawn. On the 11th July 1844,
the vote of a member upon the second reading of a public
bill relating to railways, was objected to upon the ground
that he had a direct pecuniary interest as the proprietor of
railroad shares : but a motion for disallowing his vote was
withdrawn.
The votes of members interested in private bills have Private bills.
frequently been disallowed. In 1800, the votes of three
members were disallowed, as having a direct interest in a
bill for incorporating a company for the manufacture of
flour, wheat and bread. On the 20th May 1825, notice was
taken that a member who had voted with the yeas on the
1 52 Com. J. 632.
2 79 Ib. 455.
3 99 Ib. 486.
4. Ib. 491.
5 35 Parl. Hist. 463–465. i Wal-
pole, Life of Spencer Perceral, 76–
78.
422
PERSONAL INTEREST.
report of the Leith Docks Bill, had a direct pecuniary interest
in passing the bill. He was heard in his place; and having
allowed that he had a direct pecuniary interest in passing
the bill: that on that account he had not voted in the com-
mittee on the bill; and that he had voted, in this instance,
through inadvertence, his vote was ordered to be disallowed."
In some cases the votes of members who were subscribers
to undertakings, proposed to be sanctioned by bills, have been
disallowed. But in some cases it has been held that it is
not sufficient to be interested in a rival undertaking. On the
22nd February 1825, a member voted against a bill for esta-
blishing 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 inte-
rest in opposing the bill. A motion was made that his vote
be disallowed : but after he had been heard in his place, it
was withdrawn.3
On the 16th June 1846, objection was taken to the vote
of a member who had voted with the noes, on the ground
that he was a director and shareholder in the Caledonian
Railway Company, and had a direct pecuniary interest in the
rejection of the Glasgow, Dumfries, and Carlisle Railway Bill.
Whereupon he stated that the sole direct interest that he had
in the Caledonian Railway was being the holder of twenty
shares, to qualify him to be a director in that undertaking;
and that he voted against the Glasgow, Dumfries, and Car-
lisle Railway, conceiving it to be in direct competition with
the Caledonian Railway, as decided by the legislature in the
last session. A question for disallowing his vote, on the
ground of direct pecuniary interest, was negatived.
On the second reading of the Birmingham and Gloucester
Railway Bill, 15th May 1845, objection was taken to one of
the tellers for the noes, as being a landholder, whose property
1 80 Com. J. 443.
2 Ib. 110 ; 91 Ib. 271.
3 80 Ib. 110.
4 101 Ib. 873.
PERSONAL INTEREST.
423
3
tees.
would be injured by the proposed line. A motion for dis-
allowing his vote was withdrawn. On the 15th July 1872,
objection was taken to two of the tellers in a division, who
had voted against the Birmingham Sewerage Bill, on the
ground of personal pecuniary interest, but was not sus-
tained.2
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 pro-
posed.
The principle of the rule which disqualifies an interested in commit-
member from voting, must always have been intended to
apply as well to committees as to the house itself: but it
is undeniable that a contrary practice had very generally
obtained in committees upon private bills, although it was
not brought directly under the notice of the house before
1844. In the case of the Leith Docks Bill, in 1825, noticed
above, it may be observed that the member stated he had
abstained from voting in the committee on the bill, on account
of his pecuniary interest. Some years later, the intention of
the house may be clearly collected from the following case :
On the 20th March 1843, the chairman of ways and means
having stated to the house that he had a personal interest
in the Lancaster Lunatic Asylum Bill, the house instructed
the committee of selection to refer the bill to the chairman
of the Standing Orders Committee, instead of the chairman
of ways and means. At length, on the 21st June 1844, the
Middle Level Drainage Bill Committee instructed their chair-
man to report that a member “had received an intimation
that he ought not to vote on questions arising thereon, by
reason of his interest in the said bill;" and desired the deci-
sion of the house upon the following question: "Whether a
1 100 Com. J. 436.
Plunket), 8th May 1883.
2 212 Hans. Deb..3rd Ser. 1135– 3 80 Com. J. 110; 91 Ib. 271.
1137. And see case of London and
North Western Railway Bill (Mr.
4 98 Ib. 129,
424
PERSONAL INTEREST.
member of the House of Commons, having property within
the limits of an improvement bill, which property may be
affected by the passing of the bill, has such an interest as,
in
the judgment of the house, disqualifies him as a member of
the house and the representative of general local interests,
from voting on all questions affecting the preamble or clauses
of the said bill.” On the 27th June, three different proposi-
tions were submitted to the consideration of the house, in
answer to the question suggested by the committee, which,
after a debate, were all ultimately withdrawn; when the
house agreed to an instruction to the committee, “that the
rule of this house relating to the vote, upon any question in
the house, of a member having an interest in the matter upon
which the vote is given, applies likewise to any vote of a
member so interested, in a committee." Since that time,
committees on opposed private bills have been constituted so
as to exclude members locally, or personally, interested; and
in committees on unopposed bills, such members are not en-
titled to vote. And a member of a committee on an
opposed private bill, or group of bills, will be discharged
from any further attendance, if it be discovered after his
appointment that he has a direct pecuniary interest in the
bills, or one of them.2
But though a member interested is disqualified from voting,
he is not restrained, by any existing rule of the house, from
proposing a motion or amendment. On the 26th July 1859,
Mr. Whalley moved an amendment to a clause added by the
Lords to a railway bill, in which he admitted that he was
personally interested. In the debate, exception was taken
to such an amendment having been proposed by a member
having a pecuniary interest: but the Speaker ruled that
though it was a well-known rule of the house, that a member
under such circumstances could not be permitted to vote, and
though the course adopted was certainly most unusual, yet
1
Member
interested
may proposo
motion or
amendment,
1 S. 0. Nos. 108-110.
2 101 Com. J. 904; 104 Ib. 357;
115 Ib. 218.
PERSONAL INTEREST.
425
money.
before com-
there was no rule by which the right of a member to make
a motion was restrained, and he had been given to under-
stand that Mr. Whalley did not intend to vote.
The law of Parliament regarding the acceptance of bribes Offer of
or pecuniary rewards for parliamentary services, has been
explained elsewhere.? And Parliament has also guarded
against other indirect pecuniary influences.
A member is incapable of practising as counsel before the Counsel
house, or any committee, not only with a view to prevent mittees, &c.
pecuniary influence upon his votes, but also because it would
be beneath his dignity to plead before a court of which he is
himself a constituent part. Nor is it consistent with parlia-
mentary or professional usage for a member to advise, as
counsel, upon any private bill, or other proceeding in Parlia-
ment.
It has also been declared contrary to the law and usage of Parliamen-
tary agency
Parliament, for any member to be engaged, either by himself
or any partner, in the management of private bills, before
this or the other house of Parliament, for pecuniary reward.3
And, upon the same grounds, it was ordered, on the 6th Counsel
November 1666,
Lords.
before the
“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." !
On the 12th July 1820, Mr. Brougham and Mr. Denman,
the queen's attorney and solicitor general, the king's attorney
and solicitor general, and Dr. Lushington, were permitted to
plead as counsel at the bar of the House of Lords, against
and in support of the bill then pending against her Majesty
Queen Caroline : but such leave was not to be drawn into a
precedent. It was also understood that, if the bill should be
1 155 Hans. Deb. 3rd Ser. 459.
2 Sce supra, p. 102.
3 85 Com. J. 107.
4 8 Ib. 646.
5 75 Ib. 444; 2 Hans. Deb. N. S.
400.
426
PERSONAL INTEREST,
received by the Commons, none of those gentlemen would be
permitted to vote
upon
it.
On the 18th July 1842, leave was given to Mr. Roebuck
to plead at the bar of the House of Lords, in support of the
Sudbury Disfranchisement Bill, which had already passed
the Commons. But on the 4th May 1846, the house de-
clined to permit Mr. Charles Buller to attend as counsel
before the House of Lords upon the Bolton Waterworks
Bill, which had passed the Commons, and had been sent up
to the other house; the Speaker saying, that in Mr. Roebuck's
case the bill involved a matter of public policy: but that he
knew of no precedent of leave being given to a member to
plead before the House of Lords on a private bill.?
It was formerly the custom to give leave to members to
plead at the bar of the House of Lords on appeals, the last
instance being in 1710, since which time members have been
accustomed to plead without leave, in all judicial cases before
the House of Lords, and before the committee of privileges.
1
Appeals and
committee of
privileges.
1 97 Com. J. 499.
2 101 Ib. 627; 86 Hans. Deb. 3rd
Ser. 92; see also 8 Com. J. 322;
9 Ib. 86 (Dean Forest Bill).
3 3 Com. J.88; 10 Ib. 336; 16 Ib.
436.
4 See 1 Hans. Deb. N. S. 402.
$
COMMITTEES OF THE WHOLE HOUSE.
427
CHAPTER XIII.
COMMITTEES OF THE WHOLE HOUSE: GENERAL RULES OF PROCEED-
ING: CHAIRMAN: MOTIONS AND DEBATE: HOUSE RESUMED,
A COMMITTEE of the whole house is, in fact, the house itself, Mode of
presided over by a chairman, instead of by the Speaker. It appointment.
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 Commons it is appointed
by a resolution, " That this house will immediately, or on a
future day, resolve itself into a committee of the whole
house."
When a future day is appointed, the committee
stands as an order of the day, which being read, a question
is put by the Speaker, “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 placed
under it, and the committee commences its sitting.
The chair is taken, in the Lords, by the chairman of com- Chairman of
mittees, who is appointed at the commencement of each
session, by virtue of the Standing Orders of that house, by
which it is ordered that he
Lords' com.
mittee,
" Do take the chair in all committees of the whole house, and in all
committees upon private bills, unless where it shall have been other-
wise directed by this house." 2
" That when the house is in a committee of the whole house, if the
chairman of committees, or any lord appointed by the house in his
place, shall be absent (unless by leave of the committee), the house be
resumed." 3
In pursuance of these orders, in the absence of the chair-
man of committees, the committee cannot proceed to business:
but the house is resumed, and a chairman is appointed by the
1 Lords' S. O. No. 2.
2 Ib. No. 38, and 42 Lords' J. 636.
3 Ib. No. 39,
428
COMMITTEES OF THE WHOLE HOUSE.
Chairman of
committees in
If a
house. But another chairman is usually appointed before
the house goes into committee, or for the whole day. On
the 10th February 1871, it was ordered, that Viscount
Eversley be appointed to take the chair in committees of
the whole house, in the absence of Lord Redesdale, from
illness.3
In the Commons the chair (at the table) is generally taken
the Commons. by the chairman of the committee of ways and means.
difference should arise in the committee concerning the elec-
tion of a chairman, it must be determined by the house itself,
and not by the committee. The Speaker resumes the chair
at once, and a motion being made, " That A. B. do take the
chair of the committee;" the Speaker puts the question, 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.4
On the 2nd February 1810, the Speaker having left the
chair for the house to go into committee of ways and means,
Mr. W. Smith, addressing himself to Mr. Ley, the clerk,
begged to say a few words to the house. The Speaker inter-
posed, and explained that if any difference of opinion arose
on the subject of who should be called to the chair, it could
not be discussed in the incomplete state in which the house
then was. The chancellor of the exchequer then called upon
Mr. Lushington to take the chair, and Mr. W. Smith upon
Mr. Davies Giddy; whereupon the Speaker immediately
returned to the chair, and said that now was the time to
propose
who should be chairman of the committee.5 On the
2nd March 1883, Mr. Playfair having resigned the office
of chairman of ways and means, Sir Arthur Otway was
called to the chair, but Mr. Raikes having risen to address
1 It was otherwise before the 3rd
July 1848, when S. O. No. 38 was
amended. See Lords' J. and De-
bates, 22nd June 1818.
2 80 Lords' J. 125. 406; 81 Ib.
233; 88 Ib. 38; 95 Ib. 106.
3 103 Ib. 12.
4 1 Com. J. 650; 9 Ib. 386; 13 Ib.
794 ; 21 Ib. 255; 40 Ib. 1126; 65
Ib. 30, &c. ; 3 Grey's Debates, 301.
5 15 Hans. Deb. 302.
COMMITTEES OF THE WHOLE HOUSE,
429
1
the committee, Mr. Speaker resumed the chair; and upon
question, it was ordered that Sir A. Otway do take the chair
of the committee.
During prolonged sittings it has been customary for the
chairman to withdraw, and to be replaced by another member,
without any question. But exception having been taken to
this long-established practice, notice was given of the follow-
ing Standing Order in April 1883, the consideration of which
has been delayed :
" That Mr. Speaker be requested to nominate, in every session, six Temporary
members to serve as chairmen of committees; and any such member chairmen.
may take the chair of a committee of the whole house, when requested
by the chairman of ways and means, or by the chairman for the time
being, or in the absence of the chairman of ways and means; or, if
occasion shall arise, any other member may be called to the chair:
provided, that if any difference shall arise, the question that he do
take the chair shall be put forthwith.”
When a chairman of ways and means has retired, during Retirement of
the sitting of Parliament, it has been usual for him to chairman.
announce his retirement to the house, when observations
have been made by the ministerial and opposition leaders.3
The proceedings in committee are conducted in the same Conduct of
business.
manner as when the house is sitting. In the Lords, a peer
addresses himself to their lordships, as at other times : in the
Commons, 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, maintains order, and gives the casting
vote, in case of an equality of voices. Indeed, the rules of
procedure and debate are generally the same in the house,
in committees of the whole house, and in select committees.
And the chairman of a committee of the whole house has
powers like those of the Speaker in maintaining the authority
-1 Votes, p. 106; Hans. Deb. 2nd
March 1883.
2 132 Com. J. 395; 137 Ib. 322,
1853; 125 Hans. Deb. 3rd Ser. 591.
Mr. Dodson, April 8th, 1872; 210
Ib. 892. Mr. Lyon Playfair, 1st
March 1883.
4 Lords' S. O. Nos. 36, 37.
&c.
3 Colonel Wilson Patten, 5th April
430
COMMITTEES OF THE WHOLE HOUSE.
of chairman.
of the chair, in checking irrelevance, obstructive motions and
vexatious divisions, and in declaring the evident sense of the
committee that a question be now put.
Casting voice On the 28th June 1848, in committee on the Roman
Catholic Relief Bill, the numbers in a division were equal,
and the chairman gave his casting voice. It was stated, in
debate, that no such case was recollected, and doubts were
expressed as to the regularity of the proceeding; but a similar
case had already arisen in committee on the Highways Bill,
on the 25th June 1834;2 it was clearly consistent with the
rules of the house, and has since been followed without ques-
tion. As regards select committees, the rule had been de-
clared by the house;4 and there can be no principle at variance
with the practice which was adopted on this occasion. In
giving his casting voice, the chairman is governed by the
same principles as the Speaker. Thus, on the 29th July
1869, the numbers being equal in committee of supply, upon
the reduction of a vote, the chairman declared himself with
the noes, as the committee would have an opportunity of
voting upon any other reduction of the proposed vote.
The ordinary function of a committee of the whole house
mittees of the is deliberation, and not inquiry. All matters concerning
whole house. religion, trade, the imposition of taxes, or the grant of public
money, are required to be considered in committee, as a
preliminary to legislation ; and any other questions which, in
the opinion of the house, may be more fitly discussed in com-
mittee, are dealt with in that manner." The provisions of
every public bill are also considered in a committee of the
whole house.
General func-
and Orders, No. 203.
4 91 Com. J. 214; and see infra,
p. 461.
1 Some of these powers, however,
are confined to the chairman of ways
and means. See Chap. XI. (RULES
OF DEBATE).
2 89 Com. J. 430.
3 3rd Aug. 1859; 114 Com. J. 333.
21st May 1860; 115 Ib. 256. 7th
Aug. 1876 ; 131 Com. J. 398. Rules
5 See Hans. Deb. 28th June 1848.
6 198 Hans. Deb. 3rd Ser. 950.
? Education, 1856 ; Government of
India, 1858.
COMMITTEES OF THE WHOLE HOUSE.
431
But important inquiries have been entrusted to such com-
mittees; as, for example, in 1744, the cause of the miscarriage
of the fleet before Toulon;' in 1782, the want of success of
the naval forces, during the American war;2 in 1809, the
conduct of the Duke of York ;3 in 1810, the failure of the
expedition to the Scheldt ;4 and, in 1808 and 1812, the
operation of the Orders in Council. In conducting such in-
quiries, committees of the whole house have examined wit-
nesses at the bar.. But however imposing such a tribunal
may be, it is obviously ill-adapted to close and consecutive
examinations, while the time occupied by its inquiries is a
serious impediment to the general business of the session. In
1790, committees of the whole house on the African slave
trade were assisted in their inquiries by select committees
appointed to take the examination of witnesses, and report
the minutes of evidence to the house. And of late years
no such inquiries have been referred to committees of the
whole house, while the investigation of matters of equal im-
portance has been more satisfactorily entrusted to secret and
select committees.
A committee can only consider those matters which have Matters
been committed to them by the house. If it be desirable committed.
that other matters should also be considered, an instruction
is given by the house, to empower the committee to entertain
them. An instruction should always be moved as a distinct
question, after the order of the day has been read; and not
as an amendment to the question for the Speaker leaving the
chair. The latter form has occasionally been resorted to, but
1 24 Com. J. 773.
2 38 Ib. 644.
3 64 Ib. 15.
4 65 Ib. 14.
6 63 Ib. 199; 67 Ib. 333.
6 45 Ib. 11 ; 46 Ib. 149.
9 War in the Carnatic, 1781; 58
Com. J. 430. 435. Victualling the
Navy, 1782; 58 Ib. 871. Naval In-
quiry, 1805 ; 60 Ib. 214. 413. Army
before Sebastopol, 1855; 110 Ib. 36;
and see debate on its appointment;
136 Hans. Deb. 3rd Ser. 979. 1121.
8 See 156 Hans. Deb. 3rd Ser.
1720 (French Treaty in Committee
on Customs Act).
9 75 Com. J. 431; 76 Ib. 137, 138;
78 Ib. 107 (Bills); 80 Ib. 111; 88 Ib.
163; 113 Ib. 207; 150 Hans. Deb.
3rd Ser. 1503; 124 Com. J. 341.
432
COMMITTEES OF THE WHOLE HOUSE.
Instructions
and amend-
ments on
going into
committee.
is an inconvenient mode of proceeding, unless its object be to
prevent the sitting of the committee; as the amendment, if
agreed to, supersedes the question for the Speaker leaving the
chair.
All motions for instructions, unless founded upon resolu-
tions of a committee of the whole house, and amendments to
the question for Mr. Speaker leaving the chair' (except in the
case of committees of supply and ways and means), are moved
before the first sitting of the committee. By Standing Order,
25th June 1852,
When a bill or other matter (except supply or ways and means)
has been partly considered in. committee, and the chairman has been
directed to report progress, and ask leave to sit again, and the house
shall have ordered that the committee shall sit again on a particular
day, the Speaker shall, when the order for the committee has been
read, forthwith leave the chair, without putting any question, and the
house shall thereupon resolve itself into such committee."
When there
are several
When there are several amendments to be proposed to the
amendments. question that the Speaker “do now leave the chair,” if the
first amendment be negatived, by the house affirming that the
words proposed to be left out shall stand part of the question,
no other amendment can be offered : but if the amendment
be carried, and it be nevertheless desired to proceed with the
order of the day, it is necessary to move that this house will
immediately resolve itself into a committee of the whole house
(a question which, under other circumstances, is omitted);
when a second question for the Speaker to leave the chair
being proposed, another amendment may then be offered.2
But this expedient is practically confined to the committee of
supply.
I See also Chapter XVIII. on Ib. 124. Forms of Prayer, 13th July
BILLS.
1858; 113 Ib. 306; 115 Ib. 454.
2 Committee of Supply; (Amend. Flogging in the army, &c., 15th
ment relating to assistant surgeons, March 1867; 122 Com. J. 106; Re-
Navy), 8th April 1850; 105 Com. J. cruits, 16th May 1867; Ib. 219; 133
198. (Amendment relative to Billet- Ib. 266. And see Chapter XXI. on
ing Soldiers), 7th April 1856; 111 SUPPLY, infra, p. 616.
COMMITTEES OF THE WHOLE HOUSE.
433
not to be
discussed in
When notice has been given of resolutions intended to be Resolutions to
proposed in committee, it is irregular to anticipate the dis- in committee
cussion of them on the question that the Speaker do now
leave the chair, as the house can have no cognizance of them, the house.
until they have been reported by the committee. But when
an amendment is proposed, affirming principles adverse to the
intended resolutions, the sound principle of this rule cannot
be observed.
It is an established rule that a motion in committee need Motion not
not be seconded, the propriety of which has sometimes been seconded in
questioned. It derived confirmation from the former prac-
tice of appointing one teller only 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
committee. The principle of this rule is not perhaps very
question.
clear: but such a question is less applicable to the pro-
ceedings of a committee. A subject is forced upon the
attention of the house, at the will of an individual member:
but in committee the subject has already been appointed for
consideration by the house, and no question can be proposed
unless it be within the order of reference. Motions, however,
having the same practical effect as the previous question,
have sometimes been allowed in committees on bills ;4 and a
motion that the chairman do now leave the chair, offered
before any resolution has been agreed upon, and with a view
to anticipate and avert such resolution, has precisely the
same effect as the previous question.
On the 3rd November 1675, it was declared to be an Question of
sums and
dates.
1 So ruled (privately) by the Speaker of the rule, and thought it incon-
in 1856, in reference to the proposed venient, ii. 116.
resolutions upon education.
+ See Chapter XVIII. on BILLS.
2 See Mr. Cobden'snotice of amend- 5 Mr. Henley's motion in Com-
ment upon this same committee. mittee on Education, 10th April 1856;
3 Hatsell did not know the reason 111 Com. J. 134.
5
P.
F' '
434
COMMITTEES OF THE TVHOLE HOUSE.
ancient order of the house, “that when there comes a question
between the greater and lesser sum, or the longer or shorter
time, the least sum and longest time ought first to be put to
the question." This rule has more immediate reference to
the committees of supply, and ways and means (where, how-
ever, it has been nearly superseded by later regulations):
but is occasionally observed in other committees, in cases to
which the rule is applicable.?
Resolution A resolution proposed in a committee of the whole house
cannot be
postponed cannot be postponed : it is a question before the committee
which must be withdrawn, negatived, amended or agreed to:
but, like a question proposed in the house itself, cannot be
otherwise disposed of.3
Amendments When a resolution is proposed in a committee, every
to questions
in committee.
amendment may be moved, which might be moved to such
a resolution, if proposed in the house itself.* Thus, in com-
mittee on the government of Canada, on the 14th April 1837,
an amendment was moved to leave out all the words after
" that," in a resolution, in order to add other words ;5 and
again, on the 3rd May 1858, a similar amendment was moved
in committee on the government of India. Such a pro-
ceeding, however, would not be admissible in considering the
clause of a bill. In committee, amendments are proposed to
the " proposed resolution," and not to the “question," as in
the proceedings of the house.
Royal mes Where a message from the Crown has been referred to a
committee of the whole house, the proceedings are opened by
the reading of such message by the chairman.8
Members may
The main difference between the proceedings of a com-
speak more
mittee and those of the house is, that in the former a member
7
sage read.
than once.
1 9 Com. J. 367.
2 See Chapter XXI. on SUPPLY.
3 Government of India, 30th April
1858; 149 Hans. Deb. 3rd Ser. 2066.
4 For examples of proceedings
upon amendments to resolutions, see
108 Com, J. 190. 193. 198; 109 Ib.
254; 113 Ib. 148, 159, &c.
5 92 Com. J. 264.
6 113 Ib. 148.
i This variation of practice ap-
pears to have been introduced in
1852 ; 108 Ib. 187, 188.
8 112 Com.J.170; 116 Ib. 189, &c.
COMMITTEES OF THE WHOLE HOUSE,
435
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 contra." These facilities for speaking are too
often abused, so as to protract the debates : but are otherwise
calculated, in ordinary cases, to discourage long speeches, and
to introduce a more free and conversational mode of debating.
When a member may not speak more than once, he cannot
omit any argument that he is prepared to offer, as he will
not have another opportunity of urging it: but when he is at
liberty to speak again, he may confine himself to one point
at a time. It cannot, however, be denied that an unrestricted
right of debate offers special opportunities for delay and
obstruction.
Members must speak standing and uncovered, as when the To speak
standing.
house is sitting, although it appears that, in earlier times,
they were permitted to speak either sitting or standing. On
the 7th November 1601, in a committee on the subsidy or
supply, Sir Walter Raleigh was interrupted by Sir E. Hobby,
who said, “We cannot hear you; speak out; you should
speak standing, that so the house might the better hear you.”
To this Raleigh replied, " that being a committee, he might
either speak sitting or standing." Mr. Secretary Cecil rose
next, and said, "Because it is an argument of more reverence,
I chuse to speak standing."3
It was ordered and declared by the Lords, 10th June 1714, House
resumed.
"That when the house shall be put into a committee of the whole
house, the house be not resumed without the unanimous consent of
the committee, unless upon a question put by the lord who shall be in
the chair of such committee." 4
In the Commons, if any doubt should arise as to a point Chairman
of order or other proceeding, which the committee cannot chair.
agree upon, or which may appear beyond their province to Commons.
leaves the
3
1 Lords' S. O. No. 36.
2 248 Hans. Deb. 3rd Ser. 406.
1 Hans, Parl. Hist. 916.
4 Lords' S. 0, No. 40.
FF 2
436
COMMITTEES OF TIIE WHOLE HOUSE.
decide, the chairman should be directed to report progress,
and ask leave to sit again. Thus, on the 2nd March 1836,
a debate having concluded in committee, the chairman stated,
that before he put the question he wished to have the
opinion 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 this 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 committee 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. In the same manner, on the 6th May 1853,
a question of order having arisen upon a member's claim to
speak, the chairman reported progress, and the Speaker
settled the point of order. But unless the committee require
directions from the house, the regularity of its proceedings
cannot afterwards be questioned. On the 16th May 1878, a
member, having contested a ruling of the chairman, moved
to report progress, in order to take the direction of the
Speaker; but it was explained in debate that there was no
appeal to the Speaker, unless the committee desired the
authority and orders of the house. There is, indeed, no
ground whatever for assuming that members may appeal
from the chairman to the Speaker. Neither is it regular to
discuss, in committee, the conduct of the Speaker or the
proceedings of the house.
4 21st Feb. 1860; 156 Hans. Deb.
2 126 Hans. Deb. 3rd Ser. 1240 ; 3rd Ser. 1474. See also 170 Ib. 109;
and again 5th July 1855 ; 110 Com. 176 Ib. 31.
J. 352.
5 248 Ib. 61.
3 Hans. Deb. 16th May 1878.
1 91 Com. J. 104.
COMMITTEES OF THE WHOLE HOUSE.
437
resumes the
If any public business should arise in which the house is Speaker
concerned, the Speaker resumes the chair at once, without chair in
any report from the committee; as if the usher of the black certain cases.
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 occur3 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 pru-
dently 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 having been forcibly laid upon
the table, all the disorder ceased, and the gentlemen went
to their places. The Speaker being sat, spoke to this pur-
pose, “That to bring the house into order again, he took
the chair, though not according to order.” No other entry
appears in 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 generally approved, as the only expedient to suppress
the disorder."4 The Speaker certainly acted with judgment
on that occasion, and it appears from a more recent case, that
he was clearly in order.
On the 27th February 1810, a member who, for disorderly
conduct, 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. In less pressing
1 126 Com. J. 433.
4 3 Grey's Deb. 129.
2 67 Ib. 431.
3 1 Ib. 837.
5 65 Com. J. 134,
438
COMMITTEES OF THE WHOLE HOUSE.
cases of disorder, it has been usual for the committee to report
progress; when the chairman reports the circumstances to
the house. On the 6th March 1815, while the house was
in committee on the Corn Bill, tumultuous proceedings took
place outside; and Mr. Lambton having complained that the
house was surrounded by a military force, the Speaker was
sent for, and the house was resumed. The house has also
been resumed on account of words of heat or disputes between
members;3 or when words have been taken down in order
to be reported to the house. On the 8th March 1881, a
member having been named by the chairman as disregarding
the authority of the chair, and suspended accordingly by the
committee, the chairman left the chair, in order to report the
resolution to the house. 5 On the 30th June 1882, the
chairman having named several members as being guilty of
wilfully and persistently obstructing the business of the
house, and having reported the resolution of the committee
that they be suspended, which was repeated by the house,
further reported that a member, sitting in his place, had
insulted him. The conduct of the member was then ordered
to be considered on another day, and the house again resolved
itself into committee.
A committee of the whole house, in the Commons, like the
house itself, cannot proceed with business unless forty mem-
bers be present: but it has no power of adjournment. When
notice, therefore, is taken that forty 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 counts the house. If forty members
6
Forty mem-
bers required.
1 3rd July 1861 (The O'Gorman
Mahon), 106 Com. J. 333; 9th Juno
1852 (Mr. F. O'Connor), 107 Ib. 278;
30th June and 1st July 1882 (sus-
pension of members); 137 Ib. 323,
324.
2 70 Com. J. 143 ; 2 Lord Col-
chester's Diary, 531.
3 10 Com. J. 806; 11 Ib. 480; 43
Ib. 467.
4 1 Ib. 866; 18 Ib. 653 ; 106 Ib.
313. Mr. Duffy, 5th May 1853;
108 Ib. 461. Mr. Parnell, 25th July
1877; 132 Ib. 375.
0 136 Com. J. 111.
f 137 Ib. 323.
COMMITTEES OF THE WHOLE HOUSE.
439
be then present, the house again resolves itself into the com-
mittee:1 but if not, the Speaker adjourns the house, without
a question first put, provided it be after four o'clock. If,
however, it be before four o'clock, the Speaker continues
sitting until forty members have come into the house, or
until four o'clock, when he adjourns the house. So, also, if
it appear on a division in committee, that forty members are
not present, the chairman leaves the chair, and the Speaker
counts the house in the same manner.3
A committee of the whole house has no power either to Cannot
adjourn.
adjourn its own sittings, or to adjourn a debate to a future
sitting: but if a debate be not concluded, or if all the matters
referred be not considered, in the Lords, the house is resumed, Lords.
and the chairman moves, " that the house be again put into
committee" on a future day; and in the Commons, the chair- Commons.
man is directed to “report progress, and ask leave to sit
again.” If the committee has agreed to certain resolutions,
but is unable to conclude the discussion of other resolutions,
it is customary to direct the chairman to report the former,
and to report progress upon the latter. So entirely is the
principle of adjourning debates in committees of the whole
house ignored, that when resolutions have been proposed, and
progress reported before they were agreed to, resolutions
upon other distinct matters have been proposed, and agreed
to, at ensuing sittings of the committee, and the resolu-
tions first proposed taken up again on a more distant day.
Thus, on the 17th February 1851, in committee of ways and
means, a resolution for the continuance of the income tax
was proposed, and progress reported. On the 18th March, a
1 sth July 1845; 100 Com. J.701.
2 91 Com. J. 659; 121 Ib. 272. In
December 1648, 80 many members
were in prison that sometimes there
were not enough to make a house,
and the Speaker was “obliged to
send to the guards to bring in somo
of their prisoners to make up the
number of 40; and when tho jobb
was done, to receive thom again into
custody." Carte's Hist. iv. 601.
3 85 Com. J. 60, &c.
* Customs and Corn Importation,
1846; 101 Com. J. 280, 281. Com-
mittce of Ways and Means (Income
Tax), 1853; 108 Ib. 431. Customs,
1854; 109 Ib. 470. Supply, 5th Aug.
1867; 122 Ib. 429.
440
COMMITTEES OF THE WIIOLE HOUSE.
4
resolution was agreed to for paying 8,000,0001. out of the
consolidated fund; and on the 4th April, the resolution for
the continuance of the income tax was again proposed, and
agreed to. And again, on the 28th April 1853, a resolution
was proposed upon the income tax, and progress reported.
The committee sat again the same day, when, instead of re-
suming the discussion upon that resolution, another resolution
was proposed upon exchequer bills ;? and on the 29th April,
the resolution upon the income tax was again proposed.3
For this reason no member can claim to speak first on the
renewal of a debate in committee, on the ground that he
was in possession of the committee, when the chairman had
reported progress.
Motions to It is the practice for members who desire an adjournment,
report
progress, &c. to move that the “chairman do report progress,” in order to
put an end to the proceedings of the committee on that day,-
this motion, in committee being analogous to that frequently
made at other times, for adjourning the debate. A motion
“That the chairman do now leave the chair," when carried,
supersedes the business of a committee, as an adjournment
of the house supersedes a question; and when the Speaker
resumes the chair, no report whatever is made from the com-
mittee. But no such motion can be interposed while any
member is speaking. On the 6th August 1855, in committee
on the Crime and Outrage (Ireland) Bill, while the question
for reporting progress was under discussion, notice was taken
that forty members were not present, and the chairman having
counted the committee, left the chair. On the following day
the committee was revived.
A motion to report progress having been negatived, cannot
be repeated during the pendency of the same question, being
6
1 106 Com. J. 57. 101. 145.
2 108 Ib. 442.
3 Ib. 446.
1 So ruled by Mr. Speaker, 6th
May 1853 (Mr. Duffy); and again
by the chairman, 7th June 1858
(Mr. Roebuck).
5 86 Com. J. 403; 89 Ib. 381. 468;
90 Ib. 497. 561; 117 Ib. 177.
.
6 110 Ib. 449.
3
COMMITTEES OF TIME WHOLE HOUSE.
441
subject to the same rule as that observed in the house itself,
which will not admit of a motion for the adjournment of the
debate to be repeated, without some intermediate proceeding.
It has, therefore, been customary to alternate the motion for
reporting progress with the motion “ that the chairman do
now leave the chair."I On the 7th June 1858, in committee
on the government of India, a question for reporting progress
having been negatived, the committee, some time afterwards,
were prepared to assent to such a motion : but, in order to
adhere to the rule, the chairman put the question upon a
formal part of an amendment which had been proposed,
before he proceeded to put the question for reporting pro-
gress. In some cases committees have reported that they
had not made progress.
By Standing Order of the 28th November 1882:-
" When a motion is made that the chairman of a committee do
report progress, or do leave the chair, the debate thereupon shall be
confined to the matter of such motion; and no member, having moved
or seconded any such motion, shall be entitled to move, or second, any
similar motion during the same debate."
Again, by another Standing Order, if the chairman shall be
of opinion that a motion, that the chairman do report progress
or do leave the chair, is an abuse of the rules of the house, he
may forthwith put the question. And by another Standing
Order of the same date, on a motion that the chairman do
report progress or do leave the chair, “if the decision of the
chairman that the 'ayes' or 'noes' have it is challenged, he
may call upon the members challenging it to rise in their
places, and if there be less than twenty in a house of forty
members, he may forthwith declare the determination of the
house."
1 On the 2nd July 1877, there
were seventeen divisions, in Com-
mittee of Supply, upon such motions;
132.Com. J. 312.
2 113 Ib. 214; 150 Hans. Deb.
3rd Ser. 1688. See also Proceedings
in Committee on Roman Catholic
Charities Bill, 21st June 1860.
3 116 Com. J. 300. 333. 356.
442
COMMITTEES OF THE WHOLE HOUSE.
Sittings
suspended.
Report.
Chairman to
leave the
chair without
question.
Report of
resolutions.
But although a committee of the whole house cannot
adjourn, its sitting may be suspended for a certain time, like
the sitting of the house itself, as was done on the 11th
August 1848;1 but such a proceeding is rarely necessary
except during the occasional absence of the chairman.
If none of the interruptions and delays to which com-
mittees are liable should occur, the chairman is directed to
report the resolutions or other proceedings to the house.
Sometimes he is instructed to move for leave to bring in
bills, or to inform the house of matters connected with the
inquiries or deliberations of the committee; and until such
report has been made, no reference may be made to it, nor
to the proceedings of the committee. Formerly this ques-
tion was followed by another, “ that I do now leave the
chair"; but as this formal question was sometimes made the
Occasion for further debate, it was provided by Standing
Order, 27th November 1882,
"That when the chairman of a committee has been ordered to make
a report to the house, he shall leave the chair without question put."
By Standing Order, 19th July 1854,"every report from
a committee of the whole house is to be brought up without
any question being put.” When the resolution of a com-
mittee relates to the grant of any public money, or the im-
position of a tax upon the people, the chairman reports that
the committee have agreed to a resolution which they have
directed him to report to the house; and the house orders
the report to be received on a future day: but resolutions
upon all other matters are reported immediately. On the
25th July 1849, a committee of the whole house agreed to a
resolution to authorise the collection of fees in the Court of
Bankruptcy by means of stamps, which was reported forth-
with, as the fees were not increased, but the mode of col-
lection only altered. The resolutions reported by a com-
mittee are twice read before they are agreed to by the house;
and on the question for reading them a second time, any
1 101 Hans. Deb. 3rd Ser, 90. See also 9 Com. J. 68.
!
!
COMMITTEES OF THE WHOLE HOUSE.
443
relevant amendment may be proposed, or general discussion
upon the subject matter raised : but when they have been
read a second time, no amendment or debate is permitted,
except in regard to each resolution.2 Every resolution
may be amended, disagreed to,4 postponed, or recommitted
to the committee.6 Resolutions which have been recom-
mitted to a committee of the whole house, and reported,
have been again recommitted to the committee.' The first
reading (by the clerk) is a formal proceeding, without any
question : but the question for reading resolutions a second
time is put from the chair, and may be the subject of debate
and amendment. An amendment proposed to the question
for reading a resolution a second time, takes precedence
of an amendment proposed to the resolution itself, which is
proposed after the second reading, and before the question
is put, for agreeing with the committee in the resolution.
In the Commons, the principal proceedings in committees
of the whole house are in reference to bills, and the voting
of supply, and ways and means; of which a description will
.
be found in the chapters relating to these matters.10
Since 1832, the annual appointment of the ancient Grand Grand
Committees 11 for Religion, for Grievances, for Courts of committees.
Justice, and for Trade, has been discontinued. They had
long since fallen into disuse, and served only to mark the
ample jurisdiction of the Commons in Parliament. When
they were accustomed to sit, they were, in fact, constituted
like committees of the whole house, 12 but sat at times when
the house itself was not sitting: 13
1 119 Com. J. 171.
(Consolidated Fund) Report, 28th
2 174 Hans. Deb. 3rd Ser. 1551. April 1845; 100 Com. J. 351.
3 112 Com. J. 227; 119 Ib. 333. 9 112 Com. J. 175.
4 75 Ib. 379; 76 Ib.440; 95 Ib. 169. 10 See Chapters XVIII. and XXI.
5 77 Ib. 314; 83 Ib. 509.
11 1 Com. J. 873.
6 77 Ib. 314; 119 Ib. 122.
12 1 Com. J. 220. 822. 1042, &c.;
7 S3 Ib. 533.
2 Ib. 3. 153. 202. 321, &c. Lex
8 Tithes (Ireland), 2nd April 1832; Parl. 339. Scobell, 35-38. 4 Rush-
87 Com. J. 242. Maynooth College worth, Col. 19. See also 3 Lord
13 3rd April 1626; 1 Com. J. 843; 14th April 1641; 2 Ib. 120, &c.
444
COMMITTEES OF THE WHOLE HOUSE.
Committee of
privileges.
The ancient committee of privileges is also analogous to a
grand committee, consisting of certain members specially
nominated, of all knights of shires, gentlemen of the long
robe, and merchants in the house; and “all who come are to
have voices.” This committee is still appointed at the com-
mencement of each session : but it is not nominated or ap-
pointed to sit, unless there be some special matter to be
referred to it, as was the case in 1847.1
An approach to the revival of the ancient grand committees
was made by the house in 1882. By Standing Orders, 1st
December 1882, in force until the end of the session of 1883,
Standing "Two standing committees are to be appointed for the consideration
committees
of all bills relating to law and courts of justice and legal procedure,
on law and
courts of
and to trade, shipping and manufactures, which may, by order of the
justice,
house, in each case, be committed to them; and the procedure in such
trade, &c.
committees shall be the same as in a select committee, unless the house
shall otherwise order : provided, that strangers shall be admitted,
except when the committee shall order them to withdraw: provided
also, that the said committees shall be excluded from the operation of
the Standing Order of 21st July 1856, and the said committees shall
not sit, whilst the house is sitting, without the order of the house :
provided also, that any notice of amendment to any clause in a bill,
which may be committed to a standing committee, given by any
honourable member in the house, shall stand referred to such com-
mittee : provided also, that twenty be the quorum of such standing
committees.”
Nomination " Each of the said standing committees is to consist of not less than
by committee sixty, nor more than eighty, members, to be nominated by the com-
of selection.
mittee of selection, who shall have regard to the classes of bills com-
mitted to such committees, to the composition of the house, and to the
qualifications of the members selected; and shall have power to dis-
charge members from time to time, and to appoint others in substitu-
tion for those so discharged. The committee of selection shall also
have power to add not more than fifteen members to a standing
committee in respect of any bill referred to it, to serve on the com-
mittee during the consideration of such bill.”
Colchester's Diary, 481. 56 Awhile
we had a less number present in the
grand committee on subsidies) than
forty, which we account, by the
orders of the house, to be the least
number present at a grand com-
mittee;" D'Ewes, 5th June 1641;
Harleian MSS.
103 Com. J. 139 (West Glou-
cester Election).
1
COMMITTEES OF THE WHOLE HOUSE,
445
“The committee of selection shall nominate a chairmen's panel, to Appointinent
consist of not less than four nor more than six members, of whom of chairman.
three shall be a quorum; and the chairmen's panel shall appoint, from
among themselves, the chairman of each standing committee, and may
change the chairman so appointed from time to time."
“ All bills which shall have been committed to one of the said Commitment
standing committees shall, when reported to the house, be proceeded and report of
bills.
with as if they had been reported from a committee of the whole
house: provided, that the provisions of the Standing Order (consi-
deration of a bill, as amended) shall not apply to a bill reported to
the house by a standing committee.”
Two committee rooms were specially prepared for these
standing committees, and they commenced their sittings in
April 1883, with every promise of success.
In the Commons, the proceedings of committees have been Entry of pro-
entered in the Journals since the 23rd February 1829, when ceedings in
.
the Speaker submitted to the house that arrangements should
be made to effect that object, to which the house assented.
All amendments in committee on bills, upon which divisions
arise, are fully entered in the Votes; but verbal amendments
are only referred to in general terms.? And the Lords have
more recently adopted a similar form of entry in their Journals.
These records, in both houses, are a valuable addition to the
means of comprehending the forms of parliamentary proce-
dure. In a committee of the whole house, it is customary for
the clerk assistant to officiate as clerk. And it may be added,
that in the standing committees the minutes of proceedings
are taken in the same form, and are printed and circulated
with the Votes, from day to day.3
1 84 Com. J. 78.
2 191 Hans. Deb. 3rd Ser. 574.
3 Votes, 9th and 10th April 1883.
446
SELECT COMMITTEES.
CHAPTER XIV.
APPOINTMENT, CONSTITUTION, POWERS AND PROCEEDINGS OF SELECT
COMMITTEES IN BOTH HOUSES.
General
province of
a select
committee.
A SELECT committee is composed of certain members appointed.
by the house to consider, or inquire into, any matters, and to
report their opinion, for the information of the house. Like
committees of the whole house, select committees 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, or direct their inquiries, an in-
struction may be given by the house, prescribing the limits
of their powers, or otherwise directing their course of pro-
ceedings, or directing them to make a special report upon
certain matters. Inquiry by means of 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, bills and other documents are con-
stantly referred to them for consideration.
It is a common practice to refer to a committee the re-
ports of previous committees, and other printed reports and
papers. Such a reference is usually, intended to direct the
particular attention of the committee to documents relating
to the subject of their inquiry, or to explain or enlarge the
original terms of the reference. And in case the committee
Reports and
papers
referred.
1 Taxation of Ireland, 2nd March
1865; 120 Com. J. 107. East India
Communications, 23rd April 1866;
121 Ib. 243; 122 Ib. 351. Trade in
Animals, 16th April and 30th July
1866; Ib. 222. 268. House of Com-
mons (Arrangements), 8th July 1867;
and see 137 Com. J. 117. 132.
2 75 Com. J. 259 ; 90 Ib. 522; 119
Ib. 146.
3 99 Ib. 284; 102 Ib. 24; 137 Ib.
37. 65.
4 137 Ib. 98.
.
LORDS' COMMITTEES.
447
1
should desire to cite, in their report, any document which
has been laid upon the table of the house, it is usual to move
that it be referred to them.
Petitions relating to the subject of inquiry are also fre- Petitions
referred.
quently referred, which are laid before the committee by the
clerk, from time to time.
In the House of Lords the special rules in regard to the Appointment
in the Lords.
appointment and constitution of select committees are few.
By a Standing Order of the 5th May 1865,
“ With regard to select committees of this house other than those
on private bills, notice of any motion for naming the lords to serve on
such committee, or for adding any lord to such committee, or for
substituting any other lord for any lord named on such committee,
shall be given and entered among the printed notices for the day, or
previous to the day on which such motion shall be made."
The house resolves 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 report to the house. Lords are nominated
in the order of their precedence. Their lordships, or any
three of them (or a greater number, 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 special
cases the Lords have appointed select committees by ballot.
There are also several standing or sessional committees ap-
pointed by the Lords at the commencement of every Session,
viz., the committee of privileges, the sub-committee for the
journals, the appeal committee, the standing order committee,
the Parliament office committee, and the library committee.5
The order of sitting on the Lords' committees, and other Sittings and
proceedings
matters, are thus defined by the Standing Orders :
"A select committee usually meets in one of the rooms adjoining to
the upper house, as the lords like; any of the lords of the committee
in the Lords.
1 189 Hans. Deb. 3rd Ser. 1047,
2 Lords' S. O. No. 45.
$ 109 Lords' J. 30.
1 16 Ib. 758; 22 Ib. 116; 40 Ib.
198; and see infra, p. 460.
6 The latter has not lately been
appointed.
448
LORDS' COMMITTEES.
speaks to the rest uncovered, but may sit still if he pleases; the com-
mittees are to be attended by such judges or learned counsel as are
appointed; they are not to sit there or be covered, unless it be out of
favour for infirmity; some judge sometimes hath a stool set behind,
but never covers, and the rest never sit or cover.'
how sum-
Lords.
A select committee of the House of Lords may sit, not-
withstanding any adjournment of the house, without special
leave.
Witnesses, The House of Lords do not give select committees any
moned in the special authority to send for witnesses or documentary evi-
dence, nor have the committee any such power: but parties
are ordinarily served with a notice from the clerk attending
the committee, that their attendance is requested on a certain
day, to be examined before the committee. Until recently
such witnesses were required, previously to their examination,
to be sworn at the bar of the house : but by the 21 & 22
Vict. c. 78, any committee of the House of Lords may now
administer an oath to the witnesses examined before them.
Where a positive order is thought necessary to enforce the
attendance of a witness, or the production of documents, it
emanates from the house itself. A select committee upon a
bill cannot examine witnesses, except by order of the house.
It is usual to give a Lords' committee power to appoint their
own chairman: but when no such power is given, the chair-
man of committees (though not named as a member) is the
chairman, by virtue of his office.
On the 25th June 1852, the Lords agreed to the following
resolutions :
Minutes of
proceedings
on Lords?
committees.
“That to every question asked of a witness under examination in
the proceedings of any select committee of the house, there be pre-
fixed, in the minutes of the evidence, the name of the lord asking such
question.
- That the names of the lords present each day on the sitting of any
select committee be entered on the minutes of evidence, or on the
minutes of the proceedings of the committee (as the case may be), and
reported to the house on the report of such committee."
1 Lords' S. 0, No. 42.
2 84 Lords' J. 344.
COMMONS' COMMITTEES.
449
And on the 7th December 1852, the Lords agreed to the
following resolution :
" That in the event of a division taking place in any select com- Divisions.
mittee, the question proposed, the name of the lord proposing the
question, and the respective votes thereupon of each lord present, be
entered on the minutes of evidence, or on the minutes of the proceed-
ings of the committee (as the case may be), and reported to the house
on the report of such committee."
mons.
The chairman of a Lords' committee votes, like the other
members, but has no casting vote, a question being decided
in the negative, if the votes be equal.
In order to ensure fairness and efficiency in the constitu- Appointment,
constitution,
tion and proceedings of select committees, and to make their and practice
conduct open to observation, the House of Commons have the in the Com-
following Standing Orders :
1. “That no select committee shall, without leave obtained of the Number of
house, consist of more than fifteen members; that such leaye shall not members.
be moved for without notice; and that in the case of members pro-
posed 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 every member intending to move for the appointment of Attendance.
a select committee, do endeavour to ascertain previously, whether each
member proposed to be named by him on such committee, will give his
attendance thereupon.”
3. “That every member intending to move for the appointment of Notice of
a select committee, shall, one day next before the nomination of such names.
committee, place on the notices the names of the members intended to
be proposed by him to be members of such committee.”
4. “ That lists be fixed in some conspicuous place in the committee List of
clerks' office, and in the lobby of the house, of all members serving on
members.
each select committee."
5. “That to every question asked of a witness under examination Questions to
in the proceedings of any select committee, there be prefixed in the witnesses.
minutes of the evidence the name of the member asking such
question."
6. “That the names of the members present each day on the sitting Minutes of
of any select committee be entered on the minutes of evidence, or on proceedings.
the minutes of the proceedings of the committee (as the case may be),
and reported to the house on the report of such committee."
7. “That in the event of any division taking place in any select Divisions.
committee, the question proposed, the name of the proposer, and the
P.
G G
450
COMMONS' COMMITTEES.
respective votes thereupon of each member present, be entered on
the minutes of evidence, or on the minutes of the proceedings of the
committee (as the case may be), and reported to the house on the
report of such committee."
Appointment In compliance with the first of these orders, a select com-
of menubers.
mittee is usually confined to fifteen members: but if from
any special circumstances a larger number should be thought
necessary, the house will make an order that the committee
do consist of a certain other number : but not until due
notice has been given. In special cases, the house have
also thought fit to appoint certain committees by ballot;2 or
to name two members, and to appoint the rest of the com-
mittee by ballot;3 or to choose twenty-one names by ballot,
and to permit each of two members nominated by the house
to strike off four from that number.4 Members have also
been nominated to serve on a committee, to examine wit-
nesses, without the power of voting;' or to serve on a com-
mittee, and to take part in its proceedings, but without the
power of voting
Committee on A committee upon a matter of privilege may be appointed
matters of
privilege.
and nominated forthwith without notice; such a committee
having been held not to be governed by any of the orders
applicable to the appointment and nomination of other select
committees. 7
Appointment For several years, where the inquiry was of a judicial
by general
committee of character, it was usual to delegate the nomination of the
elections.
committee to the general committee of elections. In the
Stamford Borough case, 1848, the general committee were
1 Of 21 members (Civil Bills (Tre- 2 74 Com. J. 64, &c. See also 3
land) Bill, 1851), 106 Com. J. 218; Lord Colchester's Diary, 37.
of 31 members (Indian Territories, 3 38 Com. J. 144. 467, &c.
1852), 107 Com. J. 168; of 30 mem- 4. Ib. 160. 475.
bers (Leasing Powers, &c. (Ireland) 5 Carlow Election, 91 Com. J. 42.
Bills), 108 Com. J. 284; of 23 mem- 6 Ameer Ali Moorad's Claim, 1858;
bers (Merchant Ships), 135 Com. J. 113 Com. J. 68.
84; of 27 members (Merchant Ship- 7 112 Ib. 232. 146 Hans. Deb.
ping), Ib. 180; Railway Rates, and 3rd Ser. 97. 113 Com. J. 68. 148
Agricultural Tenants Compensation Hans. Deb, 1855-1867.
Bills, 1882, 137 Ib. 21. 376.
COMMONS' COMMITTEES.
451
instructed to select a chairman and eight other members,
seven to be the quorum. In the Derby case, 1852, the
gentlemen named on the general committee? were instructed
to select a committee of five members, and the parties had
leave to appear by counsel and agents. In the Berwick
case, 1853, the general committee were instructed to select
a chairman and six other members. In the Sligo election
case, and also in Mr. Stonor's case, 1854, the general com-
mittee were instructed to appoint the committee, consisting of
five members; and, in the latter case, the house added one
member, and directed the general committee to add another,
to examine witnesses, but without the power of voting.? In
some cases specially relating to controverted elections, the
general committee was itself instructed to inquire into par-
ticular matters.
In 1864, on the nomination of a committee upon educa-
tion (Inspectors' Reports), a question being proposed that
Mr. Bruce be one member of the committee, an amendment
was moved and carried, that the committee do consist of
five members to be nominated by the general committee of
elections, and that two other members, to be named by the
general committee, be appointed to serve on the committee
to examine witnesses, but without the power of voting. In
1865, the committee on the Leeds Bankruptcy Court consisted
of five members, nominated by the general committee of
elections, and two other members to serve on the committee
to examine witnesses, but without the power of voting:10
The transfer of the judicature of the Commons, in contro-
verted elections, and the consequent discontinuance of the
S
1 103 Com. J. 555.
2 The Speaker's warrant of ap-
pointment had been laid upon the
table, but the period had not elapsed
within which objections might be
made to the members named.
3 108 Com. J. 158.
4 Ib. 518.
5 199 Com. J. 36.
6 Votes, 6th April 1854.
7 109 Com. J. 232.
8 Cashel Election Petition, 1858;
113 Ib. 80. Lisburn Election, 1863;
118 Ib. 164.
9 Votes, 2nd June 1864.
10 120 Com. J, 312.
G G 2
452
COMMONS COMMITTEES.
of selection.
general committee of elections, has deprived the house of a
convenient agency for the nomination of committees : and
By committee the committee of selection has since taken its place, in the
performance of that duty. Sometimes a certain number of
members have been nominated by the house, and other mem-
bers by the committee of selection. On numerous occasions,
also, committees on bills have been nominated partly by the
house and partly by the committee of selection.2 On the
15th March 1869, the committee on Naval Contracts was
ordered to consist of seven members, five to be nominated by
the committee of selection, and two to be added by the house.3
A. similar proposal was made on the 19th June 1873, in
regard to the committee on the Cape of Good Hope and Zan-
zibar Mail Contract, but was withdrawn; and being renewed
on the 26th, was, after full discussion, negatived by the
house, upon division. On the 16th April 1883, the nomi-
nation of five members to serve on a joint committee of
Lords and Commons, was referred to the committee of selec-
tion. The nomination of committees by the house itself, is
often so difficult and troublesome a proceeding,5 that some
delegation of the duty is much to be desired. And the
nomination of the standing committees, on law and trade,
by the committee of selection may point to the extension of
the same principle to other cases.
Standing There is further an exceptional class of committees, called
standing committees. The only committee properly so termed,
until 1882, was one which, being appointed by Standing Order,
was permanent,- the nomination only being renewed from
session to session. Such is the committee of public accounts
under a Standing Order of the 3rd April 1862. In the same
category are the committee on Standing Orders, the committee
of selection, and the general committee on railway and canal
committees.
1 135 Com. J. 26. 47.
? See Chapter XVIII. (PUBLIC
BILLS; and XXVI (PRIVATE BILLS).
3 124 Com. J. 85. 87.
4 Hans. Deb. 19th and 26th June
1873.
5 On the 16th March 1876, there
were no less than seventeen divisions
upon the nomination of the Com-
mittee upon Referees on Private
Bills,
" See supra, p. 444.
QUORUM.
453
added and
bills, though not expressly designated as standing committees.
Occasionally a committee has been so called, -not quite accu-
rately, being re-appointed every session,-such as the Library
committee, now discontinued, and the Kitchen and refresh-
ment rooms committee.
Members are frequently added to committees, and other Members
members originally nominated are discharged from further discharged.
attendance, after previous notice given in the Votes ;1 and if
it be proposed to add members, so as to increase the number
of the committee beyond fifteen, or such other number as the
house may have agreed upon, it is necessary to give notice
of a motion that the committee shall consist of the larger
number.2
Whatever may be the number of a committee, it is not Quorum.
probable that all could attend throughout the proceedings,
and the house orders, in each case, what number shall be a
quorum. Where no quorum is named, it is 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 nine, or any other
number which the house may please to direct. In two cases
where the investigations of committees partook of a judicial
character, the house named a quorum of five, but at the same
time ordered the committee to report the absence of any
member on two consecutive days. Late in the session, the
original quorum of a committee is sometimes reduced.?
Where a quorum is prescribed by a Standing Order, the
order is suspended before the quorum is reduced.8
1 178 Hans. Deb. 3rd Ser. 956.
2 112 Com. J. 157, &c.
3 111 Ib. 8. 12; 120 Ib. 46.
4 Army before Sebastopol, 1855;
110 Ib. 87; 125 Ib. 40; 126 Ib. 61,
&c.
:5 Committee of privileges, 1854 ;
109 Com. J. 75. Oaths of members,
1857; 112 Ib. 374.
6 Great Yarmouth and York Elec-
tions, 90 Ib. 457. 504.
7 106 Com. J. 279; 116 Ib. 291;
127 Ib. 219; 128 Ib. 361.
8 Public Accounts Committee;
123 Com. J. 91; 124 Ib. 340, &c.
454
PERSONS, PAPERS, AND RECORDS.
A committee cannot proceed to business without a quorum,
but must wait until the proper number of members have
come into the room; and by Standing Order, 25th June
1852,
"If, at any time during the sitting of a select committee of this
house, the quorum of members fixed by the house shall not be present,
the clerk of the committee shall call the attention of the chairman to
the fact, who shall thereupon suspend the proceedings of the committee
until a quorum be present, or adjourn the committee to some future
day.”
1
Power to send
for persons,
papers, and
records.
On the 28th May 1852, an instruction was given to the
Income and Property Tax committee to report the evidence
of a witness, although given when the quorum of the members
of the committee was incomplete.
As the object of select committees is usually to take evi-
dence, the House of Commons, when necessary, gives them
"power 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 required, 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. Witnesses, however, are not
summoned from India or the colonies: but application is
made to the Secretary of State to secure their attendance,
or to obtain answers to written questions. In 1873, the
East India Finance committee resolved that the expenses
of witnesses coming from India (not exceeding 10,0001.)
should be paid out of the revenue of the United Kingdom.3
Witnesses are examined upon oath, or not, at the discretion
of the committee, according to the nature of the inquiry:
but the power is reserved for cases of a judicial character.5
1 107 Com. J. 254.
2 Army (India and the Colonies)
Committee, 1867.
3 Resolution, 20th April 1873.
4 34 & 35 Vict. c. 83; and see
infra, p. 481.
5 E.g. Foreign Loans Committee,
1875 (Minutes, 11th March).
PERSONS, PAPERS, AND RECORDS.
455
and records
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.
In 1849, the Fisheries (Ireland) committee was appointed, For papers
with power to send for papers and records only, but examined
only.
witnesses who voluntarily tendered their evidence. This
arrangement was made in order to save the expense of
witnesses summoned in the usual manner; and placed the
committee in the same position, in regard to the examination
of witnesses, as a committee on a private bill.
A select committee on a bill, having power to send for
persons, papers, and records, can only take evidence con-
cerning that bill, unless the scope of its inquiries.be enlarged
by an instruction.3
A select committee have no power to send for any papers Where papers
which, if required by the house itself, would be sought by address.
address. In such cases the chairman may either move an
address in the house, or communicate with the Secretary of
State to whose department the papers relate, who will lay
them before Parliament if he thinks proper, by command of
her Majesty. The papers, when received, will then be re-
ferred to the committee by the house. Nor is a committee
at liberty to send for any papers which, according to the
rules and practice of the house, it is not usual for the house
itself to order. In the committee on the Thames Embank-
ment, in 1871, objections were raised to the production of a
case laid before the law officers of the Crown, on the ground
that such a document was not usually required to be pro-
duced by the house itself: but when it appeared that this
opinion had already been presented, with other papers, the
production of the case, upon which that opinion was founded,
I See infra, p. 472.
2 104 Com. J. 75.
3 Mr. Speaker's ruling, 18th March
1868; 190 Hans. Deb. 3rd Ser. 1870;
and see 123 Com, J, 263,
456
PRESENCE OF STRANGERS AND MEMBERS.
1
could not be resisted, and the case was accordingly presented
to the committee.
Special
In 1868, the select committee on the Boundaries of
inquiries.
Boroughs had leave to receive and call for maps, memorials,
reports, papers, and records concerning the said boroughs,
and to confer with the boundary commissioners, and those
employed under them in their inquiries, and with the mem-
bers of the counties and boroughs affected.?
Appointment Orders for the appointment of select committees are occa-
discharged.
sionally discharged ;3 and other committees, with different
orders of reference appointed."
Presence of
When a select committee of the House of Lords are ex-
strangers.
amining witnesses, the presence of strangers is forbidden, it
being ordered that no man is to enter “but such as are
members of the house, or the heir apparent of a lord who has
a right to succeed such lord, or the eldest son of any peer
who has a right to sit and vote.”; But in the Commons,
the presence of strangers is generally permitted. Their ex-
clusion, however, 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
interruption or restraint.
All lords may
All the lords are entitled to attend the select committees of
come, but not
vote.
that house, subject to the following regulations :-
“Here it is to be observed, that at any committee of our own, 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 be shall
give place to all that are of the committee, though of lower degree, and
shall sit behind them, and observe the same order for sitting at a
conference with the Commons."O
But this privilege does not extend to a secret committee.
1 Minutes of the Committee. Pri- stacle that can be opposed to the
vate mem.
nomination of a committee, after its
2 123 Com. J. 183.
appointment.
3 93 Ib. 265; 99 Ib. 300; 108 4 Conventual and Monastic Insti-
Ib. 487; Conventual Establishments, tutions, 1870.
18th May 1854. This case presents 5 Lords' S. O. No. 44.
examples of every conceivable ob-
6 Ib. 43.
PRESENCE OF STRANGERS AND MEMBERS.
457
members.
Members of the House of Commons have claimed the right Presence of
of being present, as well during the deliberations of a com-
mittee as while the witnesses are examined; and although, if
requested to retire, they would rarely make any objection,
on the grounds of constant practice and courtesy to the
committee, they ought immediately to retire when the com-
mittee are about to deliberate; yet it appears that the
committee, in case of their refusal, have no power to order
them to withdraw.
On the 24th April 1626, Mr. Glanvyle, from the select Precedents.
committee on the charges against the Duke of Buckingham, Changes
, against the
stated that exceptions were taken by some members of the Duke of
Buckingham.
house against the examinations being kept private, without
admitting some other members thereof, and desired the
direction of the house. It is evident from this statement that
the committee had exercised a power of excluding members;
and though it is said in the Journal that much dispute arose
upon the general question, “whether the members of the
house, not of a select committee, may come to the select com-
mittee,” no general rule was laid down : but in that parti-
cular case the house ordered,
“ That no member of the house shall be present at the debate, dis-
position, or penning of the business by the select committee; but only
to be present at the examination, and that without interposition.”l
An opinion somewhat more definite may be collected from East India
judicature.
the proceedings of the India Judicature committee, in 1782.
In that case the committee were about to deliberate upon the
refusal of Mr. Barwell to answer certain questions; and on Mr. Barwell.
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,
1
1 Com. J. 849.
458
PRESENCE OF STRANGERS AND MEMBERS.
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 his 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.”
King's
physicians.
Election
proceedings
committee,
1852.
وز
The inference from this order must be, that the committee
would not otherwise have been authorised to exclude a member
of the house.)
When committees were appointed to examine the physi-
cians of King George III., in 1810 and 1811, the house also
ordered, “That no member of this house, but such as are
members of the committee, be there present.”2
In 1852, the committee on election proceedings resolved
“that it was desirable for the interests of the inquiry, and all
parties concerned, that no person should be present, except
the witness under examination," and induced two members
to withdrav, “without deciding on their right to be present."
A third member insisted upon his right to be present, which
was not contested by the committee; and he was not induced
to withdraw until after the committee had resolved to ad-
journ, if he persisted in remaining 3 On the 29th June, the
committee, to prevent further misunderstandings, reported
that they had unanimously resolved, “that it was desirable
that no person should be present, except the witness under
examination : but that the committee, having reason to be-
lieve that the right of members to be present at their pro-
ceedings 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
1 38 Com. J. 370.
2 66 Ib. 6; 67 Ib. 17.
3 Minutes of Proceedings of the
Committee, MS.
PRESENCE OF STRANGERS AND MEMBERS.
459
1
1849.
of the committee, but also to the examination of witnesses,
and was not sanctioned by the house.
On the 23rd February 1849, in the case of the Irish Poor Irish poor
committee, the Speaker stated, that although it had been the committee,
practice for members, not being members of the committee,
to withdraw while the committee were deliberating or divid-
ing; yet if members persisted in remaining, the committee
have no power to exclude them, unless by application to the
house 2
On the 1st March 1855, a report was brought up from the Army before
Sebastopol.
committee on the Army before Sebastopol, “That, in the
opinion of this committee, the objects for which they have
been appointed will be best attained, the danger of injustice
to individuals be prevented, and the public interest best pro-
tected, if the committee be a committee of secrecy.” On
the following day, when the report was considered, strong
objections were urged, in debate, to the proposed secrecy of
the committee, and the motion of the chairman, “ that the
committee be a committee of secrecy," was withdrawn.3
On the 20th June 1857, the select committee on the Rochdale
election,
Rochdale election resolved, " That the object of the inquiry
will best be promoted by the investigation being carried on
in the presence of the members of the committee alone."
This resolution was communicated to several members out-
side, by the committee clerk, and the greater part of them
went away: but Colonel French entered the room, asserted
his right to be present; and then, out of courtesy to the
committee, withdrew. On the 22nd June, he brought the
matter to the notice of the house, and appealed to the
Speaker, whether a select committee was able to constitute
itself a secret committee, without an order of the house.
The chairman disclaimed, on the part of the committee, any
intention of asserting a power of excluding members: it
had merely agreed to a resolution that, in its opinion, the
3 137 Ib. 18.
1 97 Com. J. 438.
2 102 Hans. Deb. 3rd Ser: 1183.
460
SECRET COMMITTEES.
1
General
results.
inquiry would be best conducted in their absence. It was
for them to defer to that opinion, or not, at their discretion.
The Speaker, after citing the case of the Irish Poor com-
mittee, 1849, said that there was no doubt that a select
committee had no power to enforce the exclusion of any
members of the house, and that, in truth, there had been no
difference of opinion upon this question between the com-
mittee and other honourable members,
These precedents leave no doubt that members cannot
be excluded from a committee room by the 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 proceedings, when there is reason to apprehend
opposition, they should apply to the house for orders similar
to those already noticed. At the same time, it cannot fail
to be observed, that such applications have not been very
favourably entertained by the house.
But when, in the opinion of the house, secrecy ought to
be maintained, secret committees are appointed, whose in-
quiries are conducted throughout with closed doors; and it
is the invariable practice for all members, not on the com:
mittee, to be excluded from the room throughout the whole
of its proceedings. On several occasions secret committees,
in both houses, have been chosen by ballot.
Secret
committees.
1 146 Hans. Deb. 3rd Ser. 137.
See also debate, 16th May 1861, on
the complaint of Mr. MacEvoy; 162
Hans. Deb. 3rd Ser. 2095.
2 53 Lords' J. 115. 38 Com. J.
430. 435; 65 Ib. 37; 92 Ib. 26; 99
Ib. 461; 112 Ib. 24.
3 - In the course of the debate (on
the Committee of Secrecy on the
Bank of England), Mr. Fox and Mr.
Grey both stated distinctly and ex-
pressly, and without contradiction,
that the nature of a committee of
secrecy was only that it excluded
from their proceedings all strangers :
but that the members of the com-
mittee were not otherwise bound to
individual secrecy out of the com-
mittee, than as their own sense of
duty or propriety might suggest, ac-
cording to the nature and object of
their inquiry." Lord Colchester's
Diary, 9th March 1797, i. 91. For
a discussion as to the peculiarities of
a secret committee, see debates upon
the Budget and Navy Estimates,
22nd Feb. 1848 ; 96 Hans. Deb. 3rd
Ser. 987. 1056.. Bank Acts Com-
mittee, 12th Feb. 1857; 144 Hans.
Deb. 3rd Ser. 596.
4 41 Lords' J. 96. 113 (Bank); 42
Ib. 176 (Treasonable Conspiracy in
SELECT COMMITTEES.
461
chosen.
When members attend the sittings of a committee, they
assume a privilege similar to that exercised in the house, and
sit or stand without being uncovered.
It may here be mentioned, that sometimes a committee of Joint
committees
one house is appointed to join with a committee of the other
house; but such committees are more particularly described
in another place.
The first proceeding of a committee is to choose a chair- Chairman
man, who is ordinarily called to the chair by the general
voice of the members present: but in the event of a difference
of opinion, the choice is governed by the same rules as those
observed by the house in the election of a Speaker.?
Every question is determined in a select committee, in the Divisions.
same manner as in the house to which it belongs. 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 præsumitur pro negante.” In the Com-
mons, the practice is similar to that observed in divisions of
the house itself.
On the 25th March 1836, the house was informed that the Casting voice
of chairman,
chairman of a select committee had first claimed the privilege
to vote as a member of the committee, and afterwards, when
the voices were equal, of giving a casting vote as chairman;
and that such practice had, of late years, prevailed in some
select committees ;3 upon which the house declared, “That,
according to the established rules of Parliament, the chairman
of a select committee can only vote when there is an equality
of voices."
Ireland); 43 Ib. 97. (Suspension of
Habeas Corpus) ; 56 Com. J. 259
(State of Ireland); 67 Ib. 492 (State
of Counties); 74 Ib. 64 (Bank). On
the state of the country (Lords), 5th
Feb. 1818; 37 Hans. Deb. p. 155.
1 Chapter XVI. .
2 Minutes of committees; Savings
banks, 1849 ; Bills of Exchange Bill,
1855 ; Rochdale election, 1857;
Tenure and Improvement of Land
(Ireland) Act, 1865.
3 This misconception of the usage
of parliament may have arisen from
the peculiar practice of election com-
mittees, as regulated by Act of Par-
liament.
4 91 Com. J. 214. In the Com-
462
SELECT COMMITTEES,
Committees
on private
bills.
But in committees on private bills, a different practice has
been introduced, as it is ordered,
“That all questions shall be decided by a majority of voices, in-
cluding the voice of the chairman; and whenever the voices are equal,
the chairman shall have a second or casting yote.”ı
This deviation from the ordinary rule of voting in select
committees was rendered necessary by the peculiar consti-
tution of group committees, then consisting of five members
only. When one member was absent, a difficulty arose in
determining a question without some new regulation : for
otherwise two members could have decided every question,
although the chairman agreed with the remaining member;
and in 1864, this difficulty was further increased by the
reduction of such committees to four members. A member
having voted by mistake, has been allowed to correct the
error. And a member's vote has been disallowed, as he was
not in the room when the question was put.
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 :5 or from time to time, and from
place to place. This power of adjournment from place to
place is generally intended to enable a committee to hold its
sittings in different parts of London, as the Mint committee
Adjournment
of commit-
tees.
From place
to place.
mittee on the Consolidation of the
Customs and Inland Revenue, 1863,
Mr. Horsfall, the chairman, had pre-
pared a report, which was negatived
by a majority of one. Mr. Cardwell
then proposed a report embodying
the opinions of the majority: but at
the next meeting of the committee,
Mr. Horsfall declined to resume the
chair, and proposed that Mr. Card-
well should take it, -his object being
to obtain a majority in favour of his
own views. The matter being re-
ferred to Mr. Speaker, he expressed
an opinion that the course proposed
was contrary to the spirit of parlia-
mentary proceedings, and Mr. Hors-
fall resumed the chair: but a com-
mittee so balanced being unable to
agree, they merely reported the
evidence without any opinion.—Mr.
Speaker Denison's Note-Book.
1 S. 0. 125.
2 119 Com. J. 460.
3 Railway Rates, &c., Committee,
1882; Report, p. 50.
4 Ib.
P. 63.
6 89 Com. J. 419; 101 Ib. 152;
105 Ib. 215; 107 Ib. 279; 108 Ib.
453; 111 Ib. 318.
6 108 Ib. 350.
SELECT COMMITTEES.
463
of 1837 at the Mint; the Coal Mines committee of 1852 at
the Polytechnic Institution; the National Gallery committee
of 1853 at the National Gallery; and the Oaths committee
of 1850 at the house of Mr. Wynn, a member of the com-
mittee, who was sick. But in 1834, the committee on the
Inns of Court appointed a quorum to go into Essex, to take
the evidence of a witness who was unable to move from home.
In 1858, it was proposed to give the power of adjourning
from place to place to the committee on contracts (Public
Departments), in order to enable it to hold its sitting at
Weedon ; but the proposal was withdrawn, and a royal com-
mission appointed. In 1863, this power was granted to the
committee on the Thames Conservancy, to empower it to
visit different parts of the river, to which its inquiry ex-
tended. In 1864, the same power was given to the com-
mittee on Schools of Art.2 In certain cases select committees Committees
appointed to
have been appointed expressly for the purpose of taking the examine sick
examination of witnesses who were incapacitated by sickness witnesses.
from attending personally to be examined before the house or
its committees.3
Without special leave, no committee of the Commons may Not to sit
during sit-
sit during the evening sitting of the house, or after any ad- ting, or after
journment for a longer period than till the next day. By of the house.
a Standing Order of the Commons, 25th June 1852, it is
ordered,
That the serjeant-at-arms attending this house do, from time to Prayers.
time, when the house is going to prayers, give notice thereof to all
committees; and that all proceedings of committees, after such notice,
be declared to be null and void, unless such committees be otherwise
empowered to sit after prayers."
On the 1st May 1879, Mr. Speaker explained, in reply to
a question, that it had been the custom for the Speaker to.
send the serjeant to committees to request members to make
3 61 Ib. 436. 2 Hatsell, 138, n.
1 Votes, 28th May 1863.
2 119 Com. J. 255.
464
SELECT COMMITTEES.
a house, but that he had no authority to compel their attend-
ance.
But by another Standing Order, 21st July 1856, it is
ordered, -
“That on Wednesdays, and other morning sittings of the house, all
committees shall have leave to sit, except while the house is at prayers,
during the sitting, and notwithstanding the adjournment of the
house."
And in order to avoid any interruption to urgent business
before committees, leave is frequently obtained, on the meet-
ing of the house in the afternoon, for a committee to sit till
five o'clock, or such other hour as may be agreed upon; and
on Friday night leave is given, when necessary, to a com-
mittee to sit on Saturday, notwithstanding the adjournment
of the house.
Of late years orders have usually been made that no com-
mittees shall have leave to sit on Ascension Day until two
o'clock, but have leave to sit until six, in order to enable
members to attend morning service. And on Ash Wednesday,
committees rarely sit: but, if necessary, meet after two o'clock,
to which hour the house is adjourned.
Adjournment A select committee ought to be regularly adjourned from
one sitting till another, though in practice the re-assembling
of the committee is sometimes left to be afterwards arranged
by the chairman, by whose direction the members are sum-
moned for a future day: but this practice, not being regular,
can only be resorted to for the convenience of the members,
and with their general concurrence. In 1871, a complaint
was made, that after a day had been fixed for the next meet-
ing of the committee by the chairman, he had, after consult-
ing several members of the committee, appointed an earlier
day: but it was ruled that, under the circumstances explained
to the house, such a proceeding was not irregular.3
of commit-
tees.
1 245 Hans. Deb. 3rd Ser, 1500.
2 132 Com. J. 209; 133 Ib, 254;
134 Ib. 232 ; 135 Ib. 260; 137 Ib.
205. See also supra, p. 243.
3 205 Hans. Deb. 3rd Ser. 685.
SELECT COMMITTEES.
465
2
committee
minutes of
Sometimes a committee has been ordered to sit de die in To sit de die
in diem.
diem. In 1869 an instruction was given to the committee
on naval contracts to sit and proceed forthwith, and to sit
from day to day.
In 1856, the Masters and Operatives committee was re- A select
vived in consequence of an irregularity in its adjournment; revived.
being the first instance, it is believed, of such a proceeding,
except in the case of committees on private bills.
Where select committees have been appointed to inquire Counsel.
into matters in which the private interests, character or
conduct of any persons appeared to be concerned, petitions
praying to be heard by counsel have been referred, and
counsel ordered.4
The evidence of the witnesses examined before a select Printed
committee is taken down in short-hand, and printed daily evidence.
for the use of the members of the committee. In the Lords,
the printing is authorised by a special order of the house,
in each case : in the Commons, it is done according to long-
established practice. 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 alterations
should be confined to the correction of inaccuracies, or the
necessary explanation of any answer, and are required to be
in the handwriting of the witness himself, unless he is
disabled by accident or infirmity, in which case they may be
written by another person at his dictation. The corrected
copy should be returned without delay to the committee
clerk, who is to examine the corrections, and if any appear
to be irregular, he is to submit them to the chairman. If
the evidence be not returned, with corrections, in six days,
or some other reasonable time, according to the circumstances,
$
1 123 Com. J. 183.
2 124 Ib. 87.
3 111 Ib. 298.
4 62 Ib. 110; 77 Ib. 405; 88 Ib.
169. 568. 588; Rochdale Vicarage
Bill, 1866; Thames Conservancy Bill,
1866; Tramways Bill, 1870.
P.
H H
466
SELECT COMMITTEES.
2
it will be printed in its original form. Where evidence has
been taken upon oath, its correction should be restrained:
within very narrow limits.
On the 20th July 1849, an instruction was given to a
select committee to re-examine a witness “ touching his
former evidence," as it appeared that he had corrected his
evidence more extensively than the rules of the house per-
mitted, and his corrections had consequently not been reported
by the committee.
In 1849, a committee of the House of Lords reported that
the alterations made by some of the witnesses were so
unusual, that they had ordered the alterations and corrections
to be marked, and printed in the margin.3
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 com-
mittee, 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.
Not to be
published
until
reported.
Draft report
not to be
published.
In some cases, leave has been given to the parties appear-
ing before a select committee to print the evidence from the
committee clerk's copy, from day to day.5
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 of a draft report of a committee, in a Dublin
newspaper: the proprietor admitted that he had sent the
4 92 Com. J. 282. See also supra,
p. 93.
1 Instructions by Mr. Speaker, 16th
April 1861; and see 189 Hans. Deb.
3rd Ser. 1223.
2 104 Com. J. 525.
3 Audit of Railway Accounts
(North Wales Railway).
5 The Metropolis Water Bill, 1871;
126 Com. J. 292; 131 Ib. 300. 350 ;
132 Ib. 141. 202, &c.; 135 Ib. 209.
t
SELECT COMMITTEES,
467
resolutions
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 committed to
the custody of the serjeant."
In 1850, a draft report of the committee on Postal com-
munication with France was published in two newspapers,
while it was under consideration. The committee vainly
endeavoured to trace the parties from whom the copy had
been originally obtained, but recommended improved regu-
lations for the printing, distribution, and custody of such
documents.2
When the evidence has been concluded, the chairman pre- Draft
pares resolutions, or a draft report, which it is customary to or report, .
print and circulate among the members, before they are con-
sidered. Resolutions are open to discussion and amendment,
subject to the same rules as in a committee of the whole
house. No resolution or amendment may be proposed, which
is not within the order of reference; and the chairman will
decline to put it from the chair. When a resolution has
been agreed to, the committee are unable to review and
amend it. When there are more than one series of resolu-
tions, it is usual to move that those to be proposed by Mr. A.
(generally the chairman) be now taken into consideration;
which question may be amended by leaving out "Mr. A.”
and inserting “Sir W. H.;" and the opinion of the com-
mittee being ascertained, the consideration of the resolutions
preferred by them is proceeded with. A draft report is read
a first time pro formâ, and a second time paragraph by para-
graph, every part being liable to amendment, according to
the ordinary rules which govern amendments. A question is
also put that each paragraph, or each paragraph as amended,
stand part of the report. In case there should be two or
1 87 Com. J. 360.
2 Rep. p. vi., Sess. 1850 (381).
3 Supra, p. 429.
4 Committee on Local Taxation,
1870; Resolution of Sir M. Lopes.
II FL 2
468
SELECT COMMITTEES.
more draft reports, proposed by different members, they are
severally read a first time, when a question is proposed that
the draft report proposed by Mr. C. be now read a second
time, paragraph by paragraph; to which an amendment may
be moved to leave out "Mr. C." and insert "Lord D.;" and
when the committee have decided which of the rival reports
shall be accepted for consideration, it is proceeded with,
paragraph by paragraph. New paragraphs may also be in-
serted throughout the report, or added by way of amend-
ment. When the whole report has been agreed to, a question
is put that it be the report of the committee to the house.
Until lately, a committee had no power to report either
their opinion, or the minutes of evidence taken before them,
without receiving express power for that purpose from the
house. But by Standing Order, 9th August 1875,
Power to
report.
Every select committee, having power to send for persons, papers
and records, shall have leave to report their opinion and observations,
together with the minutes of evidence taken before them, to the house,
and also to make a special report of any matters which they may think
fit to bring to the notice of the house."
Special
When it is desired to report any matters to the house, not
report.
comprised in the order of reference, or otherwise exceptional,
leave is obtained from the house to make a special report.
Power to It is the general custom to withhold the evidence until the
report from
time to time. 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, may be thought necessary,
the house will grant leave, on the application of the chair-
man, for the committee to “report its opinion or observations,
from time to time,” or to “report minutes of evidence" only,
from time to time. And until the report and evidence have
been laid upon the table, it is irregular to refer to them in
debate ;2 or to put questions in reference to the proceedings
1 74 Lords' J. 80, &c. 92 Com. J.
18. 167; 112 Ib. 282, &c.
2 169 Huns. Deb. 3rd Ser. 814;
193 Ib. 1124.
SELECT COMMITTEES.
469
of the committee. If a committee, not having power to
report from time to time, make a report to the house, its
sittings are assumed to have been closed; and if further pro-
ceedings were desired, it would be necessary to revive the
committee.
When a committee has not completed its inquiries before
the end of the session, it is a frequent practice to re-appoint
it, at the next meeting of Parliament.2 A committee re-
appointed cannot report the evidence taken before the com-
mittee in the previous session except as a paper in the
appendix. To obviate that difficulty, on the 29th April
1852, the house ordered the evidence of the previous session
to be laid before them; and when presented it was referred
to the committee, with leave to report it forthwith.3
There have been instances in which the chairman of a Publication of
draft reports.
committee, after the committee had reported, has published
his own draft report, which had not been accepted, accom-
panied, in some cases, by additional arguments and illustra-
tions ;4 and no objection had been urged against such a
publication : but on the 21st July 1858, it was brought to
the notice of the house, that the chairman of a committee
had published and circulated, in the form of a parliamentary
proceeding, a draft report which he had submitted to the
committee, but which had not been entertained by them,
accompanied by observations reflecting upon the conduct
and motives of members of that committee. No formal
vote was sought for on this occasion : but it was generally
agreed that the proceeding was irregular, and contrary to
the usage of Parliament.5
In one case the report of a committee had been made, and Reports
ordered to be printed, in the previous session, but was, in
cancelled.
1 189 Hans. Deb. 3rd Ser. 604.
2 132 Com. J. 102. 135; 134 Ib.
17. 52; 135 Ib. 71.
3 Property Tax Committee, 107
Com. J. 177.
4 Agricultural Distress, 1836. In-
come Tax, 1861.
5 151 Hans. Deb. 3rd Ser. 1867.
470
SELECT COMMITTEES.
Reports of
committees.
fact, prepared by the chairman after the prorogation. A
committee was appointed to consider the circumstances under
which the document purporting to be the report of the com-
mittee had been ordered to be printed; and on their report
being received, the house resolved, “That the document was
not a report which had been agreed to by the said committee,
and that the said document be cancelled.” On the 28th
April 1863, notice being taken that the analysis of evidence
appended to the report of the select committee on Sewage
of Towns in the last session, comprised observations and
opinions not within the scope of such analysis, it was ordered
to be cancelled.2
When the evidence has not been reported by a committee,
it has sometimes been ordered to be laid before the house.
It is usual, however, to present the report, evidence, and
appendix together, which are ordered to lie upon the table,
and to be printed. In presenting a report, the chairman
appears at the bar, and is directed by the Speaker to bring it
up.
On the 18th May 1865, it was ordered by the Lords,
“ That any report presented by a select committee shall not
merely be laid upon the table of the house, but shall be
printed and circulated, and notice shall be given on the
minutes of the day on which it may be intended to take the
report into consideration.
Any appropriate motion may be founded upon a report: as
that it be recommitted ;5 or recommitted, with minutes of
proceedings, so far as they relate to a certain paragraph ; 6
or recommitted, and the order of reference amended ;7 or
taken into consideration on a future day ;8 or communicated
4.
6
1 102 Com. J. 254. 682. Hans.
Deb. 16th June 1847.
2 118 Com. J. 189.
3 88 Ib. 671; 105 Ib. 637, &c.
4 97 Lords' J. 208.
5 76 Com. J. 213; 82 Ib. 318; 88
Ib. 583; 92 Ib. 478; Azeem Jah
(forgery of signatures to petitions,
1865), 120 Ib. 252.
Privilege (Mr. Gray's Imprison-
ment, 1882), the previous question
having been put in the committee.
7 70 Com. J. 430.
8 86 Ib. 167.
SELECT COMMITTEES.
471
to the Lords at a conference. In 1850, the house, instead
of ordering the evidence taken before a committee to be
printed, referred it “to the secretary of state for the colonies,
for the consideration of her Majesty's government.”? Notice
has been taken of certain errors in a statement comprised in
the appendix to a report, and a corrected statement ordered
to be laid before the house.3
3 103 Ib. 621.
1 91 Com. J. 9.
2 105 Ib. 661 (Ceylon committee).
472
TVITNESSES.
CHAPTER XV.
WITNESSES: MODES OF SUMMONS AND EXAMINATION:
ADMINISTRATION OF OATHS: EXPENSES.
How sum-
All witnesses who are summoned to give evidence before the
moned by the
Lords. House of Lords, or any committee of the whole house, 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 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 witness 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 :3 but the execution of this order is sometimes stayed
for a certain time.4 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
proclamation, with a reward for his apprehension.”
Peers, &c. When the evidence of peers, peeresses, or lords of Parlia-
ment has been required, the Lord Chancellor has been ordered
to write letters to them, desiring their attendance to be ex-
amined as witnesses :6 but they ordinarily attend and give
evidence without any such form.
When the attendance of a witness is desired, to be examined
summoned by at the bar, by the House of Commons, or by a committee of
the whole house, he is simply ordered to attend at a stated
how sum-
moned.
Witnesses
1 68 Lords' J. 513. 558.
2 66 Ib. 295. 358.
3 Ib. 400.
4 Ib. 358.
5 Ib. 441, 442.
6 Ib. 144.
.
WITNESSES SUMMONED.
473
time; 1 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 messenger. If he should be in
the custody of the keeper of any prison, or sheriff, the
Speaker is ordered to issue his warrant, which is personally
served upon the keeper, or sheriff, by a messenger 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, he may be ordered to be sent for
in custody of the serjeant-at-arms, and Mr. Speaker be
ordered to issue his warrant accordingly; 4 or he may be
declared guilty of a breach of privilege, and ordered to be
taken into the custody of the serjeant. 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
succeeded in apprehending such persons, they have generally
been sent to Newgate for their offence.?
If a witness should be in custody, by order of the other
house, his attendance is secured by a message, desiring that
he may attend in the custody of the black rod, or the serjeant-
at-arms, as the case may be, to be examined.
The attendance of a witness to be examined before a select By select
committees.
committee is ordinarily secured by an order signed by the
chairman, by direction of the committee : but if any person
should neglect to appear when summoned in this manner,
his conduct is reported to the house, and an order is im-
mediately made for his attendance at the bar of the house.
If, in the meantime, he should appear before the committee,
it is usual to discharge the order for his attendance: 9 but if
S
1 78 Com. J. 240; 91 Ib. 338.
2 10 Ib. 476; 82 Ib. 464 ; 86
Ib. 795 ; 93 Ib. 210; 96 Ib. 193 ; 97
Ib. 227; 99 Ib. 89; 126 Ib. 228.
3 93 Ib. 353.
4 95 Ib. 58. See, also, as to the
form of the warrant, supra, p. 187
(Howard v. Gosset).
5 106 Com. J. 48, &c.
6 90 Ib. 330.
? Ib. 343, 344.
8 11 Ib. 296. 305; 15 Ib. 376 ; 19
Ib. 461, 462; 21 Ib. 356. 926.
9 91 Ib. 352.
474
WITNESSES SUMMONED,
1
he still neglect to appear, he is dealt with as in the other
On private cases already described. The attendance of a witness before
bills.
a committee on a private bill, is generally secured by the
promoters and opponents themselves, without any order or
other process : but if a witness should decline to attend at
the instance of the parties, his attendance is enforced by an
order of the house.
Witnesses When witnesses have absconded, and cannot be taken
absconding
into custody by the serjeant-at-arms, addresses have been
presented to the Crown for the issue of proclamations,
with rewards for their apprehension.?
Attendance of If the evidence of a member be elesired by the house, or
members, how
required. a committee of the whole house, he is ordered to attend in
his place on a certain day. But when the attendance of
a member is required before a select committee, 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 be
adopted by committees, in reference to members, has been
thus 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 committee, the
committee ought to acquaint the 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 : but members have been ordered
by the house to attend select committees. 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
30, &c.
1 110 Com. J. 267; 112 Ib. 263, &c.
2 75 Ib. 419; 82 Ib. 345, &c.
3 61 Ib. 386; 64 Ib. 17; 65 Ib. 21.
4 10 Ib. 51.
5 19 Ib, 403.
WITNESSES SUMMONED.
475
house.
brought before a committee, from time to time, in the custody
of the serjeant. On the 28th June 1842, a committee re-
ported that a member had declined complying with their re-
quest 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.3 The customary courtesy to.
members was also observed, in securing their attendance as
witnesses before election committees; and warrants were not
therefore issued by the Speaker to summon them to attend,
although he had a statutory power to issue them.
If the attendance of a peer should be desired, to give Attendance of
members of
evidence before the house, or any committee of the House the other
of Commons, the house sends a message “to the Lords,
to request that their lordships will give leave to the peer in
question to attend, in order to his being examined” before the
house, or a committee, as the case may be, and stating the
matters in relation to which his attendance is required. 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 re-
turned on a future day, when the peer has, in his place, con-
sented to go. Exactly the same form is observed by the Lords,
when they desire the attendance of a member of the House of
Commons. A message is also sent requiring the attendance
of a member to be examined, when the Lords are sitting on
the trial of an impeachment;5 but if the Lords be sitting as
a court of criminal judicature on the trial of a peer, they will
order the attendance of a member of the House of Commons
without a message. 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
1 21 Com. J. 851, 852.
2 97 Ib. 438.
3 Ib. 438. 453. 458. See also Re-
port of Precedents, Ib. 449.
4 82 Ib. 394 ; 88 Ib. 173. 179.
5 12 Lords' J. 84; 16 Ib. 33. 747.
6 3 Hatsell, 21, 12.
476
WITNESSES SUMMONED.
3
Officers of
either house.
4
to attend, before a formal message is sent to request his
attendance. But these formalities, though occasionally
adopted, are not usual or necessary in the case of private
bills, where the attendance of witnesses is voluntary. If a
member should be in custody when leave is given him to
attend the House of Lords, the serjeant-at-arms is ordered
to permit him to attend, in his custody
The same ceremony is maintained between the two 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 Whether a peer, who is not a lord of Parliament, may be
being lords
of Parliament. ordered to attend in the same form as a commoner, is a matter
upon which the two houses have not agreed. On the 3rd
May 1779, the Earl of Balcarras, of the peerage of Scotland,
was ordered to attend the House of Commons.5 On the 5th
June 1806, the house ordered the attendance of Lord Teign-
mouth, of the peerage of Ireland, and he attended accord-
ingly: but the House of Lords, at a conference, took excep-
tion to the mode of summons, and stated, " That it doth not
appear 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 purpose, by an order of such house." To
this, however, 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 is entitled to any of the
privileges thereupon depending." The Lords continued to
1 Liverpool Ducks Bill (Lord Har-
rowby), 103 Com. J. 438; Salford
Borough Bill, 108 Ib. 434. Thames
Embankment Approaches Bill, 1873
(Duke of Northumberland). In this
case the attendance of the Duke was
desired by the committee itself, and
not by the parties.
2 3 Hatsell, 21. See supra, p. 474.
3 11 Com. J. 296. 305; 15 Ib. 376;
(Mr. W. S. O'Brien), 101 Ib. 603.
4 103 Ib. 658; 112 Ib. 61 ; 113 Ib.
255.
5 37 Ib. 366.
6 61 Ib. 374.
WITNESSES SUMMONED.
477
maintain the privilege of peerage as apart from the privilege
of Parliament, and resolved, “That it is the undoubted privi-
lege of all the peers of the United Kingdom 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 attempt to enforce their
attendance on the House of Commons, contrary to such
privilege."! But this resolution was not communicated to
the Commons 2
In 1805, the Commons having sent a message to the Peers under
Lords, desiring the attendance of Viscount Melville, to
be examined before the committee of Naval Inquiry, the
Lords acquainted them, at a conference, that the course
adopted by the Lords “has been to permit their members,
on their own request, to defend themselves in the House
of Commons on points on which the Commons have not
previously passed criminating resolutions against them, and
to give evidence before the house or any committee thereof
on those points only on which no matter of accusation is
depending against them;" and within these limitations they
gave leave to Lord Melville to attend, though the Commons
did not think fit to examine him.4
accusation.
1 45 Lords' J. 812.
2 See 2 Hatsell, App. 9. 2 Lord
Colchester's Diary, 69. 73; 1st June
1825. “The chancellor, by Mr.
Cowper's advice, thought it neces-
sary to have leave given by the
house for the Archbishop of Dublin's
attendance before the Commons'
committee, although, not being on
the rota, he has no seat in the
House of Peers, or duty to discharge
there." 3 Lord Colchester's Diary,
394,
3 60 Com. J. 265. 1 Lord Col-
chester's Diary, 558; and see 4 Hat-
sell
, 485.
4 60 Com. J. 272. By a Standing
Order of the 20th January 1673,
"No lord shall either go down to the
House of Commons, or send his
478
WITNESSES SUMMONED.
Inquiry to
havo been
previously
ordered.
Mode of ex-
amination.
Lords.
Before any such message is sent to the other house, or any
witness is otherwise summoned, it is right that the house
should previously have directed an inquiry into the matter
upon which evidence is sought."
These being the various modes of securing the attendance
of witnesses to give evidence before either house of Parlia-
ment, the mode of examination is next to be considered. In
the House of Lords, every witness is sworn at the bar who is
about to be examined by the house, or by a committee of the
whole house. But lords of Parliament, and peers not being
lords of Parliament, and peeresses, are sworn at the table of
the house, by the lord chancellor. An Irish peer, being a
member of the House of Commons, is sworn at the bar, as a
Commoner. The Lords formerly claimed the privilege of
being examined upon honour, instead of upon oath. On the
22nd May 1732, the committee of privileges reported that
the Lords should be examined in all courts, upon protestation
of honour only, and not upon the common oath ;4 and in an
earlier instance the house had declared a master in chancery
guilty of a breach of privilege for having refused to receive à
protestation of honour by Lord Plymouth :5 but this sup-
posed privilege has long since been abandoned, and peers are
everywhere examined upon oath, even in the House of Lords
itself. If counsel be engaged in an inquiry at the bar, the
answer in writing, or appear by
counsel, to answer any accusation
there, upon penalty of being com-
mitted to the black rod, or to the
Tower, during the pleasure of this
house." -Lords' S. O. No. 59.
1 On the 31st March 1813, a motion
being made for a message to the
Lords for the attendance of Lord
Moira to give information concerning
the Princess of Wales, the Speaker
desired the attention of the house to
the proceeding as novel and un-
parliamentary; so the rule being,
according to all precedents, not to
desire the attendance of witnesses of
any sort, excepting upon a matter
pending in the house, and which the
house had previously resolved to ex-
amine." The motion was superseded
by reading the order of the day.
68 Com. J. 364. 2 Lord Colchester's
Diary, 434.
2 38 Lords' J. 68, 69. Lords' J.
14th July 1845; 15th June 1855.
3 Viscount Palmerston, 16th July
1844.
4 24 Lords' J. 136.
5 14 Ib. 18.
OATHS.
479
mittees.
witnesses are examined by them, 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.1
Formerly, every witness about to be examined before a Oaths admi-
nistered by
select committee, was required to attend previously at the Lurds' com-
bar to be sworn.
This practice, however, was attended with
much inconvenience, and it was repeatedly suggested that it
should be altered by statute. On the 11th June 1857, the
Lords applied a partial remedy, by resolving "that select
committees, in future, shall examine witnesses without their
having been previously sworn, except in cases in which it
may be otherwise ordered by the house."2 And in 1858,
a more complete remedy was provided by statute 21 & 22
Vict. c. 78, by which “any committee of the House of Lords
may administer an oath to the witnesses before such com-
mittee." Since 1857, however, witnesses have only been
sworn upon inquiries of a special character.
In select committees of the Lords, witnesses are placed in Committees.
a witness-box or at the short-hand writer's table, to be
examined: but members of the House of Commons are
allowed a seat near the table, where they sit uncovered.
False evidence before the Lords, being upon oath, has Oaths.
always rendered a witness liable to the penalties of wilful
and corrupt perjury; and prevarication, or other misconduct
of a witness, is also punishable as a contempt.s
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 until 1871 it was not enjoyed by the
1 25 Lords' J. 303. See also Ib. 100;
38 Ib. 69 ; 46 Ib. 172. 189, where the
judges of the Court of Justiciary in
Scotland had chairs set for them at
the bar, to be examined.
2 89 Lords'J. 60; Report on Oaths
of Witnesses, 1857 (15).
3 48 Lords' J. 371, &c.
480
OATHS.
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 established : 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 question,
while the other, except during the Commonwealth, never
asserted it.
Expedients of During the 17th century, the Commons were evidently
the Commons.
alive to the importance of this right, and anxious to exercise
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 mem-
bers who were justices of the peace for Middlesex, to ad-
minister oaths in their magisterial capacity,—à 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 sent witnesses to
be examined by one of the judges. 3. They sought to aid
their own inquiries by having their witnesses sworn at the
bar of the House of Lords ;' and by examining witnesses on
oath before joint committees of both houses ; 6 in neither of
which expedients were they supported by the Lords.
All these methods of obtaining the sanction of an oath
to evidence taken at their instance, were so many distinct
admissions of their own want of authority; but in the 18th
1 See 6 Com.J.214.451; 7 Ib. 55. 2 2 Hatsell, 151 et seq.
287.484, &c. See also 2 Ib. 455. See 3 9 Com. J. 521; 10 Ib. 682.
further the author's evidence before 4 10 Ib. 415. 417.
the Committee on Witnesses (House 6 8 Ib. 325. 327.
of Commons), in 1869.
6 2 Ib. 502 ; 8 Ib. 647. 655.
To examine
in the most
solemn
manner.
OATHS.
481
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 in the most solemn
manner before a committee of secrecy ;l 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.3 Between this time and 1757, several
similar instances occurred :4 but from that year the most
important inquiries were conducted without any attempt to
revive so anomalous and questionable a practice. And at Power of
administering
length, in 1871, in pursuance of the recommendations of a oaths con-
select committee of 1869, an act was passed, empowering the ferred by
statute, 1871.
House of Commons and its committees to administer oaths to
witnesses, and attaching to false evidence the penalties of
perjury.5 By Standing Orders of the 20th February 1872,
made pursuant to this act, oaths are administered to witnesses,
before the house or a committee of the whole house, by the
clerk at the table; and before a select committee, by the
chairman, or by the clerk attending the committee. It is not
usual, however, for select committees to examine witnesses
upon oath, except upon inquiries of a judicial or other special
character. It has been held that a joint committee of the
two houses has the same power of swearing witnesses as com-
mittees sitting separately, in the usual manner. The power Courts of
referees.
1 18 Com. J. 353.
2 18 Ib. 596 ; 19 Ib. 301.
3 19 Ib. 403.
1 21 Ib. 851, 852 ; 2 Hatsell, 151-
157.
5 34 & 35 Vict. c. 83.
6 The Committee on Foreign Loans
in 1875 was the first to examine
witnesses upon oath, under the Act.
They were also so examined in 1879
by the Committee on Privilege (Tower
High Level Bridge), and the Com-
mittee on Mr. Goffin's certificate.
? Railway Amalgamation Bills
Committee, 1873.
P.
II
482
WITNESSES EXAMINED.
of administering oaths to witnesses has also been extended to
the courts of referees. By the Evidence Amendment Acts,
1869 and 1870, where a judge or person having authority to
administer an oath is satisfied that the taking of an oath is
not binding upon the conscience of a witness, he may make a
promise and declaration.
To secure respect to the authority of the house in its
inquiries, two resolutions are agreed to at the beginning of
each session:-
False evidence
a breach of
privilege.
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 epidence, the same
is declared to be a high crime and misdemeanor; 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.”
The house has rarely failed to act up to the spirit of these
resolutions with strictness and severity, and the journals
abound with cases in which witnesses have been punished by
commitment to the serjeant-at-arms, and to Newgate, for
prevaricating or giving false testimony, or suppressing the
truth; for refusing to answer questions, or to produce docu-
ments in their possession. If any witness be guilty of such
misbehaviour before a committee of the whole house, or a
select committee, the circumstance is reported to the house,
by whom the witness is dealt with.3
While the house punishes misconduct with severity, it is
careful to protect witnesses from the consequences of their
evidence, given by order of the house. On the 26th May
1818, the Speaker called the attention of the house to the
Protection to
witnesses.
Short-hand
writers.
1 30 & 31 Vict. c. 136.
2 Orange Lodges (Colonel Fair.
man), 90 Com. J.504.520.564; 103 Ib.
258; 112 Ib. 354. See also "Com
mittees," " Complaints," "House,"
"Elections,” and “Witnesses," in
the General Journal Indexes.
3 Penryn Election Bill, 1827; 82
Com. J. 473.
WITNESSES EXAMINED.
483
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 committee
thereof, are entitled to the protection of this house, in respect of any-
thing 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 committee of this house, without the
special leape of the house." 3
Whenever the parties to a suit desire to produce such evi-
dence, or any other document in the custody of officers of the
house, in a court of law, they petition the house, praying
that the proper officer may attend, and produce it. During
the recess, however, it has been the practice for the Speaker,
in order to prevent delays in the administration of justice, to
allow the production of minutes of evidence and other docu-
ments, on the application of the parties to a private suit. But
should the suit involve any question of privilege, especially
the privilege of a witness, or should the production of the
document appear, on other grounds, to be a subject for the
discretion of the house itself, he will decline to grant the
required authority. It has been held by the courts that the Evidence of
members in
courts.
1 2 Starkio, N. P. Cases, 366. Mr. Justice Keogh (under the Elec-
? It appears that short-hand writers tion Petitions and Corrupt Practices
were first employed by the Lords in Act 1868) to attend the trial of
1786, upon the slave-trade inquiries; certain prosecutions at Dublin, for
and by the Commons in 1792, on the undue influence at that election. By
Eau Brink Drainage. In 1802, they the 24th section of that Act, the
were introduced into all election short-hand writer of the House of
committees by Mr. Michael Angelo Commons is required to take notes
Taylor's Bill. 3 Lord Colchester's of the evidence before the election
Diary, 332.
judge, but not as an officer of the
3 73 Com. J. 389. But, on the 7th house; and in this case it was only
Feb. 1873, it was ruled (privately) two of his deputies whose attend-
that an order of the house was not ance was required.
required to enable the short-hand 4 106 Com. J. 212. 277; 107 Ib.
writer of the house, who had attended 291, &c.
the trial of the Galway election before
II2
484
WITNESSES EXAMINED.
Indemnity to
witnesses.
Examined at
the bar.
evidence of members, of proceedings in the House of Com-
mons, is not to be received without the permission of the
house, unless they desire to give it;and, according to the
usage of Parliament, no member is at liberty to give evidence
elsewhere in relation to any debates or proceedings in Parlia-
ment, except by leave of the house of which he is a member.2
The protection afforded to witnesses by the privileges of
Parliament against suits and molestation, on account of their
evidence, has been noticed elsewhere;3 and on extraordinary
occasions, where further protection has been deemed necessary
to elicit full disclosures, acts have been passed to indemnify
witnesses from all the penal consequences of their testimony.+
When a witness is examined by the House of Commons,
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, according to the
strict rule of the house, the Speaker should put all the ques-
tions to the witness, and members should only suggest to
him the questions which they desire to be put :6 but, for
the sake of avoiding the repetition of each question, members
are usually permitted to address their questions directly to
the witness, which, however, are still supposed to be put
through the Speaker. 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
1 Chubb v. Salomons, 3 Carrington
& Kitwan, 75.
2 18 Hans. Deb. N.S. 968-974.
3 Supra, p. 161.
4 Election Compromises, 1842; 5
& 6 Vict. c. 31. Sudbury Disfran-
chisement, 1843 ; 6 & 7 Vict. c. 11.
Gaming Transactions, 1844; 7 & 8
Vict. c. 7.
5 2 Hatsell, 140 : but see 2 Com.
J. 26.
6 See 1 Com. J. 536.
7 146 Hans. Deb. 3rd Ser. 97;
150 Ib. 1063,
8 2 Hatsell, 140.
WITNESSES EXAMINED.
485
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 directed by the Speaker to
withdraw, before a motion is made, or the matter is con-
sidered. In committee of the whole house, any member may
put questions directly to the witness. Where counsel are
engaged, the examination of witnesses is mainly conducted
by them, subject to the interposition of questions by members;
and where any question arises in regard to the examination,
the parties, counsel, and witnesses are directed to withdraw.
Whenever witnesses are examined at the bar, the short-hand
writer of the house is in attendance there, and takes minutes
of their evidence.
Members of the house are always examined in their Members,
lords of Par-
places;2 and peers, lords of Parliament, the judges, and liament, &c.
the lord mayor of London, have chairs placed for them
within the bar, and are introduced by the serjeant-at-arms.3
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.
1 2 Hatsell, 142, and n.
2 "Agreed that members ought not
to be brought to the bar unless they
are accused of any crime;" 10 Com.
J. 46. On the 12th January 1768,
Wilkes being brought to the bar in
custody, objected that he could not
appear there without having taken
the oaths : but his objection was
overruled.
3 The same forms are observed
when a peer desires to address the
house, as in the case of Viscount
Melville, 11th June 1805 ; 5 Hans.
Deb. 250 ; and Duke of Wellington,
1st July 1814; Abbot's Speeches, 84.
2 Lord Colchester's Diary, 6-8.
4 2 Hatsell, 149 ; where all these
forms are minutely described.
486
WITNESSES' EXPENSES.
Expenses of
witnesses.
When a witness is summoned at the instance of a party,
his expenses are defrayed by such party: but when sum-
moned for any public inquiry, to be examined by the house
or a committee, his expenses are paid by the Paymaster-
General, under orders signed by the clerk of the Parliaments,
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 particulars are to be annexed in a tabular form, to
the printed proceedings of every committee: 1. The name of
the witness; 2. His profession or condition; 3. Total number
of days in London; 4. Number of days under examination,
or acting specially under the orders of the committee ;
5. Expenses of journey to London and back; 6. Expenses
in London;1 7. 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 circum-
stances 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 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.
3
1 A witness is allowed his actual
travelling expenses, and for every
day or part of a day that he is neces-
sarily kept from home, at the follow-
ing rates, viz.: a barrister, physician,
civil engineer or architect, 31. 38.; a
solicitor, surgeon, or land surveyor,
21. 2s. ; a clergyman, or non-pro-
fessional gentleman, il. ls. ; a me-
chanic, &c., 10s. Special allowances
have also been made to defray the
expenses of official substitutes.
2 See Report, 1840, No. 555.
3 62 Lords' J. 910.
COMMUNICATIONS BETWEEN LORDS AND COMMONS.
487
CHAPTER XVI.
COMMUNICATIONS BETWEEN TIIE LORDS AND COUVONS. VESSAGES
AND CONFERENCES; JOINT COUMITTEES, AND COMMITTEES CON-
MUNICATING WITH EACH OTHER.
modes of
communica-
The two houses of Parliament have frequent occasion to com- Different
municate with each other, not only in regard to bills which
require the assent of both houses, but with reference to other tion.
matters connected with the proceedings of Parliament. There
are four modes of communication : viz. 1. By message; 2. By
conference ; 3. By joint committees of Lords and Commons;
and, 4. By select committees 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 requesting the attendance of wit-
nesses; for the interchange of reports and other documents;
and for communicating all matters of an ordinary description,
which occur in the course of parliamentary proceedings. It
is also the commencement of the more important modes of
intercourse, by means of conferences and joint committees.
A very important change in the form of sending messages
was introduced in 1855; but as the former practice is still
recognized by the orders of both houses, and might possibly
be revived, it may be convenient to describe it. Prior to From the
1847, the Lords ordinarily sent messages by the masters in Cords to the
chancery, their attendants; and on special occasions, by their
Commons
1 On the 17th Feb. 1866, the Lords
sent a message to the Commons, re-
questing them to continue sitting for
some time, to which the latter agreed,
the object being to insure the pass-
ing of the Habeas Corpus Suspension
(Ireland) Bill on that day.
488
COMMUNICATIONS BETWEEN
n
others,
assistants, the judges; while the Commons always sent a
deputation of their own members.
By the
Bills relating to the Crown or royal family were sent to
judges.
the Commons by two judges: 2 but when the judges were
circuit, or for other causes were not in attendance, such bills
By masters in were sent by one judge and one master in chancery.: When-
chancery and
ever the Lords sent a message otherwise than by their usual
messengers, an explanation was sent, and the Commons ac-
quiesced in the reasons assigned, “trusting that the same
will not be drawn into precedent for the future." 4
Messages The Commons sent messages to the Lords by one of their
own members (generally the chairman of the committee of
ways and means, or a member who had charge of a bill),
who, until 1847, was required to be accompanied by at least
seven others. Eight was formerly the common number
which formed a quorum of a select committee, and was pro-
bably for this reason adopted as the number for carrying a
message to the House of Lords.5
Much inconvenience had been sustained by requiring so
many messengers to communicate the most ordinary matters;
more especially as each bill formed the subject of a distinct
message, accompanied by all the customary formalities; and,
on the 12th July 1847, the Lords communicated the following
resolutions, at a conference:
from the
Commons to
the Lords.
“1st. That the Lords are willing to receive from the Commons in
one message, all Commons' bills when first brought up to this house ;
all Lords' bills returned from the House of Commons without any
amendments made thereto, and all Commons' bills returned therefrom
with the Lords' amendments thereto agreed to, without any amend-
ment; a list of such bills, with a statement of the assent of the Commons
thereto, being brought by the messengers from the House of Commons,
and delivered together with the bills so brought up.
“ 2nd. That whereas, by custom heretofore, all messages from the
House of Commons to the House of Lords have been attended by eight
1 Lords' S. O. No. 88.
2 80 Com. J. 573; 86 Ib. 514. 805.
8 86 Ib. 713.
4 17 Parl, Hist. 423; 72 Com. J.
5; 85 Ib. 652; 88 Ib. 727; 90 Ib.
650.
5 See also Chapter XVIII.,
PUBLIC BILLS.
on
LORDS AND COMMONS.
489
members of the House of Commons; and whereas the attendance of so
many may occasionally be inconvenient to the members of the said
house, the Lords desire to communicate to the Commons their willing-
ness to receive such messages when brought up by five members
only.” 1
In return for this concession the Commons resolved,
- That the Commons should be willing to receive messages from the
Lords brought by one master in chancery instead of two masters, as
heretofore." 2
And without any express resolution they have since re-
ceived a message by one judge, instead of two, bringing the
agreement of the Lords to a bill relating to the royal family.3
But in 1857, the Lords returned the Princess Royal's
Annuity Bill by two judges; in 1861 they returned the
Princess Alice's Annuity Bill, and in 1863 the Prince of
Wales's Annuity Bill, in the same manner. This unexpected
revival of an obsolete custom proved less conducive to dignity
than to ridicule. In 1866, the Princess Mary of Cambridge's
Annuity Bill was returned by the clerk.5 In 1871, the
message communicating the agreement of the Lords to the
Princess Louise's Annuity Bill was brought by two judges.
But in later cases the messages have been brought, in the
usual way, by the clerk.
In 1855, a much greater change was introduced, mainly
caused by the abolition of the office of master in chancery.
On the 24th May, the following resolutions, which had been
communicated by the Lords, at a conference, were agreed to
by the Commons:
That, in addition to the present practice with regard to messages
between the houses, one of the clerks of either house may be the bearer
6
7
1 102 Com. J. 861.
2 Ib. 868.
3 Duke of Cambridge's Annuity
Bill, 1850; 105 Com. J. 661. Princess
Helena's Annuity Bill, 1866; 121
Com. J. 164.
4 On this last occasion, a ceremony,
once regarded as solemn, provoked
shouts of laughter.
5 121 Com. J. 410.
6 126 Ib. 57.
7 Duke of Connaught's Establish-
ment Bill, 1878; 133 Com. J. 405.
Duke of Albany's Establishment
Bill, 1882; 137 Com. J. 150.
490
COMMUNICATIONS BETWEEN LORDS IND COMMONS.
of messages from the one to the other; and that messages so sent be
received at the bar by one of the clerks of the house to which they are
sent, at any time whilst it is sitting or in committee, without inter-
rupting the business then proceeding.” 1
2
General cha-
racter of a
conference.
Except in the rare instances just referred to, both houses
have since sent their messages in this convenient and suitable
manner; and it will be unnecessary to describe the cere-
monies with which messengers were formerly received in both
houses.
2. A conference is a mode of communicating important
matters by one house of Parliament to the other, more
formal and ceremonious than a message, and sometimes
better calculated to explain opinions and reconcile differ-
ences. By a conference both houses are brought into direct
intercourse 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.
Subjects for a Either house may demand à conference upon matters
conference,
which, by the usage of Parliament, are allowed to be
proper occasions for such a proceeding: as, for example,
1. To communicate 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
of proceeding in Parliament. 4. To require or communicate
statements of facts on which bills have been passed by the
other house. 5. To offer reasons for disagreeing to or
insisting on amendments made by one house to bills passed
by the other.
When to be On all these and other similar matters it is regular to
demanded.
demand a conference: but as the object of communications
of this nature is to maintain a good understanding and
I 110 Com. J. 254.
2 See 3rd edition of this work,
4 9 Ib. 344.
5 89 Ib. 220; 90 Ib. 656; 91 Ib.
225; 102 Ib. 861.
6 19 Ib. 630.
p. 338.
3 87 Com. J. 421 ; 88 Ib. 488: 89
Ib. 232; 95 Ib. 422; 112 Ib. 363, &c.
CONFERENCES.
491
co-operation between the houses, it is not proper to use them
for interfering with and anticipating the proceedings 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 privileges, 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 are
so obvious that it has now, for a long course of years, been
invariably observed, with regard not only to bills, but also to
resolutions that have been communicated. For instance, if
the Commons 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 posses-
sion 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 properly
be declined. Thus, on the 2nd August 1641, the Commons
declined a conference which had been demanded “ without
any expression of the subject or matter of that conference,
which is contrary to the constant course of either house." 2
And on the 22nd March 1678, the Commons, instead of
agreeing to a conference, sent a message to acquaint the
Lords “ that it is not agreeable to the usage and proceedings
of either house to send for a conference without expressing
the subject-matter of that conference." 3 On the 29th October
stated.
11 Com. J. 114.
2 2 Ib. 581.
3 9 Ib. 355.
492
CONFERENCES,
1795, the Lords demanded a conference on the attack upon
his Majesty that day) without stating the purpose. The
Speaker interposed, and a message was returned by the
Lords' messengers, that it was contrary to the usage of
Parliament to send a message in that form. 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 importance and con-
cern, respecting the due administration of justice;" 2 “upon
a subject of the highest importance to the prosperity of the
British possessions in India ;"3 “upon a matter deeply
connected with the interests of his Majesty's West India
colonies ;"4 and "
"4 and “ upon a matter essential to the stability of
the empire, and to the peace, security, and happiness of all
classes of his Majesty's subjects.”5 None of these expres-
sions 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.
Conferences have been most frequently demanded, in order
to offer reasons for disagreeing to amendments to bills; and
until 1851, this was the only course of proceeding on such
occasions. But by resolutions of both houses, agreed to at
conferences 12th and 15th May 1851, where one house dis-
agrees to any amendments made by the other, or insists upon
any amendments to which the other house has disagreed, it
will receive reasons for their disagreeing or insisting, as the
case may be, by message, without a conference, unless at any
time the other house should desire to communicate the same
at a conference. And in 1866, messages were substituted
for conferences, in communicating addresses for commissions
under the Corrupt Practices Act.
Since these resolutions were agreed to, there has been only
Reasons
offered by
message or
conference.
1 51 Com. J.5; 32 Parl. Hist. 188;
and see 4 Hatsell, 23.
2 85 Com. J. 473 (Sir J. Bar-
rington).
3 88 Ib. 488 (E. I. C. Charter).
181 Ib. 116 (Slaves).
5 89 Ib. 232 (Union with Ireland).
6 106 Ib. 210. 217. 223.
(
CONFERENCES.
493
one instance of a conference, where a message would have
been admissible. When any amendment made by the other
house is disagreed to, a committee is appointed to draw up
reasons for such disagreement; and when the reasons pre-
pared by the committee are reported to the house and agreed
to, a message is sent to communicate such reasons, or to
desire a conference.
It is the peculiar privilege of the Lords to name both the Time and
time and place of meeting, whether the conference be desired
meeting.
by themselves or by the Commons ;3 and when they agree to
a conference, they at the same time appoint when and where
it shall be held. Both houses communicate to each other
their agreement to a conference, by messages in the ordinary
place of
manner.
Each house appoints managers to represent it at the con- Managers ap-
pointed.
ference, and it is an ancient rule, that the number of the
Commons named for a conference are always double to those
of the Lords.”+ It is not, however, the modern practice to
specify the number of the managers for either house. The
managers of the house which desires the conference are the
members of the committee who drew up the reasons, to whom
others are frequently 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. But it is not customary, nor consistent
with the principles of a conference, to appoint any members
as managers, unless their opinions coincide with the objects
for which the conference is held.5
The duty of the managers is confined to the delivery and Duty of
managers.
receipt of the resolutions to be communicated, or the bills to
be returned, with reasons for disagreeing to amendments.
1 Oaths Bill, 1858 ; 113 Com. J. land) Bill, 1881; 136 Ib. 453, &c.
182.
3 1 Ib. 154; and see this claim as
2 106 Com. J. 438; 108 Ib. 809. stated by the Lords, 9 Ib. 348.
Representation of the People Bill,
4 1 Ib. 154.
1867; 122 Ib. 440; Land Law (Ire- 5 Ib. 350 ; 122 Ib. 438.
494
CONFERENCES,
Conferences
in regard to
bills.
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 the papers 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 proceedings.
Messages have now practically superseded conferences in
relation to bills : but the former course of proceedings must
still be briefly explained. Let it be supposed that a bill sent
up from the Commons has been amended by the Lords and
returned ; that the Commons disagree to their amendments,
draw up reasons, and desire a conference, that the conference
is held, and the bill and reasons are in possession 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 their amendments, they desire another con-
ference, and communicate the reasons of their perseverance.
If the Commons should be still dissatisfied with these reasons,
and persist in their disagreement to the Lords' amendments,
they were formerly precluded, by the usage of Parliament,
from desiring a third conference; and unless they allowed
the bill to drop, laid it aside, or deferred the consideration of
the reasons and amendments, they desired a free conference.
This practice, however, was departed from on one special
occasion. In 1836, after two conferences upon the Municipal
Corporations Bill, a free conference was held, according to
ancient usage:1 but the disagreement between the two houses
continued, and the consideration of the Lords' amendments
and reasons was postponed for three months. In the follow-
ing session, another bill was brought in, to which various
amendments were made by the Lords, to which the Com-
1 91 Com. J. 783.
CONFERENCES.
495
ence.
mons disagreed. The results of the free conference, however,
had been so unsatisfactory, that the usage of Parliament was
departed from, and fourl ordinary conferences were succes-
sively held, which so far accommodated the differences be-
tween the two houses, that the bill ultimately received the
royal assent.
A free conference differs materially from the ordinary con- Free confer-
ference; 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 ob-
jections, 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 helpless : 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 upon the same subject; or if any
question of privilege or other new matter should arise, an
ordinary conference may be demanded. Until 1836, no free
conference had been held since the year 1740: nor has there
been any subsequent example.
It only remains to notice the manner in which confer- Forms of
holding.
ences are held. When the time appointed has arrived,
business is suspended in both houses, the names of the
managers are called over, and they leave their places, and
repair to the conference chamber. The Commons, who come
first to the conference, enter the room uncovered, and re-
main standing the whole time within the bar, at the table.3
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 lord
3
1 92 Com. J. 466. 512. 589. 646.
2 4 Hatsell, 42-45. 52.
By order, 16th January 1702,
none but managers are to stand
within the bar.
496
CONFERENCES.
(usually the lord privy seal) who receives or delivers the
paper of resolutions or reasons stands up uncovered, while the
paper is being transferred from one manager to the other :
but 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 conference. The Lords
who speak at a free conference, do so standing and un-
covered.
The Lords have the following Standing Orders in regard to
the manner of holding conferences:-
Commons not “ The place of our meeting with the lower house upon conference is
to be covered. usually the Painted Chamber,2 where they are commonly before we
come, and expect our leisure. We are to come thither in a whole body
and not some lords scattering before the rest, which both takes from
the 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 ever either to be covered, or sit down in
our presence, unless it be some infirm person, and that by conniyance
in a corner out of sight, to sit, but not to be covered.” 3
None to speak “None are to speak at a conference with the lower house, but those
at a confer-
that be of the committee; and when anything from such conference is
ence but those
of the com-
reported, all the lords of that committee are to stand up.'
mittee.
“ No man is to enter at any committee or conference (unless it be
No stranger such as are commanded to attend) but such as are members of the
to be at a
house, or the heir apparent of a lord who has a right to succeed such
conference or
committee.
lord, or the eldest son of any peer who has a right to sit and yote in
this house, upon pain of being punished severely, and with example to
others." 5
Joint com-
mittees of
Lords and
Commons.
3. There are several early instances of the appointment of
joint committees of the two houses : 6 but until 1864, no such
committee had been appointed since 1695.7 A rule similar
to that adopted in regard to conferences, that the number on
1
4 Hatsell, 28, n.
2 After the fire, in 1834, the Painted
Chamber was fitted up and occupied
as the temporary House of Lords.
In the new building there was a
conference hall or chamber, which
was still called the Painted Chamber.
113 Com. J. 178. It is now converted
into a dining-room for the Commons.
3 Lords' S. O. No. 89.
4 Ib. No. 90.
5 Ib. No. 91; see also 1 Com. J.
156.
6 3 Hatsell, 38 et seq.
Trials of
the Lords in the Tower, 11th May
1769. Lord Stafford's impeachment,
27th November 1680.
7 22nd April 1695; 11 Com. J. 314.
JOINT COMMITTEES,
497
the part of the Commons should be double that of the Lords,
obtained in the constitution of joint committees; and was
inconsistent with any practical union of the members of the
two houses, in deliberation and voting. The principal ad-
vantages of a joint committee were that the witnesses were
sworn at the bar of the House of Lords, and that one
inquiry, common to both houses, could be conducted pre-
paratory to any decision of Parliament: but the power
possessed by the Commons of out-voting the Lords,—their
right to meet their lordships without the respectful ceremonies
observed at a conference, and their share in the privilege of
taking the evidence of sworn witnesses,-naturally rendered
a joint committee distasteful to the House of Lords, by
whom no power or facilities were gained in return. At
length, in 1864, the chief obstacle was overcome by the
appointment of a joint committee, of equal numbers repre-
senting both houses, on the railway schemes of that session,
affecting the metropolis. This important proceeding, which
originated with Mr. Milner Gibson, was eminently successful.
The Commons, having appointed a committee of five mem-
bers, requested the Lords “to appoint an equal number of
lords to be joined with the members of this house.” The
Lords accordingly appointed a committee of five lords to join
the committee of the Commons, and proposed a time for the
meeting of the committee. The committee of the Commons
received power to agree in the appointment of a chairman,
and concurred in the choice of the Lord President. And in
1867, by desire of the House of Lords, another joint com-
mittee was appointed upon Parliamentary deposits ; 3 and
several joint committees have since been appointed. In
1 2 Com. J. 502 ; 5 Ib. 647. 655. Railways Transfer and Amalgama-
2. 173 Hans. Deb. 291. 311. 493. tion bills, 1873; 128 Ib. 62. Par-
3 188 Ib. 423.
liamentary agents, 1876 ; 131 Ib.
Despatch of public business 1869; 282. Stationery Office, 1881 ; 136
124 Com. J. 87. Railway Companies Com. J. 281. Channel Tunnel,
Amalgamation, and Tramways (Me- April 1883.
tropolis) 1872; 127 Com. J. 61. 83.
P.
K K
498
JOINT COMMITTEES,
Select com-
mittees com-
municating
with each
other.
1872, power was given to the Commons' committee to join in
the appointment of a chairman of the joint committee on
railway amalgamation, and a member of the Commons was
elected chairman. In 1873, the railway and canal bills,
containing powers of amalgamation, were committed to a
joint committee of Lords and Commons. In this case it was
not thought necessary to give the committee power to join in
the appointment of a chairman, such a proceeding being usual
in the Lords, but not in the Commons; and a member of the
Commons was again chosen as chairman.
4. A modification of the practice of appointing joint com-
mittees may be effected by putting committees of both houses
in communication with each other. In 1794, the Commons
had communicated to the Lords certain papers which had
been laid before them by the king, in relation to correspond-
ing societies, together with a report of a committee of secrecy;
and on the 22nd of 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 ;l to which the Com-
mons replied that they had given power to their committee
of secrecy to communicate, from time to time, with the com-
mittee 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 the Lords and Commons, communicating with each other ;3
and again in 1861, power was given to the select committee
on the business of the house to communicate, from time to
time, with a select committee of the House of Lords upon the
same subject.
A few words may be added concerning other means of
communication between the two houses, less open and osten-
4
Other means
of communi-
cation.
1 49 Com. J. 619.
2 Ib. 620,
3 66 Ib. 287. 291.
4 116 Ib. 77; 93 Lords' J. 13.
OTHER COMMUNICATIONS BETWEEN THE TWO HOUSES.
499
sible than those already described. The representation of the
Executive Government by ministers, in both houses, who
have a common responsibility for the measures and policy of
the State, secures uniformity in the direction of the councils
of these independent bodies. Every public question is pre-
sented to them both, from the same point of view: the
judgment of the cabinet, and the sentiments of the political
party which they represent, are adequately expressed in each
house; and a general agreement is thus attained, which no
formal communications could effect. The organization of
parties also exercises a marked influence upon the relations
of the two houses. When ministers are able to command a
majority in the Lords as well as in the Commons, concord
is assured. The views of the dominant party are carried out
spontaneously in both houses, as if they were a single
chamber. But when ministers enjoying the confidence of
the majority of the Commons are opposed by a majority
of the Lords, it is difficult to avert frequent disagreements
between the two houses. The policy approved by one party
is condemned by the other; and the minority in the Com-
mons naturally look for the support of the majority in the
Lords. Hence the decisions of one house are often contested
by the other. When this conflict of opinion arises upon a
bill, the proceedings which ensue have already been explained.
When it arises upon a question of policy or administration,
the course pursued is, in great measure, determined by the
character of the difference. The two houses may
The two houses may differ upon
abstract questions without any grave consequences. But if
the policy of the government is condemned, or their conduct
censured, or legislation arrested in one house, it is natural
that the other should be ready with resolutions in support of
the cause of which it approves. Thus during the contest
between Mr. Pitt and the coalition, in 1874, the Lords were
forward in giving countenance to the minister, in his struggle
with a hostile majority of the Commons. Again, in the
1 May, Const. Hist., 7th ed. 75-83.
1
K K 2
500
OTHER COMMUNICATIONS
great Reform crisis of 1831-32, the Commons supported the
ministers and their cause, when they were imperilled by
the hostility of the Lords. And in 1839, when the oppo-
sition, in the Commons, had failed to arrest the establishment
of a system of national education under an order in council,
by an address to the Crown, the Upper House presented an
address condemning the scheme, but without effect. In the
same year, the House of Lords having appointed a committee
to inquire into the state of Ireland since 1835, in respect of
crime and outrage, the Commons regarding this step as an
arraignment of the policy of the ministers, supported them by
a vote of confidence.3 In 1850, when the Lords censured
the government for the course taken in reference to the
claims of Don Pacifico upon Greece, the Commons came to
the rescue, with a vote of approval and confidence.
In 1857, a vote of censure upon the policy of the govern-
ment, in reference to the war in China, was negatived in the
House of Lords; but, by a combination of parties, a vote to
the same effect was carried in the House of Commons ;5 and
was followed by a dissolution.
In 1860, the Lords having rejected the bill - for the
abolition of the paper duties, the Commons responded by
resolutions re-asserting their privileges in regard to money
bills. And again, in 1864, conflicting resolutions were
agreed to in the two houses in relation to the Danish War.
In 1871, a bill having been passed by the Commons for
the abolition of purchase in the army, and providing compen-
sation to the officers, which was refused a second reading by
the Lords, a royal warrant was issued cancelling former
regulations by which the purchase of commissions had been
sanctioned. The Lords were thus constrained to reconsider
6
7
1 1 May, Const. Hist., 7th ed. 143.
2 Ib. 415; 48 Hans. Deb. 3rd Ser.
229 et seq., 1322; 49 Ib. 128.
3 71 Lords' J. 148; 94 Com. J.
202.
$2 Lords' J. 222; 105 Com. J.
475.
5 88 Lords' J. 533; Hans, Deb.
26 Feb. 1857, &c.
See Chap. XXI. (SUPPLY).
7 96 Lords' J. 538; 119 Com. J.
405.
:
BETWEEN THE TWO HOUSES.
501
the bill, in order to secure the pecuniary interests of the
officers; but in proceeding with the bill they placed on
record a condemnation of the issue of the warrant. It
became a matter for consideration whether the Commons
should be invited to respond to this adverse resolution; but
as legislation was not arrested, and the vote of the Lords
was without effect upon the policy or political position of
ministers, the passing of the bill was accepted as a suffi-
cient approval of the course adopted, without any retaliatory
resolution. In 1881, the Lords condemned the policy of the
government in regard to Afghanistan, and the Commons
approved it.
In 1882, the Lords having appointed a committee to
inquire into the working of the Irish Land Act of the
previous year, the Commons, after a long debate, agreed to
a resolution that parliamentary inquiry, at the present time,
into the working of that act tends to defeat its operation,
and must be injurious to the interests of good government
in Ireland.1
1 137 Com. J. 94; 266 Hans. Deb. 3rd Ser. 1729, &c.
.
502
QUEEN PRESENT IN PARLIAMENT.
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 THEA.
Queen present The Queen is always supposed to be present in the High
in Parliament.
Court of Parliament, by the same constitutional principle
which recognises her presence in other courts :1 but she can
only take part in its proceedings by means which are acknow-
ledged to be consistent with the parliamentary prerogatives
of the Crown, and the entire freedom of the debates and pro-
ceedings 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 prerogatives. In earlier times the sovereign
was habitually present in the House of Lords, as being his
council, whose advice and assistance he personally desired.
King Henry VI., in the ninth year of his reign, declared,
with the advice and consent of the Lords, “That it shall be
lawful for the Lords to debate together, in this present Par-
liament, and in every other for time to come, in the king's
absence, concerning the condition of the kingdom, and the
remedies necessary for it.”? Whence it appears that, at that
time, it was customary for the king to be present at the de-
liberations of the Lords, even if his presence was not essential
to their proceedings. When he ceased to take a personal
part in their deliberations, it was still customary for the
1 See Hale, Jurisd. of Lords, c. 1.
Fortescue, c. 8 (by Amos), with note
B.; and 2 Inst. 186.
2 3 Rot. Parl. 611.
MESSAGES FROM THE CROWN.
503
sovereign to attend the debates as a spectator. Charles II.,2
and his successors, James II., William III.,3 and Queen
Anne,+ were very frequently present: but this questionable
practice, which might be used to overawe that assembly, and
influence their debates, has wisely been discontinued since
the accession of George I. And, according to the practice
of modern times, the Queen is never personally present in
Parliament, except 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 com-
municates with Parliament, and by which Parliament com-
municates with the Crown, will now be noticed in succession,
according to their relative importance and solemnity.
The most important modes by which the Crown commu- Communica-
nicates with Parliament are exemplified on those occasions Crown, in
when her Majesty is present, in person or by commission, person or by
-
7
tions from the
3. On the 24th February 1640, while
the trial of Lord Strafford was pend-
ing, the king came to the house, and
the articles and answers were read to
his majesty.
"When the king was
gone, the Lords ordered the lord
keeper to resume the house; and
commanded the Earl of Strafford to
be again brought to the bar (taking
all that was done in the king's pre-
sence to be no act of the house), and
appointed the lord keeper to demand
his answer of him." 2 Parl. Hist.
742,
2 12 Lords' J. 318. - Charles II.
being sat, he told them it was a pri-
vilege he claimed from his ancestors
to be present at their deliberations;
that, therefore, they should not for
his coming interrupt their debates,
but proceed, and be covered.'
Andrew Maryell's Letters, p. 405.
Nor was Charles II. an inattentive
observer; for on the 26th January
1670, he reprimands the Lords for
their “very great disorders, both at
the hearing of causes, and in debates
amongst themselves ;" 12 Lords' J.
413.
3 William III. was present during
the debate on the second reading of
the Abjuration Bill, 2nd May 1690.
14 Lords' J. 483. 3 Lord Macaulay,
Hist. 347.
4 She was present for the first time
on the 29th November 1704, "at first
on the throne, and after, it being cold,
on a bench at the fire." Jerviswood
Corr. 15, cited by Lord Stanhope,
Reign of Queen Anne, 166. She was
present on the 15th November and
6th December 1705; Ib. 205. 208.
5 See 2 Lord Macaulay, Hist. 35.
6 2 Hatsell, 371, 1. ; Chitty on
Prerogatives, 74. The last occasion
appears to have been the attendance
of Queen Anne, on the 9th and 12th
January 1710, during the debates
upon the war with Spain.
7 63 Lords' J. 885.
504
ROYAL SIGN MANUAL.
in the House of Lords, to open or prorogue Parliament, and
when a royal speech is delivered to both houses. In giving
the royal assent to bills in person or by commission, the com-
munication 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.
By message
The mode of communication next in importance is by a
under the sign
manual.
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 from his place, that he has a message under the
royal sign manual, which her Majesty had commanded him .
to deliver to their lordships. And the lord chancellor then
reads the message at length, all the lords being uncovered ;
and it is afterwards read, or supposed to be read, again, at
the table, 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 message
from her Majesty to this house signed by herself; which, on
being desired by the Speaker, he brings up to the chair. The
message is delivered to the Speaker, who reads it at length,
while all the members of the house are uncovered. On the
21st March 1882, Mr. Speaker explained that a message from
the Crown, under the sign manual, was always received by
members uncovered: but that this custom did not apply to
an answer to an address.6
Subjects of The subjects of such messages are usually communications
such mes-
sages. in regard to important public events which require the
1 See Chapter XVIII. on PUBLIC
BILLS.
2 86 Com. J. 488.
3 66 Lords' J. 958; 89 Com. J.
575.
4 If brought by one of the house-
hold, he appears in uniform,-in the
Lords, in his place,—in the Com-
mons, at the bar.
5 66 Lords' J. 958.
6 267 Hans. Deb. 3rd Ser. 1443.
ROYAL SIGN MANUAL.
505
attention of Parliament;' the prerogatives, or property of
the Crown ; 2 provision for the royal family ;3 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 commencement of the session,
submitting other matters to the deliberation of Parliament,
besides the causes of summons previously declared.
This analogy between a royal speech, and a message under Should be
communi-
the sign manual, is supported by several circumstances com- cated to both
houses.
mon 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 occasionally 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 complaint:5 but from the casual circum-
stance 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 addressed On matters of
supply.
exclusively to the Commons, but it still forms part of the
speech to both houses; and in the same manner, 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.7
The Lords have taken exceptions to any message for
1 40 Lords' J. 186; 44 Ib. 74; 82 4 42 Lords' J. 361; 82 Com. J.529.
Com. J. 111.
Admiral Lord Alcester and General
2 85 Com. J. 466 ; 89 Ib. 189. 579. Lord Wolseley, 13th April 1883, &c.
3 43 Lords' J. 566; 86 Com. J. 719; 5 2 Hatsell, 366, n.
105 Ib. 539, 18th July 1850 (Duke of 6 66 Lords’J. 958; 89 Com. J.575;
Cambridge); 82 Lords' J. 368, 22nd 82 Lords' J. 368 ; 105 Com. J. 539.
July 1850; 112 Com. J. 153 (Princess 7 73 Lords' J. 28; 96 Com. J. 29
Royal, 1857); Prince of Wales, 1863; (Lord Keane). 88 Lords’ J. 129; ;
Princess Helena, and Princess Mary 111 Com. J. 186 (Sir F. Williams);
of Cambridge, 1866. Marriage of Lord Alcester and Lord Wolseley,
the Duke of Albany, 1882; 137
1883, &c.
Com. J. 112.
6
506
VERBAL MESSAGES.
sages.
supplies being sent exclusively to the Commons, and for
upwards of a century it has been the custom, with few
exceptions, to send such messages to both houses; which is
consistent with their constitutional relations, in matters of
supply 3
Verbal mes-
Another form of communication from the Crown to either
house of Parliament, 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 communication is used
Members im- whenever a member of either house is arrested for any crime
prisoned,
at the suit of the Crown; as the privileges of Parliament
require that the house should be informed of the cause for
which their member is imprisoned, and detained from his
service in Parliament. Thus, in 1780, Lord North informed
the House of Commons that he was commanded by his
Majesty to acquaint the house, that his Majesty had caused
Lord George Gordon, a member of the house, to be appre-
hended, and committed 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 In the same manner, when members have been placed
martial. under arrest, in order to be tried by military courts martial,
a secretary of state, or some other minister of the Crown,
being a privy councillor, informs the house that he had been
commanded to acquaint them of the arrest of their member,
and its cause.5
Naval courts Communications of the latter description are made when
members have been placed under arrest, to be tried by naval
courts martial: but in these cases they are not in the form
of a royal message, but are communications from the Lord
courts
martial.
1 25th June 1713; 28th February
1739. 2 Hatsell, 366, n.
2 An exception was the message
in regard to the provision for her
Majesty Queen Adelaide, on the 14th
April 1831, which was presented to
the Commons alone; 86 Com. J. 488.
3 See Lords' and Commons' Gen.
Journ. Indexes, tit. “Messages.''
4 37 Com. J. 903.
5 58 Ib. 597; 59 Ib. 33; 70 Ib.
70.
QUEEN'S PLEASURE SIGNIFIED.
507
1
land.
3
High Admiral or the Lords Commissioners of the Admiralty,
by whom the warrants are issued for taking the members into
custody; and copies of the warrants are, at the same time,
laid before the house.
In 1848, the arrest of a member in Ireland, on a charge of Arrest in Ire-
treason, was communicated to the house by a letter from the
Lord Lieutenant, addressed to the Speaker ;2 and the same
course has been followed in later cases, when members have
been arrested, on criminal charges in Ireland.
The other modes of communicating with Parliament are
by the royal “pleasure,” “recommendation,” or “consent,"
being signified.
The Queen's pleasure is signified at the commencement of Queen's plea-
sure signified.
each parliament, by the Lord Chancellor, that the Commons
should elect a Speaker; and when a vacancy in the office of
Speaker occurs in the middle of a Parliament, a communica-
tion of the same nature is made by a minister, in the house.4
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 Parlia-
ment 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 by Royal recom-
a minister of the Crown, on receiving petitions, on motions
for the introduction of bills; or on the offer of other motions,
involving any public expenditure or grant of money not in-
cluded in the annual estimates, whether such grant is to be
mendation or
consent.
1 62 Com. J. 145; 64 Ib. 214; 67
Ib. 246. See also supra, p. 154. .
2 103 Com. J.888; Sth August 1848
(Mr. W. S. O'Brien).
3 See supra, p. 154.
4 See supra, p. 202.
5 86 Com. J. 460.
6 112 Ib. 219 ; 119 Ib. 177.
7 98 Ib. 167; 101 Ib. 615; 104 Ib.
412; 113 Ib. 31.
508
QUEEN'S CONSENT SIGNIFIED.
made in the committee 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, by a privy councillor, to motions for leave to bring
in bills; 3 or to amendments to bills, or to bills in any of
their stages, or to instructions to committees on bills, or to
Lords' amendments to bills, which concern the royal pre-
rogatives, the hereditary revenues, or personal property or
interests of the Crown or Duchy of Cornwall. When the
Prince of Wales is of age, his own consent is signified, as
Duke of Cornwall, in the same manner. The mode of
communicating the recommendation and consent is the
same: but the former is given at the very commencement
of a proceeding, and must precede all grants of money ;
while the latter may be given at any time during the
progress of a bill, in which the consent of the Crown is
required; and has even been signified on the final question
that this bill do pass.10 Where bills have been suffered,
through inadvertence, to be read a third time and passed,
the proceedings have been declared null and void.11
See Chapter XXI. on SUPPLY. 10 98 Ib. 287; 99 Ib. 309; 104 Ib.
2 75 Com. J. 152. 167; 98 Ib. 52. 192; 105 Ib. 338. In 1812, on the
To a clause about to be proposed for third reading of the Sinecure Offices
that purpose in committee on a bill, Bill, objection being taken that the
20th June 1861; 116. Com. J. 285. consent of the Crown had not been
See also Chapter XXI. on SUPPLY. signified, Mr. Speaker Abbot ob-
3 106 Com. J. 232; 107 Ib. 142; served that after the third reading
117 Ib. 79. In 1853, the Queen's the bill was open to amendments
consent and recommendation were (according to the practice of that
signified to the Land Revenues Bill; time); and if in the amended form
108 Ib. 625.
it went to take away any part of the
4 101 Com. J. 843; 107 Ib. 321; revenues of the Crown, it would be
124 Ib. 222.
contrary to the usage of Parliament
5 Second reading, 108 Ib. 375; 110 to pass such a bill without the con-
Ib. 290 ; third reading, Ib. 115, &c. sent of the Crown." And the bill
6 Civil List Bill, 1837; 93 Com. J. was accordingly read a third time;
204.
and, on a later day, upon the ques-
? 101 Com. J. 892; 103 Ib. 729 ; tion that this bill do pass, the con-
126 Ib. 355.
sent of the Crown was duly signified.
8 77 Ib. 408; 86 Ib. 485. 550; 91 23 Hans. Deb. 1st Ser. 474. 551.
Ib. 548; 105 Ib. 492.
11 107 Com. J. 157. See also Chap.
0 118 Ib. 310; 119 Ib. 368.
XVIII., as to Restitution Bills.
1
QUEEN'S CONSENT SIGNIFIED.
509
Crown.
In June 1874, notice having been given of an amendment Amendments
in Committee
in committee on the Valuation of Property Bill, rendering affecting the
Crown property rateable, doubts arose whether, as the consent
of the Crown had not been signified, the question could be
put by the chairman upon such amendment: but, after full
consideration and review of precedents, it was determined
that the chairman was bound to put the question. Several
precedents were found, in the last century, in which amend-
ments affecting the interests of the Crown had been made in
committees on bills, and the consent of the Crown was after-
wards signified when such amendments were agreed to upon
the report." Hence it appeared that it was for the house,
and not for the committee, which cannot receive any com-
munication from the Queen, to guard the interests of the
Crown. And it is clear, from many precedents, that the
house itself is reluctant to interfere for that purpose until the
very latest stages of the bill.
On the 1st July 1844, on the third reading of the St. Consent of
Asaph and Bangor Dioceses Bill, in the House of Lords, withhela.
it was stated by the Duke of Wellington, that her Majesty's
ministers had not been instructed to signify the consent of
the Crown to the bill, and that the royal prerogative was
affected by it. The lord chancellor then desired to be
instructed by the house whether he was at liberty to put the
question, until her Majesty's royal consent had been given ;
upon which a committee was appointed to search for prece-
dents, whether the lord speaker can, according to the usage of
this house, put the question "That this bill do pass ? " until
the consent of her Majesty is given. This committee re-
ported that there were no precedents :3 but that the bill
belonged to that class to which it had been the usage to give
the Crown
1 Offences against Customs and
Excise Laws Bill, 12th May 1736 :
22 Com. J. 714. Murder of Captain
Porteous Bill, 15th June 1737 : 22
Ib. 899; Westminster Bridge Bill,
23rd March 1740; 23 Ib. 693 ;
Tenure of Ward-holding (Scotland)
Bill, 22nd May 1747; 25 Ib. 392.
2 76 Hans. Deb. 3rd Ser. 122.
3 ist Rep. 76 Hans. Deb. 3rd Ser.
294.
510
INTERESTS OF THE CROWN.
of
Parliament.
the consent of the Crown before passing the house ; and that
it had been the custom to receive such consent at various
stages. The consent of the Crown was still withheld, and
the bill was consequently withdrawn. And in 1866, on the
third reading of the Blackwater Bridge Bill, notice being
taken that the Queen's consent had not been signified, Mr.
Speaker declined to put the question. In 1868, the Peerage
(Ireland) Bill was withdrawn upon the second reading, when
it was intimated that ministers would not advise her Majesty
to give her consent to the bill at a later stage.
Crown places. Another form of communication, similar in principle to the
the disposal of last, is when the Crown places its interests at the disposal
of Parliament;" which is signified in the same manner, by a
minister of the Crown. In 1833, the king had referred, in
his speech from the throne, to a measure relating to the
church temporalities in Ireland, and before going into com-
mittee upon that subject, his Majesty's recommendation had
been signified. Yet objection was taken upon the second
reading of the bill, that the king had not formally placed his
interests in the Irish bishoprics at the disposal of Parliament;
and a communication, in proper form, was afterwards made
to that effect. In 1868, the Government being unwilling to
advise the Queen to place her interest in the temporalities of
the bishoprics and benefices in Ireland at the disposal of
Parliament, the House of Commons voted an address to her
Majesty, praying that such interest should be placed at their
disposal. In reply, the Queen desired that her interest should
not stand in the way of the consideration of any measure
relating to the Irish Church, and the bill for suspending
appointments to bishoprics and benefices in Ireland was pro-
ceeded with, and passed by the Commons, in opposition to
6
1 2nd Rep. 76 Hans. Deb. 3rd Ser.
422.
2 76 Hans. Deb. 3rd Ser. 591.
3 121 Com. J. 423.
4 191 Hans. Deb. 3rd Ser. 1564.
5 Church Temporalities (Ireland)
Bill, 1833; 88 Com. J. 381; Church
of Ireland Bill, 1835; 90 Ib. 447;
91 Ib. 427; 95 Ib. 385, &c.
6 Hans. Deb. 6th May 1833.
7 123 Com. J. 160. 170.
ADDRESSES,
511
nications.
the ministers of the Crown. A similar course was adopted by
the Lords, in 1875, in regard to Irish peerages.
These several forms of communication are recognized Constitutional
as constitutional declarations of the Crown, suggested by these commu-
character of
the advice of its responsible ministers, by whom they are
announced to Parliament, in compliance with established
usage. They cannot be misconstrued into any interference
with the proceedings of Parliament, as some of them are
rendered necessary by resolutions of the House of Commons,
and all are founded upon parliamentary usage, which both
houses have agreed to observe. This usage is not binding
upon Parliament: but if, without the consent of the Crown,
previously signified, Parliament should dispose of the interests
or affect the prerogative of the Crown, the Crown could still
protect itself, in a constitutional manner, by the refusal of the
royal assent to the bill. And it is one of the advantages of
this usage, that it obviates the necessity of resorting to the
exercise of that prerogative.
Having enumerated all the accustomed forms, in which How acknov.
ledged.
the royal will is made known to Parliament, it may now be
shown, in the same order, in what manner they are severally
acknowledged by each house.
The forms observed on the meeting and prorogation of Addresses in
Parliament, and the proceedings connected with the address written mes-
in answer to the royal speech, were described in the seventh sages.
chapter,, and the royal assent to bills will be treated of
hereafter.3 Messages under the royal sign manual are
generally acknowledged by addresses in both houses, which
are presented from one house by the “lords with white
staves," i. e., the Lord Steward and the Lord Chamberlain;
or sometimes by other lords specially named ; and from the
other by privy councillors, in the same manner as addresses
in answer to royal speeches, when Parliament has been
answer to
1 225 Com. J. 1210.
2 Supra, p. 223.
3 Infra, Chapter XVIII.
512
ADDRESSES.
1
2
opened by commission. In reply to war messages, the
addresses have sometimes been drawn up by committees,
and presented by the whole house. On the last occasion,
31st March 1854, the address was presented by the whole
house, but was not drawn up by a committee.3
Exceptions in In the Commons, however, it is not always necessary to
the Commons.
reply to messages under the sign manual 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 ;4 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, by address, all written messages which re-
late to important public events, or matters connected with
the prerogatives, interests, or property of the Crown ;6 or
which call for general legislative measures :" but, in regard
to messages relating exclusively to pecuniary aids, of what-
ever kind, to consider them in a committee of the whole house,
on a future day, when provision is made accordingly.8
When the house is informed, by command of the Crown,
of the arrest of a member to be tried by a military court
martial, it immediately resolves upon an address of thanks to
her Majesty, “ for her tender regard to the privileges of this
house."9 And when the arrest of a member for a criminal
offence is communicated from the Crown, an address of
thanks is voted in answer.10 But as the arrest of a member
to be tried by a naval court martial does not proceed imme-
To verbal
messages.
i See supra, p. 224.
2 In 1793 and 1803.
3 109 Com. J. 169; 132 Hans.
Deb. 3rd Ser. 307.
4 63 Lords' J. 892.
5 82 Com. J. 114, &c.; assassina-
tion of the Emperor of Russia, 1881;
136 Ib. 223; calling out the reserve
force, 1882 ; 137 Ib. 399.
6 85 Ib. 466; 89 Ib. 578; 95 Ib.
520; annuities to Lord Alcester and
Lord Wolseley, 1883.
7 85 Ib. 214,
8 112 Ib. 153; 121 Ib. 99, &c.
9 70 Ib. 70.
10 37 Ib. 903.
t
ADDRESSES.
513
diately from the Crown, and the communication is only made
from the Lords of the Admiralty, no address is necessary in
answer to this indirect form of message.
The matters upon which the royal pleasure is usually On royal
pleasure, &c.
signified need no address in answer, as immediate compli- being signi-
ance is given by the house; and the recommendation and
consent of the Crown, as already explained, are only signified
as introductory to proceedings in Parliament, or essential to
fied.
their progress.
dresses.
These being the several forms of acknowledging communi- Addresses.
cations proceeding from the Crown, it now becomes necessary
to describe those which originate with Parliament. It is by
addresses that the resolutions of Parliament are ordinarily
communicated to the Crown. These are sometimes 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.
Addresses are sometimes agreed upon by both houses, and Joint ad-
jointly presented to the Crown, but are more generally con-
fined 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 insertion of the title
of the other house, communicate it at a conference, and desire
their concurrence. The blank is filled up by the other house,
and a message is returned, acquainting the house with their
concurrence, and that the blank has been filled up. Joint
addresses are also agreed to, for the appointment of commis-
sions to inquire into corrupt practices at elections ;? and in
1866, the Commons signified their willingness to substitute a
message for a conference in such cases, in which the Lords
concurred,4 and messages have since been resorted to in all
1 87 Com. J. 421; 89 Ib. 235.
Outrage upon the Queen, 1840 ; 95
Ib. 422. Outrage upon the Queen,
1842 ; 97 Ib. 324. Attempt against
her Majesty's life, 1882; 137 Ib. 88.
? See Chapter XXII. on ELECTIONS.
3 121 Com. J. 256.
* By resolution, 24th April 1866.
P.
Ι. Ι.
1
514
ADDRESSES.
1
Separate ad-
dresses.
such cases. 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 ;4 by a joint committee of Lords
and Commons, and by the lord chancellor and the Speaker
of the House of Commons: 6 but the Lords always learn her
Majesty's pleasure, and communicate to the Commons, by
message, the time at which she has appointed to be attended.
The addresses of the Commons in answer to the royal
speech at the commencement of the session are formally
prepared by a committee, upon whose report they are agreed
to, after having been twice read: but at other times, except
on some fev special occasions, no formal address is pre-
pared, and the resolution for the address is alone presented.
In 1854, an address was moved, and agreed to in proper
form, instead of in the customary form of a resolution, with-
out being referred to a committee ;8 and though it has been
customary, for upwards of one hundred and fifty years, to
present such resolutions, not only by privy councillors but by
the house itself;9 yet whenever an address is to be presented
by the whole house, it is better that it should be moved in
that form, or prepared by a committee; as the mere resolu-
tion for an address cannot be read by the Speaker to her
Majesty, with the same effect as a formal address expressly
prepared for that purpose.10 Sometimes addresses are agreed
1 124 Com. J. 125. 169.
2 87 Ib. 424; 72 Lords' J. 393;
74 Ib. 279,
3 85 Com. J. 652; 112 Ib. 423;
114 Ib. 373, &c. A joint address, for
the appointment of certain election
commissions, having been agreed to
on the 2nd September 1880, when
the Queen was at Balmoral, her
Majesty was pleased to dispense
with the personal attendance of the
two lords and four commoners ap-
pointed to present the address ; see
Lords' Minutes, p. 906.
4 1 Com. J. 877.
5 2 Ib. 462.
6 23rd Dec. 1708 ; 16 Com. J. 54.
? Convention with Spain, 1738 ;
23 Com. J. 277. Peace with France
and Spain, 1762; 29 Ib. 395. Treaty
with France, 1787; 42 Ib. 401.
Treaty of peace, 6th May 1856;
111 Ib. 182, &c.
8 Address on the war with Russia,
31st March 1854 ; 109 Com. J. 169;
132 Hans. Deb. 3rd Ser. 307.
9 See 2 Hatsell, 388.
10 On the 6th February 1858, both
ADDRESSES.
515
3
to upon the report of committees of the whole house, not
only in relation to matters involving public expenditure, but
concerning other public affairs. Addresses, or resolutions
for addresses, are ordered to be presented by the whole house ;
by the lords with white staves, or privy councillors ;4 and, in
some peculiar cases, by members specially nominated.5
The subjects upon which addresses are presented are too. Their sub-
jects.
varied to admit of enumeration. They have comprised every
matter of foreign or domestic policy;' the administration of
justice ;8 the confidence of Parliament in the ministers of the
Crown:' the expression of congratulation or condolence (which
are agreed to nem. con.);10 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.11
When a joint address is to be presented by both houses, Mode of pre-
senting
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
houses had agreed to resolutions 6 78 Ib. 278; 82 Ib. 118; 88 Ib.
only. The Speaker, however, in ad- 471. Assassination of President
dressing the Queen introduced this Lincoln, 1865; 120 Ib. 229.
preface : “Most gracious Sovereign,
7 89 Ib. 235.
your Majesty's most dutiful and
8 85 Ib. 472.
loyal subjects the Commons of the 9 7 Ib. 325.
United Kingdom of Great Britain and 10 105 Ib. 508; 108 Ib. 371; 113
Ireland, in Parliament assembled, Ib. 31; 123 Ib. 142. Death of
have resolved nem. con.,” &c. &c. Grand Duchess of Hesse (Princess
The lord chancellor read the resolu- Alice), 16th December 1878. Assas-
tion of the Lords without any pre- sination of the Emperor of Russia,
face, according to ancient usage. 15th March 1881. When this ad-
1 See Chapter XXI. on SUPPLY. dress was answered, a letter from
2 State of the nation, 22nd Dec. the Russian Ambassador to Earl
1783; Chancellor of the Duchy of Granville was also communicated,
Lancaster, 24th Dec. 1783; 39 Com. by her Majesty's command, forward-
J. 848. 855; Defence of the kingdom, ing a telegraphic message from the
20th June 1803; 58 Ib. 528, &c. Emperor of Russia, in acknowledg-
3 92 Com. J. 492; 113 Ib. 31. ment of the address; 136 Com. J.
4 92 Lords' J. 19.
141.
5 10 Com. J. 295 ; 67 Ib. 391. 11 12 Lords' J. 72. 81. 88; 8 Com.
J. 670; i Grey's Debates, 5.
.
I, I 2
516
ADDRESSES.
Joint ad-
dresses.
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 be enjoyed as part of their privilege 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
chamber adjoining the throne room, and when her Majesty is
prepared to receive them, the doors are thrown open, and the
Lord Chancellor and the Speakerl advance side by side, fol-
lowed by the members of the two houses respectively, and are
conducted towards the throne by the Lord Chamberlain. The
Lord Chancellor reads the address, and presents it to her
Majesty, on his knee, to which her Majesty returns an answer,
and both houses retire from the royal presence.
Separate ad- When addresses are presented separately, by either house,
the forms observed are similar to those already described,
except that addresses of the Commons are then read by their
Speaker. Each house proceeds by its accustomed route to the
palace, and is admitted with similar ceremonies. In present-
ing the address, the mover of the address in the Lords is on
the right hand of the Chancellor, and the seconder on his
left: while the mover and seconder of the address, in the
Commons, are on the left hand of the Speaker. When the
Lord Chancellor or Speaker has read the address, he presents
it to her Majesty, kneeling upon one knee.
Dress of peers
It is customary for all the lords, without exception, who
attend her Majesty, to be in levée dress: but the greater part
of the members of the House of Commons, generally assert
their privilege of freedom of access to the throne, by accom-
panying the Speaker in their ordinary attire.?
When addresses have been presented by the whose house,
dresses.
and members.
Answers to
addresses.
i The Speaker is always on the
left hand of the Chancellor.
2 They are not permitted to enter
the royal presence with sticks or
umbrellas. See 2 Hatsell, 390, 12.
!
MESSAGES TO ROYAL FAMILY.
517
the Lord Chancellor in one house, and the Speaker in the
other, report the answer of her Majesty; but when they have
been presented by the lords with white staves, or by privy
councillors only, the answer is reported by one of those
members who have had the honour of attending her Majesty,
being generally, in the House of Lords, the Lord Chamber-
lain, who appears in levée dress, with his white staff; and in
the House of Commons, one of the royal household, who
appears at the bar, and on being called by the Speaker, reads
her Majesty's answer. If a member of the household ap-
pears, at the bar, in uniform, with the answer to an address,
the proceedings of the house are sometimes interrupted, until
the answer has been received.1
Another mode of communication with the Crown, less Resolutions
direct and formal than an address, has been occasionally cated.
communi
adopted; when resolutions of the house, and resolutions
and evidence taken before a committee, have been ordered
to be laid before the sovereign. In such cases the resolutions
have been presented in the same manner as addresses, and
answers have sometimes been returned.4
It is to the reigning sovereign, or regent, alone that ad- Messages to
dresses are presented by Parliament: but messages are family.
the royal
frequently sent by both houses to members of the royal
family, to congratulate them upon their nuptials, or other
auspicious events ;c or to condole with them on family
bereavements." Resolutions have also been ordered to be
laid before members of the royal family. Certain members
are always nominated by the house to attend those illus-
trious personages with the messages or resolutions; one of
1 108 Com. J. 438; 17th Dec. 1878.
2 37 Com. J. 330 ; 39 Ib. 884; 40
Ib. 1157; 60 Ib. 206; 67 Ib. 462; 78
Ib. 316, &c.
3 90 Ib. 534.
4 39 Ib. 885; 60 Ib. 211.
5 72 Lords' J. 53; 73 Com. J. 424;
95 Ib. 88.
6 40 Lords' J. 584 ; 74 Ib. 6.
7 53 Lords' J. 367; 75 Com. J.
480; 92 Ib. 493 (the Queen Dowa-
ger); 105 Ib. 508. To the Duchess
of Edinburgh, on the assassination
of the Emperor of Russia, by both
houses, 15th March 1881; 259 Hans.
Deb. 3rd Ser. 1066.
518
PRESENCE OF MINISTERS IN PARLIAMENT.
tions from the
ministers in
both houses.
whom afterwards acquaints the house in the Lords, in his
place, or at the table; and, in the Commons, at the bar)
with the answers which were returned.1
Communica- Communications are also made to both houses by members
royal family. of the royal family, which are either delivered by members
in their places, or are conveyed to the house by letters
addressed to the Speaker.3
Responsible Such being the direct and formal communications between
the Crown and Parliament, it may be added that the presence
of ministers, in both houses, maintains the closest relations of
the Crown with the legislature. The representation of every
department of the State, by members of Parliament, and the
principles of ministerial responsibility, long since established
in our constitution, bring the executive government and the
legislature into uninterrupted intercourse, and combined
action. Where no formal communication, between the Crown
and Parliament, is technically required, the introduction of a
measure by her Majesty's ministers, attests the royal approval;
and when amendments are made, by either house, which
ministers accept instead of abandoning the measure, or re-
signing office, they are under an obligation to advise the
Queen to signify her royal assent to the bill, when it has been
agreed to by both houses. Again, when the measures or
policy of ministers are condemned by Parliament, a change
of administration restores agreement between the executive
and the legislature. Ministers are responsible alike to the
Crown and to Parliament, and so long as they are able to
retain the confidence of both, the harmonious action of the
several estates of the realm is secured.4
1 53 Lords' J. 369; 72 Ib. 53; 95
Com. J. 95; 105 Ib. 539; 52 Hans.
Deb. 3rd Ser. 343; Ib. 18th July 1850.
2 58 Com. J. 211; 75 Ib. 288.
3 64 Ib. 86; 68 Ib. 253; 69 Ib.
324. 433.
4 For further illustrations of the
constitutional relations of ministers
with Parliament, see 4 Macaulay,
Hist. 430 et seq.; May, Const. Hist.
chap. 7 ; 2 Tod, Parl. Government,
231 et seq.; Bagehot on the English
Constitution; Mr. Gladstone's “ Kin
Beyond Sea," in North American
Review, September 1878; Gleanings
of Past Years, vol. i.
PUBLIC BILLS,
519
CHAPTER XVIII.
PROCEEDINGS OF PARLIAMENT IN PASSING PUBLIC BILLS: THEIR
SEVERAL STAGES IN BOTH HOUSES.
ROYAL ASSENT.
It has been explained in previous chapters, in what manner General
each separate question is determined in Parliament; and the nature of a
proceedings upon bills will require less explanation, if it be
borne in mind that all the rules in relation to questions and
amendments are applicable to the passing of bills. If bills
were not a more convenient form of legislation, both houses
might enact laws in the form of resolutions, provided the
royal assent were afterwards given. In the earlier periods of Ancient mode
the constitution of Parliament, all bills were, in fact, prepared laws.
of enacting
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 Parliament
the judges drew up these imperfect records into the form of
a statute, which was entered on the Statute Rolls.1 This
practice was incompatible with the full concurrence of the
legislature; and matters were often found in the Statute
Rolls which the Parliament had not petitioned for, or as-
sented to. Indeed, so far was this principle of independent
legislation occasionally carried, that, in the 13th and 21st of
Richard II., commissions were appointed for the express pur-
pose of completing the legislative measures, which had not
been determined during the sitting of Parliament. These
usurpations of legislative power were met with remonstrances
in particular instances, and at length in the 2nd Henry V.,
1 Rot. Parl. passim.
2 3 Rot. Parl. 256 (13 Ric. II.) ;
Ib. 368 (21 Ric. II.); Stat. 21 Ric. II.
No. XXX.); 3 Ib. 418 (1 Hen. IV.);
Hale, Hist. of the Common Law, 14;
Reeves, Hist. of the English Law;
Pref. to Cotton's Abridgment; Ruff-
head's Statutes, Preface.
c. 16.
3 3 Rot. Parl. 102 (5 Ric. II.
No. 23); 3 Ib. 141 (6 Ric. II.
520
PUBLIC BILLS,
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 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 with-
out their assent; saving always to our liege lord his real
prerogative to grant and deny what him lust, of their peti-
tions and askings aforesaid.” 1
No distinct consequences
appear to have immediately followed this remarkable peti-
tion; and, so long as laws were enacted in the form of
petitions, to any portion 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 legisla-
tive determinations of Parliament.
Origin of mo- But petitions from the Commons, which were originally
dern system.
the foundation of all laws, were ultimately superseded; and
in the reign of Henry VI. bills began to be introduced, in
either house, 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 Parliament. It
is true that Henry VI. and Edward IV. occasionally added
new provisions to statutes, without consulting Parliament;2
but the constitutional form of legislating by bill and statute,
agreed to in Parliament, undoubtedly had its origin and its
sanction in the reign of Henry VI.
Similarity of Before the present method of passing bills in Parliament
practices in
both houses. is entered upon, it may be premised that the practice of
the Lords and Commons is so similar in regard to the several
stages of bills, and the proceedings connected with them,
1 4 Rot. Parl. 22, No. X.
2 Ruffhead's Statutes, Preface. Cotton's Abridgment, Preface.
PUBLIC BILLS.
521
bills.
that, except where variations are distinctly pointed out, a
statement of the proceedings of one house is equally descrip-
tive of the proceedings of the other.
As a general rule, bills may originate in either house : Where bills
originate.
but the exclusive right of the House of Commons to grant
supplies, and to impose and appropriate all charges upon
the people, renders it necessary to introduce by far the
greater proportion of bills into that house. Bills relating Poor law
to the relief and management of the poor, for example,
involve, almost necessarily, some charge upon the people,
and generally originate with the Commons. Prior to 1868,
two bills only relating to the poor had been sent to the
Commons by the Lords during the present century. The
first, in 1801, was laid aside nen. con., when Mr. Speaker
called attention to it: the second, in 1831, was received but
not proceeded with, the first reading being postponed for
three months. But in 1868, a poor relief bill was received
from the Lords, with all the rating clauses printed in red
ink, which were inserted by the Commons, according to a
comparatively recent custom. But amendments involving
the principle of a charge upon the people have frequently
been made to such bills by the Lords, which, on account of
the extreme difficulty of separating them from other legis-
lative provisions to which there was no objection, have been
assented to by the Commons. Such amendments, however,
ought not to interfere with regard to the amount of the tax,
the mode of levying or collecting it, the persons who shall
pay or receive it, the manner of its appropriation, or the
!
i See 8 Com. J. 311. 602; and
Chapter XXI. on SUPPLY.
2 56 Com. J. 88.
3 86 Ib. 784,
4 See infra, Chapter XXI. on
SUPPLY.
6 Poor Law Amendment (Eng-
land) Bill, 1834; 25 Hans. Deb.
3rd Ser. 1207. Irish Poor Relief
Bill, 1838; 44 Hans. Deb. 3rd Ser.
575. Municipal Corporations (Irc-
land) Bill, 1838; 44 Hans. Deb.
3rd Ser. 871. Poor Relief (Ireland)
Bill, 1st June 1847; 92 Hans. Deb.
3rd Ser. 1299 ; 94 Ib. 457. Poor
Relief (Ireland) Bill, 27 July 1849 ;
107 Hans. Deb. 3rd Ser. 1043.
Poor Law Loans Bill, 1871 (special
entry). Poor Law Amendment Act,
1876, Amendment Bill, 1878, &c.
522
PUBLIC BILLS.
c
persons who shall have the control and management of it.
In any of these cases, the Commons may insist upon their
privileges; and it is only by waiving them in particular
instances, and under special circumstances, that such amend-
ments have ever been admitted. This restriction, however,
has not been held to apply to bills comprising charges
upon the property and revenues of the Church? or Queen
Anne's bounty. But it was ruled that a bill could not be
received from the Lords, affecting the revenues arising, under
the Church Temporalities (Ireland) Act, from a tax, rate or
assessment imposed upon all benefices. In 1878, a bill
applying a million from the surplus revenues of the dis-
established church in Ireland, to intermediate education, was
received from the Lords, and passed without objection. Bills
have also been brought from the Lords, affecting the pro-
perty and land revenues of the Crown, the proceeds of which
have not been directed, by any statute, to be carried to the
Consolidated Fund.
On the other hand, the Lords claim that bills for the resti-
tution of honours and in blood should commence with them;
and such bills are presented to that house by her Majesty's
command. And in the Commons the Queen's consent is
signified before the first reading. This form having been
inadvertently omitted in Drummond's (Duke de Melfort's)
Restitution Bill in 1853, the proceedings were declared null
and void; and, the Queen's consent being signified, the bill
was again read a first time. Bills of attainder, and of pains
and penalties, have generally originated in the House of
Lords, as partaking of a judicial character. Any bill con-
6
Restitution
bills.
1 See Speaker's ruling on Munici-
pal Corporations (Ireland) Bill, 1839;
50 Hans. Deb. 3rd Ser. 3.
2 Bishoprick of Manchester Bill,
1847: Ecclesiastical Commissioners
(England) Bill, 1843.
3 Church Endowment Bill, 1843.
4 6 & 7 Vict. c. 57; MS. Book of
Precedents,
5 Mr. Speaker Brand's Note-
Book.
6 Waste Lands (Australia) Bill,
1846.
7 Maxwell's Restitution Bill, 1848;
Drummond's Restitution Bill, 1853;
Lord Lovat's Restitution Bill, 1854;
Carnegie's Restoration Bill, 1855.
8 108 Com. J. 576. 578.
!
PUBLIC BILLS.
523
cerning the privileges or proceedings of either house, should, in
courtesy, commence in that house to which it relates. But
bills affecting privileges of the other house have, nevertheless,
been admitted without objection. Amendments, however ,
concerning the privileges and jurisdiction of the Lords, have
given rise to discussions in both houses. A bill for a general Act of grace
pardon, or act of grace, as it is commonly termed, originates pardon.
with the Crown, and is read once only in each house, all the
members being uncovered, -after which it receives the royal
assent in the ordinary form. Such a bill cannot be amended
by either house of Parliament; but must be accepted in the
form in which it is received from the Crown, or rejected.5
An Act of indemnity, protecting persons against the conse-
quences of any breach of the law, is proceeded with as an
ordinary bill.6
Bills are divided into the two classes, of public and private Public and
bills. The former, relating to matters of public policy, are
private bills.
introduced directly by members of the house, while the latter
are founded upon the petitions of parties interested. As the
1 3 Hatsell, 69. 2 Stephen's Black-
stone, 372,
2 Votes by Proxy Abolition Bill,
1832 ; 11 Hans. Deb. 3rd Ser. 1156.
Election of Scotch Representative
Peers Bill, 1969; 194 Hans. Deb.
3rd Ser. 988; Members' Seats Vacat-
ing Bill (Lords), 8th June 1832 ; 64
Lords' J. 286. Lord Radnor thought
the other House "might take a tech-
nical objection to the measure, ou the
ground that it was one which ought
not to have arisen in the House of
Lords.” Lord Northampton did not
think “the subject was one with
which their lordships had a right to
interfere.” 13 Hans. Deb. 3rd Ser.
611. 1086. Bishops in Parliament
Bills, 1834, 1836 and 1837. The
Irish bishops were excluded from
their seats in the House of Lords,
in 1869, by a bill brought from the
Commons. Lords' Spiritual Bill,
1870; 125 Com. J. 269.
3 See debate in the Lords on the
Court of Chancery Improvement Bill
(then in the Commons), 23rd June
1851;. 117 Hans. Deb. 3rd Ser. 1069;
and debates in Lords and Commons
in 1873 on amendments proposed to
be made in the Commons to the Judi-
cature Bill, by which appeals from
the courts of Scotland and Ireland
were to be withdrawn from the
House of Lords ; 217 Hans. Deb.
3rd Ser. 10. 154.
+ 14 Lords' J. 502, 503 (1690);
25 Com. J. 406 (1747).
5 See 4 Burnet's Own Time, 121.
3 Lord Macaulay's Hist. 575.
6 96 Com. J. 542 ; 121 Ib. 239;
135 Ib. 371 (Lord Plunket) 1880.
524
PUBLIC BILLS.
Public bills
presented in
the Lords.
Ordered in
the Commons.
distinctive character of private bills, and the proceedings of
Parliament 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 governed by so many peculiar
regulations and Standing Orders, in both houses, that an
entire separation of the two classes can alone make the pro-
gress of either intelligible.
In the House of Lords, any peer is at liberty to present
a bill, and to have it laid upon the table, without notice : 1
but in the Commons, a member must obtain permission from
the house before he can bring in a bill. Having given
notice, he moves “that leave be given to bring in a bill,”
adding the proper title of his proposed measure. In making
this motion, he may explain the object of the bill, and
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 minister or other member, this opportunity is
frequently taken for a full exposition of its character and
objects: but otherwise, debate should be avoided at this stage,
unless it be expected that the motion will be negatived, and
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, sometimes with other
members, to whom other members again are occasionally
added by the house. Instructions may be given to these
1 3 Hans. Deb. 24; 13 Ib. 3rd Ser. a discussion arose upon the question,
1188. By Standing Order 3rd July by whom the bill should be brought
1848, the name of the lord present- in ; 119 Hans. Deb. 3rd Ser. 876.
ing a bill is printed in the minutes. 3 The inconvenient practice has
2 This order is ordinarily merely arisen, of late years, of unnecessarily
formal: but on the 20th Feb. 1852, multiplying the names of members
Lord Palmerston having carried an ordered to bring in a bill.
amendment to the title of the Militia 4 91 Com. J. 613. 632; 113 Ib.
Bill, as proposed by Lord J. Russell,
92, &c.
!
PUBLIC BILLS.
525
gentlemen to make provision in the bill, for matters not
included in the original motion and order of leave;' or to
make provision pursuant to resolutions of the house ;? and
sometimes the orders that certain gentlemen do bring in
bills are discharged, and other gentlemen are appointed to
bring them in. In nominating these gentlemen, however,
a debate is not allowed upon the merits of the bill itself.4
Amendments have occasionally been made to a question for
leave to bring in a bill, by which its proposed title has been
altered. In this way, on the 20th February 1852, the title
of the Militia Bill, as proposed by Lord John Russell, was
amended, on division. The ministers resigned, and a bill
was afterwards brought in by the new administration, in
conformity with the amended order. 6 A bill has been
ordered as an amendment to a question for a resolution of
the house ;' and on the 17th April 1834, a bill to admit
Dissenters to the Universities was ordered, as an amendment
to a question for an address to the Crown for that purpose.
In 1869, a bill for the Disfranchisement of Freemen in the
City of Dublin was ordered as an amendment to a question
for the issue of a new writ.9
.
In various cases, proceedings preparatory to the bringing Preliminaries.
in of bills, first occupy the attention of the house. Sometimes
resolutions have been agreed to by the house, and bills im-
mediately ordered, as in the cases of the Liverpool Elections
Bill,10 and the Bribery and Treating Bill,11 in 1831: at other
times, resolutions of the house in a former session have been
read, and bills ordered thereupon.2 On the 5th March 1811,
resolutions of a former session, relating to the slave trade,
1 106 Com. J. 347; 107 Ib. 368, &0.
2 129 Ib. 114.
3 110 Ib. 35. 48; 124 Ib. 40; 131
Ib. 33, &c.
* Public Works (Manufacturing
Districts) Bill (Mr. Hennessy, 8th
June 1863); 171 Hans. Deb. 3rd
Ser. 475. 521.
5 70 Com. J. 62; 71 Ib. 430.
6 107 Ib. 68. 131.
7 81 Ib. 61.
8 22 Hans. Deb. 3rd Ser. 900.
0 124 Com. J. 256.
10 36 Ib. 821.
11 Ib.
12 62 Ib. 589; 75 Ib. 65; 82 Ib. 442.
526
PUBLIC BILLS.
were read, and a bill ordered nem. con.1 In 1833, the in-
troduction of the bill for the abolition of slavery was
preceded by several resolutions.2 The Regency Bills of
1789 and 1811 were founded upon resolutions which had
been reported from a committee of the whole house, com-
municated to the House of Lords, and agreed to, and after-
wards presented by both houses to the Prince of Wales and
the Queen. On other special occasions, resolutions agreed
to by both houses, at a conference, have preceded the
introduction of a bill. It has not been uncommon, also,
to read parts of speeches from the throne, Queen's messages,
Acts of Parliament, entries in the Journal, reports of com-
mittees, or other documents in possession of the house, as
grounds for legislation, before the motion is made for leave
to bring in a bill. On the 30th April 1868, a question, that
the oath taken by Roman Catholic members previous to the
alteration of their oath in 1866, be read by the clerk at the
table, was negatived. But the most frequent preliminary
to the introduction of bills is the report of resolutions from
a committee of the whole house, in conformity with Standing
Orders applicable to such bills. The chairman is sometimes
directed by the committee to move the house for leave to
bring in a bill or bills; and sometimes the resolutions are
simply reported, and after being agreed to by the house, a
bill is ordered thereupon; or upon some only ;' or a bill
upon some of the resolutions, and other bills upon other
resolutions. Sometimes several resolutions have been re-
ported, and agreed to, and another resolution directing the
1 66 Com. J. 148.
2 88 Ib. 482.
3 27 Hans. Parl. Hist. 1122. 18
Hans. Deb. 1st Ser. 418, &c. 1 May,
Const. Hist. 180 et seq. (7th edit.)
4 Slave Trade, 1806;.61 Com. J.
393. 401. Renewal of East India
Company's Charter, 1813; 78 Ib.
595.
5 32 Ib. 442; 91 Ib. 639; 95 Ib.
470; 107 Ib. 186; Royal Titles Bill,
1876; 131 Ib. 47.
6 123 Com. J. 143; 191 Hans.
Deb. 3rd Ser. 1582.
7 81 Ib. 44; 86 Ib. 669; 123 Ib.
113.
8 80 Ib. 471; 103 Ib. 981. Black-
water Bridge, 1873; 128 Com. J. 249.
PUBLIC BILLS.
527
chairman to move for a bill pursuant to the said resolutions,
has been reported separately, on which the chairman imme-
diately proceeded to move for a bill.1
Certain classes of bills are required to originate in a com- Bills origi-
mittee of the whole house; and if, by mistake, this form has committee.
been omitted, all subsequent proceedings are vitiated, and
must be commenced again. By two Standing Orders of the
9th and 30th April 1772, it is ordered,
" That no bill relating to religion, or trade, or the alteration of the Relating to
laws concerning religion, or trade, be brought into this house, until the religion and
trade.
proposition shall have been first considered in a committee of the whole
house, and agreed unto by the house."
»?
By a Standing Order of the 20th March 1707,
" This house will not proceed upon any petition, motion, or bill, for Public money.
granting any money, or for releasing or compounding any sum of
money owing to the Crown, but in a committee of the whole house."3
By a Standing Order, 20th March 1866,4
“If any motion be made in the house for any aid, grant, or charge Charge upon
upon the public revenue, whether payable out of the consolidated fund, the subject.
or out of monies to be provided by Parliament, or for any charge upon
the people, the consideration and debate thereof shall not be presently
entered upon, but shall be adjourned till such further day as the house
shall think fit to appoint, and then it shall be referred to a committee
of the whole house, before any resolution or yote of the house do pass
therein."
The Standing Order concerning religion has usually been construction
construed as applying to religion in its spiritual relations, to religion.
its doctrines, profession or observances : but not to the tem-
poralities or government of the Church, or other legal inci-
dents of religion. The distinction, however, between spiritual
and temporal matters is often so nice, that a correct and
uniform application of the rule is not always observable in the
precedents which are to be found in the Journals. In 1801,
1 113 Com. J. 235.
2 14 Ib. 211; 33 Ib. 678. 714.
3 15 Ib. 367; 16 Ib. 405.
4 Being the resolution 18th Feb.
1667, and Standing Order 25th June
1852, amended.
528
PUBLIC BILLS.
the Clerical Disabilities Bill (Mr. Horne Tooke's Act), as it
merely concerned the legal status of clergymen, and not their
spiritual rights or functions, was ordered without a prelimi-
nary committee; and, in 1881, a bill for the repeal of that
act was treated in the same manner. But the Clerical Disa-
bilities Removal Bill of 1870, as it affected the spiritual status
of ordained priests, and contained provisions relating to the
performance of religious duties, and the holding of prefer-
ments by ministers of the Church of England, originated in
committee; and also, in 1873, a bill for the amendment of
that act. The Roman Catholic Relief Bills in 1825, 1829, and
1848, were brought in upon resolutions of committees; and
bills for removing civil disabilities of the Jews; for the relief
of dissenters;4 for amending the Acts relating to the Roman
Catholic College of Maynooth ;5 for altering the oaths of
members; for the abolition of religious tests in the Universi-
ties of Oxford, Cambridge and Dublin;" for amending the laws
relating to burials;& the consecration of churchyards;' for the
amendment of the law relating to cemeteries ;10 and affecting
consecration and concerning endowed schools, 11 have originated
in committee: while, in 1833, bills to enable Quakers, Mora-
vians, and Separatists to make an affirmation instead of an
oath, were ordered without any previous resolution of a com-
mittee.12 On the 6th June 1816, the Standing Order was
held to apply to a bill for the punishment of persons disturb-
ing congregations in a Roman Catholic chapel, or assaulting
1 134 Com. J. 9.
2 80 Ib. 144; 84 Ib. 116; 103
Ib. 22. There were, however, ex-
ceptions to this practice in 1846 and
1847; 101 Com. J. 59; 102 Ib. 88.
3 88 Com. J. 287 ; 89 Ib. 222 ; 91
Ib. 418; 103 Ib. 124. But in 1830
and 1841, it was otherwise; 23 Hans.
Deb. 3rd Ser. 1287; 96 Com. J. 35.
4 68 Com. J. 451.
5 100 Ib. 193.
6 104 Ib. 74 ; 121 Ib. 63; 135 Ib.
250; Votes, 1883, p. 18.
? 12th Feb. 1867; 18th Feb. 1868;
127 Com. J. 11, &c.
8 1824; 79 Com. J. 181. 1862; 117
Ib. 99; Votes, 6th Dec. 1878.
9 Consecration of Churchyards
Bill, 1867; Votes, 6th Dec. 1878.
10 137 Ib. 17; Votes, 1883, p. 21.
11 1860; 115 Ib. 20. In the same
year the Charity Trustees Bill, hay-
ing the same object, was ordered in,
upon motion.
12 88 Ib. 305. 365.
PUBLIC BILLS,
529
any Roman Catholic clergyman while officiating therein. In
1857, the Oaths Validity Bill was held not to concern religion,
as it did not involve any alteration of the oaths, but simply
related to the manner of taking them. On the 27th May
1862, the order was ruled to extend to a bill to amend the
law relating to the religious instruction of Roman Catholic
prisoners. In 1880, the Parliamentary Disqualification Bill,
which provided that atheism should be a disqualification for
sitting and voting in Parliament, and the preamble of which
recited that “the Christian religion is part and parcel of the
law of the realm,” was held to be within the terms of the
Standing Order. The Irish Church Bill, 1869, was founded
upon resolutions of a committee of the whole house, as
it contained provisions affecting the articles, doctrines, rights,
and discipline of that Church.5 On the other hand, 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 Commutation Bills ;
the bills for carrying into effect the recommendations of
the ecclesiastical commissioners, in regard to the revenues
of the Church of England ;? and various bills relating
to the building of churches and chapels, the holding of
benefices in plurality, the enforcing the residence of the
clergy, and other matters affecting the Church, have all been
introduced upon motion, without any previous resolution of a
committee. In 1848, a bill relating to Roman Catholic
charities was brought in without a committee, as it concerned
revenues or temporalities, and not religion. And in 1851,
the Ecclesiastical Titles Bill was held, after full consideration,
1 71 Com. J. 431. 34 Hans. Deb.
1012.
2 147 Hans. Deb. 3rd Ser. 135.
3 167 Ib. 61.
4 135 Com. J. 301; Mr. Speaker
Brand's Note-Book.
5 124 Com. J. 57.
6 88 Ib. 35.
7 91 Ib. 17; 93 Ib. 377; 94 Ib. 29.
8 3 & 4 Vict. c. 113; 102 Vict.
c. 106; 14 & 15 Vict. c. 72, &c.
9 102 Com. J. 22.
P.
M M
530
PUBLIC BILLS.
not to come within the Standing Order? In 1860, the
Religious Worship Bill, concerning the celebration of divine
worship in private houses, was held not to concern religion, -
two previous acts on the same subject having been introduced
without a preliminary committee. The Ecclesiastical Vest-
ments Bill was also ruled not to concern religion, in the sense
of the Standing Order, but only church government and
discipline. And in 1882, the Contumacious Clerks Bill,
which amended the Church Discipline Act, and the Public
Worship Regulation Act, was held to come under the same
category. On the 22nd July 1863, objection was taken to a
general bill for repealing obsolete statutes, that it concerned
religion and trade : but as the bill had come from the Lords,
the rule did not apply; nor would the objection otherwise
seem to have been well founded.5
The Standing Order regarding trade was for many years
construed as extending to such bills only as related to foreign
commerce, and the import and export of commodities; and
was not applied to bills affecting particular trades, or the
internal trade of the country ;6 but of late years the house
has reverted to what appears to have been the original inten-
tion of the Standing Order, which was probably designed to
embrace the same classes of bills as had formerly been within
the province of the grand committee for trade. Accordingly,
it has been held to apply not only to trade generally, but
also to any particular trade, if directly affected by a bill.?
On this account, bills to regulate the sale of beer, of bread,
Trade.
9
1 116 Hans. Deb. 3rd Ser. 872.
2 115 Com. J. 75; 156 Hans. Deb.
3rd Ser. 1204.
3 29th Feb. 1860; 115 Com. J. 98;
156 Hans. Deb. 3rd Ser. 2043.
4 137 Com. J. 17.
5 172 Hans. Deb. 3rd Ser. 1213;
Private mem.
6 Between 1801 and 1820 upwards
of fifty bills were brought in upon
motion, relating to the sale or manu-
facture of bread, flour, butter, malt,
hops, linen, cotton, flax, lace, silk,
wool, leather, coals, fire-arms, and
other articles.
7 Mirror of Parl. 1840, pp. 1108,
1109.
s 106 Com. J. 205. 362 ; 109 Ib.
295; 110 Ib. 420.
988 Ib. 673; 103 lb. 747.
PUBLIC BILLS.
531
and of marine stores,' and for the regulation of public houses,
refreshment houses, and beer houses, or to amend the licens-
ing laws, have been required to originate in a committee;
but in 1882 and 1883, bills to restrain the adulteration of
beer were brought in upon motion. 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. Several bills
relating to the copyright of books had been brought in upon
motion ;6 and on an objection being taken, on the 19th
February 1840, that a copyright bill related to trade, the
Speaker held that it did not directly interfere with trade, in
any sense in which that term is used in the Standing Orders.?
Some copyright bills were afterwards introduced in commit-
tee;8 but it was ruled in 1881, in accordance with a former
decision, that they may properly be brought in upon motion.'
So also bills relating to the Bank of England,10 joint stock
banks, and banking, 11 have originated in committee. In
1857, the Bank Issues Indemnity Bill originated in com-
mittee, as it not only indemnified the bank for past illegal
issues, but contained a clause authorizing a continued excess
of issues for a limited time. Numerous bills, however, re-
lating to joint stock banks, have been ordered without a
previous committee.12 Bills relating to partnership and joint
stock companies have originated in committee : 13 but a bill
for the registration of partnerships has been ordered upon
motion.14 In 1848, the Sheep, &c. Diseases Bill, being
1 159 Hans. Deb. 3rd Ser. 724.
2 186 Ib. 160. Votes, 6th Dec.
1878, &c.
3 Votes, 6th Dec. 1878.
4 137 Com. J. 62. Votes, 1883,
8 Votes, 6th Dec. 1878.
9 136 Com. J. 130.
10 Bank Act, 1844; Bank Issues
Indemnity Bill, 1857-58.
11 94 Com. J. 468; 100 Ib. 468;
112 Ib. 239.
12 E.g. in 1842, 1854, 1855, 1856,
and 1858.
13 111 Com. J. 13.
14 113 Ib. 129.
p. 20.
5 95 Com. J. 176.
6 97 Ib. 83. The Copyright Act,
54 Geo. III. c. 156, had been brought
in upon motion.
7 Mirror of Parl, 1840, p. 1110.
MM 2
532
PUBLIC BILLS.
merely sanitary, was ordered to be brought in without a com-
mittee ;1 but in the same year, a bill regulating the importa-
tion of foreign sheep, &c. was introduced in committee; 2 and
again in 1866, the Cattle Plague Bill, and the Cattle Diseases
Bill, which interfered with the importation of cattle, were
also introduced in committee. On the 6th February 1844,
the Speaker decided that a bill to regulate the employment of
children in factories, did not come within the meaning of the
Standing Order. But bills regulating the coalwhippers and
ballast-heavers of the port of London, have been held to come
within the Standing Order. On several occasions bills for
the regulation of fairs and markets have been ordered, with-
out a committee, having been considered in the light of police
regulations, rather than of trade.6 Bills for the regulation
of weights and measures have been treated as questions of
public policy, affecting the whole community, and not merely
the interests of trade.? Bills in restraint of Sunday trading
have been regarded as measures of police and public decency,
and not concerning trade so as to require a committee. And
so also of bills for regulating the sale of liquors and the hours
for closing public houses on Sunday.' The Burgh Harbours
(Scotland) Bill, 1852, was held to be one concerning trade,
and having been introduced without a committee, was with-
drawn ; 10 and other bills concerning harbours have since origi-
nated in committee. 11 But since 1880, it has been held that
provisional order bills, relating to piers and harbours, may be
brought in, without a preliminary committee. It has been
8
! 103 Com. J. 863.
2 Ib. 857.
3 121 Ib. 55.
4 72 Hans. Deb. 3rd Ser. 286.
5 98 Com. J. 349; 101 Ib. 246;
106 Ib. 140. 120 Hang. Deb. 3rd
Ser. 784.
6 Fairs and Markets (Ireland) Bill,
1854, 1855, 1857, and 1858.
7 114 Com. J. 235; 115 Ib. 370.
Sunday Trading Bills, 1833, 1834,
1835, 1838, 1844, 1818, 1849, 1851,
1855, 1863, and 1868.
9 Sale of Liquors on Sunday Bills,
1867 and 1868; Sale of Liquors
(Ireland) Bill, 1867; Intoxicating
Liquors (Ireland) Bill, 1878; Intoxi-
cating Liquors (Wales) Bill, 1881 ;
136 Com. J. 12, &c.
10 107 Com. J. 105.
11 117 Ib. 271, &c.
PUBLIC BILLS.
533
held that the Standing Orders extend to the trade and taxa-
tion of a British colony, as well as to the trade and taxation of
the United Kingdom. The Australian Colonies Government
Bill, 1849, contained clauses relating to the trade and com-
merce, and altering the customs duties of those colonies, and the
bill was withdrawn, and another bill presented with the taxing
clauses printed in italics. And other bills of the like character
have been founded upon the resolutions of committees.2
No grant of public money is ever attempted to be made in Grants of
public money.
a bill, without the prior resolution of a committee : but bills
are often introduced in which it becomes incidentally neces-
sary to authorize the application of money to particular pur-
poses. In order to accomplish this object without any violation
of the Standing Order, the money clauses are originally in-
serted in the bill in italics : a committee of the whole house
is afterwards appointed to consider of authorizing the advance
of money (the Queen's recommendation being signified); and,
on their report being made and agreed to by the house, the
committee on the bill make provision accordingly.3 Formerly
an instruction was given for that purpose : but since the
Standing Order of the 19th July 1854, enabling the com-
mittee on the bill to make any amendment relevant to the
subject-matter of the bill, the practice of moving an instruc-
tion in such cases has been discontinued. When the main
object of a bill is the grant of money, it is invariably brought
in upon the resolution of a committee, in the first instance.
But several important bills, obviously designed to create a
public charge, yet containing other provisions not immediately
connected with the proposed grant of money, have been
brought in, upon motion, the money clauses being printed in
italics. In such cases the principle of the bill is discussed,
1 (Clauses 28, 29.) 104 Com. J.
424 (1849).
2 Australian Colonies Government
Bill, 1850; 105 Com. J. 54. Canada
Bill, 1823; 78 Ib. 332. Newfound-
land Appropriation of Duties Bill,
1832; 87 Ib. 392.
3 Public Offices (Site and Ap-
proaches) Bill, 1865; 177 Hans. Deb.
3rd Ser. 1308, &c., &c. .
4 Lord G. Bentinck's Railways
(Ireland) Bill, 4th Feb, 1947; Electric
534
PUBLIC BILLS.
and if approved, the necessary pecuniary provision is subse-
quently made: otherwise the bill is either lost upon the
second reading, or dropped in consequence of the recom-
mendation of the Crown being withheld. Where it is pro-
posed to authorize advances on the security of public works,
out of monies already applicable to such purposes, no pre-
vious vote in committee is necessary;' but where additional
funds are to be provided for such advances, they must be
first voted in committee. And in 1880, it was ruled that
advances proposed to be made to Irish landlords or tenants,
being wholly beyond the scope and objects of the Public
Works Loans Acts, must be first considered in committee,
upon the recommendation of the Crown. Bills relating to
savings banks, when creating a charge upon the Consolidated
Fund, or other public liabilities, have been founded upon the
resolutions of committees :* but when relating to matters of
a legal or administrative character only, they have been
ordered at once.5 In 1882, it was proposed by the Uni-
versity Education (Ireland) Bill to direct grants
, made by
former acts, in favour of the Queen's Colleges, to the use
of the Royal University of Ireland, but as these grants,
whether payable from the Consolidated Fund, or from monies
to be provided by Parliament, were not to be increased, it
was held that no preliminary resolution was required.
The fee funds of the Court of Chancery have been held
not to be public money within the orders of the house. Nor
is the appropriation of the proceeds of an existing charge,
Telegraphs Bill, 1st April 1868;
Railways (Ireland) Bill, 5th March Exchequer bills for temporary
1872; Mr. Speaker's ruling, 209 relief, 1817; 72 Com. J. 220; 57
Hans. Deb. 3rd Ser. 1952.
Geo. III. c. 34.
| Employment of Poor (I.), 16th 3 Distress (Ireland) Bill (Compen-
May 1822. Railways (I.) Bill, 1847 sation for Disturbance).
(advance of 16,000,0001.), (Lord G. 4 E.g. 1854-55, 1857, 1863 (Post
Bentinck). Drainage (I.) Act, 5 & 6 Office Savings Banks), and 1875.
Vict. c. 89. Public Works (Manufac- 5 E.g. 1853 and 1862.
turing Districts) Bill, 1863. Drain-
6 Courts of Justice Building
age (I.) Act, 9 Vict. c. 4, ss. 10, 31, (Money) Bill, 14th March 1862; 165
51. Public Works (I.) Act, 9 Vict. Hans. Deb. 3rd Ser. 1561.
Chancery fee
funds.
C. 1.
2
!
PUBLIC BILLS.
535
where no new burden is imposed, required to originate in
committee.
Since the passing of the Irish Church Act, it has been uni- Irish Church
funds.
formly held that the church funds, accruing under that act,
are not public monies within the meaning of the Standing
Order. In 1878, the Intermediate Education (Ireland) Bill,
which appropriated a portion of those funds, was received,
without objection, from the Lords. And in 1882, the
Arrears of Rent (Ireland) Bill, comprised clauses imposing,
charges upon those funds, which were agreed to by the Com-
mons, without a preliminary committee, and these clauses
were amended by the Lords.2
The house are no less strict in proceedings for levying a Tax or chargo
tax, than in granting money; and it is the practice, without upon the
any exception, for all bills that directly impose a state charge
upon the people, to originate in a committee of the whole
house. To bring a proposition under this rule, however, it
must directly involve a charge upon the people, it not being
sufficient that it would diminish the public income. Thus, on
the 30th June 1857, a bill was brought in to repeal section 27
of the Superannuation Act, which required an abatement to
be made from official salaries; it being held, after considera-
tion of the point, that this was merely a diminution of public
income, similar to the reduction of a tax, and was not an in-
crease of the salaries, nor of the public charge in respect of
salaries. It has been held that the transfer of certain charges
from the Consolidated Fund to the supplies annually voted
by Parliament, did not require a preliminary committee, as
no increased charge upon the people was proposed. Nor Local taxa-
has this rule been held to apply to bills authorizing the levy
or application of rates for local purposes, by local officers or
authorities representing, or acting on behalf of, the rate-
tion,
1 Thames Embankment Bill, 18th
March 1862; 165 Hans. Deb. 3rd
Ser. 1826. In this case, however,
the London coal and wine duties
bcing a local tax,--though affecting
trade,—would not have been subject
to this rule.
2 134 Com. J. 332, 335; 137 Ib.
451.
3 147 Haus. Deb. 3rd Scr. 1220.
536
PUBLIC BILLS.
payers. On the 15th July 1858, objection was taken to the
introduction of a bill for the main drainage of the metro-
polis, without a preliminary committee, as it was alleged
to be a bill for imposing charges upon the people : but as
it appeared that the expense of the proposed works was to
be paid out of local rates upon the metropolis, and that it
was intended to propose a resolution, in a committee of the
whole house, for a Treasury guarantee for the repayment of
money borrowed on the security of those rates, it was ruled
that the bill could at once be brought in,-local rates never
having been regarded as coming within the Standing Order.2
Similar objections were also taken, in 1862, to the Thames
Embankment Bill; but were overruled. On the 16th July
1858, exception was taken to a clause in the Corrupt
Practices Prevention Bill, that it imposed a charge upon
county and borough rates : but the chairman held that such
a charge, not being for public revenue, could regularly be
proposed in committee on the bill, without a preliminary
resolution. Neither has the rule been construed to apply
to bills imposing charges upon any particular class of per-
sons for their own use and benefit. Thus, in 1848, the
Merchant Seamen's Fund Bill, imposing a duty of a shilling
a ton on all ships in the merchant service, for raising a fund
for the support of aged seamen and the maintenance of
lights, was brought in without any previous vote of a com-
mittee, authorizing such duty. And again, in 1850, a
similar bill was introduced, authorizing a deduction from the
1 Metropolis Police Bill, 84 Com. J. Bill, 1862. Rating Bill, Valuation
233. Coal Trade (Port of London) Bill, and Consolidated Rate Bill,
Bills, 86 Ib. 558. Poor Law Amend- 1873. But the Rate in Aid Bill
ment Bill, 1834. Municipal Cor- (Irish Famine), 1849, originated in
porations Bill, 1835. Poor Relief committee, as it levied a general rate,
(Ireland) Bill, 93 Com. J. 90. Col- the funds being under the manage-
lection of Rates Bill, 1839. High- ment of government officers.
way Rates Bill, 94 Ib. 363. Prisons 2 151 Hans. Deb. 3rd Ser. 1519.
(Scotland) Bill, 94 Ib. 22. Metro-
polis Local Management Bills, 1855 4 151 Ib. 1601.
and 1858. Union Relief Aid (Dis- 5 103 Com. J. 57.
tress in Manufacturing Districts)
3 165 Ib. 1826.
PUBLIC BILLS.
537
wages of masters, seamen, and apprentices, to form a fund
for their relief. The rule has generally been held to apply
to bills authorizing the imposition or appropriation of taxes
in the colonies ;though such bills would appear rather to
fall within the principle of local taxation. In 1833, notice
was taken that the Church Temporalities Bill (which proposed
to levy “an annual tax" upon all benefices in lieu of first
fruits) should have originated in a committee. Before the
house decided upon this point, a select committee was
appointed to examine precedents, and on receiving their
report, in which it was stated that no precedent precisely
similar had been discovered, but “that the general spirit of
the Standing Orders and resolutions of the house required
that every proposition to impose a burthen or charge on any
class of the people, should receive its first discussion in a
committee of the whole house," 3 the order for reading the bill
a second time was discharged, and the bill was withdrawn.
But, in 1836, the Tithe Commutation Bill, by which a rent-
charge upon the land was created in lieu of tithes, was
ordered, upon motion :4 and, in 1864, an objection being
taken that the Church Rates Commutation Bill, which created
a charge upon real property in lieu of church rates, ought to
have been founded upon the resolution of a committee, it was
overruled.5
A bill for diminishing or repealing any tax or public Bills for re-
charge, is brought in upon motion, unless it be proposed to taxes.
substitute any other tax or charge; or unless the bill also
relate to trade, or to customs which are held to concern
trade.
duction of
1
1 105 Com. J. 54.
2 14 Geo. III. c. 88; 3 Geo. IV.
c. 119.
Newfoundland Bill, 1832;
87 Com. J. 386. Canada Govern-
ment Bill, 1840; 95 Ib. 380. 385.
Australian Colonies Government
Bills, 1849 and 1850; 104 Ib. 424;
105 Ib. 54.
3 Parl. Paper, No. 86, of 1883.
4 91 Com. J. 17.
5 174 Hans. Deb. 3rd Ser. 1701.
6 Repeal of stamp duty on admis-
sion to corporations, and repeal of
41 per cent. duties, 1838. Repeal of
duty on bricks, 1839. Penny Post-
age Bill, 1840.
Stamp Duty on
Policies of Insurance, 2nd July 1844.
Paper Duties Bill, 1860.
538
PUBLIC BILLS.
Other bills
committee.
A second bill If a bill which has originated in committee be afterwards
brought in,
on the same
withdrawn, and another bill ordered, it is not necessary to
resolutions.
resort to a second committee, unless it be proposed to make
further charges not previously sanctioned: but the resolutions,
or some of them, on which the first bill was founded, are read,
and another bill is ordered.1
Capital A resolution of 1771, “That no bill, or clause in any
punishments.
bill, do pass this house, by which capital punishment is to
be inflicted, unless the same shall have been referred to a
committee of the whole house,” was not made a Standing
Order;2 and appears to have fallen into oblivion with the
harsh policy which it was designed to check.3
These are the only classes of bills which are required,
originating in
by any order or usage, to originate in a committee: but
in some other cases, it has been deemed advisable, for par-
ticular reasons, to initiate legislation by preliminary discus-
sion in committee, as in 1856, on the subject of education,
and in 1858, on the government of India. Again, in 1867, it
was proposed to found the Representation of the People Bill
upon resolutions to be previously discussed in committee :
but ultimately the bill was brought in without any pre-
liminary proceedings. As the house may refer any matters
whatever to the consideration of a committee, this course
is not inconsistent with any Parliamentary principle: but it
is open to these objections,—that it involves a double discus-
sion of the same questions in committee, and that it reverses
the accustomed order of proceeding, by giving precedence
to the consideration of the details of a measure, instead of to
the principle. It has, however, been deemed inadmissible for
a minister who had brought in a bill, which was then standing
for a second reading, to propose resolutions in a committee,
4
1 111 Com. J. 126; 112 Ib. 185.
2 33 Ib. 417.
3 On the 21st March 1861, in com-
mittee on the Mutiny Bill, Mr. Hen-
nessy called attention to this resolu-
tion; but the chairman ruled that
it had fallen into desuetude. 162
Hans. Deb. 3rd Ser. 201.
4 111 Com. J. 87.
5 149 Hans. Deb. 3rd Ser. 853.
1654.
6 185 Ib. 214. 1203.
.
PUBLIC BILLS.
539
sit.
bills.
having the same legislative objects, until the order for the
second reading of the bill had been discharged.
Where a preliminary vote is to be taken in a committee, When pre-
liminary com-
for imposing duties or granting money, the committee is mittees may
appointed for a future day: but where it relates to religion
or trade, or any other matter, the house will immediately
resolve itself into a committee, for the purpose of agreeing
to the introduction of a bill.
In preparing bills, care must be taken that they do not Preparing
contain provisions not authorized by the order of leave, that
their titles correspond with the order of leave, and that they
are prepared pursuant to the order of leave, and 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.4 A clause, for instance, relating to the qualification
of members, was held to be unauthorized in a bill for regulat-
ing the expenses at elections. Such objections, however,
should be taken before the second reading; for it has not been
the practice to order bills to be withdrawn, after they are
committed, on account of any irregularity which can be cured
while the bill is in committee, or on recommitment. But Blanks or
in the case of the Income Tax and Inhabited House Duties
Bill, 1871, objection having been taken after the report, and
the re-commitment of the bill, that the bill comprised pro-
visions relating to the inhabited house duty, which were
beyond the order of leave, and that the second reading had
been agreed to, under a misapprehension of its contents,
the government at once consented to withdraw the bill.8 All
dates, and the amount of salaries, tolls, rates, or other
charges were formerly required to be left blank: but the
italics.
1 149 Hans. Deb. 3rd Ser. 1595.
2 102 Com. J. 832; 103 Ib. 522.
3 Poor Removal and Settlement
(Ireland) Bill, 25th April 1883;
Votes, p. 342.
4 80 Com. J. 329; 82 Ib. 325. 339;
84 Ib. 261; 92 Ib. 254.
5 90 Ib. 411.
6 71 Hans. Deb. 3rd Ser. 403,
MS. Precedent Book.
7 Clerk of Petty Sessions (Ireland)
Bill, 1858.
& Hans. Deb. 9th and 11th May
1871.
540
PUBLIC BILLS.
Bills pre-
sented.
more convenient practice of printing such matters in italics
is now adopted. Technically the words so printed are still
known as blanks, and are not a part of the bill until agreed
to by the committee, though by a Standing Order of the
19th of July 1854, the former practice of expressly inserting
them in committee has been discontinued. Where any
charge is proposed to be voted in a committee, after the
second reading, the clause must also be printed in italics.
A bill may be presented on the same day, and during the
same sitting, as that in which it is ordered. Some other votes
are generally allowed to be passed before it is offered: but,
of late years, this practice has not been insisted upon, where
it is more convenient, or otherwise desirable, to present the
bill immediately. It is presented by one of the members
who were ordered to prepare and bring it in.? A member
who is about to present a bill, should take his draft to the
Public Bill 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 10th
December 1692, it is desired “that every member presenting
any bill (or petition) 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;"3 and in accordance with this rule, the
member appears at the bar, and 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 short title aloud; when the bill is said to have been
First reading “received by the house." 4 After a bill has been received in
and printing
either house, a question is put, “That this bill be now read
the first time,” which is rarely objected to, either in the
Lords or Commons ;5 and in the Commons can only be
1 See infra, p. 562.
4 See 1 Com. J. 223.
2 33 Com. J. 255. If any other
5 Lords' S. O. No. 33. 17 Com.
member presents it, it is entered as J. 9 ; 88 Ib. 614; 136 Ib. 100. (Bill
being done by order."
read a first time on division.)
3 10 Com. J. 740.
PUBLIC BILLS.
541
opposed by a division. By Standing Order, 25th June 1852,
it is ordered,
"That when any bill shall be presented by a member in pursuance
of an order of this house, or shall be brought from the Lords, the
questions, "That this bill be now read a first time;' and 'That this bill
be printed,' shall be decided without amendment or debate.”
1
It is to be observed that when the question for the first
reading of a bill is negatived, the house merely determines
that the bill shall not now be read; and the question may
therefore be repeated on a future day, as in the case of the
County Elections Bill, 1852, where it was twice negatived.
After the first vote of the house, the bill was no longer
among the orders of the day: but notice was given, and a
motion made, to read the bill a first time.?
So soon as the house has ordered a bill to be now read a How bills are
read.
first (second, or third) time, its short title, as entered in the
orders of the day, and endorsed on the bill, is read, or sup-
posed to be read, by the clerk, which is taken to be a suffi-
cient compliance with the order of the house. On the 14th
May 1868, a motion being made that a bill be read by the
clerk at the table, the Speaker explained that this was an
exploded practice, and the motion was withdrawn.
It was formerly the practice for the clerk, on the first Breviates of
bills.
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 effect and substance of the bill, either from
memory or by reading his breviate, which was filed to the
bill;4 and sometimes he even read the bill itself.5 So tedious
a practice is rendered unnecessary by the circulation of printed
copies of the bill; and the analysis of the several clauses,
which is often prefixed to the bill, supplies the place of the
ancient breviate. The practice of affixing a breviate or brief
to every bill, prevailed during the greater part of the 17th
1 107 Com. J. 174. 201.
4 1 Com. J. 380. 456.
2 Votes, 7th May 1852.
5 Order and course of passing bills
3 Established Church (Ireland) in Parliament, 4to. 1641.
1 Com. J.
Bill; 191 Hans. Deb. 3rd Ser. 322.
298.
3
542
PUBLIC BILLS.
century;l and at present a member bringing in a bill may
prepare a memorandum explanatory of the contents and
objects of the bill, but containing nothing of an argumenta-
tive character, which, when revised in the Public Bill Office,
will be printed and circulated with the bill.2
Second read- When the bill has been read a first time, the question next
ing appointed.
put in the Commons, 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.
Unreasonable delay ought not to be allowed in the printing
of a bill after its introduction ;3 and if the bill has not been
printed when it is called on for second reading, its postpone-
ment is generally insisted upon. Although there is no rule
forbidding the second reading of an unprinted bill, the house
will not allow it except on rare and special occasions. Every
public bill is printed, except ordinary supply bills, which
merely embody the votes of the committees of supply and
ways and means. But by resolution, 24th March 1863, a
sufficient number of the appropriation and indemnity bills are
ready for delivery, at the Vote Office, before the committee.
In the Lords, the questions for the printing and second
reading of a bill on a future day are rarely put: but are
entered in the minutes, upon an intimation from the peer
who has charge of the bill. After a bill has been presented,
and read a first time, it is not regular to make any other
than clerical alterations in it. On the 28th March 1873,
notice being taken that the University Tests (Dublin) Bill
had been materially altered since the first reading, in order
6
1 1 Com. J. 347; 6 Ib. 570.
2 Mr. Speaker's order, March 1882.
260 Hans. Deb. 3rd Ser. 423,
3 Speaker's ruling, 22nd May 1873;
216 Hans. Deb. 3rd Ser. 276; and
again, 235 Ib. 1429; 240 Ib. 859.
4 239 Ib. 609.
5 Ib.; 256 Ib. 776. Borough
Franchise (Ireland) Bill, 7th March
1883, &c.
6 118 Hans. Deb. 3rd Ser. 134.
7 108 Ib. 969.
PUBLIC BILLS.
543
1
to meet objections raised in a debate upon another bill, the
Speaker ruled that after the first reading, a bill was no longer
the property of the member himself, but passed into the
possession of the house; and that no substantial alteration
could be made without the distinot order of the house. The
order for the second reading was accordingly discharged, and
the bill withdrawn; and leave being given to present another
bill, instead thereof, another bill was at once presented.
The same course was adopted in the case of the Hypothec
(Scotland) Bill, in 1878,” and the Public Works Loans Bill,
in 1879.3 There is no rule or custom which restrains the
introduction of two or more bills relating to the same subject,
and containing similar provisions.
It frequently happens, that before the second reading of a Bills with-
drawn, and
bill, it becomes necessary to make considerable changes in other bills
its provisions, which can only be accomplished, at this stage, presented.
by discharging the order for the second reading, and with-
drawing the bill. The ordinary practice has been to order a
bill to be withdrawn, and to give leave to bring in another
bill. And this course is always necessary, if there be any
change of title : but where the bill is withdrawn, for the
purpose of making numerous amendments, without any
change of title, a simpler form of proceeding has occasionally
been adopted. So soon as the first bill has been withdrawn,
the order of leave for bringing in the bill is read, and "leave
is given to present another bill, instead thereof " upon the
same order of leave. This was done in 1814;; and the
practice has since been revived, with much convenience.
A bill has been withdrawn, and another bill ordered, after
6
1 215 Hans. Deb. 3rd Ser. 303.305.
2 237 Ib. 362.
3 246 Ib. 1119.
4 268 Hans. Deb. 1656. Borough
Franchise (Ireland) Bill, 1883. Cri-
minal Law Bills, 1883, &c.
6 69 Com, J. 369.
0 Fisheries (Ireland) Bill, 1853 ;
108 Com. J. 612. Poor Law Amend-
ment Bill, and Lunatic Asylums
(Ireland) Bill, 1856. Universities
(Scotland) Bill, 15th May 1862. 111
Ib. 211. 213; 117 Ib. 202; 132 Ib.
84. 243, &c.
544
PUBLIC BILLS.
reading the resolution upon which the first bill was founded.
It is an old parliamentary rule that a bill brought from the
other house should not be withdrawn; and this rule is still
observed in the Lords : but, of late years, it has been
occasionally departed from in the Commons. When the
bill is not withdrawn, the motion for reading it a second
time is withdrawn, and the bill is thus dropped; but this
is a less convenient course than the withdrawal of the bill
itself. Nor is there any obvious objection to the latter, in
the case of a bill brought from the other house, for it is no
less in possession of the house, at the time, than if it had
originated there.
By a Standing Order of the House of Lords, it is ordered,
" That tho namo of tho lord who movos tho socond reading of any
public bill shall bo ontered on the Journals of this house."
"That tho name of the lord prosonting a public bill to this house,
and of the lord who shall givo notico to tho clork assistant that ho
intonds to moyo tho socond reading of any public bill brought up from
the Commons, shall bo printod in the minutos of procoodings of this
house in connexion with tho same."2
Socond road-
ing.
Bills for rogu-
lation of trade
(Lords).
And by another Standing Order, no bill for the regulation
of any trade is to be read a second time until a select com-
mittee has reported upon the expediency of proceeding with
it;3 and where this stage has been omitted, the order for
the second reading has been dischargod, and the committee
appointed.*
The day having been appointed for the 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. If the bill has not yet been printed, the postponement
of the second reading, as already stated, is rarely resisted :
but when the house has already ordered a bill to be now read
Second read-
ing moved.
1 131 Com. J. 128.
2 Lords' S. O. No. 33.
3 Coalwhippers (Port of London)
Bills, 1861 and 1857; 83 Lords' J.
463; 89 IV. 192.
of Coal Trado Bill, 1836; 68 Ib.
836.
PUBLIC BILLS.
545
a second time, the execution of that order cannot be arrested
by requiring the clerk to read the whole bill, the reading of
the title being now the only form recognized by usage."
This is regarded as the most important stage through which
the bill is required to pass; for its whole principle is then
at issue, and is affirmed or denied by a vote of the house;
and it is not regular to discuss, in detail, its several clauses.?
The member who has charge of the billy moves, “That
the bill be now read a second time;" and may take this
opportunity of enforcing its merits. Sometimes, however,
it is agroed to defer the discussion of the principle until
a later stage of the bill. As the house has already ordered
that the bill shall be read a second time, and the second read-
ing stands as an order of the day, the motion for now reading
the bill a second time need not be seconded, and the same
rule applies to other similar stages. The opponents of the
bill may simply vote against this question, and so defeat the
second reading on that day:but this course is rarely
adopted, because it still remains to be decided on what other
day it shall be read a second time, or whether it shall be read
at all; and the bill, therefore, is still before the house, and
may afterwards be proceeded with. But when the question
for now reading a bill a second time has been negatived, it
may be immediately followed by an order for reading the
bill a second time that day three or six months. The
6
1 Mr. Popo Honnossy's objection,
23rd March 1865 ; 178 Hans. Deb.
3rd Ser. 181. Established Church
(Ireland) Bill, 1868; 192 Ib. 322.
* 223 Ib. 33; 237 Ib. 1593.
3 In his absenco al motion has
sometimos been mado, without notico,
to dischargo tho order for the socond
loading ; but such a practice has
bocu strongly discountenanced from
the chair: 22nd May 1873; 216 Hans.
Dob. 3rd Ser. 276. An amondmont
to tho samo effect, to a formal quos-
tion for tho postponcinent of bill,
lias boou discouraged no less dis-
tinctly: 4th Juno 1875; 224 Ib.
1236; and again, 240 Ib. 1675.
188 Com. J. 399 ; 97 Ib. 364; 99
Ib. 486; 105 Ib. 672; 114 Ib. 243;
Church-rates Redemption Bill, 6th
May 1863 ; Judgments Law Amend-
mont Bill, 13th May 1863; 118 Ib.
206. 221, 222 ; University Education
(Irolund) Bill, 11th March 1873.
5 Parliamentary Eloctors Bill; 102
Ib. 822. 837. 872. 901.
( 106 Ib. 139; 107 Ib. 267; 110
Ib. 199.
1.
NN
546
PUBLIC BILLS.
for second
Amendments ordinary practice, however, is to move an amendment to the
to question
question, by leaving out the word "now," and adding
" three
reading
months,"1 " six months," or any other term beyond the pro-
bable 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, not only on the second reading, but at subsequent
stages. Another reason for using this form of amendment
is, that the house has already ordered that the bill shall be
read a second time; and the amendment, instead of reversing
that order, merely appoints a more distant day for the second
reading. The same form of amendment is adopted, when it is
desired to postpone the second reading for any shorter time.
Amendments It is also competent to a member who desires to place on
resolutions. record any special reasons for not agreeing to the second
reading, or other subsequent stage of a bill, to move, as an
amendment to the question, a resolution declaratory of some
principle adverse to, or differing from, the principles, policy, or
provisions of the bill;2 or expressing opinions as to any cir-
cumstances connected with its introduction, or prosecution;3 or
otherwise opposed to its progress ;4 or seeking further informa-
in the form of
1 On the 12th March 1852, the
second readings of three Parlia-
mentary Reform Bills were put off
for three months, which period,
reckoned by lunar months, had
elapsed on the 4th June, when they
appeared amongst the orders of the
day.
2 Corn Importation Bill, 1842 ;
97 Com. J. 113. Property Tax Bill,
1842; 97 Ib. 321. Factories Bill,
1844; 99 Ib. 265. Bank Charter
Bill, 1844 ; Ib. 396. Sugar Duties
Bill, 1844; Ib. 421. Poor Law
Amendment Bill, 1844; Ib. 468.
Joint Stock Banks Bill, 1844; Ib.530.
Lunatics Bill, 1845; 100 Ib. 721. Re-
presentation of the People Bill, 1859;
114 Ib. 125. In this case the Speaker
stated that in the time of his prede-
cessor, between 40 and 50 such reso-
lutions had been moved as amend-
ments to stages of bills ; 153 Hans.
Deb. 3rd Ser. 1006. Army Discipline
Bill, 1879; 134 Com. J. 141. Artears
of Rent (Ireland) Bill, 1882; 137 Ib.
220. 337, &c.
3 Ecclesiastical Titles Bill, 1851 ;
103 Com, J. 114. Inhabited House
Duty Bill, 1851; 106 Ib. 321. Con-
spiracy to Murder Bill, 1858; 113 Ib.
65. Paper Duty Repeal Bill, third
reading, Sth May 1860 (Sir S. North-
cote), 115 Ib. 229.
4 Corrupt Practices Bill, 1848;
80 Lords' J. 819. Lower Canada
Government Bill, 1839 ; 94 Com. J.
431. Ecclesiastianl Duties and
Revenues Bill, 1840; 95 Ib. 469.
Arms (Ireland) Bill, 1843; 98 Ib.
473. Bishoprick of Manchester Bill,
1847 ; 102 Ih. 864. Australian Colo-
PUBLIC BILLS.
547
tion in relation to the bill by committees, commissioners, the
production of papers or other evidence, or, in the Lords,
the opinions of the judges. Every such resolution, however,
like other amendments upon orders of the day, must "strictly
relate to the bill which the house, by its order, has resolved
upon considering."5 Thus, in 1873, a resolution proposed
to be moved upon the second reading of the Roads and
Bridges (Scotland) Bill, that the house declines to entertain
any legislation involving the compulsory imposition of local
burthens, &c., &c., was held to affect other bills as well as
that under consideration, and was therefore revised so as to
apply to that particular bill only. When such a resolution
amounts to no more than a direct negation of the principle
of the bill, it is an objectionable form of amendment;? but
there are special cases for which it may be well adapted. On
the 21st February 1854, an amendment was made to the
question for reading the Manchester Education Bill a second
time, that “education to be supported by public rates, is a
subject which ought not, at the present time, to be dealt with
by any private bill;" which gave legitimate expression to the
opinion of the house.
It must be borne in mind, however, that the resolution, if Effect of such
a resolution.
agreed to, does not formally arrest the progress of the bill,
the second reading of which may be moved on another
nies Government Bill, 1850 ; 105 Ib. preamble. 95 Com. J. 476; 98 Ib.
334. Government of India Bill, 23rd 354. 398. 552 ; 99 Ib. 31; 104 Ib.
June 1853; 108 Ib. 609. Repre- 384; 105 Ib. 139; 110 Ib. 238.
sentation of the People Bill, 1866 ? 95 Ib. 469 (Amendment for an
(Lord Grosvenor's amendment on Address); 100 Ib. 719.
second reading) ; 121 Ib. 213. Ele- 388 Lords' J.543; 102 Com. J. 865;
mentary Education Bill, 1876; 131 106 Ib. 382; 107 Ib. 186; 137 Ib. 77.
Ib. 262. Valuation of Property 4 Bank Charter Bill, 1833; 65 Lords'
Bill, 1877 ; 132 Ib. 86. Customs and
J. 613.
Inland Revenue Bill, 1878; 133 Ib. 5 Report on Public and Private
182, &c.
Business, 1837 (No. 517), p. 5; 143
1 82 Lords' J. 284; 83 Ib. 201; 85 Hans. Deb. 3rd Ser. 643 ; 269 IV.
Ib. 279; 88 Ib. 337; 65 Ib. 209
(Stafford Bribery Bill). In this case 6 11th June 1873.
a select committee was appointed to 7 Jewish Disabilities Bill, 1848;
inquire into the allegations of the 103 Com. J. 414.
961.
VN 2
548
PUBLIC BILLS.
occasion. The effect of such an amendment is merely to
supersede the question for now reading the bill a second time;
and the bill is left in the same position as if the question for
now reading the bill a second time had been simply nega-
tived," or superseded by the previous question. The house
refuses, on that particular day, to read the bill a second time,
and gives its reasons for such refusal; but the bill is not
otherwise disposed of.? Such being the technical effect of a
resolution, so carried, it need scarcely be said that its moral
and political results vary according to the character and
importance of the resolution itself, the support it has received,
and the means there may be of meeting it, in the further
progress of the bill. Thus the amendment to the second
reading of the Conspiracy to Murder Bill, in 1858, being
also a vote of censure, was not only fatal to that measure,
but caused the immediate fall of Lord Palmerston's ministry.
Again, the amendment to the second reading of the Reform
Bill of 1859, was decisive as to that measure, and led to a
dissolution. So, on the 22nd July 1872, a resolution being
carried, on the Thames Embankment (Land) Bill, that having
regard to the advanced period of the session and the pressure
of more important business, it was not expedient to proceed
further with the consideration of the bill, the bill was neces-
sarily abandoned. But where the resolution merely relates
to some provision of the bill, it does not arrest its progress,
provided the principle affirmed can be accepted, or success-
fully resisted at a further stage. Thus, on the 6th May
1872, on going into committee upon the Education (Scot-
land) Bill, a resolution was carried, affirming that instruction
in the holy scriptures was an essential part of education, and
ought to be provided for in the bill. To give effect to this
1 244 Hans. Deb. 3rd Ser, 1384.
2 In 1861, the second reading of
the Marriage Law Amendment Bill
having been superseded by a resolu-
tion, the Speaker, on being appealed
to by its mover, suggested that the
best course would be to withdraw
the bill and introduce another, in
harmony with the expressed opinion
of the house. 162 Hans. Deb. 3rd
Ser. 892.
.
PUBLIC BILLS.
549
resolution it was necessary to move an amendment in com-
mittee, of which Mr. Gordon, the mover of the resolution,
gave notice. This amendment was negatived; and the
resolution of the house was thus practically reversed. As it
is a well-known and unquestioned rule that “in every stage
of a bill, every part of the bill is open to amendment, whether
the same amendment has been, in a former stage, accepted or
rejected," 1 and as the committee are entitled to form an
independent judgment upon every amendment proposed, this
proceeding was in strict conformity with parliamentary
usage; and the decision of the committee was again open to
review by the house itself, upon the consideration of the bill
as amended. Where the objection to a bill is of a more
limited and peculiar character, it may be more conveniently
reserved as an instruction to the committee, at a later stage,
or for amendments in committee. When a resolution was
about to be moved, anticipating discussion upon various pro-
visions of the bill, which were the subjects of amendments in
committee, the Speaker pointed out the irregularity of such a
proceeding, and the motion was not made. In the Lords,
resolutions relating to a bill have been moved separately,
before the order of the day, and not by way of amendment,
-a course which would be incompatible with the rules of the
other house. No amendment can be moved on the second read-
ing or other stage of a bill, by way of addition to the question.
Sometimes the previous question is moved on the second Previous
question.
reading6 and other stages of bills :) but it is not so appro-
priate as other proceedings in more common use. It is also
open to the same objection as a simple negative of the second
4
1 2 Hatsell, 135.
2 See infra, pp. 552, 561.
3 192 Hans. Deb. 3rd Ser. 1571.
4 Supreme Court of Judicature Bill
(Lord Redesdale), 2nd May 1873.
5 See supra, p. 321.
6 113 Com. J. 220; 116 Ib. 103.
135. 137. County Franchise Bill,
1864, and Borough Franchise Bill,
1864 and 1865; 119 Com. J. 160.
234; 120 Ib. 247.
? 8 Ib. 421; 10 Ib. 762 ; 13 Ib.
292; 26 Ib. 270. 592 ; 30 Ib. 418;
99 Ib. 504 ; and see supra, p. 304.
550
PUBLIC BILLS.
reading, as the bill is not disposed of, but may be appointed
to be read on another day.
Bills dropped. It may here be stated, that if no motion be made for the
second reading or other stage of a bill, or for its postpone-
ment, it is allowed to drop, and does not appear again upon
the order book, unless another day be appointed for its con-
sideration. Sometimes a bill has been read a second time by
mistake or inadvertence; when the proceedings have been
declared null and void, and another day has been appointed
for the second reading.1
Bills rejected. Instances of rejecting bills altogether were formerly not
uncommon, but are now comparatively rare; two cases only
appearing in the Journals of the Commons for upwards of
half a century :2 but in the Lords the practice has been
more general. In more ancient times bills were treated with
even greater ignominy.4 On the 23rd January, in the 5th
Elizabeth, a bill was rejected and ordered to be torn : 5
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 nega-
tive." And even so late as the 3rd June 1772, the Lords
having amended a money clause in the Corn Bill, Governor
Pownall moved that the bill be rejected, which motion being
seconded, the Speaker said, “that he would do his part of
the business, and toss the bill over the table.” The bill was
rejected, and the Speaker, according to his promise, threw it
over the table," several members on both sides of the question
kicking it as they went out."7
There is no restriction in regard to the time at which
1 Masters and Operatives Bill,
1859; 114 Com. J. 139; 153 Hans.
Deb. 816.
2 37 Com. J. 444; 80 Ib. 425. On
the 8th Oct. 1831, a motion was
made to reject the Reform Bill, but
was withdrawn; 1 Molesworth, Hist.
165.
3 See Gen. Indexes to Lords' J.,
tit. " Bills."
4 1 Com. J. 252. 262. 311.
5 Ib. 63.
6 Ib. 560.
7 17 Parl. Hist. 512-515.
PUBLIC BILLS.
551
ordered.
motions for rejecting bills may 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 has been
thought better, however, to notice the practice in this place,
in connexion with the postponement of bills, in order to save
repetition, when the other stages are under consideration.
The second reading is the stage at which counsel have Counsel
usually been heard, whenever the house has been of opinion
that a public bill was of so peculiar a character, as to justify
the hearing of parties whose interests, as distinct from the
general interests of the country, were directly affected by it.
It is a general principle of legislation, that a public bill,
being of national interest, should bé debated in Parliament
upon the grounds of public expediency; and that the argu-
ments on either side should be restricted to members of the
house, while peculiar interests are represented by the petitions
of the parties concerned. Questions of public policy can
only be discussed by members : but where protection is
sought for the rights and interests of public bodies, or others,
it has not been unusual to permit the parties to represent
their claims by counsel. Counsel have also been heard at
various other stages of bills, as well as on the second reading.
In the case of bills of pains and penalties, disabilities, or
disfranchisement, it has been usual to order a copy of the
bill, and the order for the second reading, to be served upon
the parties affected, and to hear them by counsel. The
1 Cotton Factories Bill, 1818; 51
Lords' J. 662; 88 Com. J. 501; 90
Ib. 587, &c. Municipal Corpora-
tions Bill (Lords), 1833. Warwick
Borough Bill (Lords), 1834. Stafford
Disfranchisement Bill (Lords), 1836.
Canada Government Bill (Commons),
1838, Mr. Roebuck. Jamaica Bill
(Commons), 22nd and 23rd April, and
7th June 1839; and (Lords), 28th June.
Ecclesiastical Duties and Revenues
Bill (Lords), 1940. Sudbury Dis-
franchisement Bill (Lords), 1842 and
1844, For further explanations of
the principle upon which Parliament
has permitted counsel to be heard
against public bills and precedents
cited, see Lords' Debate on Aus-
tralian Colonies Bill, 10th June 1850;
111 Hans. Deb. 3rd Ser. 943.
2 See Com. Gen. Journ. Indexes,
tit. " Counsel.”
3 Wilson's Disabilities Bill, 1737.
Rumbold's Pains and Penalties Bill,
.
552
PUBLIC BILLS.
Commitment
of bills.
attorney-general has also been ordered to appoint counsel to
manage the evidence, at the bar of the house, in support of
the bill, or to take care that evidence be produced in support
of the bill."
When a bill has been read a second time, a question is put,
that this bill be committed,” which is rarely opposed, being
a mere formal sequel to the second reading, -not admitting
of any discussion of the merits of the bill itself. When
this question has been agreed to, a day is named for the
committee. On the order of the day being read for the
committee, it is moved in the Lords, that the house be now
put into committee 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
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 from the word “ that," to
the end of the question, in order to add,“ this house will on
this day three months,' or 'six months,' resolve itself into
the said committee.” 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.” It is not
competent to move any amendment by way of addition to the
question, that Mr. Speaker do now leave the chair. Nor, in
debating that question, is it permissible to discuss the several
clauses, or proposed amendments, in detail."
But before the house resolves itself into committee, an
instruction may be given to the committee, empowering
them to make provision for any matters not relevant to the
Instructions
to committees
on bills.
1782. Queen's Degradation Bill, 1820
(Lords); and see Chap. XXII. on
ELECTIONS.
1 Rumbold's Bill, 7th May 1782.
2 O'Sullivan's Disabilities Bill,
5th May 1869; 124 Com. J. 180.
3 Lords' S. O. No. 33.
4 Mr. Speaker Denison's Note-
Book, 28th May 1866; and see
supra, p. 321.
5 18th March 1875; 223 Hans.
Deb. 3rd Ser. 35. See also 224 Ib.
1297; 225 Ib. 684. 1683; 232 Ib.
1196 ; 236 Ib. 396.
!
COMMITTEES ON BILLS.
553
subject-matter of the bill. According to the rules and
general practice of Parliament, an instruction does not order
a committee to make any provision : but merely instructs
them “ that they have power” to make it. In the Lords,
indeed, mandatory or imperative instructions are occasionally
given concerning the provisions of bills.3 And in the
Commons such instructions were formerly not without
recognition. But, according to modern practice, mandatory
instructions are now confined to proceedings unconnected
with the provisions of bills. If the proposed provision be
relevant, it cannot be the subject of an instruction, which
would be nugatory, as the committee would already have
the power which it is the object of the instruction to confer.
The following examples will serve to illustrate the conditions
under which instructions are necessary, in order to enable
committees to introduce provisions which would otherwise
exceed a fair interpretation of the rule concerning relevant
amendments.
6
1 It has been ruled that notice of
an instruction should be given; 176
Hans. Deb. 3rd Ser. 1940.
2 On the 13th July 1803, Mr.
Pitt moved an instruction to the
committee on the Income Duty Bill,
" that it do make provision for the
like abatements, &c." "I stated
my doubts to the house upon the
regularity of such an instruction, as
being unnecessary. That the pur-
pose of an instruction was to give
a power to a committee to do that
which it could not do without that
power. Whereas, with a view to
the present object of making abate-
ments, the committee were competent
already so to do. Also, I stated
that no instruction was in itself
obligatory. The latter point Mr.
Addington afterwards illustrated by
pointing out that even the committee
could not act upon the instruction,
without a question put upon the
thing to be done, which of itself
implied that the instruction was
not conclusive upon the committee."
1 Lord Colchester's Diary, 431. See
also 2 Lord Sidmouth's Life, 144.
The instruction was negatived by
150 to 50; 58 Com. J. 606; 36 Parl.
Hist. 1668. See also 189 Hans. Deb.
3rd Ser. 1070.
3 65 Lords' J. 551; 68 Ib. 151;
83 Ib. 443.
4 6 Hans. Deb. 3rd Ser, 268, 269;
21 Com. J. 836; 30 Ib. 832. Starch
Duties Bill, 55 Ib. 42; 57 Ib. 418.
647; 65 Ib. 282 ; 66 Ib. 299. Repre-
sentation of the People Bill, 1831 ;
86 Ib. 759. Municipal Corporations
Bill, 14th July 1835; 90 Ib. 451.
5 13 Ib. 466. 759 ; 16 Ib. 426.493.
604; 17 Ib. 292, 296; 46 Ib. 170.
269 ; 48 Ib. 635; 49 Ib. 360.
G 195 Hans. Deb. 3rd Ser. 847;
207 Ib. 402.
554
COMMITTEES ON BILLS.
Examples of
instructions.
On the 13th June 1855, it was ruled (privately) by the
Speaker, that without an instruction it would not be com-
petent to the committee on the Sunday Trading (Metropolis)
Bill to extend its provisions to the United Kingdom: such a
proposal being more properly indeed the subject of a new
bill:1 but bills with a general title, if its provisions apply to
England and Scotland only, may be extended to Ireland,
without an instruction. Again, on the 20th March 1862, it
was ruled that an instruction was required to enable the
committee on the Markets and Fairs (Ireland) Bill, to pro-
vide for the equalisation of weights and measures on all
mercantile transactions in Ireland.3 On the 10th March
1859, a clause to repeal the provisions of the 5 Geo. I. c. 4,
prohibiting any mayor from resorting to any public meeting
for religious worship, other than of the Church of England,
with the ensigns of office, was held not to be relevant to a
bill to amend the law relating to municipal elections. On
the 10th May 1865, an instruction was deemed necessary to
enable the committee on a bill for the registration of county
voters, to extend certain provisions relating to the duties and
powers of revising barristers, to cities and boroughs; 5 and on
the 11th May 1865, it was ruled that an instruction was
needed to entitle the committee on the Union Chargeability
Bill, which regulated the charges upon parishes within exist-
ing unions, to make provision for altering the boundaries of
unions, which had been the subject of a distinct act. In
1860, and again in 1866, an instruction was given to the
committee on the Representation of the People Bill, that they
have power to make provision for restraining bribery and
corrupt practices. And in 1867, an instruction was given to
1 MS. Minute.
2 Settled Estates Drainage Bill,
4th June 1840 ; Copyhold Bill, 20th
May 1841. In 1851, an instruction
was given to the committee on the
bill to continue the property tax,
empowering them to amend the Act
5 & 6 Vict. c. 35, by which the tax
had been granted.
3 165 Hans. Deb. 3rd Ser. 1876.
1 MS. Minute.
5 179 Hans. Deb. 3rd Ser. 98.
6 Ib. 116.
? 158 Ib. 1966; 183 Ib. 1320.
COMMITTEES ON BILLS.
555
the committee on the Representation of the People Bill, after
full consideration, to enable them to alter the law of rating,
as it was intended by several amendments to alter that law,
not merely in reference to registration and the rights of
voting, which would have been relevant, but in respect of the
incidence of taxation and the rights and interests of owners
and occupiers, then governed by general and local acts, irre-
spectively of the franchise. On the 30th June 1873, an
instruction was held to be necessary to enable the committee
on the bill for the constitution of a supreme court, and the
better administration of justice, in England, to provide for
the hearing of appeals from Scotland and Ireland. On the
21st June 1877, it was held necessary to instruct the com-
mittee on the Sale of Intoxicating Liquors on Sunday (Ire-
land) Bill, that they have power to make provision for the
supervision by the police of refreshment houses on all days
of the week, and for increased penalties on keeping for sale
by retail intoxicating liquors, without a licence. On the
24th March 1879, in committee on the Poor Law Amend-
ment Bill, which was confined to the English law, it was
held that amendments for amending and repealing the
Scotch law, could not be entertained without an instruction.3
Again, on the 4th August 1879, in committee on the Game
Laws Amendment (Scotland) Bill, it was ruled that the
operation of the bill could not be extended to England
without a previous instruction from the house.4
An instruction cannot be given to make any provision, if
it be of such a nature that it ought to have been considered
in a committee of the whole house, as imposing a charge upon
the people, or concerning religion or trade ;6 for otherwise
the rules of the house would be evaded.
1 186 Hans. Deb. 3rd Ser, 1270. 4 249 Ib. 175.
2 132 Com. J. 288.
5 In 1875, the Education (Scotland)
3 244 Hans. Deb. 3rd Ser. 1600. (Sutherland and Caithness) Bill, hav-
6 See supra, p. 527 et seq. On the 18th June 1862, an instruction to the
committee on the Sale of Spirits Bill, having been held to concern trade,
was withdrawn. 167 Hans. Deb. 3rd Ser. 699.
556
COMMITTEES ON BILLS.
On the 4th June 1860, notice had been given of no less
than nine instructions to the committee on the Representa-
tion of the People Bill, which served to illustrate most of the
rules and principles applicable to such proceedings. Some
were held to be inadmissible, as the committee had already
power to make the required provision ; some as being man-
datory in form; two, on the ground that, as they related to
religion, a preliminary committee was necessary; and one
as referring to the United Kingdom, in anticipation of two
other bills for amending the representation of Scotland and
Ireland, already appointed for consideration. An amend-
ment to a proposed instruction was also overruled, as refer-
ring to a matter within the competence of the committee, and
also as being mandatory.
The most proper and convenient time for moving an in-
struction is, after the order of the day for the committee on
the bill has been read, and before any question has been
proposed thereon : when it should be proposed as a distinct
motion. Instructions have sometimes been moved in the
form of an amendment to the question for the Speaker
leaving the chair:2 but this course is inconvenient; for if
the amendment be agreed to, it supersedes the main ques-
tion, and thus prevents the Speaker from leaving the chair,
which is not the object of the amendment, nor the desire
of its mover. Hence where notice has been given of moving
an instruction to the committee on a bill, and also of an
amendment to the question for the Speaker to leave the chair,
1
When and
how to be
moved.
ing been founded upon a resolution
of the house, authorising the appli-
cation of public money, notice was
given, for the 15th June, of two in-
structions to the committee on the
bill. The first proposed to extend
the bill to the whole of Scotland,
which, being ruled (privately) to be
irregular, was not moved. The
second proposed a similar extension,
so far only as concerned the audit of
accounts; and as this did not con-
cern public money, it was allowed to
be moved. Votes and Notices for
15th June 1875.
1 158 Hans. Deb. 3rd Ser. 1951-
1988.
2 75 Com. J. 435; 76 Ib. 137, 138;
78 Ib. 107; 80 Ib. 111; 88 Ib. 163;
113 Ib. 207.
COMMITTEES ON BILLS.
557
precedence is given to the former. Any number of instruc-
tions may be moved in succession, to the committee on the
same bill; as each question for an instruction is separate, and
independent of every other. Amendments may also be moved
to a question for an instruction : provided the amendment
be so framed that if agreed to, the question, as amended,
would retain the form of an instruction, and its matter be
such as may properly form the subject of an instruction.
On the 28th May 1866, notice having been given of a motion
to refer the Representation of the People Bill and the Re-
distribution of Seats Bill to the same committee, and of an
instruction to empower the committee to consolidate those
bills into one, another notice was given of an amendment to
the proposed instruction, in the form of a resolution con-
demning the principles and provisions of the latter bill. It
was, however, ruled (privately) that no such amendment
could be moved to the instruction. A doubt was, indeed,
raised whether the amendment could not be moved to the
prior question for referring the two bills to the same com-
mittee : but, after much consideration, it was held that this
motion was also in the nature of an instruction, and that the
two motions, though forming the subject of two questions,
were substantially one instruction. The first referred the
two bills to the committee; the second empowered the com-
mittee to consolidate them. And it was admitted that great
inconvenience would arise if resolutions, which could not be
otherwise interposed between the reading of the order of the
day, and the question founded upon it, were allowed under
cover of an amendment to an instruction. This view was
acquiesced in by all parties, and arrangements were accord-
ingly made by which the amendment was moved to the ques-
tion for the Speaker leaving the chair.3
A distinct resolution is sometimes moved as an amendment Resolutions
1 149 Hans. Deb. 3rd Ser. 1406.
Union Chargeability Bill, 11th May
1865; 179 Hans. Deb. 3rd Ser. 116.
2 101 Com. J. $13.
3 Private mem.
183 Hang. Deb.
3rd Ser, 1347.
558
COMMITTEES ON BILLS.
of instruc-
tions.
in the nature to the question for the Speaker leaving the chair, which, if
agreed to, may have the same ultimate effect as an instruc-
tion, by declaring the opinion of the house, to which effect
can afterwards be given in proper form. Such a resolution
may thus be moved, when an instruction would be irregular;2
for if it comprise matters which, by the rules of the house,
must be first considered in a committee, effect is afterwards
given to the resolution, by a vote in committee, and by
founding upon it, if necessary, an instruction to the com-
mittee on the bill. The form of an instruction is such as to
preclude the house from complying with these preliminary
formalities, as it takes immediate effect, and it would there-
fore be irregular, under such circumstances, to move it. In
the same manner, in cases where an instruction would be
irregular, the objects contemplated by it being within the
general powers of the committee, a resolution may be moved,
embodying the opinion of the house.
Before first
All such motions, however, whether in the form of instruc-
sitting of
committee. tions or of amendments, should be made before the first
sitting of the committee; for by' a Standing Order, 25th
June 1852, if the bill have already been partly considered,
the Speaker will forthwith leave the chair when the order for
the committee has been read; and there is consequently no
opportunity for offering such a motion. An instruction can-
not be moved as a distinct notice, apart from the order of the
day for the committee on a bill, unless it be founded on the
report of a committee of the whole house, in which case the
proceeding is necessarily separated from the order of the day.
But, otherwise, irregular discussions would be raised upon
1 Warwick Borough Bill, 5th March
1834 ; 89 Com. J. 91. Established
Church Bill, 8th July 1836; 91 Ib.
639. Poor Relief (Ireland) Bill, 9th
May 1837; 92 Ib. 358. Freemen's
Admission Bill, 10th May 1837; 92
Ib. 364. Colleges (Ireland) Bill, 23rd
June 1845; 100 Ib. 621. Election
Recognizances Bill, 15th March 1848;
103 Ib. 330. Representation of the
People Bill, 1867 (Captain Hayter),
186 Hans. Deb. 3rd Ser. 1278.
2 Sugar Duties Bill, 14th March
1845 (Mr. Hawes). Church Rates
Abolition Bill, 21st April 1858 (Mr.
Puller).
3 105 Com. J. 635.
!
COMMITTEES ON BILLS.
559
bills appointed for consideration at other times. By Standing
Order, 19th July 1854 :
“Bills which may be fixed for consideration in committee on the Several bills
same day, whether in progress or otherwise, may be referred together may be re-
ferred to one
to a committee of the whole house, which may consider on the same committee;
day all the bills so referred to it, without the chairman leaving the
chair on each separate bill; provided that, with respect to any bill not
in progress, if any member shall object to its consideration in com-
mittee with other bills, the order of the day for the committee on such
bill shall be postponed."
dated into one
This course is now frequently adopted, with much con- and consoli-
venience and saving of time. Two or more bills may also bill.
be referred to the same committee, with an instruction to the
committee that they have power to consolidate them into one
bill.2
Sometimes also, petitions have been referred to the com- Instructions
mittee on a bill, with an instruction that they have power to sel.
hear counsel and examine witnesses.3
If the house agree to the question for the Speaker leaving Bill consi-
to hear coun-
sidered in
committee.
1 114 Ib. 253; 124 Ib. 63. In rough Bill, 1813; 68 Ib. 362. Ap-
some cases after an amendment, pro- prentices Bill, 1814; 69 Ib. 335.
posed but not made, to the question Penryn Bribery Bill, 1819; 74 Ib.
that the Speaker do now leave the 441. Silk Trade Bill, 1824; 79 Ib.
chair, other orders of the day for 180. Coventry Magistracy Bill,
committees on bills have been read, 1827; 82 Ib. 536. East Retford
and the bills committed to the same Disfranchisement Bill, 1828 ; 83 Ib.
committee, before the Speaker was 122. Liverpool Franchise Bill, 1832.
ordered to leave the chair. 19th Municipal Corporations Bill, 1835;
June, 17th July 1846; 101 Com. J. 67 Lords' J. 329. Municipal Cor-
276. 353.
porations (Ireland) Bill, 1839; 71
2 Representation of the People and Ib. 259; 87 Ib. 461. Limitation of
Redistribution of Seats Bill, 28th Actions (Ireland) Bill, 1843; 98 Ib.
May 1866; 183 Hans. Deb. 3rd Ser. 538. Gaming Actions Discontinu-
1319. For other precedents of such ance Bill, 1844; 76 Ib. 550.553. St.
instructions, see 19 Com. J. 522; 20 Albans Disfranchisement Bill, 1851;
Ib. 143 ; 21 Ib. 832. 836; 22 Ib. 84 Ib. 101. See also debate on
162; 30 Ib. 164. 832 ; 58 Ib. 568; Colonel Wilson Patten's motion for
106 Ib. 365 ; 124 Ib. 246 ; 125 Ib. hearing the electors of Lancaster
246, &c.
before the committee on the Repre-
3 Corn Regulation Bill, 1791 ; 46 sentation of the People Bill, 1867;
Com. J. 466. Sinecure Offices Bill, 186 Hans, Deb, 3rd Ser. 982.
1812 ; 67 Ib. 309. Weymouth Bo-
560
COMMITTEES ON BILLS.
the chair, the mace is removed from the table, and the com-
mittee begin the consideration of the bill. As its principle
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 (if any) filled up ;for which
purpose the permission to speak more than once offers great
facilities.
Proceedings In the Lords the first proceeding of the committee is to
in committee.
postpone the title, which is there treated as a part of the bill :
but in the Commons the committee do not consider the title,
unless it requires amendment. The preamble is next post-
poned, which, in the Commons, is the first proceeding. By
Standing Order, 27th November 1882 :-
Postponement 'It is provided that in committee on a bill, the preamble do stand
of preamble.
postponed until after the consideration of the clauses, without question
put."
This practice is adopted because the house has already
affirmed the principle of the bill, on the second reading, and
it is therefore the province of the committee to settle the
clauses first; and then to consider the preamble in reference
to the clauses only. By this rule the preamble is made sub-
ordinate to the clauses, instead of governing them. It was
not observed, however, in the Bishoprick of Manchester Bill,
1847,3 nor in the Education (Scotland) Bill, 1855,4 in which
cases the question for postponing the preamble was put and
negatived ; and the preamble considered before the clauses
The same course was proposed in the Ecclesiastical Titles
Bill, 1851, but was not adopted by the committee. Upon
the question for postponing the preamble, a discussion was
sometimes raised upon the principle of the bill, but this incon-
1 See infra, p. 562.
2 The preliminary questions for
reading the bill a first and second
time were discontinued by Standing
Order, 19th July 1854.
3 102 Com. J. 911. 932.
4 110 Ib. 289.
5 106 Ib. 231.
6 186 Hans. Deb. 3rd Ser. 1383;
Parliamentary and Municipal Elec-
tions Bill, 1871; Regimental Ex-
changes Bill, 15th March 1875; and
see chairman's ruling, 27th May
1876, &c.
!
COMMITTEES ON BILLS.
561
venient practice has now been discontinued by the recent
Standing Order. On the 29th June 1869, in committee on
the Irish Church Bill, in the House of Lords, a long debate
was raised upon the postponement of the preamble, which
was, however, agreed to without a division 1
The chairman then proceeds to read the number of each Amendments,
when to be
clause in succession, which is thus brought under the con- offered.
sideration of the committee. A member is not at liberty to
speak generally upon a clause, upon its being called by the
chairman, there being no question before the committee until
an amendment has been moved, or a question put that the
clause stand part of the bill. If no amendment be offered
to any part of a clause, the chairman at once puts the ques-
tion, “ That this clause stand part of the bill,” and proceeds
to the next: but when an amendment 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 or words in the same clause, amendments
cannot be made in an earlier part of the bill. Whenever
several amendments are about to be moved to the same clause,
the chairman proposes each of them in such a form as not to
exclude any later amendments; and with this view he often
proposes only the first words of an earlier amendment. No
amendment can properly be proposed to a clause which is
irrelevant to the subject-matter of such clause : but it should
be submitted to the committee, at the end of the bill, as a
separate clause. Neither may an amendment be proposed to
1 197 Hans. Deb. 3rd Ser. 689.
4 Divorce and Matrimonial Causes
Representation of the People Bill, 6th Aug. 1857 ; 147 Hans. Deb.
Bill, 18th June 1866 (Chancellor of 3rd Ser. 1190. 1198. Manor Courts
the Exchequer); S4 Hans. Deb. 3rd (Ireland) Bill, 23rd Feb. 1859 (MS.
Minute). Prisons' Bill, 1st and 22nd
3 181 Hans. Deb. 3rd Ser. 539; March 1878; 232 Ib. 1242; 233 Ib.
359. Army Discipline Bill, 19th
June 1879 ; 247 Ib. 278.
2
Ser. 536.
184 Ib. 445.
P.
() ()
562
COMMITTEES ON BILLS.
leave out from the word " That” to the end of the clause, in
order to substitute other words, --such an amendment being
in the nature of a new clause. In such a case the regular
course is to negative the question, that the clause stand part
of the bill, and to bring up a new clause, at the proper time.
But when an amendment has already been made at the be-
ginning of a clause, and it is afterwards proposed to leave out
the remainder of the clause, such an amendment has been
held to be regular.? When a clause has been amended, the
question put from the chair is, “That this clause, as amended,
stand part of the bill;" and no other amendment can be pro-
posed to a clause, after this question has been proposed from
the chair. It has been ruled that when the question, “That
this clause stand part of the bill,” has been put from the
chair, it cannot be withdrawn, as it necessarily follows upon
the consideration of the clause, and is not a motion made by
any member which he could ask leave to withdraw. By
Standing Order, 19th July 1854,
Proceedings
“In going through a bill, no question shall be put for the filling
upon blanks. up of words already printed in italics, and commonly called 'blanks,
unless exception be taken thereto; and if no alterations have been
made in the words so printed in italics, the bill is to be reported
without amendments, unless other amendments have been made
thereto."
Where, for any reason, real blanks have been left, according
to the former practice, if it be desired to fill them up
with
words different from those first proposed, 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. It was formerly an occasional, but
not the constant, practice to put first the motion for a smaller
sum or longer time : 6 but according to later practice, this
1 116 Hans. Deb. 3rd Ser. 666;
196 Ib. 74; 200 Ib. 1057, &c.
2 Irish Land Bill, 1st April 1870;
200 Hans. Deb. 3rd Ser. 1057.
3 147 Ib. 1191.
* Hypothec Abolition (Scotland)
Bill, 1st April 1879.
5 93 Com. J. 526; 94 Ib. 465. 497.
6 88 Ib. 617.
!
COMMITTEES ON BILLS.
563
rule has not been observed in committees upon bills. Thus,
on the 18th July 1856, in committee on the Vice-President
of the Committee of Council on Education Bill, it was pro-
posed to fill up the blank, for the salary of the office, with
2,0001.: it was afterwards proposed to fill it up with 1,2001. ;
and the question was put and decided upon the sum first
proposed. Where the proposed sum has already been
printed in italics, and another sum is proposed, the latter
is put in the form of an amendment, without reference to
the relative amount of the two proposals ;and this practice
is now uniformly observed.
When bills are introduced with clauses which involve Money
clauses.
charges upon the public revenue, whether payable out of
the Consolidated Fund, or out of monies to be provided
by Parliament, or whether by way of direct payment or
guarantee, 4 or impose any tax or state burthen upon the
people, such clauses are printed in italics, and cannot be
agreed to by the committee on the bill unless such charges
or taxes have previously been reported by a committee,
and agreed to by the house, either before or after the
introduction of the bill. Where it appeared that certain
payments directed to be made would be discharged out of
civil contingencies, & preliminary committee was held to
be necessary.6 Clauses involving local taxation only are
not printed in italics, nor previously voted in committee.?
In 1857, the sugar duties had been voted in the committee Drawbacks.
of Ways and Means: the bill granted a drawback upon sugar
imported into the Isle of Man, which had not been voted;
and it was ruled (privately) that such a drawback might
properly be enacted in the bill.s
!
1 111 Com. J. 363.
2 110 Ib. 223; 111 Ib. 353.
3 Amended Standing Order, 20th
March 1866.
4 Main Drainage of the Metropolis
Bill, 1858. Canada Railway Loan,
1867.
6 242 Hans, Deb, 3rd Ser. 196.
6 St. Albans Inquiry Commission
Bill, 1851.
7 179 Hans. Deb. 3rd Ser. 481.
8 MS. Precedents.
002
564
COMMITTEES ON BILLS.
Duties not to
be increased
If a schedule of duties has been reported from a com-
by committee mittee, and agreed to by the house, the committee on the
on the bill.
bill cannot increase such duties, nor add any articles not
previously voted ;1 but if the duties so voted are less than
those payable under the existing law, it is competent for
the committee on the bill to increase them, provided such
increase be not in excess of the existing duties. Any duty,
voted in a preliminary committee, may be reduced by the
committee on the bill.
Repeal of ex- But where exemptions from duty are repealed, and the
emptions from
duty.
duty therefore increased, a preliminary committee is neces-
sary, before the committee on the bill can agree to such a
provision. A clause or amendment will not be received,
granting costs against the Crown, or revenue oficers, and
thereby imposing a public charge, unless authorized by pre-
liminary proceedings.
It appears that the land revenues of the Crown may be
applied to improvements of Crown property, without a pre-
liminary vote, although by statute such land revenues are
carried to the Consolidated Fund.5
Remission of Prior to 1875, it had been held, that where advances have
been made by the Treasury, under statutes, and it has been
proposed to remit the repayment of them, no previous vote in
a committee of the whole house was necessary. But such
advances having been made recoverable by 39 Vict. c. 89, s. 3,
4
Land reve-
nues.
advances.
1 MS. Precedents, 20th March 1846.
2 Ib. 26th March 1846; and seo
Chap. XXI. on SUPPLY.
3 Stamp Duties Bill, 1854; 109
Com. J. 334. This question was
raised 30th April 1863, on the Cus-
toms and Inland Revenue Bill; but
it affected the construction of a pre-
liminary resolution granting a re-
newal of the property tax, and not
the principle of this rule, which was
not controverted.
4 12th May 1862, Sir H. Wil-
loughby's proviso in Customs and
Inland Revenue Bill; 166 Hans.
Deb. 3rd Ser. 1593.
5 Newborough Church Bill, 1 Will.
IV. C. 59. Hainault Forest Bill,
1851. Pimlico Improvement Bill,
1852. Sunk Island Roads Bill, 1852.
Whychwood Forest Bill, 1853.
6 Consolidated Annuities (Ireland),
18th July 1853. Portumna Bridge
Bill, 1858. Leith Harbour and Docks
Bill, 1860. Holyhead Roads Bill,
1861. Irish Church Bill, 1869 (May-
nooth)
t
COMMITTEES ON BILLS.
565
as specialty debts due to the Crown, it has since been held
that bills for the remission of advances are to originate in
committee.)
Amendments may be made in every part of the bill, What amend-
ments admis-
whether in the preamble, the clauses, or the schedules ; sible.
clauses may be omitted, and new clauses and schedules
added. In the Lords, new clauses are brought up and
inserted in their proper places, while the committee are going
through the bill :but in the Commons, all the clauses of
the bill are considered before any new clauses are brought up
and added to the bill. In committee on the Mutiny Bill in
1867, an exceptional course was adopted for the sake of con-
venience, and certain clauses were postponed until after the
consideration of a new clause relating to flogging in the
army. An amendment or new clause cannot be brought up,
if substantially the same as one already negatived by the
committee.4 An amendment must be coherent and consistent
with the context of the bill. A proposed amendment having
been so amended as to form an incoherent question, the
chairman stated that if no further amendment were proposed,
he should proceed with the question which next arose upon
the clause.
There appears to have been considerable diversity of New clauses
practice, at different periods, in the method of dealing with
new clauses, and with the schedules to a bill. Sometimes the
schedules were considered immediately after the original
clauses of the bill, and then new clauses were brought up;
and, on other occasions, new clauses were offered immediately
after the original clauses of the bill were disposed of; and
this latter course is the latest and most approved form of
5
and schedules.
6
i Public Loans (Ireland) Remis-
sion Bill, 1881.
2 88 Lords' J. 234. Representation
of the People Bill, 30th July 1867;
Lords' Minutes, pp. 1277. 1279.
3 122 Com. J. 141. 149; 186 Hans.
Deb. 3rd Ser. 768. 912.
211 Ib. 137. 2026.
5 Prisons Bill, 1877; 132 Com. J.
73.
6 Poor Law Amendment Bill, 18th
July 1844; Turnpike Trusts (South
Wales) Bill, 24th July 1844; 99 Com.
J. 517. 536.
566
COMMITTEES ON BILLS.
procedure. It is, in nearly all cases, most convenient to
consider every clause of the bill before the schedules, which
are merely supplementary to the bill. But if, in any par-
ticular instance, there should be some special reason for
taking the schedules before the new clauses, that course
might be adopted. The new clauses proposed by the minister,
or other member in charge of the bill, are proposed before
other new clauses.2
Where there are several schedules to a bill, they are treated
in the same manner as clauses. They are taken seriatim ;
and it is not until they have all been considered that new
schedules can be offered. If one schedule be disagreed to,
another cannot be offered to supply its place, until the re-
maining schedules have been disposed of. A new schedule
is brought up, read a first time and second time, amended, if
need be, and added to the bill.3
In the Commons, all amendments were formerly required
to be within the scope and title of the bill; but by Standing
Order, 19th July 1854,
Special report Any amendment may be made to a clause provided the same be
if title
relevant to the subject-matter of the bill, or pursuant to any instruc-
amended.
tion, and be otherwise in conformity with the rules and orders of the
house : but if any amendment shall not be within the title of the bill,
the committee are to amend the title accordingly, and report the samo
specially to the house."!
No amendment should be admitted which is in the nature
of a previous question. If it be convenient, clauses may
be postponed, unless they have been already partly con-
sidered and amended, in which case it is not regular to post-
pone them. But if a proposed amendment be withdrawn,
1 Parliamentary Representation
Bill, June 1867, &c.
2 208 Hans. Deb. 3rd Ser. 802.
3 Metropolitan Buildings Bill, 17th
July 1844; 99 Com. J. 512. Parl.
Rep. Bill, 1867; 122 Ib. 365; 188
Hans. Deb. 3rd Ser. 1280.
4 Rules and Orders, No. 362.
5 But see proceedings in committee
on Reform Bill, 1832; 87 Com. J.133.
141. 165. 173,--questions and amend-
ments concerning Amersham, Hel-
ston, Gateshead and South Shields.
6 207 Hans. Deb. 3rd Ser. 722.
Elections (Parliamentary) Bill, 25th
July 1871.
.
COMMITTEES ON BILLS.
567
the clause may be postponed. Upon a question for the
postponement of a clause, the debate is limited to the simple
question of postponement, and may not be extended to the
merits of the bill. Postponed clauses are considered after
the other clauses of the bill have been disposed of, and before
any new clauses are brought up. But they have also been
considered, under special circumstances, after new clauses, or
certain other clauses, 4 or some of the schedules of the bill.5
If any new clause be offered, the chairman desires the mem-
ber to bring it up, and it is read a first time without any
question being put. A question is then put for reading the
clause a second time, and if agreed to, the clause may be
amended, before the question is put for adding it to the bill.
The committee may 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." A new
clause, however, will not be entertained if inconsistent with
other clauses already agreed to by the committee, or if sub-
stantially the same as another clause previously negatived."
When instructions have been given by the house for that
purpose,10 the committee may receive clauses or make pro-
vision in the bills committed to them, which they could not
otherwise have considered.11 If a clause or amendment
irrelevant to the subject matter of the bill be offered, the
chairman will decline to put the question.12 On the 30th
July 1874, it was ruled, in committee on the Espiring Laws
Continuance Bill, that it was not within the scope of the
committee to amend the provisions of the acts proposed to be
continued, or to abridge the duration of such provisions.13
.
I Supreme Court of Judicature
Bill, 8th July 1873; 128 Com. J.
340.
2 207 Hans. Deb. 3rd Ser. 1378.
3 132 Com. J. 235.
4 136 Ib. 267.
5 Supreme Court of Judicature
Bill, 1875; 130 Ib. 425.
6 Standing Order, 19th July 1854.
7 86 Com. J. 728; 87 Ib. 80; 89
Ib. 409; 132 Ib. 235.
8 Municipal Elections Bill, 1859;
114 Ib. 103.
9 179 Hans. Deb. 3rd Ser. 538.
10 See supra, p. 552–558.
11 179 Hans. Deb, 3rd Ser. 522.
12 111 Com. J. 213.
13 129 Ib. 353.
568
COMMITTEES ON BILLS.
In compliance with instructions, also, the committee may
consolidate two bills into one, or divide one bill into two or
more;l or examine witnesses and hear counsel.When all
the clauses and schedules have been agreed to, and any new
clauses or schedules added, the preamble, which had been
postponed, is considered, and, if necessary, is amended so as
to conform to amendments made in the bill ;3 and the chair-
man puts the question, “That this be the preamble of the
bill,” which he reads (short) to the committee. Lastly, in
the Lords, the title of the bill is considered and agreed to;
and in the Commons, when any amendment is to be made to
the title, this is the last proceeding of the committee. Some-
times the short title of the bill is also amended in committee.5
When two bills are to be consolidated, the preambles of the
two bills are severally postponed, and the clauses of each are
successively proceeded with. When a bill is to be divided
into one or more bills, it is usual to postpone those clauses
which are to form a separate bill, and when they are after-
wards considered, to annex to them a preamble, enacting
words and title. The separate bills are then separately
reported.
When the lord, or member, having charge of a bill desires
to introduce numerous amendments, in order to meet the
views of other members, or otherwise to improve the measure,
and render it more generally acceptable to the house, he may
express his desire that the bill shall be committed pro formâ,
a course which is rarely objected to. In such cases the
proposed amendments are not separately considered ; nor is
any question put upon the several clauses of the bill. The
Bills com-
mitted pro
formd.
173 Lords' J. 188; 85 Ib. 294. 107
Com. J. 140. 223; 108 Ib. 645 ; 116
Ib. 376 (three bills) ; 124 Ib. 194;
126 Ib. 121; 127 Ib. 230, &c.
2 See supra, p. 559.
3 99 Com. J. 48. 154; 100 Ib. 135;
104 Ib. 505.
6
4 110 Ib. 223; 111 Ib. 276; 112
Ib. 373.
5 135 Ib. 360. 398.
Newspaper Stamps Bill, 1836.
Inland Revenue Bill, 1861, divided
into three bills; 116 Ib. 385. Trades
Unions' Bill, 1871; 126 Ib. 121 ;
205 Hans. Deb. 3rd Ser. 977.
!
REPORT OF BILLS,
569
proceeding being entirely formal, all discussion is avoided,
and the chairman reports the bill, with the amendments, to
the house; and it is reprinted in its amended form, and re-
committed for a future day. Lords' bills are so treated, like
other bills. It is not, however, regular to commence the
consideration of a bill in the usual way, and to deal with the
remaining clauses pro formâ : but it has been arranged that
all subsequent amendments, though put from the chair, shall
be accepted without discussion. When a bill has been com-
mitted pro formå, it is not regular to introduce, without full
explanation, amendments of so extensive a character as virtu-
ally to constitute it a different bill from that which has been
read a second time by the house, and committed. In 1856,
the Partnership Amendment Bill having been committed pro
formâ, it was extensively amended: but no amendment was
inserted which it was not clearly competent for the committee
to entertain; yet, when an objection was urged that it had
become a new bill, the minister in charge of it, while denying
the alleged extent of the amendments, consented to withdraw
the bill. When the amendments affect the principle of the
bill, the more regular and convenient course is to withdraw
the bill, and present another. When a bill, having been
committed pro formâ, is re-committed, it is afterwards con-
sidered, like any other bill, committed for the first time, and
not, as is sometimes erroneously supposed, like a bill in pro-
gress. A question is put for Mr. Speaker leaving the chair,
and amendments may be moved to it, in the usual way. .
The house is not supposed to be informed of any of the Proceedings
of committee
proceedings of the committee until the bill has been reported ; not known
and any discussion of the clauses, with the Speaker in the untilreported.
chair, is consequently irregular. For this reason, on a motion
for postponing the further sitting of the committee on the
| English Church Services in Wales
Bill, 20th April 1863; Naval and
Victualling Stores Bill, 27th Juno
1864; Merchant Shipping Bill, 5th
August 1867; Contagious Diseases
(Animals) Bill, 4th July 1867.
? Literary and Scientific Societies
Bill, 4th June 1856.
3 140 Hans. Deb. 3rd Ser. 2200.
4 See supra, p. 639.
570
REPORT OF BILLS.
progress.
bill.
Scotch Poor Law Bill, on the 17th July 1845, on the ground
of certain alterations which had been made in committee,
Mr. Speaker stopped the discussion of the merits of those
alterations.
Report of If the committee cannot go through the whole bill at one
sitting in the Lords, the chairman puts a question that the
house be resumed, which being agreed to, he leaves the chair,
and moves that the house be put into committee on a future
day; and in the Commons, the committee direct the chair-
man to report progress, and ask leave to sit again. Some-
times, where several bills have been referred to the same
committee, a report is made that they had not made any
Report of the progress in certain bills. When the bill has been fully
considered, the chairman puts a question, “ That I do report
this bill without amendment,” or, “with the amendments, to
the house ;” which being agreed to, the chairman leaves the
chair without any further question, and Mr. Speaker resumes
his chair; upon which the chairman 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."
When com-
Sometimes, however, the proceedings of a committee on
no report. a bill are brought abruptly to a close, by an order “that the
chairman do now leave the chair;"3 in which case the chair-
man, being without instructions from the committee, makes
no report to the house.
A bill disposed of, in this manner,
disappears from the order book, and is generally regarded
as defunct;4 but as the house cannot be bound by the deci-
mittee make
1 124 Com. J. 268.
2 S. O. 27th November 1882.
3 90 Com. J. 497. 562; 105 Ib.
345: 111 Ib. 201 ; 112 Ib. 310; 126
Ib. 339, &c.
4 No committee can destroy a
bill, but they can lay it down."
More's Notes of Debates in the Long
Parliament, 14th April 1641; Harl.
MSS. See also Mr. Speaker's ruling;
176 Hans. Deb. 3rd Ser. 99.
?
REPORT OF BILLS.
571
sion of a committee, and has not itself agreed to any vote by
which the bill has been postponed for the session, it is com-
petent for the house to appoint another day for the committee,
and to proceed with the bill. When the committee on a
bill is so revived, its proceedings are resumed at the point at
which they were interrupted, -having been valid, and duly
recorded in the minutes, until the chairman was directed to
leave the chair.2
So also, if notice be taken, or if it appear, upon a division,
that forty members are not present, the chairman, being
without instructions, makes no report to the house. The
house, however, in such cases, has constantly appointed other
days for the committee. On the 6th August 1855, a novel
course was adopted, scarcely consistent with the usage of the
house, in regard to public bills. The committee on the
Crime and Outrage (Ireland) Bill, having been counted out,
was revived, and ordered to sit and proceed to-morrow.3
In the Lords, the bill is at once reported if there be no Proceedings
on report.
amendments: but there is a Standing Order, 28th June 1715,
which declares “ that no report be received from any com-
mittee of the whole house, the same day such committee goes
through the bill, when any amendments are made to such
bill."'4 In the absence of the chairman of committees, leave
has been given to another peer to report the amendments.5
On the 2nd April 1868, it was resolved, that in entering in
the Journals the reports of bills amended in committees of
the whole house, the only name entered therewith shall be
i Paupers Removal Bill, 1815;
70 Com. J. 384. 410. 455. General
Turnpike Bill, 1827; S2 Ib. 365. 399.
410. Savings Banks and Friendly
Societies Bill, 1860; 115 Ib. 402.
427. Court of Chancery (Ireland)
Bill, 21st and 22nd June 1864, and
Mr. Speaker's decisive ruling on the
latter day, 176 Hans. Deb. 3rd Ser.
99. It was also ruled, according to
precedent, that no notice was neces-
sary of the revival of the committee.
Joint Stock Companies (Voting Pa-
pers) Bill, 22nd and 23rd June 1864.
2 Savings Banks and Friendly So-
cieties Bill, 31st July 1860: MS.
Committee Minute-Book.
3 110 Com. J. 449.
.
4 Lords' S. O. No. 35.
6 91 Lords' J. 33.
572
REPORT OF BILLS.
1
that of the lord who moves the reception of the report, and
takes charge of the bill in that stage.
By Standing Order of the Commons, 25th June 1852,
“At the close of the proceedings of a committee of the whole house
on a bill, the chairman shall report the bill forthwith to the house, and
when amendments shall have been made thereto, the same shall be
received without debate, and a time appointed for taking the same into
consideration."
When the report has been received, if no amendments
have been made, the bill is ordered to be read a third time
on a future day. If amendments have been made by the
committee, the report is a formal proceeding, and the bill as
amended is ordered to be taken into consideration on a future
day. If the title has been amended, such amendment is
specially reported. In the Lords, no bill may be read a
third time on the same day on which it is reported from the
committee, unless the Standing Orders be suspended for that
purpose :3 but in the Commons, bills reported from a com-
mittee, without amendments, are frequently read a third time
on the same day, especially at the end of a session.
At this stage it is customary to reprint the bill, if several
amendments have been made ; for no verbal explanation 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 amend-
ments. A bill, as amended in committee, cannot be ordered
to be printed until it has been reported to the house : but occa-
sionally, while a bill has been in progress, the amended clauses,
so far as they have been agreed to, have been printed, by
direction of the Speaker, and circulated with the votes.5
By Standing Order 27th November 1882,
Bills re-
printed.
" When the order of the day for the consideration of a bill, as
Consideration
of bill, as
amended.
1 100 Lords' J. 103.
2 115 Com. J. 343; 120 Ib. 95, &c.
3 Lords' S. O. No. 35.
4 97 Com. J. 480.482; 107 Ib. 335;
113 Ib. 352; 133 Ib. 344, &c.
5 Representation of the People Bill,
REPORT OF BILLS.
573
amended in the committee of the whole house, has been read, the
house do proceed to consider the same without question put, unless
the member in charge thereof shall desire to postpone its considera-
tion, or a motion shall be made to recommit the bill."
When the bill, as amended by the committee, is considered, Clauses
added, and
the entire bill is open to consideration, and new clauses may amendments
be added, and amendments made, whether they be within the made.
scope and title, or even relevant to the subject-matter of the
bill, or not. The vicious practice of adding provisions to
bills, quite foreign to their object, which was formerly not
uncommon, is now very rarely tolerated: but the house has
not imposed any formal restraint upon its own discretion, in
admitting whatever amendments it may think proper, though
not within the title, which may be afterwards amended, on
the third reading. The house may exercise, directly, the
same power which it sometimes grants to committees, by
way of instruction. Thus, on the 11th July 1853, on the
third reading of a Stamp Duties Bill, an amendment was
made, providing that drafts on bankers payable to order
should be sufficient authority for payment, without proof
of endorsement.3
No clause may be offered at this stage, unless notice has
been given ; 4 and it has been held that such notice must
comprise the words of the clause intended to be proposed;
and where a clause has been offered, differing materially
from the notice, it has not been entertained.5 Nor can this
defect of notice be supplied by an amendment being pro-
posed to the clause by another member; as the clause cannot
be amended until it has been received and read a second
1867; 187 Hans. Deb. 3rd Ser. 1863,
Irish Church Bill, 1869; Irish Land
Bill, 1870; Land Law (Ireland) Bill,
-1881.
1 99 Com. J. 63.
2 202 Hans. Deb. 3rd Ser. 1386.
3 108 Com. J. 671, and MS. Book of
Precedents ; see also Assessed Taxes
Bill, 9th Feb. 1854 ; 109 Ib. 47.
4 Standing Order, 19th July 1854.
5 Oxford University Bill, 26th June
1854 ; 109 Com. J. 336; 134 Hans.
Deb. 3rd Ser. 694; Government of
India Bill, 6th July 1858 (Mr. Sey-
mour); 151 Ib. 1036. See also
Representation of the People Bill,
1867 (Col. Wilson Patten); 188 Ib.
1452.
574
REPORT OF BILLS.
time. A member has not been permitted to move a clause,
of which another member had given notice. New clauses
are first offered ; after which amendments may be made to
the several clauses of the bill as reported by the committee.
When a member offers a clause on the consideration of the
bill as amended, the Speaker desires him to bring it up, when
it is read a first time, without question put. A question is
afterwards proposed, “That it be read a second time;" which
is the proper time for opposing the clause. If this question
be affirmed, amendments may then be proposed to the clause.
Such amendments are offered, as in committee, in the order
in which, if agreed to, they will stand in the amended clause :
but if a proposed amendment be withdrawn, a prior amend-
ment may be moved. Sometimes the motion for reading the
clause a second time, and also the clause itself, are, by leave
of the house, withdrawn. The last question put by the
Speaker is, “That this clause, or this clause as amended, be
added to (or made part of) the bill.” The member who
offers the clause is entitled to speak on bringing it up (no
other debate being allowed), and, again, on the question that
it be read a second time. Each amendment proposed to the
clause can be discussed according to the usual rules of debate;
and lastly, on the question that the clause (whether amended
or not) be added, a further debate may arise. But such
debate must be confined to the clause itself, and may not
be extended to other provisions, or general merits of the bill.?
Clauses containing rates, penalties, or other blanks, must also
pass through a committee before they are added to the bill:
but a whole clause, increasing any burden on the people,
cannot be added unless the bill is recommitted. An amend-
S
1 134 Hans. Deb. 3rd Ser. 694.
2 5th Aug. 1876; 231 Hans. Deb.
3rd Ser. 662.
3 Standing Order, 19th July 1854.
4 Elementary Education Bill (14th
clause), 4th Aug. 1876.
5 112 Com. J. 332. 393, &c.
6 See 1st June 1863; Mr. Lygon's
objection on Report of Inland Reve-
nue Bill; 171 Hans. Deb. 3rd Ser.
188.
7 212 Hans. Deb. 3rd Ser. 1277.
8 97 Com. J. 424; 119 Ib. 316;
120 Ib. 356.
1
RECOMMITMENT575
AMIT:
.
4
ment, involving a direct charge upon the public revenue, will
not be put from the chair;1 or if it has been agreed to inad-
vertently, it will be cancelled. Nor may any amendment
be made which increases a tax, or repeals an existing exemp-
tion from a tax; but where the committee on the bill have
inserted an exemption from a tax, it has been held to be
regular to strike it out. Where it has appeared that a pro-
posed amendment would vary the incidence of taxation, the
Speaker has declined to put the question. But where a
charge has been imposed upon the ratepayers in committee,
an amendment to omit the clause has been held to be regular,
although its omission left other parties, already liable by law,
still chargeable with certain expenses. Where a bill proposed
to relieve the Consolidated Fund of a charge of 20,0001., and
an amendment was moved to a Lords' amendment, which
would have had the effect of reducing the extent of that
relief to 18,0001., it was held to be admissible, at that stage.
Where an amendment is proposed by leaving out a clause of
the bill, a question is put, that such clause "stand part of the
No amendments will be allowed which are inconsis-
tent with the provisions of the bill, as already agreed to by
the house. S
Upon the consideration of a bill, as amended, the proceed- Proceedings
of committee
ings of the committee are otherwise open to review. Thus, reviewed on
a clause inserted in committee, by mistake, has been struck report.
out;' and clauses having been introduced, not relevant to the
subject-matter of the bill, the bill has been recommitted in
respect of those clauses.10
It often becomes necessary to recommit a bill to a com- Bills recom-
mitted.
mittee of the whole house, and occasionally to a select com-
1 112 Com. J. 393. 164 Hans. Deb. 5 Expenses of hustiugs, 23rd July
3rd Ser. 173; 191 Ib. 1877 ; 242 Ib. 1868 ; 193 Ib. 1688.
1302; 270 Ib. 1834.
6 193 Ib. 1887. 1920.
2 County Courts Bill, 111 Com. J. ? 113 Com. J. 285. 339.
371.
8 258 Hans. Deb. 3rd Ser. 1597.
3 Drainage Bill, 1840.
4 123 Com. J. 157; 191 Hans. Deb. 9 109 Ib. 403.
3rd Ser. 1878.
10 119 Ib. 172.
bill."7
1628.
576
RECOMMITMENT.
mittee, before it is read a third time; and a recommitment of
the bill is always advisable, when numerous amendments are
to be proposed.
A bill may be recommitted : 1. Without limitation, in
which case the entire bill is again considered in committee,
and reported with “other” or “further” amendments. 2. The
bill may be recommitted with respect to particular clauses or
amendments only,' or to the clauses in which amendments
are proposed to be made, and the preamble. 3. On clauses
or schedules being offered, or intended to be proposed, the
bill may be recommitted with respect to these clauses or
schedules. In these two latter cases no other parts of the
bill are open to consideration. A bill, however, has been
recommitted in respect of certain clauses, and of any new
clauses relating to the subject-matter of those clauses.
4. The bill may be recommitted, and an instruction given
to the committee, that they have power to make some par-
ticular or additional provision. If the member who has
charge of the bill, and other members also, desire the recom-
mitment of a bill, the former has priority in making the
motion for that purpose.?
Again recom- A bill may be recommitted as often as the house thinks
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 pro-
ceedings on the report of a recommitted bill are similar to
those already explained: the report is received at once, and
the bill, as amended, is ordered to be taken into consideration
mitted.
1 83 Com. J.533; 94 Ib. 510; 124
Ib. 282 ; 126 Ib. 440.
2 Bank Notes Issue Bill, 1865, &c.;
120 Com. J. 304 ; 125 Ib. 208. 346.
3 92 Ib. 415; 108 Ib. 570; 115 Ib.
293; 116 Ib. 121; 120 Ib. 348 ; 126
Ib. 289 ; 127 Ib. 427; 132 Ib. 411.
4 179 Hans. Deb. 3rd Ser. 826.
5 128 Com. J. 360.
6 89 Ib. 127 ; 107 Ib. 294.
7 Bank Notes Issue Bill, 25th May
1865.
8 77 Lords' J. 325. 83 Com. J.
354 ; 89 Ib. 286; 93 Ib. 605; 94 Ib.
318.
9 65 Ib. 384. 396. 420; 69 Ib. 420.
444. 460.
COMMITTED TO SELECT COMMITTEES.
577
on a future day. Sometimes, after the house has ordered a
bill to be read a third time on a future day, this order is
discharged, and the bill recommitted, or ordered to be with-
drawn;2 and with a view to the recommitment of a bill,
amendments are occasionally moved to the question for read-
ing a bill a third time, that the order for the third reading
be discharged, or that the bill be recommitted.3
Notwithstanding the facilities for discussion afforded by a committed to
Select Com-
committee of the whole house, the details of a bill may often mittees
be considered more conveniently by a select committee.
Indeed, according to the ancient practice, all ordinary bills
were committed to select committees, and none but the most
important were reserved for the consideration of a committee
of the whole house. Every public bill, however, has, for a
long period, been considered in committee of the whole
house, whether it was also committed to a select committee
or not. Sometimes a bill is referred to the same select
committee as other bills already committed:4 or to com-
mittees appointed to inquire into or consider other matters: 5
or two or more bills are referred to the same committee.
When it has not been determined, until after the second
reading, to commit a bill to a select committee, the order, or
order of the day, as the case may be, for the committee of
the whole house, is read and discharged, and the bill is
committed to a select committee;' or, when the question is
proposed for the house to resolve itself into committee, or for
the Speaker leaving the chair, an amendment may be made
by leaving out all the words from “That” to the end of the
question, and adding, “the bill be committed to a select
6
1 110 Com. J. 117; 111 Ib. 208 ;
113 Ib. 318. 339. 384, &c.
2 110 Ib. 419; 112 Ib. 380. 392,
&c.
3 112 Ib. 391 ; 118 Ib. 167. 274.
4 84 Lords' J. 172; 92 Ib. 70. 245;
116 Com. J. 146; 120 Ib. 65; 129 Ib.
151; 133 Ib. 61. 222, &c.
5 103 Ib. 929 ; 105 Ib. 396 ; 106
Ib. 243; 111 Ib. 59; 114 Ib. 67; 115
Ib. 87.
6 119 Ib. 165; 120 Ib. 65.
? 72 Lords' J. 355 ; 110 Com. J.
143; 111 Ib. 207; 112 Ib. 337; 119
Ib. 256.
P.
PP
578
COMMITTED TO SELECT COMMITTEES.
committee.” In the Lords, a bill is sometimes committed
to a private committee of the lords present this day. When
it is deemed advisable to take evidence, the necessary powers
are given to the committee for that purpose. The com-
mittee are not entitled to make such amendments as to
constitute a new bill.4
Title amended
The order of the house concerning the making of relevant
by Select
Committee. amendments in a bill, without an instruction, and amending
a title, is, in terms, confined to committees of the whole
house: but as the rules of select committees have generally
been made, as far as possible, conformable to those of the
house itself, and of committees of the whole house, this
amended practice has been followed by select committees,5
without any exception having been taken to it, and may be
considered as authorized by the usage of the house. And
this practice has been extended to the insertion of money
clauses, pursuant to resolutions of committees of the whole
house, without any special instruction.
Bills reported When the bill is reported from a select committee, it is
Committees. recommitted to a committee of the whole house, unless it be
first recommitted to the same select committee. If, in addi-
tion to reporting the bill, with or without amendments, the
committee desire to inform the house of any matters relating
to the bill, leave is obtained to make a special report, unless
the committee have power to send for persons, papers, and
records, in which case it may make a special report, under
from Select
1 87 Lords' J. 205. 432; 92 Ib.
646; 109 Com. J. 230; 111 Ib. 337;
119 Ib. 99.
2 66 Lords' J. 150. 583.
3 104 Com. J. 253; 106 Ib. 164.
1 Toll Bridges (River Thames)
Bill, 21 July 1876; 230 Hans. Deb.
3rd Ser. 1679.
5 Pier and Harbour Orders Confir-
mation Bill, 1863 ; 118 Com. J. 248.
Government Annuities Bill, 1864;
119 Ib. 255. Municipal Corpora-
tions (Borough Funds) Bill, and Wild
Fowl Protection Bill, 1872; 127 Ib.
169. 342.
6 Electric Telegraphs Bill, 1868 ;
123 Com. J. 350. County Officers
and Courts (Ireland) Bill, 1877; 134
Ib. 301. MS. Minutes of Proceed-
ings.
7 106 Com, J. 393; 107 Ib. 199.
8 97 Ib. 446; 98 Ib. 487; 106 Ib.
239.
9 110 Ib. 236 ; 120 Ib. 386.
COMMITTED TO SELECT COMMITTEES.
579
the Standing Order of the 9th August 1875. If the select
committee should fail to report the bill, the committee may
be revived, and the bill recommitted to it.1
Such had hitherto been the practice in regard to committees Objections to
a committee
on bills: but in 1882, the revival of an ancient procedure of the whole
house.
was introduced. For several years it had become apparent
that new conditions of political life had rendered the con-
sideration of every bill in a committee of the whole house, a
serious obstacle to the legislative and deliberative efficiency of
the House of Commons. Such a committee affords no relief
to the house itself; it is not, indeed, a committee in the
proper sense: it is not a selected body to whom certain
functions are delegated: but is the entire house of six
hundred and fifty members, who are at liberty to move
amendments to every line of a bill, and to speak any number
of times to each amendment. Meanwhile, all the other im-
portant business of the legislature is suspended. Nevertheless,
so long as a comparatively small number took part in dis-
cussing the details of a bill, a committee so constituted was an
effective body. No member was excluded from its delibera-
tions: the utmost publicity was given to its proceedings;
and its resolutions were generally accepted by the house.
But, of late years, discussions in a committee of the whole
house have assumed a more intractable character ; and the
consideration of two or three important bills may occupy
the
greater part of a session. For example, in 1879, the committee
on the Army Discipline and Regulation Bill held twenty-two
sittings : in 1881, the committee on the Irish Land Bill
thirty-nine sittings, and the Prevention of Crime (Ireland)
Bill thirty-one sittings. For bills of the first importance, a
committee of the whole house may be the most fitting tribunal:
but for bills of a secondary and less contentious character,
the house, in 1882, resolved upon the experiment of standing
committees, more representative than a select committee, and
1
1 116 Com. J. 373.
1 p 2
580
COMMITTED TO SELECT COMMITTEES.
Standing
Committees
on law and
trade.
1
Bills to Stand-
ing Com-
mittees.
less obstructive to general legislation than a committee of the
whole house.
And by Standing Orders of the 1st December 1882, bills
relating to law and courts of justice and legal procedure,
and to trade, shipping, and manufactures, may be com-
mitted to a standing committee, consisting of not less than
sixty nor more than eighty members, nominated by the
committee of selection, and otherwise constituted as already
described elsewhere.
When it is intended to commit a bill to a standing com-
mittee, notice is required to be given; and when the motion is
made, a general debate upon the merits or clauses of the bill
will not be permitted, the notice being a mere sequel to the
second reading, equivalent to the commitment of a bill to a
committee of the whole house, or to a select committee, after
the second reading, and altogether unlike the subsequent
committee stage, when a motion is made for the Speaker to
leave the chair.2.
The proceedings of a standing committee are assimilated,
as far as possible, to those of a committee of the whole house.
The notices of amendments are printed and circulated with
the votes. The members address the chair standing; amend-
ments are proposed under the same rules; the minutes of
proceedings are printed daily, with the divisions upon every
question; and the debates are published in the newspapers.
A bill reported from a standing committee is to be pro-
ceeded with as if it had been reported from a committee of
the whole house, and need not, therefore, be recommitted ;
but the Standing Order relating to the consideration of a
bill reported by a committee of the whole house is not to
apply.
When public bills for confirming provisional orders or cer-
tificates of boards or commissions, for the inclosure or drainage
Proceedings
of Standing
Committees.
3
Provisional
order bills.
1 Supra, p. 444 (Committees).
2 Criminal Code (Indictable Of-
fences) Bill, 16th April 1883; Mr.
Speaker's rulings.
3 See supra, p. 445.
$
THIRD READING AND PASSING.
581
of land, for the local government of towns, the construction
of piers and harbours, the regulation of charities, or other
matters, have been opposed by parties locally interested in
particular orders, it has been customary to commit such bills,
so far as they relate to the place concerned, to a select com-
mittee, to be appointed by the committee of selection, in the
same manner as in the case of a private bill. The same
course has also been adopted in the case of other public bills
affecting a particular place.?
The ancient system of ingrossing all bills upon parchment, Discontinu-
after the report, was discontinued in 1849; when both houses ance of in-
grossment.
agreed to substitute bills, printed on vellum, by the Queen's
printer, for the parchment rolls. These arrangements were
confined to public bills during the session of 1849; but on
the 27th July they were extended, in future sessions, to
local, personal and private bills, except as to the printing
of such bills by one printer for both houses. By the
adoption of this system, the old form of question “that this
bill be ingrossed,” which always followed after the report, or
further consideration of report, was dispensed with.
On the third reading, the judgment of the house is ex- Third read-
pressed upon the entire bill, as it stands after all the amend- ing.
ments introduced in committee, and at other stages. Every
amendment may be proposed to the question for now reading
the bill a third time, which has already been described in
reference to the second reading. Sometimes the question for
the third reading has been negatived: but, as previously
stated, such a vote is not fatal to the bill. On the 18th
1 Inclosure Bill (Chigwell), 5th
May 1862; 117 Com. J. 178. Pier
and Harbour Bill (Llandudno and
Rhyl), 12th May 1863. Land Drain-
age (Provisional Orders) Bill (Morden
Carrs), 28th May 1863. Local Go-
vernment Supplemental Bill (Matlock
Bath), 4th May 1863; 118 Ib. 199.
220. 239. Pier and Harbour Bill,
1864 ; 119 Ib. 256; 127 Ib. 291; 133
Ib. 204, &c.
2 Harwich Harbour Bill, 28th May
1863; 118 Com. J. 240. See also
infra, Chapter XXVI. on PRIVATE
BILLS.
3 81 Lords' J. 16. 25. 104 Com. J.
51.
* 104 Com. J. 578. 620.
582
THIRD READING AND PASSING,
April 1853, the question for reading the Combination of
Workmen Bill a third time was negatived: but on the 20th,
another day was appointed for the third reading; and the
bill was subsequently read a third time and passed. In the
Lords, new clauses may be added, and amendments made to
the bill, at this stage; and the same practice formerly pre-
vailed in the Commons; but by a Standing Order of the 21st
July 1856, “no amendments, not being merely verbal, shall
be made to any bill on the third reading;' and since that
time the only amendments admitted have been strictly within
the scope of that order. If material amendments are re-
quired to be made, it is usual to discharge the order for the
third reading, to recommit the bill, and introduce the amend-
ments in committee. In such cases it has been customary
to consider the bill as amended, and to read it a third time,
immediately.
Occasionally, a bill is read a third time, and “further pro-
ceedings thereon” are adjourned to a future day:3 but the
general practice is to follow up the third reading with the
question, " That this bill do pass. This question has some-
times passed in the negative, after all the preceding stages of
the bill have been agreed to:# but though debates and divi-
sions, have occasionally taken place at that stage, it is not
usual to divide upon it; and of late years the question has
gradually fallen into disuse, as formal and superfluous; and if
it be put, in the case of a severely contested bill, no amend-
2
Bill passed.
1 112 Com. J. 210. 377. 380; 114
Ib. 361; 121 Ib. 183. &c.
2 New Zealand Government Act
Amendment Bill, 7th August 1857;
112 Com. J. 384. Stamp Duties Bill,
31st March 1860; 115 Com. J. 174.
3 After the third reading of the
Queen's Degradation Bill in the
House of Lords, 10th Nov. 1820, the
further consideration of the bill was
put off for six months; 53 Lords' J.
762.
4 76 Com. J. 413; 80 Ib. 617; 89
Ib. 497; Tests Abolition (Oxford)
Bill, 1864; 119 Ib. 388.
5 Reform Bill, 1831 ; 86 Com. J.
860. Ecclesiastical Titles Bill, 1851;
106 Ib. 335. Succession Duty Bill,
1853 ; 108 Ib. 692. Bribery Bill,
28th July 1854. Education (Scot-
land) Bill, 12th July 1855; 110 Ib.
372; 117 Ib. 383.
TITLES OF BILLS.
583
2
bill.
ment is permissible. Sometimes a bill is passed nemine
contradicente.
In the Lords, the original title of a bill is amended at any Title of the
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, or
the committee have amended the title. The last question to
be determined is, “That this be the title of the bill," but this
final question is not put by the Speaker, unless it be pro-
posed to amend the title. Amendments may then be offered
to the title, which are generally such as render it conformable
with amendments which may have been made to the bill since
its first introduction. When such amendments are material,
the short title by which the bill is distinguished in the Votes
is also altered. It may be as well to recall to mind in this Temporary
place, that the Standing Order of the Commons, 17th No-
vember 1797, requiring the duration of a temporary law to
be expressed both in the title and in a clause at the end of
the bill, was rescinded on the 24th July 1849, when the fol-
lowing Standing Order was substituted :-
“That the procise duration of every temporary law be expressed in
a distinct clause at the end of the bill." 5
laws.
By Act 48 Geo. III. c. 106, if a bill be in Parliament for
the continuance of any temporary act, and such act expires
before the royal assent is given to the bill, the act to be con-
tinued does not lapse in the interval.
Throughout all these stages and proceedings, the bill itself The bill not
continues in the custody of the clerk, or other officers of the otherwise
house, and no alteration whatever is permitted to be made in than by
amendment.
to be altered
1 Mr. Speaker's ruling 28th Feb.
1881; 258 Hans. Deb. 3rd Ser. 1832.
2 Mr. Speaker's Retirement Bill,
1857; 112 Com. J. 110.
3 104 Com. J. 581; 105 Ib. 338;
117 Ib. 378.
4 109 Ib. 316; 111 Ib. 309 ; 112
Ib. 384 ; 116 Ib. 373. 392 ; 135 Ib.
48. 323.
5 104 Ib. 558.
584
AGREEMENT OF BOTH HOUSES.
Communi.
cated from
Lords to
Commons.
it, without the express authority of the house or a committee,
in the form of an amendment regularly put from the chair,
and recorded by the clerk at the table, or by the chairman in
committee,
The next step is to communicate the bill to the other house.
It has been already stated elsewhere that the Lords ordinarily
send their bills to the Commons by the clerk of the Parlia-
ments, or a clerk at the table. When the bill has originated
in the Lords," a message is ordered to be sent to the House
of Commons to carry down the said bill, and desire their con-
currence.” If the bill has been sent up from the Commons,
and has been agreed to without amendment, the Lords send
a message “to acquaint them, that the Lords have agreed to
the said bill without any amendment," but do not return the
bill : but if they have made amendments, they return the
bill with a message, “that the Lords have agreed to the same
with some amendments, to which their lordships desire their
concurrence." 3
The Commons send up their bills to the Lords by their
clerk, or by one of the clerks at the table, who delivers it at
the bar, to one of the clerks at the table of that house. The
form of message adopted by the Commons in sending bills to
the upper house is similar, mutatis mutandis, to that used by
the House of Lords. On the 4th August 1870, the Lords
made a new Standing Order, "that when a bill brought from
the House of Commons shall have remained on the table of
this house for twelve sitting days, without any lord giving
notice of the second reading thereof, such bill shall not any
longer appear in the minutes, and shall not be further pro-
ceeded with, in the same session. And in 1873, the Public
Worship Facilities Bill, brought from the Commons, having
come under the operation of this order, was accordingly re-
1
From
Commons to
Lords.
i See Debate, 3rd June 1782, as to
alterations alleged to have been made
without authority by Mr. Burke,
Paymaster of the Forces, in the in-
grossment of a bill for regulating
the pay office. 23 Parl. Hist. 989.
3 Wraxall's Mem. 431.
? See supra, p. 489.
3 74 Lords' J. 382.
103 Ib. 621.
1
AGREEMENT OF BOTH HOUSES.
585
moved from the minutes. But on the 20th May, the order
was suspended in respect of that bill, which was allowed to
proceed. Again, in 1870, the Common Law Procedure Bill,
having fallen under the operation of this order, was revived on
the 26th April, with a slight alteration in the title. Every
bill received from the Lords, when passed, with or without
amendments, is returned to them by the Commons, their lord-
ships' house being the place of custody for bills, prior to the
royal assent:
If a bill or clause be carried to the other house by mistake, Bills sent by
mistake.
or if any other error be discovered, a message is sent to have
the bill returned, or the clause expunged, or the error other-
wise rectified by the proper officer.? In 1844, an amendment
made by the Lords, in the Merchant Seamen's Bill, was
omitted from the paper of amendments returned with the
bill, to the Commons. After all the amendments received
by the Commons had been agreed to, the Lords acquainted
the Commons, at a conference, that another amendment had
been omitted, by mistake, and desired their concurrence : but
the Speaker having stated that, in his opinion, it would esta-
blish a most inconvenient and dangerous precedent if they
entertained the amendment, the house gave reasons, at a
1 In sending bills from the Com- it passed not with a general consent
mons to the Lords, it was formerly of the house, because it passed not
the custom to wait until several had graced with a greater number, and
passed, when they were carried up left it to the consideration of the
together, and delivered at the bar of house to send it back in such sort as
the Lords in the following order : it was fit.”—D'Ewes, 447. Order
1. Lords' bills; 2. Commons' bills and Course of Passing Bills in Par-
amended by the Lords ; 3. Public liament, 4to. 1641.
bills in order, according to their im- 2 1 Com. J. 132; 75 Ib. 447; 78 Ib.
portance; and, 4. Private bills, in 317; SO Ib. 512; 91 Ib. 639. 758;
such order as the Speaker appointed. 92 Ib. 572 ; 609. Lunatic Asylums
It was then usual for 30 or 40 mem- Bill; 100 Ib. 504. Poor Employ-
bers to accompany the member who ment (Ireland) Bill; 101 Ib. 1277.
had charge of the bills. On the 17th Cruelty to Animals Bill, 103 Ib. 736.
March 1588, a private bill was sent Burial Acts Amendment Bill, 1857;
up with only four or five members, 112 Ib. 420. Hereford and Brecon
and the Lords took exception to the Railway Bill, 1859; 114 Ib. 241 ;
smallness of the number, and said, 119 Ib. 370. 374.
" that they had cause to doubt that
586
AGREEMENT OF BOTH HOUSES.
of Lords'
conference, for not taking the amendment into consideration,
and the Lords did not insist upon it.
Consideration By a Standing Order of the 1.9th July 1854, Lords' amend-
amendments. ments to public bills are appointed to be considered on a
future day, unless the house shall order them to be con-
sidered forth with ; and, accordingly, whenever expedition is
necessary, an order that the amendments be considered forth-
with, precedes the consideration of them;? but the member
in charge of the bill is bound to satisfy the house that such
expedition is necessary;' and if it be objected that the amend-
ments have not been printed, the consideration of them will
not be proceeded with. Whenever the amendments are more
than verbal, they are ordered to be printed separately; or, in
some cases, the bill, as amended by the Lords, is ordered to
be printed. When the order of the day is read for consider-
ing Lords' amendments to a bill, a question is put, “ that the
Lords' amendments be now taken into consideration," to
which an amendment may be moved, to leave out “now,
and add "this day three months;"7 or to leave out now
taken into consideration,” and add “laid aside :"8 but gene-
rally the house at once proceeds to the consideration of the
amendments, which, after being read a second time, are seve-
rally agreed to, or otherwise disposed of. Where the Lords
have added a clause, leaving a blank for a penalty, the house
has gone into committee on the clause, and filled up the
blank. When the question for agreeing to an amendment
is before the house, an amendment to insert "not" is in-
admissible, as that question may be voted against, and nega-
tived, when put from the chair.10 In considering Lords '
1 99 Com. J. 637, 638. 644. 76
Hans. Deb. 3rd Ser. 1994.
2 110 Com. J. 458. 464, &c. 135
Hans. Deb. 3rd Ser. 1411.
3 Speaker's ruling, 28th June
1875; 225 Hans. Deb. 3rd Ser. 650.
4 235 Hans. Deb. 3rd Ser. 1742.
5 Mr. Speaker Brand's Note-Book,
11th July 1876.
6 111 Com. J.312. 324; 131 Ib. 365.
7 113 Ib. 349.
8 97 Ib. 278; 99 Ib.572; 108 Ib.393.
9 123 Ib. 345 ; 125 Ib. 398; 126
Ib. 420.
10 12th Aug. 1876 ; 231 Hans. Deb.
1176.
$
AGREEMENT OF BOTH HOUSES.
587
.
amendments, the debate must be confined to such amend-
ments, and may not extend to the general merits of the bill.
If one house agree to a bill passed by the other, without Amendments
any amendment, no further discussion or question can arise agreed to or
upon it; but the bill is ready to be put into the commission,
for receiving the royal assent. If a bill be returned from
one house to another with amendments, these amendments
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 which the other
house agrees. Occasionally, this interchange of amend-
ments is carried even further, and one house agrees to
amendments with amendments, to which the other house
agrees with amendments; to which, also, the first house in its Consequential
amendments.
turn, agrees. A Lords' amendment has been divided, and a
separate question put upon each part of it. Sometimes one
house does not insist upon its amendments, but makes other
amendments.5 But it is a rule, that neither house may,
at this time, leave out or otherwise amend anything which
they have already passed themselves; unless such amend-
ment be immediately consequent upon amendments of the
other house, which have been agreed to, and are necessary for
carrying them into effect. And if an amendment be pro-
posed to a Lords' amendment, not consequent on, or relevant
to, such amendment, the question will not be put from the
chair. In 1678, it was stated by the Commons at a con-
ference, “ that it is contrary to the constant method and
proceedings in Parliament, to strike out anything in a bill
which hath been fully agreed and passed by both houses;”?
and in allowing consequential amendments, either in the
1 241 Hans. Deb. 846. 1059.
2 90 Com. J. 575.
3 111 Ib. 373; 112 Ib. 416; 118
Ib. 381. 412 ; 125 Ib. 384 ; 127 Ib.
158. 413; 128 Ib. 128. 357.
4 Irish Church Bill, 1869; 124 Ib.
332.
5 125 Ib. 403.
6 115 Ib. 494.
7 9 Ib. 547; and see also 1 Ib.
388.
588
AMENDMENTS AGREED TO.
1
2
body of the bill, or in the amendments, the spirit of this
rule is still maintained. So binding, indeed, has it been
held, that in 1850, a serious oversight, as to the commence-
ment of the act, having been discovered in the Pirates' Head
Money Bill, before the Lords' amendments had been agreed
to, no attempt was made to correct it by way of amendment,
but a separate act was passed for the purpose. The title of a
bill has been amended, to make it conform to amendments
made by the Lords to the body of the bill. In some cases
the Lords have left out clauses or words, to which amendments
the Commons have disagreed: but on restoring such clauses
or words have, at the same time, proposed to amend them.
Where the Lords have made amendments to a bill which
appear to affect the privileges of the Commons, in regard to
matters of aid or supply, yet are not such as to render it
necessary to lay the bill aside, the amendments are some-
times agreed to with a special entry in the Journal, explaining
the grounds of such agreement. These several agreements
and amendments are communicated by one house to the
other, with appropriate messages. An amendment made by
one house to an amendment made by the other, should be
relevant to the same subject-matter. A departure from this
Amendments
agreed to,
with special
entries.
i Municipal Corporations (Ireland)
Bills, 1836, 1838 and 1840; 91 Com.
J. 592; 93 Ib. 829; 95 Ib. 604; 97
Ib. 577. 597. Parliamentary Voters
(Ireland) Bill, and County Courts
Extension Bill, 1850; 105 Ib. 592.
596. 631. Patent Law Amendment
Bill, 1852; 107 Ib. 358. Oxford
University Bill, 1854; 135 Hans.
Dob. 3rd Ser. 828. Dulwich Col-
lege Bill, 1857; 112 Com. J. 420.
Poor Law Boards (Payment of
Debts) Bill, 1859. In this case the
Commons disagreed to a clause in-
serted by the Lords, on the ground
of privilege, but inadvertently agreed
to a subsequent amendment, which
was consequent on that clause. The
Lords did not insist upon their clause,
and corrected the latter part of the
bill by a consequential amendment;
114 Com. J. 375. Other examples
will be found ; 115 Ib. 394. 491. 495.
501; 117 Ib. 344. 368 ; 121 Ib. 472;
131 Ib. 268. 422.
2 105 Ib. 471.
3 109 Ib. 486; Votes, 1868, p. 127.
4 Municipal Corporations (Ireland)
,
Bill, 4th August 1838 ; 93 Com. J.
824, 825, 826; 118 Ib. 326. 365; 125
Ib. 346 ; 127 Ib. 305. 343 ; 128 Ib.
346. 356.
5 112 Ib. 392. 418; 120 Ib. 449 ;
131 Ib. 321, &c. See also infra,
Chap. XXI. on SUPPLY.
!
AMENDMENTS DISAGREED TO.
589
rule was permitted, under peculiar circumstances, in the case
of the Bolton Police Bill, 1839 : but the Lords agreed to it
with a special entry in the Journal, that it was not to be
drawn into a precedent; and a protest was signed by five
very influential peers against agreeing to the amendment,
because it had “no relation with the subject matter of the
amendment made by this house; and is inconsistent with the
usual course and practice in relation to the amendment of
bills, established between the two houses of Parliament."
Where an amendment made by the Lords has been agreed to,
by mistake, with an amendment, the proceedings have been
ordered to be null and void, and the amendment disagreed to.2
When it is determined to disagree to amendments made When amend-
by the other house,-1. The bill may be laid aside; 2. The agreed to.
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 message may be sent to communicate
reasons for disagreeing to the amendments; or, 4. A con- Conferences.
ference may be desired with the other house. The two first
modes of proceeding are only resorted to when the privileges
of the house are infringed by the bill, or when the ultimate
agreement of the two houses is hopeless ; 3 the latter are pre-
ferred whenever there is a reasonable prospect of mutual
agreement and compromise. Sometimes when an amend-
ment affects the privileges of the house, it is disagreed to, the
only reason offered to the Lords being that it would interfere
with the public revenue, or affect the levy and application of
rates, or alter the area of taxation, or otherwise infringe the
privileges of the house; and it is added that the Commons
do not deem it necessary to offer any further reason, hoping
the above reason may be sufficient. This hint of privilege
1 71 Lords' J. 643.
2 Ware, Hadham, and Bunting-
ford Railway, 1858; 113 Com. J.
264.
3 110 Com. J. 417.
4 Naval Prize Balance Bill, 1850;
Tramways (Ireland) Bill, 1860 ;
Juries Bill, 1862 ; Peace Preserva-
tion (Ireland) Bill, 1870; Intoxicat-
ing Liquors Licences Suspension
Bill, 1871; 126 Com. J. 432; 208
Hans. Deb. 3rd Ser. 1736.
590
AMENDMENTS DISAGREED TO.
When house
agrees or does
is generally accepted by the Lords, and the amendment is
not insisted upon. The practice of Parliament in regard to
conferences has been fully explained elsewhere, and it would
be unnecessary and irksome to describe, at length, every
variety of procedure which may arise in the settlement of
amendments to bills by conference. It will be sufficient to
state generally, that when a bill has been returned by either
house to the other, with amendments which are disagreed to,
a message is sent, or 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 reconcile
their differences, and, if possible, by mutual concessions to
arrive at an ultimate agreement. If such agreement cannot
be secured, the bill is lost for the session.
When one house agrees to amendments made by the
not insist, no other, or does not insist upon its own amendments, or upon
its disagreement to amendments, no reasons are offered; the
object of reasons being to persuade the other house, and not
to justify a resolution of its own. Thus, on the 21st July
1858, the Lords having made an amendment to the Oaths
Bill, upon which they insisted, after reasons had been offered
against it, at a conference: but having in the meantime
passed a separate bill virtually to effect the same object-
the admission of Jews to Parliament,--the Commons, in
order to record the true circumstances of the case, without
departing from the usage of Parliament, agreed to a reso-
lution, " That this house does not consider it necessary to
examine the reasons offered by the Lords for insisting upon
the exclusion of Jews from Parliament, as, by a bill of the
present session, their lordships have provided means for the
admission of persons professing the Jewish religion, to seats
reasons are
offered.
1 Supra, p. 490, &c.
2 All the minute details of practice
may be traced by referring to the
head “ Conferences," in the last
three Commons' General Journal
Indexes ; but more particularly by
following the proceedings upon the
Municipal Corporations Bill in 1836;
the Land Law (Ireland) Bill, 1881;
and the Arrears of Rent (Ireland)
Bill, 1882.
3 See 4 Hatsell, 49.
INDORSEMENTS ON BILLS.
591
of bills.
in the legislature.” After which a message was sent to
acquaint the Lords that the house did not insist upon their
disagreement, without any reasons."
It will only be necessary to add, that it is irregular to Conference,
by whom
demand a conference with the house which is in possession desired.
of a bill; which rule was thus affirmed by the Commons,
13th March 1575: “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 that 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 reasons
and amendments, to the house with whom the conference
was desired.
The official record of the assent of one house to bills Indorsement
passed, or amendments made by the other, is by indorsement
of the bill in old Norman French. Thus, when a bill is
passed by the Commons, the clerk of the house writes upon
the top of it, “Soit baillé aux seigneurs." When the Lords
make amendments, it is returned with an indorsement, signed
by the clerk of the Parliaments, “A ceste bille avesque des
amendemens les seigneurs sont assentus." When it is sent back
with these amendments agreed to, the clerk of the House
of Commons writes, “A ces amendemens les communes sont
assentus ;” and bills are communicated by the Lords to
the Commons with similar indorsements, mutatis mutandis.
When amendments are disagreed to, such disagreement is not
indorsed upon the bill, but forms the subject of a message to
communicate reasons or to demand a conference.
If amendments made by the Lords are agreed to by the
Commons, the latter return the bill with the message sig-
nifying their agreement. But if amendments made by the
1 113 Com. J. 332.
2 Ib. 114. See supra, p. 494.
3 In his absence the clerk assistant
is authorized to indorse bills.
592
ROYAL ASSENT.
Royal assent.
Commons are agreed to by the Lords, their lordships send a
message, but retain the bill for the royal assent.
When bills have been finally agreed to by both houses,
they only await the royal assent to give them, as Lord Hale
says, “ the complement and perfection of a law;" 1 and from
that sanction they cannot legally be withheld. So binding
is this principle, that doubts have arisen whether a Commons'
bill may be read a third time and passed by the Lords,
without amendment, after a commission has been submitted
to the Queen, and before it is brought down to Parliament.
For this reason, such third readings have sometimes been
postponed: but this has not been an invariable practice.3
On the 3rd June 1856, the Commons having adjourned, for
want of forty members, before a commission was received,
another commission was appointed for the 5th, and in the
meantime intimation was given that no bills should be re-
turned to the Lords agreed to without amendment, or with
Lords' amendments agreed to, until after the commission,
lest it should become necessary to alter the commission, so
as to embrace them. For the purpose of obtaining the
royal assent, bills remain in the custody of the clerk of the
Parliaments, except money bills, which are returned to the
Commons before the royal assent is given; and when several
have accumulated, 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 Par-
liaments then prepares two lists of the titles of all the bills :
one of these copies being for the clerk of the Crown to
insert in the commission, and the other for her Majesty's
inspection, before she signs the commission. Money bills
1 Jurisd. of Lords, c. 2.
2 See 2 Hatsell, 339. 13 Lords'
J. 756. 2 Burnet's Own Time, 274.
3 Lord Campbell's Lives of the Chan-
cellors, 354.
3 See Whale Fisheries Bill, 10th
July 1789; 38 Lords' J. 497.
4 The forms of commissions for
declaring the royal assent, when
Parliament has been opened by the
Queen, and by commission, are pre-
scribed by the rules made by her
ROYAL ASSENT BY COMMISSION.
593
are placed first in these lists, which are followed by public
bills, local and personal, and private bills. When the Queen
comes in person to give her royal assent, the clerk of the Par-
liaments waits upon her Majesty in the robing-room, before
she enters the house, reads a list of the bills, and receives her
commands upon them.
It was formerly a matter of doubt whether a session was Session is not
not concluded by the royal assent being signified to a bill. concluded by
So far back as 1554, the House of Commons declared against
this construction of law, and yet in 1625, it was thought
necessary to pass an act to declare that the session should not
be determined by the royal assent being given to that and
certain other acts ;3 and again in 1670, a clause to the same
effect was inserted in an act:4 but since that time, without
any express enactment, the law has become defined by usage,
and the royal assent is now given to every bill, shortly after
it has been agreed to by both houses, without any interruption
of the session
During the progress of a session, the royal assent is gene- By commis-
sion,
rally given by a commission issued under the great seal for
that purpose. The first instance in which the royal assent Origin of
appears to have been given by commission was in the 33rd of giving royal
Henry VIII., although proceedings very similar had occurred commission.
in the 23rd 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 accom-
plices, 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 pre-
Majesty by Order in Council, pur-
suant to the Crown Office Act, 1877.
Parl. Papers, 1878 (87). These com-
missions now have the wafer great
seal attached, instead of the old wax
seal.
| Mr. Birch's Ev. No.413, of 1843.
21 Com. J. 38.
3 1 Car. I. c. 7.
4 22 & 23 Car. II. c. 1, s. 9.
5 33 Hen. VIII. c. 21. Stat. of
the Realm, vol. i. p. lxxiii.
6 1 Lords' J. 198.
P.
Q Q
594
ROYAL ASSENT BY COMMISSION.
vent 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
though the king's person had been there personally present, and had
assented openly and publickly to the 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 not-
withstanding,"
Form of com-
In strict compliance with the words of this statute, the
mission.
commission is always " by the Queen herself, signed with
her own hand,” and attested by the clerk of the Crown in
Chancery. But on the 7th March 1702, William III. signed, ,
with a stamp, the commission assenting to the Abjuration
Act.2 And towards the latter end of the reign of George IV.,
it became painful to him to sign any instrument with his
own hand, and he was enabled, by statute, to appoint one
or more person or persons, with full power and authority to
each of them to affix, in his Majesty's presence, and by his
Majesty's command, given by word of mouth, his Majesty's
royal signature, by means of a stamp to be prepared for
that purpose ;3 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.
Regency Bill, On the 5th February 1811, the Regency Bill received the
royal assent by commission, under peculiar circumstances.
The king was incapable of exercising any personal autho-
rity: but the great seal was nevertheless affixed to a com-
mission for giving the royal assent to that bill. When the
1811,
1 Stat. of the Realm, vol. i. p.
lxxiv.
2 5 Macaulay, Hist. 308.
3 11 Geo. IV. c. 23.
+ 62 Lords' J. 732.
ROYAL ASSENT BY COMMISSION,
595
Commons had been summoned to the bar of the House of
Lords by the lords commissioners, the lord chancellor said,
"My lords and gentlemen, by the commands, and by virtue
of the powers and authority to us given by the said commis-
sion, we do declare and notify his Majesty's royal assent to
the act in the said commission mentioned, and the clerks are
required to pass the same in the usual form and words;">
after which the royal assent was signified by the clerk in the
usual words, “Le roy le veult."
The form in which the royal assent is signified by com- Form of royal
mission is as follows:- Three or more of the lords commis-
assent by
commission.
sioners, seated on a form between the throne and the wool-
sack in the House of 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; and is so
entered in the Lords' Journal. A money bill being carried
up by the clerk of the House of Commons, is presented by
the Speaker, and receives the royal assent before all other
bills. The assent is pronounced in the words, “ La reyne
remercie ses bons sujets, accepte leur benevolence, 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
desiré ;” upon a petition demanding a right, whether public
or private, “ Soit droit fait comme il est desiré.” In an act
of grace or pardon which has the royal assent before it is
agreed to by the two houses, the ancient form of assent
was, “Les prelats, seigneurs, et communes, en ce present parl-
ment assemblées, au nom de touts vos autres sujets, remercient
1 48 Lords' J. 70. 18 Hans. Deb.
1124. See also Debates, 27th Feb.
1804 (Commons); 1st and 9th March
1804 (Lords). 1 Twiss, Life of Eldon,
2nd edit. 416. 418.
Q Q 2
596
ROYAL ASSENT IN PERSON.
refused.
Use of the
Norman
French.
tres humblement vostre majesté, et pricnt à Dieu tous donner
en santé bonne vie et longue;"I but according to more modern
practice, the royal assent has been signified in the usual
form, as to a public bill. The form of words used to ex-
Royal assent press a denial of the royal assent would be, "La reyne
s'avisera.”'3 The necessity of refusing the royal assent is
removed by the strict observance of the constitutional prin-
ciple, that the Crown has no will but that of its ministers,
who only continue 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.4
During the Commonwealth, the lord protector gave his
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 1706, the Lords passed
a bill “for abolishing the use of the French tongue in all
proceedings 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. Until the latter part of the reign of
Edward III., all parliamentary proceedings were conducted
in French, and the use of English was exceedingly rare until
the reign of Henry VI. All the statutes were then enrolled
in French or Latin, but the royal assent was occasionally
given in English. Since the reign of Henry VII., all other
proceedings have been in the English language, but the old
form of royal assent has still been retained.5
Given by the
The royal assent is rarely given in person, except at the
Queen in
close of a session, when the Queen attends to prorogue the
Parliament, and then she signifies her assent to such bills as
person.
; D'Ewes, Journ. 35.
2 20 Lords' J. 546 ; 27 Ib. 137.
3 1 Ib. 162; 13 Ib. 394 (with
reasons); 18 Ib. 506.
#18 Ib. 506.
5 See Pref, to Statutes of the Realm,
for a history of the progress of the
English language in parliamentary
proceedings. See also Rep. of Stat.
Law Commrs. 1835 (406), p. 16.
!
ROYAL ISSENT IN PERSON,
597
may have passed since the last commission was issued: but
bills for making provision for the honour and dignity of the
Crown, such as bills for settling the civil lists, have generally
been assented to by the sovereign 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 described. A gentle inclination, indicative
of assent, is given by her Majesty, who has, however, already
given her commands to the clerk of the Parliaments, as already
stated.
In 1876, her Majesty being about to visit the continent Given when
during the session, it became a question whether she could absent from
give her royal assent to bills, by commission, during her ab- the realm.
sence from the realm. No case could be found in which the
royal assent had been so given: but in the 2nd Will. & Mary,
“ for the exercise of the Government by his Majesty during
his Majesty's absence” (in Ireland), there was a proviso that
“nothing should be taken to exclude or debar his Majesty,
during his absence from the realm, from the exercise of any
act of royal power, but that every such act should be as good
and effectual as if his Majesty was within this realm.” And
on the 7th August 1845, it was stated by the Lord Chan-
cellor (Lyndhurst), that it was unnecessary to appoint Lords
Justices, and that “any act which she could do as Sovereign
the Queen
1 See Civil List Bills, 1820,75 Com.
J. 258; 1831, 86 Ib. 517; 1838, 93 Ib.
227. On the 2nd of August 1831, the
Speaker, after a short speech in rela-
tion to the bill for supporting the royal
dignity of her Majesty Queen Ade-
laide, delivered it to the clerk, when
it received the royal assent in the
usual form; but the Queen, attended
by one of the ladies of her bed-
chamber, and her maids of honour,
was present, and sat in a chair placed
on a platform raised for that purpose
between the archbishops' bench and
the bishops' door, and after the royal
assent was pronounced, her Majesty
stood up and made three courtesies,
one to the king, one to the Lords, and
one to the Commons.- 63 Lords' J.
885, and Index to that volume, p.
1157. The precedent here followed
was that of George III. and Queen
Charlotte : Earl Grey's Corr. with
Will. IV., i. 314.
598
COMMENCEMENT OF ACT.
rolls.
!
would have as much validity and effect, if done on the con-
tinent of Europe, as if done in her own dominions.” And
in 1876, the Lord Chancellor (Cairns) gave it as his clear
opinion (privately) that her Majesty would be able to give
the royal assent to bills while absent from the realm ; and
accordingly her Majesty left England at the latter end of
March. During her absence, the royal assent was signified
to several bills on the 7th April.
Ingrossment When acts are passed, the original ingrossment rolls (or,
since 1849, the authenticated vellum prints) 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 or prints may also be seen
when necessary, and copies taken, on the payment of certain
fees.
Commence- All Acts of Parliament, of which the commencement was
not specifically enacted, were formerly held, in law, to take
effect from the first day of the session : but the clerk or
clerk assistant of the Parliaments is now required by act
33 Geo. III. c. 13, to indorse, in English, on every Act of
Parliament, immediately after the title, the day, month, and
year when the same shall have passed and received the royal
assent, which indorsement is to be a part of the act, and to
be the date of its commencement, when no other commence-
ment is provided in the act itself.
The forms commonly observed by both houses, in the
binding in the
progress of
passing of bills, having been explained, it must be under-
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
ment of Act.
Forms not
bills.
1 82 Hans. Deb. 3rd Ser. 1515.
COMMENCEMENT OF ACT.
599
discovered during the progress of a bill, the house in which
it originated will either order the bill to be withdrawn, or
will annul the informal proceeding itself, and all subsequent
proceedings :1 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 compliance with
its own orders and practice.
In the ordinary progress of a bill, the proceedings either Bills passed
follow from day to day, or some days are allowed to inter- expedition.
vene between each stage subsequent to the first reading; yet
when any sudden occasion or pressing emergency has arisen,
bills have frequently been passed through all their stages in
the same day, and even by both houses. And, in some ex-
traordinary cases, the royal assent has also been signified on
the same day. This unusual expedition is commonly called
with unusual
1 106 Com. J. 82, 209; 108 Ib. 578;
134 Ib. 300.
2 58 Ib. 645, 646; 98 Ib. 491;
103 Ib. 770; 107 Ib. 77. 363. 378;
108 Ib. 21; 110 Ib. 294 ; 121 Ib. .
239 (Forsyth's Indemnity Bill, 1866).
Lord Byron's Indemnity Bill, 1880,
135 Ib. 306; 254 Hans. Deb. 3rd
Ser. 646, &c.
3 Bill for recruiting the land forces,
3rd April 1744; 24 Com.J. 636—639;
Seamen's Additional Pay Bill, 9th
May 1797; 52 Ib. 555. 657, 658.
Habeas Corpus Suspension (Ireland)
Bill, 17th February 1866 ; 121 Ib.
88. In this latter case, the bill was
passed by both houses on a Saturday,
and the Queen being at Osborne,
the commission, with the bill an-
nexed, was forwarded to her Majesty
in the morning, and the agreement
of both houses having been commu-
nicated later in the day by telegraph,
her Majesty signed the commission
and despatched it to Westminster.
The messenger, however, was de-
layed on the railway, and the royal
assent was not given until a quarter
before one on Sunday morning. At
the close of the Session, in 1871, the
Queen being at Balmoral, the tele-
graph was again used for expediting
the prorogation. The commission
containing the titles of all the bills
to which the agreeinent of both
houses was expected, having been
despatched to Scotland, such agree-
ment was afterwards communicated
by telegraph ; and the commission
was there duly signed by her Ma-
jesty, and returned by messenger to
Westminster. The same expedient
was adopted in April 1876, while the
Queen was in Germany, a day being
thus saved in obtaining the royal
assent to the Mutiny Bills, before
the Easter adjournment. On the
9th April 1883, the Explosive Sub-
stances Bill was passed through all
its stages, in both houses, and re-
ceived the royal assent on the fol-
lowing day at twelve o'clock. The
bill was sent up to the Lords before
seven o'clock; but their lordships
were engaged, until a late hour,
upon a debate relating to India.
600
INFORMALITIES,
-
“a suspension of the Standing Orders," and in the Lords is
at variance with a distinct order against the passing of a bill
through more than one stage in a day, and which is for-
mally dispensed with on such Occasions.? On the 17th
February 1866, notice had been given on the previous day,
to suspend the Standing Orders, in respect of the Habeas
Corpus Suspension (Ireland) Bill: but on the 9th April 1883,
no such notice having been given in regard to the Explosive
Substances Bill, the house resolved, “That it was essentially
necessary for the public safety that the bill should be pro-
ceeded in with all possible despatch, and that notwithstanding
the Standing Orders, Nos. 35 and 49, the Lord Chancellor
ought forthwith to put the question upon every stage of the
said bill, on which this house shall think it necessary for the
public safety to proceed thereon ;” and immediately passed
the bill through all its stages. But in the Commons there
are no orders which forbid the passing of public bills with
unusual expedition; and it is nothing more than an occa-
sional departure from the usage of Parliament, justified by
the circumstances of the particular case. From the urgent
necessity of such occasions, the bills so passed are often of
great importance in themselves, and may require more
deliberation than bills passed with the ordinary delays and
intervals. On this ground the practice may appear objection-
able: 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. In less important bills two or more stages are
occasionally passed in the same day: but never without the
general assent of the house.
But, though a departure from the usage of Parliament,
Lords' Min. 333. In the Commons, and ordered to be printed.
printed copies of the draft bill had 1 Lords' S. O. Nos. 35. 49.
been delivered in the Vote Office at 2 80 Lords' J. 662 ; 98 Ib. 41.
twelve o'clock, and the complete bill,
3 Lords' Min. 333.
directly it had been read a first time, 4 184 Hans. Deb. 3rd Ser. 2107.
Informalities
!
INFORMALITIES.
601
ment of both
during the progress of à bill, will not vitiate a statute, in- in the agree-
formalities in the final agreement of both houses have been houses.
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 modern cases Parlia-
ment has thought it advisable to correct, by law, irregularities
of this description. It has already been explained that,
when one house has made amendments 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, however 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 both houses. If,
therefore, a bill should receive the royal assent, without the
amendments made by one house having been communicated
to the other and agreed to, serious doubts naturally arise
concerning the effect of this omission; since the assent of
the Queen, Lords, and Commons is essential to the validity
of an act. 1. Will the royal assent cure all prior irregu-
larities, in the same way as the passing of a bill in the Lords
would preclude inquiry as to informalities in any previous
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 33rd Pylking-
Henry VI. In the session commencing 29th April 1450, the 33 Hen. 6.
Commons had passed a bill requiring John Pylkington to
appear, on a charge of rape, “by the feast of Pentecost
then next ensuing.". It does not appear distinctly whether
the bill was even brought into the Commons before that day
in the year 1450: but it certainly was not agreed to by the
Lords until afterwards. By the law of Parliament then
1 Year Books, 33 Hen. VI. Parl. Rep. No. 413, of 1843.
ton's case,
602
INFORMALITIES.
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 Pentecost, 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 Illing-
worth 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 Books; and the evidence
respecting the dates was too imperfect to justify more than
hypothetical opinions. Fortescue, C. J., 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, peradventure, the matter
ought to wait until the next Parliament, then we can be certified by
them of the certainty of the matter: but, notwithstanding, we will be
advised what shall be done."
Factories Bill.
In 1829, a bill " to amend the law relating to the employ-
ment of children in factories,” passed the Commons, and was
agreed to by the Lords, with an amendment: but instead of
being returned to the Commons, it 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 1 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."
1 10 Geo. IV. c. 63.
.
INFORMALITIES.
603
ters' Widows'
In 1843, the Schoolmasters' Widows' Fund (Scotland) Bill Schoolmas-
was returned to the Commons with amendments; but, before Fund Bill.
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 amendemens 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.1
It is a curious fact, in connection with an informality Imperfect in-
of this character, on the face of a bill, that a commission dorsement.
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 informality 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,
except from the Journals, that the amendment had 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 the indorsement, the
bill should be returned to the house whence it was received ;
as, on the 8th March 1580, 23 Eliz., when a schedule was
returned to the Commons and the indorsement amended
there; because “soit baillé aux seigneurs ” had been omitted,
and the Lords had therefore no warrant to proceed.2
Having noticed the effect of informalities in the consent Informalities
in royal
of both houses to a bill, the last point that requires any assent.
observation is the consequence of a defect, or informality,
in the commission, or royal assent. On the 27th January
1546, when King Henry VIII. was on his death-bed, the
lord chancellor brought down a commission under the sign
? 6 & 7 Vict. c. lxxxvi. (local and
personal).
2 D'Ewes, 303. 1 Com. J. 132.
Order and Course of Passing Bills in
Parliament, 4to. 1641.
604
INFORMALITIES.
Duke of
Norfolk's
attainder.
Declared void.
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 Norfolk, which had been passed,
with indecent haste, through 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 VI. 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 high steward, for the trial of the Duke of
Northumberland.
The political causes which restored him to favour, will
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 effect," 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
also the saide commissyon was not signed with his hignes hande, but
with his stampe putt thereunto in the nether parte of the writing of
the said commissyon, and not in the upper parte of the said commis-
syon, as his hignes was accustomed to doo; nor that it appereth of
any recorde that the saide commissyoners did give his royall consent
to the bill aforesaide; therefore all that was done by virtue of the
said commissỹon was clerelie voyde in the lawe, and made not the
same bill to take effecte, or to be an Acte of Parlyament,” but it
remayneth in verie dede as no Acte of Parlyament, but as a bill
onelie exhibited in the saide Parlyament, and onelie assented unto by the
saide lordes and coñons, and not by the saide late king."
1
The same act declared,
" That the lawe of this realme is and alwaies 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 presence,
being personallie in the higher howse of Parlyament, or by his letters
patents under his great seale, assigned with his hande, and declared
and notified in his absence to the lords spiritual and temporal, and
the Coñons, assembled together in the higher howse, according to a
statute made in the 33rd yere of the reigne of the saide late King
Henry VIII.”
1 1 Mary, No. 27; Introduction to Statutes of Rec. Com. p. 75.
INFORMALITIES.
605
of titles.
1
In 1809, the titles of two bills relating to the town of Transposition
Worthing were transposed, and the royal assent signified to
both, so incorrectly indorsed, without further notice. But,
in 1821, the titles of two local acts had been, by a similar
error, transposed in the indorsement when the bills received
the royal assent. Each act, consequently, had been passed
with the title belonging to the other; and the mistake was
corrected by Act of Parliament.
In 1844, there were two Eastern Counties Railway Bills Royal assent
in Parliament. One had passed through all its stages
, and more than key
the other was still pending in the House of Lords, when on
the 10th May the royal assent was given, by mistake, to the
latter, instead of to the former. On the discovery of the
error, an act was passed by which it was enacted that when
the former act shall have received the royal assent, it shall be
as valid and effectual from the 10th May, as if it had been
properly inserted in the commission, and had received the
royal assent on that day; and that the other bill shall be
in the same state as if its title had not been inserted in the
commission, and shall not be deemed to have received the
royal assent.
2
11 & 2 Geo. IV. c. xcy. (local and
personal).
2 7 Vict. c. xix. (local and per-
sonal).
606
ANCIENT MODE OF PETITIONING.
CHAPTER XIX.
ANCIENT MODE OF PETITIONING PARLIAMENT. FORM AND CHARACTER
OF MODERN PETITIONS ; PRACTICE OF BOTH HOUSES IN RECEIVING
THEM.
The people THE various communications between the several branches
communicate
with Par- of the legislature which have been described in the last
liament by
petition.
three chapters, lead to the consideration of petitions, by
which the people are brought into communication with the
Parliament.
Ancient mode
The right of petitioning the Crown and Parliament, for
of petitioning.
redress of grievances, is acknowledged as a fundamental
principle of the constitution ;/ and has been uninterruptedly
exercised from very early times. Before the constitution
of Parliament had assumed its present form, and while its
judicial and legislative functions were ill-defined, petitions
were presented to the Crown, and to the great councils of
the realm, for the redress of those grievances which were
From Edw. I. beyond the jurisdiction of the common law.
There are
to Henry IV.
petitions in the Tower of the date of Edward I., before
which time it is conjectured that the parties aggrieved came
personally before the council, or preferred their complaints
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 III., these petitions
appear to have been addressed to the Lords alone : but,
taking the later period, of the 17th Edward III., for the
separation of the two houses, they must have been addressed
to the whole body then constituting the High Court of
1 “Nullinegabimus, aut differemus
rectum vel justitiam." Magna
Charta of King John, c. 29. See
Bill of Rights, Art. 5 ; 1 & 2 Will. &
Mary, sess. 2, c. 2.
? See supra, p. 24.
RECEIVERS AND TRIERS OF PETITIONS.
607
Parliament. Be this as it may, it is certain that, from
the reign of Edward I., until the last year of the reign
of Richard II., no petitions have been found which were
addressed exclusively to the Commons.
During this period the petitions were, with few excep- Receivers
tions, for the redress of private wrongs; and the mode of and triers of
receiving and trying them was judicial, rather than legisla-
tive. 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 chancellor, or 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 Receivers
and triers of petitions have long since given way to the
and triers still
appointed.
immediate authority of Parliament at large: but their ap-
pointment, at 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 ap-
pointment and jurisdiction are expressed in Norman French.3
In the reign of Henry IV., petitions began to be addressed, Reign of
Henry IV.
in considerable numbers, to the House of Commons. The
courts of equity had, in the meantime, relieved Parliament of.
much of its remedial jurisdiction; and the petitions were now
1 3 Rot. Parl. 448.
2 See Elsynge, chap. 8; Coke, 4th
Inst. 11.
3 There are receivers and triers for
Great Britain and Ireland; and others
for Gascony and the lands and coun-
tries beyond the sea, and the Isles.
No spiritual lords are now appointed
triers ; 73 Lords' J. 579 ; 80 Ib. 13;
89 Ib. 11.
608
PETITIONS TO THE COMMONS.
1
Petitions to
the Commons.
Origin of
private bills.
Change of
system.
more in the nature of petitions for private bills, than for
equitable remedies for private wrongs. Of this character
were many of the earliest petitions; and the orders of Par-
liament 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 :1 but the functions of
Parliament, in passing private bills, have always retained the
mixed judicial and legislative character of ancient times.
Proceeding to later times, petitions continued to be received
in the Lords, by triers and receivers of petitions, or by com-
mittees whose office was of a similar character; and in the
Commons, they were referred to the committee of grievances,
and to other committees specially appointed for the examina-
tion and report of petitions :? but since the Commonwealth,
it appears to have been the practice of both houses to con-
sider petitions in the first instance, and only to refer the
examination of them, in particular cases, to committees. In
early times, all petitions prayed for the redress of some
specific grievance: but after the Revolution of 1688, the pre-
sent practice of petitioning, in respect of general measures of
public policy, was gradually introduced.
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 superscribed,
4
Form of
petitions.
1 See 1 Parl. Writs, 160 ; 2 Ib.
156. 3 Rot. Parl. 448. Coke, 4th
Inst. 11. 21. 24. Elsynge, c. 8.
Hale, Jurisd. of the Lords, chap.
6–13. Report on Petitions, 1833(657);
especially the learned evidence of Sir
F. Palgrave.
2 1 Com. J. 582; 2 Ib. 49. 61; 3
Ib. 649; 4 Ib. 228 ; 7 Ib. 287.
3 11 Lords' J. 9. 57. 184 ; 14 Ib.
23. 12 Com. J. 83.
4 See 13 Chas. II. c. 5; 10 Com. J.
88; 13 Ib. 287; Ib. 518 (Kentish
petition, 1701); 18 Ib. 425. 429, 430,
431 (Septennial Bill). 2 Hallam,
Const. Hist. 435, 12. 2 May, Const.
Hist. 60 (7th ed.).
FORM OF PETITIONS.
609
“To the right honourable the lords spiritual and temporal in
Parliament assembled ;”1 and to the House of Commons,
"To the honourable the Commons (or knights, citizens, and
burgesses) of the United Kingdom of Great Britain and Ire-
land 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 con-
cluded 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 peti-
tioners, as in duty bound, will ever pray, &c.;” to which are
appended the signatures, or marks of the parties.
Without a prayer, a document will not be taken as a Remon-
petition ;2 and a paper, assuming the style of a declaration,
an address of thanks, or a remonstrance only,5 without a
proper form of prayer, will not be received.
this subject has thus been laid down in the Commons. On
the 10th August 1842, a member offered a remonstrance;
when Mr. Speaker said,
“That the custom was this, that whenever remonstrances were
presented to the house, coupled with a prayer, they were received as
petitions : but when they were offered without a prayer, the rule was
to refuse them.” He added,
He added, “That there was a Standing Order re-
quiring that the prayer of every petition should be stated by the
member presenting it; from which it is obvious that a prayer is
essential to constitute a petition.'
In other cases, remonstrances respectfully worded, and con-
cluding with a proper form of prayer, have been received :
but a document, distinctly headed as a remonstrance, though
strances.
The rule upon
936
7
| A petition intended for the last
Parliament will not be received. See
Mir, of Par. 1831, vol. 3, p. 2199.
7 Com. J. 427; 98 Ib. 457.
3 60 Hans. Deb. 3rd Ser. 640.
* 64 Ib. 423.
5 97 Com. J. 470; 98 Ib. 461.
6 65 Hans. Deb. 3rd Ser. 1225.
1227. See also 67 Com. J. 398; 74
Ib. 391.
7 From Finsbury, June 21st 1860;
159 Hans. Deb. 3rd Ser. 761. Coast
Defence Association, July 6th 1860;
Ib. 1524.
P.
RR
610
FORM OF PETITIONS.
1
Signatures,
&c.
1
concluding with a prayer, has been refused. A so-called
memorial, properly worded, and concluding with a prayer,
has been received.2
The petition should be written upon parchment or paper,
for a printed or lithographed petition will not be received
by the Commons ;3 and at least one signature should be upon
the same sheet or skin upon which 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;7
it must be signed ;s it must have original signatures or marks,
and not copies from the original, nor signatures of agents on
behalf of others, except in case of incapacity by sickness ; 10
and it must not have letters, 11 affidavits,12 appendices, 13 or other
documents annexed. The signatures must be written upon
the petition itself, and not pasted upon, or otherwise trans-
ferred to it. 14 Petitions of corporations 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 in the Minutes
or Votes, 15 because the signature of one party for others
cannot be recognised. 16
1 70 Hans. Deb. 3rd Ser. 745.
2 240 Ib. 1682.
3 48 Com. J. 738; 68 Ib. 624. 648;
72 Ib. 128. 156; 53 Hans. Deb.
3rd Ser. 158. This rule has not
been adopted by the Lords.
4 62 Com. J. 155 ; 72 Ib. 128. 144 ;
77 Ib. 127. 66 Hans. Deb. 3rd Ser.
1032. 100 Com. J. 335; 109 Ib. 293.
If petitions are presented without
any signatures to the sheet on which
they are written, they are not noticed
in the Votes.
5 76 Com. J. 173.
6 Ib. 189; 100 Ib. 560.
7 82 Ib. 262; 86 Ib. 748.
8 85 Ib. 541; 91 Ib. 325.
9 91 Ib. 576.
10 9 Ib. 369. 433; 10 Ib. 285 ; 34
Ib. 800; 82 Ib. 118; 91 Ib. 576.
See also Rep. of Pub. Petitions Com-
mittee, 26th June 1848.
il si Com. J. 82.
12 S2 Ib. 41.
13 111 Ib. 102.
14 104 Ib. 283 (Special Rep. of
Petitions Committee). See also Spe-
cial Report; 105 Ib. 79.
15 Of late years the practice of
entering petitions in the Commons'
Journal has been discontinued, a
reference being given to the Re-
ports of the Committee on Public
Petitions.
16 10 Com. J. 285.
CHARACTER OF PETITIONS.
611
fraud.
Any forgery or fraud in the preparation of petitions, or in Forgery or
the signatures attached, or the being privy to, or cognizant
of, such forgery or fraud, is liable to be punished as a breach
of privilege. By a resolution of the House of Commons,
2nd June 1774, it was declared,
"That it is highly unwarrantable, and a breach of the privilege of
this house, for any person to set the name of any other person to any
petition to be presented to this house.” 1
and substance
And there have been frequent instances, in which such
irregularities have been discovered and punished by both
houses. In some cases the house has satisfied itself by the
rejection of the petition, or by discharging the order for its
lying on the table.'
2. The language of a petition should be respectful and Character
temperate, and free from disrespectful language to the of petitions.
Queen, or offensive imputations upon the character or
conduct of Parliament, or the courts of justice, or other
tribunal, or constituted authority. On the 22nd March
1822, a petition from Newcastle, imputing notorious corrup-
tion to the House of Commons, was, on a division, not
received.10 On the 2nd August 1832, a petition threatening
1 34 Com. J. 800.
2 Ballinasloe petition (R. Pilking-
ton) 1825; 80 Ib. 445. Athlone elec-
tion petition (T. Flanagan); 82 Ib.
561. 582; 84 Ib. 187; 89 Ib. 92.
Epworth petition, 1843; 98 Ib. 523.
528. Cheltenham petition, 2nd March
1846 ; Liverpool Corporation Water-
works Bill; Lords' Journals and
Debates, 22nd July and 13th August
1850. Aylesbury Election Petition,
1851; 106 Com. J. 193. 289. Prince
Azeem Jah (J. M. Mitchel and
others), 1865; 120 Ib. 157. 336.
Special Report of Committee on the
Glasgow Municipality Extension Bill,
1879; 134 Ib. 175. 180. East Glou-
cester Railwyay Bill, 1862 ; 94 Lords’
J. 300. 321. 378. 386.
3 Halifax petition, 5th July 1867;
122 Ib. 345. Special Report of Peti-
tions Committee, 22nd July 1872;
127 Com. J. 370. 395.
4 Petitions from Dublin against
the Sale of Intoxicating Liquors on
Sunday (Ireland) Bill, 1878. Special
Reports of Public Petitions Com-
mittee, 21st March and 11th April
1878; 133 Com. J. 130. 139; Special
Report, 20th April 1883, &c.
5 122 Hans. Deb. 3rd Ser. 863.
6 82 Com. J. 589; 84 Ib. 275.
7 76 Ib. 105.
8 Ib. 92; 83 Ib. 541.
9 78 Ib. 431; 91 Ib. 698.
10 6 Hans, Deb. N. S. 1231,
RR 2
612
CHARACTER OF PETITIONS.
to resist the law, was not allowed to lie upon the table. In
1838, a petition containing disrespectful language towards
the other house of Parliament was withdrawn. In 1840,
à petition from J. J. Stockdale was rejected, as containing
an intentional and deliberate insult to the house.3 On the
28th March 1848, a petition having been brought up and
read, objection was taken to a paragraph praying for the
abolition of the House of Lords, on the ground that it
prayed for a fundamental alteration of the institutions of
the country: but the objection, after debate, was not pressed,
and the petition, being otherwise temperately expressed, was
ordered to lie upon the table. On the 3rd May 1867, a
petition in favour of certain Fenian prisoners, expressed in
strong but guarded language, was allowed to lie upon the
table; and a motion afterwards made for discharging that
order was not supported by the house. On the 8th June
1874, notice being taken that a petition contained offen-
sive imputations upon the conduct of the Public Petitions
Committee, it was ordered to be withdrawn. On the
3rd July 1874, notice being taken that a petition contained
imputations upon the conduct of certain judges, and state-
ments affecting the social and legal position of individuals, it
was ordered to be withdrawn, and the printed copies to be
cancelled. On the 12th April 1875, the Public Petitions
Committee reported that a petition from Prittlewell contained
offensive imputations upon the Lord Chief Justice and two of
the judges of the Court of Queen's Bench, and reflected, in
an unbecoming manner, upon the Speaker and the proceed-
ings of the house ;' and on the 15th April, the order for the
petition to lie upon the table was, after discussion, read and
discharged. A petition may not allude to debates in either
6
1 87 Com. J. 547.
2 93 Ib. 236.
3 95 Ib. 193.
4 103 Ib. 384 ; 97 Hans. Deb. 3rd
Ser. 1055,
5 186 Ib. 1929 ; 187 Ib. 1886.
6 129 Com. J. 209.
7 Ib. 276.
8 130 Ib. 134.
9 Ib. 145 ; Hans. Deb. 15th April
1875; Mr. Speaker Brand's Note-
Book.
CHARACTER OF PETITIONS.
613
house of Parliament, nor to intended motions, if merely
announced in debate :but when notices have been formally
given, and printed with the Votes, petitions referring to them
are received. On the 31st March 1848, notice was taken that
in a petition which had been printed with the Votes, reference
was made "to what passed in a debate in this house, in viola-
tion of the rules and practice of the house;" and the orders,
that such petition do lie upon the table, and be printed, were
read and discharged, and the petition, as printed in the
appendix to the Votes, was ordered to be cancelled.3 A
petition to the Commons, praying directly or indirectly for
an advance of public money;t for compounding or relin-
quishing any debts due to, or other claims of, the Crown ;5
or for remission of duties or other charges payable by any
person, or for a charge upon the revenues of India, will
only be received if recommended by the Crown. Petitions
distinctly praying for compensation, or indemnity for losses,
out of the public revenues, are viewed under this category
and are constantly refused unless recommended by the
Crown :: but petitions are received which pray that provi-
sion should be made for the compensation of petitioners, for
losses contingent upon the passing of bills pending in Parlia-
ment.) Sometimes such petitions are presented with the
Queen's recommendation. In the Lords, a petition relating
to a bill before the Commons, but which has not yet reached
the house, or which has been already thrown out, will not be
received.
On the 18th June 1849, a petition was offered from Petition from
W. S. O'Brien and others, attainted of treason, praying to attainted.
person
1 77 Com. J. 150; 82 Ib. 604 ; 91
Ib. 616; 97 Ib. 259; 103 Ib. 633;
105 Ib. 160, 19th Feb. 1851 (Window
Tax). 109 Ib. 160.
2 85 Ib. 107; 63 Hans. Deb. 3rd
Ser. 192 ; 114 Ib. 820.
:3 103 Com. J. 406.
490 Ib. 42. 487. 507; 111 Ib. 247;
119 Ib. 177.
5 75 Ib. 167; 81 Ib. 66; 83 Ib. 212.
6 81 Ib. 353; 92 Ib. 372 (Duke of
Marlborough).
7 111 Ib. 366.
9 73 Ib. 157; 74 Ib. 422; 87 Ib.
571 ; 90 Ib. 487; 104 Ib. 223, &c.,
&c.
9 90 Ib. 136; 92 Ib. 469.
10 93 Ib. 586.
614
PETITIONS PRESENTED.
:
1
Petitions
from abroad.
be heard by counsel against the Transportation for Treason
(Ireland) Bill. It was objected that no petition could be
received from persons civilly dead : but the house, after
debate, agreed, under the peculiar and exceptional circum-
stances of the case, to receive the petition. The petitioners'
sentence of death had been commuted to transportation;
they had denied the legal power of the Lord Lieutenant to
transport them, and the bill against which they had peti-
tioned was introduced in order to remove doubts upon the
question which they had raised. It was, in fact, a bill to
declare the legality of a sentence which they maintained to
be contrary to law. Before the introduction of the bill, a
petition from W. S. O'Brien, upon the subject of his sen-
tence, had been already received by the house.
Petitions from British subjects resident abroad have always
been received; and also of foreigners resident in this country.
Petitions have also been occasionally received from foreigners
not within British jurisdiction : but on the 7th April 1876,
a petition from inhabitants of Boulogne-sur-Mer, several of
whom appeared to be British subjects, being offered, a com-
mittee was appointed to consider the advisability of receiving
it, which, having taken evidence and searched for precedents,
did not advise its reception.2
3. Petitions are to be presented by a member of the house
to which they are addressed. But petitions from the cor-
poration of London are presented to the House of Commons
by the sheriffs, at the bar,3 (being introduced by the serjeant,
with the mace),4 or by one sheriff only, if the other be a
member of the house, or unavoidably absent.
both the sheriffs being in the custody of the serjeant-at-arms,
petitions from the corporation of London were presented at
Presentation
of petitions.
6
In 1840,
1 106 Hans. Deb. 3rd Ser. 389.
2 131 Com. J. 181. 200. Rep. of
Com. ; 228 Hans. Deb. 3rd Ser. 1411.
3 On the 17th April 1690, a ques-
tion for admitting the sheriffs was
negatived, on division ; 5 Parl. Hist.
586.
4 MS. Officers and Usages of the
House of Commons, p. 46.
5 90 Com. J. 506; 103 Ib, 122, 331.
731 ; 136 Ib. 248.
6 75 Ib. 213; 94 Ib. 432.
C
PETITIONS PRESENTED.
615
the bar, by the lord mayor, an alderman, and several of the
common council;1 by the lord mayor, aldermen, and com-
mons; and by two aldermen, and several members of the
common council.3 Petitions from the corporation of Dublin
may be presented in the same manner, by their lord mayor.4
If the lord mayor should be a member, he must present the
petition, in his place as a member, and not at the bar.5 If
the sheriffs (or lord mayor of Dublin, not being a member),
had more than one petition to present, they were formerly
directed to withdraw when the first had been received, and
were again called in to present the other: 6 but this formality
is now dispensed with. The privilege of presenting petitions
at the bar, by the lord mayor of Dublin, had not been en-
joyed in the Parliament of Ireland, and was conceded here,
for the first time, not without objection, on the 23rd Feb-
Lord Cochrane proposed to extend the same
privilege to the lord provost of Edinburgh, but his amend-
ment was lost, Mr. Tierney remarking " that the Scotch were
generally thought a prudent people, and the corporation of
Edinburgh would know better than to send their provost
four hundred miles, to present a petition.”? A peer or
member may petition the house to which he belongs; but if
a member desire to have a petition from himself presented to
the house, he should entrust it to some other member, as he
will not be permitted to present it himself. A member
who has not taken the oath, or affirmation, cannot present a
ruary 1813.
4
1 95 Com. J. 43.
2 Ib. 82.
3 Ib. 198.
By resolution, 23rd Feb. 1813 ;
68 Ib. 209; 24 Hans. Deb. 698; 124
Com. J. 85 ; 127 Ib. 266 ; 134 Ib.
269; 136 Ib. 10; 137 Ib. 288.
5 On the 1st July 1850, a petition
from the corporation of Dublin was
presented by the lord mayor in his
place as a member (wearing his
robes). The officers of the corpora-
tion, in their robes, were allowed
seats below the bar; but having
brought the mace into the house,
they were desired by the serjeant
to remove it; MS. note. So again
Friday, March 14th, 1851; 6th Feb.
1880, and on several other occasions.
6 MS. Officers and Usages of the
House of Commons, p. 46.
7 68 Com. J. 209; 24 Hans. Deb.
698. 705.
8 So ruled by Mr. Speaker, 30th
August 1841 (Sir Valentine Blake);
59 Hans. Deb. 3rd Ser, 476. 30th
April 1846 (Sir J. Graham), and 9th
July 1850 (Mr. F. O'Connor).
616
PETITIONS PRESENTED.
1
members.
petition. Petitions are not received on the first day of the
session, when the Queen's Speech is delivered, and other
business transacted in connection with the opening of Par-
liament.2
Transmission To facilitate the presentation of petitions, they may be
by post.
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.3
To be read by In both houses it is the duty of members to read petitions
which are sent to them, before they are presented, lest any
violation of the rules of the house should be apparent on
the face of them; in which case it is their duty not to offer
Petitions not them to the house. If the Speaker observes, or any member
received,
withdrawn takes notice of, any irregularity, the member having charge
and rejected. of the petition does not bring it up, but returns it to the
petitioners. If any irregularity escapes detection at this
time, but is discovered when the petition is further examined,
no entry of its presentation appears in the Votes. In other
cases more formal notice is taken of the violation of the
rules of the house, and the petitions are not received ;4 or
are ordered to be withdrawn, or are rejected. A member
who has reason to believe that the signatures to a petition
are genuine, is justified in presenting it, although doubts
may have been raised as to their authenticity : but in such
cases the attention of the house should be directed to the
circumstance.?
Presentation Up to this point the practice of the Lords and Commons
of petitions.
is similar: but the forms observed in presenting petitions
differ so much, that it will be necessary to describe them
1 137 Com. J. 295.
2 In Feb. 1880, the Lord Mayor of
Dublin had arranged to present à
petition on the day of meeting, but
on receiving an intimation of the
practice, he postponed the ceremony
until the next day.
3 3 & 4 Vict. c. 96, s. 41.
4 96 Com. J. 159; 104 Ib. 154 ;
105 Ib. 160; 109 Ib. 160; 111 Ib. 102.
5 93 Ib. 236; 100 Ib. 335; 103
Ib. 633; 116 Ib. 364 (as containing
libellous charges against a member
of the house and other parties).
6 95 Ib. 193; 122 Ib. 345.
1 117 Hans. Deb. 3rd Ser. 399.
PETITIONS PRESENTED.
617
separately. On the 1st May 1868, it was ordered “that the
name of the lord presenting a petition shall be entered
thereon.” It was ordered by the Lords, 30th May 1685, Lords.
“That any lord who presents a petition, shall open it before
it be read.”2 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 : but it is
usual for a lord who intends to speak upon a petition, to give
notice of its presentation. 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 partaking of a judicial character. But on the
2nd April 1868, a select committee was appointed in the
House of Lords, to direct the printing, for the use of the
house, of such petitions as they shall think fit,4 and it is now
contrary to the practice of the house to move that a petition
be printed.
It is to the representatives of the people that petitions are Petitions to
the Commons.
chiefly addressed, and to them they are sent in such numbers,
that it is absolutely necessary to impose some restrictions
upon
the discussion of their merits. Formerly, the practice
of presenting petitions had been generally similar to that of
the House of Lords : but the number had so much increased,5
and the other business of the house was liable to so many
1 100 Lords' J. 138.
2 14 Ib. 22.
3 74 Ib. 236.
4 100 Ib. 103.
5 In the five years ending 1832,
23,283 public petitions were pre-
sented to the House of Commons;
in the five years ending 1842, 70,072;
in the five years ending 1852, 62,248;
in the five years ending 1862, 63,003;
in the five years ending 1867, 53,305;
in the five years ending 1872, 101,573;
in the five years ending 1877, 91,846;
and in the five years ending 1882,
72,850. Since 1833, 702,819 public
petitions have been presented to the
house.
618
PETITIONS PRESENTED.
interruptions and delays, from the debates which arose on
receiving petitions, that after vain attempts to reconcile the
opposing claims of petitions and of legislation, upon the time
of the house, the following Standing Orders were adopted in
1842 and 1853:-
Petitions to “That every member offering to present a petition to the house,
be opened by not being a petition for a private bill, or relating to a private bill
members.
before the house, do confine himself to a statement of the parties from
whom it comes, of the number of signatures attached to it, and of the
material allegations contained in it, and to the reading of the prayer
of such petition."
May be read “ That every such petition, not containing matter in breach of the
by the clerk. privileges of this house, and which, according to the rules or usual
practice of this house, can be received, be brought to the table by
the direction of the Speaker, who shall not allow any debate, or any
member to speak upon, or in relation to, such petition, but it may be
read by the clerk at the table if required.”' 2
Urgent cases " That in the case of such petition complaining of some present
discussed.
personal grievance, for which there may be an urgent necessity for
providing an immediate remedy, the matter contained in such petition
may be brought into discussion, on the presentation thereof."
Petitions "That all other such petitions, after they shall have been ordered
referred to
to lie on the table, be referred to the committee on public petitions,
committee on
public peti-
without any question being put: but if any such petition relate to
tions; and in any matter or subject, with respect to which the member presenting
certain cases
it has given notice of a motion, and the said petition has not been
ordered to be
printed.
ordered to be printed by the committee, such member may, after notice
given, move that such petition be printed with the Votes."
May oppose
“ That subject to the above regulations, petitions against any reso-
taxes for the
lution or bill imposing a tax or duty for the current service of the
service of the
year, be henceforth received, and the usage under which the house
year.
has refused to entertain such petitions be discontinued.” 3
While a member may state the purport and material alle-
gations of a petition, he is not at liberty to read the whole or
greater part of the petition itself : but if he desires that the
1 For the two sessions, 1833 and
1834, morning sittings from twelve
to three were devoted to petitions
and private bills, but they were not
found to be effectual.
2 On the 11th April 1845, a debate
arose on the presentation of a peti-
tion from the Dublin Protestant
Operative Association, but it related
to matters of order, which, of course,
may be debated at any time.
3 97 Com. J. 191. And see also
88 Ib. 10. 95; 94 Ib. 16.
PETITIONS PRESENTED.
619
1
was
petition should be read, the proper course is to require it to
be formally read by the clerk, at the table.
On the 14th June 1844, it was ruled, by Mr. Speaker, that Cases ruled to
be urgent.
a petition of parties complaining of their letters having been
detained and opened by the Post-office, and praying for in-
quiry, was not of that urgency that entitled it to immediate
discussion, especially as notice of its presentation had been
given on the previous day, which proved that the matter was
such as admitted of delay:2 but on the 24th June 1844, a
similar petition, of which no previous notice had been given,
was permitted to open a debate. In the latter case, however,
the complaint was, that “letters are secretly detained and
opened; " and thus a " present personal grievance
alleged, while in the former case a past grievance only had
been complained of. On the 5th July 1855, a petition com-
plaining of the recent misconduct of the police in Hyde Park,
and of injuries personally sustained by the petitioners, was
held not to justify a debate, as the grievance complained of
did not demand an immediate remedy.4 Neither, under cover
of a motion for the adjournment of the house, will a member
be permitted to bring under discussion the contents of a
petition which he would be restrained by the Standing Order
from debating : 5 but a personal explanation has been per-
mitted without any question being before the house, upon
matters affecting a member, which have been alluded to in a
petition.
It will be observed that, by the Standing Order, the Debates upon
restriction on debate does not extend to any urgent cases.
petitions.
Neither does it extend to a petition complaining of a matter
affecting the privileges of the house, such a case being
governed by the general rule, that a question of privilege is
always entitled to immediate consideration. But the more
6
1 79 Hans. Deb. 3rd Ser. 496; 106
Ib. 300.
2 75 Ib. 894; 99 Com. J. 398.
3 75 Hans. Deb. 3rd Ser. 1264.
4 139 Ib. 453.
5 7th July 1856 (Attorney-General
and the Bedford Charities).
6 48 Hans. Deb. 3rd Ser. 226; 109
Ib. 235; and 7th July 1856.
7 104 Com. J. 302; 105 Ib. 110;
620
PETITIONS PRESENTED.
Petitions
printed with
the Votes.
usual and convenient course, when the matter does not require
the immediate interposition of the authority of the house, is
to order it to be taken into consideration on a future day,
and to be printed for the information of the house. It
must always be borne in mind that the discussion of a
petition is not, in itself, introductory to legislative measures ;
and that every resolution or bill must commence with a
distinct motion, in proposing which a member is at liberty to
enforce the claims of all petitioners who have submitted their
cases to the house.
A motion for printing a petition with the Votes, if un-
opposed, is usually permitted to be made early in the evening,
at the time of presenting public petitions, or moving for
ynopposed returns. It is not a matter of right, but is open
to debate and objection like any other motion. On the
15th April 1845, it was objected that a motion intended
to be made by a member was not such as could be properly
founded upon a petition proposed to be printed; and the
motion for printing it was withdrawn.3
It has been seen that, in certain cases, petitions may be
printed and distributed with the Votes; and in some few
instances, petitions presented in a former session have been
ordered to be so printed;4 but the general practice is, for
all public petitions to be referred to the “Committee on
Public Petitions," under whose directions they are classified,
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 every petition, and the total number of petitions and the
Committee
on public
petitions.
2
112 Ib. 231 ; 113 Ib. 68; 114 Ib.
357. 146 Hans. Deb. 3rd Ser. 97;
168 Ib. 1855. Royal Atlantic Steam
Company, July 19th 1861; 164 Ib.
1178.
1 86 Hans. Deb. 3rd Ser. 328 ;
Lisburn Election, 18th April 1864;
119 Com. J. 173.
Southampton writ, 1st June 1942;
97 Com. J. 329. 63 Hans. Deb. 3rd
Ser. 1057.
3 79 Hans. Deb. 3rd Ser. 686.
4 102 Ib. 22. 203; 112 Ib. 155;
Mr. Repton's petition, 1858; 113 Ib.
331.
5 88 Com. J. 95.
PETITIONS PRESENTED.
621
cases
mode of
signatures to which addresses are affixed,' 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, where it is accessible to the
public, at the cheapest rate of purchase. In some
petitions have been ordered to be printed with the Votes,
with the signatures attached thereto, and in others for the
use of members only. A petition has been ordered to be
printed for the use of members only, with the names of the
persons who had signed it. Sometimes petitions which have
been already printed, have been ordered to be reprinted.5
A few words may now be added in reference to the time Time and
and mode of presenting petitions in the House of Commons.
presenting
It was resolved, 20th March 1833, “That every member petitions.
presenting a petition to the house, do affix his name at the
beginning thereof;">6 and it is always printed with the
petition, in the reports of the committee. On the 9th May
1844, an instruction was given to this committee not to
record any petition on which the name of the member pre-
senting it is not written. On the 6th April 1876, notice
being taken that a member's name had been affixed to a
petition without his authority, the petition was ordered to be
withdrawn; and it has been ruled that the member's name
should be signed by his own hand, and that it is irregular to
authorise another person to affix it. The time for receiving
petitions is at the conclusion of the private business; and
members having petitions entrusted to them, should write
1 With a view to correct abuses
in the preparation of petitions, the
Public Petitions Committee recom-
mended, in 1878, that they should
only report signatures to which ad-
dresses are affixed; Special Report,
11th April 1878; and an instruction
was given accordingly, 133 Com. J.
205.
2 97 Com. J. 302 ; 98 Ib. 396.460.
549; 101 Ib. 142.
3 100 Ib. 538. 648; 101 Ib. 1021;
105 Ib. 45; 106 Ib. 209; 116 Ib. 377.
4 97 Ib. 57.
5 98 Ib. 216 ; 103 Ib. 30.
6 98 Ib. 190. 74 Hans. Deb. 3rd
Ser. 714.
7 99 Com. J. 284.
8 131 Ib. 141. 228 Hans. Deb.
3rd Ser. 1320,
9 229 Ib. 586.
622
PETITIONS PRESENTEL.
1
their names on a numbered list, headed “Public Petitions,
at the table of the house, from which they will be called by
the Speaker in their order. When all the names on the list
have been called, any member may afterwards present a
petition, who rises in his place for that purpose when there
is no business before the house;1 but no petition is received
after five o'clock. When petitions relate to any bill, or the
subject matter of any motion appointed for consideration, a
member may present them before the debate commences, at
any time during the sitting of the house. In the case of a
bill, they can only be offered immediately after the order of
the day has been read, and before any question has been
proposed. On one occasion, however, a motion for the
Speaker to leave the chair, was withdrawn, in order to enable
a member to present a petition, and was repeated as soon as
the petition had been received. When a petition has been
laid upon the table, it is irregular for any member to re-
move it. 3
1
Speaker's ruling, 19th March
1868 ; 190 Hans. Deb. 3rd Ser. 1893.
2 10th April 1856, Education; 111
Com. J. 131.
3 105 Ib. 99.
ACCOUNTS AND PAPERS.
623
CHAPTER XX.
ACCOUNTS, PAPERS, AND RECORDS PRESENTED TO PARLIAMENT :
PRINTING AND DISTRIBUTION OF THEM: ARRANGEMENT AND
STATISTICAL VALUE OF PARLIAMENTARY RETURNS.
PARLIAMENT, in the exercise of its various functions, is Returns by
invested with the power of ordering all documents to be laid order and by
before it, which are necessary for its information. Each
house enjoys this authority separately, but not in all cases
independently of the Crown. Accounts and papers 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 the 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 revenue, or which are under the control
of the Treasury, or are constituted or regulated by statute,
may be reached by a direct order from either house of Parlia-
ment: but that public officers and departments, subject to
her Majesty's secretaries of state, or the privy council, are to
receive their orders from the Crown.
Thus, returns from the Commissioners of Customs and of
Inland Revenue, the Post-office, the Board of Trade, and
the Treasury, are obtained by order. These include every
624
ACCOUNTS AND PAPERS.
1
to addresses
made.
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. Addresses
are presented for treaties with foreign powers, for despatches
to and from the governors of colonies, and for returns con-
nected with the army, the civil government, and the admi-
nistration of justice. Where returns relate to the expenditure
of public money upon any Crown property, they are obtained
by order, and not by address.
When returns When an address for papers has been presented to the
bave not been 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 returns
required, have been ordered to make them to the house
forthwith. In other cases, however, further addresses have
been moved, praying her Majesty to give directions that
papers be laid before the house forthwith.3
Orders dis- When it is discovered that an address has been ordered for
charged.
papers which should properly have been presented to the
house by order, it is usual to discharge the order for the
address, and to order the papers to be laid before the
house. In the same manner, when a return has been
ordered, for which an address ought tº have been moved,
the order is discharged, and an address is presented in-
stead.5 Where the order for a return is found not to
comprise all the particulars desired, it is usual to discharge
the order, and make another in a corrected form. Some-
4
1 Windsor Castle and Buckingham house to order such a return having
Palace, 19th April 1826; Greenwich been questioned, was conclusively
Park, 3rd June 1850 ; Marble Arch, established.
18th March 1852 ; Richmond Park, 2 90 Com. J. 413. 650; 95 Ib. 448.
12th June 1854; Metropolitan Parks, 3 95 Ib. 220; 102 Ib. 692 ; 120
28th July 1854; St. James's Park, 'Ib. 70.
21st April 1856, and 20th May 1857. 4 92 Ib. 580, &c.
In the latter case the right of the 5 Ib. 365; 104 Ib. 623, &c.
ACCOUNTS AND PAPERS.
625
1
times, however, without discharging the order, public papers
or other particulars have been ordered to be added to the
return. And so much of an order as relates to certain
* portions of the return has been discharged. Orders of a
former session relating to papers are also amended, or other-
wise dealt with, as circumstances may require.
If one house desires any return relating to the business Returns re-
lating to the
or proceedings of the other, neither courtesy nor custom other house.
allows such a return to be ordered : but an arrangement is
generally made, by which the return is moved for in the
other house; and after it has been presented, a message is
sent to request that it may be communicated. Or a message
is sent requesting that a return of certain matters may be
communicated; and such return is prepared and communi-
cated accordingly. But it is not usual to send a message
for a return which has been obtained from other depart-
ments, by order or address. For such a return it is more
regular to move in the usual manner.5
Returns may be moved for, either by order or address, Subjects of
relating to any public matter, in which the house or the
Crown · has jurisdiction. They may be obtained from all
public offices, and from corporations, bodies, or officers con-
stituted for public purposes, by Acts of Parliament or other-
wise : but not from private associations, such as Lloyd's
for example, nor from individuals not exercising public
functions. The papers and correspondence sought from
government departments should be of a public and official
character, and not private or confidential. The opinions of
the law officers of the Crown, given for the guidance of
ministers, in any question of diplomacy or state policy, being
returns.
1 110 Com. J. 56. 230; 116 Ib. 99;
117 Ib. 337; 121 Ib. 143.
2 126 Ib. 89.
3 111 Ib. 250. 270. 294. In 1856
a notice had been given of a re-
turn of fees on private bills in both
houses, but on an intimation from
the Speaker, the return was
fined to the House of Commons.
111 Com. J. 120.
4 123 Com. J. 212; 127 Ib. 141.
5 Ib. 396. 408.
6 11 Hans. Deb. 271.
P.
SS
626
ACCOUNTS AND PAPERS.
included in the latter class, have generally been withheld
from Parliament. In 1858, however, this rule was, under
peculiar and exceptional circumstances, departed from, and
the opinions of the law officers of the Crown, in regard to
the case of the Cagliari, were laid before Parliament." In
1871, in the select committee on the Thames Embankment,
a case submitted to the law officers being required, it was
objected that the production of such a document was unusual:
but as it appeared that their opinion upon the case had
already been laid before the house, the objection was with-
drawn, and the case was produced before the committee.?
But however ample the power of each house to enforce the
production of papers, a sufficient cause must be shown for
the exercise of that power; and if considerations of public
policy can be urged against a motion for papers, it is either
withdrawn, or otherwise dealt with according to the judg-
ment of the house.
If parties neglect to make returns in reasonable time, they
are ordered to make them forthwith :3 or so much of returns
as has not been made. If they continue to withhold them,
they are ordered to attend at the bar of the house ;5 and
unless they satisfactorily explain the causes of their neglect,
and comply with the order of the house, they will be censured
or punished according to the circumstances of the case. А.
person has been reprimanded by the Lords for having made
a return to an order, which he was not required or authorised
to make, and for framing it in a form calculated to mislead
the house."
Sometimes further particulars are ordered to be added to
returns, or to be separately stated :' or returns are ordered
to be amended. 10
Returns not
made.
6
Amendment
of returns.
1 149 Hans. Deb. 3rd Ser. 178.
2 Minutes of the Committee, pp.
iv.-vi.
3 90 Com. J. 413; 114 Ib. 371;
119 Ib. 291 ; 121 Ib. 143.
4 131 Ib. 354.
5 75 Ib. 404; 89 Ib. 386; 96 Ib.363.
6 90 Ib. 575. 81 Lords' J. 134.
7 82 Lords' J. 89.
8 123 Com. J. 69; 127 Ib. 277.
9 127 Ib. 277.
10 123 Ib. 178 (by address); 122 Ib.
322.
ACCOUNTS AND PAPERS.
627
4
When Parliament is prorogued before a return is pre- Effect of a
sented, the ordinary practice is to renew the order in the prorogation.
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 Parlia-
ment; and unquestionably an order for returns 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 occasionally in compliance with
an order of a former session.2 Orders have also been 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; »3 and orders of a former session have been read,
and the papers ordered to be laid before the house forthwith.
And the order for an address made by a former Parliament
has been read, and the house being informed that certain
persons had not made the return, they were ordered forth-
with to make a return to the house.5
Besides the modes of obtaining papers by order and by Papers pre-
sented by
address, both houses of Parliament are constantly put in command, and
possession of documents by command of her Majesty, and by Act.
in compliance with Acts of Parliament
Judgment rolls, exhibits, and certified copies of docu- Forms ob-
served in pre-
ments relating to appeals, are delivered in at the bar of the senting
House of Lords, upon oath. Other papers and returns were papers.
formerly delivered at the bar, upon oath, in the same manner:
but now they are either presented by a minister of the
Crown, or are forwarded by the department to the clerk of
the Parliaments, for presentation. In the Commons, when
a minister of the Crown has any papers of special import-
ance to present, he goes to the bar, and, on being called by
1 98 Com. J. 428; 103 Ib. 579.
775 ; 104 Ib. 239. 284, &c. ; 106 Ib.
5; 108 Ib. 209.
2 99 Ib. 301; 103 Ib. 131; 104
Ib. 35. 88. 133, &c.; 106 Ib. 24; 108
Ib. 293 ; 129 Ib. 7; 135 Ib. 126, &c.
3 78 Ib. 472; 80 Ib. 631.
• 78 Ib. 72; 114 Ib. 371.
5 90 Ib. 413.
SS 2
628
ACCOUNTS AND PAPERS.
i
the Speaker, he brings them up;l and they are ordered to
lie
upon the table : but the more usual practice is to deliver
them to the clerk, at the table. When such papers are
brought up, they are generally ordered to lie upon the table,
as a matter of course : but upon the question that they do lie
upon the table, a debate has, on some rare occasions, arisen.
On the 8th July 1857, Sir G. Lewis made a statement in
moving that an estimate of the cost of the Persian war, pre-
sented by him, be referred to the committee of supply. On
the 13th February 1862, on bringing up the revised code on
education, Mr. Lowe made a statement, though not without
objection. On the 5th May 1865, Mr. Bruce, in bringing
up the minutes of the Committee of Privy Council for
Education, was proceeding to explain them (having intimated
his intention on the previous day), but this course being
objected to as leading to a debate, under inconvenient con-
ditions, and in anticipation of the business appointed for the
day, he postponed his statement to another occasion. Again
on the 10th February 1873, Mr. Secretary Bruce, in pre-
senting new rules for the regulation of the Royal Parks,
proposed to speak upon the motion that “the rules do lie
upon the table.” Being interrupted, he limited himself to
the reading of the new rules: but a debate was raised upon
the question, the regularity of which was explained from the
chair. In the Lords, if the paper relate to judicial pro-
ceedings, the person is called to the bar, sworn, and examined
respecting it; but if it be an ordinary paper, he is called in,
delivers the paper at the bar, and is directed to withdraw.
In the Commons, when it was the custom to present papers
in this manner, the person, by direction of the Speaker, was
introduced at the bar by the serjeant with the mace, delivered
the paper to the clerk of the house, and was directed by the
Speaker to withdraw: but on the 7th April 1851, it was
| By usage, such papers are only to
be presented by privy councillors.
2 146 Hans. Deb. 3rd Ser. 1132.
3 165 Ib. 191.
4 178 Ib. 3rd Ser. 1535.
3 214 Ib. 199.
ACCOUNTS AND PAPERS,
629
ordered, “That accounts and other papers which shall be
required to be laid before this house by any Act of Par-
liament, or by any order of the house, may be deposited in
the office of the clerk of this house, and the same shall be
laid on the table, and a list of such accounts and papers read
by the clerk."'1 And this more convenient practice has
superseded the former mode of presenting papers from the
various public offices. Sometimes a minister moves for a
return from his own department, without notice, and imme-
diately presents it, in compliance with the order which has
just been made.
Occasionally blank papers, familiarly known as “dummies," "Dummies."
are presented, instead of the real documents. This practice
is irregular, and without recognition : but is favoured by
convenience, and the exigencies of public business. When
resorted to with a view to expedition in printing and distribu-
tion, it may be a useful expedient: but if used as a colourable
compliance with an order of the house, or as a means of
delay, it is obviously open to grave objections. To correct
abuses of this kind, it was ordered, on the 20th March 1871,
that all papers are to “be laid upon the table in such a form
as to ensure a speedy delivery thereof to members;" ? and this
order was communicated to the several public departments.
When accounts and papers are presented, they are ordered Papers to lie
to lie upon the table ; and, when necessary, are ordered to be table.
printed, or are referred to committees, or abstracts are ordered
to be made and printed. Sometimes papers of a former
session are ordered to be printed, or re-printed. In the Printing com-
Commons, a select committee is appointed at the commence- Commons.
ment of each session, “ to assist Mr. Speaker in all matters
which relate to the printing executed by order of the house ;
and for the purpose of selecting and arranging for printing,
returns and papers presented in pursuance of motions made
by members. To this committee all papers are referred, and
upon the
mittee in the
1 106 Com. J. 150. This list is not
read, but is entered in the Votes.
2 126 Ib. 96.
3 On the 17th Nov. 1852, a report
was ordered to be printed and de-
livered forthwith; 10$ Com, J. 29.
630
ACCOUNTS AND PAPERS,
1
papers.
1
it is the usual practice for the house not to order papers to be
printed until they have been examined by the committee.
No distinct 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.
Unprinted Papers, if not considered worthy of being printed, or if
the members who moved for them do not urge the printing,
are open to the inspection of members in an unprinted form;
being deposited for that purpose in the library. In some
cases papers of a local or private character have been ordered
to be printed at the expense of the parties, if they think fit.
In other cases they have been ordered to be returned to a
public department. Sometimes part of a return only has
been ordered to be printed.3 The orders of a former session
that a return do lie upon the table, and be printed, have
been discharged.
Numerous administrative orders and regulations relating
and regula-
to prisons, education, charities, endowed schools, and other
before Parlia- matters are presented to both houses, in pursuance of Acts
of Parliament, which come into operation, unless disapproved
of by either house, within a certain number of days; and,
unless it be otherwise provided by statute, this period will be
comprised in the same session,-a prorogation or dissolution
being conclusive of any proceeding or business pending at
the time.5
Distribution All papers printed by order of the Lords are, by courtesy,
of papers.
distributed gratuitously to members of the House of Com-
Lords.
mons who apply for them; and also to other persons, on ap-
plication, with orders from peers. They are also accessible to
the public by sale. The Commons have more fully applied
the principle of sale, as the best mode of distribution to the
Certain orders
tions laid
ment.
Commons.
1 101 Com. J. 990; 113 Ib. 42.
363; 115 Ib. 505 ; 116 Ib. 125.
2 100 Ib. 880; 125 Ib. 80.
3 124 Ib. 209; 125 Ib. 70.
4 7th February 1873; 134 Com. J.
18; 135 Ib. 235.
5 See also infra, p. 766.
ACCOUNTS AND PAPERS.
631
office.
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. Certain reports and papers, how-
ever, of limited interest, are not distributed to members, but
may be obtained on application. The chairman of a com-
mittee, 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 pur-
chase. The rule is not strictly enforced, as regards bills and
estimates before the house, which may generally be obtained
by members, on application at the Vote-office; but more than
one copy of reports and papers is not delivered, without
authority from the Speaker.
The Vote-office is charged with the delivery of printed Delivery to
members by
papers to members of the house ; and those who wish to re- the Vote-
ceive them regularly should take care to leave their addresses,
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 confined to members,
and delivered by the Vote-office alone. The papers ordered
to be printed generally, are accessible to the public in the
several “ offices for the sale of parliamentary papers," esta-
blished under the custody of the Stationery-office. They are
sold at a halfpenny per sheet, a price sufficient to raise them
above the quality of waste paper; and moderate enough to
secure the distribution of them to all persons who may be in-
terested in their contents.2
To facilitate the distribution of parliamentary papers, they Transmission
by post.
are entitled to be sent through the Post-office, to all places in
the United Kingdom, at a rate of postage not exceeding one
half-penny for every two ounces in weight, whether prepaid or
1 Resolutions of the house, 25th.
March 1882 ; 37 Com. J. 120.
2 See Reports of Printed Papers
Committee, 1835 (61. 392). 90 Com.
J. 544.
632
ACCOUNTS AND PAPERS.
Arrangement
of parliamen-
tary papers.
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 pro-
vided for that purpose, in the proper offices.
By these various regulations, the papers laid before Par-
liament are effectually published and distributed. In both
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.2 Each paper is distinguished by a
sessional number at the foot of the page, by the date at
which the order for printing is made, and by the name of
the member who moved for it; 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 extra-
ordinary amount of information, in all departments of legis-
lative inquiry ; 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. Some-
times a return has been presented for several years in succes-
sion, when the series is interrupted, and commences again at
a later period. At other times, the returns for succeeding
years, though similar in object, were not moved for or pre-
pared in a uniform manner. One return, for example, is
found to include the United Kingdom, while another extends
to Great Britain only; one shows the gross, another the net
Their statisti-
cal character.
13 & 4 Vict. c. 96; Post Office
Regulations.
2 There are General Indexes to the
Lords' Papers, from 1801 to 1859;
and from 1859 to 1870; and in the
Commons there are General Indexes,
from 1801 to 1859 ; and from 1852
to 1869; and from 1870 to 1879.
ACCOUNTS AND PAPERS.
633
revenue; one dates from the 1st January, another from the
5th April ; one calculates 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 the
earlier parliamentary papers has been very much impaired.
To secure a more complete and uniform collection of Tables of
revenue, &c.
statistics, the statistical department of the Board of Trade
was established some years since. Accounts of the revenue,
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 im-
proved the statistics of the last fifty years; and other par-
liamentary papers have also been moved for, and continued
with considerable care.
The causes of imperfection in the statistical accounts have Improvement
of statistical
been :-1. The irregular manner in which they have been returns.
moved for, without any settled plan or principle; 2. The
imperfect mode of preparing the orders ; 3. The want of
proper forms and instructions addressed to those who are to
prepare the returns; 4. The absence of control and superin-
tendence in editing the returns before they were printed.
With a view to improve the character of parliamentary
returns, a plan was proposed by the printing committee in
1841, and has since been partly carried into effect; the
gradual operation of which could not fail to be attended with
benefit. The committee suggested :
1. “That every member be recommended, 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 has been made by the house,
the librarian do prepare, when necessary, a form, to be submitted to
Mr. Speaker for his 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."
i Parl. Paper, 1841 (181).
634
ACCOUNTS AND PAPERS.
Orders for
returns.
Blank forms.
And these recommendations have since been repeated, by
the printing committee, with a view to a reduction of the
expense of printing.' By attending to the first of these
suggestions, a member will generally obtain assistance in
framing a motion for returns. Documents of a similar
character can be consulted, and their merits or defects, in
form and matter, will serve as guides to further investiga-
tion. The preparation 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
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,
has often been forwarded to a great number of persons, in
all parts of the country. Each person is thus 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 purposes 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.
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 compressed
into the best form of which they will admit, and when practi-
cable, general results are deduced from them, in illustration
of the purposes of the order.
Abstracts.
1 Report, 17th March 1857 (122).
!
ORIGIN OF TAXATION.
635
i See 'supra, p. 17.
CHAPTER XXI.
PROGRESSIVE INFLUENCE OF THE COMMONS IN GRANTING SUPPLIES,
AND IMPOSING BURTHENS UPON THE PEOPLE. EXCLUSION OF THE
LORDS FROM THE RIGHT OF AMENDING MONEY BILLS. CONSTITU-
TIONAL 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
SUPPLY AND WAYS AND MEANS.
In England, as in many other countries of Europe, the Feudal origin
of parliamen-
origin of taxation may be referred to the feudal aids and tary taxation.
services, due from the tenants of the Crown to their feudal
superior. Before the growth of commerce, the royal revenue
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,' granted and
confirmed, as a Parliament, the aids and services to which
the king, as their feudal superior, was entitled. This
connexion between feudal rights and legislative taxation is
singularly illustrated by the charter of William the Con-
queror, which declared that all freehold tenants by military
service, should “hold their lands and possessions free from
all unjust exactions, and from all tallage, 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
4 Tallage was raised upon the de-
2 Foedera, 1. (Record Comm. ed.) mesne lands of the Crown, upon the
3 - Liberi homines." See explana- burghs and towns of the realm, and
tions of this term, Rep. on Dignity upon escheats and wardships. 1
of the Peerage, p. 31.
Madox, Hist. of the Exchequer, 694.
636
ORIGIN OF TAXATION.
t
the words of this charter, two remarkable points may be
observed ; 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 common council of the realm, or Parliament.
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 determined, and required
repeated assessments: for which purpose 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 days' notice, to assess aids and
scutages, which the king 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 knight, 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
sheriffs, and bailiffs, led to the principle of representation,
as was shown in the first chapter of this work,” and had
an important influence upon the revenue of future kings.
Growth of After the property in land had undergone many changes
the Commons'
right of
and subdivisions, and the commonalty had grown in numbers
supply.
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 many of his lawful dues; and, on
the other, the kings had been improvident; and while their
feudal revenues were diminished in amount, and confused in
1 For a full explanation of the
nature of these feudal sources of
revenue, see Madox, chapters 15 and
16. See also supra, p. 18.
2 Supra, pp. 18 et seq.
ORIGIN OF TAXATION.
637
title, their necessities were continually increasing. The
Commons, in the meantime, 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 tallagio 120n concedendo, in the 25th Edward I., by
which it was declared, “That no tallage or aid shall be taken
or levied without the goodwill and assent of the archbishops,
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. The lords spiritual and
the lords temporal voted separate subsidies for themselves;
and from the reign of Edward I. the clergy, as a body,
granted subsidies, either as a national council of the clergy,
in connection with the Parliament, or, at a later period, in
convocation, until the surrender or disuse of their right in
the reign of Charles II.1
At length, when the Commons had increased in political Commons'
influence, and the subsidies voted by them had become the originate
principal source of national revenue, they gradually as-
grants.
sumed 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
1 Edward I. inserted in every
bishop's writ of summons a clause
(called the præmunientes clause),
commanding him to bring the dean
or prior and chapter of his cathedral
church, the archdeacons, and the
clergy of his diocese, to Parliament;
thus making the bishop, as it were,
an ecclesiastical sheriff, to whom the
king's general precept was directed.
To this mandate the archbishop ob-
jected, as he assumed to himself the
sole right of assembling the clergy;
but a compromise was effected by
the continuance of the præmunientes
clause, whereby the clergy were
summoned to Parliament, while the
archbishops summoned the clergy of
their respective provinces, to assem-
ble at the same time as the Parlia-
ment. Hence the origin of convo-
cations, and of their time of meeting.
See the Parliamentary Original and
Rights of the Lower House of Con-
vocation, by Bishop Atterbury, p. 7,
4to. 1702. They are still summoned
to meet at the same time as the Par-
liament, but from 1717 until within
the last few years, were not per-.
mitted to transact any business. But
see Debates, 1852-53, on the Pro-
ceedings of Convocation; 123 Hans.
Deb. 3rd Ser. 247. 277; 124 Ib. 978.
638
RIGHTS OF THE COMMONS.
"1
Henry IV., in the ordinance called “The Indempnity 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
words 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
Taxes by Concurrently with parliamentary taxation, other imposts
prerogative.
were formerly levied by royal prerogative without the con-
sent of Parliament, but none of these survived the Revolu-
tion of 1688. Since that time the public revenue of the
Crown has been dependent upon Parliament, and is derived
either from annual grants for specific public services, or from
payments already secured and appropriated by Acts of Par-
liament, and which are commonly known as charges upon the
consolidated fund.
Recognition In modern times, her Majesty's speech, at the commence-
sive right of ment of each session, recognizes the peculiar privilege of
the Commons. the Commons to grant all supplies : the preamble of every
Act of Supply distinctly confirms it; and the form in which
the royal assent is given is a further confirmation of their
right.
Legal effect A grant from the Commons is not effectual, in law, without
of grants.
the ultimate assent of the Queen and of the House of Lords.
It is the practice, however, to allow the issue of public money,
the application of which has been sanctioned by the House of
Commons, before it has been appropriated to specific services,
by the Appropriation Act, which is ordinarily reserved until the
end of the session. This power is necessary for the public ser-
vice, and faith is reposed in the authority of Parliament being
ultimately obtained ; but it is liable to be viewed with jealousy,
if the ministers have not the confidence of Parliament.3
of the exclu-
1 3 Rot. Parl, 611.
2 Bill of Rights, Art. 4.
3 This was shown on a remarkable
occasion, uot by those branches of the
GRANTS BY THE COMMONS.
639
In order to make the grants of the Commons available, and Effect given
to grants of
to anticipate the legal sanction of an Appropriation Act, the the Commons
Exchequer and Audit Departments Act, 1866, provides for before this
the issue of monies, from time to time, to meet the grants of tion Act.
the Commons: and clauses are inserted in the acts passed at
an early period of every session, for the application of money
out of the consolidated fund, which authorise the bank to
advance, on the application of the treasury, the sums required
for the public service in respect of any services voted by the
Commons in the same session. This convenient arrangement
has now taken the place of that formerly adopted for applying
to those services the sums raised by exchequer bills.? By
these enactments, immediate effect is given to the votes of the
Commons: but there is still a constitutional irregularity in pro-
roguing or dissolving Parliament before an Appropriation Act
legislature whose authority would
be most slighted by an appropriation
of money without their assent: but
by the Commons themselves, who
protested against the principle of
giving too much validity to their
own votes. In 1784, when Mr. Pitt
was in a minority in the House of
Commons, and it was well known
that he was only waiting for the sup-
plies, in order to dissolve the Parlia-
ment, the house resolved, “That for
any person or persons in his Ma-
jesty's Treasury, or in the Esche-
quer, or in the Bank of England, or
for any person or persons whatsoever
employed in the payment of public
money, to pay, or direct or cause to
be paid, any sum or sums of money,
for or towards the support of ser-
vices voted in the present session of
Parliament, after the Parliament
shall have been prorogued or dis-
solved, if it shall be prorogued or
dissolved before any Act of Parlia-
ment shall have passed appropriating
the supplies to such services, will be
a high crime and misdemeanour, &
daring breach of a public trust, de-
rogatory to the fundamental privi-
leges of Parliament, and subversive
of the constitution of this country.
39 Com. J. 858. These supplies were
re-voted in the next session, and in-
cluded in the Appropriation Act, 24
Geo. III. sess. ii. c. 44.
On the death of George III., in
1820, the Commons, in anticipation
of a dissolution, voted certain tempo-
rary supplies which were not appro-
priated by Act of Parliament, in that
session. Objections were raised to
these votes in the House of Lords,
as infringing upon the right of that
house to assent to the grant of sup-
plies, and they agreed to a resolution
"That this house, from the state of
public business, acquiesce in these
resolutions, although no act may be
passed to give them effect." 41
Hans. Deb. 1631-1635.
1 24 & 25 Vict. c. 39, ss. 13–15;
30 Vict. c. 7.
2 See 21 Vict. c. 6; 30 Vict. c. 4;
and see infra, p. 666.
640
GRANTS BY THE COMMONS,
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 appropriation can be
effected.1
Duties altered In the imposition and alteration of taxes, the effect given
after votes of
the Commons. to a vote of the Commons, in anticipation of the passing of
a statute, is more remarkable than in the voting of supplies.
It has been customary for the government to levy the new
duties, instead of the duties authorised by law, immediately
the resolutions for that purpose have been reported from a
committee, and agreed to by the house ;? or from the date
expressed in such resolution, although legal effect cannot
be given to them by statute, for some weeks, and may ulti-
mately be withheld by Parliament. It is obvious that this
custom is not strictly legal: but the ultimate decision of
Parliament is anticipated by the executive government, upon
its own responsibility. If the house have resolved that a duty
shall be reduced on and after a particular day, a treasury
order is issued, by which the officers for the collection of the
revenue are directed to collect the reduced duty, from the
1 Parliament was dissolved in April
1831, before any Appropriation Act
had been passed. The new Parlia-
ment met on the 14th June, and all
the grants were re-voted in the com-
mittee of supply. Before the disso-
lution of 1841, the supplies for six
months were regularly appropriated;
and prior to the dissolutions of 1857,
1859 and 1880, votes were taken on
account, and appropriated.
2 Customs Duties, 1842; Indian
Corn, 1846 ; Sugar Duties, 1845 and
1848. In the latter instance the
committee had resolved that the new
duties should commence on the 5th
July : · but as the resolution was
not reported until the 11th, it was
amended on the report by substi-
tuting 10th July. Alterations were
afterwards made in the scale of
duties sanctioned by that resolution.
Scotch and Irish Spirits, and Malt,
8th May 1854. Molasses having
been omitted from the resolution of
the 8th, it was proposed, on the 10th,
to supply the omission by a retro-
spective resolution, dating the in-
crease of duty from the 9th May:
but this course being objected to was
not pressed, although the revenue
officers had received instructions to
collect the increased duty. 132 Hans.
Deb. 3rd Ser. 1486; 133 Ib. 119.
3 Excise Duty on Spirits, and Cus-
toms Duties, 19th April 1858 ; 113
Com. J. 125. Chicory, 15th April
1861; 116 Com. J. 144. Tea and
Sugar Duties, 24th April 1863.
Sugar Duties, 15th April 1864 ; 119
Com. J. 170. Income Tax, 13th
April 1877; 132 Ib. 153. 263.
t
FUNCTIONS OF THE LORDS.
641
time stated in the resolution : but before they permit the
articles to be entered for consumption, they take a bond from
the owners or importers, by which the latter bind themselves
to pay the higher rate of duty, in case Parliament should
not, eventually, sanction the reduction. If, on the other
hand, a duty has been increased by a resolution of the house,
the revenue officers demand the increased duty, by virtue of a
treasury order, and will not permit the articles to be entered
for consumption until it has been paid, or security given for
its payment. For these official acts there is no legal autho-
rity at the time: but when the Act is subsequently passed,
it alters the duty from the day named in the resolution of the
Commons, however long a time may have since elapsed; and
thus the duties which have been already collected since that
day, become, ex post facto, the duties authorised by law.2:
The legal right of the Commons to originate grants cannot Exclusion of
be more distinctly recognised than by these various proceed- from altering
ings; and to this right alone their claim appears to have been supply bills.
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' amend-
ments to such bills were agreed to : but in 1671, the Com-
mons advanced their claim somewhat further, by resolving,
nem. con., “That in all aids given to the king by the Com-
mons, the rate or tax ought not to be altered;"3 and in
1678, their claim was urged so far as to exclude the Lords
from all power of amending bills of supply. On the 3rd of
July, in that year, they resolved,-
“That all aids and supplies, and aids to his Majesty in Parliament,
are the sole gift of the Commons; and all bills for the granting of any
such aids and supplies ought 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, purposes, considerations, conditions,
limitations, and qualifications of such grants; which ought not to be
changed or altered by the House of Lords." +
1 84 Hans. Deb. 3rd Ser. 783.
2 90 Ib. 1314 (Sugar Duties).
3 9 Com. J. 235.
4 Ib. 509,
P.
TT
642
INTERFERENCE OF THE 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 serious difference
can well arise. The Lords rarely attempt to make any but
verbal alterations, in which the sense or intention is not
affected; and even in regard to these, when the Commons
have accepted them, they have made special entries in their
Journal, recording the character and object of the amend-
ments, and their reasons for agreeing to them. So strictly
is the principle observed in all matters affecting the public
revenues, that-where certain payments have been directed, by
a bill, to be made into and out of the consolidated fund, the
Commons have refused to permit the Lords to insert a clause,
providing that such payments should be made under the
same regulations as were applicable by law to other similar
payments.
Rates and In bills not confined to matters of aid or taxation, but in
charges not
to be altered which pecuniary burthens are imposed upon the people, the
by the Lords. Lords may make any amendments, provided they do not alter
the intention of the Commons with regard to the amount of
the rate or charge, whether by increase or reduction; its dura-
tion, its mode of assessment, levy, collection, appropriation, or
management; or the persons who shall pay, receive, manage,
or control it;3 or the limits within which it is proposed to be
levied. As illustrative of the strictness of this exclusion, it
may be mentioned that the Lords have not been permitted to
make provision for the payment of salaries or compensation
to officers of the Court of Chancery, out of the Suitors'
Fund;4 nor to amend a clause prescribing the order in which
1 75 Com. J. 251.471; 81 Ib. 388;
92 Ib. 569; 122 Ib. 456; and see
infra, p. 645.
2 Naval Prize Balance Bill, 1850;
105 Com. J. 518.
3 Baths and Washhouses Bill, 1846;
101 Ib. 1234.
4 53 Geo. III. c. 24. Administra.
tion of Justice Bill, 1841. Master in
Chancery Bill, 1847; a clause to this
effect was struck out on third read-
ing, in the Lords.
IN MATTERS OF SUPPLY.
643
charges on the revenues of a colony should be paid. But
all bills of this class must originate in the Commons: as that
house will not agree to any provisions which impose a charge
of any description 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, according to more recent usage, will lay the
bills aside at once. In cases where amendments have affected
charges upon the people incidentally only, and have not
been made with that object, they have been agreed to. So
also, where a whole clause, or series of clauses, has been
omitted by the Lords, which, though relating to a charge,
and not admitting of amendment, yet concerned a subject
separable from the general objects of the bill. On the
on
i Canada Government Bill, 1840;
amendment withdrawn third
reading in the Lords.
2 See special entry, 24th July 1661,
on laying aside the Westminster
Paving Bill ; 8 Com. J. 311. Deo-
dands Abolition Bill, 1846; 101 Ib.
724. 1234. Railway Audit Bill, 1850;
105 Ib. 458. Metropolis Local Man-
agement Bill, 1855; 110 Ib. 458.
Parochial Schoolmasters (Scotland)
Bill, 1857; 112 Ib. 404.
3 Forfeited Estates (Ireland) Bill,
1700; 13 Ib. 318. 3 Hatsell, App.
No. 12. 105 Com. J. 518.
4 See supra, pp. 521, 588.
5 3 Hatsell, 155. Prisoners' Re-
moval Bill, 1849, in which the Lords
made the bill perpetual, instead of
being in force for three years. In
the Industrial Schools Bill, 1861,
the Lords struck out a limitation of
the act, and thereby extended the
charge; but the Commons agreed to
the amendment.
6 Coroners Bill, 1844. District Lu-
natic Asylums (Ireland) Bill, 1846.
Courts of Common Law Bill, 1853
(stamp duty in schedule). Turn-
pike Trusts Arrangements Bill, 1856
(clauses relating to insolvent trusts).
Poor Relief (Ireland) Bill, 1860. Pri-
sons (Scotland) Bill, 1861 (schedule).
In this case the bill constituted
prison boards, having taxing powers,
and in the schedule appointed the
numbers of each board, and the dis-
tricts by which they were to be re-
turned. The Lords desired to alter
the constitution of the Edinburgh
and Forfar boards, but being unable
to make such amendments, they
wholly omitted Edinburgh and For-
far from the schedule, and the Com-
mons made amendments which met
the views of the Lords. Metropolis
Local Management Act Amendment
Bill, 1862 (clause altering qualifica-
tion of vestrymen). Corrupt Prac-
tices at Elections Bill, 1863 (clause 11,
charging costs of commissions upon
local rates). Drainage (Ireland) Bill,
1863, Part I., omitted, which com-
prised many provisions which the
TT 2
644
INTERFERENCE OF THE LORDS
1
enable Lords
bills.
30th July 1867, it was very clearly put, by Earl Grey and
Viscount Eversley, that the right of the Lords to omit
a clause which they were unable to amend, relating to a
separate subject, was equivalent to their right to reject a
bill which they could not amend without an infraction of the
privileges of the Commons.
Expedients to It is sometimes convenient that a bill, intended to contain
to originate provisions of this character, should be first introduced into
the House of Lords; in which case, the bill is presented and
printed, with all the necessary provisions for giving full
effect to its object, and is considered and discussed in the
House of Lords in that form. But on the third reading,
any provisions which infringe upon the privileges of the
Commons are struck out, and the bill having been drawn
so as to be intelligible after their omission, is sent to the
Red ink Commons without them. These provisions, however, are
printed by the Commons in red ink, with a note that they
" are proposed to be inserted in committee." According to
the usual rule, they are supposed to be in blank: they form
no part of the bill received formally from the House of
Lords, and no privilege is violated: but the Commons are
thus put in possession of a bill containing every provision
which will be necessary for giving it full effect; and in
committee the words printed in red ink, if approved of, are
inserted.2
In 1846, the Lords extended the Contagious Diseases Bill
to Scotland and Ireland, but as there were rating clauses,
they inserted a clause, providing that such rating powers
should not be so extended. To this clause the Commons
clauses.
Lords could not have amended. In-
closure (No. 2) Bill, 1867, in which
the Lords omitted Elsdon, Roches-
ter, Northumberland.
1 Parliamentary Representation
Bill (clause 7); 189 Hans. Deb. 3rd
Ser. 411.
Good examples of this practice
are afforded by the Burial Grounds
Bill, in 1853 ; the Police (Scotland)
Bill, in 1857; the Probates, &c. Act
Amendment Bill, in 1858; the Cay-
man Islands Government Bill, 1863;
British North America Bill, 1867;
and Supreme Court of Judicature
Bill, 1873.
!
IN MATTERS OF SUPPLY.
645
disagreed, the Lords did not insist upon their amendment,
and thus the whole bill was extended to Scotland and
Ireland. In 1854, an ingenious expedient was resorted to,
in order to enable the Lords to commence the bill for the
continuance of the Crime and Outrage (Ireland) Act. As
some of the sections of that Act authorised charges upon the
county cess and the consolidated fund, the bill, as passed by
the Lords, continued the Act with the exception of these
sections; and this exception was omitted by the Commons,
and thus the entire Act was continued.
For some years, the Commons accepted provisions in bills Monies to be
provided by
from the Lords, creating charges,--not directly imposed by Parliament
the bill, --but to be defrayed out of monies to be provided
by Parliament: but exception being taken to such a pro-
vision in the Divorce Court Bill, on the 23rd August 1860,
the Speaker stated that the practice appeared to him to be
open to serious objections; and that he had already inti-
mated that any such provisions would hereafter be objected
to by himself, on behalf of the house. Such intimation,
he added, had already been attended to in other cases by
the Lords. Under these circumstances the privilege was
not insisted upon: but all such provisions have since been
printed in red ink, before the bills are sent to the Commons.
When any amendments of the Lords, though not strictly Lords'
amendments,
regular, do not appear materially to infringe the privileges when agreed
of the Commons, it has been usual to agree to them with to.
special entries in the Journal; as, that “they were only
for the purpose of making the dates uniform in the bill;"2
that “they only filled up blanks which had not been filled,
with the sums which were agreed to by the house, on the
report of a clause;"3 that "they were for the purpose of
rectifying clerical errors ;"4 or were merely verbal ;8 “were
1
1 115 Com. J. 500; 158 Hans.
Deb. 3rd Ser. 1628. 1734. Mr.
Speaker Denison's Note-Book.
2 80 Com, J. 579.
3 Ib. 631.
4 75 Ib. 251; 79 Ib. 524; 86
Ib. 684; 112 Ib. 393; 135 Ib. 196,
6 122 Įb.426; 135 Ib. 369,
646
INTERFERENCE OF THE LORDS IN MATTERS OF SUPPLY.
in furtherance of the intention of the House of Commons;”1
" were to make the schedule agree with the bill;"2 “to
render one clause consistent with another;"3 “ were rendered
necessary by several Acts recently passed ;"4 or, “were in
furtherance of the practice of Parliament." In 1857, an
amendment to the Valuation of Lands (Scotland) Bill was
agreed to, “it appearing that the same relates to the evidence
admissible in certain cases, and does not alter or otherwise
affect any valuation or assessment." 6
Tolls and In regard to private bills, however, the Commons agreed,
charges in
private bills. in 1858, to an important relaxation of their privileges; and
will accept "any clauses sent down from the House of Lords
which refer to tolls and charges for services performed, and
which are not in the nature of a tax."7
Pecuniary So strictly had the right of the Commons been maintained
penalties and
in regard to the imposition of charges upon the people, that
they denied to the Lords the power of authorising the taking
of fees, and imposing pecuniary penalties, or of varying the
mode of suing for them, or of applying them when recovered ;
though such provisions were necessary to give effect to the
general enactments of a bill.' A too strict enforcement of
this rule, in regard to penalties, was found to be attended
with unnecessary inconvenience; and, in 1831, the Commons
judiciously relaxed it; 10 and again, in 1849, they introduced
a further amendment of their rules, by the adoption of the
following Standing Orders :
fees.
“That with respect to any bill brought to this house from the
House of Lords, or returned by the House of Lords to this house, with
amendments, whereby any pecuniary penalty, forfeiture, or fee, shall
be authorised, imposed, appropriated, regulated, varied, or extin-
1 92 Com. J. 518; 112 Ib. 389; 116
Ib. 205; 120 Ib. 449; 122 Ib. 456 ;
136 Ib. 453.
2 107 Ib. 236; 137 Ib. 389.
3 Ib. 302; 114 Ib. 181.
4 92 Ib. 659; 112 Ib. 389.
5 90 Ib. 375; 91 Ib. 823. Seo
also other cases of special entries.
123 Ib. 345. 362; 127 Ib. 412; 131
Ib. 412.
0 112 Ib. 418.
7 27th July 1858.
8 Sth March 1692; 10 Com. J. 845.
9 See supra, p. 621. .
10 86 Com. J. 477.
FINANCIAL INQUIRIES BY THE LORDS.
647
guished, this house will not insist on its ancient and undoubted privi-
leges, in the following cases :
“1. When the object of such pecuniary penalty or forfeiture is to
secure the execution of the Act, or the punishment or prevention of
offences;
" 2. Where such fees are imposed in respect of benefit taken, or
service rendered, under the Act, and in order to the execution of the
Act, and are not made payable into the treasury or exchequer, or in
aid of the public revenue, and do not form the ground of public
accounting by the parties receiving the same, either in respect of deficit
or surplus;
“ 3. When such bill shall be a private bill for a local or personal
Act."
And, in conformity with these more recent rules, numerous
provisions have been accepted from the Lords, which, under
the former usage of Parliament, would have been inadmis-
sible 2
The principle of excluding the Lords from interference has Financial
even been pressed so far by the Commons, that when the inquiries by
Lords have sent messages for reports and papers relative to
taxation, the Commons have evaded sending them; and it
has been doubted whether members should be allowed to be
examined before a committee of the House of Lords upon
matters involving taxation, although in practice they have
been allowed to attend. But of late years, this punctilious
respect for privilege has not been so jealously asserted.
The constitutional power of the Commons to grant sup- Tacks to bills
of supply.
plies, without any interference on the part of the Lords, has
occasionally been abused by tacking to bills of supply enact-
ments which, in another bill, would have been rejected by
the Lords: but which, being contained in a bill that their
lordships had no right to amend, must either have been
1 104 Com. J. 23.
2 Court of Chancery (Duchy of
Lancaster) Bill, 1850. Burial Ser-
vice Bill, 1846 (burial fees). Sunday
Trading Bill, 1860; 159 Hans. Deb.
3rd Ser. 539, &c.
3 Burthens on land inquiry, 1946;
Local taxation inquiry, 1850; Civil
service superannuation, 1856; 111
Com. J. 380; and see 2 Lord Col.
chester's Diary, 152.
4 On the 24 th May 1867, the re-
port on Metropolis local taxation was
communicated to the Lords.
648
TACKS TO MONEY BILLS.
suffered to pass unnoticed, or have caused the rejection of a
measure highly necessary for the public-service. Such a pro-
ceeding invades the privileges of the Lords, no less than the
interference of their lordships in matters of supply infringes
the privileges of the Commons, and has been resisted by pro-
test, 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 bills of aid or supply, is unparliamentary, and tends to the de-
struction of the constitution of this government.'
There have been no recent occasions on which clauses have
been irregularly tacked to bills of supply, in order to extort
the consent of the Lords: but, in 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 inadvertently allowed to form part
of the bill, and it is extremely doubful whether it was a tack
within the intention of the Standing Order : as the bill was
not one of supply for the current year, and the clause was
not irrelevant to the other enactments of the bill.3 And in
the same year the Lords rejected the Malt Duties Bill, "on
account of its containing multifarious matter;" upon which
the Commons passed another bill, omitting some of the
matters contained in the former bill.4
Rejection of The functions of the House of Lords, in matters of supply
money bills by
the Lords. and taxation, being thus reduced to a simple assent or nega-
tive, it becomes necessary to examine how far the latter power
may be exercised, without invading the privileges of the
Commons. The legal right of the Lords, as a co-ordinate
branch of the legislature, to withhold their assent from any
bill whatever, to which their concurrence is desired, is un-
1 16 Lords' J. 369; 13 Com. J. 320.
2 17 Lords' J. 185 ; Lords' S. O.
No. 47.
3 46 Lords' J. 342.
4 62 Com. J. 61 ; and 46 Lords' J.
32; 8 Hans. Deb. 1st Ser. 427.
!
GRANT OF SUPPLIES,
649
questionable; and, in former times, their power of rejecting
a money bill had been expressly acknowledged by the Com-
mons:1 but the Lords had for centuries forborne to exercise
this power. They had, indeed, rejected numerous bills con-
cerning questions of public policy, in which taxation was
incidentally involved :? but bills exclusively relating to
matters of supply and ways and means they had hitherto
agreed to respect. At length, however, in 1860, the Com- Paper Duties
Bill, 1860.
mons determined to balance the ways and means for the
service of the year, by increasing the property tax and stamp
duties, and repealing the duties on paper. The increased
taxation had already received the assent of Parliament, when
the Lords rejected the Paper Duties Repeal Bill, and
thus overruled the financial arrangements voted by the Com-
. That house was naturally sensitive to this novel
encroachment upon its peculiar privileges : but as the Lords
had exercised a legal right, and their vote was irrevocable
during that session, it was judiciously resolved, after full
inquiry and consideration, to maintain the privileges of the
house, not by vain remonstrances, but by an assertion of its
paramount authority in the inposition and repeal of taxes, at
once dignified and practical. Accordingly, on the 6th July,
resolutions were agreed to, affirming,
mons.
"1st. That the right of granting aids and supplies to the Crown is
in the Commons alone.” 2nd. That the power of the Lords to reject
bills relating to taxation " was justly regarded by this house with
peculiar jealousy, as affecting the right of the Commons to grant the
supplies, and to provide the ways and means for the service of the
year :
" and 3rd. “That to guard, for the future, against an undue
exercise of that power by the Lords, and to secure to the Commons
their rightful control over taxation and supply, this house has in its
own hands the power so to impose and remit taxes, and to frame bills
of supply, that the right of the Commons as to the matter, manner,
measure, and time may be maintained in violate.”3
3
1 3 Hatsell, 405. 422, 423; 2 May,
Const. Hist. (7th edit.), 105.
2 See report on Tax Bills, 1860.
Report on Tax Bills, 1860; 115
Com. J. 360 ; 159 Hans. Deb. 3rd
Ser. 1383. 2 May, Const. Hist. (7th
edit.), 108.
650
REJECTION OF MONEY BILLS BY THE LORDS.
Composite
tax acts.
The significance of these resolutions was illustrated in the
next session, when the Commons, without exceeding their
own powers, were able to repel the recent encroachment of
the Lords, and to vindicate their own financial ascendency.
They again resolved that the paper duties should be repealed;
but instead of seeking the concurrence of the Lords to a
separate bill for that purpose, they included the repeal of
those duties in a general financial measure, for granting the
property tax, the tea and sugar duties, and other ways and
means, for the service of the year, which the Lords were
constrained to accept. The financial scheme was presented
for acceptance or rejection, as a whole; and, in that form,
the privileges of the Commons were secure. And the budget
of each year has since been comprised in a general or com-
posite act.
Nor was there anything novel or unprecedented in this
proceeding. In 1787, Mr. Pitt's entire budget was com-
prised in a single bill, and during the French war, great
varieties of taxes were imposed, and continued in the same
acts. For several years after the peace, the duties on malt,
sugar, tobacco, foreign spirits, pensions and personal estates,
were continued annually in a single act, until these duties
were gradually made permanent.4
Let us now proceed to consider the constitutional principle
by which other branches of the legislature are governed.
The Crown, acting with the advice of its responsible minis-
ters, being the executive power, is charged with the manage-
ment 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 neces-
sities of the government, and the Commons grant such aids
or supplies as are required to satisfy these demands; and
Constitutional
principle of
supply.
1 24 & 25 Vict. c. 20; 162 Hans.
Deb, 3rd Ser. 594; 163 Ib. 69, &c.
2 27 Geo. III. c. 13.
3 35 Geo. III. c. 1; 36 Geo. III.
C. 1 ; 39 & 40 Geo. III. c. 3; 48
Geo. III. c. 2.
4 The duty on malt was made per-
petual in 1822, on tobacco in 1826,
on offices and pensions in 1836, and
on sugar in 1846.
.
GRANT OF SUPPLIES.
651
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, and for supplying general
deficiencies in the revenue. The Crown has no concern in
the nature or distribution of the taxes : but the foundation
of all parliamentary taxation is its necessity for the public
service, as declared by the Crown through its constitutional
advisers.
Until 1863, however, there was a remarkable exception to Militia
this constitutional rule, in the case of the charge for the estimates.
disembodied militia. The Commons there took the initia-
tive: the estimate was prepared by a committee; and when
its report was received, it was referred to the committee of
supply, and the Queen's recommendation was signified. But
inconveniences having arisen from this separation of the esti-
mates for military expenditure, and from divided respon-
sibility in the preparation of them, the house agreed on the
9th February 1863, that this practice should be discontinued ;
and that, in future, the militia estimates, like all other esti-
mates for the public service, should be prepared on the
responsibility of ministers of the Crown.
The principle of waiting for the suggestion and authority Recommenda-
of the Crown for the voting of public money, is not confined Crown.
to the annual grants. By a Standing Order, 20th March
1866,2 “ this house will receive no petition for any sum
relating to public servico, or proceed upon any motion for a
grant or charge upon the public revenue, whether payable
out of the consolidated fund, or out of monies to be provided
1
tion of the
1 169 Hans. Deb. 3rd Ser, 198.
2 Being an amendment of the or-
ders of the 11th December 1706, and
25th June 1852,
652
RECOMMENDATION OF THE CROWN.
of India.
by Parliament, but what is recommended from the Crown." i
And this rule is extended, by the uniform practice of the
house, to any motion which, though not directly proposing a
grant, or charge upon the public revenue, involves the ex-
penditure of public money. When a petition praying for
compensation, or other pecuniary aid, is duly recommended,
it is either referred to a committee of inquiry, or directly
Revenues to the committee of supply. And by a Standing Order of
the 21st July 1856, “this house will not receive any petition,
or proceed upon any motion for a charge upon the revenues
of India, but what is recommended by the Crown.”
Reports re- So strictly has this principle been enforced, that the house
commended
by the Crown has even refused to receive a report from a select committee,
suggesting an advance of money, because it had not been
recommended by the Crown. On the 15th June 1837, notice
was taken that a report on the petition of Messrs. Fourdrinier
"contained a recommendation for public compensation for
losses incurred by the patentees, and that the same has not
been recommended by the Crown :"4 and the report was
recommitted in order to remove this informality. Such an
objection to a report would seem to have been premature, as
no motion had been founded upon it, and none could have been
made unless recommended by the Crown: but it proceeded
upon the same principle as that observed in regard to peti-
tions, and is a good example of the strictness with which the
rule has been enforced. In several similar cases, committees
have escaped from an infringement of the rule, by a more
guarded phraseology; and, of late years, a less strict inter-
pretation of the rule has prevailed.5
On the same principle, of imposing checks upon solicitations
compounding
1 223 Hans. Deb. 3rd Ser. 879. 5 E. g., Resolution of Committee
2 Captain Manby, 1823; 78 Com. on East India Finance, 1873, recom-
J. 261. 285. Mr. McAdam, 1825 ; mending the payment of 10,0001. for
bringing witnesses from India. Re-
3 Mr. Burgess, 1822; 77 Ib. 448. port on Lord Cochrane's claim, 1877.
4 92 Com. J. 478.
Petitions for
Crown debts.
80 Ib. 309.
RECOMMENDATION OF THE CROWN.
653
for money, and moderating the liberality of Parliament, there
is a Standing Order, 25th March 1715,
" That this house will not receive any petition for compounding any
sum of money owing to the Crown upon any branch of the revenue,
without a certificate from the proper officer or officers annexed to the
said petition, stating the debt, what prosecutions have been made for
the recovery of such debt, and setting forth how much the petitioner .
and his security are able to satisfy thereof." I
grants.
In addition to the necessity of a recommendation from the Motions for
Crown, prior to a vote of money, the house has interposed
another obstacle to hasty and inconsiderate votes, which in-
volve any public expenditure.
By Standing Order, 20th March 1866,
If
any
motion be made in the house for any aid, grant, or charge
upon the public revenue, whether payable out of the consolidated
fund, or out of monies to be provided by Parliament, or for any charge
upon the people, the consideration and debate thereof shall not be
presently entered upon, but shall be adjourned till such further day
as the house shall think fit to appoint; and then it shall be referred
to a committee of the whole house, before any resolution or vote of the
house do pass therein.”
A similar rule was made a Standing Order on the 29th
March 1707, viz.,
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."3
This order was renewed 14th April 1707, 7th February
1708, and 29th November 1710, and is constantly observed
in the proceedings of the house.4
The territories of the East India Company having been East India
revenues.
transferred to the Crown, by statute, in 1858; and it being
proposed, in the following year, to raise a loan of 7,000,0001.,
chargeable upon the revenues of India, it was held, after
1 18 Com. J. 23.
2 Being an amendment of the
resolution 18th February 1667, and
the Standing Order, 25th June 1862.
3 15 Com. J. 367.
4 15 Ib. 385 ; 16 Ib. 94. 405.
654
EAST INDIA REVENUES.
much consideration, that the Queen's recommendation should
be signified, and the bill founded upon the resolution of a
committee of the whole house. By the Government of India
Act, 1858, the revenues of India not being applicable to
expeditions beyond the frontiers without the consent of both
Houses of Parliament, it was proposed, in 1867, to employ
Indian troops in the Abyssinian war, and to continue the
charge of their ordinary pay upon the Indian revenues: but
with contingent charges upon the British exchequer. Under
these circumstances, it was determined, on full consideration,
that the resolution approving this charge should be voted in
committee. This resolution was communicated to the Lords,
and their concurrence obtained. But, in December 1878,
when it was merely sought to obtain the consent of both
houses, in compliance with the terms of the Act, to the
application of the Indian revenue to the Afghan war, no
such preliminaries were deemed necessary, and the consent of
both houses was signified by resolutions agreed to indepen-
dently. And on the 1st August 1882, the same course was
taken in reference to the despatch of a military force from
India, for service in Egypt.6
But the rules applicable to grants of money, and motions
for increasing the burtbens upon the people, do not apply to
resolutions expressive of any abstract opinion of the house
upon such matters. Such resolutions have been allowed
upon the principle, that not being offered in a form in which
Abstract reso-
lutions.
1 114 Com. J. 55; and again in
1860; 115 Ib. 455 ; Military Orphan
Fund, 1866; 121 Ib. 156, &c.
2 21 & 22 Vict. c. 106, s. 55.
3 28th Nov. 1867; 123 Com. J. 15.
Ib. 18. 26.
6 12th and 17th Dec, 1878.
6 137 Com. J. 416.
7 Prince of Wales, 24th May 1787.
National monuments and works of
art, 16th April 1844. Emigration
of young persons, 6th June 1848.
Danish claims, 9th June 1841, 26th
June 1851. Scotch inspectors and
surveyors of taxes, 23rd June 1857.
River Thames (amendment on going
into committee of supply), 9th July
1858. National defences (Mr. Hors-
man), 29th July 1859. Recreation
grounds, 15th May 1860. Harbours
of refuge, 6th May 1862. Sailors'
Homes, 24th April 1863. County
Court Judges (salaries), 29th June
1869. Harbours of refuge, 1871,
1876, and 1877. Irish Sea Coast
Fisheries, 1874, &c.
!
ROYAL SPEECH.
655
a vote of the house for granting money, or imposing a
burthen, can be regularly agreed to, they are barren of
results, and are, therefore, to be regarded in the same light
as any other abstract resolutions. But for that very reason,
they are objectionable; and being also an evasion of whole-
some rules, they are discouraged as much as possible.
As a check upon corrupt or improvident contracts, it is Packet and
telegraphic
provided by Standing Orders, that in every contract for contracts.
packet and telegraphic services, beyond sea, a condition
should be inserted that the contract shall not be binding
until it has been approved of by a resolution of the house.
Every such contract is to be forthwith laid upon the table,
if Parliament be sitting, or otherwise within fourteen days
after it assembles, with a copy of a Treasury minute setting
forth the grounds upon which the contract was authorised.
No such contract is to be confirmed, nor power given to the
Government to enter into agreements, by which obligations
at the public charge are undertaken, by any private act.?
All such contracts are, accordingly, approved by resolutions
of the house.3
In compliance with these several rules,—for receiving
recommendations from the Crown for the grant of money,
for deferring the consideration of motions for grants of
money until another day, and for referring them to a com-
mittee 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 Royal speech.
from the throne, addresses the Commons; demands the
annual provision for the public service; and acquaints them
that she has directed the estimates to be laid before them.
1 On the 16th June 1873, in the
case of the Cape of Good Hope and
Zanzibar mail contract, notice being
taken that a Treasury letter had
been presented instead of a Treasury
minute, the order for resuming the
adjourned debate on the contract was
discharged; and amended papers
were presented.
2 Standing Orders, 13th July 1869.
3 125 Com. J. 267. 414, &c.
656
COMMITTEE OF SUPPLY.
ways and
means.
when pre-
Committees of
Directly the house has agreed to the address in answer to
supply and
the Queen's speech, the committees of supply and ways and
means are appointed for a future day, by virtue of a Standing
Order of the 28th July 1870.1
Estimates, In order that the house may be informed, as early as
sented. possible, of the expenditure for which it will have to pro-
vide, the following resolution was agreed to, 19th February
1821:-
“That this house considers it essentially useful to the exact per-
formance 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 15th 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 com-
mittee of supply, when Parliament shall not be assembled till after
Christmas." 2
Annual
grants
described.
This resolution was not made a Standing Order; but its
directions have been uniformly observed, as far as possible,
by the several departments. The estimates for civil services,
commonly known as the civil service estimates, and for the
revenue departments, are also presented, not much later, by
command of her Majesty.
Before the proceedings of the committee of supply are
entered upon, it should be understood that a large propor-
tion of the annual expenditure consists of payments out of
the consolidated fund, secured by various Acts of Parliament.
For these charges the Commons had provided, in the first
instance, before the passing of the Acts by which they are
secured: but such payments no longer require the annual
sanction of Parliament, as permanent statutes now authorise
the application of the public income to the discharge of its
legal liabilities. But for the expenditure not secured by
statute, the Commons provide, annually, by specific grants,
which authorise the payment of distinct sums of money, for
1 By this Standing Order the
former preliminaries were discon-
tinued. See 6th edition, 551.
2 76 Com. J. 87.
COMMITTEE OF SUPPLY.
657
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 Committee of
circulated amongst the members, the sittings of the com-
supply.
mittee of supply begin. The estimates, and any accounts
which are necessary to guide the committee, are referred; and
occasionally treaties and other State papers. In the case of
the army and navy estimates, the member of the administra-
tion representing the department first explains to the com-
mittee such matters as may satisfy them of the general cor-
rectness 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 Chairman of
the committee of supply is to elect a chairman, who, when supply and
chosen, continues to preside over that committee for the re-
mainder of the Parliament. If any difference should arise
in his election, the Speaker resumes the chair, and the house
determines what member shall take the chair of the com-
mittee, as in the case of other committees of the whole house. 4
This official chairman, who is designated the chairman of the
committee of ways and means, also presides over the com-
mittee 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."
Formerly the committee of ways and means was not Committee of
appointed until the committee of supply had voted a sum means.
of money, as the foundation of its future proceedings; but
committees of
ways and
means.
ways and
1 63 Com. J. 429 ; 68 Ib. 402; 73
Ib. 49; 74 Ib. 577.
2 In some cases this practice has
led to inconvenient discursiveness in
debate. See 145 Hans. Deb. 3rd
Ser. 1689.
3 His salary has been voted since
1800, at first by address, and after-
wards in the annual estimates. Ho
had previously been paid out of the
Civil List; 55 Com. J. 790; 8 Hans.
Deb. 231. See also Report on the
Office of Speaker, 1853.
+ See supra, p. 428; and Votes,
2nd March 1883 (Sir Arthur Otway).
5 See Book III. Chapter XXVI.
ľ.
U U
658
COMMITTEES OF SUPPLY,
since 1874, both committees have been appointed immediately
after the address has been agreed to. But the committee
is not permitted to vote ways and means, in excess of the
expenditure voted by the committee of supply. Thus, on
the 16th March 1858, when the committee of ways and
means stood the first order of the day, and it was pro-
posed to vote amounts equal to the supplies granted on a
previous day, as well as to other votes agreed to in the com-
mittee of supply, and about to be reported, the order of the
day was postponed until after the report of supply, which
was the next order: and when the resolutions of the com-
mittee of supply had been agreed to, the ways and means
were voted to the extent of all the supplies previously granted.
According to former practice, votes were not taken in com-
mittee of ways and means until after the votes of committee
of supply had been reported. But in 1845, and again in
1855, at the end of the session, a deviation from this rule
was permitted, and a vote of ways and means was taken, in
excess of the supplies reported from the committee of suppiy.
And, in order to save time, votes on ways and means are now
taken after the supply votes have been agreed to, and before
they are reported: but the supply resolutions are reported
and agreed to before those of ways and means. The last vote
in the committee of ways and means, at the end of the session,
is for a sum out of the consolidated fund which balances the
several sums previously voted in the committee of supply.
When the committee of supply has determined the number
of men who shall be maintained, during the year, for the
army and for the sea service, respectively, and these resolu-
tions have been agreed to by the house, the Army (Annual)
Bill is immediately ordered to be brought in. Formerly the
Mutiny Bill, and the Marine Mutiny Bill, were then intro-
duced. The former provided for the discipline of the troops,
Former
Mutiny bills.
1 In 1832 an Act was passed con-
tinuing the Mutiny Act, which ex-
rired on the 31st March, to the 25th
April; and according to the later
practice the Mutiny Act continued in
force in Great Britain until the 25th
.
AND WAYS AND MEANS.
659
3
and the latter for the regulation and discipline of the royal
marines while on shore, and subjected them to martial law:
the discipline of the seamen, and of the royal marines while
afloat, being secured by permanent statutes. By passing
the annual Mutiny Acts in this manner, the Commons re-
served to themselves the power of determining, not only the
number of men and the sums which should be appropriated,
in each year, to their support: but whether there should be
any standing army at all. Without their annual sanction
the maintenance of a standing army, in time of peace, would
have been illegal; and the army and marines on shore would
have been released from all martial discipline and subordi-
nation. This usage afforded an additional security for the
annual meeting of Parliament, which is otherwise ensured
by the system of providing money for the public service, by
annual grants.
In 1879, a considerable change was introduced into the Army Dis-
methods of providing for the discipline and regulation of Regulation
the army. Hitherto, every statutory provision for these Act, 1879.
purposes had been comprised in the Annual Mutiny Act.
But in this year, a permanent act was passed for the dis-
cipline and regulation of the army. It was, however, pro-
vided that this Act should not come into force, except in
pursuance of an annual act. In this way the constitutional
principle of an annual parliamentary sanction to the main-
tenance of a standing army was preserved, while a settled code
of military law was established. This act also embraced the
discipline of the royal marine forces while on shore, which had
formerly been the subject of the Annual Marine Mutiny Act.
By a custom nearly as ancient as the committees of supply Sit on Mon-
day, Wednes-
and ways and means themselves, these committees have been day
, and
Friday
April, and until later periods else- Vict. c. 59. 62 ; 20 Vict. c. 1.
where, according to the remoteness 2 See preamble to annual Mutiny
of the places in which troops are
quartered. 21 Vict. c. 9, s. 107, &c. 3 See supra, p. 59.
1 22 Geo. II. c. 33; 29 Geo. II. 4 See 11 Com. J. 98. 501 (16th
c. 27; 19 Geo. III. c. 17; 10 & 11 February 1693, &c.)
Act.
UU 2
660
COMMITTEES OF SUPPLY,
appointed to sit every Monday, Wednesday, and Friday ;
and until recently were not permitted to sit on any other
days: but in 1852, they were also allowed to be appointed for
any other day on which orders of the day had precedence; 1
and, by a Standing Order of the 3rd May 1861, they may
now be appointed for any day on which the house meets for
the despatch of business. But, though the Standing Order
directs that these committees shall be appointed to sit on cer-
tain days, they•can only be so appointed by the order of the
house itself; and if the house be counted out on the order of
the day, or the question for Mr. Speaker leaving the chair be
superseded by adjournment, an order is made at the next
sitting of the house, for the re-appointment of the committee ;?
and until such an order has been made, the committees will
not stand among the orders of the day. On Friday, the
17th May 1861, the house having been counted out on the
order of the day for committee of supply, the order for the
committee to sit again on the next meeting of the house, on
Thursday the 23rd May, could not be made : but, as the
sitting of the committee was urgently desired on that day,
Lord Palmerston gave notice that he would move at half-
past four, that the house will immediately resolve itself into
the committee of supply, by which expedient the difficulty
of the case was overcome;3 and this course has since been
occasionally taken on similar occasions.
The ancient constitutional doctrine that the redress of
grievances is to be considered before the granting of sup-
Amendments
on going into
committee.
1 Standing Orders, 25th June 1852,
and 19th July 1854.
2 125 Com. J. 284.
3 Above the orders of the day,
and between lines, “Supply Com-
mittee" was also printed in italics.
4 26th June 1876; 23rd June 1877.
See Mr. Speaker's explanation, 235
Hans. Deb. 3rd Ser. 203. 261 ; 13th
May 1878, &c. On Friday, 31st
May 1878, the house having ad-
journed durivg a debate upon an
amendment on going into committee
of supply, relating to university
education in Ireland, the committee
of supply was revived on Monday,
3rd June, by a resolution that the
house will immediately resolve itself
into committee of supply; but the
amendment could not be revived with
it. A member, however, rose and
again moved the same amendment,
and the debate was continued.
AND WAYS AND MEANS,
661
plies, is now represented by the practice of permitting every
description of amendment to be moved on the question for
the Speaker leaving the chair, before going into the com-
mittee of supply, or ways and means. Upon other orders of
the day, such amendments must be relevant: but here they
are permitted, except under certain conditions, to relate to
every question upon which any member may desire to offer a
motion. Since 1872, however, the house had imposed, from
time to time, some restraints upon this most inconvenient
practice :1 and by Standing Order, 27th November 1882,
“Whenever the committee of supply stands as the first order of the Committee of
day on Monday or Thursday, Mr. Speaker shall leave the chair with- supply on
Monday and
out putting any question, unless on first going into supply on the Thursday.
army, navy, or civil service estimates respectively, or on any vote of
credit, an amendment be moved, or question raised, relating to the
estimates proposed to be taken in supply."
On the 1st March 1883, the Speaker laid it down that
under this order he was bound to leave the chair when
supply stood the first order on Monday or Thursday, except
on the first occasion of considering the regular annual esti-
mates, or a vote of credit; and accordingly ruled that Mr.
Onslow could not move an amendment on going into com-
mittee to consider supplementary estimates. And this ruling
was repeated on the following day, and is now the esta-
blished practice.
In 1861, the practice of moving amendments on going
into committee of supply on Fridays received definite sanc-
tion by a Standing Order, which requires,
" That while the committees of supply and ways and means are
open, the first order of the day on Friday shall be either supply or
ways and means; and that on that order being read, the question
shall be proposed, “That Mr. Speaker do now leave the chair.'” 2
1 26th Feb. 1873; rule relaxed
17th Feb. 1876. See Report of the
Committee on Public Business, in
1878.
2 Standing Order, 3rd May 1861.
This order does not apply to morn-
ing sittings, which are specially ap-
pointed for particular business, in-
dependently of the evening sittings;
Mr. Speaker Denison's Note-Book,
June 1863; 171 Hans. Deb. 3rd Ser.
707. On the 12th July 1867, this
662
COMMITTEES OF SUPPLY,
1
Friday has, in effect, become a notice day, with a contingent
residue of time for votes in supply and other government
orders : but the motions assume the form of amendments, or
discussion, on going into committee of supply. So distinctly
is Friday regarded as a notice day, that government tellers
are not required to be named in support of the question for
the Speaker now leaving the chair; but tellers may be
appointed for and against the amendment, as if it were an
original motion.
Where there are several notices of amendments on going
into committee, it should be borne in mind, that while
the Speaker endeavours to facilitate their being moved, as
far as possible, in their order, he cannot call upon any
member for that purpose until he rises to speak. When
the first amendment is negatived, by the house affirming
that the words proposed to be left out shall stand part
of the question, no other amendment can be moved: but if
amendments are by leave of the house withdrawn, other
amendments can be offered. On the 16th June 1865, on
the first amendment, the question “that the words proposed
to be left out stand part of the question was negatived :
but the question for adding the words of the amendment
was also negatived. Two other amendments were then pro-
posed for adding words to the original question, now reduced
to the word “that," but withdrawn; and a third was put
and negatived; when at length words were added for the
postponement of the committee to another day.3 On the
11th August 1871, the question “ that the words proposed to
be left out stand part of the question," having been negatived,
order was read and suspended, and of Intoxicating Drinks on Sunday,
the Representation of the People 25th June 1880; 135 Ib. 247. Con-
Bill was set down as first order of tagious Diseases Acts, 20th April
the day; 122 Com. J. 365.
1883 (see Mr. Speaker's ruling).
1 Mail Contracts, 12th Mar. 1869; Local Option, 27th April 1883; Mr.
124 Com. J. 80. Monastic Institu- Speaker Brand's Note-Book.
tions, 31st March 1876; 131 Ib. 132. 2 174 Hans. Deb. 3rd Ser. 1960.
East India (Duty on Cotton Goods), 3 Votes, p. 585. 180 Hans. Deb.
4th April 1879; 134 Ib. 136. Sale 3rd Ser. 369-427.
ANI) 1.1YS AND ME.INS,
663
and also the question for adding the words of the proposed
amendment, other words were added to the original question,
by which the house agreed to resolve itself immediately into
committee of supply. It is also a common practice, without
moving any amendment, to call the attention of the house to
particular subjects, on the question for the Speaker leaving
the chair, the rules of relevancy in debate, as well as in
amendments, being wholly ignored on these occasions : with
these exceptions, that a member may not discuss any pre-
vious or intended votes of the committee of supply, or items
in the estimates, nor any resolution to be proposed in the
committee of ways and means;* nor any other order of the
day; or motion of which a notice has been given. A mem-
ber who has spoken to one amendment, may speak again
after another amendment has been proposed : but if he has
spoken in a debate raised upon any subject, where no amend-
ment has been moved, he cannot speak again while the main
question is still before the house : but he may speak if an
amendment be afterwards proposed. An amendment, if
carried, supersedes the question for the Speaker now leaving
the chair, but not the order of the day, which has been read.
The committee cannot be suffered to drop; and a time must
therefore be appointed for its sitting. Generally another day
.1 126 Com. J. 416.
2 2nd June 1856 (Mr. Blackburn),
not reported. On the 25th July 1861,
Mr. Hope rose to move as an amend-
ment to the question for Mr. Speaker
to leave the chair, an address pray-
ing that a sum already voted for the
Royal Military College at Sandhurst
should not be expended until the house
had had time to consider the plan of
certain proposed buildings: but the
Speaker ruled that such an amend-
ment was out of order, and could not
be put from the chair, as the vote to
which it referred had already been
agreed to in, committee of supply,
and by the house, and could not be
reopened in that form; 164 Hans.
Deb. 3rd Ser. 1498; Mr. Speaker
Denison's Note-Book. See also 24th
Feb. 1862 ; 165 Hans. Deb. 3rd Ser.
639. Dockyard Commission, 22nd
Feb. 1864 ; 173 Hans. Deb. 3rd Ser.
903. Greenwich Hospital, 5th Aug.
1867; 189 Ib. 857. Number of land
forces, 4th March 1872; 209 Ib. 1327.
3 On the 21st April 1864, Mr.
Sheridan's amendment on fire in.
surances was framed so as to avoid
irregularity ; 174 Hans. Deb.
3rd Ser. 1439.
4 142 Ib. 1026; 146 Ib. 1699; and
sce supra, p. 352.
5 175 Ib. 770.
664
COMMITTEES OF SUPPLY,
has been appointed;1 but when it is still desired to proceed
further, on the same night, with the order of the day, the
house agrees to a resolution that it will immediately resolve
itself into the committee. The question for the Speaker
now leaving the chair is then proposed a second time ;2 and
though amendments may again be moved or discussions
raised, the house is generally allowed, at length, to proceed
with the other business appointed for the day, without further
opposition. Sometimes the house has divided upon the
question for the Speaker to leave the chair, without any
amendment having been proposed. Discussions have some-
times arisen upon the question of appointing another day for
the committee of supply, instead of proceeding with the re-
maining notices on the paper.5 But the choice must neces-
sarily be determined by the hour at which the debate upon
1 14th March 1879, Ordnance Corps;
134 Com. J. 94. 4th April 1879,
East India Cotton Goods; Ib. 136.
2nd May 1879, Irish Land Act, 1870;
Ib. 177. 20th June 1879, Cyprus
Ordinances; Ib. 285. 4th July 1879,
Agricultural Distress; Ib. 319. 18th
June 1880, Local Option; 135 Ib. 223.
16th July 1880, Prince Louis Napo-
leon's Monument; Ib. 309. 23rd
July 1880, Armenia ; Ib. 330. 13th
August 1880, West of Ireland ; Ib.
382. 11th March 1881, Ancient
Monuments ; 136 Ib. 122. 13th May
1881, Minister of Agriculture and
Commerce; Ib. 235.
20th April
1883, Contagious Diseases Acts; 138
Ib. 154. 27th April 1883, Local
Option; Votes, p. 358. 4th May
1883, Railway Commission, Votes,
versity Education (Ireland), 3rd June
1878 ; 133 Ib. 266. Turkey and
Greece, 6th May 1881 ; 136 Ib. 219.
National Gallery, 9th June 1881 ;
136 Ib. 288. Compulsory Education
(Ireland), 2nd March 1883; Votes,
p. 106. On the 27th July 1874, this
proceeding was adopted in the case
of the committee of ways and means,
after an amendment to the question
for the Speaker to leave the chair
had been agreed to (Monastic and
Conventual Institutions).
3 174 Hans. Deb. 3rd Ser. 1960;
205 Ib. 1515; 206 Ib. 322.
4 7th March 1783; 24th May 1860.
5 5th May 1871; see Mr. Speaker's
observations, 206 Hans. Deb. 3rd
Ser. 322 ; 6th April 1883, when Mr.
Speaker stated that he was not aware
of any order or practice which ren-
dered it obligatory on the govern-
ment to set up supply again, on
Friday; 4th May 1883, when a warm
debate was raised upon this ques-
tion.
p. 392.
2 Flogging in the Army, 15th
March 1867; 122 Com. J. 106. Duchy
of Lancaster, 5th May 1871; 206
Hans. Deb. 3rd Ser. 323. Slave
Trade (Egypt and Turkey), 16th
March 1877 ; 132 Com. J. 119. Uni-
AND WAYS AND MEANS,
665
these commit-
the amendment is closed, the pressure of notices still stand-
ing upon the paper, the expectation of obtaining votes in
committee of supply, and the importance or urgency of other
orders of the day, for the same evening.
As the committees of supply and ways and means continue Functions of
to sit during the session, are presided over by the same chair- tees distin-
man, are both concerned in providing money for the public guished.
service, and are governed by the same rules and usage, it
will be necessary to distinguish their peculiar functions,
before a more detailed account is given of the forms of proce-
dure which apply equally to both. The general resemblance
between these committees has sometimes caused a confusion
in regard to the proper functions of each: but the terms of
their appointment define at once their distinctive duties. The
committee of supply considers what specific grants of money
shall be voted, as supplies demanded by the Crown, for the
service of the current year, and 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 determines in what manner the necessary
funds shall be raised, to meet the grants which are voted by
the committee of supply, and which are otherwise required
for the public service. The former committee controls the
public expenditure; the latter provides the public income:
the one authorises 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
merating, more particularly, the specific matters considered of supply.
by each. The committee of supply votes every sum which
is granted annually for the public service--the army, the
navy, and the several civil and revenue departments. But
the fact already explained should be constantly borne in
mind, that in addition to these particular services, which
are voted in detail, there are permanent charges upon the
public revenue, secured by Acts of Parliament, which the
the committee
666
COMMITTEES OF SUPPLY, AND WAYS AND ME:NS.
fund.
Functions of
of
ways and
means,
Consolidated Treasury are bound to defray, as directed 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
some other public officers. These are annual charges upon
the consolidated fund: but the specific appropriation of the
respective sums necessary to defray those charges having
been permanently authorized by statutes, is independent of
annual grants, and is beyond the control of the committee
of supply.
Parliament has already empowered the Treasury to apply
the committee
the consolidated fund to the payment of these statutory
charges when they become due: but this fund cannot be
applied generally, to meet the supplies voted for the service
of the year, without the annual authority of Parliament.
For this purpose the committee of ways and means votes
general grants from time to time out of the consolidated
fund,“ towards making good the supply granted to her
Majesty ;” and bills are founded upon these resolutions of
the committee, by which authority is given to issue the
necessary amounts from the consolidated fund, for the
service of the year.
Exchequer It was formerly one of the functions of the committee of
ways and means to vote the sums to be annually raised by
exchequer bills : but by 24 & 25 Vict. c. 5, the Treasury is
empowered to issue new exchequer bills to replace former
exchequer bills to an amount not exceeding 13,230,0001. ;
the monies raised by such bills being carried to the con-
solidated fund, and the principal and interest being paid out
of that fund. But if a larger amount of exchequer bills
should be required, in any year, it would be voted in com-
mittee of ways and means. The issue of exchequer bonds
is still authorized by resolutions of the committee of ways
and means; and the sums necessary to pay off those be-
coming due are voted in committee of supply.
Annual
One of the most important occasions for which the com-
budget.
bills.
BUDGET.
667
mittee of ways and means is required to sit, is for receiving
the financial statement for the year from the chancellor of
the exchequer. When some progress has been made in
voting the estimates for the army and navy, and other
public services, and the minister has had sufficient time to
calculate the probable income and expenditure for the
financial year, commencing on the 1st April, he is pre-
pared to determine what taxes should be repealed, reduced,
continued, or augmented, or what new taxes must be im-
posed. As it is the province of the committee of ways
and means to originate all taxes for the service of the
year, it is in that committee that the chancellor of the
exchequer usually developes his views of the resources of
the country, communicates his calculations of the probable
income and expenditure, and declares whether the burdens
upon the people are to be increased or diminished. This
statement, familiarly known as “the budget," 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. Financial statements, how-
ever, have not invariably been made in the committee of ways
and means.
On the 3rd December 1852, and again on the
13th February 1857,3 the chancellor of the exchequer made
his statement in committee of supply, before the usual votes
for the service of the year had been taken. In 1823, the
budget was brought forward in the committee on the
Exchequer Bills bill. In 1860, it was introduced in a
committee on the Customs Acts. In 1845 and 1848 also,
the budgets, though brought forward in committee of ways
1. Or sometimes the first lord of the
treasury, if a member of the House
of Commons.
2 123 Hans. Deb. 3rd Ser. 836.
3 144 Ib. 631.
4 9 Ib., N. S. 1413.
5 156 Hans. Deb. 3rd Ser. 812.
668
PROCEEDINGS IN COMMITTEE.
Charges of
collection,
and means, were presented in anticipation of the customary
votes in the committee of supply.
It may here be observed that, until 1854, the charges of
collecting the revenue were deducted by each department,
from the gross sums collected ; and thus neither the whole
produce of the taxes, nor the cost of collecting them, was
within the immediate control of Parliament. On the 30th
May 1848, the house resolved, “That this house cannot be
the effectual guardian of the revenues of the state, unless the
whole amount of the taxes, and of various other sources of
income received for the public account, be either paid in or
accounted for to the exchequer;"? but it was not until 1854
that an act was passed, by which the whole of this expenditure
was brought under the supervision of the House of Commons;
and estimates were voted for the revenue departments. At
the same time, several charges were transferred from the
consolidated fund to the annual estimates.
The rules of proceeding in the committees of supply and
ways and means are precisely similar to those observed in
other committees of the whole house. It has been stated, in
other places, 4 as an ancient order of the house, “That where
there comes a question between the greater and lesser sum,
or the longer and shorter time, the least sum and longest
time ought first to be put to the question."5 This rule is
applicable to other committees where taxes are granted, or
money voted, but is more frequently brought into operation
in these committees, where such questions form the only sub-
jects of discussion. The object of this rule is said to be,
Proceedings
in committee.
Greater or
lesser sum.
1 77 Hans. Deb. 3rd Ser. 455;
96 Ib. 900. 987.
2 103 Com. J. 580.
3 109 Ib. 467.
4 See supra, pp. 433. 562.
5 See debate in 1675, where Mr.
Sawyer denied the existence of any
such ancient order, having searched
the Journals. Sir T. Meres, an old
Parliament man of 80, said it had
always been the rule; and after dis-
cussion it was agreed to be an ancient
order; 3 Grey's Deb. 381-388.
6 SS Com. J. 325. The principle
of this rule was not adhered to, 6th
May 1853, in putting the question
for levying the property tax in the
United Kingdom ; 108 Com. J. 467.
The proceedings in committee of
ways and means, 6th March 1857,
!
PROCEEDINGS IN (OMMITTEE.
669
" that the 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. If the smaller
sum be resolved in the affirmative, the point is settled at once,
and no question is put upon the greater. A direct negative
of the larger sum, however, is, in this manner, avoided ; 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. This rule
is carried into effect not by way of amendment, but by pro-
posing a distinct resolution for granting the smaller sum.
This rule, however, is only applicable where the greater
and lesser sums are both before the committee at the same
time. It cannot exclude the subsequent proposal of other
sums, greater or less than those previously proposed. Thus,
in the committee of supply, on the 31st March 1848, after a
reduction of the proposed number of men for the land forces
had been negatived, another reduction was proposed and
negatived. Again, on the 14th and 31st March, and the 7th
April 1856, after reductions of the sum originally proposed
had been negatived, still further reductions were proposed,
and voted upon. It may happen, indeed, that the vote can-
not be actually first taken upon the smallest sum proposed;
as where one proposal is to diminish a vote, and another is to
refuse it altogether. Practically, the latter is for the smaller
sum of the two; but being merely a negation of the vote
originally proposed, the former proposal, if not withdrawn,
must be first put to the vote.
The proceedings of the committee of supply, when governed New rules of
proceeding in
on the tea and sugar duties, afford a 2 103 Ib. 405.
good illustration of the application of 3 111 Ib. 101. 106. 124.
this rule; 112 Com. J. 86. Also on See proceedings, 6th June 1856,
the income tax, 21st July 1859 and St. James's Park; Lord R. Grosvenor,
23rd March 1860.
Mr. Tite, and Sir Joseph Paxton;
1 114 Com. J. 291; 115 Ib. 153. 142 Hans. Deb. 3rd Ser. 1134.
4
670
PROCEEDINGS IN COMMITTEE.
4
committee of entirely by this rule, were exposed to the objection that
supply.
where a vote comprised separate items, and a smaller sum
than that first proposed was agreed to, all further reductions,
on account of other items, were excluded. Again, every
item comprised in a yote was open to discussion at the same
time, which often occasioned confusion, if not absurdity.2
A further objection to the customary forms was, that there
was no record in the Journal of the items in respect of which
any reduction of the vote was proposed. In 1857, a com-
mittee was appointed to consider these forms of proceedings,
whose report led, on the 9th February 1858, to the adoption
of the following resolutions by the house :-
"That when a motion is made, in committee of supply, to omit or
reduce any item of a yote, a question shall be proposed from the chair
for omitting or reducing such item accordingly; and members shall
speak to such question only, until it has been disposed of."
"That when several motions are offered, they shall be taken in the
order in which the items to which they relate appear in the printed
estimates."
“That after a question has been proposed from the chair for omitting
or reducing any item, no motion shall be made, or debate allowed
upon any preceding item.”
915
And on the 28th April 1868 it was further resolved --
“That when it has been proposed to omit or reduce items in a yote,
the question shall be afterwards put upon the original yote, or upon
the reduced yote, as the case may be."
" That after a question has been proposed from the chair for a
reduction of the whole yote, no motion shall be made for omitting or
reducing any item.”
These new rules have entirely altered the practice of the
committee of supply, in dealing with the votes proposed.
The question upon the whole vote is first proposed from the
chair; and if a motion be made to omit or reduce any item
1 145 Hans. Deb. 3rd Ser. 1729.
2 146 Ib. 58-68.
3 See 145 Hans. Deb. 3rd Ser.
6 113 Com. J. 42; a fourth resolu-
tion was rescinded on the 28th April
1868.
0 123 Ib. 145.
2047 et seq.
4 1857 (261), Sess. 2.
PROCEEDINGS IN COMMITTEE.
671
>
comprised in that vote, a question is put, that the item
objected to “be omitted from the proposed vote," or "be
reduced by the sum of £-- as the case may be. But
where a general reduction of the amount of the vote is
proposed, comprising many items, the old form of putting
the question upon the smaller sum is reverted to as the
rules apply to distinct items only. On the 15th June 1863,
the estimate for the purchase of land at South Kensington
comprised three items; but the Government, in committee,
moved the first item as a separate vote, which was agreed to;
and the two other items as another.vote, which was negatived.
Exceptions were taken to the regularity of this proceeding;
but they were overruled. 3 The reduction of a vote, or item,
should be of a substantial, and not merely of a nominal,
amount; otherwise the chairman has declined to put the
question, nor may a series of motions be made upon the
same vote, raising, substantially, the same issue. Where
two or more amendments are proposed to the same vote, the
chairman will put first that which proposes the largest reduc-
tion, and if that be not accepted, will proceed with the other
amendments. Where a motion has been made for the
reduction of an entire vote, no proposal can be made for
omitting an item from that vote unless the original motion
be withdrawn.
The questions of the longer or shorter time had reference Longer or
shorter time.
to the ancient mode of granting subsidies, which were ren-
dered a lighter burthen on the subject, by being extended
over a longer period; and the present system of grants does
not, therefore, admit of the application of this part of the
7
1 123 Com. J. 306; 134 Ib. 97.
396 ; 135 Ib. 79; 136 Ib. 476; 137
Ib. 83, &c.
2 9th and 12th July 1858; 113
Com. J. 294. 298. 19th April 1860;
115 Ib. 191. 9th May 1862 (Science
and Art Department); 117 Ib. 190.
3 171 Hans. Deb. 3rd Ser. 937.
4 On the 9th June 1879, the
chairman declined to put the ques.
tion on a reduction of 51.;
a 246
Hans. Deb. 3rd Ser, 1439. 13th
June 1878 ; 240 Ib. 1456.
5 7th August 1877 ; 236 Ib. 592.
6 21st July 1879; 248 Ib. 911.
7 9th April 1877; 233 Hans. Deb.
3rd Ser. 784.
672
PROCEEDINGS IN COMMITTEE.
not observed
1
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 favourable to the people, the question for that time is
first put from the chair.
These rules In the proceedings of the house on the report from a com-
in proceedings mittee, amendments are proposed in the ordinary form;
of the house. neither the greater or lesser sum, nor the longer or shorter
time, being ever regarded, in questions proposed in the house
itself. The rule, indeed, is incompatible with the form of
putting a question upon an amendment. If it be proposed
to amend a question, by inserting a smaller sum, the house
must decide whether the words of the question,-being the
larger sum,-shall stand part of the question. Thus, on the
report of the resolution, 25th May 1857, for granting an
annuity of £8,000 to the Princess Royal, an amendment
for reducing that amount to £6,000, was put in the usual
manner. Again, on the 30th March 1860, on the considera-
tion of the Income Tax Bill, as amended, an amendment
was proposed to leave out “ten-pence” in order to insert
“nine-pence." The question was put that “ten-pence'
stand part of the Bill. On the 24th March 1871, it was
proposed to reduce the number of men for the army, as voted
by the committee, and the question was put that the larger
number stand part of the resolution. And on several later
occasions where amendments have been passed to reduce the
sums voted by the committee of supply, the question has been
put that the larger amount stand part of the resolution.
Questions and In committee of supply it is irregular to propose any
amendments
6
3
1 3 Hatsell, 184, n.
2 Establishment of Prince and
Princess of Wales, 15th March 1795;
50 Com. J.538; New Houses of Par-
liament, 10th June 1850; General
Register House, Edinburgh, 16th
July 1858; Harbours of Refuge, 8th
June 1863. On the 18th July 1870,
several resolutions of the committee
of supply were so amended. Income
Tax, 4th May 1871.
112 Com. J. 174.
4 115 Ib. 173.
5 126 Ib. 107.
6 127 Ib. 330. 418; 129 Ib. 164;
136 Ib. 274 ; 137 Ib. 126.
!
PROCEEDINGS IN COMMITTEE.
673
1
motion or amendment not relating to a grant under con- in committees
of supply and
sideration; as the committee may grant or refuse a supply, ways and
or may reduce the amount proposed, but have no other func- means.
tion. On the 18th May 1863, exception was taken to the
form of a vote proposed, on account, for the packet service,
which provided that no part of the sum voted was to be
applicable to payments to Mr. Churchward, for the convey-
ance of mails, subsequent to the 20th June 1863. It was
argued that the latter part of the resolution expressed an
opinion concerning a particular contract, beyond the proper
functions of the committee of supply; but as it was strictly
relevant to the vote for the packet service, and merely
defined and limited the purposes for which such vote was
designed, it was held, first by the chairman, and after full
discussion by the house itself, to be regular.. Again, on the
31st May 1867, on a vote for erecting a building for the
University of London, a proviso was added, by amendment,
" that no part of such sum shall be applied to the erection
of any building according to either of the designs now
exhibited ;"4 but this proviso was afterwards omitted on the
report.5.
A grant recommended by a message from the Crown, or Grants cannot
proposed in the annual estimates, presented by command of
her Majesty, cannot be increased. On the 8th December
1857, in committee on the Queen's message for granting
£1,000 a year to Sir Henry Havelock, for the term of his
natural life, a member desired to propose that the pension
should be continued to his son: but the chairman intimated
that he should not be able to put any such amendment,
without the recommendation of the Crown. On the death of
1 But on the 4th August 1843, an 2 Votes and Debates, 18th and 28th
amendment was proposed, but not May 1863.
made, to the terms of a resolution, 3 In 1868, this proviso was added,
for granting compensation to the on report. 123 Com. J. 274.
owners of opium in China, by leaving
4 122 Ib. 266.
out the words "made good," and in-
5 Ib. 270.
serting "enable her Majesty to make 6 148 Hans. Deb. 3rd Ser. 392.
compensation.” 98 Com. J. 542. But in 1812, upon a message from
be increased.
P.
X X
674
PROCEEDINGS IN COMMITTEE.
Sir Henry Havelock, the order for the committee on the bill
was discharged, and the bill withdrawn; and, the Queen's
recommendation being signified, another committee of the
whole house resolved that annuities should be granted to
Lady Havelock and her son, Sir Henry Havelock; and a bill
founded upon that resolution was passed. Nor can any
item comprised in a vote be increased.2 In 1858, the new
ministry having proposed reductions in the army and navy
estimates prepared by their predecessors, a question arose
whether, in committee of supply, the votes proposed by them
might not be increased to the amount of the original esti-
mates. To obviate these doubts, revised army estimates were
prepared, and the order for referring the original army esti-
mates to the committee was discharged: but as regards the
navy estimates, no such precaution was taken. Again, on
the 9th March 1863, it was held that it was not competent
for a member to move an addition to the number of men
proposed to be voted in the army estimates, though it was
alleged that provision was actually made in the estimates for
that larger number.
As a proposed grant cannot be increased, in committee of
supply, nor a new grant made, unless recommended by the
Crown, so also it appears that a new tax cannot be imposed
except with the indirect sanction of the Crown. On the
14th March 1844, Mr. Howard Elphinstone proposed a com-
mittee of the whole house to consider the Stamp Acts, with
the view of imposing the same amount of probate duty on
real estate as was paid on personal property. An objection
being taken to this proceeding, the Speaker said that the
Proposal of a
new tax, ex-
cept by a
minister.
the Prince Regent, recommending,
in general terms, provision to be
made for the family of Mr. Spencer
Perceval, amendments were permitted
for increasing the provision proposed
by the ministers ; 23 Hans. Deb. 199.
217. 243; 2 Walpole, Life of Spencer
Perceval, 303.
1 113 Com. J. 23. 36.
2 Day of general officers, 10th
March 1834 ; 21 Hans. Deb. 3rd
Ser. 1377. An increase in the
number of men, 9th March 1863;
169 Ib. 1267. General officers of
marines, 29th Feb. 1864; 173 Ib.
1282.
PROCEEDINGS IN COMMITTEE.
675
duty must be considered as imposed for the service of the
year, and should therefore be voted in the committee of ways
and means : but it ought not to be proposed, unless it could
be shown that the public service required it. After some
discussion, the motion was withdrawn. On the 6th August
1859, Mr. Selwyn having given notice of a resolution for
imposing certain stamp duties, of which the chancellor of the
exchequer approved, the latter agreed to propose it himself,
in committee of ways and means. In April 1862, the
chancellor of the exchequer having given notice of resolutions
in committee of ways and means, requiring licences to be
taken out by brewers, Mr. Bass gave notice of an amend-
ment extending such licences to other manufacturers, iron
masters, and coal owners: but this amendment being held to
be inadmissible, was not moved. On the 17th February
1845, however, Mr. Roebuck moved an amendment, in
committee of ways and means, for extending the income tax
to Ireland,2—an exceptional course not supported by pre-
cedent, and opposed to the principles upon which grants are
made to the Crown. But this objection does not apply to
an amendment by which it is sought to substitute another
tax, of equivalent amount, for that proposed by ministers,
the necessity of new taxation, to a given extent, being
already declared on behalf of the Crown. Upon these
grounds, on the 10th December 1852, an amendment to
substitute probate and legacy duty on real property, for an
inhabited house duty, was held to be regular. A motion or Amendments
amendment, in committee of ways and means, must relate to of ways and
the tax proposed : but as the functions of that committee are means.
of a more extended character, the rule cannot be so strictly
enforced as in the committee of supply. On the 25th April
1 Notices of motions, 10th April on the form of putting the question
1862, p. 407.
on the inhabited house duty, where
2 77 Hans. Deb. 3rd Ser. 637. 751. nothing but a preamble of the reso-
3 Mr. W. Williams, 108 Com. J. lution had been originally proposed
187. See Debate, 16th Dec. 1852,
from the chair.
in committee
XX 2
676
PROCEEDINGS IN COMMITTEE.
1853, the new property tax was proposed for seven years.
An amendment was moved to leave out the words “ towards
raising the supply granted to her Majesty, there shall be
raised annually during the terms hereinafter limited, the
several rates and duties following,” &c., in order to insert the
words, “ The continuance of the income tax for seven years,
and its extension to classes heretofore exempt from its opera-
tion, without any mitigation of the inequalities of its assess-
ment, are alike unjust and impolitic.”Considerable doubts
were entertained whether such an amendment was regular, it
being the province of the committee to consider the ways and
means, for the service of the year, and not to discuss general
principles : but it was held that as the amendment was strictly
relevant to the proposed duty, it could not be excluded.?
Reduction of It is the function of the committee of ways and means to
committee of impose rather than to repeal taxes : and as bills for the latter
purpose do not require any previous vote in committee, pro-
posals of that nature seldom originate in committee of ways
and means, unless they are connected with other alterations
of duties. Yet, as all the financial arrangements of the year
are properly within the cognizance of that committee, the
reduction or repeal of taxes may be proposed there, with as
much regularity as their imposition or increase ; the one
being, in fact, an equivalent for the other, in the general
balance of ways and means. And this course has accord-
duties in
ways and
means,
1 108 Com. J. 431.
2 126 Hans. Deb. 3rd Ser. 453. In
April 1871, Mr. Disraeli gave notice
that on the 27th, in committee of
ways and means, he would move a
resolution, “that the financial pro-
posals of her Majesty's Government
are unsatisfactory, and ought to be
re-considered by the Government."
The resolution was intended to be
moved, not as an amendment to any
resolution about to be proposed, in
consequence of changes in the budget,
but as a substantive resolution. It
was not moved: but it was pro-
nounced, by all the authorities, to
be irregular. Even if it had been
moved as an amendment, it would
not have been relevant to any reso-
lution; and standing apart, as a
distinct resolution, it could not have
been moved until after the budget
resolutions had been agreed to, or
negatived ; and in either
resolution would have been inap-
plicable.
3 3 Hatsell, 290.
case, the
PROCEEDINGS IN COMMITTEE.
677
ingly been followed whenever it has been deemed suitable to
the occasion.1
In committee of supply, it is usual for the minister in Relevancy in
debate.
charge of the army or navy estimates to make a general
statement concerning the services for the year, upon the first
vote; and he is followed by other members in a general dis-
cussion of the estimates : but after the first vote has been
agreed to, the debate must be confined to the particular vote
before the committee ;2 and when a motion has been made to
omit or reduce an item in a vote, the debate is restricted to that
item. A general discussion upon the first vote is not appli-
cable to the civil service estimates; and when Mr. Wilson, in
1857, endeavoured to introduce the practice, it found no
favour with the committee. In 1877, however, such a state-
ment was made by Mr. W. H. Smith, with general approval,
the Speaker being in the chair ;; and the same course was
adopted by the Vice-President of the Committee of Council,
upon the education votes. 6
A member cannot refer to any vote to which the committee
have agreed, nor to a vote not yet submitted to it; nor,
under the new rules, when it has been proposed to omit or
reduce any item, can be refer to any other item in the same
vote. Still less can a member, upon a vote in committee of
supply, bring into discussion the merits of a bill then pending
in the house. On the 16th April 1860, a general discussion
on the navy having taken place before the Speaker left the
chair, Lord Clarence Paget, the secretary to the Admiralty,
1 6th March 1695, duties on coals,
culm, and shipping repealed; 10th
May 1766, duties on cotton-wool, &c.
repealed; 15th May 1777, duties on
silver plate repealed ; 4th Dec. 1798,
additional house and window duty
repealed, and income tax imposed;
14th July 1807, Irish beer duties re-
pealed. Paper duties repealed, 7th
May 1861 ; 116 Com. J. 195.
2 223 Hans. Deb. 3rd Ser. 655.
3 177 Ib. 1990.
4 12th June 1857; 145 Hans. Deb.
3rd Ser. 1712.
5 233 Ib. 651; Mr. Speaker Brand's
Note-Book.
6 235 Hans. Deb. 1048.
? 175 Ib. 3rd Ser. 1674.
8 177 Ib. 1990.
9 6th June 1856, Sir J. Tyrrell,
Agricultural Statistics.
678
VOTES ON ACCOUNT.
A vote in'
committee
cannot be
postponed.
3
Votes on
account.
reserved his explanations until the house was in committee :
but when he was proceeding to refer to matters not comprised
in the vote under consideration, he was stopped and pro-
nounced by the chairman to be out of order.
A motion for postponing a vote in committee of supply
cannot be entertained. There is no time, indeed, to which it
can be postponed. Each vote is a distinct motion, which may
be agreed to, reduced, negatived, superseded, or, by leave,
withdrawn : but cannot be otherwise disposed of. Some-
times the committee report resolutions, which they have
agreed to; but not having completed the consideration of
another resolution, also report progress.
The entire sums proposed to be granted, for particular
services, are not always voted at the same time, but a certain
sum is occasionally voted on account of such grants. Thus,
for example, in 1841, one half only of the estimates, as
presented to the house, was voted, in anticipation of a
speedy dissolution, and appropriated: and the remaining
half was voted by the new Parliament. In 1848, money
was voted on account of the several grants, as two com-
mittees were sitting at the time upon the public expenditure.
In 1850, money was voted on account of several grants,
before Easter, and the remainder was voted after Easter;
and in 1857, in anticipation of a dissolution, votes were
taken on account, for four months. The several votes for the
army and navy were separately agreed to: but general votes
only were taken for the civil service, and revenue estimates,
though in the Appropriation Act the several items were
enumerated in the usual form. The remaining estimates,
for the service of the year, were voted by the new Parlia-
ment. In 1858, in order to accelerate the usual financial
arrangements, and the passing of the Mutiny Bill, after the
1 157 Hans. Deb. 3rd Ser. 1851.
2 176 Ib. 35. 77.
3 100 Com. J. 86; 117 Ib. 187;
122 Ib. 429, &c.
4 112 Com. J. 94. 98. 103. In 1868,
general votes, on account, were taken
for the army and navy services.
5 Thesame course had been adopted
in 1841.
VOTES ON ACCOUNT.
679
change of ministry, votes were taken on account of the
army and navy estimates. Again, in April 1859, votes en
account were taken upon all the heads of expenditure, in
order to provide for the public service, until after an
approaching dissolution; and the votes were completed by
the new Parliament. In 1880 the army estimates having
been voted early in March, the number of men and boys for
the navy was voted, and several votes on account were taken
for the navy and civil services, later in March; and Parlia-
ment was dissolved on the 24th of March. At other times,
when the exigencies of the public service have required votes
on account, in anticipation of particular grants, or classes of
service, estimates of the amount required for such purposes
have been presented, and the necessary grants agreed to.3
And this course has now become necessary every session, in
consequence of increased strictness in the audit of public
accounts, and the difficulty of securing the consideration of
the estimates in due time.
In 1856, several of the army and navy estimates were Where votes
voted on account, or for periods of four months, in anticipa- exceed the
tion of peace; and on the conclusion of peace it became amount re-
quired.
necessary to revise the estimates for the year.
After con-
sulting precedents in 1814,4 statements were presented, by
command, showing the amounts of the original army and
navy estimates, and of the reduced estimates, and were
referred to the committee of supply. In one case the pre-
vious vote being in excess of the amount required, the proper
1 113 Com. T. 78; 149 Hans. Deb. and navy services, before the num-
3rd Ser. 110.
ber of men was voted. In 1867 and
2 114 Com. J. 158. 162.
1868, the same course was followed
3 Army, 29th March, and Civil Ser- for navy services. In 1879, and
vices, 25th May 1860; 115 Com. J. again in 1881, after estimates of votes
170.273. Army, 5th April, and Civil on account had been presented,
Services, 6th May and 25th June smaller sums were proposed by the
1861; 116 Com.J.110.190.301. Civil government ; 244 Hans. Deb. 3rd
Services, 27th March, and Packet Ser. 1592; 259 Ib. 1146.
Service, 18th May 1863. Civil Ser- 4 69 Com. J. 18. 450.
vices, 18th March 1867.
In 1948,
5 111 Ib. 172.
votes were taken on account of army
on account
680
VOTES OF CREDIT.
amount was voted de novo, and the previous resolution
rescinded, before the new resolution was agreed to by the
house.
Votes of credit Where a vote of credit on account of war expenditure,
and special
supplies. or other special grant, not comprised in the estimates, is
desired, a message is sometimes sent by the Crown, under the
sign manual, to both houses. In the Commons this message
is referred to the committee of supply, where the requisite
amount is granted; and a corresponding sum is voted by
the committee of ways and means, unless there be a surplus
revenue available, in which case the grant may be provided
for out of general votes in that committee, as was done in
1854.3 But generally a vote of credit is given, without a
message from the Crown. Thus, in 1851 and 1852, votes of
credit on account of the Kafir war, were granted upon an
estimate being presented ;4 and the same course was adopted
in 1856, on a vote of credit for defraying expenses occasioned
by the late war ;5 again, in 1860 and 1861, in respect of
operations in China ; 6 on the 25th November 1867, on account
of the expedition to Abyssinia; and on the 1st August 1870,
on the breaking out of the war between France and Prussia.
In this latter case, however, the Government having deter-
mined that it would be necessary to increase the army to the
extent of 20,000 men, thought it right to propose a distinct
vote for that number of men, as well as a general vote of
credit for 2,000,0001. The latter vote was comprised in the
schedule to the Appropriation Act, with a statement that it
included “the cost of a further number of land forces of
20,000 men during the war in Europe." In 1874, votes of
credit were taken for the Ashantee war, and in 1878, for
naval and military services (6,000,0007.), by estimates.? So
also, in 1879, a vote of credit for the war in South Africa;
| Transport Service, 111 Com. J.
268.
2 82 Ib. 542.
3 109 Ib. 472.
4 106 Ib. 181. 303; 107 Ib. 73. 152.
5 111 Ib. 269; 115 Ib. 142.
6 115 Ib. 382; 116 Ib. 403.
7 21st March and 7th May 1874 ;
129 Com. J. 41. 133; 133 Ib. 40.
!
REPORT OF SUPPLY, ETC.
681
1
means.
and in 1882 a similar vote for the forces in the Mediterranean,
was granted upon estimates presented by command.
The resolutions of the committees of supply and ways and Report of
means are reported on a day appointed by the house: but ways and
not on the same day as that on which they are agreed to by
the committee. This is a rule which may only be relaxed
in cases of extraordinary urgency. On the 8th May 1797,
during the mutiny of the fleet, the committee of supply voted
an increase of pay to the seamen and marines; and the report
was at once ordered to be received, and was agreed to on the
same day. And on the 24th, an increase of pay was voted to
the land forces in the same manner. On the 10th May 1860,
the house ordered a resolution on wine licences, agreed to by
the committee of ways and means, to be reported forthwith,
in order to enable them to proceed with the committee on the
Refreshment and Wine Licences Bill, which was the next
order of the day. On the following day this proceeding was
animadverted upon in debate ;3 and on the 14th May, notice
being taken that the committee of ways and means had agreed
to a resolution which, contrary to the rules and practice of
this house, was, without urgent occasion, ordered to be re-
ported forthwith, and was thereupon reported and agreed
to by the house, it was ordered that the said proceedings be
null and void, and that the resolution of the committee of
ways and means be reported to-morrow. The same rule
applies to money bills, which are never passed through more
than one stage on the same day. When the report is re-
ceived, the resolutions are read a first time, without a ques-
tion, and a second time upon question put from the chair;
and are agreed to by the house; or may be disagreed to,
6
1 134 Com. J. 69 ; 137 Ib. 410.
2 52 Ib. 552. 605; 33 Parl. Hist.
477.
3 158 Hans. Deb. 3rd Ser. 1161;
11th May 1860 (motion for adjourn-
ment).
4 115 Com. J. 240; 158 Hans. Deb.
3rd Ser. 1167.
5 239 Hans. Deb. 1419; Mr. Speaker
Brand's Note-Book.
6 63 Com. J. 59; 71 Ib. 290.
682
REPORT OF SUPPLY, ETC.
7
amended,” postponed, or re-committed. Any amendment,
relevant to the subject-matter, may be proposed to the ques-
tion for reading resolutions a second time, or general obser-
vations may be made at this period : 5 but after they have
been read a second time, an amendment to a resolution of the
committee of supply, must relate to the amount or destina-
tion of the vote agreed to by the committee. Any debate,
at this time, should be relevant to the particular resolution;
nor under cover of a motion for adjournment can occasion
be found for renewing the discussion of any prior resolution
already agreed to. In some cases, it has been sought, by
amendments, to attach conditions to grants reported from the
committee. On the 20th December 1796, it was proposed to
add to a resolution for making advances to the Emperor, the
words "whenever the engagements respecting the late con-
vention shall have been fulfilled on the part of his Majesty.”9
And on the 1st July 1823, a resolution to defray expenses of
buildings at the British Museum was amended, upon a divi-
sion, by the addition of words requiring the preparation of
plans and estimates before any buildings should be under-
taken. There are examples in the Journals of amendments
being proposed to the question for agreeing to resolutions
of the committee of supply: 11 but according to later practice,
10
1 95 Com. J.574; 101 Ib. 1152; 102
Ib. 481; 103 Ib. 790 ; 125 Ib. 157.
2 76 Ib. 288; 87 Ib. 519; 90 Ib.
461; 119 Ib. 324.
3 77 Ib. 314; 113 Ib. 211.
· 91 Ib. 272; 5th August 1839,
Miscellaneous charges (Scotland).
26th April 1847, Education. 25th
July 1854, Vote of Credit, Lord Dud-
ley Stuart's amendment for an ad-
dress praying that Parliament might
not be prorogued until the house had
received more full information as to
our foreign relations, and prospects
in the war; 135 Hans. Deb. 3rd
Ser. 709. 7th April 1851, Property
Тах. . 10th March 1857, Expendi-
ture of the State ; 112 Com. J. 94.
American Prize Courts, 1863; 118
Ib. 322; 129 Ib. 264.
5 174 Hans. Deb. 3rd Ser, 1551.
6 10th June 1850, New Houses of
Parliament; 112 Com. J. 227; 113
Ib. 306; 114 Ib. 92; 118 Ib. 239.
7 174 Hans. Deb. 3rd Ser. 1551.
8 Quebec Defences, 27th March
1865; 178 Hans. Deb. 3rd Ser. 360,
9 52 Com. J. 220.
10 78 Ib. 443.
11 11th March, 1844, Widows' Pen-
CHARGES UPON THE PEOPLE.
683
be increased
such amendments have been confined to the question for
reading resolutions a second time. If it be proposed to Charge not to
amend a resolution on the report, the amendment can only on report.
effect a diminution of the proposed burthen, and not an
increase. If the latter be desired, the proper course is to
re-commit the resolution; as an addition to the public
burthens can only be made in committee. When a vote is
re-committed, and increased in the committee, the committee
report that, in addition to the sum already granted, a further
sum be granted for the particular purpose there stated.?
Sometimes an amendment has been moved to a proposed Amendments
amendment, upon a resolution reported from the committee amendments
of resolutions.
of supply, by leaving out all the words of the first amend-
ment, except "pounds,” and inserting another amount.3
Where any inaccuracy in the amount of a vote is discovered,
the resolution is re-conimitted, unless a reduction is to be
made, which can be agreed to on report.
When the resolutions of the committee of ways and means Bills founded
are agreed to, bills are ordered to carry them into effect,
whenever it is necessary. After a bill founded upon such
resolutions has been ordered, but not presented, instructions
are often given to the gentlemen appointed to prepare it,
to make provision pursuant to other resolutions of the com-
mittee, since agreed to :' or, if after the bill has been read
a second time, further resolutions from the committee, re-
lating to other duties, are agreed to, an instruction is given
4
on resolutions.
sions. 14th June 1849, Militia, &c.
Canada.
1 See Amendment proposed by Mr.
Greville, 27th January 1767; 31
Com. J. 76; 3 Hatsell, 179. On the
18th July 1870, the Secretary to the
Treasury, having overlooked an in-
termediate vote on account, had
taken sums in excess of the estimates
for the year. As this error was to
be corrected by a reduction of the
amounts yoted in the several reso-
lutions, it was readily effected on
the report.
2 113 Com, J. 320; 124 Ib. 203.
376 Ib. 487. On the 18th June
1857, a similar case arose, but the
amendment not being proposed in
proper form, was not put from the
chair; 145 Hans. Deb. 3rd Ser.
2074.
4 135 Com. J. 367, 372, 375.
5 123 Ib. 157. 167; 124 Ib. 132;
125 Ib. 158; 132 Ib. 170.
684
CHARGES UPON THE PEOPLE.
to the committee on the bill, to make provision accordingly.'
The resolutions of the committee of supply are reserved until
all the supplies for the service of the year have been granted,
when they are embraced in the Appropriation Bill, towards
the close of the session; and it is irregular to introduce any
clause of appropriation into another bill passing through Par-
liament, before the financial arrangements for the year are
concluded.2
Propositions It must always be borne in mind, that the house can
for reducing
charges upon entertain any motion for diminishing a tax or charge upon
the people.
the people; and bills are frequently brought in for that
purpose, without the formality of a committee. Obstacles
are opposed to the imposition of burthens, but not to their
removal or alleviation; and this distinction has an influence
upon many proceedings not immediately connected with
supply. For instance, the blanks left in a bill for salaries,
tolls, rates, penalties, &c. are filled up in committee: but on
the report, the house may reduce their amount. If, how-
ever, it be desired to increase them, the bill should be re-
committed for that purpose. So, also, if a clause proposed to
be added to a bill enaot a penalty, which the house, on the
report of the clause, desire to increase, the clause ought to be
re-committed. Any bounties, drawbacks, or allowances,
involving payments out of the revenue, have usually been
proposed in committee: but if an allowance be merely in the
form of a deduction from the amount of a proposed duty, it
may be entertained by the house, or by the committee on the
bill, without any preliminary vote in committee. In 1865,
it being proposed to reduce the existing drawback on the
export of sugar, it was agreed, on consideration, that the
Drawbacks
and allow-
ances.
i Fisheries Bill, 1775 ; Assessed
Taxes Bill and Customs Bill, 1798;
Goods, Wares, &c. Bill, 1806; Stamp
Duties Bill, 1845; 100 Com. J. 743.
Customs Bill, 1845; Excise Duties
Bill, 1854 (Two Instructions); Stamp
Duties Bill, 1859; Customs and In-
land Revenue Bill, 1871, but this
bill was withdrawn, on account of
an irregularity, upon its introduc-
tion. Hans. Deb. 9th and 11th
May 1871; 132 Com. J. 112, &c.
2 57 Hans. Deb. 3rd Ser. 458.
3 See supra, p. 574.
Paper Duty Repeal Bill, 1860,
cl. 2.
CHARGES UPON THE PEOPLE.
685
amount of
proposal should originate in committee, as it was equivalent
to an increase of charge upon all importers of sugar who
desired to export it."
Doubts have been sometimes entertained whether, on the Questions of
report of resolutions from a committee, by which duties are duties on
report.
reduced, it be regular to propose any amendment by which
such reductions would be negatived, or the amount of re-
duction diminished. It has been contended that such an
amendment would, in effect, increase a charge upon the
people, which can be done in committee only: but it is clear
that if the amendment were made, it would merely leave
unchanged the duty existing by law, or would reduce it;
and that the charge upon the people would not be increased.
It would, indeed, be an anomalous form to report such reso-
lutions to the house at all, unless the house could disagree
to or amend them, and there are numerous cases in which
amendments of this character have been proposed, without
objection, on the report.2
In the same manner it is competent for the committee on When com-
mittee on bill
a bill for reducing taxes, to raise a tax beyond the amount may increase
à charge.
proposed by the bill, and previously agreed upon by a com-
mittee and by the house, provided the amount be not raised
higher than the existing tax authorised by law. On the
19th March 1845, resolutions were reported from a com-
mittee on the Customs Acts, by which the import duties on
glass were reduced, and certain lower rates of duty imposed
from and after the expiration of excise duties on British
glass (also proposed to be reduced in that session), and until
the 10th October 1846, after which further reductions were
to take effect. An instruction was given to the gentlemen
already appointed to bring in a Customs Duties Bill, to make
provision therein pursuant to these resolutions. In the com-
mittee on the bill it was proposed to postpone the period at
1 Votes, 26th May 1865.
2 Customs Acts Report, 15th, 16th,
and 17th March 1846 ; 101 Com. J.
323. 335. 349.
686
CHARGES UPON THE PEOPLE,
which such reductions of duty were to take place:1 but it
was questioned by some whether such an amendment was
admissible, as it would have the effect of continuing a charge
upon the people for a longer time than the committee had
voted and the house had agreed to. It was decided, how-
ever (privately), by Mr. Speaker, after full consideration,
that an amendment of that nature was perfectly regular.?
A bill for the reduction of taxes, as already stated, need not
originate in a committee: but as Customs Duties Bills affect
trade, they have been, on that account, founded upon resolu-
tions of committees, even when all the duties affected by
them have been reduced.3 So long, therefore, as an exist-
ing tax is not increased, any modification of the proposed
reduction may be introduced in the committee on the bill;
being regarded as a question, not for increasing the charge
upon the people, but for determining to what extent such
charge shall be reduced. A committee on a bill may not
repeal an exemption, and so increase a duty, until it has
been previously voted in a committee, and agreed to by the
house.4
But a clear distinction must always be observed between
the case of a tax for the service of the year, and a proposed
diminution of a tax or charge already existing. If a new
tax were imposed, or a temporary tax continued for the
service of the year, in the committee of ways and means, or
other committee, and agreed to by the house, the committee
on the bill would unquestionably have no right to increase
it: but where a permanent tax is merely proposed to be
diminished, a proposition in committee on the bill to modify
that diminution does not increase the charge upon the
Distinction in
the case of a
new tax.
1 Votes, 1845, p. 503.
2 The same principle was after-
wards acted upon in the Sugar
Duties Bill, 1848.
3 See proceedings in Committee on
Customs, &c. Acts, 1st July 1853, by
which the advertisement duty, pro-
posed to be lowered from Is. 6d. to
6d. was finally reduced to 0; 108
Com. J. 640, and Debates.
Stamp Duties Bill, 1854; 109
Com. J. 330.
APPROPRIATION ACT,
687
.
people. There can be no doubt that a committee is entitled
to leave out of a bill portions of the resolutions upon which
the bill is founded; and such an omission may leave a duty
unchanged, and thus raise it above the amount previously
agreed to by the committee of the whole house, and by the
house itself. And it would seem difficult to maintain a dis-
tinction, in principle, between such a case as this, and an
amendment which merely modifies the resolutions. It must
be admitted, however, that the rule is not devoid of difficul-
ties (more especially when the Treasury have already given
effect to the resolutions of the house), and, though supported
by precedent, it has not been uniformly approved by parlia-
mentary authorities.
So strictly is the rule enforced, which requires every new When a bill is
duty to be voted in committee, that even where the object duties, but
of a bill is to reduce duties, and the aggregate amount of some are
duties will, in fact, be reduced, yet if any new duty, how-
ever small, be imposed, or any existing duty be increased in
the proposed scale of duties, such new or increased duty must
be voted in a committee, either before or after the intro-
duction of the bill.
When the supplies for the service of the year have all Appropriation
been granted, the committee of supply discontinues its
sittings : but care must be taken not to close the committee
until all the necessary votes have been taken; for, if de-
signedly closed, it can only be regularly re-opened by a
demand for further supplies from the Crown, by message,
or the communication of additional estimates. When the
committee of supply is closed, the financial arrangements are
still to be completed, by votes in the committee of ways and
That committee authorises the application of money
from the consolidated fund, and the ways and means to meet
the several grants and services of the year; and a bill is
ordered to carry its resolutions into effect. This is known
Act.
means.
1 3 Hatsell, 168 et seq.; and Com.
J., 6th March 1706; 20th July 1715;
16th June 1721; 18th April 1748 ;
31st July 1807.
688
APPROPRIATION ACT.
1
Expenditure
not to exceed
grants.
as the Consolidated Fund Bill, or more generally as the
Appropriation Bill. It had been customary to give an in-
struction to the committee on this bill to receive a clause of
appropriation : but, in 1854, this form was discontinued ;
and, according to the present practice, a bill is at once
ordered to apply a sum out of the consolidated fund, and to
appropriate the supplies granted during the session. The
bill enumerates every grant that has been made during the
whole session, and authorises the several sums, as voted by
the committee of supply, to be issued and applied to each
separate service.
On the 30th March 1849, the House of Commons agreed
to a resolution concurring in the opinion expressed by the
lords of her Majesty's Treasury, that “when a certain amount
of expenditure for a particular service has been determined
upon by Parliament, it is the bounden duty of the depart-
ment which has that service under its charge and control to
take care that the expenditure does not exceed the amount
placed at its disposal for that purpose." By & clause in
the annual Appropriation Act, however, where delay would
be detrimental to the public service, the Treasury may autho-
rise the application of the surpluses upon some votes to the
deficiencies upon others, in the grants for the army and navy,
provided the total grant to each department be not exceeded ;
and a statement is required to be laid before the House of
Commons, showing all the cases in which such authority has
been given, with copies of the representations made upon the
subject. And every diversion of the original votes is subse-
quently sanctioned by a resolution of a committee of the
whole house, and by a clause of the Appropriation Act.
The control of Parliament over the expenditure of the annual
grants is further aided by the machinery of the Exchequer
and Audit Departments Act, 1866, and by the standing
1 109 Com. J. 479. A day was
saved by this arrangement.
2 110 Ib. 443; 112 Ib. 403, &c.
3 104 Com. J. 190.
4 25 & 26 Vict. c. 71, s. 26.
APPROPRIATION ACT.
689
committee of public accounts. Increased strictness has also
been lately enforced in regard to the public accounts; and
where grants are not expended within the financial year they
are re-voted, in whole or in part, as the case may be, in the
estimates of the following year. And by a Standing Order Committee of
public
of the 3rd April 1862, amended 28th March 1870, a standing accounts.
committee of public accounts," consisting of eleven mem-
bers, is nominated at the commencement of every session,
“ for the examination of the accounts, showing the appropria-
tion of the sums granted by Parliament, to meet the public
expenditure.'
It has been ruled that debates and amendments upon the Debates on
different stages of the Appropriation Bill are to be governed Bil.
Appropriation
by the same rules as those applicable to other bills; and
must, therefore, be relevant to the bill, or some part of it,
instead of being allowed the same latitude as that practised
on going into the committees of supply and ways and means :
but as the grants comprised in the bill are of great variety,
a wide range of discussion is sometimes founded upon it,
without exceeding the limits of relevancy.3
When the Appropriation Bill has passed both houses, and Royal assent
to Appropria-
is about to receive the royal assent, it is returned into the tion Act.
charge of the Commons, until that house is summoned to
attend her Majesty, or the lords commissioners, in the House
2
1 See Reports of Select Committee 5th August 1870 (Fortifications, and
on Public Accounts, 1861 and 1862. State of the Navy). 8th August 1872
2 On the 26th June 1865, a mem- (Kew Gardens). 11th August 1876
ber was restrained from speaking (Outrages in Bulgaria); on the 12th,
upon the tenure of land in Ireland, Rules explained by Mr. Speaker; 231
upon the third reading of the Ap- Hans. Deb. 3rd Ser. 1160. 1190 ;
propriation Bill. 180 Hans. Deb. Mr. Speaker Brand's Note-Book.
3rd Ser. 836.
Discussion on murder of Mr. Ogle, on
3 143 Hans. Deb. 3rd Ser. 558. third reading of Appropriation Bill,
641. 12th April 1859 (Admiralty August 1878.
15th August 1882,
Board); 153 Ib. 1626. 23rd July on going into committee (War in
1863 (Foreign Relations). 21st July Egypt); 137 Com. J. 482. 16th
1864 (Balance of Power). 26th June August, on third reading (Egyptian
1865 (Irish Constabulary). 14th budget); Ib. 484.
August 1867 (Turkey and Greece).
P.
Y Y
690
APPROPRIATION ACT.
Acts.
of Peers; when it is carried by the Speaker to the bar of the
House of Peers, and there received by the clerk of the Par-
liaments, for the royal assent. This is ordinarily on the day
appointed for the prorogation of Parliament; and when her
Majesty is present in person, the Speaker prefaces the de-
livery of the money bills with a short speech, concerning
the principal measures which have received the assent of
Parliament during 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
Adjourn- ainsi le veult.” But on several occasions, when special cir-
ments after
passing of cumstances have demanded an adjournment, instead of a
Appropriation prorogation, the royal assent has nevertheless been given to
the Appropriation Act; and on the meeting of Parliament,
after the adjournment, the outstanding business has been
proceeded with. And as the money bills have been passed,
and the committee of supply closed, the special sitting has
then been held, without any disturbance of the financial
arrangements of the year.
Grants voted Although every grant of money must be considered in a
otherwise
than in com-
committee of the whole house, it is not usual to vote, in the
mittee of
supply.
committee of supply, such grants as do not form part of the
supplies for the service of the current year. Any issue of
money out of the consolidated fund for any extraordinary
purpose, for salaries created by a bill, or for any other
1 On the 12th October 1799, the assent; and on the following day
Appropriation Act received the royal both houses adjourned until the 23rd
assent, when both houses adjourned October ; when the autumn sitting
till the 21st January 1800. On the continued until the 2nd December.
24th July 1820, the Appropriation See also supra, p. 52, 12.
Act received the royal assent: and 2 West India relief, 1832 ; 87 Com.
on the 26th, the Commons adjourned, J.. 452. Slavery, 20,000,0001. grant,
and continued its adjournments until 1833; 88 Ib. 482. Sardinia and
the 23rd November, transacting or- Turkish Loans, 1855 and 1856 ; 110
dinary business, as occasion arose. Ib. 142. 406; 111 Ib. 273. Fortifi-
On the 17th August 1882, the Ap- cations and Works, 1860, 1862, 1863,
propriation Act received the royal and 1867; 115 Ib. 403, &c.
1
ADDRESSES FOR PUBLIC MONEY,
691
charges of whatever character, not being for the service of
the year, after the Queen's recommendation has been signi-
fied, 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 in a bill already before
the house. As an example of this distinction, the proceed-
ings upon the Queen's message in 1857, relating to the
approaching marriage of the Princess Royal, may be referred
to. The marriage portion, which was paid out of the re-
venues of the year, was voted in the committee of supply:
but the annuity out of the consolidated fund, in a committee
of the whole house. In adopting this course, former pre-
cedents, as well as the proper rules of the house, were con-
sulted; and in later cases the same course has been followed.3
Another mode of originating a grant of money without the Addresses for
public money.
intervention of the committee of supply, is by an 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 the strict rules of the house, this
proceeding ought only to 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. As this form of motion makes the
royal recommendation unnecessary, it is often resorted to by
1 112 Com. J. 170. 175.
2 3 Hatsell, 172, and 12.; 67 Com.
J. 377. 380; 69 Ib. 254 (Duke of
Wellington). Princess Royal, 1797;
52 Com. J. 533. 544. Princess Char-
lotte, 1816 ; 71 Com, J. 220. On the
20th May 1791, an annuity was
granted to the Duke of Clarence in
the committee of supply, which was
not a regular proceeding.
3 Princess Alice, Prince and Prin-
cess of Wales, Princess Helena, and
Princess Louise.
4 33 Com. J. 716, &c. 21st May
1811, the Commons addressed the
Prince Regent to pay Mr. Palmer's
arrears of percentage, amounting
to 54,0001. The Lords took notice
of this vote, for payment of a debt
which they had denied to be due.
The Prince Regentreturned an answer
declining to issue the money, being
the first instance of the kind. A
motion by Mr. Whitbread to censure
ministers for this answer was nega-
tived. 66 Com. J. 383; 20 Hans.
Deb. 1st Ser. 343; Lord Colchester's
Diary, ii. 332, 333. See also Ib.
152-156.
II2
692
TAXES IMPOSED.
members who desire grants which are not approved by the
ministers of the Crown..
By Standing Order, 22nd February 1821, “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."] In compliance with this order, and with the reso-
lution of the 18th February 1667, now made a Standing
Order, that the consideration and debate of motions for any
public aid or charge should not be presently entered upon,
the proper form to observe in proposing an address involving
any outlay is to move, Ist, " 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,
2ndly, To move that address, in committee, on the day
appointed by the house. In this form addresses have been
moved for public monuments to deceased statesmen. If a
motion for an address for public money were submitted to
the house in any other manner, it would be irregular for the
Speaker to propose the question to the house. So strictly,
indeed, has this rule been enforced, that it has been held to
apply to an address to the Crown, to offer a reward for the
apprehension of a witness who had absconded. In 1870, an
address to the Crown for the issue of gun metal for a statue
to Viscount Gough having been carried as an amendment, on
going into committee of supply, the order for the address
was afterwards discharged, and another address was agreed
to with all the proper formalities.
As grants of money may be sanctioned by these methods,
6
Taxes im-
1 76 Com. J. 101.
2 Mirror of Parl. 1840, pp. 3244.
4179 (Church Extension). 98 Com.
J. 415, &c.
3 Sir R. Peel, 1850 ; 105 Com. J.
512. Viscount Palmerston, 1866; 121
Ib. 100. Earl of Beaconsfield, 1881;
136 Ib. 230. Addresses for monu-
ments to Lord Chatham in 1778, and
Mr. Pitt in 1806, were voted without
a committee, being before the date of
the Standing Order.
4 98 Com. J. 321 (Danish claims).
5 St. Alban's case, 1851; 106 Com.
J. 189.
6 125 Ib. 355, 362.
TAXES IMPOSED.
693
wise than in
means.
otherwise than in committee of supply, so all taxes are not posed other-
necessarily imposed in the committee of ways and means. committee of
The original intention of this committee was to vote all ways and
ways and means for the service of the year; 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 consoli-
dated fund, the office of the committee of ways and means
is not capable of so distinct a definition. All annual or
temporary duties, and other taxes which are to take effect
immediately, for purposes of 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.
The best illustration of this distinction will be found in Sugar duties.
the course adopted by the house, in reference to the sugar
duties, which, until 1846, being annual duties, had always
been voted in the committee of ways and means. In that
year they were revised in that committee; but were then
made permanent, instead of annual duties, in order to
adjust gradually the discriminating duties upon foreign and
colonial sugars. In 1848, a further revision of the duties
was proposed in a committee of the whole house, and not in
the committee of ways and means, as on former occasions;
and it was stated in debate, that this course was adopted,
after full consideration, because the duties were now per-
manent. Every tax, indeed, whether it be permanent or Annual and
permanent
not, is practically for the service of the current year, so faxes.
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
more distinctly applicable to the immediate exigencies of
are
1 Question of Mr. M. Gibson, and Lord J. Russell's answer, 30th June
1838 (not reported in Hansard).
694
TAXES IMPOSED.
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 ;1 but additions to these duties
for the express purpose of supplying deficiencies in the annual
revenue, have been considered in the committee of ways and
means. This practice, though not without exceptions, has
been sufficiently observed to establish a general rule, that,
whenever the form of a motion points to taxation as an
immediate source of revenue, it ought properly to be offered
in the committee of ways and means.
On the 16th May 1861, objection was raised that some of
the resolutions of the committee of ways and means, on which
the Customs and Inland Revenue Bill was founded, ought
not to have originated in that committee, as extending beyond
the current financial year: but the Speaker overruled the
objection, as the resolutions, though embracing a further
period, also provided for the service of the year."
A bill founded upon a resolution of the committee of ways
and means is drawn in the form of a bill of aid and supply;
but a bill founded upon the resolution of another committee
is generally prepared, and assented to by the Crown in the
ordinary manner; and this circumstance may sometimes
serve to indicate the proper course of proceeding, when it
is doubtful in what committee a bill should originate.
Bills of aid
and supply.
1 92 Com. J. 499, 500; 97 Ib. 264.
2 95 Ib. 351. 415. Property tax
and inhabited house. duty, 1852–53 ;
108 Ib. 187. But in 1784, the house
duty had been increased in a com-
mittee on the Smuggling Acts; 40
Ib. 58. 245. 24 Hans. Parl. Hist.
1008.
3 In 1853, an increase of the Scotch
and Irish spirit duties was proposed
in a committee on Customs, &c. Acts,
to avoid delay, which would have
caused a loss of revenue; 108 Com.
J. 428.
4 162 Hans. Deb. 3rd Ser. 2101.
t
ISSUE OF WRITS.
695
CHAPTER XXII.
ISSUE OF WRITS, AND TRIAL OF CONTROVERTED ELECTIONS: BRIBERY
AND CORRUPT PRACTICES.
The law of elections, as declared by various statutes, by the Purport of
decisions of committees of the House of Commons, and of this chapter.
election judges, 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 other matters concerning the seats of members,
form an important 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, from Issue of writs.
any legal cause, after the original issue of writs for a new
Parliament by the Crown, all subsequent writs are issued out
of chancery, by warrant from the Speaker, and, when the
house is sitting, by order of the House of Commons. The
most frequent causes of vacancy are, the death of members,
their elevation to the peerage, the acceptance of offices under
the Crown, and the determination of election judges 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, his Vacancies
elevation to the peerage, or other cause of vacancy, is known, session.
during a
a writ is moved by any member, and on being seconded by
1. In 1850, there were upwards of
240 statutes relating to elections,
exclusive of acts for the trial of
controverted elections, some few of
which have since been repealed. See
Author's pamphlet on the Consoli-
dation of the Election Laws, 1850.
2 See 26 Hans. Deb. 3rd Ser. 839,
11th March 1835; 2 Hatsell, 65, n.,
393-397,
696
ISSUE OF WRITS.
another, Mr. Speaker is ordered by the house to issue his
warrant for a new writ for the place represented by the
Writs not member whose seat is thus vacated. But where a vacancy
issued while
returns may
has occurred prior to, or immediately after, the first meeting
be questioned.
of a new Parliament, the writ will not be issued until after
Issue of writs, the time limited for presenting election petitions. Nor will
when election
petitions are
a writ be issued, if the seat which has been vacated be claimed
pending.
on behalf of another candidate. In December 1852, several
members accepted office under the Crown, against whose
return election petitions were pending. After much consi-
deration, it was agreed that where a void election only was
alleged, a new writ should be issued ;? and again, in 1859,
and in 1880, the same rule was adopted. But where the
seat is claimed, it has been ruled that the writ should be
withheld until after the trial of that claim : 4 or until the
petition has been withdrawn. In 1859, Viscount Bury
accepted office under the Crown, while a petition against his
return for Norwich, on the ground of bribery, was pending ;
and, as his seat was not claimed, a new writ was issued.
Being again returned, another petition was presented against
his second election, and claiming the seat for another candi-
1
By the Election Petitions Act,
1868, c. 6, the petition is to be pre-
sented within twenty-one days after
the return has been made to the
clerk of the Crown in Chancery. By
sect. 49, in reckoning time for the
purposes of this Act, Sunday, Christ-
mas-day, and any day set apart for*
a public fast or thanksgiving, shall
be excluded ; and it has been held
that Sundays are excluded from the
computation of twenty-one days.
Pease v. Norwood, 4 L. R., C. P.
235; Southampton case, 11th Jan.
1869. On the change of ministry,
before the meeting of Parliament in
December 1868, writs were issued
for several of the new ministers on
the 15th ; but for those who had been
returned for counties at a somewhat
later date, writs were not issued until
the 29th. And again, in 1874, after
another change of ministry, writs
were not issued for Buckingham-
shire, and some other counties, for
several days after the issue of writs
for the boroughs, and for some
counties where the returns had been
made early.
2 Southampton and Carlow writs,
29th Dec. 1852.
3 Sandwich and Norwich writs,
22nd June 1859 ; 154 Hans. Deb. 3rd
Ser. 450. 454. Chester writ, 3rd
May 1880; 135 Com. J. 125.
4 Athlone election, 1859.
5 Louth election (Mr. Chichester
Fortescue), 1866.
ISSUE OF WRITS.
697
date. The petition against the first election came on for trial,
and the committee reported that the sitting members, Lord
Bury and Mr. Schneider, had been guilty, by their agents, of
bribery at that election. By virtue of that report, Lord Bury,
under the Corrupt Practices Prevention Act, became in-
capable of sitting or voting in Parliament, or, in other words,
ceased to be a member of the house : but as a petition against
his second return, and claiming the seat, was then pending, a
new writ was not issued. This position of affairs illustrated
the propriety of issuing the writ, in the first case, on the
acceptance of office by Lord Bury, as the rights of all parties
were nevertheless secured. On the meeting of a new Parlia-
ment in November 1852, the seat of a deceased member was
claimed: but the petition was withdrawn the day after the
expiration of the time limited for receiving election petitions,
and the writ was immediately issued. The claim of one
seat for any place will not interfere with the issue of a writ,
on a vacancy occurring in the other.
If a member becomes a peer by descent, a writ is usually Vacancy by
moved soon after the death of his ancestor is known; though,
peerage.
occasionally, some delay occurs in obtaining the writ of
summons, which ought strictly to precede the issue of the
writ,--that proceeding being founded upon the alleged fact
that the member has been called up to the House of Peers.
On the 15th February 1809, the house being informed
that no writ of summons had been issued to General Bertie,
calling him to the House of Peers, as Earl of Lindsey,
though a writ had been issued for the borough of Stamford,
ordered a supersedeas of the writ.” On the 10th January
1811, a new writ was issued in the room of Lord Dursley,
“now Earl of Berkeley," without stating, as usual, that he
3
1 2nd Aug. 1859; 155 Hans. Deb.
3rd Ser. 865.
2 Durham election (Mr. Grainger);
108 Com. J. 161.
3 Lichfield writ (Sir G. Anson),
1841; 96 Ib. 566. First Durham
election petition, 1852–53.
4 74 Hans. Deb. 3rd Ser. 108 (Lord
Abinger); 19th April 1844. Earl
Powis, 103 Com. J. 162. Lord Pan-
mure, 6th May. 1852 ; 107 Ib. 193.
5 64 Ib. 49.
698
ISSUE OF WRITS.
was called up to the House of Peers. His claim to the
Berkeley peerage, however, not being admitted by the Lords,
he afterwards sat as Colonel Berkeley, until created Lord
Seagrave in 1831. The same rule, however, does not nd
to a peer of Scotland, to whom no writ of summons is issued.
On the 21st February 1840, a new writ was issued for Perth-
shire, in the room of Viscount Stormont, "now Earl of Mans-
field, and Viscount Stormont in the kingdom of Scotland,"
though it was allowed on all hands that no writ of summons
had then been issued to his lordship, in respect of his English
peerage. And again, in 1861, a new writ was issued for
Aberdeenshire, in the room of Lord Haddo, "now Earl of
Aberdeen in the peerage of Scotland," before he had received
his writ of summons in respect of his English peerage. If a
member be created a peer, it is often the practice to move
the new writ when he has kissed hands; but sometimes not
until the patent has been made out, or the recepi endorsed.
When it is advisable to issue the writ without delay, in the
case of a member created a peer, and it is doubtful whether
the seat be legally vacated, the member accepts the Chiltern
Hundreds, before his patent is made out.
A motion for a new writ ordinarily takes precedence of
other motions, as a question of privilege, and is made with-
out notice : but by a resolution of the 5th April 1848, “in
all cases where the seat of any member has been declared void
on the grounds of bribery or treating, no motion for the issue
of a new writ shall be made without previous notice being
given in the Votes;"5 and when such a notice was dropped, it
was required to be renewed like other dropped notices. In
4
Precedence of
motion for
new writ.
1 66 Com. J. 31; 18 Hans. Deb. Ist
Ser. 807; Lord Colchester's Diary,
ii. 306. 340.
2 95 Com. J. 105; 52 Hans. Deb.
3rd Ser. 435. A peer applies to the
lord chancellor for his writ of sum-
mons, to whom he produces his
father's marriage certificate, proofs
that he is the eldest son, and such
further evidence as may be required.
3 116 Com. J. 4.
4 Lord Eddisbury sat until 15th
May 1848, although his creation had
appeared in the “Gazette" on the
9th May; 103 Com. J. 513.
5 Ib. 423.
6 Sligo writ, 28th June 1848; 99
Hans. Deb. 3rd Ser. 1289.
ISSUE OF WRITS.
699
1
1853 and 1854, it was ordered that no such motion should
be made without seven days' previous notice in the Votes ;
and in succeeding sessions, until 1860, and again in 1866,
1874, 1875, 1880 and 1882, without two days' previous
notice. And since 1874, it has been ordered that such
notices be appointed for consideration before the orders of
the day and notices of motions.3
If any doubt should arise concerning the fact of the Supersedeas
vacancy, the order for a new writ should be deferred until to writs,
the house may be in possession of more certain information;
and if, after the issue of a writ, it should be discovered that
the house had acted upon false intelligence, the Speaker will
be ordered to issue a warrant for a supersedeas to the writ.
Thus, on the 29th April 1765, a new writ was ordered for
Devizes, in the room of Mr. Willey, deceased. On the 30th
it was doubted whether he was dead, and the messenger 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 to the writ was ordered to be
made out. And in several more recent cases, when the
house has been misinformed, or a writ has been issued
through inadvertence, the error has been corrected by order-
ing the Speaker to issue his warrant to the clerk of the
Crown, to make out a supersedeas to the writ.5 A new writ
having been issued on the 6th July 1880, for Berwick-upon-
Tweed, in the room of Mr. Strutt, who had succeeded to the
Belper peerage, a supersedeas to that writ was ordered on the
8th, as delays had arisen in completing the formalities in-
cident to his being called to the upper house.
When vacancies occur by death, by elevation to the peerage, Vacancies
during the
recess.
1 108 Com. J. 316; 109 Ib. 388.
2 112 Ib. 283; 113 Ib. 168; 26th
Jan. 1860; 115 Ib. 21; 121 Ib. 186;
129 Ib. 118; 135 Ib. 213; 137 Ib. 20.
3 129 Ib. 141; 130 Ib. 23; 135 Ib.
213; 137 Ib. 20,
! See 2 Hatsell, 80, 1.; 16 Parl.
Hist. 95. See also case of the city
of Gloucester, 19th Dec. 1702.
5 64 Com. J. 48; 81 Ib. 223; 86
Ib. 134. 182; 106 Ib. 12 (Dungarvan
writ).
6 253 Hans. Deb. 3rd Ser. 1918.
700
ISSUE OF WRITS.
1
or by the acceptance of office, the law provides for the issue
of writs during a recess, by prorogation or adjournment,
without the immediate authority of the house, in order that
a representative may be chosen without loss of time, by the
Speaker issues place which is deprived of its member. By the 24 Geo. III.
warrants,
sess. 2, c. 26, amended by 26 Vict. c. 20, on the receipt of a
certificate, under the hands of two members, that any mem-
ber has died, or that a writ of summons under the great seal
has been issued to summon him to Parliament as a peer,
either during the recess or previously thereto, the Speaker is
required to give notice forthwith in the London Gazette
(which is to be acknowledged by the publisher); and after
six days from the insertion of such notice,2 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 fifteen days
before the 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 that has been vacated by a
member against whose election or return a petition was
depending at the last prorogation or adjournment.
Acceptance of And, subject to the same provisions, by the 21 & 22 Vict.
office during
c. 110, the Speaker is required, on the receipt of a certificate
from two members, and a notification from the member him-
self, to issue his warrant for a new writ, during the recess, in
the room of any member who, since the adjournment or pro-
rogation, has accepted any office whereby he has, either by
the recess.
i See the form of the certificate in
the Appendix. No writ of summons
being directed to a Scotch or Irish
peer, this act does not extend to
such cases ; Marquess of Tweeddale,
Jan. 1879.
2 Prior to 26 Vict. c. 20, this period
had been fourteen days.
3 That is to say, six days must
elapse after the insertion of the
notice, and then the writ can only
be issued before the meeting of the
house.
ISSUE OF WRITS.
701
the express provision of any Act of Parliament, or by any
previous determination of the House of Commons, vacated
his seat. If, however, it should appear doubtful whether
such office has the effect of vacating the seat, the Speaker
may reserve the question for the decision of the house. This
Act does not apply to the acceptance of the offices of steward
of the Chiltern Hundreds, or of the manors of East Hendred,
Northstead, or Hempholme, or of escheator of Munster. The
acceptance of any of these offices, however, at once vacates
the seat of a member, and qualifies him to be elected elsewhere,
although no new writ can be issued for the place which has
become vacant by his acceptance of office.
At the beginning of each Parliament the Speaker is re- Speaker's ap-
quired to appoint a certain number of members, not exceed- pointment of
ing seven, and not less than three, to execute his duties in
reference to the issue of writs, in case of his own death, the
vacation of his seat, or his absence from the realm. This
appointment stands good for the entire Parliament, 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 Journals, and published in the London
Gazette; and the instrument is to be preserved by the clerk
of the house, and a duplicate by the clerk of the Crown.
Originally by the 52 Geo. III. c. 144, s. 3, but now by the Bankruptcy.
Bankruptcy Act, 1869, ss. 123, 124, similar powers are given
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.
For any place in Great Britain, the Speaker's warrant is To whom
directed to the clerk of the Crown in Chancery; and for any directed.
place in Ireland, to the clerk of the Crown and Hanaper, in
Ireland.
On the receipt of the Speaker's warrant, the writ is issued Delivery of
warrants
1
writs.
1 103 Com. J. 195.
702
ISSUE OF WRITS,
Error in
return.
by the clerk of the Crown, and transmitted through the post-
office, in pursuance of the provisions of the 53 Geo. III. c. 89.
Neglect or delay in the delivery of the writ, or any other
violation of the Act, is a misdemeanor; and in the event of
any complaint being made, the house will also inquire into
the circumstances. In 1840, two writs were issued for
Perthshire, instead of one, and the clerk of the Crown was
examined in relation to the circumstances.3
If
any error should appear in the return to a writ, such as
a mistake in the name of the member returned ; 4 or in the
date of the return, or in the division of the county for which
the return is made, evidence is given of the nature of the
error, either by a member of the house, or some other person
who was present at the election, or is otherwise able to afford
information; and the clerk of the Crown is ordered to attend
and amend the return. On the 18th August 1854, the mayor
of Barnstaple annexed to the writ, which he returned to the
clerk of the Crown, a certificate instead of an indenture; and
on being made aware of his error, he forwarded, on the 25th
August, an indenture dated on that day. As this date differed
from that of the return, the clerk of the Crown did not con-
ceive himself to be authorized to annex the indenture to the
writ, but made a special certificate to the house of the facts.?
This was taken into consideration on the 13th December,
when the house ordered that the members chosen to serve
in the present Parliament for the borough of Barnstaple be
called to the table of the house in order to be sworn;" and
they were sworn accordingly.8
| By 37 & 38 Vict. c. Si, the duties
of the pursuivant of the great seal in
relation to writs were transferred to
the messenger of the great seal.
2 Glasgow writ, 1837 ; 92 Com. J.
410. 418.
3 95 Ib. 122. 127.
4 Newport (Hants), 1831, Mr. Hope
Vere ; 86 Ib. 578. Kirkcaldy return,
1875, Sir George Campbell ; 130 Ib.
165. Perth county retuin, 1878,
Colonel Moray; 133 Ib. 53.
5 Carlow county, 1841, “Novem-
ber” being inserted instead of “De-
cember;" 96 Com. J. 3.
Northampton county, 26th Feb.
1846 ; 101 Ib. 207. Worcester
county (Eastern division), 25th Feb.
1859; 152 Hans. Deb. 3rd Ser. 855.
7 110 Com. J. 4; Sess. Paper, 1854
6
-5 (2).
& Ib. 7.
OFFICES UNDER THE CKOWN.
703
turn is made.
If no return be made to a writ in due course, the clerk of When no re-
the Crown is ordered to attend and explain the omission;
when, if it should appear that the returning officer, or any
other person, has been concerned in the delay, he will be
summoned to attend the house; and such other proceedings
will be adopted as the house may think fit.
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 a new election, as if such person, so accepting, was
naturally dead; provided, nevertheless, that such person
shall be capable of being again elected.” By virtue of
this provision, whenever a member accepts an office of
profit from the Crown, a new writ is ordered ; and it is
the usual practice to move the new writ when the member
has kissed hands, instead of waiting for the completion of
the formal appointment. On the 18th April 1864, a writ
being moved for Merthyr Tydvil, in the room of Mr. Bruce,
who had accepted the office of vice-president of the Committee
of Council for education, it was objected that not having been
sworn a privy councillor, he was not qualified to hold the
office: but it was conclusively shown by the attorney-general
that his seat had been vacated by the acceptance of office, and
that the writ ought to be issued, as in the case of Mr. Lowe,
who had accepted the same office, and of Mr. Hutt, who had
accepted the office of vice-president of the Board of Trade,
before they had been sworn of the privy council.2
If one of her Majesty's principal secretaries of state should When seats
not vacated.
be transferred from one department to another, his seat is not
vacated, as there is no such division of departments in the
office of secretary of state, as to render them distinct offices
1 Waterford writ, 1806; 61 Com.
J. 169. 175; 6 Hans. Deb. 536. 562.
751. Great Grimsby, 1832; 86 Com.
J. 758. 762, &c.; 72 Hans. Deb. 3rd
Ser. 95. 159. 294. 460.
-2 174 Hans. Deb. 3rd Ser. 1196.
1287,
704
OFFICES UNDER THE CROWN.
under the Crown. And by the Reform Acts of 1867 and
1868, members holding certain offices are not required to
vacate their seats on the acceptance of any other office there
enumerated; and as this list comprises, or was intended to
comprise, all the parliamentary offices under the Crown which
vacate the seats of members, it may now be stated generally
that
any member who has already vacated his seat on the
acceptance of one of these offices, is not required to vacate
it, on the immediate acceptance of another. But if he has
held an office which did not vacate his seat, a new writ is
issued on his acceptance of another office, by which his seat is
vacated by law. The resumption of an office which has
been resigned, but to which no successor has been appointed,
does not vacate a seat. As the secretaries of the treasury,
the several under secretaries of state, and the secretary to the
admiralty, 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, except in cases where a special
disqualification is created by statute.
By the 22 Geo. III. c. 82, not more than two principal
Under-secre-
taries of state.
1 30 & 31 Vict. c. 102, 8. 52, and
Sch, H. The like clauses and sche-
dules are also comprised in the Scotch
and Irish Reform Acts of 1868.
2 On the 28th Feb. 1868, a new
writ was issued for Northampton-
shire, in the room of Mr. Hunt,
secretary to the treasury, on his
acceptance of the office of chancellor
of the exchequer. Again, Mr. Ayr-
ton, secretary to the treasury, vacated
his seat in 1869, on accepting the
office of first commissioner of works.
Mr. Stansfeld having been a com-
missioner of the treasury in 1868,
was afterwards appointed secretary
to the treasury, and in March 1871,
having accepted the office of com-
missioner for the relief of the poor,
it became a question whether his seat
was again vacated. A writ had been
issued on his acceptance of one office
in the schedule, and now he had ac-
cepted another; but the words of the
act are "where a person has been
returned as a member to serve in
Parliament since the acceptance by
him, from the Crown, of any office
described in Sch. H. to this act an-
nexed, the subsequent acceptance by
him, from the Crown, of any other
office or offices described in such
schedule, in lieu of, and in immediate
succession the one to the other, shall not
vacate his seat;' and as he had occu-
pied an intermediate office, not in the
schedule, a writ was issued for Hali-
fax on the 8th March 1871.
3 2 Hatsell, 44.
OFFICES UNDER THE CROWY.
705
secretaries of state could sit in the House of Commons; and
not more than one under secretary to each department would
appear to have been admissible to the House of Commons
under the 15 Geo. II. c. 22, s. 3; and as doubts were
entertained whether more than two under secretaries could
sit there, in practice there were, until 1855, only two under
secretaries who held seats in that house at the same time.
But on the establishment of the secretary of state for war in
1855, an Act was passed to enable a third principal secretary,
and a third under secretary, to sit in the House of Commons;
and again, in 1858, by the 21 & 22 Vict. c. 106, on the
appointment of a fifth secretary of state for India, it was
provided that four principal and four under secretaries may
sit as members of the House of Commons at the same time.3
In 1864, notice was taken that five under secretaries had
been sitting in the house, in violation of the latter Act, and a
motion was made that the seat of the fifth under secretary
had been vacated. The house, however, referred the question
to a committee, who reported that the seat of the under
secretary last appointed was not vacated.4
At the same
time, as the law had been inadvertently infringed, it was
thought necessary to pass a bill of indemnity. An Act was
also passed, providing that in future, if, when there are four
under secretaries in the house, another member accepts the
office of under secretary, his seat shall be vacated, and he
shall not be re-eligible, while four other under secretaries
continue to sit in the house. If five secretaries or under
secretaries are returned at a general election, none shall be
capable of sitting and voting until the number is reduced to
the statutory limit. And the same rule is further applied to
other offices, of which the number may be limited by statute.
By the 30 & 31 Vict. c. 72, the office of vice-president of Vice-presi-
dent of the
1 2 Hatsell, 63, n.
2 18 & 19 Vict. c. 10.
3 21 & 22 Vict. c. 106, s. 4.
4 174 Hans. Deb. 3rd Ser. 1231,
&c.
5 27 & 28 Vict. c. 21.
6 Ib. c. 34.
P.
22
706
SEATS VACATED.
Board of
Trade.
Offices under
lord lieuten-
ant.
the Board of Trade, which had been an office of profit from
the Crown, was abolished after the next vacancy, and the
office of parliamentary secretary to the Board of Trade sub-
stituted, which office shall not render the person holding it
incapable of being elected, or of sitting or voting as a mem-
ber, or vacate his seat if returned.
By the 41 Geo. III. 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 appointment, subject to the approbation of
the lord lieutenant of Ireland, shall vacate seats in Parlia-
ment. But by the 6 Anne, c. 7, s. 28, the receipt of a
new or other commission 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 construction, 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;3 and to
military governments accepted by officers in the army.4
Military com- On the 9th June 1733, General Wade, having accepted
the office of governor of the three military forts in Scotland,
it was resolved that the accepting a commission of governor
or lieutenant-governor of any fort, citadel, or garrison, upon
the military establishment, by a member, being an officer in
the army, does not vacate his seat."5 The acceptance of a
commission in the militia does not vacate the seat of a
Ambassador. member. It has always been held that the office of am-
bassador, or other foreign minister, does not disqualify, nor
mands.
1 The various offices which have
been held to vacate seats, may be
collected from the several general
journal indexes, tit. “Elections;"
and from Rogers on Elections, p. 235.
2 2 Hatsell, 45, 12.
3 22 June 1742.
4 Case of General Carpenter, ap-
pointed Governor of Minorca and
Port Mahon, 1710; General Con-
way, appointed to the government
of Jersey, 1772; 17 Parl. Hist. 538.
See also 2 Hatsell, 48, 49, 52, 17. ;
39 Com. J. 970; 54 Ib. 292.
5 22 Ib. 201.
6 Militia Acts, 42 Geo. III. c. 90,
8. 172; c. 91, s. 167; 49 Geo. III.
c. 120, s. 34, &c. Militia Acts Con-
solidation Act, 1875; 38 & 39 Vict.
C. 69.
!
SEATS VACATED.
707
its acceptance vacate the seat of a member:? but the accept-
ance of the office of consul or consul-general has been
deemed to vacate a seat, though the member was considered
to be re-eligible. By 22 & 23 Vict. c. 5, it was declared
that persons holding diplomatic pensions were not disquali-
fied from being elected or sitting and voting in the House
of Commons. And by 32 & 33 Vict. c. 15, pensions, com-
pensations, or allowances for civil services, according to the
provisions of the Superannuation Acts, do not disqualify
the holder from being elected or sitting or voting as a .
member of the House of Commons.
Another class of offices the acceptance of which vacates a Colonial
seat, is that of colonial governors or deputy-governors, who, officers.
governors and
by the act of Anne, c. 25, are incapable of being elected, or
of sitting and voting; and cannot, therefore, be re-elected.
In 1878, a new writ was moved for the county of Clare, in
the room of Sir Bryan O’Loghlen, who, since his election,
had accepted the office of attorney-general of Victoria: but
as his seat had already been vacated in the colonial legis-
lature on the acceptance of office, and it being doubtful
whether his appointment was from the Crown or the
governor, the matter was referred to a select committee. In
the absence of Sir Bryan O’Loghlen, however, no decision
was arrived at during the session. In the following year
1 2 Hatsell, 22; 106 Com. J. 12; about four mouths before the election.
(Dungaryan writ). Great inconveni- 2 2 Hatsell, 54, 12.
ence arose from this construction of 3 Sir A. Leith Hay, Governor of
the law in 1869. In October of that Bermuda, 1838; Sir J. R. Carnac,
year, Mr. Layard, member for South- Lieutenant-governor of Bombay, and
wark, was appointed minister pleni- Mr. Poulett Thomson, Governor-
potentiary at Madrid. His seat was general of Canada, 1839; Sir H.
not vacated by that appointment; Hardinge, Governor-general of
nor under the 21 & 22 Vict. c. 110, India, 1844; Sir H. Barkly, Gover-
could the Speaker issue a new writ nor of British Guiana, 1849 ; Sir
during the recess, upon his accept- Johu Young, Lord High Commis-
ance of the Chiltern Hundreds. The sioner of the Ionian Islands, 1855;
vacancy, therefore, continued until Mr. Grant Duff, Governor of Madras,
after the meeting of Parliament, in
1881, &c.
February, and sereral candidates 4 133 Com. J. 376. 41:1 ; report of
were canvassing the borough, for committee,
2 2 2
708
SEATS VACATED.
this committee was re-appointed; and upon their report the
house resolved, “that the office of attorney-general of the
colony of Victoria is an office or place of profit under
the Crown, within the meaning of the statutes in that
behalf,” and “that Sir Bryan O’Loghlen had vacated his
seat.”
New offices
under the
Crown.
Postmaster-
general.
Under the 6 Anne, c. 7, new offices, or places of profit
under the Crown, created since the 25th October 1705, and
new offices in Ireland under 33 Geo. III. c. 41, not only
vacate the seats of any members who accept them, but also
render persons incapable of being elected, or of sitting and
voting as members of the House of Commons.?
The office of postmaster-general having been considered a
new office or place of profit under the Crown, had usually
been held by a peer : but by 29 & 30 Vict. c. 55, it was de-
clared that the office should not be deemed a new office, dis-
qualifying the holder from being elected, or sitting and
voting as a member of the House of Commons; but that any
member accepting the office, though eligible for re-election,
should vacate bis seat.
In the Cambridge election case, in 1866, it was determined
that the counsel to the Secretary of State for India in council
was disqualified to be elected or to sit and vote, as holding a
new office created under the Government of India Act, 1858;3
and as Mr. Forsyth had sat and voted since his election, an
Act was passed to indemnify him against any penalties which
he might have incurred.4
It is a settled principle of parliamentary law, that a
member, after he is duly chosen, cannot relinquish his seat;
Counsel to
Secretary of
State for
India.
Chiltern
Hundreds
5
1 134 Com. J. 161; Hans. Deb.
25 April 1879.
2 Mr. Whittle Harvey's case, 94
J. 48; Mr. Forsyth's case,
(Cambridge), 1866; and Major
Jervis's case, 1866.
3 121 Com. J. 220. He had pre-
viously held the same office, under
the East India Company.
$ 29 & 30 Vict. c. 20.
5 1 Com. J. 724; 2 Ib. 201. In
1775, Mr. George Grenville moved
for a bill to enable members to vacate
their seats, and contended that this
was part of the ancient constitution
of the house ; 18 Parl. Hist. 411.
SEATS VACATED.
703
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 Bonenham; or of the manors of
East Hendred, Northstead, or Hempholme; or of escheator
of Munster;1 which, though they have sometimes been refused, 2
are ordinarily given by the Treasury to any member who
applies for them, unless there appears to be sufficient ground
for withholding them; and are resigned again as soon as
their purpose is effected.
These offices, indeed, are merely nominal: but as the
warrants of appointment grant them “ together with all
wages, fees, allowances,” &c., they assume the form of places
of profit. All words, however, which formerly attached
honour to these offices, have lately been omitted ; and the
discretion of the Treasury is thus enlarged in granting them
to persons unworthy of the favour of the Crown, who may
desire to vacate their seats in Parliament.3
In the session of 1847-48, a member having had doubts Accepted by
suggested whether he had not been disqualified at the time of
qualified.
his election, as a contractor, thought it prudent not to take
a member dis-
1 According to Hatsell, the practice
of issuing a new writ, on the accept-
ance of the stewardship of the Chil-
tern Hundreds and other nominal
offices, began about the year 1750;
the first instance being that of Mr.
John Pitt, on the 17th January 1750,
and the next that of Mr. Lascelles,
on the 17th March 1752. 2 Hatsell,
54, 12.
2 See letter of Mr. Goulburn to
Viscount Chelsea, Parl. Paper, 1842
(544); and see 3 Lord Dalling, Life
of Lord Palmerston, 103. In 1775,
Lord North refused to give one of
these offices to Mr. Bayly, who de-
sired to stand for Abingdon, in oppo-
sition to a ministerial candidate,
saying, "I have made it my constant
rule to resist every application of that
kind, when any gentleman entitled
to my friendship would have been
prejudiced by my compliance ;
18 Parl. Hist. 418, n. " The office
of steward of the Chiltern Hun-
dreds is an appointment under the
hand and seal of the chancellor of
the exchequer;" Lord Colchester's
Diary, 175.
3 Mr. Speaker Denison's Note-
Book. The words omitted are "re-
posing especial trust and confidence
in the care and fidelity of," &c.
710
SEATS VACATED,
his seat, in case of being sued for the penalties under the Act.
He was, however, unwilling to admit his disqualification,
which was extremely doubtful; and he accordingly applied
for the Chiltern Hundreds. Some doubts were raised as to
the propriety of allowing him to vacate his seat by this
method : but it was agreed that as the time had expired for
questioning, by an election petition, the validity of his return,
and as the house had no cognizance of his probable disqualifi-
cation, there could be no objection to his accepting office,
which solved all doubts, and at once obliged the house to
issue a new writ.1
In 1880, Mr. Dodson, elected at the general election in
March for the city of Chester, afterwards accepted the office
of President of the Local Government Board, and was re-
elected without opposition. Meanwhile a petition had been
lodged against his first election, and in July the election
judges determined that his election was void, on the ground
of bribery, by his agents. It was generally held that,
by virtue of the 17 & 18 Vict. c. 102, and the Parlia-
mentary Elections Act 1868, s. 46, he was thenceforth in-
capable of sitting for Chester in that Parliament. But as
his second election had not been questioned, doubts were
raised whether he had legally ceased to be a member, and
was qualified to sit for another constituency. To remove all
doubts upon this question, he accordingly accepted the Chil-
tern Hundreds, and was elected for Scarborough.
The Act of Anne has, in some cases, been held not to
apply to the acceptance of other offices of state, by gentlemen
already holding office from the Crown. Thus, the accept-
ance of the paid offices of Lord Justice in England, and in
Ireland, when held in conjunction with other offices of state,
was ruled not to vacate seats in Parliament, as appears from
the cases of Mr. Craggs, Mr. Walpole, and Lord Midleton.2
After the Revolution of 1688, the office of Lord High
the Treasury, Treasurer being executed by commissioners, it was customary
Hatsell, 47.
Cumulative
offices.
First Lord of
and Chancel.
1 MS, note.
2
SEATS VACATEN,
711
for the First Commissioner (or Lord) of the Treasury to hold lor of the
Exchequer.
also the office of Chancellor of the Exchequer. Among other
examples may be mentioned that of Sir R. Walpole in 1716,
and again from 1721 to 1741; of Mr. Pitt from 1783 to
1801, and again in 1804 until his death; of Mr. Canning in
1827, and Sir Robert Peel in 1834. But as the two offices
were generally accepted at the same time, no question arose
as to the vacation of the seat. In 1770, however, Lord
North, being then Chancellor of the Exchequer, accepted also
the office of First Lord of the Treasury. On that occasion,
no new writ was moved, nor was any doubt expressed as to
the legal effect of the acceptance of this second office. Again,
in October 1809, Mr. Spencer Perceval, while Chancellor of
the Exchequer, succeeded the Duke of Portland as First
Lord of the Treasury, but retained his former office. Doubts
were expressed by Lord Redesdale, whether he had not
vacated his seat: but Lord Chancellor Eldon and Mr. Speaker
Abbot agreed that he had not; and no new writ was issued.
In August 1873, Mr. Gladstone, already First Lord of the
Treasury, further assumed the office of Chancellor of the
Exchequer. An active controversy ensued as to the legal
consequences of this proceeding: but as Parliament was dis-
solved during the recess, the complicated questions involved
in this case, including former precedents under the Act of
Anne, and the due construction of the remedial provisions
? 2 Lord Colchester's Diary, 214,
215. Lord Eldon wrote, 25th Dec.
1809, “I think Mr. P.'s seat is not
void by any acceptance of any office
of profit since his election. The Act
has not said that if the king gives an
increase of profit to a person already
holding an office of profit, his seat
shall be void, but only that if any
person accepts an office of profit his
seat shall be void."
"I think with you,” wrote the
Speaker, “that under the statute of
Anne, there must be the concurrence
of office and profit conjointly in the
new grant, which is to vacate the
seat: to re-accept the same office
under a new commission has never,
in practice, been held to vacate a
seat: and the acceptance of a new
annexation of profit to an office
already in possession, has been con-
sidered equally free from the same
consequences.” i Walpole, Life of
Spencer Perceval, 51-54.
712
SEATS VICATED.
of the Reform Act of 1867, did not become the subject of
adjudication.
Offices with
In January 1821, Mr. Bathurst accepted temporarily the
out salary.
office of President of the Board of Control, without its emolu-
ments, in connexion with another cabinet office then held by
him; and under those circumstances did not vacate his seat.
But in 1881, a new writ was issued for Leeds in the room of
Mr. Herbert Gladstone, who had accepted a Lordship of the
Treasury, without salary.?
Lord Warden In 1861, Viscount Palmerston, while First Lord of the
of the Cinque
Ports. Treasury, accepted the honorary offices of Constable of Dover
Castle and Lord Warden of the Cinque Ports, from which
the salary formerly payable by the Crown had been with-
drawn, Lord North and Mr. Pitt had vacated their seats on
accepting these offices, together with the salary attached to
them: but doubts were now entertained whether they could
any longer be regarded as offices of profit. It appeared,
however, that the warrant granted "all manner of wrecks,”
and of “ fees, rewards, commodities, emoluments, profits, per-
quisites, and other advantages whatsoever, to the said offices
belonging," including the occupation of Walmer Castle ;
and, after full consideration, it was determined that a new
writ should be issued.
A singular method of vacating a seat was that of Mr.
perty qualifi-
Southey in 1826, who had been elected for Downton, during
his absence on the Continent. His return was not questioned,
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 expiration of the time
limited for presenting election petitions, and then issued a
Disqualifica- new writ for the borough. A similar case occurred in 1847,
tion admitted.
when Mr. Cowan, member for Edinburgh, addressed a letter
3
Want of pro-
cation ad-
mitted.
1 3 Lord Sidmouth's Life, 339.
2 '136 Com. J. 472.
$ 116 Ib. 126; MS. memorandum.
4 82 Ib. 28.
5 Ib. 108.
SEATS VACATED.
713
to the Speaker, on the 25th November, stating that at the
time of his election he had been disqualified, as being a party
to a contract then subsisting with her Majesty's stationery
office. At the expiration of fourteen days, when his seat
could no longer be claimed by any other candidate, his letter
was read, and a new writ ordered. The same course was
adopted, in 1874, by Mr. Ramsay, member for the Falkirk
Burghs, on discovering that he held a small share in a
contract with the Post Office. On the 24th June 1880,
a new writ was issued for Buteshire in the room of Thomas
Russell, Esq., who having entered into a contract for the
public service, at the time of his election, was incapable of
being elected.+
Whenever any question is raised, affecting the seat of a Questions
affecting the
member, and involving matters of doubt, either in law or seats of
fact, it is customary to refer it to the consideration of a com-
members.
mittee. Thus, in 1839, the cases of Mr. Wynn, who had
accepted the stewardship of Denbigh, and of Mr. Whittle
Harvey, who had accepted the office of registrar of hackney
carriages, were referred to a select committee. Again, in
1848, the question whether Mr. Hawes had regularly taken
the oaths, was referred to a committee; and, in 1855, on a
new writ being moved for Baron de Rothschild, on the
ground that he had contracted for a Government loan, a
committee was appointed to report whether Baron de Roths-
child had vacated his seat, by reason of that contract. In
1869, a committee was appointed to consider whether Sir
Sydney Waterlow was disqualified from sitting and voting,
under the statute 22 Geo. III. c. 45, relating to contractors.
And in 1878 and 1879, a committee was appointed to con-
sider whether Sir Bryan O'Loghlen had vacated his seat
for the county of Clare, by the acceptance of the office of
1 103 Com. J. 17.
2 8th December 1847 ; 103 Ib. 102.
3 19th March 1874 ; 129 Ib. 12.
4 233 Hans. Deb. 3rd Ser, 727.
5 9-1 Com. J. 58.
6 Ib. 29.
i See supra, p. 217.
$ 110 Com. J. 325.
1714
SEATS VACATED,
Members
vacating to be
re-elected.
attorney-general for the colony of Victoria. This practice,
in fact, extends to members whose seats are called in ques-
tion by any member of the house, or otherwise, the same pro-
tection as that afforded in the case of controverted elections.
By the law of Parliament, a member sitting for one place
may not be elected for another: but must vacate his seat by
accepting the Chiltern Hundreds, or some other office under
the Crown, in order to be eligible as a candidate. Sir Fitzroy
Kelly, solicitor-general, having been returned for Harwich
on the 15th April 1852, immediately afterwards announced
himself as a candidate for East Suffolk, the election for which
county was appointed to be held on the 1st May. He had
been returned for Harwich without opposition, yet on the
29th April à petition was lodged against his return, in the
hope of preventing the Treasury from granting him the
Chiltern Hundreds. But as his seat was not claimed, he at
once received the required appointment; and was returned
for East Suffolk, and took his seat again,-before a new writ
had been issued for Harwich. Again, in February 1865,
The O'Donoghue, being member for 'Tipperary, offered him
self as a candidate for Tralee : but before the day of election,
he qualified himself to be elected by accepting the Chiltern
Hundreds. In 1878, Mr. Wingfield Malcolm, member for
Boston, accepted the Chiltern Hundreds, in order to qualify
himself as a candidate for the county of Argyll.4
At one time it was doubted whether a candidate claiming
a seat in Parliament by petition, was eligible for another
place before the determination of his claim: but it was re-
solved, on the 16th April 1728, “that a person petitioning,
and thereby claiming a seat for one place, is capable of being
Petitioning
candidates
eligible.
1 134 Com. J. 86; and see supra,
p. 707.
2 The entry in the Votes is as fol-
lows:-"Sir Fitzroy Kelly having,
since his return for the borough of
Harwich, accepted the office of
stevard of her Majesty's manor of
Hempholme, in the county of York,
and being returned for the eastern
division of the county of Suffolk,
took the oaths and his seat;" Votes,
1852, p. 285.
3 120 Com. J. 4. 50.
4 133 Ib. 402.
CONTROVERTED ELECTIONS.
715
91
elected and returned, pending such petition.” In case the
petitioner should, after his election, establish his claim to the
disputed seat, the proper course would appear to be to allow
him to make his election for which place he would serve, in
the same manner as if he had been returned for both places,
at a general election.2
Another occasion for issuing new writs, is to give effect to Trial of con-
the determination of a court upon the validity of an election; elections. .
and this leads to the examination of the mode in which con-
troverted elections have been tried and determined, according
to law.
Before the year 1770, controverted elections were tried Formerly by
votes of the
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, in consequence of an adverse vote upon the Chippenham
election petition. “Instead of trusting to the merits of their Grenville Act.
respective causes,” said Mr. Grenville, in proposing the
measure which has since borne his name, "the principal
dependence of both parties is their private interest among us;
and it is scandalously notorious that we are earnestly can-
vassed 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 in-
clinations; nay, it is well known that in every contested
election, many members of this house, who are ultimately 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, the Constitution
of committees
1 21 Com. J. 136.
? This point was considered in
1849, when such a case seemed likely
to occur : but there have been no
precedents.
3 See also 1 Cavendish, Deb. 476.
505 ; 1 May, Const. Hist. (7th ed.)
362.
716
CONTROVERTED ELECTIONS.
under the house consented to submit the exercise of its privilege, to a
Grenville Act.
tribunal constituted by law; which, though composed of its
own members, should be appointed so as to secure impar-
tiality, and the administration of justice according to the
laws of the land, and under the sanction of oaths. The prin-
ciple of the Grenville Act,' and of others which were passed
at different times since 1770, was the selection of 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 preponderance 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. Partiality and incompetence were very generally
complained of in the constitution of committees appointed in
this manner; and in 1839, an Act was passed establishing
a new system, upon different principles, increasing the
responsibility of individual members,--and leaving but littlo
to the operation of chance.
Present
This principle was maintained, with partial alterations of
system.
the means by which it was carried out, until 1868, when
the jurisdiction of the house, in the trial of controverted
elections, was transferred by statute, to the courts of law.4
At the commencement of each session the house orders,
" That all members who are returned for two or more places, in any
part of the United Kingdom, do make their election for which of the
places they will serve, within one week after it shall appear that there
is no question upon the return for that place; and if anything shall
come in question touching the return or election of any member, he is
Sessional
orders.
1 In 1773, the Grenville Act was
made perpetual, but not without the
expression of very strong opinions
against the limitations imposed by
it, upon the privileges of tbe house.
See 17 Parl. Hist. 1071; also Lord
Campbell's Chancellors, vol. vi. 98.
2 9 Geo. IV. c. 22.
3 11 & 12 Vict. c. 98.
$ See infra, p. 721.
t
CONTROVERTED ELECTIONS.
717
to withdraw during the time the matter is in debate; and, that all
members returned upon double returns do withdraw till their returns
are determined."
1. The first part of this order regulates the manner of Members
returned for
choosing for which place a member will sit, when he has two places.
been returned for more than one. When the time limited
for presenting petitions to the court 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 con-
stituents may no longer be deprived of a representative.
This election may either be made by the member in his
place, or by a letter addressed to the Speaker. When a
petition has been presented against his return for one place
only, he cannot elect to serve for either. He cannot abandon
the seat petitioned against, which may be proved to belong of
right to another, and thus render void an election which may
turn out to have been good in favour of some other candidate;
neither can be abandon the other seat; because if it should
be proved that he is only entitled to sit for one, he has no
election to make, and cannot give up a seat without having
incurred some legal disqualification, such as the acceptance of
office, or bankruptcy. Upon this principle, on the 24th May
1842, Mr. O'Connell, who had been chosen for the counties
of Cork and Meath, elected to sit for the former, directly
after the report of the election committee, by which he was
declared to have been duly elected for that county.5
2. The second part of the order is in accordance with the Members to
withdraw.
general rule of the house, which requires every member to
withdraw, where matters are under discussion in which he is
personally concerned.6
1 103 Coin. J. 99, 100.
and for the counties of Meath and
2 Mr. O'Connell, 24th May 1842 ; Mayo, made his election to serve for
Mr. Gathorne Hardy, 21st Feb. 1866. the city of Cork; 135 Com. J. 128.
3 Mr. C. Villiers, Mr. Cobden, and * Case of Mr. O'Connell, 1841 ;
Mr. John O'Connell, 8th Dec. 1847; 96 Com. J. 564.
Mr. Callan, 19th March 1874. Mr. 5 97 Com. J. 302.
Parnell, 11th May 1880, who having ☺ See supra, pp. 392. 4.23.
been returned for the city of Cork,
718
DOUBLE RETURNS.
Double
returns.
3. When there is a double return, there are two certificates
endorsed on the writ, and both the names are entered in the
return books. Both members may therefore claim to be
sworn, and to take their seats : 2 but after the election of the
Speaker, neither of them can vote until the right to the seat
has been determined; because both are, of course, precluded
from voting where one only ought to vote; and neither of
them has a better claim than the other. The practice of
making such returns, though apparently prohibited in Eng-
land by the 7 & 8 Will. III. c. 7, has been sanctioned by the
law and usage of Parliament. In 1866, the numbers being
equal, at the election for Helston, the returning officer re-
turned one of the candidates only, instead of both ; when
after the report of an election committee, the house resolved
" that according to the law and usage of Parliament, it is the
duty of the sheriff or other returning officer in England, in
case of an equal number of votes being polled for two or
more candidates at an election, to return all such candidates.
In Scotland the making of double returns was directed by the
Scotch Reform Act, 1832 (s. 33). In Ireland, on the other
hand, a double return was expressly prohibited. In order to
avert double returns, as far as possible, it was provided by
the Parliamentary and Municipal Elections Act, 1872, s. 2,
that where there is an equality of votes between any candi-
dates, and the addition of a vote would entitle a candidate to
be declared elected, the returning officer, if a registered
elector, may give such additional vote, but shall not, in any
1 The ancient form of an indenture
was abolished by the Parliamentary
and Municipal Elections Act, 1872,
Ist Sch. s. 44.
Report, Oaths of Members, 1848,
Q. 23-25. In 1852, three members
were returned for Knaresborough.
They were all sworn at the table, 8th
Nov. and directed by Mr. Speaker
to withdraw below the bar. In 1859,
there were double returns for Knares.
borough and Aylesbury, when the
members were sworn in the same
way. So also in May 1878, when
there was a double return for South
Northumberland,
3 121 Com. J. 436. 486.
is 35 Geo. III. c. 29, s. 13, and
4 Geo. IV. c. 55, s. 68, repealed by
Parliamentary and Municipal Elec-
tions Act, 1872.
DISQUALIFICATION OF PEERS.
719
other case, be entitled to vote at an election for which he is
returning officer.
The house, also, agrees to the following resolutions, in
condemnation of irregular practices to influence the freedom
of election :
“That no peer of this realm, except such peers of Ireland as shall Voting of
for the time being be actually elected, and shall not have declined to peers.
serve for any county, city, or borough of Great Britain, hath any
right to give his vote in the election of any member to serve in Parlia-
ment.” 2
“That it is a high infringement of the liberties and privileges of the Interference
Commons of the United Kingdom for any lord of Parliament, or other of peers and
peer or prelate, not being a peer of Ireland at the time elected, and tenants.
1 In the South Northumberland
election, 1878, the sheriff declined to
give his casting vote, and made a
double return.
2 See debate in the Lords, 27th
June 1853, in which it was laid
down that peers were restrained from
voting by immemorial usage, irre-
spective of these resolutions; 128
Hans. Deb. 3rd Ser. 791. Again,
on the 5th July 1858, Lord Campbell
said, “A peer has no right to yote
by the common law of England, for
the election of members of the House
of Commons." "The resolution of
the Commons only declares the com-
mon law.” And again, " Since the
Reform Bill, peers had frequently
sought to register their votes for the
election of members of the House of
Commons, but the revising barristers
had invariably, and most properly,
refused to allow them.' 151 Hans.
Deb. 3rd Ser. 926, 927. In 1872, the
legal question of the right of peers
to vote, or to be entered upon the
register of voters, was conclusively
decided by the Court of Common
Pleas. The Earl of Beauchamp and
the Marquess of Salisbury having
had their names struck off the regis-
ter by the revising barrister, appealed
to the Court of Common Pleas. The
counsel for the noble appellants
scarcely ventured to maintain their
own case, and the court unanimously
decided that, in law, as derived from
authorities and from the determina-
tion of election committees, as well
as by resolutions of the House of
Commons, peers had no right to
vote; and the appeal was accord-
ingly dismissed with costs. 15th
Nor. 1872; Times report, 16th Nov.
1872. This judgment must be held
as conclusive. It is not by a resolu-
tion of the Commons, but by law,
that a peer is disqualified. In No. 1 of
the new series of Notes and Queries,
Mr. Gairdner, in a learned and in-
genious article, vainly endeavoured
to support a different conclusion,
founded on the Maldon case in 1698.
In the election for Cambridge Uni-
versity, in Nov. 1882, certain peers
claimed to vote, but their votes were
disallowed by the Vice-Chancellor.
See opinion of Attorney-General,
24th Nov. 1882; 275 Hans. Deb. 3rd
Ser. 121.
3 In February 1868, two bishops
(one not being a lord of Parliament)
were on the committee of one of the
candidates for the University of Cam-
bridge ; but on notice being taken of
the circumstance, they withdrew.
720
ELECTION PETITIONS.
1
not having declined to serve for any county, city, or borough of Great
Britain, to concern himself in the election of members to serve for the
Commons in Parliament, except only any peer of Ireland, at such
elections in Great Britain respectively, where such peer shall appear
as a candidate, or by himself, or any others, be proposed to be elected;
or for any lord lieutenant or governor of any county to avail himself
of any authority derived from his commission, to influence the election
of any
member to serve for the Commons in Parliament."?
“That if it shall appear that any person hath been elected or
returned a member of this house, or endeavoured so to be, by bribery,
or any other corrupt practices, this house will proceed with the utmost
severity against all such persons as shall have been wilfully concerned
in such bribery or other corrupt practices." 3
Bribery.
974
Interference of On the 10th December 1779, the Commons resolved that
ministers.
it was “highly criminal in any minister or ministers, or
other servants under the Crown of Great Britain, directly
or indirectly, to use the powers of office in the election of
representatives to serve in Parliament, &c.'
Administra- Under the Act 11 & 12 Vict. c. 98, for the trial of election
election law. petitions, the House of Commons acted as a court administer-
ing the statute law.
Little discretion was left to it beyond
that of interpreting the Act, and executing its provisions.
Every enactment was positive and compulsory; the house, the
tion of the
(Question of Mr. Whitbread, and
Sir W. Stirling Maxwell's answer,
18th February.) Doubts were raised
whether the resolution embraced a
bishop not being a lord of Parlia-
ment: but it is clear that, having
been agreed to in its present form in
1801 and 1802, it was intended to
apply to the Irish peers and bishops
not having seats in Parliament, under
the Act of Union; and now extends
to English bishops not yet summoned
to the Lords, by later statutes. 56
Com. J. 25; 57 Ib. 376.
1 See cases of Bishop of Carlisle,
16 Ib. 548; of Duke of Leeds, 68
Ib. 344; 26 Haps. Deb. 796. 989,
&c. Debate, 14th Dec. 1847 (West
Gloucester election); and precedents
cited by the Attorney-General in
regard to proceedings of the house
against peers who have interfered
in elections, 95 Hans. Deb. 3rd Ser.
1077; and Debate, 19th Feb. 1846,
83 Ib. 1167. Stamford borough case,
1848 ; 98 Ib. 932. 976. Earl of Cado-
gan, 23rd Feb. 1880; 250 Hans. Deb.
3rd Ser. 1198.
? For complaints made of lord-
lieutenants interfering in elections,
see Duke of Chandos, lord-lieutenant
of Southampton, 37 Com. J. 507.
513. 538. 557. Duke of Bolton, a
peer of Parliament, in the same elec-
tion ; 37 Ib. 530.
3 In 1722, several persons were
committed, as being principal pro-
moters of riots at Coventry ; 20 Ib.
60, 61.
4 37 Ib. 507.
ELECTION PETITIONS.
721
oommittees, the Speaker, the members, were all directed to
execute particular parts of the Act; and, in short, it is not
possible to conceive a legislative body more strictly bound
by a public law, over which it had no control, and in adminis-
tering which it had so little discretion.
But by the Election Petitions and Corrupt Practices at Election Peti-
tions, &c.
Elections Act, 1868, the trial of controverted elections, in Act, 1868, and
England, was confided to the Court of Common Pleas at later Acts.
Westminster, in Ireland, to the Court of Common Pleas at
Dublin, and in Scotland, to the Court of Session. Petitions
complaining of undue elections and returns were presented
to those courts, instead of to the House of Commons, as
formerly, within twenty-one days after the returns to which
they related, and were tried by a judge of one of those courts,
within the county or borough concerned. But by the Par- Election peti-
liamentary Elections and Corrupt Practices Act, 1879, it was tried by two
provided that the trial of election petitions should henceforth judges.
be conducted by two judges instead of one. The Court of
Common Pleas having been merged, under the Judicature
Acts, in the Queen's Bench Division of the High Court of
Justice, petitions relating to elections in England are now
presented to the latter court; and by the 44 & 45 Vict. c. 68, Trial of elec-
tion petitions.
the judges for the trial of election petitions are to be selected
from the Queen's Bench Division of the High Court of Jus-
tice. The house has no cognizance of these proceedings until
their termination : when the judges certify their determina-
tion, in writing, to the Speaker, which is final to all intents
and purposes. The judges are also to report whether any
corrupt practices have been committed with the knowledge
tions to be
1 Its helplessness was remarkably
illustrated in the cases of disputed
election recognizances, in the session
of 1847-48.
2 Now the Queen's Bench Division
of the High Court of Justice.
3. On the 1st June 1874, Mr.
O'Donnell (lately member for Gal-
way) appeared at the bar and
claimed to make a statement before
the certificate of the judge, by which
he was unseated, was read : but the
Speaker informed him that it ap-
peared from the judge's certificate
that he was disqualified from sitting,
and that he therefore was not en-
titled to be heard ; 129 Com. J. 184.
P.
CO
722
ELECTION PETITIONS.
and consent of any candidate; the names of any persons
proved guilty of corrupt practices; and whether corrupt
practices have extensively prevailed at the election. They
may also make a special report as to other matters which,
in their judgment, ought to be submitted to the house.
Provision is also made for the trial of a special case, when
required, by the court itself, which is to certify its determina-
tion to the Speaker.
The judges are also to report the withdrawal of an election
petition to the Speaker, with their opinion whether the with-
drawal was the result of any corrupt arrangement.
All
such certificates and reports are immediately communicated
to the house by the Speaker, and are treated like the reports
of election committees under the former system. They are
entered in the Journals; and orders are made for carrying
the determinations of the judges into execution. A report
that corrupt practices have extensively prevailed, is equivalent
to the like report from an election committee, for all the
purposes of the 15 & 16 Vict. c. 57, for further inquiry into
such corrupt practices. Where there is a double return, and
notice is given by one of the parties that he does not intend
to defend his return, a report is made to the Speaker, and the
return is amended accordingly. This Act also makes further
provision for the punishment of corrupt practices at elections.
In addition to these inquiries by election judges, if
upon a
petition to the House of Commons, presented within twenty-
one days after the return, alleging the prevalence of corrupt
practices at an election, an address of both houses for inquiry
is presented, a commission is appointed under the 15 & 16
Vict. c. 57.
Proceedings A few words will suffice to explain the proceedings of the
in matters of house, so far as its judicature is still exercised in matters of
election. It being enacted by s. 50 of the Election Petitions
&c. Act, that "no election or return to Parliament shall be
questioned except in accordance with the provisions of this
Act,” doubts were expressed whether this provision would not
of the house
election.
PROCEEDINGS UPON MATTERS OF ELECTION,
723
66 all
supersede the proper jurisdiction of the house, in determining
questions affecting the seats of its own members, not arising
out of controverted elections. It was plain, however, that
this section applied to the questioning of returns by election
petitions only. When controverted elections were tried by
committees of the house, a sessional order required
persons who will question any returns" to "question the same
within fourteen days;” and under that order election peti-
tions were received. In parliamentary language, therefore, to
question a return was to controvert it by parties interested, -
not to adjudge it by the house itself. During the continuance
of that judicature, the house never attempted to interfere
with controverted elections; but after the time had expired
for receiving election petitions, it always held itself, not only
free, but legally bound, to determine all questions affecting
the seats of its members, as numerous precedents attest.
Where returns were questioned, by petition, the matter was
determined by the statutory tribunal: otherwise the house
uniformly exercised its constitutional jurisdiction. And such
continued to be the position of the house, after the judicature
of its election committees had been transferred to the judges.
In the autumn of 1868, an election petition had been pre-
sented to the Court of Session in Scotland, complaining of
the election of Sir Sydney Waterlow for the county of Dum-
fries, on the ground of his holding a government contract.
In the ensuing session, however, this petition having been
withdrawn, a select committee was appointed to consider
whether Sir Sydney Waterlow is disqualified from sitting
and voting as a member of this house, under the statute
22 Geo. III. C. 45;" and on receiving the report of this
committee, which declared him disqualified, a new writ was
issued for the county of Dumfries. Thus the very same
question which might have been determined, upon petition,
by an election judge, was adjudged by the house itself. The
1 124 Com. J. 12. 43. 82. 88.
3 A 2
724
PROCEEDINGS UPON MATTERS OF ELECTION:
Case of
O'Donovan
Rossa.
house is, in fact, bound to take notice of any legal disabilities
affecting its members, and to issue writs in the room of
members adjudged to be incapable of sitting. In 1870,
O'Donovan Rossa, a convict then in prison, and sentenced to
penal servitude for life, for felony under the Treason-Felony
Act, had been returned as member for the county of Tip-
perary. The house took prompt action, and vindicated the
honour of Parliament, by declaring his disqualification,
and
ordering the issue of a new writ. Yet, even in such a case
as this, it was contended that the house had become com-
pletely divested of the right of determining upon legal dis-
qualifications affecting its own members. This argument,
however, found no favour, it being justly said that it
amounted to this, that even a peer chosen to sit could not
be excluded, and that a lunatic was to be suffered to continue
a member. It might have been added that a new writ could
not be issued in the room of a member accepting office, as
the house was incapable of judging whether his seat had
become vacant.
The case of John Mitchel, in 1875, further illustrates the
position of the house, in relation to elections, and the legal
disqualifications of its members. John Mitchel had been
returned for the county of Tipperary without a contest. No
question could, therefore, arise as to the election or return, -
the sole matter for determination being the qualification of
the member. It was notorious that he was an escaped
convict, and had not completed the term of transportation,
to which he had been sentenced. The facts of the case were
proved; and his legal disqualification was clearly established
to the satisfaction of the house. A new writ was accordingly
issued; and John Mitchel was again returned. But, on this
occasion, there had been a contest; and the house therefore
left the merits of the election and return to be determined
Case of John
Mitchel.
1 94 Com. J. 48; 103 Ib. 102.
2 Hans. Deb. 10th Feb. 1870; and
see supra, p. 39, n.
3 Under 9 Geo. IV. c. 32, s. 3; 9
Geo. IV. c. 54, s. 33.
!
PROCEEDINGS UPON MATTERS OF ELECTION.
725
under the Election Petitions Act. Mr. Moore, the other
candidate, having given due notice of the disqualification,
proved his claim to the seat, and the return was amended
accordingly. And again, on the 28th February 1882, the
house resolved that Michael Davitt, having been adjudged
guilty of felony, and sentenced to penal servitude for fifteen
years, is incapable of being elected or returned as a mem-
ber. In such cases as this the jurisdiction and duty of the
house cannot be questioned, as the incapacity of a felon is
expressly declared by statute. A petition relating to an
election, but not questioning the return of the sitting member,
may properly be received.4
Where it has been determined that the sitting member Proceedings
of house upon
was not duly elected, and that some other candidate was determination
duly elected, and ought to have been returned, the clerk of of election
the Crown is ordered to attend, and amend the return. This
was formerly done by rasing out one name and inserting the
other name instead thereof, which he accordingly did, at the
table of the house. But the form of return having been
altered by the Parliamentary and Municipal Elections Act,
1872, it has since been usual to order the clerk of the Crown
to amend the return by substituting one name for another.
In the case of a double return, the clerk of the Crown is
ordered to attend and amend the return, by rasing out the
name of one of the parties, and what relates to him in the
7
1 130 Com. J. 49. 52. 239; 222
Hans. Deb. 3rd Ser. 493.
2 137 Com. J. 77.
· 33 & 34 Vict. c. 22, s. 2. See
Hans. Deb. 28th Feb. 1882, and es-
pecially the speech of the Attorney-
General.
4 194 Hans. Deb. 3rd Ser. 1185.
5 No notice can be taken of a deter-
mination until reported to the house.
On the 27th May 1866, Mr. Mills,
member for Northallerton, had been
declared not duly elected ; but no re-
port had been made to the house,
and the division on the second read-
ing of the Reform Bill, was expected
the same evening. As every vote
was important, the question was can-
vassed whether Mr. Mills could vote.
It was admitted that his vote could
.not be disallowed; but on taking
counsel with his friends, he very
properly desisted from voting. Mr.
Speaker Denison's Note-Book.
6 112 Com. J. 364, 365. 367; 121
Ib. 189; 127 Ib. 261.
7 Tipperary election, 27th March
1876; 130 Com. J. 236,
726
PROCEEDINGS UPON MATTERS OF ELECTION.
3
Special
reports.
return. When the election is void, a new writ is ordered,
unless the house shall think fit to suspend its issue. In the
case of the Wigton election, 1874, the judge reported that
the Right Hon. John Young was duly elected: but it ap-
pearing that since his eléction he had been appointed a
judge of the Court of Session, in Scotland, a new writ was
issued.?
Where there have been special reports concerning bribery,
or riots at elections,4 the conduct of returning officers, undue
influence, and spiritual intimidation, the alteration of the
poll, the absence, misconduct, or perjury of witnesses, defects
or uncertainty in the law, the propriety of suspending the
writ,10 or any other exceptional circumstances ; 11 the house
has taken such measures as were required by law or usage, or
as appeared suitable to the occasion. It has been usual, in
such cases, to order a copy of the judgment delivered by the
judge, and the minutes of evidence, to be laid before the
house. 12
To facilitate inquiries into acts of bribery, committees were
required by 4 & 5 Vict. c. 57 (since repealed), to receive
general evidence of bribery, without prior proof of agency ;
and by the Election Petitions, &c. Act, 1868, unless the judge
Proof of
agency
3 Helston election, 1866; 121 Ib.
436.
197 Com. J. 203; 124 Ib. 173.
Montgomery election, 1848 ; 103 Ib.
218. Dumbartonshire election, 1866;
121 Ib. 156. South Northumberland
election, 1878; 133 Com. J. 333.
The return by indenture was discon-
tinued by the Parliamentary and
Municipal Elections Act, 1872, and
the certificate of return is now in-
dorsed upon the writ.
2 Votes, 1st and 2nd June 1874.
3 Such reports have been held to be
a ground of disqualification. Peter-
borough case, 1853 ; 108 Com. J.
6 Mayo petition, 1857; 112 Ib.
307. Galway County election, 1872;
127 Ib. 258.
7 114 Ib. 330. 350; 115 Ib. 167.
8 115 Ib. 94. 167, &c.
9 93 Ib. 275; 97 Ib. 198 ; 98 Ib.
133; 103 Ib. 511. 965.
10 Beverley case, 1859 ; 114 Ib. 359.
11 112 Ib. 292. 295. 369. 385 ; 114
Ib. 369; 121 Ib. 288.
12 The short-hand writer of the
House of Commons reports the evi-
dence and judgment upon every trial
of an election petition, but does not
report proceedings on the withdrawal
of a petition.
826.
4 Drogheda petition, 1857; 112 Ib.
383. Limerick City petition, 1859 ;
114 Ib. 338.
PROCEEDINGS UPON MATTERS OF ELECTION.
727
otherwise directs, any charge of a corrupt practice may be
gone into, and evidence in relation thereto received, before
any proof has been given of agency, on the part of a candidate,
in respect of such corrupt practice.
By this mode of inquiry, the discovery of acts of bribery Bribery by
was, undoubtedly, much facilitated; and in the course of the incapacitates.
agent
evidence, proofs or implications of agency were elicited, which
might not have arisen if the evidence had been confined, in
the first instance, to the strict proof of agency. This pro-
vision did not apply to charges of treating ;? but was expressly
extended to such charges by the Corrupt Practices Act, 1863.2
Since the passing of this Act, the seats of several members
have been avoided by the acts of their agents; and com-
mittees and election judges have reported that sitting mem-
bers have been, by or through their agents, guilty of bribery;
and, at the same time, that there was no evidence to show
that any acts of bribery were committed with their knowledge
and consent. Such determinations have been founded upon
the principle, that though, without such proof, the member
could not be sued for penalties,4 yet, 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 unauthorised and illegal act
committed by his agent, by which his own return had been
secured. This principle, however, has been extended much
further, and has been construed so as to attach some of the
penalties of bribery to the principal, although such bribery
has been committed by his agents, without his knowledge
and consent. In 1842, the election of Mr. Harris for
1 Bodmin case ; Power, Rodwell,
and Dew, 134. Leicester case; Ib.
176. Chester County case; Ib. 219.
Second Horsham case; Ib. 250. Kid-
derminster case; Ib. 263: but see
also Cambridge and Wigan cases ;
Barron and Austin, 184. 788. Ayles-
bury case; Power, Rodwell, and
Dew, 271.
2 26 Vict. c. 29, s. 8; now repealed.
3 97 Com. J. 260.279.551; 121 Ib.
190. 251, &c. Barron and Austin,
401. 453. 584. 609. Power, Rodwell,
and Dew, 45. 75. 1 O'Malley and
Hardcastle, 11. 148; 2 Ib. 165, &c.
* Felton v. Easthope, 1822; Rogers,
390. 409. Hughes v. Marshall, 2
Tyr. 134.
728
CORRUPT PRACTICES.
Newcastle-under-Lyme was avoided, by reason of bribery,
but the committee reported that “no evidence was given to
show that these acts of bribery were committed with the
knowledge and consent of Mr. Harris." Mr. Harris was
re-elected, and petitioned against, and the committee deter-
mined, "that Mr. Harris having been declared, by a committee
of the House of Commons, to have been guilty of bribery by
his agents, at the previous election for the borough of New-
castle-under-Lyme, and that election having been avoided,
was incapable of being elected at the election which took
place in consequence of such avoidance.” In several later
cases, a second election has been avoided on account of
corrupt practices at a former election. The same principle
has also been extended to unsuccessful candidates at a pre-
Corrupt vious election. By the Corrupt Practices Prevention Act,
Practices Act,
1854.
1854, s. 36, it was enacted, that if any candidate shall be
declared by any election committee guilty, by himself or his
agents, of bribery, treating, or undue influence at an election,
such candidate shall be incapable of being elected or sitting
in Parliament for the same county, city, or borough, during
the Parliament then in existence. And by sect. 46 of the
Election Petitions and Corrupt Practices Act, 1868, the
report of the judge on the trial of an election petition is to
be deemed to be substituted for the declaration of an election
Sitting committee. A further instrument for the detection of bribery
members
examined. has been found in the personal examination of the sitting
members and candidates, under the new law of evidence.
Punishment By s. 43 of the Election Petitions and Corrupt Practices
of candidate
guilty of Act, 1868, where it is found, by the report of an election
personal
bribery.
judge, that bribery has been committed by or with the know-
ledge and consent of any candidate, such candidate shall be
deemed to have been personally guilty of bribery, and his
i Barron and Austin, p. 564.
3 2nd Cheltenham petition, and
2 Cheltenham and Horsham, in 2nd Horsham petition, 1848; 103
1848; Norwich, in 1859 ; and see Com. J. 973. 1005; Power, Rodwell,
Rogers on Elections, 13th ed. 243. and Dew, 225. 242.
4 14 & 15 Vict. c. 99.
4
CORRUPT PRACTICES,
729
election, if he has been elected, shall be void, and he shall be
incapable of being elected to, and of sitting in, the House of
Commons, for a period of seven years; and shall further be
incapable, during that period, of being registered as a voter,
and voting at any election in the United Kingdom; and of
holding any office under 5 & 6 Will. IV. c. 76, or 3 & 4 Vict.
c. 108, or any municipal office; and of holding any judicial
office, and of being appointed, and of acting, as a justice of
the peace.
tions of
candidates.
By s. 44 of the same Act, if any candidate is proved to Penalty for
have personally engaged at the election, as a canvasser or corrupt agent.
employing
agent for the management of the election, any person whom
he knows to have been, within seven years, found guilty of
any corrupt practice, the election of such candidate shall be
void. And by s. 45, any person other than a candidate, Disqualifica-
found guilty of bribery, in any proceeding in which, after persons not
notice of the charge, he has had an opportunity of being
heard, shall, during a period of seven years, be incapable of
being elected to and sitting in Parliament, and subject to the
same civil disqualifications as a candidate found guilty of
personal bribery.
By the Corrupt Practices Act, 1863, the committee was General
required to report whether such corrupt practices have exten- be reported.
corruption to
sively prevailed. Formerly, when particular persons were
proved, before election committees, to have been guilty of
bribery, treating, and other corrupt practices, the house
directed the attorney-general to prosecute them for such
offences. But by the same act, s. 9, it was provided, that
when persons were reported guilty of bribery or treating,
the report and evidence of a committee, or commission of
inquiry, shall be laid before the attorney-general, with a
view to his instituting a prosecution against such persons,
1 In cases relative to Ireland, the Crowu in Ireland were directed to
Attorney-General for Ireland has take immediate measures for bring-
been directed to prosecute; Sligoing to justice such persons as may
case, 1854; 109 Com. J. 159. Lisburn have been guilty of bribing voters."
case, 19th June 1863. In the Dublin 86 Com. J. 779.
case, 1831, “the law officers of the
730
CORRUPT PRACTICES.
2
Writs
suspended.
if the evidence be, in his opinion, sufficient. And this
provision extends to reports of election judges, under the
Election Petitions, &c. Act, 1868, s. 16; and thus the inter-
vention of the house, in such cases, is now rendered unneces-
sary by the direct operation of the law.
When general and notorious bribery and corruption have
been proved to prevail in parliamentary boroughs, the house
has frequently suspended the issue of writs, with a view to
further inquiry, and proceedings for the ultimate disfranchise-
ment of the corrupt constituencies by Act of Parliament.4
! In the Wakefield case, after the
report of a commission of inquiry, the
attorney-general instituted a pro-
secution, without the directions of
the house, the matter being no longer
within the sole cognisance of the
house.
2 Galway County election, 1872;
explanations of Attorney-General for
Ireland, and debate, 23rd July 1872;
212 Hans. Deb. 3rd Ser. 1626.
3 Liverpool, 1831; 86 Com. J. 458.
493. Warwick, 1833; $8 Ib. 611;
89 Ib. 9. 579. Carrickfergus, 1833 ;
88 Ib. 531. 599. Hertford, '1833 ;
Ib. 578. 649. In the three last cases,
the writs were further suspended
until 15 days after the commence-
ment of the next session, and in
1834, were again suspended until
the dissolution in Dec. 1834. Mean-
while bills of disfranchisement, or for
preventing bribery in these boroughs,
were pending. Stafford, 1835; writ
suspended until ten days after the
commencement of the next session;
and again in 1836 and 1837, until
there was no prospect of passing a
disfranchisement bill; see debate,
13th Feb. 1837, on issue of writ,
90 Ib. 262; 91 Ib. 792. Sudbury,
writ suspended, froin time to time,
from 14th April 1842, till 1st August
1843; 97 Ib. 188. 467, &c.; Dis-
franchisement Act, 7 & 8 Vict. c. 53.
Ipswich, 1842 ; writ suspended, at
intervals, from 25th April until 1st
Aug. 1842; 97 Com. J. 221. 554.
Yarmouth, 1848; writsuspended from
14th Feb. until 30th June ; 103 Ib.
213; freemen disfranchised by 11 &
12 Vict. c. 24. Harwich, 1848 ; 103
Com. J. 330. 702. In 1851, an Act
was passed for inquiring into bribery
at St. Albans, 14 & 15 Vict. c. 106;
and the result of this inquiry was
the disfranchisement of that borough
by 15 & 16 Vict. c. 9. Barnstaple;
writ suspended from 22nd April 1853,
until 11th Aug. 1854. Cambridge;
writ suspended from 3rd March 1853,
until 11th Aug. 1854. Canterbury;
writ suspended from 22nd Feb. 1853,
until 11th Aug. 1854. Wakefield and
Gloucester; writs suspended from
July 1859, until 20th Feb. 1862. See
156 Hans. Deb. 3rd Ser. 771 ; 157
Ib. 1637; 161 Ib. 247; 163 Ib. 1070,
&c. Norwich; writ suspended in
1875 ; 130 Com. J. 247; Act passed
in 1876, forbidding any election
during the Parliament, 39 & 40 Vict.
c. 72. Wigan election, 1880; writ
suspended until Nov. 1881. On
several other occasions vrits have
been suspended for shorter periods
until the printing of evidence ; e.g.,
Nottingham, 1843; Harwich, 1848 ;
and Clitheroe, 1853.
4 It has been customary to order
copies of disfranchisement bills to be
served upon the returning officer
COMMISSIONS OF INQUIRY.
731
An effectual mode of investigating corrupt practices at Commissions
of inquiry.
elections was established by 15 & 16 Vict. c. 57, which pro-
vided that where both houses, by a joint address, represent
to her Majesty that an election committee has reported to the
House of Commons that corrupt practices have, or that there
is reason to believe they have, extensively prevailed in any
place, and pray for an inquiry, by persons named in such
address, her Majesty is to appoint a commission, which has all
necessary powers of inquiry. And by the Election Petitions,
&c. Act, 1868, such addresses may be founded, in the same
manner, upon the reports of election judges. And addresses
have been agreed to, pursuant to these acts, in the cases of
Canterbury, Cambridge, Maldon, Barnstaple, Kingston-upon-
Hull, and Tynemouth, in 1853; Galway in 1857; Gloucester
and Wakefield, in 1859; Lancaster, Great Yarmouth, Reigate,
and Totnes, in 1866; Beverley, Bridgwater, Cashel, Sligo,
Dublin, and Norwich, in 1869; Norwich and Boston, in
1874; Boston, Canterbury, Chester, Gloucester, Knares-
borough, Macclesfield, Oxford, and Sandwich, in 1880. In
1881, the motion for an address for inquiry into corrupt
practices at Wigan, was negatived. But no writ was issued
for that borough until November in the following year.
The Canterbury election committee, 1853, in recommend- Form of
address.
ing further inquiry, did not report in the precise terms of the
Act, but adopted equivalent expressions. The address, how-
ever, necessarily followed the words of the Act;4 and though
this discrepancy did not pass without objection, it was agreed
to by both houses. In the Clitheroe case the Lords declined
before the second reading; 99 Com.
J. 443; 103 Ib. 366. Lancaster, Great
Yarmouth, Reigate, and Totnes,
1866; Bridgwater and Beverley,
Sligo and Cashel, 1870; Norwich
and Boston, 1876; 131 Com. J. 325;
see also infra, p. 732.
1 The payment of the expenses of
such commissions has been further
regulated by 32 & 33 Vict. c. 21, and
34 & 35 Vict. c. 61.
2 136 Com. J. 478.
3 137 Ib. 514.
4 108 Ib. 338.
5 See debates in Commons, 15th
March, and in Lords, 12th April
1853.
6 See also Lords' debates, 30th
May 1853, on the Maldon case, and
protest of Lord St. Leonards.
732
COMMISSIONS OF INQUIRY.
Bills founded
on reports
of commis-
sioners.
to concur in an address. In 1869, commissioners were
appointed, by statute, to inquire into corrupt practices re-
ported, by an election judge, to have been committed by the
freemen of Dublin.
In 1854, bills were brought in founded upon reports of the
commissioners, in the cases of Canterbury, Maldon, Barn-
staple, and Kingston-upon-Hull, for the prevention of bribery
in those places; and in 1858, for the disfranchisement of the
freemen of Galway: but all these bills miscarried, mainly in
consequence of the indemnity granted, under the Act of
15 & 16 Vict. c. 57, to voters who had given evidence of
corrupt practices. But by the Corrupt Practices Act, 1863,
certificates of indemnity were made a protection in civil
or criminal proceedings only; and could, therefore, no longer
be urged as a bar to bills of disfranchisement. And accord-
ingly, by the Reform Act of 1867, the four corrupt boroughs
of Lancaster, Great Yarmouth, Reigate, and Totnes were
disfranchised. In 1870, the boroughs of Bridgwater, Bever-
loy, Sligo, and Cashel, and certain voters of the cities of
Norwich and Dublin, were disfranchised by special Acts ;?
and in 1871 certain other voters of Norwich were disfran-
chised. In 1876, after the reports of two commissions, an
Act was passed forbidding an election for Norwich until the
end of the Parliament, and disfranchising several persons for
a period of seven years, in Norwich and Boston. And since
the general election of 1880 it has been enacted, from time to
time, that no election should be held for Boston, Canterbury,
Chester, Gloucester, Macclesfield, Oxford, and Sandwich.4
1 108 Com. J. 490.
2 33 & 34 Vict. cc. 21, 25, 38, 54.
3 39 & 40 Vict. c. 72.
4 44 & 45 Vict. c. 42; 45 & 46
Vict. c. 68.
I
IMPEACHMENT BY THE COMMONS.
733
CHAPTER XXIII.
IMPEACHMENT BY THE COMMONS; GROUNDS OF ACCUSATION, FORM
OF THE 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.
IMPEACHMENT by the Commons, for high crimes and mis- Rarity of
impeachments
demeanors beyond the reach of the law, or which no other in modern
authority in the state will prosecute, is a safeguard of public times.
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 prerogative; 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 Parlia-
ment over courts of justice, which are, at the same time, in-
dependent of the Crown, have prevented the consummation
of those crimes which impeachments were designed to punish.
The Crown is entrusted by the constitution with the prosecu-
tion of all offences; there are few which the law cannot
1 For the number of impeachments
at different times, see supra, p. 58.
2 By the Acts 13 Will. III. c. 2,
8. 3, and i Geo. III. c. 23, the com-
missions of judges are made quamdiu
se bene gesserint; their salaries are
ascertained and established: but it
may be lawful to remove them upon
the address of both houses of Parlia-
ment.
734
GROUNDS OF IMPEACHMENT.
Peers and
commoners,
punish; and if the executive officers of the Crown be negli-
gent or corrupt, they are directly amenable to public opinion,
and to the censure of Parliament.
Grounds of
impeachment.
From these causes, impeachments are reserved for extra-
ordinary crimes and extraordinary offenders; but by the law
of Parliament, all persons, whether peers or commoners, may
be impeached for any crimes whatever.
It was always allowed that a peer might be impeached for
any crime, whether it were cognizable by the ordinary tribunals
or not; but doubts have been entertained, upon the supposed
authority of the case of Simon de Beresford, in the 4th
Edward III., whether a commoner could be impeached for
any capital offence.
Blackstone, relying upon this case, and overlooking later
authorities, affirmed that “a commoner cannot be impeached
before the Lords for any capital offence, but only for high
misdemeanors." And more recently Lord Campbell has
expressed an opinion to the same effect. Simon de Beres-
ford, however, was not impeached by the Commons, but was
charged before the Lords at the suit of the Crown; and after
they had given judgment against him, they made a declara-
tion, which by some has even been regarded as a statute,
" that the aforesaid judgment be not drawn into example or
consequence in time to come, whereby the said peers may be
charged hereafter to judge others than their peers, contrary
to the law of the land.” Whatever weight may be attached
to this declaration, it clearly applies to cases similar to that of
de Beresford, and cannot be extended to impeachments by
the Commons. In subsequent cases, the Lords violated their
own declaration, by trying commoners for capital offences at
the suit of the Crown ;5 and such trials were unquestionably
contrary to Magna Charta and to the common law. But an
1 2 Rot. Parl. 53, 54; 4 Edw. III.
Nos. 2 and 6.
24 Comm. c. 19.
3 3 Lives of the Chancellors, 358,
369. 410.
4 14 Lords' J. 260.
5 Lord Hale, Jurisd. of House of
Lords, 92.
8 " Nec super eum ibimus, nisi per
legale judicium parium suorum.
!
GROUNDS OF IMPEACHMENT.
735
Fitzharris.
impeachment by the Commons is a proceeding of a character
wholly distinct; and its legality has been recognised by
Selden,' Lord Hale,? and other constitutional authorities, and
established by numerous parliamentary precedents.
The only case in which it appears to have been questioned Case of
by the Lords was that of Fitzharris. On the 26th March
1681, Edward Fitzharris was impeached of high treason : but
the House of Lords, on being informed by the attorney-
general that he had been instructed to indict Fitzharris at
common law, resolved that they would not proceed with the
impeachment.5 The grounds of their decision were not stated;
but from the protest entered in their Journals, from the reso-
lution of the Commons, and from the debates in both houses,
it
may
be collected that the fact of his being a commoner had
been mainly relied on. The Commons protested against the
resolution of the Lords, as "a denial of justice, and a viola-
tion of the constitution of Parliaments;" and declared it to
be their“ undoubted right to impeach any peer or commoner
for treason, or any other crime or misdemeanor;" but the
impeachment was at an end, and the trial at common law
proceeded. On his prosecution by indictment, Fitzharris
pleaded in abatement that an impeachment was then pending
against him for the same offence, but his plea was overruled
by the Court of King's Bench.?
The authority of this single and exceptional case, however, Case of
Sir A. Blair,
is of little value; and has been superseded by later cases, and others.
An impeachment for high treason was depending, at the very
time, against Chief Justice Scroggs, a commoner; and when,
| Judicature of Parliament, 3 Seld.
Works, Part II. 1589.
2 Jurisd. of the Lords, c. 16.
3 4 Hatsell, 60, 1., 84. 216, 12. ; 2
Hallam, Const. Hist. 144.
4 Sir R. Belknap and others, and
Simon de Beverley and others, 1383;
3 Rot. Parl. 238. 240. Judge Berk-
ley and other judges, 1640; 4 Hatsell,
163, &c. O'Neile, Jermyn, Piercy,
and others, 1641; 4 Hatsell, 187,
&c.
5 13 Lords' J. 755.
6 8 Howell's St. Tr. 231-239; 2
Burnet, Own Times, 280; 4 Hans.
Parl. Hist. 1333.
7 8 Howell, St. Tr. 326.
8 13 Lords' J. 752.
736
ARTICLES OF IMPEACHMENT.
ment of
on the 26th June 1689, Sir Adam Blair, and four other
commoners, were impeached of high treason, the Lords, after
receiving and considering a report of precedents, including
that of Simon de Beresford, and negativing a motion for
requiring the opinion of the judges, resolved that the im-
peachment should proceed.? And thus the right of the
Commons to impeach a commoner of high treason has
been affirmed by the last adjudication of the House of
Lords.
Commence-
It rests, therefore, with the House of Commons to deter-
proceedings. mine when an impeachment should be instituted. A member,
in his place, first charges the accused of high treason, or of
certain high crimes and misdemeanors, and after supporting
his charge with proofs, moves that he be impeached. If the
house deem the ground of accusation sufficient, and agree to
the motion, the member is ordered to go to the Lords, "and
at their bar, in the name of the House of Commons, and of
all the commons of the United Kingdom, to impeach the
accused; and to acquaint them that this house will, in due
time, exhibit particular articles against him, and make good
the same. The member, accompanied by several others,
proceeds to the bar of the House of Lords, and impeaches the
accused accordingly.3
In the case of Warren Hastings, articles of impeachment
impeachment.
had been prepared before his formal impeachment at the bar
of the House of Lords: but the usual course has been to
prepare them afterwards. A committee is appointed to draw,
up the articles, and on their report, the articles are discussed,
and, when agreed to, are ingrossed and delivered to the
Lords, with a saving clause, to provide that the commons
shall be at liberty to exhibit further articles from time toj
time.4
The accused sends answers to each article, which,
together with all writings delivered in by him, are commu-
Articles of
i See this report, 4 Hatsell, 428.
2 14 Lords' J. 260.
3 46 Ib. 350.
460 Com. J. 482, 483.
I
THE TRIAL.
737
summoned.
nicated to the Commons by the Lords ;' and to these, repli-
cations are returned, if necessary.2
If the accused be a peer, he is attached or retained in Accused taken
into custody.
custody, by order of the House of Lords ;: if a commoner,
he is taken into custody by the serjeant-at-arms attending
the Commons, by whom he is delivered to the gentleman
usher of the black rod, in whose custody he remains, unless
he be admitted to bail by the House of Lords ;6 or be other-
wise disposed of by their order.
The Lords appoint a day for the trial, and in the mean- Managers
appointed.
time the Commons appoint managers to prepare evidence
and conduct the proceedings, and desire the Lords to sum- Witnesses
mon all witnesses, who are required to prove their charges.
The accused may have summonses issued for the attendance
of witnesses on his behalf, and is entitled to make his full
defence by counsel.
The trial has usually been held in Westminster Hall, The trial.
which has been fitted up for that purpose. In the case of
peers impeached of high treason, the House of Lords is
presided over by the Lord High Steward, who is appointed
by the Crown, on the address of their lordships; but, at other
times, by the Lord Chancellor or Lord Speaker of the House
of Lords. The Commons attend the trial, as a committee of Charges to be
the whole house, 10 when the managers make their charges, the articles.
and adduce evidence in support of them : but they are bound
to confine themselves to charges contained in the articles of
impeachment. Mr. Warren Hastings complained, by petition
to the House of Commons, that matters of accusation had
been added to those originally laid to his charge, and the
house resolved that certain words ought not to have been
9
confined to
1 20 Lords' J. 297; 18 Com. J.
391.
2 61 Com. J. 164.
3 20 Lords' J, 112; 27 Ib. 19.
4 16 Com. J. 212; 42 Ib. 793.
5 42 Ib. 796.
6 37 Lords' J. 714.
i 61 Com. J. 169.
8 Ib. 224.
9 20 Geo. II. c. 30; 45 Lords' J.
439.
20 45 Lords' J. 519.
P.
3 B
738
COMMONS DEMAND JUDGMENT.
Lords deter-
mine if the
accused be
guilty.
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 necessary;
and, in conclusion, the managers, as in other trials, have been
allowed 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. Each peer, in succession, rises in
his place when the question is put, and standing uncovered,
and laying his right hand upon his breast, answers “guilty,
or "not guilty," as the case may be, "upon my honour.'
Each article is proceeded with separately, in the same
manner, the Lord High Steward giving his own opinion the
last.2 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.3
If the accused be declared not guilty, the impeachment is
dismissed ; if guilty, it is for the Commons, in the first place,
to demand judgment of the lords against him; and they
would protest against any judgment being pronounced until
they had demanded it. On the 17th March 1715, the
Commons resolved, nem. 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 parliamentary for
their lordships to give judgment, until the same be first demanded by
this house." +
Commons
demand
judgment.
And a similar resolution was agreed to on the impeach-
ment of Lord Lovat, in 1746.5
1 44 Com. J. 298. 320.
? Printed Trial of Lord Melville,
3 Ib. p. 413.
4 18 Com. J. 405.
5 25 Ib. 320..
p. 402.
1
EFFECT OF PROROGATION.
739
ment,
When judgment is to be given, the Lords send a message The judg-
to acquaint the Commons that their lordships are ready to
proceed further upon the impeachment: the managers 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 Macclesfield from the
consequences of an impeachment, after he had been found
guilty by the unanimous judgment of the House of Lords.3
So important is an impeachment by the Commons, that not Proceedings
only does it continue from session to session, in spite of pro- by proroga-
rogations, by which other parliamentary proceedings are
determined: but it survives even a dissolution, 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 discon-
tinued by any prorogation or dissolution of Parliament."
In the case of the Earl of Danby, in 1679, the Commons Pardon not
pleadable.
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
not concluded
tion or dis-
solution,
c. 125.
1 22 Lords' J. 556; 27 Ib. 78. 136. 2 May, Const. Hist. (7th edit.),
2 22 Ib. 560.
93.
3 Ib. 554, 555. 20 Com. J. 541 5 26 Geo. III. c. 96; 45 Geo. III.
(27th May 1725). 6 Howell, St. Tr.
762.
6 See 4 Hatsell, 197, 12. 208. 400.
4 39 Lords: J. 191; and see Report 405. 3 Lord Macaulay, Hist. 407.
of Precedents, Ib. 125. 46 Com. J.
3 B 2
740
TRIAL OF PEERS.
But may be
given after-
wards.
Crimes for
which peers
are tried by
their peers.
asserted the same principle, and within a few years it was
declared by the Act of Settlement,1 " that no pardon under
the great seal of England, shall be pleadable to an impeach-
ment by the Commons in Parliament."
But, although the royal prerogative of pardon is not
suffered to obstruct the course of justice, and to interfere
with the exercise of parliamentary judicature; yet the pre-
rogative itself is unimpaired in regard to all convictions
whatever; and 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 words will be
necessary. At common law, the only crimes for which a
peer is to be tried by his peers, are treason, felony, misprision
of 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 præmunire, it has been held that peers are to be
tried in the same way as commoners, by a jury.2
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 :4 but at other times, they may be tried before the court
of the Lord High Steward. This court was formerly con-
stituted in so anomalous a manner, as scarcely to deserve the
name of a court of justice. The Lord High Steward, him-
self nominated by the Crown, summoned to the trial, at his
discretion, such peers as he selected, whose number was re-
quired to be not less than twelve : but was otherwise indefi-
In Parlia -
ment, or by
court of
Lord High
Steward.
1 12 & 13 Will. III. c. 2.
2 Rex 2. Lord Vaux, 1 Bulstr. 197.
3 Foster, Crown Law, 141.
4 After the trial his grace breaks
the white staff, and declares the
commission dissolved. See published
trial of the Earl of Cardigan.
5 See 4 Blackstone Comm. 260.
TRIAL OF PEERS.
741
nite. The abuses arising out of this constitution of the
court, however, were remedied by the 7 Will. III. c. 3,
which requires that, on the trial of a peer, all the peers shall
be summoned.
By the 4 & 5 Vict. c. 22, it was enacted, " that every Indictments
against peers.
lord of parliament, or peer of this realm, having place and
voice in Parliament, against whom any indictment may be
found, shall plead to such indictment, and shall, upon con-
viction, be liable to the same punishment as any other of her
Majesty's subjects."
Indictments are found, in the usual manner, against peers
charged with treason or felony ; but are certified into the
House of Lords by writs of certiorari, when the proceedings
are immediately taken up by that house. It is usual, in such
cases, to appoint a committee to inspect the Journals upon
former trials of peers, and to consider the proper methods of
proceeding: and if the accused peer be not already in cus-
tody, an order is forthwith made for the gentleman usher of
the black rod to attach him, and bring him to the bar of the
house.?
Peers on trial before the Lords for misdemeanors are Accused peers
allowed a seat within the bar: but if tried for treason or
felony, they are placed outside the bar.3
On the 14th January 1689, it was resolved by the Lords, Trial of peers
“ That it is the ancient right of the peers of England to be Parliament.
tryed only in full Parliament for any capital offences :">
but on the 17th, it was declared that this order should not Declaration
concerning
“ be understood' or construed to extend to any appeal of appeals of
murther or other felonye, to be brought against any peer or
murther, &c.
at the bar.
to be in full
peers,"4
When a peer is tried in full Parliament, the Lord High Lord High
Steward votes with the other peers; but when the trial is
Steward.
1 See trial of Lord Delamere, 11
Howell, St. Tr. 639; 2 Lord Ma-
caulay, Hist. 38.
2 99 Hans. Deb. 3rd Ser. 1050
(23rd June 1848); SO Lords' J. 415.
3 3 Lord Campbell, Lives of Chan-
cellors, 538, n.
4 Lords' S. O. No. 60.
742
TRIAL OF PEERS.
1
Spiritual
lords.
before the court of the lord high steward, he is only the
judge to give direction in point of law; and the verdict is
given by the Lords-triers.
In the trial of peers, the position of the bishops is at once
anomalous and ill-defined. Not being themselves ennobled
in blood, they are “not of trial by nobility,"2 but would be
tried for a capital offence by a jury, like other commoners.
But though not entitled to a trial by the peers, they claim,
and to a certain extent exercise, the right of sitting, as
judges, upon the trial of peers in full Parliament. By the
Act 7 Will. III. c. 3, it is enacted, "that upon the trial
of any peer or peeress for high treason or misprision, all the
peers who have a right to sit and vote in Parliament shall
be duly summoned twenty days at least before every such
trial; and that every peer so summoned and appearing, shall
vote in the trial." This Act, however, does not “extend to
any impeachment, or other proceeding in Parliament, in any
kind whatsoever." In other words, it relates solely to the
trial of peers before the court of the lord high steward; and
to this court no spiritual lord has ever been summoned, either
before or since the passing of that Act. It expressly refers
to "peers” only, and by a declaration of the House of Lords
the “bishops are only lords of Parliament, and not peers.
But when a peer is to be tried in full Parliament, the bishops,
as lords of Parliament, are entitled to take part in the pro-
ceedings of the House of Lords, of which they are members,
and they are always summoned to attend with the other
peers. Here, however, they are restrained from the full
exercise of their judicial functions, by their ecclesiastical
obligations. By the canons of the Church, they are pro-
>>
| 3 Lord Campbell, Lives of Chan.
657, n.
2 Lords' S. O. No. 61.
3 Ist Inst. 31; 3rd Inst. 30; Gib-
son, Codex, 133; Gilbert, Exch. 40;
1 Burn, Eccl. Law, 221 ct scq.;
Trials of Bishop Fisher and Arch-
bishop Cranmer, 1 Howell, St. Tr.
399. 771.
4 73 Lords’ J. 16; Toster's Crown
Law, 247.
5 Gibson, Codex, 124, 125 ; and
see 2 Burnet, Own Times, 216; and
3 Stillingflect, Works, 820.
SPIRITUAL LORDS WITHDRAW,
1743
withdraw.
3
in bills of
hibited from voting in cases of blood : and by the Constitu-
tions 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."
It was declared by the Lords, on the impeachment of the Spiritual lords
Earl of Danby, “That the lords spiritual have a right to
stay and sit in court in capital cases, till the court proceed to
the vote of guilty or not guilty." And in accordance with
this rule, the bishops are present during the trial of peers in
Parliament, but ask leave to be absent from the judgment;
which being agreed to, they withdraw, in compliance with
the canons of the Church, but enter a protestation,“ saving to
themselves and their successors, all such rights in judicature
as they have by law, and by right ought to have.'
In passing bills of attainder, the bishops are not subjected Bishops rote
to the same restraints as upon an impeachment. The pro- attainder.
ceedings, though judicial, are legislative in form; and as they
consist of numerous stages, no particular vote involves a con-
clusive judgment upon the accused. In the attainder of Sir
John Fenwick, in 1696, the bishops voted in all the proceed-
ings, and even upon the final question for the passing of the
bill.4
By the 23rd article of the Act of Union with Scotland, it Representa-
tive peers of
is declared, that the sixteen representative peers shall have Scotland,
the right of sitting upon the trials of peers ; "and in case of
the trial of any peer in time of adjournment or prorogation
of Parliament, they shall be summoned in the same manner,
and have the same powers and privileges at such trial, as any
other peers of Great Britain ;” and in case there shall be any
trials of peers when there is no Parliament in being, the six-
teen peers who sat in the last Parliament shall be summoned
in the same manner. All peers of Scotland enjoy the privi-
lege of being tried as peers of Great Britain.
1 11 Hon. II. A.D. 1164; 1 Wilkins'
Concilia, 435.
2 13 Lords' J. 571.
3 27 Ib. 76; 73 Ib. 43.
4 16 Lords' J. 44, 48; 13 Howell,
St. Tr. 750 ct scq.
744
BILLS OF ATTAINDER.
Bills of at.
and Ireland. By the 4th article of the Act of Union with Ireland, it
was enacted, that “the (representative) lords spiritual and
temporal respectively, on the part of Ireland, shall have the
same rights in respect of their sitting and voting upon the
trial of. peers, as the lords spiritual and temporal respectively
on the part of Great Britain ;” and that all the peers of Ire-
land shall be sued and tried as peers, but shall not have the
right of sitting on the trial of peers.
The proceedings of Parliament in passing bills of attainder,
tainder and of and of pains and penalties, do not vary from those adopted in
penalties.
regard to other bills. They may be introduced into either
house, but ordinarily commence in the House of Lords :
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 subjected to these proceedings are
admitted to defend themselves 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.?
The highest In evil times, this summary power of Parliament to punish
form of par-
liamentary
criminals by statute has been perverted and abused; and in
judicature. the best of times, it should be regarded with the severest
jealousy: but whenever a fitting occasion arises for its exer-
cise, it is, undoubtedly, the highest form of parliamentary
judicature. 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 of attainder, the Commons
commit themselves by no accusation, nor are their powers
directed against the offender; but they are judges of equal
jurisdiction, and with the same responsibility, as the Lords;
and the accused can only be condemned by the united judg-
ment of the Crown, the Lords, and the Commons.
1 In 1722, the bill of pains and
penalties against Dr. Atterbury,
Bishop of Rochester, was brought
into the Commons; 20 Com. J.
165.
2 See 25 Lords' J. 36. 364.
( 745 )
BOOK III.
THE MANNER OF PASSING PRIVATE BILLS.
CHAPTER XXIV.
DISTINCTIVE CHARACTER OF PRIVATE BILLS; PRELIMINARY VIEW
OF TIIE 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. private bills.
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 measure of
public policy, in which the whole community are interested;
and this distinction is marked by the solicitation of private
bills by the parties themselves whose interests are concerned.
By the Standing Orders of both houses, all private bills are
required to be brought in upon petition ; ? and the payment
of fees, by the promoters, is an indispensable condition to
their progress.
But while the distinction between public and private bills Bills concern-
may be thus generally defined, considerable difficulties often ing the metro-
arise, in determining to what class particular bills properly
belong. Though a bill relating to a city is generally held
to be a private bill, bills concerning the metropolis have
been dealt with as public bills,—the large area, the number
of parishes, the vast population, and the variety of interests
concerned, constituting them measures of public policy, rather
1 See infra, Chap. XXIX. and 2
Hatsell, 281-288. A bill for the
benefit of three counties has been held
to be a private bill; 1 Com. J. 388.
2 But see exceptions, infra, Chap.
XXVI.
1746
PRIVATE BILLS,
than of local interest. Thus the Metropolis Police Bills in
1828 and 1839, the Metropolis Local Management Bill in
1855, the Main Drainage of the Metropolis Bill in 1858, and
other similar bills, were brought in, and passed through all
their stages, as public bills. In 1851, 1852 and 1878, the
Metropolis Water Supply Bills, which, while they concerned
the metropolis, yet more particularly dealt with the special
interests of existing water companies, were brought in as
public bills, but were otherwise dealt with as “hybrid," or
quasi private bills. And, in 1862 and 1863, bills for the
embankment of the Thames were brought in as public bills :
but, as private property and interests were affected, the
Standing Orders were complied with, and other proceedings
taken, as in the case of private bills. The same course was
adopted, in 1867 and 1876, with the Metropolis Gas Bills;
in 1874, with the Metropolis Water Supply and Fire Pre-
vention Bill ;3 in 1877, with the Metropolitan Toll Bridges
Bill ; and in 1877, and again in 1879, the Thames River
(Prevention of Floods) Bill. In 1880, the Metropolitan
Waterworks Purchase Bill was brought in as a public bill,
but, as it affected private interests, was referred to the
examiners. Such bills, however, appear among the public
orders of the day, and are treated in the house as public
bills;5 and petitions against them are presented to the house,
and not deposited in the Private Bill Office. In 1857, the
1 Metropolitan Building Acts, S &
9 Vict. c. 84 ; 9 & 10 Vict. c. 5; 18
& 19 Vict. c. 122. Metropolitan
Buildings and Management Bil),
1874 ; 129 Com. J. 31. Metropoli-
tan Police Courts, 1839, 1840. Me-
tropolitan Sewers Bills, 1848 and
1854. Annoyance Juries (Westmin-
ster) Bill, 1861. Metropolitan Board
of Works (Loans) Bill, 1976; 131 Ib.
336 ; 132 Ib. 348; 133 Ib. 345; 137
Ib. 225. Metropolis Management
and Buildings Act Amendment Bills,
1878 and 1882; 133 Ib. 16; 137 Ib.
2 106 Ib. 191; 133 Ib. 13. See
infra, p. 787.
3 129 Com. J. 73; 132 Ib. 30.
$135 Ib. 74.
5 Speaker's Order, 1st April 1862:
“ The Speaker directs that bills
brought in on motion, for objects of
a public nature, although they may
affect private interests, and therefore
come within the Standing Orders re-
lating to private bills, shall in future
be entered amongst the public orders
of the day, and not placed on the
private business paper."
12
113.,
PRIVATE BILLS.
747
Thames Conservancy Bill, and, in 1882, the Metropolis Man-
agementand Floods Prevention Bill, were introduced as private
bills, on petition ; but the latter was afterwards consolidated
with a public bill. In 1881, the Thames Navigation Bill
was brought in as a private bill; but many objections having
been raised to this course of proceeding, the bill was after-
wards withdrawn, and a public bill was introduced. In
1874, and every succeeding year, bills for giving further
powers to the Metropolitan Board of Works (chiefly in respect
of new streets and other local improvements) were intro-
duced and passed as private bills. Such bills are in the
nature of private bills, and are properly so treated; but if
they contain powers to raise money, they are required by
Standing Order, No. 194, to be introduced as public bills,
and referred to a select committee, nominated by the com-
mittee of selection. The financial provisions, however, for
executing these several works are annually comprised in a
separate public bill, introduced by the government, and
treated throughout as a money bill. And it has been held
that Standing Order, No. 194, does not apply to this form of
bill, but only to a private bill promoted by the board, and
containing powers for raising money.
Bills concerning the City of London only have generally City of
London.
been private bills, having been solicited by the corporation
itself, which desired special legislation affecting its own pro-
perty, interests, and jurisdiction. Thus, even the bill for
establishing a police force within the city, was brought in
upon petition, and passed as a private bill. And in 1863,
when it was sought to repeal that Act by a public bill for the
amalgamation of the city and metropolitan police, without
the required notices, the Standing Orders Committee refused
1848; City Sewers Bills, 1848 and
1851; City Elections Bill, 1849; Coal
3 129 Ib. 26; 130 Ib. 19; 131 Ib. Duties Bill, 1851.
21 ; 132 lb. 24; 136 Ib. 33, &c.
6 94 Com. J. 175. So also a bill
4 21st July 1881; 263 Hans. Deb. for amending that Act in 1874 ; 129
3rd Ser. 1882.
5 City Small Debts Bills, 1847 and
4
1 137 Com. J. 24. 132.
2 136 Ib. 162. 21.1.
Ib. 33.
748
PRIVATE BILLS.
i
to allow the bill to be proceeded with. Private bills also
have been solicited for the reform of the corporation itself ;1
while the government have proposed public measures, in
the interests of the public, for the same object. 'Again, the
corporation and others sought, by means of private bills, to
improve Smithfield Market, or otherwise provide a suitable
market for cattle ;3 while the Metropolitan Cattle Market was
ultimately established by a public bill, brought in by the
government, but otherwise treated as a private or “hybrid”
bill.4 This Act, however, was amended in 1875 by a private
Act;5 and the Metropolitan Cattle Market Bill was treated, in
the same year, as a private bill.“ Other bills, again, concern-
ing the City of London, but at the same time affecting public
interests, and involving considerations of public policy, have
been introduced and passed as public bills. In 1864, the
Weighing of Grain (Port of London) Bill, was held to be
properly a public bill, as affecting an extensive area, and a
population of 3,000,000, and its object being to substitute
weighing for measurement of grain, in conformity with a
public Act of the same session, by which the duty on foreign
grain was levied by weight instead of by measure. But
in 1872, and again in 1877, private bills were passed for
regulating the metage of grain in the port of London.' In
1870, on the second reading of the Brokers (City of London)
Bill, objection was taken that it ought to have been brought
in as a private bill ; but the deputy Speaker stated that the
bill had been referred to the examiner, who had decided
otherwise ; 10 and in 1883, another bill, founded upon this
1 104 Com. J. 15; 107 Ib. 57; 119
Hans. Deb. 3rd Ser. 1035.
2 141 Hans. Deb. 3rd Ser. 314 ; 154
Ib. 946; 156 Ib. 282.
3 103 Com. J. 176 ; 106 Ib. 26.
4 106 Ib. 66, &c.
6 130 Ib. 34.
6 Ib. 11.
7 Coalwhippers (Port of London),
1843, 1846 and 1851. Vend and de-
livery of coals in London and West-
minster, 1845. (There was also a
private bill in the same year.) Bal-
last-hearers (Port of London), 1852;
Coal and Wine Duties continuance,
1861, 1863, and 1868.
8 176 Hans. Deb. 3rd Ser. 171.
0 132 Com. J. S.
10 202 Hans. Deb. 3rd Ser. 740,
PRIVATE BILLS,
749
precedent, was introduced as a public bill. In 1871, the
Court of Hustings (City of London) Bill, which established
a court having jurisdiction over the metropolis, was brought
in as a private bill; but on notice being taken of the extent
and public importance of the measure, it was withdrawn.'
In 1879, the London Bridge Approaches Bill, and the Lon-
don (City) Tithes Bill; in 1881, the London (City) Lands
Bill; and in 1882, the Metropolitan Markets (Fish), &c.
Bills, were brought in upon petition. In 1881, and again in
1882 and 1883, the London (City) Parochial Charities Bill
was brought in as a public bill; and in 1882, a bill for
the same purpose was also introduced, upon petition, as a
private bill.
Bills concerning Edinburgh and Dublin have also been Edinburgh
and Dublin,
public or private, according to their objects, and the circum-
stances connected with their introduction. The abolition of
the annuity tax in Edinburgh has thus been the subject of
both public4 and private bills. In 1879, and again in 1882,
the Edinburgh Municipal and Police Bill was introduced as
a private bill upon petition. The collection of rates in
Dublin has also been the subject of public and private
bills ;? while legislation for the port of Dublin has gene-
rally been proposed in public bills. In 1876, the Dublin
(South) City Markets Bill was introduced and passed as a
private bill. But in 1882, the Dublin (City) Highways
Bill was brought in as a public bill, but was afterwards treated
as a “hybrid” bill.10
In 1861, the Red Sea and India Telegraph Bill, which Bill con-
taining a
amended a private Act, was introduced and proceeded with as
government
guarantee.
1 Hans. Deb. 23rd March 1871.
4 108 Com. J. 612; 112 Ib. 298.
2 136 Com. J. 12; 137 Ib. 19,
5 107 Ib. 48.
3 Edinburgh Courts of Justice Bill, 6 134 Ib. 32 ; 137 Ib. 27.
1838 ; Edinburgh and Leith Agree- 7 98 Ib. 62 ; 104 Ib. 342; 105 Ib.
ment Bill, 1838, &c.; Edinburgh
Municipality Bill, 1856 (private); 8 6 & 7 Will. IV. c. 117; 1 & 2
General Register House Bill, 1817 Vict. c. 36; 17 & 18 Vict. c. 22.
(public); Edinburgh Improvement 9 131 Com. J. 69, &c.
Bill, 1876 (private); 131 Com. J. 236. 10 137 Ib. 75.
8
329.
750
PRIVATE BILLS,
1
a public bill, as it concerned the conditions of a government
guarantee.
A bill affect- In 1856, the Passing Tolls on Shipping Bill was held to be
ing four
harbours.
properly a public bill. It concerned the harbours of Dover,
Ramsgate, Whitby, and Bridlington; abolished passing tolls,
transferred those harbours to the Board of Trade, imposed
rates, and repealed local Acts : but being a measure of
general policy, its character was not changed by the fact
that these harbours only came under its operation. And
again, the Harbours Bill, in 1861, affected the same four
harbours, and the local Acts under which they were adminis-
tered, but otherwise dealt with so many matters of general
legislation, as to be unquestionably a measure of public
policy. In 1875, the Dover Pier and Harbour Bill, pro-
moted by the government for public objects, was introduced
as a public bill, but was proceeded with as a “hybrid” bill.3
A bill affect- In 1873, a public bill was introduced, for the protection
ing public
monuments. and preservation of certain ancient monuments, in various
parts of the country, the monuments in question being
enumerated in the schedule to the bill. Objections were
raised, that as the bill affected the property of persons upon.
whose lands those monuments were situated, it should have
been brought in as a private bill : but its character and
objects were obviously of a public character, and it concerned
too many counties and localities to be treated as a private
bill; nor were any of its objects such as are contemplated by
the Standing Orders, or referred to in them.
Administra- Bills relating to the administration of justice, and other
tion of justice.
public jurisdictions, have often been treated as public bills : 5
1 116 Com. J. 36. Mr. Speaker
Denison's Note-Book.
2 24 & 25 Vict. c. 47.
3 130 Com. J. 74.
4 See 218 Hans. Deb. 3rd Ser. 574;
223 Ib. 879.
5 King's County Assizes Bill, 1832;
Dublin Sessions Acts, 6 & 7 Vict.
C. 81; Buckingham Summer Assizes
Bill, 1849 ; Newgate Gaol (Dublin)
Bill, 1849 ; Sheriff and Commissary
Courts (Berwickshire) Bill, 1853 ;
Cinque Ports Acts, 18 & 19 Vict.
C. 48; 20 & 21 Vict. c. 1. Talmouth
Quarter Sessions and Gaol Bill, 1865;
28 & 29 Vict. c. 8. Sussex County
PRIVATE BILLS,
751
nistration.
but ordinarily they have been solicited, by the promoters, as
private bills. In 1868, exception was taken to the Salford
Hundred and Manchester Courts of Record Bill, on the
ground that it ought to have been introduced as a public bill:
but it was shown by the chairman of ways and means, that
the rules and precedents of the house justified its introduction
as a private bill.
In 1839, three measures were passed, as public bills, for Public admi-
improving the police in Manchester, Birmingham, and
Bolton, the provisions being compulsory upon those towns,
in the interest of public order, and the chief commissioners
of police being appointed by the Crown.3 In 1854, the
Manchester Education Bill was introduced as a private bill:
but on the second reading, an amendment was carried, de-
claring the subject to be one which ought not, at the present
time, to be dealt with by any private bill.4 In 1865, a private
bill was brought in, to alter the licensing system at Liver-
pool. It was objected that as this bill proposed to deal with
the public revenues, it ought not to have been introduced as
a private bill: but as the bill was strictly local, and the
clauses relating to licence duties were printed in italics, and
reserved for the consideration of a committee of the whole
house, it was held that the bill was not open to any technical
objection requiring its withdrawal.” But on the second reading,
an amendment was carried that the granting of licences for the
.sale of intoxicating liquors is a subject which ought not, at
present, to be dealt with by any private bill.Bills relating
to the sale of intoxicating liquors on Sunday, in particular
counties, have been introduced and treated as public bills.?
Business and Quarter Sessions Act,
1865; 28 & 29 Vict. c. 37. Chester
Courts Bill, 1867; 30 & 31 Vict. c. 36;
Glasgow Boundary Bill, 1871; Bath
Prison Bill, 1871. The Belfast
Municipal Boundaries Bill, 1853, was
brought in as a public bill, but was
otherwise treated as a private bill.
County of Hertford and Liberty of
St. Alban Bill, 1874.
1 Hans. Deb. 10th March 1868.
2 2 & 3 Vict. cc. 87. 88, 95.
3 Hans. Deb. 9th August 1839.
4 See supra, p. 547.
5 177 Hans. Deb. 3rd Ser. 651.
6 120 Com. J. 92.
Cornwall, 1882 and 1883; Dur-
ham, Yorkshire, Isle of Wight,
Northumberland, 1883.
1752
PRIVATE BILLS.
Religious
conimunities.
Other bills.
Church pro-
perty.
In 1871, a bill for regulating the management of certain
trust properties of the Presbyterian Church of Ireland, was
introduced into the House of Lords as a private bill: but
objection being taken to legislation upon such a subject by
means of a private bill, the bill was withdrawn, and a public
bill for effecting the same object was passed by both houses.
And, in the same session, the like proceedings occurred in the
case of a bill to regulate the proceedings and powers of the
Primitive Wesleyan Methodist Society of Ireland.
In 1848, the Farmers' Estate Society (Ireland) Bill having
been brought in upon petition, the committee on the bill
reported that the matter was so important that it ought to
be dealt with as a public bill.?
The distinction between two bills, of apparently the same
character, is sometimes sufficient to constitute one a public,
and the other a private bill. Thus, in 1855, the Carlisle
Canonries Bill, which suspended the appointment to the next
vacant canonry, and directed the ecclesiastical commissioners
to pay the income to the augmentation of certain livings at
Carlisle, was treated as a public bill; as it related to the
ecclesiastical commissioners,-a public body holding certain
church funds, in trust for public purposes prescribed by law,
and merely diverted the application of some of these funds
from one purpose to another. On the other hand, the South
Shields Parochial Districts Bill was held to be a private bill,
as it sought to appropriate to local purposes, viz., the increase
of certain small livings at South Shields, a sum of 15,0001., to
which the dean and chapter of Durham had become entitled,
by the sale of lands for the execution of certain public works.
In 1871, the Rock of Cashel Bill was brought in as a public
bill, vesting that rock, and the buildings and ruins thereon,
in trustees. Being referred to the examiners, it was held to
be a private bill. But in the following year another bill, for
the same objects, but empowering the church temporalities
commissioners, and the secretary to the commissioners of
public works in Ireland, with the consent of the lord lieu-
2 103 Com. J. 782.
1 204 Hans. Deb. 3rd Ser. 1968.
PRIVATE BILLS.
753
order bills.
tenant, to transfer and assign the rock and buildings to
trustees, was held to be a public bill, as it merely sought
powers for public bodies, already having a statutory interest
in the property. In 1873, exception was taken to the Union
of Benefices Bill having been introduced as a public bill, on
the ground that it amended the Union of Benefices Act,
23 & 24 Vict. c. 140, as to the City of London; but it was
held to be properly a public bill. Particular classes of local Provisional
bills, for the confirmation of provisional orders, which would
otherwise be included in the category of private bills, are
directed, by statute, to be treated as public bills.?
But a bill, commenced as a private bill, cannot be taken
up and proceeded with as a public bill. In 1865, the pro-
moters of the Middlesex Industrial Schools Bill, dissatisfied
with some amendments relative to Roman Catholic chaplains,
made in committee, determined to abandon it: whereupon
Mr. Pope Hennessy gave notice that he should proceed with
it as a public bill: but it was held that such a proceeding
would be irregular, and was not persisted in.3
In 1877, notices were given of a private bill for settling a Turkish
scheme of arrangement for the Turkish loans of 1854, 1855,
and 1871: but its subject was obviously not one to be dealt
with by a private bill, and it was not proceeded with.
It has been questioned whether a public Act may properly Repeal of
public acts by
be repealed or amended by a private bill; and undoubtedly private bills.
such provisions demand peculiar vigilance, lest public laws
be lightly set aside for the benefit of particular persons or
places. But no rule has been established which precludes the
promoters of private bills from seeking the repeal or amend-
ment of public Acts; and there are precedents in which this
course has been sanctioned by Parliament. For example, in
1832, after the Bristol riots, a bill was passed to provide
compensation for the damage suffered by many of the in-
habitants, under which the public Act 7 & 8 Geo. IV. c. 31,
loans.
1 214 Hans. Deb. 3rd Ser. 282.
2 See infra, pp. 760 et seq.
3 Mr. Speaker Denison's Note-
Book,
1.
30
754
PRIVATE BILI.S.
was amended in reference to that city.' Again, in 1864,
the City of London Tithos Act repealed a public Act of
Henry VIII.; and on the 18th July 1864, objection being
taken, on the third reading of tho Motropolitan District Rail-
ways Bill, that the Thames Embankment Act (a public or
hybrid Act) was amended, the Speakor ruled that no such
objection, in point of ordler, could be sustained.”
Publio and
With regard to Acts passed prior to 1798, when the divi-
private aots,
prior to 1798. sion of local and personal Acts was first introducod into the
statute book, it is difficult to determine whether Acts were, in
fact, public or privato, tho only Acts included in tho latter
category being estato, divorce, naturalization, and other Acts
of a personal character, while Acts for the making of roads,
bridges, harbours, and other local improvements, which are
now comprehended in the local and personal Acts, are found
printed indiscriminately with other public Acts. These are
oliminated from tho rovised edition of the statutes recently
completed by the Statuto Law Committoo. And, since 1868,
public Acts of a local character havo been printed with the
local Acts of each year.
Origin of
In treating of petitions, the origin of private bills has been
private bills.
already glanced at;? but it may be referred to again, in
illustration of tho distinctivo character of such bills, and of the
proceedings of Parliament in passing them. The separation
of legislative and judicial functions is a refinement in tlio prin-
ciples of political government and jurisprudenco, which can
only be the result of an advanced civilization. In tho oarly
constitution of Parliamont these functions were confounded;
and special laws for the benefit of privato partios, and judicial
decrees for the redress of privato wrongs, being founded alike
upon petitions, wero not distinguished in principle or in form.
When petitions coughit obviously for remedies which the com-
1 2 & 3 Will. IV. c. lxxxviii. (locul
and personal).
2 170 Hans. Deb. 3rd Sor. 1619.
But seo debate in Iords, 28th June
1864, 011 second roading of Brokors'
Bonds (City of London) Bill; 176 Ib.
108.
:) See supra, p. 608.
PRIVATI: BILLS,
755
1
2
bills.
mon law afforded, the parties were referred to the ordinary
tribunals : but in other cases Parliament exercised a remedial
jurisdiction. Other remedies of a more judicial character,
and founded upon more settled principles, woro at length
supplied by the courts of equity; and from the reign of
IIonry IV., the petitions addressed to Parliament prayod,
more distinctly, for peculiar powers beside the general law
of the land, and for the special benefit of the petitioners.
Whenever those woro granted, the orders of Parliament, in
whatever form they may have been expressed, wore in the
nature of privato Acts; and after the mode of legislating by
bill and statute had grown up in the reign of Honry VI.,
those special enactments woro embodied in the form of
distinct statutos,
Passing now to existing practice, the proceedings of Par- Poculiarity of
procoedings
liament, in passing private bills, are still marked by much on privato
peculiarity. A bill for the particular benefit of certain persons
may be injurious to others; and to discriminate between the
conflicting interosts of difforent 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 principles by which Parliament
is guided.
In passing public bills, Parliament acts strictly in its legis- Logislative
functions of
lative capacity : it originates the measures which appear for Parliament
the public good, it conducts inquiries, when necessary, for its
in passing
public bills.
own information, and enacts laws according to its own wisdom
and judgment. The forms in which its deliberations are con-
ducted aro established for public convenienco; and all its
proceedings are independent of individual parties; who may
petition, indeed, and are sometimes heard by counsel, but
who have no direct participation in the conduct of the
business, or immediate influence upon the judgment of Par-
liament.
i Sco supra, p. 620.
2 Sco Statutos of tho Roulin, by
Record Cominission, 9 Hen. VI.
3 c 2
756
PRIVATE BILLS.
Its functions
partly judicial
in passing
private bills.
In passing private bills, Parliament still exercises its legis-
lative functions; but its proceedings partake also of a judicial
character. The persons whose private interests are to be
promoted, appear as suitors for the bill; while those who
apprehend injury are admitted as adverse parties in the suit.
Many of the formalities of a court of justice are maintained ;
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. 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 analogy 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 promoting or opposing a private bill, or
petitioning for, or opposing, any particular provision. It
may be added that the solicitation of a bill in Parliament
has been regarded, by courts of equity, so completely in the
same light as an ordinary suit, that the promoters have been
restrained, by injunction, from proceeding with a bill, the
object of which was held to be to set aside a covenant;or
Suitors re-
strained by
injunction
1 The Manchester and Salford Im.
provement Bill in 1828 was aban-
doned in committee, by its original
promoters; when its opponents,
having succeeded in introducing cer-
tain amendments, undertook to so-
licit its further progress. But in the
Cork Butter Market Bill, the com-
mittee would not allow this course
to be taken. Minutes, 1869, ü. 84.
And, in 1873, the committee on the
Kingstown Township Bill, after the
commissioners, under their corporate
seal, had withdrawn from its pro-
motion, refused to allow them to
proceed with it, as individual peti-
tioners. In the Horncastle Gas Bill,
1876, the promoters and opponents
agreed in soliciting the bill in an
amended form. Minutes of Com-
mittee.
2 North Staffordshire Railway
Company, 1850.
The injunction
was afterwards dissolved ; 5 Railway
and Canal Cases, 691. On the 27th
May 1869, the directors of the Lon.
don, Chatham and Dover Railway
Company were restrained by Vice-
Chancellor Stuart from further pro-
moting a bill, which had already
passed the Commons, and had been
read a first time in the House of
Lords, and from using the seal of the
Company for any such, or the like
purpose (" Times," 28th May 1869).
But on the 31st May the Lords
PRIVATE BILLS.
757
which Parlia.
which was promoted by a public body, iu evasion of the
Towns Improvement Act, 1847. Parties have also been
restrained, in the same manner, from appearing as petitioners
against a private bill pending in the House of Lords. Such
injunctions have been justified on the ground that they act
upon
the
person of the suitor, and not upon the jurisdiction
of Parliament; which would clearly be otherwise in the case
of a public bill. And acting upon the same principles, Par-
liament has obliged a railway company, under penalty of a
suspension of its dividends, to apply in the next session for
a bill to authorise the construction of a line of railway which
the company had pledged itself to make, and in good faith
to promote it.3
This union of the judicial and legislative functions is not Principles by
confined to the forms of procedure, but is an important prin- ment is
ciple in the inquiries and decision of Parliament, upon the guided.
merits of private bills. As a court, it inquires into, and ad-
judicates upon, the interests of private parties; as a legisla-
ture, 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; yet, if
Parliament apprehend that it will be hurtful to the com-
munity, it is rejected as if it were a public measure, or quali-
fied by restrictive enactments, not solicited by the parties.
In order to increase the vigilance of Parliament, in protect-
ing the public interests, the chairman of the Lords' com-
mittees in one house, and the chairman of ways and means
in the other, are entrusted with the peculiar care of unopposed
bills, and with a general revision of all other private bills :
Justices discharged this order as not See also infra, p. 862.
being justified by the circumstances 2 Hartlepool Junction Railway ;
of the case, while they acknowledged 100 Haus. Deb. 3rd. Ser. 784.
the authority of the court to make 3 South Western Railway, Capital
such an order, if the occasion should and Works Act, 1855 ; 18 & 19
5 Chancery Appeals, Vict. c. clxxxvii. ss. 62–69. See
also Supplement to Votes, 1853,
1 Kingstown Township Bill, 1873. p. 945; Ib. 1855, p. 251.
warrant it.
671.
758
PRIVATE BILLS.
the same
the progress
bills.
while the agency of the government departments is also
applied, in aid of the legislature.
Private bills
In pointing out this peculiarity in private bills, it must,
pass through
however, be understood, that while they are examined and
stages.
contested before committees and officers of the house, like
private suits, and are subject to notices, forms, and in-
tervals, 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, and similar questions are put, except when any
proceeding is specially directed by the Standing Orders;
and the same rules of debate and procedure are maintained
throughout.
Proposed plan In order to explain clearly all the forms and proceedings
of describing
to be observed in passing private bills, it is proposed to
of private
state them, as nearly as possible, in the order in which they
successively arise. It will be convenient, for this purpose,
to begin with the House of Commons; because, by the privi-
leges of that house, every bill which involves any pecuniary
charge or burthen on the people, by way of tax, rate, toll or
duty, ought to be first brought into that house. It has
followed from this rule, that by far the greater number of
private bills have hitherto, from their character, necessarily
been passed first by the Commons. But the Commons have
now resolved, "that this house will not insist on its privi-
leges, with regard to any clauses in private bills, or in bills
to confirm any provisional orders, or provisional certificates,
sent down from the House of Lords, which refer to tolls and
charges for services performed, and are not in the nature of
a tax, or which refer to rates assessed and levied by local
authorities for local purposes.”3 And this resolution has
been held to extend to turnpike, harbour, drainage and other
similar bills. But it has been ruled not to extend to clauses
in an improvement bill, imposing a tax upon all insurance
1 See infra, pp. 808 ct scq.
4 Reading and Hatfield Road Bill,
? See supra, pp. 521. 641 et seq. 1858; Wexford Harbour Bill, 1861,
3 S. 0.'No. 226.
&c.
GENERAL ACTS.
759
companies having policies upon houses within the borough.
On the 8th May 1873, the Speaker called attention to clauses
of this character in the Bradford Improvement Bill: but “as
the promoters were not responsible for the introduction of the
bill into the other house, and had signified their intention to
withdraw these clauses, he submitted to the house that this
course would be sufficient, under the circumstances, to repair
the irregularity.” And upon this condition the bill was
allowed to proceed. This relaxation of the privileges of the
Commons enables the promoters of many bills which must
previously have been brought first into the Commons, to
solicit them in the House of Lords, in the first instance, if
they think fit. For many reasons, by far the greater number
of private bills are still commenced in the Commons: but
provision having been made, in 1858, for introducing, by
arrangement, such bills into the Lords, as may be conveniently
undertaken by that house,' Parliament has been able to ensure
a more equal distribution of the private business of the ses-
sion between the two houses. It will be more convenient,
however, to pursue this description of bills in their progress
through the Commons, and afterwards to follow them in
their passage through the Lords. Those private bills which
usually originate in the Lords, as naturalization, name, estate
and divorce bills, will, for the same reasons, be more con-
veniently followed from the Lords to the Commons.
But before these classes of private bills are more particularly Private legis-
described, it will be necessary to advert to an important seded by
principle of modern legislation, by which special applications public acts.
to Parliament for private Acts have, in numerous cases, been
superseded by general laws. A private Act is an exception
from the general law; and powers are sought by its promoters,
which cannot be otherwise exercised, and which no other
authority is able to confer. It is obvious, however, that the
public laws of a country should be as comprehensive as may
lation super-
1 Sec infra, p. 808,
760
GENERAL ACTS,
case.
General acts
enumerated.
Inclosures.
be consistent with the rights of private property: and it has
accordingly been the policy of the legislature to enable parties
to avail themselves of the provisions of public Acts, adapted
to different classes of objects, instead of requiring them to
apply to Parliament for special powers in each particular
The same principle may be still further extended
hereafter: but in all cases in which any special legislation is
sought for, which is not within the scope of general laws,
application must still be made to Parliament.
The principal statutes relating to matters which had usually
been the subjects of private Acts of Parliament may be briefly
enumerated, in order to show the progress which has been
made in this department of legislation.
The earliest attempt to provide, by a general law, for the
objects usually sought by the promoters of private bills, was
that of the General Inclosure Act in 1801. By that Act
several provisions which had been usually inserted in each
Act of inclosure were consolidated, and the necessary proofs
before Parliament were facilitated, when such Acts were
applied for: but the necessity of applying for separate Acts
of inclosure was not superseded. In 1836, a general law was
passed to facilitate the inclosure of open and arable land;2
and in 1845, the Inclosure Commissioners were constituted,
to whom have been entrusted many of the powers previously
exercised by Parliament. In some cases they have authority,
under public Acts, to complete inclosures, while, in other
cases, they make provisional orders for the inclosure of lands,
to which legal effect is given, from time to time, by public
Acts of Parliament. Further provision was made by the
Commons Inclosure Act, 1876, in regard to provisional
orders for the inclosure of commons. Except, therefore, in
any extraordinary and exceptional case, not provided for by
Commons.
4
1 41 Geo. III. c. 109.
2 6 & Will. IV. c. 115.
3 8
8 & 9 Vict. c. 118; 9 & 10 Vict.
c. 70; 10 & 11 Vict. c. 111; 11 & 12
Vict. c. 99; 12 & 13 Vict. c. 83;
17 & 18 Vict. c. 97, &c.
4 9 & 10 Vict. cc. 16. 117; 13 & 14
Vict. cc. 8. 66; 20 & 21 Vict. c. 31,
&c.
GENERALICTS,
761
these public Acts, a private Act of inclosure is now unneces-
sary. Several general statutes have also been passed, to Drainage of
lands.
promote the drainage and improvement of land, by which
the agency of the Inclosure Commissioners and of other
public boards and officers has been made available.
Applications to Parliament for the commutation of tithes, Tithes.
and other similar purposes, were frequent until the passing of
the General Tithe Commutation Act, in 1836, and the con-
stitution of commissioners, by whom that and other general
lawst for the commutation of tithes have been carried into
execution. General Acts have also been passed to facilitate Enfranchise-
ment of copy-
the enfranchisement of copyholds, and other manorial rights, holds.
the provisions of which are carried out by the copyhold and
inclosure commissioners.5
By several Acts, and lastly by the Companies Acts, 1862, Joint stock
companies.
1867, and 1877, various powers and privileges may be secured
by companies, which had previously formed the subjects of
applications to Parliament. They may be incorporated, and
may sue and be sued in the name of the company; and may
also obtain limited liability for the shareholders; a privilege
which has also been extended to joint stock banking com-
panies. So many powers, however, are still required by
companies for special purposes, that applications to Parlia-
ment for incorporating and giving powers to companies are
still frequent, independently of cases in which works are to
be executed by public companies. For winding-up the affairs
of joint stock companies, unable to meet their pecuniary
1 For a return of the number of Land Act, 1864, 27 & 28 Vict. c. 114;
Inclosure Acts passed at different 31 & 32 Vict. c. 89, &c.
periods, and the acreage inclosed, 6 & 7 Will. IV. c. 71.
see Sess. Paper, 1843 (325).
4 7 Will. IV. & 1 Vict. c. 69; 2 & 3
2 10 & 11 Vict. c. 32; 27 & 28 Vict. c. 62; 3 & 4 Vict. c. 15; 5 & 6
Vict. c. 72, Ireland ; 9 & 10 Vict. Vict. c. 54; 9 & 10 Vict. c. 73; 10 &
c. 101; 10 & 11 Vict. c. 11 ; 11 & 12 11 Vict. c. 104; 23 & 24 Vict. c. 93.
Vict. c. 119; 11 & 12 Vict. c. 38 (113 5 4 & 5 Vict. c. 35; 6 & 7 Vict.
Scotland); General Drainage Acts, c. 23; 7 & 8 Vict. c. 55 ; 15 & 16 Vict.
12 & 13 Vict. c. 100; 13 & 14 Vict. c. 51 ; 21 & 22 Vict. c. 94; 23 & 24
c. 31 ; Land Drainage Act, 1861, 24 Vict. c. 59; 31 & 32 Vict. c. 89.
& 25 Vict. c. 133; Improvement of ( 25 & 26 Vict. c. 89.
3
1762
GENERAL ACTS.
of time for
engagements, the extensive machinery of the court of chan-
cery and of the court of bankruptcy were brought into
operation, first by the “Winding-up Acts ;” and since by
several Joint Stock Companies Acts ;1 and similar provision
has been made for winding-up the affairs of joint stock com-
panies in Ireland.
Railway com- By 9 & 10 Vict. c. 105, the commissioners of railways were
panies.
constituted, to whom were transferred, by that Act, all the
powers and duties which had previously been executed by the
Board of Trade. The primary object of their appointment
was to secure the general supervision of existing railways,
and to assist Parliament in its railway legislation. Further
powers were subsequently conferred upon them, by which
applications to Parliament, in certain cases, were rendered
Extension unnecessary. By 11 & 12 Vict. c. 3, railway companies which
purchase of
had obtained parliamentary powers for the construction of
lands, &c.
railways, were enabled, under certain conditions, to obtain
from the commissioners of railways, instead of from Parlia-
ment, an extension of the time limited by their Acts, for the
purchase of lands and the completion of works; and by
13 & 14 Vict. c. 83, and 32 & 33 Vict. c. 114, the agency of
the commissioners, or Board of Trade, was made available, in
Abandonment the same manner, to facilitate the abandonment of railways
of railways.
and the dissolution of railway companies. By 14 & 15 Vict.
c. 64, the Act constituting the commissioners of railways
was repealed, and all their powers were transferred to the
Board of Trade. Again, by 22 & 23 Vict. c. 59, and later
Acts, facilities were given for the settlement of differences
between railway companies by arbitration, which might
otherwise have formed the subject of private bills. By
27 & 28 Vict. cc. 120, 121, and 33 & 34 Vict. c. 19, facilities
were given for obtaining further powers for the construction
1 25 & 26 Vict. c. 89; 30 & 31 Vict. C. 85; 8 & 9 Vict, cc. 20. 96.
c. 131; 33 & 34 Vict. c. 104.
4 36 & 37 Vict. c. 48 (Constitution
2 40 & 41 Vict. c. 57.
of Railway Commissioners) ; 37 & 38
3 1 & 2 Vict. c. 98; 3 & 4 Vict. Vict. c. 40.
c. 97; 5 & 6 Vict. c. 55; 7 & 8 Vict.
GENERAL ACTS.
763
rates.
of railways, through the agency of the Board of Trade. And
in 1867, provision was made for the review and adjustment
of the financial affairs of railway companies, without an
application to Parliament. Powers have also been granted, Tramways.
under public statutes, for the construction of tramways in
Scotland? and Ireland. And in 1870, facilities were given
for the construction of tramways in England and Scotland,
by means of provisional orders of the Board of Trade, to be
confirmed by Parliament.4
Private Acts of Parliament for the establishment of small- Local courts.
debt courts, once very frequent, have been superseded, since
1846, by the establishment and regulation of county courts
under general Acts. And by the Poor Law Amendment Poor and poor
Act of 1834, and subsequent Acts for the general administra-
tion of the laws for the relief of the poor, private Acts for all
purposes connected with the poor and poor rates, have been
rendered unnecessary. But under the Poor Law Amend-
ment Acts, 1867, 1868, and 1879, provisional orders of the
Local Government Board are confirmed by public Acts.
Extensive provision for the lighting, watching, paving, Lighting,
cleansing, improving, and sanitary regulation of towns, has
watching,
police, and
also been made by means of public Acts. In 1833 an Act improvement
was passed' to enable the ratepayers to make arrangements
for the lighting and watching of their parishes. In 1828 an
important Act was passed for the lighting, watching, and
cleansing of towns in Ireland, the provisions of which, as
since amended," have been adopted by several towns. By
the 34 & 35 Vict. c. 109, more extended provision was made
for the local government of towns in Ireland, by means of
provisional orders, to be confirmed by Parliament. By 35 &
36 Vict. c. 69, the local government board in Ireland was
constituted for the administration of these Acts. More
1 30 & 31 Vict. c. 127.
2 24 & 25 Vict. c. 69.
3 23 & 24 Vict. c. 152; 24 & 25
Vict. c. 102 ; 34 & 35 Vict. c. 114.
s 33 & 34 Vict. c. 78.
5 3 & 4 Will. IV. c. 90 (a previous
act, 11 Geo. IV. c. 27, was thereby
l'epealed).
6 9 Geo. IV. c. 82.
i 3 & 4 Vict. c. 88; 6 & 7 Vict.
C. 93; 28 & 29 Vict. c. 90, &c.
764
GENERAL ACTS.
Government
Acts.
extended powers and facilities were afforded by the Public
Health (Ireland) Act, 1874; and these several provisions
were consolidated and amended by the Public Health (Ire-
land) Act, 1878, under which numerous provisional orders
have been confirmed by Parliament.
Public Health By the Public Health Acts? the general board of health
and Local
was constituted, by whom were exercised important powers of
local inquiry and provisional legislation, for the paving and
sewerage of towns, the supply of water, and other local im-
provements. In certain cases, the provisions of the Public
Health Act were applied, on the report of the board of health,
by her Majesty in council; and, in other cases, the provi-
sional orders of the board were confirmed, from time to time,
by Parliament, in public Acts. By 21 & 22 Vict. c. 97, the
powers previously exercised by that board, for the protec-
tion of the public health, were vested in the Privy Council,
and in the following year were made perpetual. And by
the Local Government Acts, 1858 and 1861,4 still more ex-
tensive powers of local government were granted to towns,
independently of Parliament, except in particular cases in
which provisional orders of the secretary of state, whose
authority, for some time, superseded that of the general board
of health, required to be confirmed. By the 34 & 35 Vict.
c. 70, the local government board was constituted, to which
were transferred the functions of the secretary of state and
Privy Council concerning the public health, together with
the powers and duties of the Poor Law Board. By the
Public Health Act, 1872, provision was made for the granting
of provisional orders concerning the public health and local
government, by that board, to be confirmed by Parliament.
And by the Public Health Act, 1875, these several provisions ,
were consolidated and amended, and further powers given to
Improvement the local government board. Provision by general law5 is
of towns in
Scotland.
1 11 & 12 Vict. c. 63; 17 & 18 Vict. 4 Amended by 26 Vict. c. 17.
c. 95 (both since repealed).
5 13 & 14 Vict. c. 33; 23 & 24
2 12 & 13 Vict. c. 94; 13 & 14 Vict. Vict. c. 96; 31 & 32 Vict. c. 102; 39
& 10 Vict. c. 25.
CC. 32. 90. 108.
3 22 & 23 Vict. c. 3.
!
GENERAL ACTS.
765
1
also made for regulating the police of towns and populous
places in Scotland, and for paving, draining, cleansing, light-
ing, and improving them: but in the improvement of towns
so many special powers become necessary, in particular locali-
ties, which Parliament alone can confer, that application for
private Acts, for that purpose, are still numerous, and form
a very important branch of private legislation.
By the Artisans and Labourers' Dwellings Improvement Artisans and
labourers'
Acts, 1875—1882, local authorities were empowered, by dwellings.
means of provisional orders made by the Secretary of State,
and confirmed by Parliament, to pull down unhealthy houses,
courts and alleys, and to provide for the reconstruction of
suitable dwellings for the working classes. And by another
Act similar provision was made for Scotland.
By the 33 & 34 Vict. c. 70, facilities were given for ob- Gas and water
works.
taining powers for the construction of gas and water works,
and for the supply of gas and water by means of provisional
orders granted by the Board of Trade, and confirmed by
Parliament; but this Act does not apply to any place within
the metropolis.
In 1882, provision was made by the 44 & 45 Vict. c. 56,
Lighting Act,
for the granting of licences for electric lighting by the 1882.
Board of Trade, under certain conditions, and of provisional
orders for the like purpose, subject to confirmation by Par-
liament.
By the General Pier and Harbour Act, 1861,3 provision Piers and
has been made for the construction of piers and harbours, pilotage.
under provisional orders of the Board of Trade, confirmed
by public Acts of Parliament. Under the Merchant Shipping
Act, 1862, provisional orders may be obtained, in like manner,
concerning pilotage ;4 and under the Oyster and Mussel Oyster and
Fisheries Act, 1866, the Board of Trade were empowered to ries.
grant provisional orders for the establishment, improvement
1 Artisans, &c. Dwellings (Scot- 3 Amended by 25 & 26 Vict.
land) Act, 1875.
cc. 19, 69.
2 Amended by 36 & 37 Vict. 4 25 & 26 Vict. c. 63, s. 39.
Electric
harbours and
mussel fishe
C. 89.
766
GENERAL ACTS.
trusts and
Clam and
and maintenance of oyster and mussel fisheries. Similar
bait beds, &c.
provisions were made in 1881, by the Sea Fisheries (Clam
and Bait Beds) Act, and by the Alkali, &c. Works Act,
for obtaining provisional orders.
Turnpike By 14 & 15 Vict. c. 38, the secretary of state was em-
highways. powered to make provisional orders for reducing the rate of
interest, and for extinguishing arrears of interest charged on
turnpike roads, which provisional orders were confirmed from
time to time by public Acts of Parliament. In 1871, these
powers of the secretary of state were transferred to the Local
Government Board. General Acts are also annually passed
for continuing Turnpike Acts which are about to expire; by
which numerous applications for private bills are avoided.
Under the Highways and Locomotives Act, 1878, provi-
sional orders of the Local Government Board are confirmed
by public Acts.
By the Roads and Bridges (Scotland) Act, 1878, counties.
bridges (Scot-
land). were enabled, by means of provisional orders, to acquire ex-
tensive powers for the maintenance and management of their
roads and bridges.
Provisional Under several statutes, provisional orders may come into
orders not
requiring
operation without express confirmation by Parliament. By
confirmation. the Endowed Institutions (Scotland) Act, 1878, the secretary
of state is empowered to issue provisional orders, which are
to be laid before both Houses of Parliament, and, if not
disapproved of by either house within forty days, are to come
into operation. And in other cases, certain ecclesiastical and
educational schemes are laid before Parliament, and if not
disapproved of within the time prescribed by statute, require
confirmation by an order of council before they come into
operation.
Constabulary The establishment of a police force, and police regulations,
Roads and
3
Acts.
1 See also 40 & 41 Vict. c. 42.
2 Elementary Education Acts, 1870,
1876 ; Endowed Schools Act, 1873;
Education (Scotland) Act, 1872; Pri-
son Acts, 1877; Factory and Work-
shops Act, 1878, &c.
3 Union of Benefices Act, 23 & 24
Vict. c. 142; Universities of Oxford
and Cambridge Act, 40 & 41 Vict.
C. 50.
GENERAL ACTS.
767
>
estates in
estates in
in English counties and boroughs, has been provided for by
general constabulary Acts.
By the Settled Land Act, 1882, tenants for life are in- Settled Land
Act, 1882.
vested with many powers which had hitherto been conferred
by private estate Acts.
By several Acts affecting entailed estates in Scotland, 2 Entailed
numerous complicated estate Acts have been rendered un- Scotland.
necessary, as the matters which had been previously provided
for by private legislation, are now within the operation of the
general law. By the Act to facilitate the sale of incumbered Incumbered
estates in Ireland,3 commissioners were entrusted with powers Ireland.
which could not otherwise have been exercised without the
authority of private Acts of Parliament; and the Landed
Estates Court, Ireland, is now invested with still more
general powers for the sale and transfer of land, whether
incumbered or unincumbered.4
By 33 & 34 Vict. c. 14, aliens are enabled to obtain cer- Naturaliza-
tificates of naturalization from the secretary of state, which
confer the same privileges as those which were formerly
secured by special naturalization Acts.5
By the Elementary Education Act, 1870, provision is Elementary
Education
made for the compulsory purchase of school sites, by virtue Act, 1870.
of provisional orders granted by the education department,
and confirmed by Parliament.
And, in conclusion, it may be added, with satisfaction, that Divorce Acts.
applications to Parliament for divorce Acts, have, at length,
been nearly superseded by the establishment of a court for
divorce and matrimonial causes, which has authority to dis-
solve marriages in England.
tion of aliens.
6
1 2 & 3 Vict. c. 93; 3 & 4 Vict.
c. 88; 19 & 20 Vict. c. 69; 22 & 23
Vict. c. 32.
2 10 Geo. III. c. 51; 5 Geo. IV.
c. 87; 3 & 4 Vict. c. 48; 11 & 12
Vict. c. 36; 38 & 39 Vict. c. 61.
3 11 & 12 Vict. c. 48.
4 21 & 22 Vict. c. 72, &c.
5 See also infra, Chap. XXVII.
6 20 & 21 Vict. c. 85, amended by
22 & 23 Vict. c. 61 ; 23 & 24 Vict.
c. 144; 36 & 37 Vict. c. 31, &c. As
the act is limited to England, persons
beyond the jurisdiction of the court,
in Ireland, India, and elsewhere, in
some few cases, have still applied for
Divorce Acts.
768
REQUIREMENTS OF THE STANDING ORDERS.
CHAPTER XXV.
CONDITIONS TO BE OBSERVED BY PARTIES BEFORE PRIVATE BILLS
ARE INTRODUCED INTO PARLIAMENT.
PROOF OF COMPLIANCE WITII
THE STANDING ORDERS.
The two
classes of
For the purposes of the Standing Orders of both houses, all
private bills. private bills to which the Standing Orders are applicable,
are divided into the two following classes, according to the
subjects to which they respectively relate :-
1st Class.
1st CLASS :
Burial-ground, making, maintaining, or altering.
Charters and corporations, enlarging or altering powers of.
Church or chapel, building, enlarging, repairing, or maintaining.
City or town, paving, lighting, watching, cleansing, or improving.
Company, incorporating or giving powers to.
County rate.
County or shire hall, court house.
Crown, church, or corporation property, or property held in trust
for public or charitable purposes.
Ferry, where no work is to be executed.
Fishery, making, maintaining, or improving.
Gaol, or house of correction.
Gas work.
Land, inclosing, draining, or improving.
Letters patent, confirming, prolonging, or transferring the term of.
Local court, constituting.
Market, or market place, erecting, improving, repairing, maintain-
ing, or regulating.
Police.
Poor, maintaining or employing
Poor rate.
Powers to sue and be sued, conferring.
Stipendiary magistrate, or any public officer, payment of; and
Continuing or amending an Act passed for any of the purposes
included in this or the second class, where no further work
than such as was authorized by a former Act, is proposed to
be made.
.
COMPLIANCE WITH STANDING ORDERS.
769
2nd Class.
2nd CLASS:
Making, maintaining, varying, extending, or enlarging any
Aqueduct.
Ferry, where any work is to
Archway.
be executed.
Bridge.
Harbour.
Canal.
Navigation.
Cut.
Pier.
Dock.
Port.
Drainage, where it is not Railway.
provided in the bill that Reservoir.
the cut shall not be of Sewer.
more than eleven feet wide Street.
at the bottom.
Tramway.
Embankment for reclaiming Tunnel.
land from the sea, or any Turnpike or other public car-
tidal river.
riage road.
Waterwork.
The requirements of the Standing Orders which are to be Requirements
of the Stand-
complied with by the promoters of such private bills before ing Orders.
application is made to Parliament, were conveniently arranged
by the Commons, in 1847, in the following order; and a
similar arrangement has since been adopted by the House
of Lords:
"1. Notices by advertisement. 2. Notices and applications to
owners, lessees, and occupiers of lands and houses. 3. Docu-
ments required to be deposited, and the times and places of
deposit. 4. Form in which plans, books of reference, sections,
and cross sections shall be prepared. 5. Estimates and deposit
of money, and declarations in certain cases.
The requirements of the two houses, under each of these Similarity of
the Orders of
divisions, are now, mutatis mutandis, nearly identical.? Their Lords and
Commons.
convenient arrangement and general similarity, render un-
necessary their insertion in this work; and no version of them
čan, at any time, be safely relied upon by the promoters of
bills, except the last authorized edition.2
1 They are also numbered alike, pancies between the orders of the
from No. 1 to No. 68.
two houses; but as the orders of
2 The Standing Orders
both houses were afterwards assimi-
printed, at length, in the first edi- lated, and arranged nearly in con-
tion of this work, for the sake of formity with the plan there adopted,
improving their arrangement, and they were omitted in the second and
pointing out the numerous discre- each succeeding edition.
were
P.
3D
770
COMPLIANCE WITH STANDING ORDERS.
Provisional
It may here be explained that, as certain documents are
order bills.
required to be deposited in reference to bills for confirming
provisional orders and certificates, such deposits are required
to be proved in the same manner, as compliance with the
Standing Orders relating to private bills.
Preparing In preparing their bills for deposit, the promoters must
bills.
be careful that no provisions be inserted which are not suffi-
ciently alluded to in the notices, or which otherwise infringe
Consolidation the Standing Orders. If the bill be for any of the purposes
Acts.
provided for by the Consolidation Acts, so much of those
Acts as may be applicable, is to be incorporated; and the bill
is otherwise to be drawn in general conformity with the
model bills, by which the best forms are prescribed.
Preliminary By the Preliminary Inquiries Act, 1851,3 amended by the
Inquiries Act.
Harbours Transfer Act, 1862, the promoters of private bills,
in which power is sought to construct works on tidal lands,
or affecting navigation, may also be required by the Board
of Trade to deposit such statements and other documents as
may be necessary to explain the objects of their intended
application, in addition to the documents required by the
Standing Orders of either House of Parliament, to be de-
posited at the Admiralty and Board of Trade. This require-
ment is wholly independent of the Standing Orders of either
house: but the proceedings under the Act may come, at a
later period, under the notice of Parliament.
Proof of com
Compliance with the Standing Orders was formerly re-
pliance.
i S. O. No. 39.
Consolidation Acts, 1847, 1863, and
2 Companies Clauses, Lands Clauses, 1871. See Bigg, Clauses Consolida-
and Railways Clauses Consolidation tion Acts. These Acts, as stated
Acts, 1845, 1860, 1863 and 1869; Land in the preambles, were passed,
Clauses Consolidation Act, 1869; Com- “as well for avoiding the necessity
panies Clauses Acts, 1867 and 1877 ; of repeating such provisions in each
Companies Clauses and Lands Clauses of the several Acts relating to such
(Scotland) Acts, 1845; the Railways undertaking, as for ensuring greater
Acts (Ireland), 1851, 1800, and uniformity in the provisions them-
1864; Markets and Fairs Clauses, selves."
Gasworks Clauses, Commissioners 3 14 & 15 Vict. c. 49. By this Act,
Clauses, Waterworks Clauses, Har- the preliminary inquiries under the
bours and Docks Clauses, Towns Im- commissioners of woods and forests
provement Clauses, Cemetery Clauses, were discontinued.
Telegraph. Clauses, and Police Clauses
's Sce infra, 1. 808.
1
t
COMPLIANCE WITH STANDING ORDERS.
771
Lords.
quired to be separately proved,—in the Commons before the
examiners of petitions for private bills,--and in the Lords
before the Standing Order committee. The parties were
thus subjected to the heavy expense of proving them twice
over, with an interval of some months between the proofs.
But in 1854, the Lords adopted a most convenient arrange- Examiners
for Standing
ment, which dispensed with a double proof of all those orders Orders in the
which were common to both houses, except in certain cases.
Their lordships resolved, “that there shall be one or more
officers of this house, to be called “the examiners for Standing
Orders,' who shall examine into certain facts required to be
proved before the Standing Order committee;" and appointed
as examiners, for the ensuing session, the gentlemen who held
the office of examiners of petitions in the House of Commons.
By this arrangement, the examiners were enabled to take the
evidence on behalf of both houses simultaneously; and in
1858, the Lords entrusted to the examiners the same powers
which they had previously exercised for the Commons. The
examiners, therefore, acting on behalf of both houses, now
adjudicate upon all facts relating to the compliance or non-
compliance with the Standing Orders; and the Standing
Orders committee in each house determines, upon the facts as
reported or certified by them, whether the Standing Orders
ought or ought not to be dispensed with. Of all the im-
provements connected with private bill legislation, none have
been so signal as those in which the examiners were con-
stituted, and both houses concurred for the assimilation and
joint proof of their Standing Orders.
The two examiners, appointed by the House of Lords and Examiners of
by Mr. Speaker, conduct, for both houses, the investigations
which were formerly carried on, in the Commons, by the sub-
committees on petitions for private bills, and, in the Lords, by
the Standing Order committee. It will, however, be convenient
to assume, for the present, that bills are to be first solicited
in the Commons, though the proofs of compliance with the
Standing Orders of both houses are taken simultaneously.
both houses,
3 1 2
772
MEMORIALS.
1
General list of When all the petitions for private bills, with printed copies
petitions.
of the bills annexed, have been deposited, on or before the
21st December, in the private bill office of the House of
Commons, and printed copies of the bills in the Parliament
office of the House of Lords, on or before the 17th December,
the “ General List of Petitions” is made out in the order of
their deposit, and each petition is numbered. The regula-
tions by which that list is made out, give every facility to the
promoters of bills to select for themselves whatever position
may be most convenient. If they secure an early number on
the list, their petitions will be heard by the examiners shortly
after the commencement of their sittings. If, on the other
hand, they desire their case to be heard at a later period, they
may place their petition lower down in the list. As the
examination for both houses is conducted at the same time,
the order in which the cases are heard for the Lords is deter-
mined by the general list of petitions, which is prescribed by
the Commons only.
Memorials When the time has expired for depositing documents, and
complaining
of non-com-
complying with other preliminary conditions, the parties in-
plianoe. terested are enabled to judge whether the Standing Orders of
the two houses have been complied with; and if it should
appear to them that the promoters have neglected to comply
with any of them, they may prepare memorials complaining
When to be of such non-compliance. These memorials are to be deposited
deposited.
in the private bill office of the House of Commons, according
to the position of the petition for the bill to which they relate,
in the general list.
"If the same relate to petitions for bills numbered in the general
lists of petitions;
From
1 to 100
Jan. 9.
101 to 200
They shall be deposited on or before 16.
201 and upwards
23.
And in the case of any petition for bills which may be deposited by
1 Lords' S. O. No. 32.
2 See Mr. Speaker's printed regu-
lations for the deposit of petitions in
the private bill office, and for deter-
mining the order in which they will
be heard.
PROCEEDINGS OF THE EXAMINERS.
773
leave of the house after the 21st December, such memorials shall be
deposited three clear days before the day first appointed for the exami-
nation of the petition.
All memorials are to be deposited in the private bill office
of the House of Commons before six o'clock on any day on
which the house shall sit, and before two when the house
shall not sit; and two copies are also to be deposited for the
use of the examiners, before twelve o'clock on the following
day. The time within which memorials are to be deposited,
in the Lords, is not prescribed by the Standing Orders of
that house : but the examiners require such deposit to con-
form with the orders of the Commons; the hearing of
memorials on behalf of both houses, at the same time, being
indispensable.
These memorials are prepared in the same form, and are How pre-
pared.
subject to the same general rules as petitions to the house,
as well as to other special rules, which will be noticed here-
after. When the time for depositing memorials has expired, Opposed and
the opposed and unopposed petitions are distinguished in the petitions dis-
general list; and the petitions are set down for hearing tinguished.
before the examiners, in the order in which they stand in
the general list, precedence being given, whenever it may be
necessary, to unopposed petitions.
By the Standing Orders,
“In case any proprietor, shareholder or member of or in any com- Dissentient
pany, association or co-partnership, shall by himself or any person shareholders.
authorized to act for him in that behalf, have dissented at any meet-
ing called in pursuance of Standing Orders 62 to 66, such pro-
prietor, shareholder or member shall be permitted to be heard by the
examiner of petitions, on the compliance with such Standing Orders,
by himself, his agent and witnesses, on a memorial addressed to the
examiner, such memorial having been duly deposited in the Private
Bill Office."
2
The public sittings of the examiners commence on the 18th Sittings of the
examiners.
of January, being about a fortnight before the usual time for
the meeting of Parliament.
i See supra, p. 610 et seq.
2 S. O. No. 75.
774
PROCEEDINGS OF THE EXAMINERS.
Notice of
One of the examiners is required to give at least seven
examination.
clear days' notice, in the Private Bill Office of the Commons,
of the day appointed for the examination of each petition;
and, practically, a much longer notice has been given, as,
for the convenience of all parties concerned, the examiners
give notices for the first hundred petitions on the 10th
January, and for the second hundred on the 17th January,
being, in each case, the day after the memorials relating to
such petitions have been deposited.
Daily lists of In order to facilitate the examination of unopposed petitions,
petitions.
the daily lists of cases set down for hearing before each of the
examiners are divided into “unopposed” and “opposed."
petitions; and the former are placed first on each day. By
this arrangement all the cases are appointed to be heard
according to their order in the “ general list of petitions :"
but precedence is given, on each day, to the unopposed
petitions. These are disposed of, and the numerous agents
and witnesses relieved from attendance during the subsequent
hearing of opposed cases, which often occupy a considerable
time.
In case the promoters shall not appear at the time when
their petition comes on to be heard, the examiner is required,
by the Standing Orders, to strike the petition off the general
list of petitions. The petition cannot afterwards be re-inserted
on the list, except by order of the house; and if the promoters
should desire to proceed with the bill, it will be necessary to
How to be re- deposit a petition, praying that the petition may be re-inserted,
inserted.
and explaining the circumstances under which it had been
struck off. This petition will stand referred to the Standing
Orders Committee, who will determine, upon the statement of
the parties, whether the promoters have forfeited their right
to proceed or not, and will report to the house accordingly.
If the petition for the bill should be re-inserted in the
general list, the usual notice will be given by the examiner,
and the case will be heard at the appointed time.
Statement of When the case is called on, the agent soliciting the bill
proofs.
Petitions
struck off the
list,
1
PROCEEDINGS OF THE EXAMINERS.
1775
on memorials
appears before the examiner with a "statement of proofs,”
showing all the requirements of the Standing Orders, appli-
cable to the bill, which have been complied with, and the
name of every witness, opposite each proof, who is to prove
the matters stated therein. If the bill be opposed on Standing Appearances
Orders, the agents for the memorialists are required to enter entered.
their appearances 1 upon each memorial, at this time, in order
to entitle them to be subsequently heard. In the meantime
the “formal proofs," as they are termed, proceed generally Formal
in the same manner, both in opposed and unopposed cases.
proofs.
Each witness is examined by the agent, and produces all
affidavits and other necessary proofs, in the order in which
they are set down in the statement ;? and in addition to the
proofs comprised in the statement, the examiner requires such
other explanations as he may think fit, to satisfy him that all
the orders of the house have been complied with.
Under the Standing Orders of both houses, “the examiner Proof by affi-
may admit affidavits in proof of the compliance with the
Standing Orders of the house, unless in any case he shall
require further evidence; and such affidavit shall be sworn,
if in England, before a justice of the peace; if in Scotland,
before any sheriff depute or his substitute; and if in Ireland,
before any judge or assistant barrister, or before a justice of
dapit.
the peace.
cases,
In an unopposed case, if the Standing Orders have been Unopposed
complied with, the examiner at once indorses the petition,
addressed to the Commons, accordingly: and forwards to the
Lords a certificate to the same effect. If not, he certifies, by
indorsement on the petition, that the Standing Orders have
not been complied with, and also reports to the House of
Commons, and certifies to the House of Lords, the facts upon
which his decision is founded, and any special circumstances
committee clerk.
See also infra,
P. 781.
1 The appearance is a paper,
which
is previously obtained from the pri-
vate bill office, certifying that the
agent has entered himself at that
office, as agent for the memorial.
This appearance is given to the
2 One fair copy of such statement
is required for the examiner, and
another for the committee clerk.
776
I'ROCEEDINGS OF THE EXAMINERS,
Memorials
of non-
In opposed
connected with the case. In an opposed case, when the
cases.
formal proofs have been completed, the examiner proceeds to
hear the memorialists. The agents for the latter ordinarily
take no part in the proceedings upon the formal proofs : but
if they desire that any of the promoters' witnesses, who have
proved the deposit of documents, the service of notices, or
other matters, should be detained for further examination, in
reference to allegations of error, contained in the memorials,
the examiner directs them to be in attendance until their
evidence shall be required. By the Standing Orders of both
complaining
houses, any parties are entitled to appear and to be heard,
compliance.
by themselves, their agents and witnesses, upon a memorial
addressed to the examiner, complaining of non-compliance
with the Standing Orders, provided the matter complained of
be specifically stated in such memurial, and the party (if any)
who may be specially affected by the non-compliance with
the Standing Orders have signed such memorial, and shall
not have withdrawn his signature thereto, and such memorial
have been duly deposited.
The attendance of witnesses is ordinarily secured by the
parties themselves; but if the examiner should report to the
house that the attendance of any necessary witness, or the
production of any document, cannot be procured without the
intervention of the house, the house will make an order
accordingly.
Specific state- Unless the matters complained of be specifically stated in
ments of non- the memorial, the memorialists are not entitled to be heard,
.
and the utmost care is consequently required in drawing
memorials. When a memorial complains of more than one
breach of the Standing Orders, it is divided into distinct alle-
gations. Each allegation should specifically allege a non-
compliance with the Standing Orders, and should state the
circumstances of such alleged non-compliance, in clear and
accurate language.
Preliminary When the agent for a memorial arises to address the ex-
objections.
aminer, the agent for the bill may raise preliminary objec-
1 Wandle Waterworks, 1853; 108 Com. J. 257; 121 Ib. 114. 127.
Attendance of
witnesses.
1
!
PROCEEDINGS OF THE EXAMINERS.
1
tions to his being heard upon the memorial, on any of the
grounds referred to in the Standing Orders, or on account
of violations of the rules and usage of Parliament, or other
special circumstances. Such objections are distinct from
any subsequent objections to particular allegations. It has
been objected, for example, that a memorial has not been
duly signed, so as to entitle the parties to be heard. No
proof of the signatures, however, is required in any case,
unless there should be some primâ facie reason for doubting
their genuineness. The same rule is applied to the affixing
of a corporate seal. On the 16th February 1846, an instruc-
tion was given to the select committee on petitions for pri-
vate bills not to hear parties on any petition "which shall
not be prepared in strict conformity with the rules and
orders of this house." And as memorials addressed to the Memorials
examiner have supplied the place of petitions to the house, same rules as
subject to
complaining of non-compliance with the Standing Orders, petitions.
the examiners have applied to them all the parliamentary
rules applicable to petitions; and have otherwise followed
the practice of the sub-committees on petitions for private
bills.
If no preliminary objection be taken to the general right Preliminary
of the memorialists to appear and be heard, or if it be over- allegations.
objections to
ruled, the agent proceeds to read the first allegation in his
memorial. Preliminary. objections may be raised to any
allegation; as that it alleges no breach of the Standing
Orders : that it is uncertain, or not sufficiently specific, or
that the party specially affected has not signed the memorial,
or has withdrawn his signature. In reference to the latter Parties speci-
ally affected.
grounds of objection it may be explained that by numerous
decisions of sub-committees and of the examiners, the signa-
tures of parties specially affected are required in reference
to such allegations only as affect parties personally, and in
which the public generally have no interest. Thus if it be
alleged that the name of any owner, lessee, or occupier of
1 101 Com, J. 147.
778
PROCEEDINGS OF THE EXAMINERS.
Public objec-
tions.
property has been omitted from the book of reference, or
that he has received no notice, the examiner will not proceed
with the allegation, unless the party affected has himself
signed the memorial. But in the application of this rule,
considerable niceties often arise from the peculiar circum-
stances of each case.
There are numerous grounds of objection which relate to
matters concerning the public, and do not therefore require
the signatures of parties specially affected. Thus objections
to the sufficiency of newspaper notices; to the accuracy of
the plans, sections, and books of reference, where the errors
alleged are patent upon such documents, or are separable
from questions relating to property in lands and houses, have
always been treated as public objections. The same principle
has been applied to objections to the estimate, deposit of
money, or declaration; and to allegations that any documents
have not been deposited in compliance with the Standing
Orders. It is for public information and protection that all
requirements of this character are to be complied with by the
promoters of the bill; and any person is therefore entitled to
complain of non-compliance on behalf of the public, without
proving any special or peculiar interests of his own.
Allegations are to be confined to breaches of the Standing
Orders, and may not raise questions impugning the merits of
the bill, which are afterwards to be investigated by Parlia-
ment, and by committees of either house. It may be shown,
for example, that an estimate is informal; and not such an
estimate as is required by the Standing Orders; but the in-
sufficiency of the estimate is a question of merits, over which
the examiner has no jurisdiction. Again, in examining the
accuracy of the section of a proposed railway, the examiner
will inquire whether the surface of the ground be correctly
shown, or the gradients correctly calculated: but he cannot
entertain objections which relate to the construction of the
work, its engineering advantages, its expense, or other similar
matters, which will be afterwards considered by the committee
on the bill.
Questions of
merits ex-
cluded.
PROCEEDINGS OF THE EXAMINERS.
779
the examiner.
The examiner decides upon each allegation, and, when-
ever it is necessary, explains the grounds of his decision. Decision and
When all the memorials have been disposed of, he endorses certificate of
report and
the petition, and if the Standing Orders have not been com-
plied with, he makes a report to one house, and a certificate
to the other, as already stated. In case he should feel doubts
as to the due construction of any Standing Order, in its ap-
plication to a particular case, he may make a special report
of the facts to both houses, without deciding whether the
Standing Order has been complied with or not.
When the petition has been endorsed by the examiner, it Petition to be
is returned to the private bill office, where the agent can the Commons.
presented to
obtain it, in order to arrange for its presentation to the House
of Commons, by a member. In case the bill should originate
in the House of Lords, the petition is retained in the private
bill office; and the examiner makes a report to the House of
Commons, as to the compliance, or non-compliance, with the
Standing Orders.
All the proceedings preliminary to the application to Par-
liament being thus completed, the further progress of a
private bill in the House of Commons is reserved for the
next chapter.
Where a dissolution of Parliament is anticipated before Bills sus-
the private business of the session has been disposed of, it
pended, and
has been customary to make orders, enabling the promoters
of private bills to suspend further proceedings, and to afford sion.
facilities for proceeding with the same bills, without repeating
proofs of compliance with Standing Orders, or other unneces-
sary formalities, in the next session. The orders made in
1859 and 1880, for this purpose, were peculiarly simple and
effectual, and will probably be followed on similar occasions,
to the exclusion of earlier precedents.? In 1871, the Tram-
ways (Metropolis) Bills were suspended in a similar manner,
in order to be proceeded with in the next session.3
proceeded
with in
another ses-
i S. O. No. 77.
2 11th April 1859, 114 Com. J.
105; 11th March 1880, 135 Com. J.
95. 111.
3. 126 Com. J. 335; 35 & 36 Vict.
C. 43.
780
PRIVATE BILLS IN THE COMMONS.
CHAPTER 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.
Progress of The further progress of a private bill through the House
private bills
in the
of Commons will now be followed, step by step, precisely in
Commons.
the order in which particular rules are to be observed by the
parties, or enforced by the house or its officers: but this state-
ment of the various forms of procedure may be introduced by
a few observations explanatory of the general conduct of
private business in the House of Commons.
Parliament- I. Every private bill or petition is solicited by an agent,
ary agents.
upon
whom various duties and responsibilities are imposed by
the orders of the house. The rules laid down by the Speaker,
by authority of the house, in 1837, and revised in 1873, are
to the following effect :
Declaration 1. “No person shall be allowed to act as a parliamentary agent
and recogni- until he shall have subscribed a declaration before one of the clerks in
the private bill office, engaging to obserye and obey the rules, regu-
lations, orders, and practice of the House of Commons, and also to pay
and discharge from time to time, when the same shall be demanded,
all fees and charges due and payable upon any petition or bill upon
which such agent may appear; and after having subscribed such de-
claration, and entered into a recognizance or bond (if hereafter re-
quired), in the penal sum of 5001., conditioned to observe the said
declaration, such person shall be registered in a book to be kept in the
private bill office, and shall then be entitled to act as parliamentary
agent: Provided that upon the said declaration, recognizance or bond
and registry, no fee shall be payable.”
Form.
2. « The declaration before mentioned, and the recognizance and
bond, if hereafter required, shall be in such form as the Speaker may
from time to time direct."
3. “ One member of a firm of parliamentary agents may subscribe
zance.
I
PARLIAMENTARY AGENTS.
781
upon bills.
the required declaration on behalf of his firm; but the names of all
the partners of such firm shall be registered with such declaration ;
and notice shall be given, from time to time, to the clerks of the
private bill office, of any addition thereto, or change therein."
4. “No person shall be allowed to be registered as a parliamentary
agent, unless he is actually employed in promoting or opposing some
private bill or petition, pending in Parliament."
5. “When any person (not being an attorney, or solicitor, or writer
to the signet) applies to qualify himself, for the first time, to act as a
parliamentary agent, he shall produce to one of the clerks of the
private bill office a certificate of his respectability from a member of
Parliament, or a justice of the peace, or a barrister-at-law, or an
attorney, or solicitor."
6. “No notice shall be received in the private bill office for any pro- Appearance
ceeding upon a petition for a bill, or upon a bill brought from the to be entered
Lords (after such bill has been read a first time), until an appearance
to act as the parliamentary agent upon the same shall have been
entered in the private bill office; in which appearance shall also be
specified the name of the solicitor (if any) for such petition or bill."
7. “Before any party shall be allowed to appear or be heard upon Appearance
any petition against a bill, an appearance to act as the parliamentary to be entered
agent upon the same shall be entered in the private bill office; in
on petitions
against bills.
which appearance shall also be specified the name of the solicitor, and
of the counsel who appear in support of any such petition (if any
counsel or solicitor are then engaged), and a certificate of such appear-
ance shall be delivered to the parliamentary agent, to be produced to
the committee clerk."
In case the parliamentary agent for any petition or bill shall be A fresh
displaced by the solicitor thereof, or such parliamentary agent shall appearance
decline to act, the responsibility of such agent shall cease, upon a parliamentary
on change of
notice being given in the private bill office, and a fresh appearance agent.
shall be entered upon such petition or bill."
9. " Every agent conducting proceedings in Parliament before the Agents
House of Commons shall be personally responsible to the house, and personally
responsible.
to the Speaker, for the observance of the rules, orders, and practice of
Parliament, as well as of any rules which may from time to time be
prescribed by the Speaker, and also for the payment of the fees and
charges due and payable to the officers of the House of Commons.'
10. “Any parliamentary agent who shall wilfully act in violation of Speaker may,
the rules and practice of Parliament, or of any rules to be prescribed on miscon;
duct, prohibit
by the Speaker, or who shall wilfully misconduct himself in prose- agent from
cuting any proceedings before Parliament, shall be liable to an abso- practising.
lute or temporary prohibition to practise as a parliamentary agent, at
the pleasure of the Speaker; provided that upon the application of
such parliamentary agent, the Speaker shall state in writing the
grounds for such prohibition.”
8. 56
782
NOTICES OF PRIVATE BUSINESS.
11. “No person who has been prohibited from practising as a par-
liamentary agent, or struck off the rolls of attorneys or solicitors, or
disbarred by any of the inns of court, shall be allowed to be registered
as a parliamentary agent, without the express authority of the
Speaker."
12. “No written or printed statement relating to any private bill
shall be circulated within the precincts of the House of Commons
without the name of a parliamentary agent attached to it, who will be
responsible for its accuracy."
13.. "The sanction of the chairman of ways and means, in writing,
is required to every notice of a motion prepared by a parliamentary
agent, for dispensing with any Sessional or Standing Order of the
house."
Registry of The name, description, and place of residence of the par-
agents.
liamentary agent in town, and of the agent in the country
(if any), soliciting a bill, are entered in the “private bill
register,” in the private bill office, which is open to public
inspection.
Members may
Besides these regulations, there are certain disqualifications
not be agents.
for parliamentary agency. It was declared by a resolution
of the house, 26th February 1830, nem. con.,
“That it is contrary to the law and usage of Parliament, that any
member of this house should be permitted to engage, either by him-
self or any partner, in the management of private bills, before this or
the other house of Parliament, for pecuniary reward.”ı
the house.
Nor officers of And in compliance with the recommendation of a select com-
mittee on the House of Commons offices in 1835, no officer or
clerk belonging to the establishment is allowed to transact
private business before the house, for his emolument or ad-
vantage, either directly or indirectly.?
Notices of II. It has been stated elsewhere, that the public business
private busi-
for each day is set down in the order book, either as notices
given.
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, except in the case of any special proceed-
ings: but are required to be delivered at the private bill
ness, hoy
1 85 Com. J. 107.
2 Parl. Rep. No. 648, of 1833, p. 9; No. 606, of 1835, pp. 17. 19.
I
NOTICES OF PRIVATE BUSINESS.
783
1
office, at specified times, by the agents soliciting the bills.
These notices will each be described in their proper places : Hours for
giving
but one rule applies to all of them alike :-they must be notices.
delivered before six o'clock in the evening of any day on
which the house shall sit; and before two o'clock on any day
on which the house shall not sit; and after any day on which
the house has adjourned beyond the following day, no notice
may be given for the first day on which it shall sit again.
If any stage of a bill be proceeded with when the notice If not duly
given, pro-
has not been duly given, or the proper interval allowed, ceedings void.
or if notice be taken of any other informality, such pro-
ceeding will be null and void, and the stage must be
repeated.
All notices are open to inspection in the private bill office: Notices
published.
but for the sake of greater publicity and convenience, they
are also printed with the Votes; and members and parties
interested are thus as well acquainted with the private business
set down for each sitting, as with the public notices and
orders of the day.
III. The time set apart for the consideration of all matters Time for
relating to private bills, is between four and five in the after- business.
noon, immediately after the meeting of the house; or at
twelve on Wednesday, and at the commencement of other
morning sittings; when the orders of the day and notices of
motions are proceeded with, in the order in which they appear
in the printed “private business list;" and provisional order
bills are placed after the private business.
But to entitle a motion to be heard at the time of private What to be
deemed pri-
business, it must relate to a private bill before the house, or vate business.
strictly to private business in some other form. On the 3rd
April 1845, a member having given notice that he should,
at the time of private business, make a motion for referring
back a report, to the Board of Trade, for re-consideration;
and having risen in his place for that purpose, was inter-
1 100 Com. J. 423; 101 Ib. 167; 106 Ib. 75; 107 Ib. 157; 122 Tb. 66.
784
PRIVATE BUSINESS.
rupted by Mr. Speaker, who stated that, in his opinion, that
motion ought not to be considered as private business, and
ought not to be brought forward at that time: but, as this
was a new case, he submitted it to the decision of the house.
Whereupon a motion was made, and question put, “That the
member be now heard in support of the motion intended to
be made by him, and that the question be proposed to the
house;" which the house decided in the negative. In this
case the petition for the bill had been referred to the com-
mittee on petitions for private bills, but there was, in fact,
no bill before the house. It was upon this ground that the
motion was ruled not to relate to private business, in such a
way as to entitle it to be brought on at that time. If the
same motion had been offered after the commitinent of the
bill, when the house would have referred the report of the
railway department to the committee, it would have been
received as a question relating to a private bill then in
progress, and would have been properly brought on at the
time of private business. Resolutions for the amendment of
the Standing Orders, and adjourned debates upon them, are
always taken at this time. Sometimes particular matters are
ordered to be taken into consideration at the time of private
business.?
As soon as the house is ready to proceed to private busi-
ness, the Speaker desires the clerk at the table to read from
the private business list, the titles of the several bills set down
for the day, which are read in the following order: 1. Con-
sideration of Lords' amendments; 2. Third readings; 3. Con-
sideration of bills ordered to lie upon the table; 4. Second
readings; and 5. First readings. If, upon the reading of
any title, no motion be made relative to the bill, or if the
motion be opposed, further proceedings are adjourned until
the next sitting of the house.
Every form and proceeding, in the offices of the house,
Order of
proceedings
on private
business.
Conduct of
bills by
members.
1 100 Com. J. 191; 79 Hans. Deb.
3rd Ser. 10; Bourke's Decisions, 290.
? 109 Com. J. 396, &c. .
3 See infra, p. 800.
PRIVATE BILL REGISTERS.
785
connected with the progress of a bill, is managed by a
parliamentary agent (or by a solicitor who has entered his
name as agent for the bill), or by officers of the house :
but, in the house itself, no order can be obtained, except
by a motion made by a member, and a question proposed
and put in the usual manner, from the chair. Two mem-
bers are generally requested by their constituents, or by
the parties, to undertake the charge of a bill:1 they re-
ceive notice from the agents when they will be required
to make particular motions, of which the forms are pre-
pared for them; and they attend in their places, at the
proper time, for that purpose. In ordinary cases, the dif-
ferent proceedings being prescribed by the Standing Orders,
the motion made is a mere form, preliminary to the usual
order of the house; and, except in opposed cases, is generally
made for all the bills in the list, by one member who, to the
great convenience of the house and of the parties, undertakes
this useful office.2. But whenever any unusual proceeding When special
motions inade.
becomes necessary, such as a special reference to the examiner,
or a committee, or a departure from the Standing Orders or
rules of the house, the member is required, except in urgent
cases, to give notice of his intended motion; and afterwards
to make the motion in the usual manner.
IV. Every vote of the house upon a private bill is entered "Private bill
registers.”
in the Votes and Journals; and there are also kept in the
private bill office, registers, in which are recorded all the pro-
ceedings, from the petition to the passing of the bill, which
are open to public inspection daily. The entries in these
registers specify briefly each day's proceedings before the
examiners, or in the house, or in any committee to which the
bill may be referred. As every proceeding is entered under
1 The names of the members who
are ordered to prepare and bring in
the bill, are printed on the back of
it.
2 For several years, this duty has
been most efficiently discharged by
Sir Charles Forster, M.P. for Wal-
sall, and chairman of the committee
on public petitions.
P.
3 E
786
PETITIONS FOR PRIVATE BILLS.
Petition for
the name of the particular bill to which it refers, it can be
immediately referred to, and the exact state of the bill dis-
covered at a glance.
After these explanations, the proceedings in the house may
be described, without interruption, precisely in the order in
which they usually occur.
When the petition for the bill has been indorsed by one of
bill presented.
the examiners, it must be presented to the house, by a
member, with a printed copy of the bill annexed, not later
than three clear days after such indorsement; or, if, when so
indorsed, the house should not be sitting, then not later than
three clear days after the first sitting; and in case the house
should not sit on the latest day allowed for the presentation
of the petition, it is to be presented on the first day on which
the house shall again sit. If the petition for the bill relate
to any claim upon the Crown, the Queen's recommendation
must be signified; and the petition will be referred to a com-
mittee of the whole house.
If the Standing Orders have been complied with, the bill
ing orders not
complied
is at once ordered to be brought in. If not complied with,
with.
the petition is referred to the Standing Orders committee;
and the report of the examiner, having been laid upon the
table by the Speaker, is also referred.
Petitions On the 7th March 1845, the South Eastern Railway Com-
withdrawn
pany petitioned for leave to withdraw their original petition
petitions
for a bill, and to present petitions for seven separate bills
presented.
with reference to the objects comprised in their original
petition. Their petition was referred to the Standing Orders
committee, who reported, on the 11th March, that if the
house shall give leave to withdraw their original petition,
the sessional order ought to be dispensed with, and that the
parties be permitted to present petitions for seven separate
bills. On the 14th March, the original petition was with-
drawn, and leave given to present petitions for seven separate
1
When stand-
and other
1 Earl of Perth and Melfort's Compensation Bill, 1856; 111 Com. J.
247, &c.
+
PROVISIONAL ORDER BILLS.
787
tion.
bills. In the same manner, leave was given, on the 14th
March 1845, that two London and Croydon Railway bill
petitions be withdrawn, and that petitions might be presented
for five different bills.2
There is an express Standing Order, that no private bill Private bills
to be brought
shall be brought in otherwise than upon petition, signed by in upon peti-
the parties, or some of them, who are suitors for the bill; and
bills which have been proceeding as public bills, have some-
times been withdrawn on notice being taken that they were
private bills, and ought to have been brought in upon peti-
tion. But bills of a local character, to which the Standing Exceptions.
Orders of the house are applicable, are occasionally brought
in, by order, as public bills, without the form of a petition.
Their further progress, however, is subject to the proof of Hybrid bills.
compliance with the Standing Orders before the examiner.
They are also liable to the payment of fees: but in the
greater number of cases, the objects are so far of a public
nature that the fees are remitted. They are generally bills
for carrying out national works, or relating to Crown pro-
perty, or other public objects in which the government are
concerned; and are familiarly known as “hybrid bills." 4
Where provisional orders, confirmed by Parliament, have Provisional
taken the place of private acts, the bills for confirming such
orders are introduced as public bills, subject to the proof of
certain deposits, before the examiner. Such bills, after the
second reading, stand referred to the committee of selection
or the general committee on railway and canal bills, by
order bills.
1 100 Com. J. 136.
1851; Metropolis Water Supply Bills,
2 Ib. 138.
1851 and 1852; Belfast Municipal
3 80 Ib. 488. 490, 491.
Boundaries Bill, 1853; Public Offices
4 Knightsbridge and Kensington Extension Bill, 1857; Thames Em-
Openings Bill, 1842; Holyhead Har- bankment Bills, 1862 and 1863;
bour Bill, 1847; Caledonian Canal Metropolis Gas Bills, 1867 and 1868;
Bill; Windsor Castle Approaches Admiralty and War Offices Rebuild-
Bill, 1848; Dublin Improvement ing Bill, 1873; Parochial Charities
(No. 2) Bill, 1849 ; Portland Har. (London) Bill; Public Offices Site
bour and Breakwater Bill, 1850; Bill, 1882, &c.
Smithfield Market Removal Bill, 5 See supra, p. 760.
3 E 2
788
COMMONS INCLOSURE.
whom committees are appointed, as in the case of private
bills. By Standing Order 225A :
“All bills for confirming provisional orders or certificates shall be
set down for consideration, each day, in a separate list, after the
private business, and arranged in the same order as that prescribed by
the Standing Orders for private bills.”
If any petition be presented to either house against a pro-
visional order, in the progress of the bill, such petition is
referred to the committee on the bill; and the petitioners are
allowed to appear and oppose, as in the case of private bills.
The committee to whom any opposed order is referred, is to
consider also all the orders comprised in the bill. The pro-
moters are not liable to the payment of fees.
Commons
In regard to provisional orders under the Commons
inclosure.
Inclosure Act, 1876, a committee is appointed every session,
six members being nominated by the house, and five by the
committee of selection, to consider every report made by the
Inclosure Commissioners certifying the expediency of any
provisional order for the inclosure or regulation of a com-
mon, and presented to the house during the present session,
before a bill is brought in for the confirmation of such
order.1
Some difficulties were experienced by committees on such
are amended. bills where it became necessary to amend the provisional
orders, inasmuch as those orders were no longer the documents
issued by the department, under the authority of the general
acts : but since 1865, a simple expedient has been adopted.
The preamble recites that a provisional order has been made
by the Board of Trade or other department, and amended by
Parliament, and is, as so amended, set out in the schedule to
the bill; and in the schedule appears the amended order
referred to and confirmed by the bill, comprising every
amendment introduced by the committee.?
Petitions for If, after the introduction of a private bill, any additional
additional
provision.
1 132 Com. J. 66, &c.
firmatiou Acts, 28 & 29 Vict. c. 58.
2 Tyne Pilotage Act, 28 & 29 Vict. 76. 114, &c.
c. 44; Pier and Harbour Orders Con-
When pro-
PETITIONS FOR ADDITIONAL PROVISION.
789
provision should be desired to be made in the bill, in respect
of matters to which the Standing Orders are applicable, a
petition for that purpose should be presented to the house,
with a printed copy of the proposed clauses annexed. The
petition will be referred to the examiners of petitions for
private bills, who are to give at least two clear days' notice
of the day on which it will be examined. Memorials com-
plaining of non-compliance with the Standing Orders, in re-
spect of the petition, may be deposited in the Private Bill
Office, together with two copies thereof, before twelve o'clock
on the day preceding that appointed for the examination of
the petition; and the examiner may entertain any memorial,
although the party (if any) who may be specially affected by
the non-compliance shall not have signed it. After hearing
the parties, in the same manner as in the case of the original
petition for the bill, the examiner reports to the house
whether the Standing Orders have been complied with or not,
or whether any be applicable to the petition for additional
provision.
It has occasionally happened that petitions for additional When such
petitions
provision have sought for public legislation affecting the considered in
stamp duties or other branches of the revenue ; which, ac- the whole
cording to the rules of the house, are required to originate in house.
a committee of the whole house. In such cases the petition
is presented, and the Queen's recommendation having been
signified, the house resolves to go into committee on a future
day, to consider the matter of such petition. The matter is
considered in committee on that day; and when the resolution
is reported and agreed to, an instruction is given to the
committee on the bill to make provision accordingly. Such
committee of
1 See supra, p. 652.
2 National Loan Fund Life As-
surance Society Bill, 1855; 110 Com.
J. 217. Globe Insurance Company
Bill, 1858 ; 113 Ib. 169. Lay Life
Assurance Society Bill, 25th June
1863. Land Securities Company Bill,
10th March 1864. Dundalk and
Greenore Railway (cancellation of
bond), 15th May 1873. Rhonda Val-.
ley and Hirwain Junction Railway
(cancellation of bond), 1878. East
London Railway (Repayment of De-
posit), 1882, &c.
790
STANDING ORDERS COMMITTEE.
2
committees are now taken at the time of private business.
If any such provision be included in the original bill, it must
be printed in italics ; and before the sitting of the committee,
similar proceedings will be taken in the house.
Landrevenues In the Birkenhead Docks Bill, 1850, an arrangement
of the Crown,
having been made with the commissioners of woods and
forests, for a payment out of the land revenues of the Crown,
a resolution was agreed to, in the proper form, and the bill
re-committed to a committee of the whole house, with an
instruction to make provision. In the case of the Forest of
Dean Central Railway Bill, 1856, after the bill had been
reported from the committee, a resolution was agreed to for
an advance to the company out of the land revenues of the
Crown; the bill was re-committed to a committee of the
whole house, and an instruction given to make provision
accordingly.
Standing The committee on Standing Orders consists of eleven
members, nominated at the commencement of every session,
of whom five are a quorum. To this committee are referred
all the reports of the examiners, in which they report that
the Standing Orders have not been complied with, whether
the bills originate in the Lords or in the Commons; and it is
their office to determine and report to the house whether such
Standing Orders 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 portion of it; and under
what conditions (if any); as, for example, after publishing
advertisements, depositing plans, or amending estimates, when
such conditions seem to be proper.
When special If any special report be made by the examiner, as to the
report of
construction of a Standing Order, it will also be referred to
the Standing Orders Committee. The committee, in such a
case, are to determine, according to their construction of the
Standing Order, and on the facts stated in the examiner's re-
port, whether the Standing Orders have been complied with
Orders
Committee.
examiner
referred.
1 105 Com. J. 369. 423.
2 111 Ib. 266.
STANDING ORDERS COMMITTEE.
791
or not. If they determine that the Standing Orders have
been complied with, they so report to the house; and if not
complied with, they proceed to consider whether the Standing
Orders ought to be dispensed with. To this committee also Other duties
of Standing
stand referred all petitions which have been deposited in the Orders Com-
Private Bill Office, praying that any of the sessional or
mittee.
Standing Orders of the house may be dispensed with ; or that
petitions for private bills which have been struck off the
general list by the examiners, may be re-inserted, and all
petitions opposing the same; and they report their opinion
upon such petitions to the house. Their duties, in reference
to clauses and amendments and other matters, will be ad-
verted to, in describing the proceedings to which they relate.
According to the usual practice of this committee, written Proceedings
statements are prepared, on one side by the agent for the Orders Com.
bill, and on the other by the agents for memorialists who mittee.
have been heard by the examiner. When these statements
have been read by the committee, they determine whether
the Standing Orders ought or ought not to be dispensed with,
and whether “the parties should be permitted to proceed
with their bill, and under what (if any) conditions.” The
parties are called in and acquainted with the determination
of the committee, which is afterwards reported to the house.
It is not usual to hear the parties, except for the explanation
of any circumstances which are not sufficiently shown by the
written statements. But in some inquiries of a special
character which have been referred to the committee, they
have heard agents and examined witnesses, before they have
agreed to their report.
The committee, in their report to the house, do not explain Principles by
the grounds of their determination : but the principles and which Stand-
general rules by which they are guided, may be briefly Committee is
governed.
stated. The report of the examiner being conclusive as to
1 Edinburgh, and Perth Railway
Bill, 1847; 102 Com. J. 226. 293;
and evidence printed at the expense
of the parties. Edinburgh and
Northern Railway Bill, 1849; 104
Ib. 37. 48. 70.
792
STANDING ORDERS COMMITTEE.
the facts, it is the province of the committee to consider
equitably, with reference to public interests and private
rights, whether the bill should be permitted to proceed. If
the promoters appear to have attempted any fraud upon the
house, or to be chargeable with gross or wilful negligence,
they will have forfeited all claim to a favourable considera-
tion. But assuming them to have taken reasonable care in
endeavouring to comply with the orders of the house, and
that their errors have been the result of accident or inad-
vertence, not amounting to laches, their case will be con-
sidered according to its particular circumstances. The com-
mittee will then estimate the importance of the orders which
have been violated, the character and number of separate
instances of non-compliance, the extent to which public and
private interests may be affected by such non-compliance,
the importance and pressing nature of the bill itself, the
absence of opposition, or other special circumstances. And,
according to the general view which the committee may take
of the whole of the circumstances, they will report that the
Standing Orders ought, or ought not, to be dispensed with.
If the Standing Orders Committee report that indulgence
should be granted to the promoters of a bill, they are allowed
to proceed with the bill or with the additional provision,
either at once, or after complying with the necessary con-
ditions, according to the report of the committee. To give
effect to this permission, the proper form to be observed, is
for a member to move that the report be read, and that
leave be given to bring in the bill. In the case of a petition
for additional provision, no further proceeding in the house
is necessary: but the parties have leave to introduce the
provision if the committee shall think fit. In 1853, the
Standing Orders Committee had reported that the parties
should have leave to make provision in the Lands Improve-
ment Bill, pursuant to their petition. In the meantime the
amendments proposed to be made in other parts of the bill
had become so numerous, that the chairman of ways and
Report.
Leave to
proceed.
STANDING ORDERS COMMITTEE.
793
2
Orders not to
means required the promoters to withdraw it, and bring in
another. On bill (No. 2) being ordered, the resolution of
the house on the report of the Standing Orders Committee
was read, and the gentlemen ordered to bring in the bill
were instructed to make provision pursuant to the petition.
A second reference to the Standing Orders Committee was
thus avoided. The compliance with orders for giving notices,
depositing amended plans, &c. is, in ordinary cases, required
to be proved before the committee on the bill, but, in special
cases, before the examiners,
If the committee report that the Standing Orders ought Standing
not to be dispensed with, their decision is generally acquiesced be dispensed
in by the promoters, and is fatal to the bill. But in order to with.
leave the question still open for consideration, the house agree
to those resolutions only 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.
In 1883, the examiner having reported that in the case of Manchester
the Manchester Ship Canal Bill the Standing Orders had not Bill, 1883.
been complied with in respect of the proposed dredging of the
channel of the river Mersey, the Standing Orders Committee
resolved, that the promoters should be allowed to proceed
with their bill on striking out all the powers relating to that
portion of the works ;3 and in the Lords the Standing Orders
Committee arrived at the same conclusion.
In some few cases the decision of the Standing Orders Decision of
Committee has been excepted to, and overruled by the house, Orders Com-
either upon the consideration of petitions from the promoters, 5 mittee over-
ruled.
or by a direct motion in the house, not founded upon any
4
1 108 Com. J. 406.
2 Dublin Improvement Bill, 1849 ;
104 Com. J. 76. Great Northern
Railway Bill, 1849 ; Ib. 81, &c.
3 138 Com. J. 20. 61.
4 Lords' Minutes, 13th April 1883.
5 Doncaster and Selby Road Bill,
1832; 87 Com. J. 150. 163. London
Bridgo Approaches Bill, 1834 ; 89
Ib. 81. 122. London City Police Bill,
1839; 94 Ib. 228. 234. London and
Greenwich Railway Enlargement
and Station Bill, 1810; 95 Ib. 113.
118. Great Northern Railway, &c.
Bill, 1862 ; 117 Ib. 307.
794
STANDING ORDERS COMMITTEE.
Report re-
ferred back
to the com-
mittee.
petition. But as the house has generally been disposed to
support the committee, attempts to reverse or disturb its
decisions have rarely been successful.?
In one cases the committee had decided that the Standing
Orders ought not to be dispensed with : but by a clerical
error it was reported that the Standing Orders ought to be
dispensed with, and a bill was ordered to be brought in.
The report was referred back to the committee, and the
subsequent proceedings declared null and void. The com-
mittee again decided that the Standing Orders ought not to
be dispensed with, and so reported to the house : but the
promoters subsequently presented a petition for leave to pre-
sent a petition for a bill, and their second bill ultimately
received the royal assent. In another case, notice being taken
that a report of the committee was incorrect, it was referred
back to the committee.
In the case of the Albert Station and Mid-London Rail-
way Bill, in 1863, the resolution of the committee was re-
committed; and a petition referred to the committee, with an
instruction to inquire and report whether the special circum-
stances stated were such as to render it just and expedient
that the Standing Orders should be dispensed with : but the
committee, after investigation, repeated their resolution that
the orders ought not to be dispensed with. In 1870, certain
resolutions of the committee, with the bills and the reports of
the examiners, were referred back to the committee, and
petitions were referred to them, with an instruction to report
4
1 Irish Great Western Railway Bill,
5th May 1845; 100 Com. J. 395; 80
Hans. Deb. 3rd Ser. 158. 175. Sun-
derland Dock (No. 2) Bill, 1858; 113
Com. J. 230. Charing Cross Railway
Bill, 1862 ; 117 Ib. 273. London,
Chatham, and Dover Railway Bills
(2), (3), and (4), 1867; Great Eastern
Railway (Finance) Bill, 1867; 122 Ib.
162. 167. 204. 230, &c.
2 Birkenhead, Manchester, and
Cheshire Junction Railway Bill, 25th
April 1845; 100 Ib. 338. Shrewsbury
and Hereford Railway Bill, 1846 ;
101 Ib. 486. 502.
3 West Riding Union Railway,
1846 ; 101 Ib. 176. 223. 252.
Liverpool Tramways Bill, 1867;
122 Ib. 66.
5 Votes, 27th March and 17th
April 1863.
STANDING ORDERS COMMITTEE.
795
leave to de-
for bills,
whether special circumstances render it expedient that the
Standing Orders should be dispensed with. The report was
favourable, and the bills were permitted to proceed. In
1883, in the case of the Dundalk Water Bill, the committee
having reported that the Standing Orders ought not to be
dispensed with, the report was re-committed: but the com-
mittee adhered to their previous decision.2
If the promoters of the bill, without desiring to disturb the Petitions for
decision of the Standing Orders Committee, still entertain
posit petitions
hopes that the house may be induced to relax the Standing
Orders, or be willing to abandon portions of their bill; or if
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 deposit a petition, praying for
leave to deposit a petition for a bill, and stating fully the
grounds of their application. The petition will stand re-
ferred to the Standing Orders Committee, who, after hearing
the statements of the parties, will report to the house whether,
in their opinion, the parties should have leave to deposit a
petition for a bill.: If leave be given, the petition is deposited
in the private bill office; when the case is examined, and the
petition certified by the examiner, in the same manner as if
it had been originally deposited before the 21st December.
But in such cases, the Standing Orders previously reported
by the examiner not to have been complied with, are taken to
have been dispensed with ; and unless any further breaches
are discovered, he now reports that the Standing Orders have
been complied with.
If parties desire to solicit a bill during the current session, To deposit
who have not deposited a petition for the bill before the 21st bills after
petitions for
December, they may deposit a petition, praying for leave to
time.
1 125 Com. J. 78.
2 138 Ib. 87. 121. 129.
3 Manchester and Southampton
Railway Bill, 1847; 102 Com. J.
269, &c. Belfast and West of Ire-
land Railway Bill; Bagenalstown
and Wexford Railway Bill, 1851.
South London Railway (No. 3), 1860;
115 Ib. 94. Hastings Western Water
(No. 2), 1861; 116 Ib. 139. Southam
Railway (No. 2), 1863.
796
PRIVATE BILLS PRESENTED.
Bill presented.
deposit a petition for a bill, and explaining the circumstances
under which they had been prevented from complying with
the orders of the house, as to the deposit of their petition at
the proper time. Their petition will stand referred to the
Standing Orders Committee, and if they succeed in making
out a case for indulgence, leave will be given by the house,
on the report of the committee, to deposit a petition for a bill,
which will be proceeded with in the usual manner.
When leave has been obtained to bring in a private bill, it
is required to be presented, by being deposited in the private
bill office, not later than one clear day after the presentation
of the petition; or where the petition has been referred to
the Standing Orders Committee, then not later than one
clear day after the house has given the parties leave to pro-
ceed. It must be printed on paper of a folio size (as deter-
mined by the Speaker), with a cover of parchment attached
to it, upon which the title is written: and the short title of
the bill, as first entered in the Votes, is to correspond with
that at the head of the advertisement. The names of the
members ordered to prepare and bring in the bill are printed
on the back; and the agent must take care to have the ex-
press authority of the members, for such use of their names :
for in case of any irregularity in this respect, the bill will be
ordered to be withdrawn.2
On the 20th February 1846, the solicitor and agent for a
bill petitioned for leave to add schedules which had been acci-
dentally omitted from the printed copies of the bill, and the
house allowed the parties to make the alteration.3
The proposed amount of all rates, tolls, fines, forfeitures,
or penalties, or other matters which must be settled in com-
Schedules
added.
Rates and
tolls in italics.
1 Ratcliff Gas Company, 1854; 109
Com. J. 340. Scinde Railway Bill,
1857; 112 Ib. 295. Bahia and San
Francisco Railway, 1860; 115 Ib.
244. Charing Cross Railway, 1862;
117 Ib. 283. Albert Park (Dublin),
1863; 121 Ib. 218; 122 Ib. 171.
2 Great Dover Road Bill, 11th
March 1861; 116 Com. J. 99; 161
Hans. Deb. 3rd Ser. 1715.
3 Southport Improvement Bill, 20th
and 23rd February 1846; 101 Ib.
183. 185.
1
FIRST READING.
797
mittee, are ordered to be 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.
The several bills, after they have been presented in the First reading.
Private Bill Office, are laid upon the table of the house for Copies of bill
delivered to
the first reading, together with a list of such bills, and are doorkeepers.
read the first time in the order in which they stand in the
list for each day: but before the first reading of every private
bill (except name bills), printed copies of the bill must be
delivered to the doorkeepers in the lobby of the house, for the
use of members.
After the first. reading of a bill conferring additional Consent of
proprietors to
powers on the promoters, being a company already con- be proved.
stituted by act, compliance with Standing Orders, Nos. 62
and 63, concerning the consent of proprietors, is to be proved
before the examiner.
Bills for confirming provisional orders or certificates, being Provisional
brought in as public bills, are, after the first reading, referred order bills.
to the examiners, and are not further proceeded with until
after their report.
But in the case of "hybrid” bills, by Standing Order of Hybrid bills.
the 19th February 1883, the examiner is directed to examine
the bills with respect to compliance with the Standing Orders,
and the order of the day for the second reading continues
upon
the order book, and is not discharged unless the Standing
Orders have not been complied with, and the Standing Orders
Committee refuse to dispense with them.1
Between the first and second reading there may not be less Proceedings
before second
than three clear days nor more than seven, unless the bill has reading.
been referred to the examiners ; in which case it may not be
read a second time later than seven clear days after the report
1 138 Com. J. 19.
798
FIRST READING.
office.
informal.
t
of the examiner, or of the Standing Orders Committee. The
agent for the bill is required to give three clear days' notice
in writing, at the Private Bill Office, of the day proposed for
the second reading, and no such notice may be given until
the day after that on which the bill has been ordered to be
read a second time; and should it be afterwards discovered
that such notice had not been duly given, the proceedings
upon the second reading will be declared null and void.
Bill examined Meanwhile the bill is in the custody of the Private Bill
in private bill
Office, where it is examined, as to its conformity with the
Withdrawn, if rules and Standing Orders of the house. If the bill be im-
properly drawn, or at variance with the Standing Orders, or
the order of leave, the order for the second reading is dis-
charged, the bill is withdrawn, and leave is given to present
another. The bill so presented is distinguished from the
first bill by being numbered (2), and, having been read a
first time, is referred to the examiners of petitions for private
bills. Two clear days' notice is given of the examination,
and memorials may be deposited before twelve o'clock on
the day preceding that appointed. The examiner inquires
whether the Standing Orders, which have been already
proved in respect of the first bill, have equally been complied
with in respect of the bill No. 2, and reports accordingly to
the house; when the bill proceeds in the ordinary course.
Peers' names. The House of Commons will not allow peers to be con-
cerned in the levy of any charge upon the people: but the
relaxation of its privileges, in regard to tolls and charges for
services performed, not being in the nature of a tax, has led
to a considerable change in recent 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 directors of any company, except where such rates,
1 North Union Railway Bill, 1846;
101 Com. J. 371.
2 92 Com. J. 254. 425; 99 Ib. 187.
211; 104 Ib. 71; 105 Ib. 40; 106 Ib.
209; 108 Ib. 289, &c.
SECOND READING.
799
tolls, or dūties are made or imposed for services performed, and are
not in the nature of a tax."
of the Stand-
In 1845, Mr. Speaker called the attention of the house If a violation
to a bill which contained a clause giving compulsory power ing
Orders.
to take lands, of which no notice had been given, and with-
out the proper plans, sections, and estimates having been
deposited according to the Standing Orders. The order for
the second reading was discharged, and the bill referred to
the committee on petitions for private bills. The committee
reported that the Standing Orders had not been complied
with; and were instructed to inquire by whom, and under
what circumstances, the violation of the Standing Orders had
been committed. Their report was referred to the Standing
Orders Committee, who determined that the Standing Orders
ought not to be dispensed with; and the bill was not pro-
ceeded with.4
The second reading corresponds with the same stage in Second
reading,
other bills, and in agreeing to it, the house affirms the
general principle, or expediency, of the measure. There is,
however, a distinction between the second reading of a public
and of a private bill, which should not be overlooked. Α.
public bill being founded on reasons of state policy, the
house, in agreeing to its second reading, accepts and affirms
those reasons: but the expediency of a private bill, being
mainly founded upon allegations of fact, which have not yet
been proved, the house, in agreeing to its second reading,
affirms the principle of the bill, conditionally, and subject
to the proof of such allegations, before the committee.
Where, irrespective of such facts, the principle is objection-
able, the house will not consent to the second reading: but
otherwise, the expediency of the measure is usually left for
the consideration of the committee. This is the first occasion
1 By Speaker's Order, 15th Feb.
1859.
2 Midland Railway Branches Bill,
1845; 100 Com. J. 219.
3 Ib. 247.
4. Ib. 262. 385. 419.
5 But see Minutes of Committee
on Mersey Conservancy Bill, 1857;
and 147 Hans. Deb. 3rd Ser. 133.
800
SECOND READING.
on which the bill is brought before the house otherwise than
pro formâ, or in connection with the Standing Orders; and if
the bill be opposed, upon its principle, it is the proper time
for attempting its defeat. If the second reading be deferred
for three or six months, or if the bill be rejected, no new bill
Postponed, if for the same object can be offered until the next session. In
opposed.
order to avert surprises, if the second or third reading of a
bill, or the consideration of a bill as amended, or any pro-
posed clause or amendment be opposed, its consideration is
postponed until the next day's sitting, unless any member,
on behalf of, or in concert with, the promoters, moves its
postponement until a more distant day.?
On the 23rd June 1857, on the second reading of the
Finsbury Park Bill, a false issue, as it were, was raised.
The bill was for making a park out of rates upon the metro-
polis: but an intimation was given that the government had
favourably entertained an application for a contribution of
50,0001. from the consolidated fund, to which great objection
was raised in debate. Lest the bill should be lost, on this
ground, though it contained no provision for that purpose, it
was suggested that a member should move the adjournment
of the debate, and that all who objected to the public grant
should vote for that motion, and thus give the promoters an
opportunity of determining whether they would proceed with
their bill. The adjournment was accordingly moved, and
carried upon a division.3
By a Standing Order of the 13th July 1869, where a postal
or telegraphic contract with Government requires to be con-
firmed by Act of Parliament, the bill for that purpose should
not be introduced and dealt with as a private bill, and power
to the Government to enter into agreements, by which obli-
gations at the public charge shall be undertaken, should not
be given in any private act.
Government
contracts.
i See supra, p. 335.
2 See Deb. on London, Chatham, and Dover Railway Bill, 6th July 1863.
3 146 Hans. Deb. 3rd Ser. 236.
SECONI) REIDING.
801
When a private bill has been read a second time, and commitment.
committed, it stands referred, if not a railway, canal, or
divorce bill, to the "committee of selection;" if a railway
or canal bill, to the general committee on railway and canal
bills; and if a divorce bill, to the select committee on
divorce bills. On the 22nd June 1863, after the London
(City) Traffic Regulation Bill had been so committed, a
motion was made to suspend the Standing Order, and to
commit the bill to a committee of fifteen, ten to be nominated
by the house, and five by the committee of selection : but it
was not agreed to by the house. When a bill has been read Bills com-
a second time, by mistake, the order that the bill be now mistake.
mitted by
read a second time has been discharged, on a later day, and
another day appointed for the second reading. 1
After a bill has been rend a second time, an instruction may Instructions.
be given to the committee for its direction, if the house think
fit. On the 15th April 1872, an instruction was moved to
the committee on the Metage of Grain (Port of London)
Bill, to provide for the abolition of compulsory metage, and
of any tax or charge upon grain imported into London.
Exception was taken to an instruction which imposed an
absolute condition upon the decision of the committee. The
Speaker, however, stated that such an instruction was unusual,
but was quite within the competence of the house; and the
motion for the instruction was agreed to.? On the 24th
April 1883, an instruction was given to the committee on the
Metropolitan District Railway Bill that they have power to
insert a clause for pulling down certain ventilators sanctioned
by an act of a previous session.3
On the 7th May 1883, the committee on the Manchester
Ship Canal were empowered, by instruction, to inquire into a
portion of the proposed works, which had been omitted from
the bill, on account of non-compliance with the Standing
Orders.
| 127 Com. J. 135.
2 210 Hans. Deb). 3rd Ser. 1260.
3 Votes, p. 334; Hans. Deb. 24th
April.
P.
3 F
802
COMMITTEE OF SELECTION.
Committee of
selection.
committee on
Until 1883, the committee of selection consisted of the
chairman of the Standing Orders Committee, who is, ex officio,
chairman, and of five other members nominated by the house
at the commencement of every session, of whom three are a
quorum. But as the nomination of standing committees on
trade and law and courts of justice was confided to this com-
mittee in 1883, the number was enlarged by the addition of
Its proceed- two other members.1 This committee classifies all private
ings and
duties, bills not being railway, tramway or canal bills, nominates
the chairman and members of committees on such bills, and
arranges the time of their sitting, and the bills to be con-
sidered by them.
General The general committee on railway and canal bills generally
railway and consists of about eight members (of whom three are a quorum),
canal bills.
to be nominated at the commencement of the session by the
committee of selection. The committee of selection may,
from time to time, discharge members from attendance on
the general committee, and is to appoint the chairman. As
regards railway, tramway and canal bills, this committee has
functions similar to those of the committee of selection. It
forms such bills into groups, and appoints the chairman of
every committee from its own body,—being in fact a chair-
man's panel ; and may change the chairman from time to
time. The main object of its constitution is to ensure a com-
munication between the several chairmen, and uniformity in
the decisions of the committees.
The several duties of these two committees are distinctly
prescribed in the Standing Orders, and a general outline of
their proceedings is all that need be given in order to explain
the progress of a private bill. Printed copies of all private
bills, not being railway, tramway or canal bills, are laid by
the promoters before the committee of selection, and of rail-
way, tramway and canal bills before the general committee,
at the first meeting of such committees respectively; and
each committee forms into groups such bills as may be con-
1 27th February, 138 Com. J. 52.
"
CONSTITUTION OF COMMITTEES ON PRIVATE BILLS,
803
bills.
veniently submitted to the same committee; and names the
bill or bills which shall be taken into consideration on the
first day of the meeting of the committee.
The committee on every opposed railway, tramway and Constitution
of committees
canal bill, or group of such bills, consists of four members on private
and a referee, or four² members not locally or otherwise bills.
interested in the bill or bills in progress, the chairman being
appointed by the general committee, and the other three
members by the committee of selection. Committees on other
opposed private bills consist of a chairman, three members,
and a referee, or a chairman and three members, not locally
or otherwise interested, appointed by the committee of selec-
tion. Every unopposed private bill, not being a road bill, is Unopposed
referred, by the committee of selection, to the chairman of
the committee of ways and means, and one of the members
who had been ordered to prepare and bring in the bill, and
one other member not locally or otherwise interested, or a
referee. All road bills, whether opposed or unopposed, are Road bills.
referred to a committee consisting of a chairman and three
other members not locally or otherwise interested. The
general committee on railway and canal bills may, whenever
they think fit, refer an unopposed railway, tramway or canal
bill to the chairman of ways and means, and two other
members not locally or otherwise interested, or one member
and a referee to be nominated by the committee of selection.
No bill is considered as an opposed bill unless, not later than When cou-
ten clear days after the first reading, a petition has been pre- opposed.
sented against it, in which the petitioners pray to be heard by
themselves, their counsel, or agents, or unless the chairman
of ways and means reports to the house that any bill ought
to be so treated.
The committee of selection give each member at least seven Notice given
days' notice, by publication in the Votes, or otherwise, of the members.
sidered as
1 By order, 19th March 1868; S. O. 3 For bills originating in the Lords,
No. 137.
see infra, p. 877; and S, O. No. 109.
2 Reduced from fire, in 1864.
32
804
ATTEN)INCE OF MEMBERS COMPULSORY.
week in which he is to be in attendance to serve, if required,
as a member not locally or otherwise interested; and they
also give him sufficient notice of his appointment as the
member of a committee, and transmit to him a blank form of
declaration, which he is to return forth with, properly filled
up and signed. If he neglect to return the declaration in
due time, or do not send a sufficient excuse, the committee
of selection will report his name to the house, and he will be
ordered to attend the committee on the bill:or to attend the
house in his place, where, on offering sufficient excuses for his
neglect, he will be ordered to attend the committee.?
Members If the committee of selection be dissatisfied with his excuse,
refusing to
attend.
they will require him to serve upon a committee; when his
attendance will become obligatory, and if necessary will be
enforced by the house. On the 5th May 1845, a member
was reported absent from a group committee. He stated to
the house that a correspondence had taken place between the
committee of selection and himself, in which he had informed
them that he was already serving on two public committees,
and that his serving on the railway group committee was
incompatible with those duties. But the house ordered him
to attend the railway committee. In 1846, the committee
of selection, not being satisfied with the excuses of Mr. Smith
O'Brien, nominated him a member of a committee on a group
of railway bills. He was reported absent from that com-
mittee, and was ordered by the house to attend it on the
following day. He adhered, however, to his determination
not to attend the committee, and was committed to the cus-
tody of the serjeant-at-arms for his contempt.
One meinber The committee of selection have the power of discharging
substituted
any member or members of a committee, and substituting
Case of Mr.
Smith
O'Brien.
for another.
1 103 Com. J. 590. 627; 115 Ib. 138.
Sir E. Filmer, 1862; 117 Ib. 91; 120
Ib. 369 (no order made).
? Mr. Pope Hennessy, 1860; 115
Com. J. 94. 99. 106.
3 100 Com. J. 399; SO Hans. Deb.
3rd Ser. 166.
4 See supra, p. 233. Special Rep.
of committee of selection, 24th April
1846; 101 Com. J. 566. 582. 603 ;
8.3 Hans. Deb. 3rd Ser. 1071. 1152.
1292. 1300. 1351; 86 Ib. 966. 1198.
+
COMMITTEE OF SELECTION.
SOS
tween second
of committee
to committee
other members. On the 4th May 1869, two members were Members
added by tho
added by the house to the committee on a group of private house.
bills : but without the power of voting.?
An interval of six days is required to elapse between the Interval be-
second reading of every private bill and the first sitting of reading and
the committee, except in the case of name bills, naturalization committou.
bills, and estate bills (not relating to Crown, church, or cor-
poration property, &c.), when there are to be three clear days
between the second reading and the committee. Subject to First sitting
this general order, the committee of selection fix the time for fixed.
holding the first sitting of the committee on every private
bill; and the general committee fix the first sitting of the
committee on every railway, tramway and canal bill. In the
execution of their various duties, the committee of selection
have power to send for persons, papers, and records. .
In all these matters the committee of selection ordinarily Instructions
proceed in compliance with the Standing Orders : but where of selection.
any departure from the Standing Orders, or the usual practice
of the committee, is deemed advisable; or, where, for any
other reason, a particular mode of dealing with any bills is
desired by the house, special instructions have been given to
the committee of selection. For example, the house have
instructed the committee of selection to refer two or more bills
to the same committee ;3 or to form all the bills of a certain
class into one group;4 or to refer a bill to another committee;5
or to remove a bill from a group, and refer it to a separate
committee; 6 or to withdraw a bill from one group and place
it in another ;' or to refer private bills to a group of railway
bills ;8 or to refer a bill to the chairman of the committee on
Standing Orders, and two other members. Private bills
1 Until 1858, this power was ex-
ercised by the house itself, after the
first meeting of the committee.
8 Thames Embankment Bill, and
2 124 Com, J. 177.
Thames Embankment (Chelsea) Bill,
3 100 Ib. 95. 224 ; 101 Ib. 460;
106 Ib. 280 ; 124 Ib. 48. 63.
9 Rock Life Issurance Company
Bill, 1869,
5 100 Ib. 607.
6 105 Ib. 351.
7 Ib. 418.
1868.
4 104 Ib. 248.
806
COMMITTEE OF SELECTION.
connected with government works, Crown property, or other
public interests, are generally referred to a select committee
nominated partly by the house, and partly by the committee of
selection :1 and occasionally public bills have been committed
to a select committee to be nominated by the committee of
selection. Sometimes private bills affecting the metropolis,
or other important localities, have been referred to committees
exceptionally constituted. Thus, in 1868, all bills relating
to gas companies in the metropolis were referred to a select
committee of five members : and the committee of selection
was afterwards ordered to nominate five members to serve
upon the committee. A hybrid bill, the Metropolis Gas
Bill, was re-committed to that committee. In 1871, several
private bills promoted by the Metropolitan Board of Works,
were committed to a select committee of ten members, five to
be nominated by the house, and five by the committee of
selection. And other bills have been referred to committees
of eleven members, six, or seven, to be nominated by the house
and five, or four, by the committee of selection; or five by the
house and four, or two, by the committee of selection; or three
by the house and two by the committee of selection. But in
1872, a motion to commit the Metropolitan Street Improve-
ments Bill to a committee constituted in a similar manner was
negatived. And again, in 1873, a like motion was negatived
in the case of the Charing Cross and Victoria Embankment
Approach Bill. In 1882, a private bill was committed to the
2
i Fisher-lane(Greenwich)Improve-
ment Bill; 100 Com. J. 121. Spital-
fields New Street Bill; 101 Ib. 857.
Brighton Pavilion Bill, 1849; 104
Ib. 47.8. Holyhead Harbour Bill,
1850; 105 Ib. 634. Whichwood Forest
and Whittlebury Forest Bills, 1853;
108 Ib. 415. 495. Caledonian and
Crinan Canals Bill, 1857; 112 Ib.
294; 114 Ib. 265; 115 Ib. 378; 116
Ib. 95; 120 Ib. 99; 121 Ib. 106; 122
Ib. 65; 134 Ib. 202; 135 Ib. 175, &c.
Passing Tolls Bill, 13th Feb. 1857.
Metropolis Local Management Bill,
14th June 1860; 115 Com. J. 304.
3 123 Ib. 66. 74.
4 Ib. 126.
5 126 Ib. 59. 65. 126.
6 130 Ib. 216; 132 Ib. 83; Man-
chester Corporation Waterworks,
133 Ib. 62; Arklow Harbour Bill
and Public Offices Site Bill, 1882;
137 Ib. 121. 241.
9 127 Ib. 75.
6 128 Ib. 73.
!
CHAIRMAN OF WAYS AND MEANS.
807
select committee on a public bill; and several private bills for
electric lighting were referred to the select committee on the
Public Electric Lighting Bill;h and all private bills relating
to police or- sanitary regulations were referred to a com-
mittee of seven, appointed by the committee of selection.?
Committees on bills for confirming provisional orders are
ordered to be nominated by the committee of selection, as in
the case of a private bill. And instructions have been given
to the committee of selection to appoint the first meeting of
committees on an earlier day, 4 or forthwith;5 or not to fix
the sitting of committees upon certain classes of bills until a
later period ;6 or other special instructions relating to the
first meeting of committees.?
In 1873, pursuant to the recommendation of a joint com- Certain rail-
mittee of the previous session, the railway and canal bills way and canal
containing powers of transfer and amalgamation, were com-
to a joint
committee.
mitted to a committee of three members, to be joined by a
committee of three lords. In this case the Standing Orders
relating to the constitution of committees upon private bills
were suspended; and the ordinary rules of locus standi were
superseded by a general order, referring to the committee all
petitions against the bills, which prayed to be heard, up to
the date of the order. The Standing Order which gives a
second or casting vote was also suspended, in order that the
rule of the Lords,“ semper præsumitur pro negante," might be
adopted.
Before the sitting of the committee on the bill, some im- Chairman of
portant proceedings are necessary to be taken by the pro- means, rand
moters. It is the duty of the chairman of ways and means, counsel.
with the assistance of the counsel to Mr. Speaker, to examine
1 137 Com. J. 56, 165.
5 103 Ib. 700; 105 Ib. 513; 107
2 Ib. 98; 3 Clifford & Rickards,
6 105 Ib. 72. 84; 106 Ib. 67.
3 121 Ib. 340. 368; 122 Ib. 203. 7 107 Ib. 279. 300; 108 Ib. 539.
4 100 Ib. 730; 101 Ib. 475; 105 797; 109 Ib. 406; 111 Ib. 256; 113
Ib. 145; 107 Ib. 300; 114 Ib. 304;
115 Ib. 427; 120 Ib. 405; 121 Ib. 8 128 Ib. 179.
490; 122 Ib. 427.
Ib. 300.
132.
Ib. 276.
808
AMENDMENTS PRIOR TO COMMITTEE.
laid before
them.
chairman of
Lords' com-
mittees.
all private bills, whether opposed or unopposed, and to call
the attention of the house, and also, if he think fit, of the
chairman of the committee on every opposed private bill, to
all points which may appear to him to require it; and at any
period after a bill has been referred to a committee, he is at
liberty to report any special circumstances, or to inform the
house that any unopposed bill should be treated as an opposed
Copics of bill bill. To facilitate this examination, the agent is required to
lay copies of the original bill before the chairman and counsel,
not later than the day after the examiner has indorsed the
petition for the bill ;l and again, two clear days before the
day appointed for the consideration of the bill by a commit-
tee, the agent is required to lay before them copies of the
bill, as proposed to be submitted to the committee, and signed
And before by the agent. By the practice of the House of Lords, copies
of the bill, as originally introduced, and also as proposed to
be submitted to the committee on the bill, in the Commons,
are laid before the chairman of committees and his counsel;
and a simultaneous examination of the bill is consequently
proceeding in both houses.
Chairman to And by a Standing Order of 1858, the chairman of ways
and means is required, at the commencement of each session,
to seek a conference with the chairman of committees of the
House of Lords, for the purpose of determining in which
house the respective private bills should be first considered,
and to report such determination to the house.
Amendments are suggested or required by the authorities
before sitting
of committee. in both houses, which are either agreed to at once by the
promoters, or after discussion are insisted upon, varied, modi-
fied, or dispensed with. In the meantime the promoters
endeavour, by proposing amendments of their own, to con-
ciliate parties who are interested, and to avert opposition.
Supervision They are frequently in communication with public boards or
by public
departments. government departments, by whom amendments are also pro-
determine in
which house
bills are to
be first con-
sidered.
Amendments
| Practically, this is done as soon as the bills are deposited in the private
bill office.
!
COMMITTEES OX PRIVATE Bills.
809
posed; and who, again, are in communication with the chair-
man of ways and means and the chairman of the Lords?
committees. The Board of Trade assist in the revision of
railway bills, and suggest such amendments as they think
necessary for the protection of the public, or for the saving of
private rights. The secretary of state for the home department
formerly exercised a similar supervision over turnpike road
bills : but his functions were transferred, in 1871, to the local
government board. Where tidal lands or harbours, docks or
navigations are concerned, the Board of Trade, to whom the
former admiralty jurisdiction was transferred by the 25 & 26
Vict. c. 69, supervise the provisions of that class of bills.
Where there are naval dockyards in any harbours, ports,
or estuaries, the admiralty may reserve its jurisdiction, and
require protective clauses to be inserted; or may withhold the
consent of the Crown to the execution of the proposed work.
Where Crown property is affected, the commissioners of
woods and forests, who may give or withhold the consent of
the Crown, have the bill submitted to them, and insist upon
the insertion of protective clauses, or the omission of objec-
tionable provisions. The Board of Trade offer suggestions in
reference to bills affecting trade, patents, electric telegraphs,
harbours, shipping, and other matters connected with the
general business of that department. Bills for the improve-
ment and sewerage of towns receive consideration by the
local government board, by whom amendments are also sug-
gested. And in case a bill should affect the public revenue,
similar communications will be necessary with the Treasury,
and other revenue departments. And where the bill comes Preliminary
within the provisions of the Preliminary Inquiries Act,
2 Inquiries Act.
amendments are introduced in compliance with reports from
the Board of Trade.
When the amendments consequent upon these various Limits to such
| The powers of the Secretary of also infra, pp. 843. 848.
State in such cases were transferred, 2 14 & 15 Vict. c. 49; amended by
by the Local Government Act, 1871,
25 & 26 Vict. c. 69; and see supra,
to the local government board. See
amendments.
p. 770.
810
PROCEEDINGS OF COMMITTEES.
Notice of
meeting of
committee.
Then first
meeting post-
poned.
proceedings have been introduced, the printed bill, with all
the proposed amendments and clauses inserted, in manu-
script, is in a condition to be submitted to the committee :
but care must be taken, in preparing these amendments, that
they are within the order of leave, that they involve no
infraction of the Standing Orders, and are not excessive in
extent. Where it was proposed to leave out the greater
part of the clauses in the original bill, and to insert other
clauses, the chairman of ways and means submitted to the
house that the bill should be withdrawn.?
The clerk to the committee of selection, or to the general
committee, gives at least four clear days' notice to the clerks
in the private bill office, of the meeting of the committee on.
an opposed bill, and one clear day's notice in the case of an
unopposed or re-committed bill; and if it should be post-
poned, he gives immediate notice of such postponement. In
the case of bills not referred to the committee of selection or
general committee, the clerk to the committee to which the
bill is referred, or re-committed, is to give the like notices.
The agent is required to deposit in the private bill office
à filled-up bill signed by himself, as proposed to be sub-
mitted to the committee, two clear days before the meeting
of the committee; and a copy of the proposed amendments
is to be furnished by the promoters to such parties petitioning
against the bill as shall apply for it, one clear day before
the meeting of the committee. In 1845, certain committees
upon bills reported that no filled-up bill had been deposited
by the agent as required, and that the committee had there-
fore declined to proceed with the bill, and had instructed the
chairman to report the circumstance to the house. In these
cases the practice has been to revive the committees, and to
give them leave to sit and proceed on a certain day, provided
the filled-up bill shall have been duly deposited.
Filled-up
bill to be
deposited.
1 108 Com. J. 406.
2 Bristol Parochial Rates Bill,
1$45; 100 Com. J. 535.
3 100 Com. J. 261. 302.
4 Ib. 302. 304.
.
I'ROCEEDINGS OF COMMITTEES.
811
to absent
Each member of a committee on an opposed private bill, Declaration of
or group of such bills, before he is entitled to attend and committees.
vote, is required to sign a declaration that his constituents
have no local interest, and that he has no personal interest”
in the bill; "and that he will never vote on any question
which may arise without having duly heard and attended to
the evidence relating thereto." And no such committee can
proceed to business until this declaration has been signed by
each of the members. If a member who has signed this
declaration should subsequently discover that he has a direct
pecuniary interest in a bill, or in a company who are peti-
tioners against a bill, he will state the fact to the committee,
and will be discharged by the house, or by the committee of
selection, from further attendance.
When all the members have signed the declaration, the com- Quorum to
be always
mittee may not proceed if more than one of the members be present
absent, except by special leave of the house :* but no member Members not
of the committee may absent himself, except in case of sick- themselves.
ness, or by order of the house. If at any time more than Proceedings
suspended if
one of the members be absent, the chairman suspends the quorum not
present.
proceedings, and, if at the expiration of an hour, more than
one member be absent, the committee is adjourned to the
next day on which the house shall sit, when it meets at
the hour at which it would have sat, if there had been no
such adjournment. Members not present within one hour Members
absent re-
of the time of meeting, or absenting themselves, are reported ported.
to the house at its next sitting, when they are either directed
to attend at the next sitting of the committee, or, if their
absence has been occasioned by sickness, domestic affliction, Excused, &c.
or other sufficient cause, they are discharged from further
attendance. If after a committee has been formed, a quorum If quorum
cannot attend.
1 Sce Suppl. to Votes, 1864, p. 605; 524 ; Suppl. to Votes, 1853, p. 777;
Votes, 1862, p. 453.
1 June 1858, 113 Com. J. 200 ;
2 Suppl. to Votes, 1819, p. 168; Ib. 3 May 1860, 115 Ib. 218.
1850, p. 72 ; Ib. 1851, p. 312; 10 4 Amended S. O. 19th March 1868.
Com. J.386; 101 Ib. 904; 104 Ib. 357. 5 110 Com. J. 123. 294 ; 112 Ib.
3 105 Com. J. 225; 108 Ib. 51S. 156. 168 ; 122 Ib. 97. 150, &c.
812
REFEREES ON PRIVITE BILLS.
man absent.
1
Referees on
of members cannot attend, the chairman reports the circum-
stance to the house, when the members still remaining will
be enabled to proceed, or such orders will be made as the
When chair- house may deem necessary. If the chairman be absent, the
member next in rotation on the list of members, who is then
present, is to act as chairman: but in the case of a railway
and canal committee, only until the general committee shall
appoint another chairman, if they think fit.
In 1864, considerable changes were introduced into the
private bills.
procedure, by the constitution of referees on private bills,
consisting of the chairman of ways and means, and not less
than three other persons to be appointed by Mr. Speaker.
The referees were to form one or more courts, three at least
being required to constitute each court, a member in every
case being chairman, but receiving no salary. The practice
and procedure of these courts was prescribed by the chairman
of ways and means, by rules to be laid before the house :
but only one counsel was to be heard on either side unless
specially authorized by the referees. According to the
Their duties Standing Orders of 1864, the referees inquired into the
engineering details of all works proposed to be constructed,
the efficiency of such works and the sufficiency of the estimate;
and into other particulars in the case of waterworks and gas
bills. Every report made by them to the house, stood referred
to the committee on the bill, by whom no further evidence
was to be taken upon the matters reported upon by the
referees. If the referees reported the estimate to be in-
sufficient, or the engineering to be inefficient, the bill was
not to be proceeded with, unless the house should otherwise
order. The committee on a bill might also, subject to the
approval of the chairman of ways and means, refer any
question to the referees for their decision. Another im-
portant duty entrusted to the referees was the decision of
the right of petitioners to be heard before committees, to
which more particular reference will presently be made.
See Votes, 1857, p. 212.
in 1864.
!
REFEREES ON PRIVATE BILLS.
813
In 1865, it was ordered that if the promoters and opponents Changes in
1865, 1867,
of any bill agreed that all the questions at issue between and 1868.
them should be referred to the referees, they were empowered
to inquire into the whole subject matter of the bill, and to
report their opinion to the house; and if they reported that
the bill ought to be proceeded with, it was to be referred to
the committee on unopposed bills. In 1867, the committee
of selection were empowered to refer to the court of re-
ferees, instead of to a committee, every gas and water bill of
that session, except those relating to the metropolis, against
which a petition endorsed for hearing before the referees had
been presented, and the referees were to inquire into the
whole subject-matter of the bill, and to report it, with or
without amendments, to the house. And in the same year,
an Act was passed to enable the courts of referees to administer
oaths and award costs, in certain cases, in the same manner
as committees on private bills.? And, lastly, in 1868, in Referees
order to avoid the evils incident to the hearing of parties committees.
before two separate tribunals, first as to the engineering
merits of a scheme, and secondly as to its policy and public
utility,--the referees were associated with committees of the
house. And under the present Standing Orders the com-
mittee of selection refer every opposed private bill, or any
group of such bills, to a chairman and three members and a
referee, or a chairman and three members, not locally or
otherwise interested. From that time, the only separate
court of referees was that for determining the locus standi of
petitioners.3
At first, the referees appointed to committees were accus- Referees not
tomed to vote upon all questions, like members of the house;
but, in 1876, a select committee, to whom the consideration
of this practice was referred, reported an opinion adverse to
to vote.
| Instruction to committee of se-
lection, 1st March 1867; 122 Com.
J. 80.
2 30 & 31 Vict. c. 136.
3 See infra, p. 817.
814
PETITIONS AGAINST PRIVATE BILLS,
1
how pre-
sented.
to stand
its continuance, upon constitutional grounds; and accord-
ingly, on the 27th March 1876, the house ordered :-
“That it be an instruction to committees on private bills that
referees appointed to such committees, may take part in all the pro-
ceedings thereof, but without the power of voting."
Petitions for All petitions in favour of or against or otherwise relating
and against
private bills, to private bills, or bills to confirm provisional orders or cer-
tificates (except petitions for additional provision), are now
presented to the house, not in the usual way of presenting
other petitions, but by depositing them in the private bill
office, where they may be deposited by a member, party, or
Petitions
agent. Any petitioner may withdraw his petition, or his
withdrawn,
opposition, on a requisition to that effect being deposited in
the private bill office, signed by himself or by the agent who
Petitions deposited the petition. Every petition against a private bill
against bill
which has been deposited not later than ten clear days after
referred.
the first reading, and, in the case of a provisional order bill,
not later than seven clear days after the examiner shall have
given notice of the day on which the bill will be examined,
or which shall have been otherwise deposited, in accordance
with the Standing Orders, and in which the petitioners pray
to be heard by themselves, their counsel, or agents, stands
referred to the committee on the bill, without any distinct
reference from the house. And, subject to the rules and
orders of the house, such petitioners are to be heard upon
their petition accordingly, if they think fit, and counsel
heard in favour of the bill against such petition. Where
petitioners.
petitioners have died after the deposit of their petitions, their
sons, or their agents or executors, have petitioned to be heard,
and, on the report of the Standing Orders Committee have
been permitted to appear and be heard upon the petitions of
the deceased petitioners, or to deposit a new petition after
the time limited.
Death of
3
1 131 Com. J. 120 ; and see report
and evidence of the committee.
2 Lincolnshire Estuary Bill, 1851;
106 Coin. J. 226. 233.
3 Duke of Portland (Ardrossan
and Glasgow Railway Bill); 109
PETITIONS AGAINST PRIVATE BILLS.
815
The agent for each petition must be prepared with a cer- Appearances
on petitions.
tificate from the private bill office of his having entered an
appearance upon the petition. This document is delivered
to the committee clerk; and, unless it be produced, the peti-
tion will be entered in the minutes as not appeared upon.
On the 23rd May 1848, a petition was presented, praying
that a petitioner against a private bill be allowed to be heard
upon his petition, notwithstanding he neglected to present
a certificate from the private bill office of his having entered
an appearance upon his petition, previous to the commence-
ment of business by the committee. The petition was re-
ferred to the committee on the bill, without any further in-
struction. A solicitor, who does not appear upon his own
petition, cannot be heard before the referees, unless he has
signed the roll of parliamentary agents.? Nor can a peti-
tioner be heard otherwise than by himself, his counsel or par-
liamentary agent.
Petitioners will not be heard before the committee unless Rules as
to hearing
their petition be prepared and signed in strict conformity petitioners.
with the rules and orders of the house, and have been depo-
sited within the time limited, except where the petitioners
complain of any matter which may have arisen in committee,
or of any proposed additional provision, or of the amend-
ments as proposed in the filled-up bill. Part of a petition
having been omitted by mistake, and afterwards added, it
was ruled that such part was not referred to the committee."
3
Com. J. 206; Suppl. to Votes, 1854,
p. 606. Metropolitan Inner Circle
Railway Bill, 1878; 133 Com. J.
112.
1 103 Com. J. 552; and see Suppl.
to Votes, 1848, p. 395.
2 Birkenhead, Chester, &c. Rail-
way Bill, 1873; 1 Clifford & Rickards,
Locus Standi Reports, 3; Combe Hill
Navigation Bill, 1876 ; Ib. 216.
determined that when Sunday was
the last day for depositing a petition,
its deposit on Monday was not a
compliance with the order, and re-
fused to hear the petitioners. But
in later cases, it has been held that
when Sunday is the last day for de-
positing a petition, the deposit may
be made on the Monday. See 2
Clifford & Stephens, Locus Standi
Reports, 4.
5 83 Hans. Deb. 3rd Ser. 487.
3 Ib. 8.
4 In the Heysham Pier Company
(Railways) Bill, 1866, the committee
816
PETITIONS GIVST PRIVATE BILLS,
Petitions de
posited after
time.
1
Special
reference of
petitions.
If a petition be presented after the time limited, the only
mode by which the petitioners can obtain a hearing, is by
depositing a petition, praying that the Standing Orders be
dispensed with in their case, and that they may be heard
by the committee. The petition will stand referred to the
Standing Orders Committee; and if the petitioners be able
to show any special circumstances which entitle them to
indulgence, and, particularly, that they have not been guilty
of laches, the Standing Orders will be dispensed with.
On the 17th May 1849, a petition from the Attorney-
General against a private bill was brought up, and read;
and it being stated that it was essential to the public interests
that it should be referred to the committee on the bill,
the Standing Order requiring all such petitions to be de-
posited in the private bill office, was read, and suspended,
and an instruction given to the committee to entertain the
petition. In 1864, special instructions were given to the
committee on a group of metropolitan railway bills, to hear
the promoters of certain schemes not proceeded with in that
session, against particular railway bills.3
In 1869, all the metropolitan street tramways bills were
referred to the same committee, and it was ordered that all
petitioners against any of the said bills be heard, without
reference to any question of locus standi. And in some
other cases general powers to hear petitioners against bills,
generally hybrid bills,—or bills relating to the metropolis,
have been given to committees, which, without expressly
alluding to locus standi, have practically left such questions
to the discretion of the committee. In such cases, it has
been held that the jurisdiction of the referees is superseded
1 108 Com. J. 284. 670; Votes,
1854, p. 211. 329, &c.
2 104 Ib. 302.
3 119 Ib. 167. 190.
4 124 Ib. 63.
5 126 Ib. 59. 65. 93; 127 Ib. 312.
Metropolis Gas Companies Bill, 1875;
130 Ib. 230; Manchester Corporation
Water Bill, 1878; 133 Ib. 62; Solent
Navigation Bill, 1881; 136 Ib. 466;
Arklow Harbour Bill and Public
Offices Site Bill, 1982; 137 Ib. 121.
241.
LOCUS STANDI.
817
favour.
by the order of the house. In other cases such powers have
been given, subject to the rules, orders, and proceedings of
the house.2
No petition will be considered which does not distinctly Grounds of
objection to
specify the grounds on which the petitioners object to any be specified.
of the provisions of the bill. The petitioners can only be
heard on the grounds so stated; and if not specified with
sufficient accuracy, the committee may direct a more specific
statement to be given, in writing, but limited to the grounds
of objection which had been inaccurately specified.
Petitions in favour of private bills may influence the Petitions in
decision of the house, upon the second reading, but are not
referred to the committee, as the petitioners are not parties
to the bill. On one side are the promoters, and on the other
petitioners against it: but petitioners in favour of the bill can
claim no hearing before the committee, except as witnesses.
It has been intimated that counsel may allude to the presen-
tation of such petitions in argument, but may not examine
witnesses in respect of their contents or signatures.3
Such being the general rules relating to petitions, it is now Cases of locus
necessary to enter upon an important change, recently intro- court of
duced, in the mode of adjudicating upon formal objections to referees.
petitions, and the rights of petitioners to be heard. Prior to
1864, all such questions were heard and determined by the
committee on the bill. Considerable inconvenience and ex-
pense were caused by this practice, as counsel were retained,
and witnesses kept in attendance, on behalf of petitioners who
were adjudged, at the eleventh hour, to have no claim to be
heard. With a view to obviate these objections, and at the
same time to introduce greater uniformity and certainty into
the decisions upon these important questions, it was ordered,
in 1864, that the referees should decide upon all petitions, as
to the right of the petitioners to be heard, without prejudice,
standi before
1 Commercial Gas Bill, 1875; 1
Clifford & Rickards, 150.
2 128 Com. J. 87. 176.
3 Minutes of Group 2, 17th April
1861.
P.
3 G
818
LOCUS STANDI.
however, to the power of the committee on the bill to decide
upon any question as to such rights arising incidentally in
the course of their proceedings. To give effect to this order,
a court of referees was specially constituted, under the presi-
dency of the chairman of ways and means, for the adjudica-
tion of all questions of locus standi. This court, following
generally the principles and precedents to be found in the
decisions of committees, have reduced to a system, as far as
possible, the rules affecting the rights of petitioners against
private bills, and provisional orders or certificates. So many
exceptional circumstances naturally arise in each case, that
nothing further will be here attempted than a review of the
leading principles by which their decisions have been guided.
For more detailed information, the reader must consult the
clear and accurate reports of the cases to which frequent re-
ferences are here given.
By one of the rules made by the chairman of ways and
means, under the Standing Order, the promoters of a bill
who intend to object to the right of petitioners to be heard
against it, are to give notice of such intention, and of the
grounds of their objection, to the clerk to the referees, and to
the agents for the petitioners, not later than the eighth day
after the deposit of the petition : but the referees may allow
such notices to be given, under special circumstances, after
the time limited. Such notices may also be withdrawn by
notice in writing to the clerk to the referees. The time
allowed for serving such notices of objection is exclusive of
the day on which the petition was deposited. It has been
ruled that the service of such notices by post is not sufficient.3
When due service has been proved, if no one appears in
support of the petition, the locus standi of the petitioners will
be disallowed.4
Rules for the
hearing of
such cases.
I S. O. No. 87-90.
2 London, Chatham, and Dover,
&c. Railways Bill, 1866. Smethurst
on Locus Standi, 6, and App. 97; 2
Clifford and Stephens, 2.
3 Smethurst on Locus Standi, 7, and
App. 98.
4 Ib. 8; App. 91.
LOCUS STANDI.
819
heard.
Such being the arrangements for hearing questions of locus Counsel
staniti, on the day appointed for hearing any case before the
court of referees, the counsel for the promoters gives in a
statement of objections to the right of petitioners to be heard
against the preamble, or clauses of the bill, as the case may
be; the counsel for the petitioners supports their claim; and
the counsel for the promoters is heard in reply,—the speeches
being thus limited to one on each side.
For the purposes of argument on questions of locus standi, Allegations
the allegations of a petition are ordinarily admitted : but
where the right of petitioners to be heard depends upon
special facts which are disputed, they may be called upon to
admitted.
1
prove them.
Some petitioners pray to be heard against the preamble Petitions
and clauses of the bill; some against certain clauses only; preamble.
against the
and others pray for the insertion of protective clauses, or for
compensation for damage which will arise under the bill.
Unless petitioners pray to be heard against the preamble,
they will not be entitled to be heard, nor to cross-examine
any of the witnesses of the promoters upon the general case,
nor otherwise to appear in the proceedings of the committee
until the preamble has been disposed of. Nor will a general
prayer against the preamble entitle a petitioner to be heard
against it, if his interest be merely affected by certain clauses
of the bill. The proper time for urging objections to parties
being heard against the preamble, is when their counsel or
agent first rises to put a question to a witness, or to address
any observations to the committee. This is also the proper
time for objecting that petitioners are not entitled to be
heard on any other grounds. Such questions, however, are
now rarely argued before committees; as, since 1864, the
referees have decided upon the rights of petitioners to be
heard, without prejudice, however, to the power of the com-
2
1 Smethurst, 12; App. 93; 1 Clif- Suppl. to Votes, 1843, p. 131;
ford and Stephens, App. 41.
1850, p. 45. 199, &c.
3 G 2
820
LOCUS STANDI.
Landowners.
mittee to decide upon any question as to such rights arising
incidentally in the course of their proceedings.
The owners of land proposed to be compulsorily taken by
a bill, have always been allowed a right to be heard against
the preamble and clauses of the bill, and also the lessees and
occupiers of lands and houses, on whom notices are required
to be served by the Standing Orders of both houses. And a
railway company whose property is proposed to be taken has
the same rights of locus standi as a private landowner. The
owner of minerals proposed to be compulsorily taken is in the
same position as a landowner, whose land is to be taken, and
is for all purposes of locus standi a landowner. The lord of
a manor has established his claim to be heard against a bill
affecting his manorial rights. The owners of river waters,
springs, or wells, injuriously affected by bills, are entitled to
be heard. So also mill-owners, the working of whose mills
will be affected by works proposed to be constructed above or
below them.5 Owners and occupiers of land in reasonable
proximity to a canal, proposed to be stopped up; have been
allowed a locus standi. Petitioners are said to have no locus
standi before a committee, when their property or interests
are not directly and specially affected by the bill, or when,
for other reasons, they are not entitled to oppose it. It has
been held, for example, that petitioners praying for a revision
of the tolls chargeable by railway companies, are not entitled
to be heard, unless the question of tolls be involved in the
bill.
1 Caledonian Railway Bill, 1873.
1 Clifford and Rickards, 7 ; Ib. 19;
3 Ib. 136. 201.
2 Great Western Railway Bill,
1876 ; Ib. 221 ; 2 Ib. 130; 2 Clifford
and Stephens, 256; 1 Clifford and
Rickards, 19; 3 Ib. 136. 201.
3 Bute Docks Bill, 1866; Sme-
thurst, App. 95; Bradford Water
Bill, 1869; 1 Clifford and Stephens,
39; 2 Ib. 89.
4 Smethurst, 22-26. 31. Southport
Water Bill, 1867; 1 Clifford and
Stephens, 13; 2 Clifford and Rick-
ards, 212.
5 Birkenhead, Chester, &c. Rail-
way Bill, 1873; 1 Clifford and
Stephens, 1; 2 Ib. 50. 53; 1 Clifford
and Rickards, 3. West Ham Local
Board Bill, 1881 ; 3 Clifford and
Rickards, 111, See also S. O. No. 14.
6 i Clifford and Rickards, 216 ; 3
Ib. 58.
7 Lancashire and Yorkshire Rail-
LOCUS STANDI.
821
1
But shipowners, traders, and others injuriously affected Traders.
by the tolls, rates, or other provisions of a bill, have, with
some exceptions, been allowed a hearing, provided they
petition as a class, and not as individuals. The referees,
however, guarded themselves from deciding that, in no case,
could an individual trader be heard ;2 and have since given
an extension to the locus standi of traders. In the case of
the Great Western and Bristol and Exeter Railway Com-
panies Bill, 1867, which, while authorizing an extensive com-
bination of railway companies in western and south-western
parts of England, did not make any alteration of tolls or rates,
certain traders of Exeter, about fifty in number, were allowed
a hearing, on the ground that their interests would be in-
juriously affected by the traffic arrangements proposed by the
bill: but the corporation of Exeter, alleging similar objec-
tions, were refused a locis standi, as not representing the
trading interests of that city so properly as the traders them-
selves, who had petitioned. The traders of Salisbury were
also allowed to be heard against this same bill : but the cor-
porations of Salisbury, Southampton, Glastonbury, and Shep-
ton-Mallet failed to establish their right. In the case of the
North-Eastern Railway (Additional Powers) Bill, 1874, a
single firm of traders were allowed to be heard, as the injury
they would sustain from the bill appeared to be sufficiently
substantial to support their claim. In the same year, traders
and other inhabitants of Plymouth were also heard against
the South Devon Railway Bill.5 In 1875, a single firm of
merchants, who appeared to be substantial representatives of
way Bill, 1852, Suppl. to Votes,
p. 150. Great Western, Shrewsbury
and Birmingham, &c. Bill; Ib. p. 306.
308. 314 ; South Yorkshire Railway,
&c. Group 11 A, 1862; Great Western
and West Midland Railways Amal-
gamation, Group 13, 1863. South
Eastern Railway Bill, 1881; 3 Clif-
ford and Rickards, 97.
1 Smethurst, 37-47; Fawcett, 38-
45.
2 Smethurst, 129; 1 Clifford and
Stephens, 49-51.
3 MS. Minutes of Referees ; 1
Clifford and Stephens, 55. See also
case of Midland and Glasgow, and
South Western Railways (Amalga-
mation) Bill, 1867: Ibid.
4 1 Clifford and Rickards, 107.
5 Ib. 112,
822
LOCUS STANDI.
the trade of Newry, were admitted to be heard against the
Carlingford Lough provisional order. And similar cases
were so decided, in 1876, in the Caledonian Railway (Grange-
mouth Harbour) Bill ;2 and, in 1877, in the London and
North-Western, Whitehaven, &c. Bill. But while traders
have been admitted, an incorporated chamber of commerce
has been refused a hearing against a navigation bill, as they
did not allege that, as a corporation, they were injuriously
affected, and had no interest distinct from that of other
traders who were petitioners. The Mining Association of
Great Britain, however, have been heard against a railway
bill, on the ground that they were composed exclusively of
one class of traders, and so far differed from a chamber of
commerce, whose members are traders of all classes, and are
not necessarily traders at all.5
It has been held that the owner of land on a line proposed
to be abandoned, and of which the compulsory powers have
expired, has no locus standi. But an owner showing that
he has sustained special damage, has been allowed a limited
locus standi." Lessees of minerals beneath a line proposed to
be abandoned have been refused a locus standi. The owners
of land authorized by a former Act to be taken, and contracted
for with the company, have been refused a hearing, on the
ground that they were merely creditors :' but, on the other
hand, the referees have held that the owner of certain premises,
who, having received notice, had engaged other premises, and
Qualified
interests.
1 1 Clifford and Rickards, 180.
2 Ib. 210.
3 2 Ib. 34.
4 Tyne Improvement Bill, 1876;
1 Clifford and Rickards, 268.
5 Great Western Railway Bill,
1877; 2 Ib. 18, 303.
6 Eastern Counties Railway; Suppl.
to Votes, 1852, p. 84; London,
Brighton, and South Coast Railway
Bill, 1868; 1 Clifford and Stephens,
27. Midland Railway Bill, 1877 ; 2
Clifford and Rickards, 40; 3 Ib. 78.
7 Caledonian Railway Pill, 1869;
i Clifford and Stephens, 28; 2 Clifford
and Rickards, 100, 231.
e 1 Clifford and Stephens, 29.
9 Llanelly Railway and Docks
Bill, 1866; Smethurst, App. 110 ;
Dublin Trunk Connecting Railway
Bill, 1867; 1 Clifford and Stephens,
App. 37; Great Western Railway
(Additional Powers) Bill, 1866; 1
Ib. 31.
LOCUS STANDI.
823
had applied to the Court of Queen's Bench for a mandamus
to compel the company to complete its contract, had a right
to be heard against the clause of a bill which extended the
time for completing a railway. So also a landowner, with
whom a company had contracted to restore land not required
for the railway, within a certain time, has been allowed a
hearing against a clause extending the time for completing
the line, so as to enable him to seek the insertion of a special
saving clause for his contract. And where a company
applied for an extension of time for purchasing land and
completing works, and it was shown that nothing had been
done for the execution of the line, and that the company were
under financial embarrassments, landowners on the line have
been allowed a hearing 2 Landowners whose land was
proposed to be taken by a bill, but which was already under
compulsory powers of purchase by another company, though
not actually taken, have been held to have a locus standi, as
they are not yet divested of their rights as owners. But it
has been decided that a landowner, the price of whose land
has been fixed by a railway company, and the purchase-
money lodged in court, had no locus standi, the legal interest
in the land having passed from him to the company.
Where land has been shown on the deposited plans, as contingent
intended to be taken, but the amended bill did not propose to damage.
interfere with it, or where other clauses affecting the interests
of petitioners have been withdrawn, committees have held
that the petitioners were not entitled to be heard. In the
case of a bill for extension of time for purchase of land and
completion of works, it has been held that the owners of
1
2
Metropolitan Railway Bill, 1867;
1 Clifford and Stephens, 32.
Drayton Junction Railway Bill;
Wrexham, Mold, and Connah's Quay
Railway Bill., 1867; Ib. 28. 34.
3 1 Clifford and Rickards, 207.
4 Ib. 220.
5 Cork and Waterford Railway
Bill, Suppl. to Votes, 1854, p. 340;
Colne Valley and Halstead Rail-
way, and Witney Railway Bills,
Group 5, 1859; Wimbledon and
Dorking Railway Bill, Group 3,
1860; Teign Valley Railway Bill,
Group 4, 1863.
824
LOCUS STANDI.
1
certain lands which had been excluded from the operation of
the bill, as amended, had no locus standi against the bill ::
but in another case, it has been held that a landowner, whose
lands were proposed to be taken in the bill, as read a second
time, was entitled to be heard, though his lands were omitted
from the bill as submitted to the committee.2 And the
referees, not having the amended bills before them, have
supported the right of landowners to be heard, where their
lands are proposed to be taken by the bill as deposited.3
Petitioners whose property was not taken, but who appre-
hended injury, by reason of the contiguity of a railway,
have been refused a hearing ;4 and this rule has been strictly
adhered to, in numerous cases, by the referees. In some
exceptional cases, however, of special danger, disturbance, or
injury, petitioners so affected have been allowed a hearing.
Thus, owners and occupiers of houses have been heard who
complained that their property would be injured and shaken
by the proposed line, though untouched by it, and have
obtained protective clauses. It has, however, been laid down
as a settled practice that a landowner, or inhabitant, cannot
claim a locus standi on the ground that proposed works will
destroy the beauty or salubrity of a place. But the owners
of glass works, who alleged that their business would be
irretrievably injured by proposed works, have been heard,
their case being sufficiently exceptional to justify a departure
from the general principle of previous decisions,-viz., that
landowners can only be heard when their land is actually
taken or interfered with. The trustees of a hospital who
1 Severn Valley Railway Bill, 1856;
Minutes, vol. i. p. 114.
2 Lancaster and Carlisle Railway
Bill, 1858; Minutes, vol. i. p. 114.
3 Smethurst, 19; 1 Clifford and
Stephens, 47.
4 Suppl. to Votes, 1847, i. 323.
5 Smethurst, 26-28; 101, 102, 117;
Crystal Palace and South London
Junction Railway Bill, 1869; 1 Clif-
ford and Stephens, 40. 1 Clifford
and Rickards, 80; 2 Ib. 38.
6 1 Clifford and Stephens, 40-44 ;
2 Clifford and Rickards, 75.
7 East Gloucestershire Railway
Bill, 1862 ; 2 Clifford and Stephens,
189 ; 1 Clifford and Rickards, 46.
8 i Clifford and Rickards, 203.
9 South Eastern Railway Bill,
1876; 1 Clifford and Rickards, 258.
LOCUS STANDI.
825
alleged that, although no land was to be taken by a railway,
great injury would arise to the inmates from the noise and
vibration of passing trains, have failed to establish a right to
be heard. The trustees of a church, who alleged that the
services would be interfered with by the proximity of a rail-
way, were not allowed a hearing. But in numerous cases,
petitioners complaining of interference with their access to
their premises, or to the sea, or other waterside, have been
allowed a locus standi, although their property was not
directly affected. The displacement of population has not
been a sufficient ground of opposition on the part of school
boards and local authorities.
Petitioners whose property was not affected by the bill, but Exceptional
by the main line sanctioned by a former Act, have failed cases.
to establish a right to be heard. Where no fresh powers
affecting the property of a petitioner are sought, his locus
standi has been disallowed. The owners of mineral property
have been refused a locus standi as landowners :7 but have
been heard against the provisions of bills relating to tolls.
It has been held that petitioners using a canal for the pur-
poses of traffic were not entitled to be heard against a bill
for the purchase of that canal by a railway company. A
hearing against the preamble has been refused to landowners
where the promoters have agreed to insert a proviso in the
bill that their land should not be taken.10 A landowner will
not be heard if no power is taken in the bill for the purchase
of his land otherwise than by agreement. The owner of an
8
N
1 North British Railway Bill, 1877;
2 Clifford and Rickards, 54.
2 Ib. 249.
3 Ib. 140. 197; 3 Ib. 60. 70. 226.
4 3 Ib. 182. 185. 223.
5 Suppl. to Votes, 1847, ii. 1070.
1113. Skipton and Kettlewell Rail-
way Bill, 1881; 3 Clifford and Rick-
ards, 96.
Metropolitan Railway Bill, 1879;
2 Clifford and Rickards, 207.
? Suppl. to Votes, 1853, p. 713.
8 North Staffordshire Railway Bill,
1865; Smethurst, App. 120 ; 2 Clif-
ford and Rickards, 34.
9 Suppl. to Votes, 1847, ii. p.
1207 ; 1850, p. 147.
10 Caledonian Railway Bill, Group
17, 1860.
11 Aldrington, Hove and Brighton
Gas Bill, 1866; Smethurst, App. 107.
6
826
LOCUS STANDI.
equitable interest in land has been heard, where the legal
estate was vested in trustees. It has been held that peti-
tioners affected by an underpinning clause of an underground
railway, although their property was outside the limits of
deviation, were entitled to be heard.2 The referees will de-
termine, according to the circumstances of each case, whether
petitioners have such an interest as to entitle them to be
heard; or to what extent, and with what restrictions, they
may claim a hearing; and such circumstances will necessarily
vary according to the special relations of the petitioners, and
the nature and objects of the bill itself.3
Bills opposed
A petitioner who has not opposed a bill in the other house
in both houses.
is not precluded from being heard upon his petition in the
House of Commons; 4 but the locus standi of petitioners has
been disallowed, where their opposition in the other house
has been withdrawn, and they have consented to protective
clauses. So, if the parties agree to abide by the decision of
the committee, in one house, they will not be heard in the
other; but it is otherwise if they have not so agreed.
Petitioners, having tendered a clause in the House of Lords,
which was rejected by the committee, and then accepted two
other clauses, with alterations suggested by them, were held
not to be precluded from a hearing before the committee of
the Commons, as the clauses they had accepted were of minor
importance, and had only been acquiesced in conditionally
upon the acceptance of their own clause, which had been
rejected. Certain petitioners, who, having failed in opposing
the preamble of a bill in the House of Lords, afterwards
6
i Radstock and Bath Railway
Bill, 1865; Smethurst, App. 17.
2 Metropolitan and Metropolitan
District Railway Companies Bill,
1879; 2 Clifford and Rickards, 193.
3 Suppl. to Votes, 1850, p. 45. 99.
175. 181 ; Ib. 1852, p. 301.314 ; Ib.
1853, p. 959. 1008, &c. ; Ib. 1854,
p. 316. 435.487; and see Locus Standi
cases by Smethurst, Fawcett, Clifford
& Stephens, and Clifford & Rickards.
4 Thames Subway Bill, 1866; Sme-
thurst, App. 162.
5 Ib. 95; 2 Clifford and Rickards,
27.
6 Whitehaven, Cleator, &c. Rail-
way Bill, 1875; 1 Clifford and
Rickards, 200.
7 Waterford and Wexford Rail-
way Bill; Ib. 275.
!
LOCUS STANDI.
827
accepted protective clauses, have not been allowed to renew
their opposition in the Commons.
In the case of the Devon and Dorset Railway Bill, 1853, Abstraction of
certain petitions were specially referred to the committee, with water, &c.
an instruction to hear the parties, who otherwise had no locus
standi against the bill: 2 but the committee did not admit the
petitioners to a general locus standi against the preamble of
the bill, but restricted them within the scope of the allega-
tions of their petition. It has been ruled that a petitioner
whose petition alleges that his land is taken, and who prays
to be heard against the preamble and clauses of the bill, may
be heard against the bill generally, though his petition
contains no allegation that the railway is unnecessary, or
reference to the preamble except in the prayer of the petition.
A landowner, whose land was to be taken, has been held to
have a general locus standi against an improvement bill, for
widening streets, erecting slaughterhouses, &c. And, it has
further been held that a landowner has a general locus standi
against an omnibus railway bill, however limited his interest.
It has been held that the abstraction of underground water
by a waterworks bill, does not give parties, whose water
supply may be affected, a right to be heard. But where
scientific evidence has been adduced to prove that the under-
ground water flowed in a defined channel, the petitioners have
been heard. A locus standi has been allowed where a conduit
was proposed to be taken through part of the property of the
6
1 Local Government Provisional
Order (Lower Thames Valley) Bill,
1877 ; 2 Clifford and Rickards, 27.
2 108 Com. J. 572.
3 Suppl. to Votes, 1853, p. 1000.
4 Resolution of General Committee
of Railway and Canal Bills, 1861.
Burntisland Direct Mineral Railway
Bill, 1876 ; 1 Clifford and Rickards,
207.
6 Liverpool Improvement Bill,
1867; 1 Clifford and Stephens, 19;
App. 49. Belfast Improvement Bill,
1878; 2 Ib. 69.
6 London and North Western Rail-
way Bill, 1868; 1 Clifford and
Stephens, App. 62, 63; Caledonian
Railway Bill, 1870; 2 Ib. 37.
7 Southport Water Bill, 1867; Ib.
20 ; App. 13; Birkenhead Improve-
ment Bill, 1867; Ib. 22; Windsor
and Eton Water Bill, 1868; Ib.
8 London and South Western
Spring Water Bill, 1882; 3 Clifford
and Rickards, 179.
828
LOCUS STANDI.
Locus standi
against amal-
gamation
bills.
petitioner. The owners of surface waters have maintained
their right to be heard as landowners.?
Numerous questions have arisen in regard to the locus
standi of railway companies, in opposing bills for the amal-
gamation of other companies; and such locus standi has
been admitted or refused, according to the degree in which
the interests of the opposing companies have been affected.
In the case of the York, Newcastle and Berwick (Newcastle
and Carlisle Railway, and Maryport and Carlisle Railway
Amalgamation) Bills, the Lancaster and Carlisle and the
Caledonian Railway Companies were refused a locus standi
against the preambles of the bills, but were admitted to be
heard against the clauses. In the case of the York, New-
castle and Berwick, York and North Midland, and Leeds
Northern Railways Amalgamation Bill, the locus standi of the
Hull and Selby Railway Company was objected to, and, after
argument, admitted. In the case of the Aberdeen and
Scottish Midland Junction Railways Amalgamation Bill the
locus standi of the Dundee and Arbroath Railway Company
was admitted, and that of the Scottish Midland Railway
Company refused. And in other more recent cases before
committees and the referees, some companies have been
admitted to be heard against amalgamation bills, and others
refused.
7
i Bradford Water Bill, 1868; 3
Clifford and Rickards, 23.
2 Ib. 24.
3 Suppl. to Votes, 1849, p. 64.
4 Ib. 1854, p. 609.
5 1856, Minutes, p. 67; Suppl. to
Votes, p. 73.
6 The London and North Western,
Midland, Great Northern, and Man-
chester, Sheffield, and Lincolnshire
Junction Railway Companies were
heard against the Lancashire and
Yorkshire and East Lancashire Amal-
gamation Bill, 1858; Minutes of
Committees, i. 244, 245. The Great
Western Railway Company were
heard against the Chester and Holy-
head Railway Amalgamation Bill,
1858 ; Ib. i. 282; Caledonian and
Scottish North Eastern Companies
Bill, 1866; Smethurst, App. 163;
Fawcett, 25 et seq.; 2 Clifford and
Rickards, 172, 243; 3 Ib. 143. 145.
Manchester, Sheffield, and Lin-
colnshire Railway Company against
the Chester and Holyhead Railway
Amalgamation Bill, 1858; Minutes of
Committees, i. 282 ; Edinburgh and
Glasgow Railway Companies Bill,
1865 ; and Brecon and Merthyr
Tydfil Railway Amalgamation Bill,
1865; Smethurst, App. 136. 138;
LOCT'S STANDI.
829
2
In the case of the Edinburgh and Glasgow, and Stirling Special injury
to be shown.
and Dunfermline Railways Amalgamation Bill, the Stirling
and Dunfermline Railway Company were not admitted to be
heard, on the ground that an agreement had been entered
into between the companies for the settlement of all disputes,
and that the bill had been amended in conformity with that
agreement, and signed by the chairman of the two companies.
But a locus standi has been allowed to parties holding an
agreement with the promoters, in order to secure themselves
against interference with such agreement.
And where it
appeared that the promoters were debarred by an agreement
from executing the works proposed to be authorized by the
bill, the committee decided that the bill could not be further
proceeded with. The general ground upon which petitioners
are admitted to oppose amalgamation bills is, that the amal-
gamation itself will injuriously affect them, and not that they
can show any grievance resulting from past legislation.
It had formerly been held, as a parliamentary rule, that Competition.
competition did not confer a locus standi : but in course of
time this rule was considerably relaxed, and numerous excep-
tions were, in practice, admitted. The proprietors of an
existing railway had no right to be heard upon their petition
against another line, on the ground that the profits of their
undertaking would be diminished: but if it were proposed Landowners.
to take the least portion of land belonging to the company,
their locus standi immediately became unquestionable. The
4
Fawcett, 26; Midland and Glasgow
and South Western Railway Com-
panies Bill, 1867; 1 Clifford and
Stephens, 55 ; App. 72; 2 Clifford
and Rickards, 36-103. 299 ; 3 Ib. 57,
58. 88. 107.
1 Minutes of Committees, 1858,
Minutes of Group 3, 1861, p. 90.
North British Railway (General
Powers) Bill, 1881; Group 12, Mi-
nutes of Proceedings, p. 2.
4 Gloucester and Berkeley Canal
Bill, 1874 ; 1 Clifford and Rickards,
77. See also London and South
Western, Midland and Somerset and
Dorset Railway Bill; Ib. 240-247;
3 Ib. 58. 97.
5 But see Monmouthshire Railway
and Canal Bill; Suppl. to Votes,
1852, p. 283, 284.
P. 385.
2 Oxford, Worcester, and Wolver-
hampton, and Newport and Aber-
gavenny, &c. Railways Amalgama-
tion Bill; Minutes of Group 7, 1860.
3 Devon Central Railways Bill;
830
LOCUS STANDI.
result of this rule was, that most of the great parliamentary
contests between railway companies were conducted in the
names of landowners. Each company obtained the signa-
tures of landowners to petitions against the rival scheme;
instructed counsel to appear upon them; and defrayed all
the costs of the nominal petitioners. A variation of the
practice, however, was introduced as regards competing
schemes referred to the same committee; and, in 1848, the
rule was further relaxed in favour of the proprietors of
canals or navigations. An existing water or gas company
was held to have no locus standi against a new company
proposing to supply the same district, unless their property
were taken or interfered with ; but in later cases this rule
was not enforced. At length, in 1853, the house agreed to
a Standing Order, by which it was competent to the com-
mittee on any private bill, and since 1864, to the referees, to
admit petitioners to be heard against the bill, on the ground
of competition, if they shall think fit; and in compliance with
this order, committees and referees have since admitted, or
refused,4 a hearing to petitioners, according to their opinion
of the extent and directness of the competition, in respect of
which their claim to be heard was founded.5 In cases where
1 103 Com. J. 309; and see Suppl. 93. 121. 134. 172. 240; 3 Ib. 25.
to Votes, 1850, pp. 147, 148.
126. 228; 2 Ib. 177. 316 (railways
2 Great Central Gas Consumers' and tramways); 3 Ib. 109. 114 (gas);
Company Bill, 1850; Minutes. 2 Ib. 251 (competition between gas
3 Dublin and Meath Railway Bill, companies and a corporation as to
1858; Minutes of Committees, i. 447; electric lighting).
and see Ib. ii. 300 (one water com- 4 Minutes of Committees, 1856;
pany heard against another, on the vol. i. p. 59; 1857, vol. i. p. 165;
ground of competition). See cases 1858, vol. i. p. 268-387; and see
decided by referees collected, Sme- Smethurst, 50. 54, &c.; Fawcett, 23
thurst, 37-70; App. 133-167; and ct seq. In 1858, a proposal for limit-
Fawcett on the Court of Referees, 24- ing this order was withdrawn. North
31 ; also cases of Brecon and Merthyr and South Western Junction Railway
Railway, and Rhymney Railway Bill, 1871 ; 2 Clifford and Stephens,
Bills, 1867; 1 Clifford and Stephens, 116. Alcester and Stratford-upon-
105. 121; Batley Corporation Water Avon Railway Bill, 1871; Ib. 128; 3
Bill, 1871; 2 Ib. 97; Birmingham Clifford and Rickards, 167. 177. 321.
and Lichfield Railway Bill, 1872 ; 5 1 Clifford and Stephens, 60-83 ;
Ib. 223; 2 Clifford and Rickards, 1 Clifford and Rickards, 73; 3 Ib. 169.
1
t
LOCUS STANDI.
831
powers.
it was only proposed to improve an existing competition a
locus standi has not been allowed. 1
A railway company having running powers over a line has Running
been allowed to be heard against the concession of the same
powers to another company, but this precedent has not been
followed by the referees, who have not allowed parties to
be heard against the granting of running powers and other
facilities, or powers of amalgamation, to other companies.3
In the case of the North Staffordshire Railway Bill, 1867,
however, the Lancashire and Yorkshire Railway Company,
which had running powers over the line of the former com-
pany, established their right to be heard on the ground that
the bill conveyed greater powers to the London and North
Western Railway Company, almost amounting to amalga-
mation, to the injury of the petitioners as competitors. So
also, in 1874, the Midland Railway Company were allowed
to be heard against certain clauses in the London and North
Western Railway (Wales) Bill, giving running and other
powers over a branch of the Monmouthshire Railway;' and,
in 1875, the London and North Western Railway Company
were heard against the Metropolitan Railway Bill, which
provided for the continuous use and joint management of
several lines, for purposes of through traffic, in competition
with the line of the petitioners.
A steamboat company has been refused a hearing against Steamboats.
the preamble of a bill empowering a railway company to
raise further capital for the maintenance of steamboats, the
railway company being already proprietors of steamers, under
the authority of a former Act."
6
1 2 Clifford and Rickards, 133.
279; 3 Ib. 225.
2 Garston and Liverpool Railway
Bill, Group 13, 1861; resolution of
General Committee on Railway and
Canal Bills, 1861.
3 Smethurst, 56 et seq. ; 1 Clifford
and Rickards, 172 ; 3 Ib. 57. 88. 89.
4 1 Clifford and Stephens, 102.
5 i Clifford and Rickards, 96.
6 Ib. 173.
7 London, Chatham, and Dover
Railway Bill, 1861; Minutes, i. 42.
832
LOCUS STANDI.
Tramways.
Railway companies have been refused a locus standi, on the
ground of competition, against tramway bills. By Stand-
ing Order, No. 135, owners and occupiers of houses inju-
riously affected are entitled to be heard; and the claims of
frontagers to a hearing have been allowed on various
grounds.2
> 3
In the case of railway and canal bills, the rights of peti-
tioners have been further extended by the following Standing
Orders :
In what cases • Where a railway bill contains provisions for taking or using any
railway com- part of the lands, railway, stations, or accommodations of another
panies to be
heard.
company, or for running engines or carriages upon or across the same,
or for granting other facilities, such company shall be entitled to be
heard upon their petition against the preamble and clauses of such
bill.'
Municipal “ It shall be competent to the referees on private bills to admit
anthimitibit petitioners, being the municipal or other authority having the local
management of the metropolis, or of any town, or the inhabitants of
towns, &c. any town or district alleged to be injuriously affected by a bill, to be
heard against such bill, if they shall think fit."
Local au-
“The municipal or other local authority of any town or district,
thorities to be alleging in their petition that such town or district may be injuriously
lighting and affected by the provisions of any bill relating to the lighting or water
water bills. supply thereof, or the raising of capital for any such purpose, shall be
entitled to be heard against such bill.”
ants of
And this latter order has superseded several previous decisions
of the referees; and, in short, removes such cases from their
jurisdiction.
Petitioners claiming to be heard under the latter Standing
Order must distinctly allege that the town or district will be
injuriously affected, and must be prepared to show some
primâ facie ground for such allegation. In some cases cor-
1 2 Clifford and Stephens, 142;
1 Clifford and Rickards, 13.
2 3 Clifford and Rickards, 73. 103.
105. 185. 224. 242.
3 See leading case of Caledonian
Railway (Additional Powers) Bill,
1872 ; 2 Clifford and Stephens, 256.
4 See Dudley Gas Bill, 1881 ; 3
Clifford and Rickards, 48; Fylde
Water Bill; Ib. 54. Birmingham
Corporation Bill, 1883; MS. Minutes
of Referees.
5 Smethurst, 71-75; Fawcett, 31-
38 ; 2 Clifford and Rickards, 115.
LOCUS STANDI.
833
porations have been heard. as representing the whole body
of merchants, traders, workmen, and others, residing in a
borough. In the case of petitions from the inhabitants of
a town, it must also be shown that they fairly represent the
general body of inhabitants.2 Numerous decisions of the
referees arising out of the application of this Standing Order
have established the general grounds upon which such bodies
are entitled to be heard: but the cases have varied so much
in their circumstances, that no analysis of them would be
adequate for the practical guidance of parties. It has been
held that when a corporation has petitioned against a bill,
and also the inhabitants of the borough, that the latter were
represented by the former, and were not entitled to be heard.4
In many cases consumers of gas and water have been Consumers of
gas and water.
admitted to oppose gas and water bills affecting their area
of supply. But where the petitioners were only affected in
common with other ratepayers, they have failed to establish
their claim.6 Residents in a new district, proposed to be
supplied with gas, have no locus standi, as they are not com-
pelled to use the gas which will be supplied, nor restrained
from manufacturing their own.? Petitioners have not been
heard against bills for raising additional capital only.8
It is provided by a Standing Order, that
"The owner or occupier of any house, shop or warehouse, in any Petitions
street through which it is proposed to construct a tramway, and who against tram-
alleges in any petition against a private bill or provisional order, that way bills.
the construction or use of the tramway proposed to be authorised
thereby will injuriously affect him in the use or enjoyment of his
premises, or in the conduct of his trade or business, shall be entitled
to be heard on such allegations before any select committee to which
1 Gun Barrel Proof Bill, 1868 ;
Clifford and Stephens, 57.
2 Smethurst, 75, 76; Fawcett, 32;
1 Clifford and Stephens, 85 ct seq. ;
Clifford and Rickards, 78.
:3 See 1 Clifford and Stephens, 84–
102 ; 1 Clifford and Rickards, 22. 30.
4 King's Lynn Gas Bill; 2 Clifford
and Stephens, 5.
5 1 Clifford and Rickards, 16. 59.
124. 135. 142, 143. 214; 2 Ib. 10; 3
Ib. 40. 68. 118.
6 Ib. 144.
î Ib. 78. 267.
§ 3 IV. 54. 53.
P.
3 11
834
SHAREHOLDERS.
such private bill, or the bill relating to such provisional order, is
referred.”
1
Shareholders
or other
persons re-
presented.
Cases cited.
And it has been ruled that this Standing Order is not
necessarily confined to an obstruction in front of a petitioner's
house ; but that he is at liberty to show how the proposed
tramway would injuriously affect his interests.
A ground of objection frequently taken to the locus standi
of petitioners is, that they are shareholders or members of
some corporate body by whom the bill is promoted, and
that being legally bound by the acts of the majority, they
are precluded from being heard as individual petitioners.
This objection was argued at great length in the case of the
Birmingham and Oxford Junction Railway Bill, in 1847,
when the committee decided that shareholders in the com-
pany were not entitled to be heard. Again, in the London,
Brighton and South Coast Railway Bill, in 1848,3 it was
determined “that the general rule, that in the case of a
joint-stock company the decision of the majority is binding
on the minority, ought to be observed, and that the minority
of the shareholders in this case had no locus standi before
the committee.” In the Queensferry Passage Bill, in 1848,
it was decided that individual trustees of the Queensferry
passage could not be heard against the bill, promoted by
the general body of the trustees. In 1857, it was held that
the vestry of St. George's, Hanover Square, was not entitled
to be heard against the Finsbury Park Bill, on the ground
that the vestry was represented in the Metropolitan Board of
Works, by whom that bill was promoted. And in 1858,
merchants, shipowners, and dock ratepayers of Liverpool
were not admitted to be heard against the Mersey Docks and
Harbour (New Works) Bill, on the ground that they formed
1 King's Cross and City Tramways
Bill, 1878; 2 Clifford and Rickards,
106. See also Ib. 139. 296; 3 Ib.
105. 224. 242.
2 Mr. Goulburn, chairman; Suppl.
to Votes, 7th May 1847.
3 Sir R. Peel, chairman ; Suppl. to
Votes, 1848, p. 309.
4 Minutes of Committee, 14th April
1848.
5 Minutes of Committee.
!
SHAREHOLDERS.
830
part of a body represented by the trustees, who were the
promoters of the bill." In 1865, the vestry of Bermondsey
were refused a hearing against the Whitechapel and Holborn
Improvement Bill, as being represented in the Metropolitan
Board of Works, the promoters of the bill. In 1871, the
referees determined in the case of the Ilkley Local Board
Bill, that certain petitioners being owners of property and
ratepayers could not be heard against the bill, being repre-
sented by the local board, by whom the bill was promoted.3
In the same year, in the case of the Bristol Port and Channel
Dock Bill, promoted, among others, by the corporation of
Bristol, it was held that such petitioners only as were owners
of property in Bristol, and not municipal electors, were
entitled to a hearing But in 1872, in the case of the South
London Gas Bill, it was decided that vestries, district boards,
and individual consumers, as well as the Metropolitan Board
of Works, were entitled to be heard. In the same year it
was ruled in the case of the Metropolitan Street Improvements
Bill, promoted by the Metropolitan Board of Works, that
vestries, public bodies, and ratepayers, represented at the
board, although their interests were divided, had no locus
standi.
In 1876, it was held, in the case of the Chesterfield Special
interests.
Borough Improvement and Extension Bill, that owners and
occupiers outside the borough, who would become liable to
new taxation under the bill, were entitled to be heard; that
ratepayers within the borough, being represented by the
corporation who promoted the bill, could not be heard against
the common seal; but that certain petitioning owners, who
were not ratepayers, having no voice in the election of the
corporate body, were entitled to a locus standi. And, in the
6
i Minutes of Committees, 1858,
4 lb. 121.
vol. ii. p. 117.
5 Ib. 220.
2 Smethurst, App. 187.
& Ib. 265.
3 2 Clifford and Stephens, 97.
i Clifford and Rickards, 211.
7
3 2
836
1)ISSENTING SILAREHOLDERS.
was
Huddersfield Water and Improvement Bill, 1876, it was
decided, that owners within municipal limits, when a new
liability is to be imposed upon them, are not represented
by the corporation, nor need they petition as a class. Each
owner has a grievance affecting his individual property, and
consequently a distinct locus standi. In the Newcastle-
under-Lyme Extension and Improvement Bill, 1877, it
ruled, that the interests of the inhabitants of a parish, to be
merged in the borough, were distinct from those of the
guardians, and that owners also were entitled to be heard.?
In 1850, the committees on the Shrewsbury and Hereford,
the Shropshire Union, &c., and the Waterford and Kilkenny
Railway Bills,3 determined that dissentient shareholders
could not be heard. On the other hand, in the Manchester
Cemetery Bill, in 1848, objection was taken to the locus
standi of certain petitioners, being trustees and proprietors
of shares in the cemetery, on the ground that they were a
minority of a corporate body, in respect of interest in which
body they opposed the bill; but the committee determined
that they were entitled to be heard. In the South Yorkshire
Railway and River Dunn Bill, 1852, the committee held
that a shareholder should be heard against the clauses, but
not against the preamble.' In the North British Railway
Bill, 1853, shareholders in the company were heard against
the bill. With very few exceptions, however, it had been
the rule, in the Commons, not to hear dissentient share-
holders, unless they had any interest different from that of
the general body of shareholders. And in 1853, the house
declared by a Standing Order that “where a bill is promoted
by an incorporated company, shareholders of such company
shall not be heard against such bill, unless their interests, as
1 i Clifford and Rickards, 230; 2
Ib. 149.
2 2 Ib. 47.
3 Suppl. to Votes, 1850, pp. 41. 43.
75. 182.
Minutes of Committee, 11. 136.
5 Suppl. to Votes, 1852, p. 298.
6 Ib. 1853, p. 716.
i Ib. 1847, ii. pp. 1110. 1254; 1848,
pp. 309. 398; 1850, pp. 72. 75; 1851,
p. 111. 1155. 300. 371 ; 1852, pp. 298;
18:53, p. 1013.
PREFERENCE SITAREHOLDERS,
837
affected thereby, shall be distinct from the general interests
of such company.” 1
In 1867, the referees decided that the Great Eastern
Railway Company were not entitled to be heard against the
Tendring Hundred Railway Bill, on the ground that they
were holders of shares in a portion of the company's capital,
and that they failed to establish an interest distinct from
that of the general body of the shareholders ; ? and later
decisions of the referees have been founded, in each case,
upon the nature of the interest of the petitioners, and
the manner in which it is affected by the provisions of
the bill.3
By another Standing Order,
“ In case any proprietor, shareholder or member of or in any com- Dissentient
shareholders.
pany, association or co-partnership, shall by himself, or any person
authorised to act for him in that behalf, have dissented at any meeting
called in pursuance of Standing Orders 62 to 66, or at any meeting
called in pursuance of any similar Standing Order of the House of
Lords, such proprietor, shareholder or member shall be permitted to
be heard by the committee on the bill, on a petition presented to the
house, such petition having been duly deposited in the private bill
office."
+
For many years a different rule prevailed in the Lords; Rule in the
Lords.
and shareholders who had dissented from the bill at the
meeting called in pursuance of the Wharncliffe order, were
expressly permitted to be heard, and were even heard without
such dissent. In the case of preference shareholders, the Preference
shareholders.
Commons had been obliged to depart from their usual
practice. The proprietor of preference shares has a special
interest, often opposed to that of the general body of share-
holders, and justice requires that he should not be excluded
1 Com. S. O. No. 131 ; and sce
Minutes of Morayshire Railway Bill,
6th June 1860; 3 Clifford and Rick-
ards, 77.
2 1 Clifford and Stephens, 8.
3 Ib. 103-110; 1 Clifford and
Rickards, 43. 51. 89. 102; 2 lb. 101.
273; 3 Ib. 91.
4 S. O. No. 132.
5 Sce infra, p. 881.
6 Caledonian Railway, &c. Bill,
by order, 17th July 1850.
i South Eastern (3 and 4 shares),
1850 ; Suppl. to Votes, pp. 165. 195.
South Deron Railway Bill; Ib. p. 23.
Shropshire Union, &c. Bill; Ib. pp.
72, 73.
York, Newcastle, and Ber-
wick Bill ; Ib. p. 102,
838
INFORMALITIES IN PETITIONS.
from a hearing:Yet, when it has appeared to the committee
that preference shareholders had not such a special interest
in the bill as to entitle them to be heard, their claim has not
been admitted. The holders of " creditors' stock” have been
“
refused a hearing against a railway bill; and the committee
declined to reconsider their decision. It has been held that
shareholders who dissented at a Wharncliffe meeting were
not entitled to be heard, as such meeting, though held, had
been unnecessary under the Standing Orders. Preference
shareholders have been allowed a limited locus standi against
the capital clauses of the bill, and against so much of the
preamble as related thereto.5
Informalities Objection is often taken that a petition is informal, ac-
in petitions.
cording to the rules and orders of the house applicable to
petitions generally, or as specially applicable to petitions
Common seal. against private bills. In the Glasgow Gas Bill, 1843, ani
objection was taken, that the seal attached to a petition was
not the corporate seal of a company; and when this was
proved to be the case, all the evidence in support of the
petition was ordered to be expunged. On the 7th May
1847, a motion was made that it be an instruction to the
committee on the Great Northern Railway Bill, that they do
entertain a petition, signed by the chairman of a company,
as the petition of that company, although it does not bear
the corporate seal of the company, but was negatived. In
the Worcester New Gas Bill, 1848, a petition was not re-
ceived, as not having been legally sanctioned by the com-
missioners, whose petition it purported to be. And in 1866,
the referees refused a hearing to the commissioners of Bray
against the Bray Improvement Bill, as the meeting at which
their petition had been signed was proved not to have been
1 London and North Western Rail- 4 Redditch Railway (Capital, &c.)
way (New Lines) Bill, 1875; 1 Clifford Bill, Group 16, 1862.
and Rickards, 167; 2 Ib. 169; 3 5 Caledonian Railway Bill, 1872;
2 Clifford and Stephens, 258.
2 Suppl. to Votes, 1855, p. 259. 6 See supra, p. 610.
3 Eastern Union Railway Bill;
7 Minutes of Committee..
Suppl. to Votes, 1850, i. p. 55.
6 102 Com. J. 490.
Minutes, p. 63.
Ib. 77.
1
INFORMALITIES IN PETITIONS.
839
duly convened. In 1857, in the East Somerset Railway
Bill, the committee refused to entertain a petition signed
by one trustee of a turnpike road, the Act requiring three
signatures; 2 and in 1866, the referees applied the same rule
to petitioners against the Thames and Severn Navigation
Bill, and the Birmingham Waterworks Bill. In the case
of the Caledonian Railway (Edinburgh Stations) Bill, 1866,
the referees refused a hearing to petitioners who had sub-
scribed the petition for other parties. But in the case of
the Sligo Borough Improvement Bill, the referees allowed
the Sligo town and harbour commissioners to be heard, on a
petition signed by the major part of a committee appointed
by the governing body to direct the proceedings in reference
to the opposition to the bill. Petitioners have failed to
secure a hearing before a committee, on account of forged
signatures to their petition. But the Court of Referees will
not inquire into the genuineness of signatures.?
In 1874, a petition signed by the chairman of the Neath Authority to
sign.
Harbour Commissioners was held not to be the petition of the
commissioners, as it contained no allegation of his authority
to sign on their behalf.S But the petition of a committee of
poor law guardians, acting as a rural sanitary authority,
signed by their chairman, under a resolution of the sanitary
authority, has been admitted, as it appeared that the
guardians, in that capacity, had no common seal.' In 1877,
a petition signed by several Derbyshire magistrates, who had
been appointed a committee by the quarter sessions, for that
purpose, was not entertained, as it contained no allegation
that they had been authorised, either by the quarter sessions
or the committee, to sign it.10 The directors of a shipping
company have been heard, upon their petition, without any
1 Smethurst, App. 174.
2 Minutes of Committees, 1857, i.
p. 141.
Bill, 1879.
71 Clifford and Rickards, 1199;
2 Ib. 321; 3 Ib. 96.
8 1 Clifford and Rickards, 117.
Uppingham Water Bill, 1876;
1 Clifford and Rickards, 272,
10 2. Ib. 5.
3 Smethurst, App. 97.
4 Ib. 89.
i MS. Minutes of Referees.
• Glasgow Municipal Extension
9
840
WIIEN PETITIONS VOT SPECIFIC,
tions not
special authority from their company. A landowner has
been allowed a hearing upon a petition signed by his agent,
who had a general power of attorney for the administration
of his estates. But evidence of authority to sign without a
power of attorney is insufficient.3
When peti-
It may also be objected that petitions do not distinctly
specific. specify the grounds on which the petitioners object to the
bill. An objection of this nature may be fatal to the peti-
tion; as, for example, if the committee, or referees, determine
that the grounds there stated do not amount to an objection
to the preamble of the bill.4 Petitioners have been heard
against the preamble of a bill, though the word preamble
was not in the prayer of their petition, their intention being
clearly shown by the context.5 And the committee may
also direct a more specific statement of objections to be given
in, limited to the grounds of objection which had been
inaccurately stated, or may refuse such an indulgence to the
petitioners. In some cases, the referees have left the re-
levancy and sufficiency of allegations in a petition for the
determination of the committee. In 1858, the office of
works and public buildings was refused a hearing against the
Victoria Station and Pimlico Railway Bill, as the board had
not deposited a petition against the bill, by which the pro-
moters might have been made acquainted with the grounds
Names with- of opposition.s Where two out of three petitioners had
drawn from
petitions. withdrawn their opposition to a bill, and the agent for the
petition did not appear, but the remaining petitioner ap-
peared before the committee by another agent, whom he had
appointed, it was held that he was entitled to be heard.
Petitions On the 16th February 1865, it was ordered that on every
against bills
to be printed. 1 2 Clifford and Rickards, 25.
5 Minutes of Committees, 1856, i.
2 Glasgow, Bothwell, &c. Rail-
way Bill, 1874; 1 Clifford and 6 Devon and Dorset Railway Bill;
Rickards, 72.
Suppl. to Votes, 1853, p. 1001.
3 3 Ib. 155.
? 1 Clifford and Rickards, 47, 48.
Suppl. to Votes, 1848, p. 322; 8 Minutes of Committees, 1858, i.
1849, p. 173; 1851, pp. 103. 108, 109,
110. Minutes of Comınittees, 1857, 9 Ib. 1856, i. p. 50.
ii. p. 707 ; Ib. 1858, i. p. 142.
9
P. 65.
4
130.
.
?
ORDER IN WHICH BILLS CONSIDEREI).
841
1
private bill to be considered by a committee of this house, all
petitions which stand referred to such committee, if not
previously withdrawn, be printed at the expense of the peti-
tioners, and copies of such petitions, together with a copy of
the bill to be considered, be delivered to each member of the
committee on the morning of its first sitting.'
If no parties appear on the petitions against an opposed When op-
bill, or having appeared, withdraw their opposition before be treated as
posed bills to
the evidence of the promoters is commenced, the committee unopposed.
is required to refer the bill back, with a statement of the
facts, to the committee of selection, or, if a railway and
canal bill, to the general committee, who deal with it as an
unopposed bill. And this order has been held to apply
where it was decided, before the evidence of the promoters
was commenced, that the petitioner had no right to appear.?
And, on the other hand, if the chairman of ways and means When unop-
informs the house that any unopposed bill should, in his posed bills to
opinion, be treated as opposed, it is again referred to the opposed.
committee of selection, or the general committee, and dealt
with accordingly: or an instruction is given to the com-
mittee on the group to sit and proceed with the bill. In
1855, the Westminster Land Company Bill was at once
added to a group of private bills, by order of the house,
without the intervention of the committee of selection; and
an instruction was given to the committee on the bill to sit
and proceed forth with.
The committee on each group of bills is to take first into Order in
which bills are
consideration the bill or bills named by the committee of considered
selection, or by the general committee; and is to appoint the by the com-
day for considering each of the other bills, and on which
they will require the parties promoting and opposing to enter
appearances ; and the committee-clerk is to give at least two
clear days' notice of such appointment, in the private bill
4
.
1 120 Com. J. 69.
2 Minutes of Committees, 1857,
vol. i. 143.
3 125 Com. J. 72; 126 Ib. 218.
1 110 Ib. 279.
842
PROVISIONS TO BE INSERTED.
bills to be laid
before mem-
bers.
office; and in case the committee shall postpone the con-
sideration of any bill, notice is given of the day to which it
is postponed. Before this arrangement was made, in 1849,
all the parties concerned in the various bills, comprised in the
same group, were required to enter appearances on the first
sitting of the committee; and although the bills were wholly
unconnected in regard to locality or interest, the parties pro-
moting and opposing one bill were detained, at enormous
expense, while other bills were under consideration. It is
the usual practice of committees to consider the several bills
in a group, according to the order in which they were read a
second time; and this practice will not be departed from,
unless sufficient grounds be shown for a different arrange-
Copies of the ment of the business. Copies of the bill as proposed to be
submitted to the committee, and signed by the agent, are to
be laid before each member, at the first meeting of the
committee.
Questions All questions before committees on private bills are decided
decided by
majority.
by a majority of voices, including the voice of the chairman;
and whenever the voices are equal, the chairman has a second
or casting vote.
It is the duty of every committee to take care that the
several provisions required by the Standing Orders of the
house, to be inserted in private bills, are included in them
wherever they are applicable. Some of these provisions
relate to private bills generally, and others to particular
classes of bills. Of the former are clauses for the safe
custody of monies, and audit of accounts in bills authorising
the levy of fees, tolls, or other rate or charge; and for
defining the level of roads, and otherwise protecting them,
when altered by the construction of any public work.
Committees The constitution of committees on unopposed bills has
on unopposed
already been described: but a short reference to their functions
2
Provisions to
be inserted in
bills.
bills.
1 Minutes of Committees, 1856,
vol. ii. p. 137; Ib. 1857, vol. ii.
2 See Warrington and Altrincham
Railway Bill; Suppl. to Votes, 1853,
P. 634,
p. 789.
l
COMMITTEES ON PRIVATE BILLS.
843
and rules.
to be de-
will be convenient in this place, to avoid any interruption
in stating such orders of the house as apply equally to both Special orders
classes of committees. The chairman of ways and means, and
one of the two other members of the committee, or a referee,
are a quorum; and unless the chairman be of opinion that
the bill referred to them should be treated as an opposed bill,
they proceed to consider the preamble, and all the provisions
of the bill, and 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, as already stated, with the special
duty of examining, with the assistance of Mr. Speaker
counsel, every private bill, whether opposed or unopposed.
A copy of the bill, signed by the agent, as proposed to be Filled-up bin
submitted to the committee, is ordered to be laid before each livered.
member of the committee at their first meeting: and similar
copies have already been laid before the chairman and Mr.
Speaker's counsel two clear days before such meeting. In
some cases the alterations proposed in bills have been so
material, that committees have reported that it was desirable
that the bills should be withdrawn, and that the parties
should be permitted to introduce new bills, embracing the
proposed amendments.2
As there are no opponents of the bill before the committee, Duties of the
the promoters have only to prove the preamble, to the satis- committee.
faction of the committee, by the production of the necessary
evidence, and by such explanations as may be required of
them; and to satisfy the chairman, and the other members,
of the propriety of the several provisions; 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. If it should appear
1 For the other duties of chairman
of ways and means, see supra, pp. 807
Bills, and Manchester Corporation
Waterworks Bill, 1848; 98 Com. J.
120; 99 Ib. 411; see also supra,
et scq.
2 Wigan and Walsall Improvement
P. 809.
844
COMMITTEES ON PRIVATE BILLS.
1
ments re-
ferred.
that the bill, from its character or other circumstances, ought
to be treated as an opposed bill by a more public tribunal,
the chairman reports his opinion to the house, and the bill is
referred to the committee of selection, or general committee,
who deal with the bill accordingly.
Orders relat- There are various orders of the house which are binding
ing to all com-
mittees on upon all committees on private bills, and others which relate
bills, whether only to particular classes or descriptions of bills. It is pro-
unopposed. posed to state these in their order; and afterwards to describe
the ordinary forms observed in the hearing of parties, their
counsel or agents, the settlement of the clauses, and the
making of amendments.
Reports from All reports made under the authority of any public depart-
public depart-
ment upon a private bill, on being laid before the house,
stand referred to the committee on the bill; and whenever
any recommendation has been made in such a report, the
committee are required to notice it in their report, and to
state their reasons for dissenting, should such recommenda-
tion not be agreed to. And orders have been made, directing
the Board of Trade to present a report upon the railway and
canal bills of the session; and upon the bills for harbours,
docks, and navigations;2 and to report upon certain railway
bills only.3 Latterly, a copy of the report of the Board of
Trade, upon all the railway, canal, tramway and water bills
of the session, has been ordered to be laid before the house.
Other docu- On the 10th May 1858, a report and correspondence with
the office of works and public buildings, were referred to the
committee on the Victoria Station and Pimlico Railway Bill;
and the committee reported that they had made provision,
requiring that the approval of the first commissioner of works
should be given to a certain portion of the work. On the
4
ments re-
ferred.
1 Waterford and Limerick Rail-
way Bill, 1850 ; South Eastern Rail-
way (3 and 4 shares) Bill; 105 Com. J.
133. 281. Chard Railway Bill; 108
Ib. 587; King's Lynn Gas Bill,
1870 ; South Essex Reclamation Bill,
1871.
2 112 Com. J. 128; 117 Ib. 42.
3 122 Ib. 23. 102. 110; 16th May
1873.
4 132 Com. J. 4, &c.
5 113 Ib. 161. 166.
COMMITTEES ON PRIVATE BILLS.
845
19th June 1854, the Lords referred an admiralty report to
the committee on the York, Newcastle, and Berwick Railway
Bill, with an instruction to hear the Board of Admiralty,
by their counsel and witnesses, in reference to the bill. The
minutes of evidence taken before committees on bills, in former
sessions, are frequently referred to committees on bills.?
Sometimes also the inquiries of committees on private bills Instructions
to committees
have been extended, by instructions, to subjects of a more
general and enlarged character. For example, in 1866, an
instruction was given to the committee on the London (City)
Corporation Gas Bill, to inquire into the Metropolis Gas Act,
1860. In the same year, an instruction was given to the
committee on the London (City) Traffic Regulation Bill, to
inquire into the best means of regulating the traffic of the
metropolis;4 and in 1867, the committee on the East London
Water (Thames Supply) Bill, were instructed to inquire into
the Metropolis Water Act, 1852. In 1878, an instruction
was given to the committee on the Manchester Corporation
Water Bill, to consider the requirements of other populations
between Manchester and the Lake district.
The names of the members attending each committee are Names of
entered by the committee clerk in the minutes; and when a
division takes place, the clerk takes down the names of the minutes.
members, distinguishing on which side of the question they
respectively vote; and such lists are to be given in, with the
report, to the house.
The committee are precluded from examining into the What Stand-
compliance with such Standing Orders as are directed to be be inquired
ing Orders to
proved before the examiners, unless by special order from into.
the house.? Such an order is only given when the house, on
the report of the Standing Orders Committee, allow parties
6
members en-
tered in
I S6 Lords' J. 256.
2 112 Com. J. 156. 173. 205. 235;
122 Ib. 221.
3 121 Ib. 136.
4 Ib. 106.
5 122 Ib. 65.
6 133 Ib. 68.
i See Minutes of Committee on Bel.
fast and West of Ireland Railway
Bill; Suppl. to Votes, 1854, p. 506;
Belfast and County Down Railway
Bill; IV. p. 581.
846
RAILWAY BILLS.
affidavit.
as
to proceed with their bill, on complying with certain
Standing Orders which they had previously neglected. In
ordinary cases it has been customary for the committee on
the bill to inquire whether the orders of the house have
been complied with, instead of referring that matter to the
examiner: but when any special inquiry in reference to the
Standing Orders has been necessary, the matter has been
referred to the examiner instead of to the committee; 1 and
his certificate has been produced before the committee.?
Proof of com- Compliance with such orders may be proved before the
pliance by
committee, by affidavits sworn in the same manner
affidavits produced before the examiners. The committee
may also admit proof of the consents of parties concerned
in interest in any private bill, by affidavits sworn in the same
manner, or by the certificate in writing of such parties, whose
signatures are to be proved by one or more witnesses, unless
the committee require further evidence.
In all bills for carrying on any work by means of a com-
pelling pay-
ment of sub- pany, commissioners or trustees, provision is required to be
scription.
made for compelling subscribers to make payment of the
sums severally subscribed by them.
Railway bills. Railway bills have been the most important class of private
bills in modern times, and there are numerous Standing
Orders applicable to them, to which the particular attention
of the committee on every railway bill, and of the promoters
and opponents of such bills, should be directed. By these
Standing Orders, 1, particular matters for the investigation
of the committee are pointed out; 2, certain fixed principles
of legislation are laid down, from which the committee,
except in special cases, will not be justified in departing; and
3, particular clauses are required to be inserted.
Special re- 1. Whether the bill be opposed or unopposed, the pro-
ports.
moters, in proving the preamble of a railway bill, must be
Clause com-
i Dublin Improvement, and Great
Northern Railway Bills, 1849; 104
Com. J. 76. 81.
2 Ib. 84.
3 See supra, p. 775.
Standing Order, No. 144.
RAILWAY BILLS.
847
prepared with sufficient evidence to satisfy the committee,
and enable them to report to the house the matters specially
referred to their consideration.
The committee are to report specially whether any report Matters to be
specially re-
from any public department has been referred to the com- ported.
mittee, and if so, in what manner its recommendations have
been dealt with by the committee; and whether the railway is
intended to cross on a level any railway, turnpike road, or high-
way. The committee are also to report any other circumstances
which, in their opinion, the house should be informed of.
Some of these orders for a special report are often inapplic- When the
able; and, in such cases, the committee state in their report ders do not
Standing Ora
their reasons for considering that any of them do not apply apply.
to the bill, and report upon the others. All such reports
should be carefully prepared by the promoters of the bill, and
submitted for the approval of the committee, before the con-
clusion of their sittings.
2. The principles of legislation to be observed by the com- Restrictions
mittee on a railway bill are as follow. No company is to
be authorised to raise, by loan or mortgage, a larger sum
than one-third of its capital; and until fifty per cent. on the
whole of the capital has been paid up, the company is not to
raise any money by. loan or mortgage. Where the level of Ascent of
any road is to be altered in making a railway, the ascent of
a turnpike road is not to be more than one foot in thirty;
and of any other public carriage road not more than one in
twenty ; unless a report from an officer of the Board of
Trade shall be laid before the committee, and unless the
committee, after considering such report, and examining the
officer, if they disagree with his report, shall recommend
steeper ascents, with the reasons and facts upon which their
opinion is founded. A sufficient fence of four feet, at least, Fence to
bridges.
is to be made on each side of every bridge which shall be
erected. No railway is to be made across any railway, turn- Level cross-
ings.
pike road, or other public carriage road on the level, unless
the report of some officer of the Board of Trade shall be laid
before the committee, and unless the committee, after con-
on loans.
roads.
848
RAILWAY BILLS.
Acquiring
docks, piers,
&c.
1
Steam-
vessels.
sidering such report, and examining the officer, if they dis-
agree with his report, shall recommend such level crossing,
with the reasons and facts upon which their opinion is
founded; and in every clause authorising a level crossing,
the number of lines of rails is to be specified.
No railway company is to be authorised to construct or
enlarge, purchase or take on lease, or otherwise appropriate
any dock, pier, harbour, or ferry, or to acquire and use any
steam vessels for the conveyance of goods and passengers, or
to apply any portion of their capital or revenue to other
objects, distinct from the undertaking of a railway company,
unless the committee report that such restrictions ought not
to be enforced, with the reasons and facts upon which their
opinion is founded ; and where a committee has failed to
report specifically such reasons and facts, the bills have been
re-committed for that purpose.
No powers of purchasing, hiring, or providing steam-
vessels are to be contained in a railway bill, by which other
powers are sought, except when the transit of such steam-
vessels is required to connect portions of railway belonging
to, or proposed to be constructed by, such company.
The committee are to fix the tolls and determine the
maximum rates of charge, for the conveyance of goods and
passengers; or are to make a special report, with their report
of the bill, explanatory of the grounds of their omitting to
determine such maximum.
By Standing Order, 12th March 1883, in case of any bill
relating to a railway, tramway, canal, dock, harbour, naviga-
tion, pier or port, seeking powers as to tolls, rates or duties
in excess of those already authorised, the committee are to
report specially in regard to the recommendations and obser-
vations of the Board of Trade. And in furtherance of the
objects of this Standing Order, bills have been recommitted.?
Committec to
fix tolls and
charges.
Increase of
rates, &c.
i Great Eastern and North British
Railway Bills, 16th July 1863; Cale-
donian Railway (Edinburgh Station)
Bill, 1866.
? Exeter, Teign Valley and Chag-
ford Railway ; Windsor, Ascot and
Aldershot Railway, 24th May 1883.
RAILWAY BILLS.
849
dividends not
1
cation is con-
liament.
In 1882 the general committee on railway and canal bills also
recommended the insertion of clauses regulating tables of
rates on goods.
No railway company is to be authorised to alter the terms Preference
of any preference or priority of interest or dividend unless to be altered.
the committee report that such alteration ought to be allowed,
with the reasons on which their opinion is founded, together
with the number of preference shareholders who have assented
to or dissented from such alteration.
No powers of purchase, sale, lease, or amalgamation are Matters to be
proved before
to be given to railway companies, unless previously to the Board of
application to Parliament, certain matters connected with the Trade.
capital of such companies, be proved to the satisfaction of
the Board of Trade. And it has been held that application When appli-
is made to Parliament by presenting the petition for the bill strued to be
to the house, and not by depositing it in the private bill made to Par-
office, or proving compliance with the Standing Orders.
No railway company is to be authorised, except for the Company not
to guarantee
execution of its original lines sanctioned by Parliament, to dividend until
guarantee interest on any shares which it may issue for completion of
creating additional capital, or to guarantee any rent or
dividend to any other railway company, until such first-
mentioned company has completed and opened for traffic its
original lines.
In bills for the amalgamation of railway Limitation of
companies, the amount of capital created by such amalgama- amalgama-
capital on
tion is, in no case, to exceed the sum of the capitals of the tion.
companies so amalgamated.
In bills for empowering a railway company to purchase Additional
any other railway, no addition is to be made to the capital of purchasing a
railway.
the purchasing company, beyond the capital of the railway
purchased; and in case such railway is to be purchased at a
premium, no addition, on account of such premium, is to be
made to the capital of the purchasing company.
No powers are to be given to any municipal corporation, Tramway
local board, improvement commissioners, or other local
bills.
1 See also infra, p. 850.
P.
31
850
RAILWAY BILLS.
mittee as re-
authority, to place or run carriages upon any tramway, and
to demand and take tolls and charges in respect of the use of
such carriages.
Police and In the case of bills promoted by local authorities, the com-
sanitary re-
gulations mittee is to consider the various powers relating to police
and sanitary regulations in conflict with, deviation from, or
excess of the general law, and the report of the committee
thereupon is to be printed and circulated with the votes.
Duty of com. It is the duty of the committee to take care that the pro-
gards these visions of the bill are in conformity with these principles and
provisions.
regulations; but no special form of enactment is prescribed
for carrying the intentions of Parliament into effect. Some of
these orders are not obligatory upon the committee, provided
they report to the house their reasons for not enforcing them
in any particular case. In other cases the house has not
entrusted the committee with discretionary powers : but com-
mittees have occasionally exercised a discretion, subject to the
approval of the house, and have made special reports.
3. There are also special clauses which are to be inserted
tecting exist.
ing preference in every railway bill to which they are applicable.' Where
shares.
it is proposed to authorise the company to grant any pre-
ference or priority in the payment of interest or dividends on
any shares or stock, a clause is required to be inserted, pro-
viding that the granting of such preference shall not prejudice
or affect any preference, or priority in the payment of interest
or dividends, on any other shares or stock already lawfully
subsisting ; unless the committee report that such provision
ought not to be required, with the reasons on which their
opinion is founded.?
1
Clause pro-
1 York and North Midland Rail-
way, 1850, Suppl. to Votes, p. 59;
Eastern Union Railway, 1850, Ib.
p. 113; Manchester, Sheffield and
Lincolnshire Railway Bill, 1850, Ib.
p. 158 ; Monkland Railways Bill,
Ib. 193; Great Northern Railway
(No. 1) Bill, Ib. 231; North British
Railway Bill, Ib. 287; Aberdeen
Railway Bill, Ib. 289; Great Western
(Henley, &c.) Bill, Ib. 371; Carlisle
Railway Bill, Ib. 515; York, New-
castle and Berwick, &c. Bill, Ib. 585,
&c.; South Eastern Railway (Lewis-
p. 151.
2 For cases in which such reasons
have been given, see Eastern Counties
Railway Bill, Suppl. to Votes, 1853,
!
RAILWAY BILLS.
851
entered into
of line.
In every railway or tramway bill providing for the con- Clause impos-
struction of a new railway or tramway, or for the extension until line be
of time for the completion of a railway or tramway, the opened.
following provisions, founded upon the recommendation of
a joint committee of Lords and Commons in 1867, are to
be inserted. If promoted by an existing company having
a railway or tramway already opened for public traffic, a
clause is to be inserted, providing that if the company fail
to complete the line within the time limited by the Act, the
company shall be liable to a penalty of 501. a day, until Bond to be
the line has been completed, and opened for public traffic, for completion
or until such penalty amounts to five per cent. on the esti-
mated cost of the works. If promoted by an existing rail-
way or tramway company, not having a railway or tramway
already opened for public traffic, or which during the last
year has not paid dividends upon its ordinary share capital,
or by an existing railway or tramway company where an
increase of capital is sought, or by persons not incorporated,
a clause is to be inserted, providing that the deposits paid
under the Standing Orders shall be retained, and made liable
to forfeiture unless, before the time limited for completing
the line, the company shall either open it for the public con-
veyance of passengers, or prove that they have paid up, and
expended, one-half of their capital for the purposes of the
Act. Another clause is required to be inserted, providing
that the penalties recovered, or deposits forfeited, shall be
applied to the compensation of landowners or other persons
whose property may have been interfered with, or affected.
A clause is to be inserted providing that the railway or Time for com-
pleting line.
tramway in the case of a new line, is to be completed within
five years, and in the case of an extension of time, within
three years.
Where these provisions are not applicable to any particular Other pro-
vision for
ham and Bromley) Bill, Suppl. to Bill, Ib. p. 299; York, Newcastle and
Votes, 1854, p. 92 ; Great Western Berwick, &c. Bill, Ib. p. 387; Leeds
(Shrewsbury and Birmingham, &c.) Northern Railway Bill, Ib. p. 457.
3 1 2
852
RAILWAY BILLS.
line.
calls.
completion of bill, the committee are to make such other provision as they
shall deem necessary for ensuring the completion of the line
of railway or tramway.
Interest or By Standing Order, No. 167, a clause is to be inserted in
dividend not
to be paid on every railway bill, prohibiting the payment of interest or
dividend to any shareholder in respect of calls, except under
certain conditions. But on the 6th June 1883, this Stand-
ing Order was amended, and a considerable relaxation of
the conditions, attached to the payment of interest, was
sanctioned.
Deposits not And another clause is to be inserted, prohibiting a railway
to be paid out
of capital.
company from paying, out of the capital which they have
been authorised to raise for the purposes of an existing Act,
the deposits required by the Standing Orders to be made for
the purposes of any application to Parliament for a bill for
Railway not the construction of another railway. And, lastly, a clause is
to be exempt
from general to be inserted providing that the railway shall not be esempted
from the provisions of any general Acts, or from any future
revision and alteration, under the authority of Parliament,
of the maximum rates of fares and charges previously autho-
rised.
Length of In every railway and tramway bill the length of the line
is to be set forth in miles, furlongs, chains, and yards, or
decimals of a chain, in the clause describing the works, with a
statement, in the case of each tramway, whether it is a single
or a double line.
Enforcement A committee has inserted clauses compelling a railway
of pledges.
company, under penalty of a suspension of its dividends, to
apply to Parliament in the next session, for a bill to autho-
rise the construction of a line of railway, which the company
had pledged itself to make. And the preamble of a bill has
been negatived, on proof that it was a violation of a pledge
previously given by a company.?
acts.
line.
1 South Western Railway (Capital
and Works) Act, 1855, 18 & 19 Vict.
c. clxxxviii, ss. 62. 69; Suppl. to
Votes, 1853, p. 945; Ib. 1855, p. 251.
2 Mid-Sussex and Midhurst Junc.
tion Railway Bill, Group 3, 1860.
LETTERS PATENT BILLS.
853
ment.
bills.
Where any agreement is to be sanctioned, such agreement Agreement to
be annexed to
is to be printed as a schedule to the bill.
bill.
In the case of bills authorising a local authority to borrow Local govern-
money, under the Local Government Acts, without the sanc-
tion of the local government board, estimates of the proposed
application of the money are to be recited in the bill, and
proved before the committee.
Whenever application is made by a local authority in Ire- Local govern-
ment (Ire-
land for new powers, the promoters are required to obtain a
land).
certificate, under the seal of the local government board in
Ireland, whether such application is made with their sanction
and approval, which certificate is to be reported upon by the
committee.
The committee on a bill for confirming letters patent are Letters patent
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.
There are several Standing Orders relating specially to Inclosure and
drainage bills.
bills for the inclosure and drainage of lands, compliance with
which is to be examined, and enforced by the committee on
the bill. These are relative to the proof of notices, and of
the allegations in the preamble of the bill; the consent bill,
signed by the lord of the manor and the owners of property;
a statement of the property of owners, assenting, dissenting,
and neuter; and the names, qualifications, and pay of the
commissioners. 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, the part of the order
relating to the consent of the lord of the manor has been
dispensed with.
In the case of drainage bills, the assents of the occupiers as Drainage
well as owners of land are to be proved, but not that of the
lord of the manor.
i Thetford Inclosure, 1st April 1844; 99 Com. J. 182.
1
bills.
854
INCLOSURE AND DRAINAGE, ETC. BILLS.
Inclosure
bills.
Clause for
creation.
When a pro-
classes.
It is ordered that in every bill for inclosing lands, pro-
vision be made for leaving an open space sufficient for
leaving open purposes of exercise and recreation of the neighbouring
ercise and re- population, and for its fencing and maintenance.
Whenever a private bill contains any provisions relating
visional order to the inclosure of land, which might be comprised in a
might be
provisional order, under the Acts for the inclosure and
sought.
improvement of land, the committee are to make a special
report to the house.
Houses of the · In every bill by which power is sought to take, in any
labouring
city, town or parish, fifteen houses or more, occupied wholly
or partially, as tenants or lodgers, by persons belonging to
the labouring classes, clauses are to be inserted for giving
notice of the intention of taking such houses, and requiring
the parties to provide sufficient accommodation for the per-
sons to be displaced ; and the committee are to report
specially whether the latter clause has been inserted, and
if not, the grounds upon which the committee have decided
it to be inapplicable.
Turnpike The committee on a turnpike road bill relating to Ireland
roads (Ire-
land).
are to insert a clause providing for the qualification of com-
missioners.
In every bill for making a burial ground or cemetery, or
burial ground
or gasworks the erection of gas works, there is to be a clause defining the
to be defined. limits within which the same are to be erected or made.
Gas bills. In every bill in which an existing gas company is autho-
rised to raise additional capital, provision is to be made for
the offer of such capital by auction, or tender, unless the com-
mittee report that such provision ought not to be required,
with their reasons; and it is competent to the committee so
to regulate the price of gas, that any reduction of the au-
thorised standard price shall entitle the company to make a
proportionate increase of dividend, and that any increase
above the standard price shall involve a proportionate de-
crease of dividend.
ceedings of Having adverted to the several orders which are to be
committees on observed by committees, in reference to the proof of com-
opposed bills.
Limits of
General pro-
PROCEEDINGS OF COMMITTEES.
855
amined upon
pliance with the Standing Orders, and the peculiar provisions
required to be inserted in particular bills, the general pro-
ceedings of committees upon opposed private bills may be
briefly explained. These are partly regulated by the usage
of Parliament, partly by Standing Orders, and partly by
statute.
It may be mentioned, in the first place, that as regards the Witnesses ex-
inquiries of these committees, an important amendment of
oath,
the law has recently been introduced. By the Act 21 & 22
Vict. c. 78, committees upon private bills were first em-
powered to administer oaths. The 34 & 35 Vict. c. 33, gave
the same powers to committees upon bills for confirming
provisional orders. But these provisions have since been
superseded by the Parliamentary Witnesses Oaths Act, ,
1871, which empowered every committee of the House of
Commons to administer an oath to witnesses examined be-
fore it.1
On the 16th February 1864, the house resolved “That the Minutes of
minutes of evidence on opposed private bills be printed at the
printed.
expense of the parties, whenever copies of the same shall be
required.” And in the case of “hybrid” bills, to which this
order does not extend, special orders are given that the
parties have leave to print the minutes of evidence day by
day, from the committee clerk's copy, if they think fit.?
When counsel are addressing the committee, or while wit- Room, when
nesses are under examination, the committee-room is an open
court; but when the committee are about to deliberate, all Cleared.
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 determina-
tion of the committee, if it concern them.
The first proceeding of a committee on an opposed bill, Parties appear
committee.
1 The Parliamentary Witnesses
Oaths Act, 1871, repeals s. I of 21 2 122 Com. J. 158. 168. 413,
& 22 Vict. c. 78, and s. 3 of 34 & 35
evidence to be
open,
before the
Vict. c. 3.
856
PROCEEDINGS OF COMMITTEES.
ance,
when duly constituted, is to call in all the parties. The
counsel in support of the bill appear before the committee :
the petitions against the bill in which the petitioners pray
to be heard, are read by the committee clerk : appearances
are entered upon each petition with which the parties intend
to proceed, and the counsel or agents appear in support of
them. 1 And it was usual, at this time, until cases of locus
standi were heard by the court of referees, to intimate that
When there objections would be raised to the hearing of petitioners. If
is no appear.
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 if parties have neglected to enter their
appearance at the proper time, they will not be entitled to be
heard. In some special cases, however, indulgence has been
granted to them. In one case, the agent who had deposited
a petition stated that there was no appearance upon it: but
another agent immediately entered an appearance; and as it
was shown that he had regularly obtained the appearance
paper from the Private Bill Office, on the production of a
letter from the secretary to the company, written by order
of the board of directors, stating that they desired to change
their agent, and authorising him to prosecute their petition,
the committee allowed the petitioners to be heard. An
appearance paper has been allowed to be amended, where it
stated that a petition praying to be heard against the
preamble, related to clauses only. Where petitions com-
6
1 By a Standing Order, 3rd Jan.
1701, it was ordered, “That it be an
instruction to the committee of pri-
vileges and elections, that they do
admit only two counsel of a side, in
any cause before them." 13 Com.
J. 648. This order has been under-
stood to apply to all committees (62
Hans. Deb. 3rd Ser. p. 311); but,
by its words, it would appear to be
limited to a committee which is no
longer in existence, and in practice
it is certainly not observed.
2 See supra, p. 817.
3 Suppl. to Votes, 1845, p. 1538 ;
Ib. 1854, p. 430, &c.
4 Ib. 1849, pp. 204. 288. South
Wales Railway Bill, Suppl. to Votes,
1853, p. 829. Minutes of Committees,
1857, vol. i. p. 793; and supra, pp.
781. 814. Minutes of Group 2, 1860.
5 Minutes of Groups 3 and 8, 1860 ;
Group 3, 1862.
6 Ib. Group 9, 1863.
? Ib. Group 3, 1859.
PROCEEDINGS OF COMMITTEES.
857
plain of matters arising during the sitting of the committee,
or of amendments proposed to be made in the bill, appear-
ances are allowed to be entered, as the occasion arises. I
Difficulties have sometimes arisen, when counsel have not Hearing of
solicitors.
been retained, or are absent, in regard to the right of solicitors
to be heard as agents for the parties, unless they have been
entered as agents for the bill or petition, in the Private Bill
Office. In 1844, a solicitor was refused a hearing as an
agent before one of the sub-committees on petitions for pri-
vate bills, and it was ruled that such refusal was justified by
practice, and by the construction of the Standing Order ;?
and this rule has since been followed by the examiners.
Before committees on private bills, however, solicitors have
often been heard without objection, where it has been for the
convenience of the parties; but in the Mersey Conservancy
and Docks Bill, 1857, a solicitor, whose name was specified
in the appearance as solicitor for a petition, on claiming to
be heard, received an intimation from the committee, that he
would not be entitled to address the committee until he had
entered himself as a parliamentary agent. The Speaker,
therefore, authorised the clerks in the Private Bill Office to
enter his name as agent for the petition, in addition to that
of the agent who had originally taken out the appearance :
the latter being still responsible for the payment of the fees,
and for the observance of the rules and orders of the house.
And the same rules have since been observed by the referees.
In the case of a committee on a group of bills, as already Case opened.
stated, the committee take the bill or bills first into conside-
ration, which have been named by the committee of selection,
or general committee; and unless a bill comprised in the
group be set down for the first day, the promoters and
opponents are not to enter their appearance on that day in
respect of such bill.
When the parties are before the committee, the senior Proof of pre-
amble.
1 Minutes of Group 4, 1859; Group 3 Minutes of Committees, 1857,
C. 1861.
vol. ii. pp. 645. 647, &c.
2 73 Hans. Deb. 3rd Ser. 583.
4 Ib. p. 28.
See also supra, p. 814.
858
PETITIONERS HEARD.
counsel for the bill opens the case for the promoters; unless
preliminary objections should be raised by petitioners to
proceeding further with the bill.1 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 particularly 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 com-
mittee upon the most material of 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 ap-
pear in support of the several petitions against the preamble, 3
but not, as to the general case, by the counsel of parties who
object only to certain provisions in the bill. Cross-examina-
tion is confined to matters comprised in the petitions, except
when it is sought to discredit a witness. After the cross-
examination, each witness may be re-examined by the counsel
in support of the bill. When all the witnesses in support of
the preamble have been examined, the case for the promoters
is closed, unless the right to an opening speech have been
waived by the counsel for the bill.
Every petition against a private bill, which has been de-
posited not later than ten clear days after the first reading,
and every petition against a provisional order bill, deposited
not later than seven days after the report of the examiner on
such bill, or otherwise deposited in accordance with the Stand-
ing Orders, and in which the petitioners pray to be heard by
themselves, their counsel, or agents, stands referred to the
committee; and such petitioners, subject to the rules and
When peti-
tioners enti-
tled to be
heard.
1 London and North - Western
Railway Bill, 1873; Birmingham
Corporation Water Bill, 1875; Stock-
ton and Middlesborough Corpora-
tion Water Bill, 1876; Brighton and
Hove Gas Bill, 1881; Tramways
Provisional Order (Birmingham) Bill,
1881, &c.
2 See supra, p. 844. The formal
matters required to be reported, are
generally proved at a later period.
3 Suppl. to Votes, 1852, pp. 150,
151. 188, 189, &c.
2
PROCEEDINGS ON PREAMBLE.
859
orders of the house, shall be heard upon their petition, if
they think fit, and counsel heard, in favour of the bill,
against the petition. The petitioners are required to establish
before the referees a locus standi according to the rules and
usage of Parliament.
When counsel are allowed to be heard against the pre- Proceedings
on preamble.
amble, one of them either opens the case of the petitioners,
or reserves his speech until after the evidence. Witnesses may
be called and examined in support of the petitions, cross-
examined by the counsel for the bill, and re-examined by the
counsel for the petitioners: but counsel can only be heard,
and witnesses examined, on behalf of petitioners, in relation
to matters referred to in their petitions. It has been ruled
that where a petitioner against a railway bill is admitted to
be heard on a petition alleging a preferable line, described
particularly in his petition, the engineer to be called in sup-
port of such line is entitled to produce, prove, and refer to
plans and sections of the suggested line, as made by himself.3
But, of late years, it has not been usual to admit evidence of
alternative schemes, unless they have been submitted to Parlia-
ment.* As a general rule, each witness is to be examined, or
cross-examined, throughout, by the same counsel. In the
Shrewsbury and Birmingham Railway Bill, 1852, the com-
mittee resolved that “they must adhere to the rule that the
same counsel should go through with the examination of
each witness, unless by agreement between the parties, to be
approved by the committee, it should be arranged otherwise,
in order to meet the convenience of counsel.”5 Committees
have also resolved that no counsel should be permitted to
1 See supra, p. 817.
2 Glasgow and South Western
Railway Bill, Suppl. to Votes, 1853,
p. 720 ; South Wales Railway Bill,
Ib. p. 1339. Minutes of Committees,
1856, vol. i. p. 56.
3 Midland Railway (Extension to
Otley) Bill; Cork and Macroom, &c.
Bill, 1861; Resolutions of general
committee of railway and canal bills,
1861; 117 Com. J. 267, &c.
4 Harrow and Rickmansworth
Railway Bill, 1874; West Kent
Drainage Bill, 1875; Sutton Bridge
Docks Bill, 1875; Newport (Mon-
mouthshire) Gas Bill, 1875; Provi-
sional Order Thirsk Water) Bill,
1879, &c.
5 Suppl. to Votes, 1852, p. 287.
860
QUESTION UPON PREAMBLE.
cross-examine witnesses, who had not been present during the
examination in chief, nor to re-examine unless he had been
present during the entire cross-examination. When the
evidence against the preamble is concluded, the case of the
petitioners is closed, unless an opening speech have been
waived; and the senior counsel for the bill replies on the
whole case.2 If the petitioners do not examine witnesses,
the counsel for the bill has no right to a reply; but in some
special cases, where new matters have been introduced by the
opposing counsel (as, for example, Acts of Parliament, pre-
cedents, or documents not previously noticedº) a reply, strictly
confined to such matters, has been permitted. Where there
are numerous parties appearing on separate interests, the
committee will make such arrangements as they think fit,
for hearing the different counsel. Sometimes the minutes of
evidence on bills of a previous session, and other documents,
are referred to a committee, and may be commented upon by
counsel, and considered by the committee
Question upon
When the arguments and evidence upon the preamble
preamble.
have been heard, the room is cleared, and a question is put,
“That the preamble has been proved,” which is resolved in
the affirmative or negative, as the case may be. Or, where
there are competing bills in the same group, the decision of
the committee upon the preamble of the first bill is usually
postponed until after they have heard the evidence in support
of the other bills. In some cases the committee have resolved
that the clauses which the promoters had agreed with the
opponents to insert in the bill, should be produced before
Suppl. to Votes, 1847, vol. ii. Votes, 1853, p. 720.
pp. 1457. 1477 ; Minutes of Proceed- 3 Great Western Railway, &c. Bill,
ings, 1861, p. 84; Resolutions of Suppl. to Votes, 1854, p. 495.
general committee of railway and * Suppl. to Votes, 1852, p. 288.
canal bills, 1861.
In the Severn Valley, &c. Group,
2 In the Edinburgh, Perth and the committee decided to hear two
Dundee Railway Bill, the committee counsel only on the whole case pre-
held that the counsel for the bill was sented by several bills ; Ib. 1853,
not entitled to a general reply; but
that his reply must be confined to 5 108 Com. J. 495. 514; 117 Ib.
the case of the only petitioner who 267 ; 122 Ib. 218; 132 Ib. 83, &c.
had adduced evidence ; Suppl. to
p. 1031.
CLAUSES CONSIDERED.
861
they proceeded to decide on the preamble. If the preamble Clauses con-
sidered.
be proved, the committee call in the parties, acquaint them
with the decision, and then go through the bill clause by
clause, and fill up the blanks; and when petitions have been
presented against a clause, or proposing amendments, the
parties are heard in support of their objections or amendments,
as they arise. Clauses may be postponed and considered at a
later period in the proceedings, if the committee think fit.
When all the clauses of the bill have been agreed upon, new
clauses may be offered, either by members of the committee,
or by the parties. It is at this time also that officers of
public departments sometimes appear, to secure the insertion
of clauses protective of the property or interests of the Crown,
or of navigations, and tidal lands, or otherwise concerning the
public interests. On the 25th May 1865, the Admiralty
were allowed to attend by counsel at the next sitting of the
South Eastern Railway Bill, to protect the Greenwich Obser-
vatory from injury. In 1872, the Treasury obtained the
insertion of a clause in the International Communication
Bill, providing access to Crown property. But, except in
cases in which the consent of the Crown may be withheld
from a bill, government departments are without any means
of enforcing the adoption of their clauses, either by the
parties or the committee ; and their relations to the
committee and Parliament are often not a little anomalous.
It has, indeed, been determined that public boards have no
right to be heard, except upon petition.?
It must be borne in mind, that the committee may not admit What clauses
admissible.
clauses or amendments which are not within the order of leave;
or which are not authorised by a previous compliance with the
Standing Orders applicable to them, unless the parties have
| North Metropolitan Railway petitioned against the Deal, Walmer
Bill, Suppl. to Votes, 1854, p. 451. and Adisham Railway Bill, the South
2 Victoria Station and Pimlico Eastern Railway Bill, the North
Railway Bill, Group 6, 1858. In Metropolitan Tramways Bill, and
1873, the Postmaster General peti- the London and Aylesbury Rail-
tioned against the Midland Railway way Bill; and in the two first cases,
Bill: but the petition was afterwards
appearances were entered.
withdrawn. In the same year he also
862
PREAMBLE NOT PROVED.
received permission from the house to introduce certain pro-
visions, in compliance with petitions for additional provision.
But if the committee are of opinion that such provisions
should be inserted, the further consideration of the bill can
be postponed, in order to give the parties time to petition
the house for additional provision. A committee has refused
to entertain a clause giving powers to another company prac-
tically to annul the provisions of a bill, even when it appeared
that the petition of that company had been withdrawn, on
condition of the introduction of that clause. At the same
time the committee offered to obtain power from the house to
hear the company, notwithstanding the withdrawal of their
petition. Instructions of a restrictive character are some-
times given, which are carried out by the committee. Thus,
on the 14th April 1851, an instruction was given to the
committee on the East Lancashire Railway Bill, " to strike
out of the said bill all powers of interference with other
companies, and restrict the promoters to the remaining
objects of the bill."3 Sometimes the committee, pursuant to
instructions, agree to divide the bill into two or more bills,
in which case each bill is gone through separately, and
amended. And in other cases, also pursuant to instructions,
the committee unite or consolidate two bills into one.5
If the proof of the preamble be negatived, the committee
report to the house, “That the preamble has not been proved
to their satisfaction." In 1836, the committee on the Durham
(South West) Railway Bill, were ordered to re-assemble, for
the purpose of reporting specially the preamble, and the
evidence and reasons, in detail, on which they came to the
resolution that the preamble had not been proved.” It has
been ruled that when a committee have resolved that the
preamble of a private bill has not been proved, and ordered
Preamble not
proved.
1 London and North Western
(Northampton Branch) Bill; Suppl.
to Votes, 1853, p. 964; Ib.
2 Thames Tunnel Railway Bill,
Minutes of Group 2, 1860.
3 106 Com. J. 165.
p. 1255.
4 Portsmouth Railway Bill; Suppl.
to Votes, 1854, p. 181.
5 110 Com. J. 188. 201; Suppl. to
Votes, 1848, p. 337; Ib. 1849, p. 98;
Ib. 1851, p. 111; Ib. 1855, p. 353.
691 Com. J. 396.
PREAMBLE NOT PROVED.
863
the chairman to report, it is not competent for them to re-
consider and reverse their decision : but that the bill should
be re-committed for that purpose. In 1854, the preambles
of two out of three competing railway bills were declared not
proved: but the successful bill, after it was reported, having
been withdrawn, the two other bills were re-committed, and
the preamble of one of them was declared to be proved. In
1861, in the case of the Mold and Denbigh Junction Rail-
way Bill, the committee reported that the preamble had not
been proved: but all opposition having been subsequently
withdrawn, the bill was re-committed to the former com-
mittee, who reported the preamble proved, and the bill was
passed.3 In 1874, in the case of the Bolton-le-Sands, Warton
and Silverdale Reclamation Bill, the committee having re-
ported that the preamble had not been proved, the bill was
afterwards re-committed to the former committee, with an
instruction to the committee to strike out of the bill all
powers for the compulsory taking of lands, to which any
opposition is offered. And in several other cases, where
compromises have afterwards been effected, and the promoters
have consented to make amendments, the bills have been re-
committed for that purpose.”
In the Kingstown Township Bill, 1873, while the case for
the promoters was proceeding, it was made known that the
town commissioners of Kingstown, by whom the bill was
promoted, had been restrained by injunction from proceed-
ing further with the bill, on the ground that they had failed
to comply with the requirements of the Towns Improvement
Act, 1847 (ss. 132, 133 and 142), and were not therefore
entitled to come to Parliament. The commissioners, how-
ever, had also signed the petition for the bill, as individuals;
and claimed to proceed with the bill in that capacity: but
the committee resolved “That the counsel for the promoters
pp. 175. 415.
i Group P. 1853, Suppl. to Votes,
p. 957; Shrewsbury and Welchpool
Railway Bill, 1858.
2 Group 1, Suppl. to Votes, 1854,
3 116 Com. J. 285.
4 129 Ib. 174.
0 Ib. 225; 132 Ib. 177.
864
COSTS AWARDED,
in certain
cases.
having stated that the commissioners had withdrawn from
the promotion of the bill, the committee decided that they
ought not to proceed further with the bill, and that they
would report to the house that the preamble had not been
proved.” This decision was founded, it is believed, upon
the determination of the committee not to favour any evasion
of the Towns Improvement Act, and of the injunction
founded upon it.? Attempts were afterwards made, without
success, to obtain a re-hearing, but the committee adhered to
their determination.
Alterations in Alterations may be made in the preamble, subject to the
preamble.
same restriction as in the case of other amendments, that
nothing be introduced inconsistent with the order of leave, or
with the Standing Orders of the house applicable to the bill.?
Such amendments, however, are to be specially reported.3
Costs awarded In 1865, the important principle of restraining vexatious
litigation by awarding costs was first introduced. By 28 &
29 Vict. c. 27, when a committee on a private bill shall
decide that the preamble is not proved, or shall insert any
provision for the protection of a petitioner, or strike out or
alter any provision for the protection of such petitioner, and
further unanimously report that petitioners have been un-
reasonably or vexatiously subjected to expense in defending
their rights, they shall be entitled to recover costs from the
promoters. And, on the other hand, when the committee
shall unanimously report that the promoters have been
vexatiously subjected to expense by the opposition of peti-
tioners, they shall be entitled to recover costs from those
opponents. But it is provided that no landowner who bonů
fide, at his own sole risk and charge, opposes a bill which
proposes to take any part of his property, shall be liable to
any costs in respect of his opposition. Since the passing of
this Act such costs have been awarded in several cases. In
1 Minutes of the Committee.
2 See Report on Revision of Stand-
ing Orders, 1843, p. iii.
3 113 Com. J. 166. 180, &c.
4 London, Chatham and Dover
(Various Powers) Bill, 1866; North
British Railway (Coatbridge, &c.
Branches) Bill, 1866; Great Western
Railway Bill, 1866; Brecon and Mer-
thyr Tydvil Junction Railway Bill,
DUTIES OF CHAIRMAN AND COMMITTEES.
865
all such cases the costs are to be taxed by the taxing officer
of the House of Commons. In one case, the promoters
having informed the committee that it was not their inten-
tion to proceed with the bill, a petitioner applied to the
committee to report that the promoters not having adduced
evidence, the preamble was not proved, and to consider an
application for costs. But the committee decided to report
that the parties had stated that it was not their intention to
proceed with the bill, and that consequently the question of
costs could not be entertained. And this construction of
the act has since been followed. The same principle has
also been generally applied, where the promoters have already
amended the bill to meet the objections of petitioners, or
have not appeared in support of a provisional order.4 By
the 34 & 35 Vict. c. 3, select committees upon bills for con-
firming, or giving effect to, provisional orders, may award
costs in like manner, and under the same conditions, as in
the case of a private bill.
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:
Every plan and book of reference thereto which shall be produced Plan, &c. to
in evidence before the committee upon any private bill (whether the be signed by
same shall have been previously lodged in the private bill office or
not), shall be signed by the chairman of such committee with his
name at length; and he shall also mark with the initials of his name
chairman.
1867 ; Hull Docks Bill, 1867; Tivy
Side Railway Bill, 1872 ; North
Eastern Railway (Additional Powers)
Bill, 1874; Local Government Board
Provisional Orders (Dawlish) Bill,
1877 ; Rusholme Local Board Tram-
ways (Provisional Orders) Bill, 1878;
Metropolitan Railway Bill, 1881 ;
North British Railway (General
Powers) Bill, 1881 ; Swindon, Marl-
borough and Andover Railway Bill,
1883.
| Abbotsbury Railway Bill (Group
3), 1873,
2 South Kensington Market Bill,
1883 (Group 8).
3 North Staffordshire Railway
Bill, 1879; Swindon, Marlborough
and Andover Railway Bill, 1883.
4 Pier and Harbour Provisional
Orders (Weymouth) Bill, 1880.
P.
3K
866
SPECIAL REPORTS ON PRIVATE BILLS.
Il cases.
every alteration of such plan and book of reference which shall be
agreed upon by the said committee; and every such plan and book of
reference shall thereafter be deposited in the private bill office."
'ommittee The chairman of the committee shall sign, with his name at length,
ill and
a printed copy of the bill (to be called the committee bill), on which
Causes to be
gned by
the amendments are to be fairly written; and also sign, with the
hairman. initials of his name, the several clauses added in the committee."
hairman to "The chairman of the committee shall report to the house that the
-port on allegations of the bill have been examined, and whether the parties
llegations of
ill, &c.
concerned have given their consent (where such consent is required by
the Standing Orders) to the satisfaction of the committee."
ommittee to
" The chairman of the committee shall report the bill to the house,
eport bill in whether the committee shall or shall not have agreed to the preamble,
or gone through the several clauses, or any of them; or where the
parties shall have acquainted the committee that it is not their inten-
tion to proceed with the bill; 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 specially stated in the report.”
[inutes of
" The minutes of the committee on every private bill shall be brought
ommittee. up and laid on the table of the house, with the report of the bill.”
pecial re- If matters should arise in the committee, apart from the
orts.
immediate consideration of the bill referred to them, which
they desire to report to the house, the chairman should move
that leave be given to the committee to make a special report."
The house may also instruct the committee to make a special
righton rail. report. A case of a very unusual character occurred in 1837, ,
ay compet- which deserves particular notice. The bills for making four
distinct lines of railway to Brighton had been referred to
the same committee : when an unprecedented contest arose
among the promoters of the rival lines, and at length it was
apprehended that the preamble of each bill would be nega-
tived, in succession, by the combination of three out of the
four parties against each of the lines 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
1 Liverpool Docks, &c., and Birk- Bridge Bill; Ib. 360. Concerning
enhead Dock, &c. Bills; 110 Com. J. parliamentary deposits, 119 Ib. 125;
298. Mersey Conservancy and Docks 120 Ib. 285, 303; 134. Ib. 229; 135
Bill; 112 Ib. 267, 269, Chelsea New Ib. 266, &c.
ATTENDANCE OF WITNESSES.
867
4
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 engineering 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
landowners upon the direct line. In the case of the Devon
and Dorset Railway Bill, 1853, the committee made a special
report, explaining that they had rejected that bill in expecta-
tion of a preferable line of railway being proposed to Parlia-
ment, in the next session, by another company
It has been explained, in another part of this work, that Witnesses,
committees upon private bills are not entrusted by the house summoned.
with the power usually given to other select committees, of
sending for persons, papers, and records. The parties are
generally able to secure the attendance of their own witnesses,
without any summons or other process. A large proportion
of all the witnesses examined attend professionally; and local
interest in the bill, or liberal payments for loss of time, rarely
fail in attracting abundance of voluntary testimony. But
when it becomes necessary to compel the attendance of an
adverse or unwilling witness, or of any official person who
would otherwise be unable to absent himself from his duties,
application is made to the committee, who, when satisfied
that due diligence has been used, that the evidence of the
witness is essential to the inquiry, and that his attendance
cannot be secured without the intervention of the house,
direct a report to that effect to be made to the house; upon
which an order is made for the witness to attend and give
evidence before the committee.5
1 92 Com. J. 356.
See also Special Report on Eastern
2 Ib. 417.
Union Railway Bill, Ib. p. 1159.
3 Ib. 519.
5 105 Com. J. 262; 110 Ib. 121 ;
4 Suppl. to Votes, 1853, p. 945; 122 Ib. 227; 127 Ib. 99; 133 Ib.
and see, in reference to the same 98; 134 Ib. 187; 135 Ib. 191; 137
case, Suppl. to Votes, 1855, p. 253. Ib. 101, &c.
3 K 2
868
REPORTS ON PRIVATE BILLS,
Evidence Besides making the prescribed form of report, or special
reported.
reports in particular cases, committees have had leave given
to report the minutes of evidence taken before them: which
have been 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 ;? or have been referred to the committee on another
bill.3
On the 27th June 1851, it was ordered, “That the parties
promoting and opposing the Metropolis Water Bill be
permitted to print the evidence taken before the committee,
day by day, from the short-hand writer's notes, if they so
think fit;
»4 and a similar order was made in 1852, in re-
ference to the same inquiry. In one case the committee
reported that, in their opinion, a witness had been guilty of
perjury.
Reports that If parties acquaint the committee that they do not desire
parties do not to proceed further with the bill, that fact is reported to the
&
house, and the bill will be ordered to be withdrawn;' or the
report to lie upon the table. On one occasion, a report was
made, that from the protracted 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 the consideration
of two bills should be suspended, in order to afford oppor-
tunity for the introduction of another bill:" and they recom-
mended, “That every facility, consistent with the forms of
the house, should be given to such a bill during the present
6
1 81 Com. J. 343; 91 Ib. 338; 98
Ib. 324; 107 Ib. 357.
2 Clarence Railway Bill, 1843 ;
Suppl. to Votes, 5th May, p. 83.
Oxford, Worcester and Wolverhamp-
ton Railway, &c., 1845; 100 Com.
J. 566. Subways (Metropolis) Bill,
1867; 122 Ib. 413. Metropolitan
Board of Works (Shoreditch Im-
provement) Bill, 1871; 126 Ib. 120.
3 Northumberland (Atmospheric)
Railway Bill, 1845; 100 Ib. 536, &c.
4 106 Ib. 315.
5 107 Ib. 141; see also supra, p.
854.
6 Minutes, 1860, iii. 183; 115 Com.
J. 230.
7 104 Ib. 510; 131 Ib. 372.
8 129 Ib. 98.
9 79 Ib. 445.
REPORTS ON PRIVATE BILLS.
869
session.” 1
After the preamble of a bill has been proved, the
promoters have abandoned the bill, rather than consent to the
introduction of a clause insisted upon by the committee.?
It is the duty of every committee to report to the house the All bills to be
bill that has been committed to them, and not by long
reported.
adjournments, or by an informal discontinuance of their
sittings, to withhold from the house the result of their
pro-
ceedings. 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 to-morrow, and proceed on the bill;" 3
and again, on the 23rd March 1836, the house being informed
that a committee had adjourned till the 16th May, ordered
them “ to meet to-morrow, and proceed on the bill."4 And
now, every committee on an opposed private bill is required by
the Standing Orders to report specially to the house the cause
of any adjournment over any day on which the house shall sit.
Whenever a committee adjourns, the committee clerk is Adjournment
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 Committees
resuming their sittings; or if, from the absence of a quorum,
the committee be unable to proceed to business, 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 committee are interrupted by the
serjeant-at-arms giving notice that the Speaker is at prayers.
of committees.
revived,
1 Edinburgh Water Bills, 1846 ;
101 Com. J. 732.
2 Glasgow Waterworks Bill, 1848;
Minutes, p. 97.
3 80 Com. J. 474.
4 91 Ib. 195.
5 105 Ib. 201,
870
REPORTS ON PRIVATE BILLS.
are
Hybrid bills
in committee.
Provisional
order bills.
The proceedings of committees upon “hybrid bills”
generally similar to those of private bill committees; and
since 1871, they have had the same power of examining
witnesses upon oath. Such committees consist of members
nominated partly by the house, and partly by the committee,
of selection. The relaxation of the privileges of the Com-
mons, in regard to tolls and charges, does not extend to
such bills, but only to bills to confirm provisional orders or
certificates, which may now be freely introduced into the
House of Lords. Petitioners heard against such bills are
charged with the fees of the house.
Bills for confirming provisional orders and certificates, if
unopposed, are passed through all their stages, like public
bills, and are considered in committees of the whole house ;
but if after the second reading, petitions are presented pray-
ing to be heard against them, the order for the committee of
the whole house is discharged, and the bill committed, so far
as relates to the places concerned in the petitions, to the com-
mittee of selection, or to the general committee on railway
and canal bills, by whom a committee is appointed, as in the
case of a private bill.3
If the bill has already passed through a committee of the
whole house, it is recommitted to a select committee to be
appointed in the same manner. The proceedings of the
select committee to which the bill is referred, and of the re-
ferees, are to be conducted as in the case of private bills, and
are subject to the same rules and orders, so far as they are appli-
cable, except those which relate to the payment of fees by the
promoters. In some cases the committee have decided not to
confirm the provisional order, and have awarded costs.5
When the report has been made out and agreed to by the
committee, the committee clerk delivers in to the Private Bill
Office " the committee bill," being a printed copy of the bill,
4
Report.
1 130 Com. J. 216; 131 Ib. 705.
2 River Lee Conservancy Bill, 1868;
and see supra, p. 758.
3 129 Com. J. 286; 130 Ib. 155 ;
131 Ib. 176; 133 Ib. 246.
1129 Ib. 345.
5 133 Ib. 258.
!
REPORTS ON PRIVATE BILLS.
871
with the written amendments made by the committee; with
every clause added by the committee regularly marked in
those parts of the bill in which they are to be inserted. In Amended bil
strict conformity with this authenticated copy, the bill, as and delivered
amended by the committee, is required by the Standing
Orders to be printed at the expense of the parties. When
printed, they must be delivered to the doorkeepers, three
clear days at least before the consideration of the bill : but it
may not be delivered before the report of the bill has been
made to the house; and agents, when they give notice at
the Private Bill Office, of the day for the consideration of
the bill, must produce a certificate from the doorkeeper of
the delivery of the amended printed bill on the proper day.
In some cases the alterations made by the committee have Bills with-
drawn or
been so numerous and important, as almost to constitute the referred to
bill a different measure from that originally brought before examiner
after report.
the house. In such cases the house has sometimes required
the bill to be withdrawn, and another bill presented, which
has been referred to the examiners. Thus, on the 21st May
1849, on the report of the Holme Reservoirs Bill, notice
being taken that almost the whole of the bill as brought in
had been omitted, and a new set of clauses introduced, the
bill was ordered to be withdrawn:2 but, unless the case be
one of great irregularity, the later and better practice has
been to refer the bill, as amended, “to the examiners, to
inquire whether the amendments involve any infraction of
the Standing Orders."3 If the examiner report that there
is no infraction of the Standing Orders, the bill proceeds
without further interruption : but if he report that there has
been such an infraction, his report, together with the bill,
will be referred to the Standing Orders Committee.
In 1876, the Toll Bridges (River Thames) Bill,--a hybrid
1 Order of the Clerk of the House,
30th March 1844.
2 104 Com. J. 320. 453.
3 River Dee Conservancy; Belfast
Improvement; Lee River Trust Bills,
1850; 105 Com. J. 446. 481. 485;
Whitechapel Improvement Bill, 1853;
108 Ib. 557. In the case of the
Smithfield Market Bill, 10th July
1860, such a reference was refused,
115 Ib. 370,
872
REPORTS ON PRIVATE BILLS.
bill,-underwent so many important alterations in committee
as to be substantially a new bill, and its opponents urged
that it ought to be withdrawn. But the second reading of
the bill had been postponed, while a select committee was
considering the whole subject-matter of the bill; and when
that committee had reported, the bill was read a second time
and committed; and the report of the committee, together
with other reports upon the same subject, was referred to the
committee on the bill. These proceedings were regarded by
the committee as in the nature of an instruction, and amend-
ments had therefore been made, of a comprehensive character,
founded upon previous inquiries and recommendations. Under
these exceptional circumstanoes, the Speaker suggested that
the house would probably consider that the committee had
not so far exceeded its powers as to require the withdrawal
of the bill. But as private rights and interests were con-
cerned in the bill, and in the amendments made by the
committee, he recommended that it should be referred to
the examiners. This was accordingly done: and though it
appeared that in respect of some of the amendments the
Standing Orders had not been complied with, the Standing
Orders Committee reported that they ought to be dispensed
with; and the bill was allowed to proceed through all its
further stages.
Report to lie The report of the bill is ordered to lie upon the table, and
table.
the bill, if amended in committee, or a railway or tramway
bill, is ordered to lie upon the table; and every other bill,
when reported, is ordered to be read a third time. The bill
reported to the house is a duplicate copy of the committee
bill, including all the amendments and clauses as agreed to
by the committee. In 1882, the minutes of proceedings of
the committee on the Regent's Canal and Railway Bill
were ordered to be printed.?
In the case of private bills ordered to lie upon the table,
tween report
and consider. three clear days are required to intervene between the report
1
upon the
Interval be-
ation of bill.
1 131 Com. J. 354, &c.; 230 Hans.
Deb. 3rd Ser. 1679; Mr. Speaker
Brand's Note-Book.
2 137 Com. J. 254.
!
REPORTS ON PRIVATE BILLS.
873
and
of bill;
amendments.
ferred to
Orders Com-
and the consideration of the bill. And three clear days, at Bill as
amended to
least, before the consideration of the bill, a copy of the bill, be laid before
as amended in committee, is to be laid by the agent before chairman of
the chairman of ways and means, and the counsel to the means.
Speaker, and deposited at the Office of the Board of Trade.
One clear day's notice, in writing, is required to be given Notice of con-
sideration of
by the agent for the bill, to the clerks in the Private Bill bill.
Office, of the day proposed for the consideration of every
private bill ordered to lie
upon
the table.
When it is intended by the promoters or opponents to consideration
bring up any clause, or to propose any amendment on the clauses and
consideration of any bill ordered to lie upon the table, or
any verbal amendment, on the third reading, notice is to be
given, in the Private Bill Office, one clear day previously.
No clause or amendment may then be offered, unless the When re-
chairman of ways and means have informed the house, or Standing
signified in writing to Mr. Speaker, whether, in his opinion, mittee.
it be such as ought (or ought not) to be entertained by the
house, without referring it to the Standing Orders Committee.
And the clause or amendment, when offered by a party Clauses or
amendments
promoting or opposing a bill, is to be printed; and when to be printed.
any clause is proposed to be amended, it is to be printed
in extenso, with every addition or substitution in different
type, and the omissions therefrom in brackets, and under-
lined. And on the day on which notice is given, the clause
or amendment is to be laid before the chairman of ways
and means, and the counsel to Mr. Speaker. But if any
clause or amendment be proposed by a member, independently
of the parties concerned in the bill, he may either give notice
in the Votes, as in the case of a public bill, or in the Private
Bill Office.
If a clause or amendment be referred to the Standing Report of
Orders Committee, there can be no further proceeding until Orders Com-
the report has been brought up. When the clause or amend-
mittee.
1 112 Com. J. 215. 275.
2 The expense of printing is borne
by the party offering the clause or
amendment.
874
REPORTS ON PRIVATE BILLS.
Recommit-
ment.
ment has been offered on the consideration of the bill, they
report whether it should be adopted by the house or not, or
whether the bill should be recommitted. If a verbal amend-
ment be offered on the third reading, they merely report
whether it ought (or ought not) to be adopted by the house
at that stage.
Clauses and On the consideration of the bill, the house may, subject to
amendments.
the preliminary proceedings already described, introduce new
clauses or amendments, or the bill may be recommitted, or
ordered to be considered on a future day. If any clause or
amendment be opposed, its consideration is adjourned until
the next sitting of the house.
When bills are recommitted, they are referred to the
former committee; and no member can then sit, unless he
had been duly qualified to serve upon the original committee
on the bill, or be added by the house. In the case of a
recommitted bill, two has sometimes been the quorum.”
Unless the bill be recommitted by the house, with express
reference to particular provisions, the whole bill is open to
reconsideration, in committee.
Notice of One clear day's notice is to be given by the committee
clerk, of the meeting of the committee; and a filled-up bill,
as proposed to be submitted to the committee, on recommittal,
is to be deposited by the agent in the Private Bill Office, two
clear days before the meeting of the committee.
Entry of
When amendments are made by the house on the con-
amendments
sideration of a bill, or verbal amendments on the third
on report or
third reading; reading, and when Lords' amendments have been agreed to,
amendments. they are entered by one of the clerks in the Private Bill Office,
upon the printed copy of the bill, as amended in committee.
That copy is signed by the clerk, as amended, and preserved
in the office.
One clear day's notice, in writing, is required to be given
third reading. by the agent for the bill, to the clerks in the Private Bill
committee.
Notice of
1 Warrington and Altrincham Rail-
way Bill, 1853 ; 108 Com. J. 698.
2 Cleobury, North, &c. District
Roads, 1856 ; 111 Com. J. 256.
THIRD READING.
875
1
Office, of the day proposed for the third reading; and this
notice may not be given until the day after the bill has been
ordered to be read a third time. If necessary, the order for
the third reading may be discharged, and the bill recom-
mitted.
On the third reading, verbal amendments only may be Third read-
proposed, subject to the rules already stated in regard to the ing.
consideration of the bill as amended. In other respects this
stage is the same as in public bills; the house finally approves
of the entire bill, with all the alterations made since the
second reading, and preparatory to its being passed and sent
up to the House of Lords.2
This is usually the stage at which the Queen's consent is Queen's con-
sent.
signified to any bill affecting the property or interests of the
Crown, or Duchy of Lancaster; and the consent of the
Prince of Wales, when of age, on behalf of the Duchy of
Cornwall. On the 20th of April 1852, notice being taken
that her Majesty's interest was concerned in the Rhyl Im-
provement Bill, and that her consent had not been signified
thereto, the proceedings on the third reading of the bill, on
a previous day, were ordered to be null and void.4
No private bill is permitted to be sent up to the House of Certificate of
examination.
Lords, until a certificate is endorsed on the fair printed bill,
and signed by the proper officers, declaring that such printed
bill has been examined, and agrees with the bill as read a
third time.
Every stage of a private bill, in its passage through the No bill to
Commons, has now been described, with the several Standing more than one
pass through
Orders and proceedings applicable to each. In conclusion, it stage in a day.
may be added—1. “That no private bill may pass through
two stages on one and the same day, without the special leave
of the house ;” and 2. “That, except in cases of urgent and
3
1 106 Com. J. 202. 209.
2 See supra, p. 581 ct scq.
3 108 Com. J. 716; 110 Ib. 334;
132 Ib. 245, &c.
4 107 Ib. 157. See Blackwater
(Youghal) Wooden Bridge, 1866; 121
Com. J. 423.
876
LORDS' AMENDMENTS.
with.
Lords'
When Stand- pressing necessity, no motion may be made to dispense with
ing Orders to
be dispensed any sessional or Standing Order of the house, without due
notice thereof."
If the bill be subsequently returned from the Lords with
amendments.
amendments, notice is to be given, in the Private Bill Office,
one clear day before they are to be considered, and if any
amendments be proposed thereto, a copy of such amendments
is to be deposited; and no such notice may be given until
the day after that on which the bill has been returned from
the Lords. A copy of such amendments is also to be laid
before the chairman of ways and means, and the counsel to
Mr. Speaker, before two o'clock on the day previous to that
on which they are to be considered; and as the Lords' amend-
ments may relate to matters which might be construed to
involve an infringement of the privileges of the Commons;
and the amendments proposed to them may be in the nature
of consequential amendments, the Speaker's sanction must
be obtained before they are proceeded with. Before Lords'
amendments are taken into consideration, they are printed at
the expense of the parties, and circulated with the Votes;
and where a clause has been amended or a Lords' amendment
is proposed to be amended, it is printed in extenso, with every
addition or substitution in different type, and omissions in-
cluded in brackets and underlined. If any amendment be
proposed to the Lords' amendments, involving a charge upon
the people, it is committed to a committee of the whole
house.2 In the case of the Great Northern Railway (Isle of
Axholme Extension) Bill, the Lords' amendments were re-
ferred to a committee nominated by the committee of selec-
tion. In other cases, the Lords' amendments have been
re-committed, or referred, to the former committees by whom
the bills had been considered.4
i See supra, p. 587.
2 Ulverstone and Lancaster Rail-
way Bill; 106 Com. J. 358. Man-
chester Improvement Bill ; Ib. 398.
3 103 Com. J. 790.
4 Nene Valley Drainage Bill, 1852;
Salford Improvement Bill, 1862 ; 117
Ib. 360. Great Eastern Railway Bill,
1867.
LORDS' AMENDMENTS.
877
search Lords
In case a bill should not be proceeded with in the Lords, Committee to
in consequence of amendments having been made which in- Journals.
fringe the privileges of the Commons, the same proceedings
are adopted as in the case of a public bill. A committee is
appointed to search the Lords' Journals, of which previous
notice is to be given by the agent, in the committee clerks'
office; and on the report of the committee, another bill
(No. 2) will be ordered, including the amendments made by
the Lords.
878
PROCEEDINGS IN THE LORDS ON PRIVATE BILLS.
CHAPTER XXVII.
COURSE OF PROCEEDINGS IN THE LORDS UPON PRIVATE BILLS SENT
UP FROM THE COMMONS.
The two
classes of
bills.
Private bills FORMERLY, the only private bills which could originate in
the Commons. the Lords were those which did not concern rates, tolls, or
duties. But the convenient relaxation in the privileges of
the Commons, and the desire which has been evinced to
equalise the pressure of private business upon the two houses,
has led to arrangements for the introduction of a certain
proportion of bills into the House of Lords. The private
bills which have always been first brought into the Lords are
estate, naturalisation, name and divorce bills, and such as
relate to the peerage, which are now termed personal bills, in
the Lords' Standing Orders. In tracing the progress of
private bills through this house, it will be convenient to
assume that the bills comprised in the two classes, already
enumerated,” and which are now distinguished by the Lords
as local bills, have been sent up from the Commons, and that
the personal bills only are brought in upon petition. As the
progress of local bills has been already followed through the
Commons, it is now proposed to pursue them through their
various stages in the Lords.
It
may
here be observed that the progress of a bill through
mitted to
chairman, &c. the Lords, after it has passed the Commons, is much facili-
tated by the practice of laying the bill before the chairman
pending in
Commons. of the Lords' committees and his counsel, and giving effect
to their observations during the progress of the bill through
the Commons. The amendments suggested in the Lords are
Bills sub-
while bill
3 See supra, p. 808.
1 See supra, p. 768.
? See supra, p. 768.
I
PROCEEDINGS IN THE LORDS.
879
nature of
thus embodied with the other amendments, before the bill has
passed the Commons: and unless the bill be opposed, its pro-
gress through the Lords is at once easy and expeditious.
Another advantage of this mode of amending the bill, as it
were by anticipation, is that numerous amendments may
then be conveniently introduced, which could not be made
by the Lords without infringing the privileges of the
Commons
Whenever a private bill, in the nature of an estate bill, is Bills in the
brought up from the Commons, it is read a first time; and estate bills
a copy of the bill, signed by the clerk, is referred to two of referred to the
judges.
the judges in rotation, not being lords of Parliament, who
are to report their opinion, whether, presuming the allegations
of the preamble to be satisfactorily established, it is reason-
able that the bill do pass; and whether the provisions are
proper for carrying its purposes into effect, and what amend-
ments, if any, are necessary. In the event of their approving
the bill, they are to sign the same: but, except in special
cases, no other Commons bills are referred to the judges.
On the 3rd August 1854, the Lords first appointed Examiners of
examiners, to take proofs of compliance with the Standing Orders.
Orders, and the evidence taken before them was received by
the Standing Order Committee, as if it had been given before
themselves. On the 30th July 1858, the same powers were
delegated to the examiners, which those officers had exercised
for the Commons ever since their first appointment, in 1846.
By the present Standing Orders of their Lordships, there are
two officers of the house called “the Examiners of Standing
Orders for Private Bills," appointed by the house. A printed
copy of every private bill, except estate, name, naturalisation
and divorce bills (distinguished in the Lords' Standing Orders
as personal bills), proposed to be introduced into either house,
is required to be deposited in the office of the clerk of the
Parliaments on or before the 17th December; and the ex-
amination of the bills so deposited is to commence on the
880
STANDING ORDER COMMITTEE.
18th January. Any parties may appear before the examiners
and be heard, by themselves, their agents and witnesses, upon
a memorial addressed to the examiner, under precisely the
same conditions as in the Commons.
The examiner certifies whether the Standing Orders have
or have not been complied with; and when they have not
been complied with, he certifies the facts upon which his
decision is founded, and any special circumstances connected
with the case; and his certificate is deposited in the office of
the clerk of the Parliaments. If the examiner feels doubts
as to the due construction of any Standing Order, he may
make a special report, which will accompany his certificate.
In cases of petitions for additional provision in private
bills, originating in the House of Lords, the examiner is to
give two days' notice of the day on which it will be examined,
and he is to report to the house whether the Standing Orders
have or have not been complied with, &c.
By these arrangements the proofs of all the requirements
of the Standing Orders which are to be complied with, prior
to the introduction of the bill into either House of Parlia-
ment, are taken before the bill is brought into the House
of Lords; and every bill, in the two classes, and every pro-
visional order confirmation bill, brought from the Commons is
referred, after the first reading, to the examiners, before whom
compliance with such Standing Orders as have not been pre-
viously inquired into, are proved. The examiner gives two
clear days' notice of his examination; and memorials are to
be deposited, with two copies, before 12 o'clock on the pre-
ceding day. The certificates of the examiners are laid upon
the table of the house, the first day on which the house sits
after their deposit. The orders to be subsequently proved
will be presently noticed.
The Standing Order Committee is appointed at the com-
mencement of every session, and consists of forty lords,
besides the chairman of the Lords' committees, who is
Standing
Order Com.
mittee.
.
PROCEEDINGS IN THE LORDS.
881
always chairman of the Standing Order Committee; and
three lords, including the chairman, are a quorum.
The functions of this committee are now assimilated to
those of the Standing Orders Committee in the House of
Commons. When any certificate of the examiner, stating
that the Standing Orders have not been complied with, or
any special report has been referred to them, they make a
report in the same terms as that committee. The parties
affected may be heard by the committee, provided they have
deposited a statement, strictly confined to the points reported
upon by the examiner. In all opposed cases such statements
are to be printed. No party appearing before the committee
will be allowed to travel into any matter not referred to in
his statement. Such statements are to be lodged in the office
of the clerk of the Parliaments, not later than three o'clock
on the day before that on which the committee are appointed
to meet. Three clear days' notice is to be given of the meet-
ing of this committee.
The decision of the committee is ordinarily conclusive, but,
in special cases, is liable to reversal by the house.?
In addition to the Standing Orders already proved before Other Stand-
the examiners, prior to the introduction of the bill, there are
ing Orders.
other orders, compliance with which is proved at a later
period, before the examiner. They relate to particular classes
or descriptions of bills, and will be stated as they respectively
apply to each.
It is directed by an order, commonly known as “The
Wharncliffe Order," which has been often amended, and is
now divided into several sections :3 —
1. Every bill originating in this house, and conferring ad- Meeting of
ditional powers on the promoters thereof, being a company case of certain
proprietors in
already constituted by Act of Parliament, shall after the first bills originat-
ing in the
reading be referred to the examiners, who shall report as to Lords.
See supra, p. 779.
Smithfield Market Removal Bill,
4th July 1851.
S S. O., Nos. 62-66.
P.
3 L
882
THE WHARNCLIFFE ORDER.
may petition pany, association or co-partnership, who, by himself or any person
compliance with the several directions of that order relative
to the meeting of proprietors, and their approval of the bill
submitted to them.
Bill to be sub-
2. In the case of every bill brought from the House of
mitted to a
meeting of Commons, in which provisions have been inserted in that
proprietors of
incorporated house, to empower any company already constituted by Act
companies in of Parliament to execute, undertake or contribute towards
certain cases.
any work other than that for which it was originally esta-
blished, or to sell or lease their undertaking or any part
thereof, or to amalgamate the same or any part thereof with
any other undertaking, or to abandon their undertaking or
any part thereof, or to dissolve the said company, &c.; the
examiner shall report as to compliance with the order requir-
ing the consent of the proprietors.
Meeting of 3. Every bill originating in this house, and empowering
members of
limited com-
any company, association, or co-partnership formed or regis-
panies.
tered under the Companies Act, 1862, or otherwise than by
Act of Parliament, to do any act not authorised by the
articles of association is, after the first reading, to be referred
to the examiners, who are to report as to compliance with the
directions of the order, requiring the consent of a majority of
three-fourths in number and value of the shareholders.
4. Similar requirements are exacted in the case of such bills
brought from the Commons.
It is ordered,
Proprietor “That in case any proprietor, shareholder or member of any com-
dissenting
authorised to act for him in that behalf, have dissented at any meeting
called in pursuance of Standing Orders, Nos. 62, 63, 64, 65, or 66,
such proprietor shall be permitted to be heard by the examiner on the
compliance with such Standing Order, by himself, his agents and wit-
nesses, on a memorial to be addressed to the examiner, to be deposited,
together with two copies thereof, in the office of the clerk of the Par-
liaments, before twelve o'clock on the day before that appointed for
the examination; and on petitioning the house, by the committee on
the proposed bill, by himself, his counsel or agents and witnesses."
The Wharn. In 1858, the Commons also adopted the Wharncliffe order
the Commons. for the first time; and after the first reading of any bill
to be heard.
cliffe order in
PROCEEDINGS IN THE LORDS.
883
sent to sub-
pany.
originating in that house, to empower a company already
constituted by Act of Parliament to execute or contribute
towards any work other than that for which it was originally
established, &c., the bill is referred to the examiners, who are
to report as to compliance or non-compliance with that order.
It is further ordered by the Lords that,
“When any bill contains a provision authorising any com- Proof of con-
pany to subscribe towards, or to guarantee, or to raise any scriptions to
another com-
money in aid of the undertaking of another company, proof
is required before the examiner that the company so authorised
has duly consented to such subscription, &c., at a meeting of
proprietors, subject to the same provisions as the meeting
directed to be held under Order 61.
“Where such consent has been given, the bill in respect of
such provision need not be submitted to the approval of a
meeting to be held in accordance with Order 64.
“When any railway bill, originating in the House of Certain rail-
way bills sub-
Lords, charges payments on grand jury cess or local rate, it mitted to
is to be submitted to, and approved by, the grand jury or in Ireland.
grand juries
local authority, and notice given thereof; and proof of com-
pliance with these requirements is to be given before the
examiners.
“When in any bill brought from the House of Commons Consent of
directors, &c.
for the purpose of establishing a company for carrying on who are
any work or undertaking, the name of any person or persons bill to be
appears as manager, director, proprietor, or otherwise con- proved.
cerned in carrying such bill into effect, proof shall be re-
quired before the examiner that the said person or persons
have subscribed their names to the petition for the bill, or to
a printed copy of the said bill, as brought up to this house."
Whenever any alteration has been made, or is desired by Notices to be
the parties to be made, in any work of the second class, after åeposits made
given and
the introduction of the bill into Parliament, proof is to be where work
given before the examiners that plans and sections of such Parliament.
alterations, together with a book of reference, have been de-
posited with the clerk of the Parliaments and with the clerks
named in a
3 L 2
884
ALTERATION OF PLAYS.
Railway bills.
First and
second read-
ing.
of the peace, &c. two weeks before the introduction of the bill
into that house; and that notices have been published, and
application made to the owners, lessees, and occupiers of the
lands through which the alteration is intended to be made,
and their consent is to be proved before the examiner.
А.
copy of every railway bill, as brought into the House of
Lords, is to be deposited in the office of the Board of Trade,
not later than two days after the bill is read a first time; and
afterwards a copy of the bill, as amended in committee, is to
be deposited three days before the third reading; and proof
of compliance with this order is to be given by depositing a
certificate from the board, in the Private Bill Office.
These are the several Standing Orders of the Lords, peculiar
to that house, which must be proved before the examiner, or
otherwise. Others will presently be added, in describing the
further stages of bills.
No local bill is to be read a first time until after the exa-
miner has certified compliance with the Standing Orders, and,
if originating in the Lords, is to be read not later than three
clear days after such certificate. No local bill brought from
the Commons, or provisional order bill, is to be read a second
time until after the certificate of the examiner ; nor after
certain dates (generally in June) determined by Sessional
Orders. Bills relating to charities are not to be read a
second time until the house has received a report from the
Attorney-General. And railway bills for increasing masi-
mum rates are not to be read a second time until after a
report from the Board of Trade has been laid upon the table.
No local bill, or provisional order bill, is to be read a second
time earlier than the fourth day, nor later than the seventh
day, after the first reading, except in certain cases.
No petition praying to be heard upon the merits, against
any local bill or provisional order confirmation bill will be re-
ceived unless it be presented by being deposited in the Private
Bill Office, before three o'clock in the afternoon, on or before
1 109 Lords' J. 120, &c.
Petitions
against bills,
when to be
presented.
!
SECOND READING AND COMMITMENT.
885
additional
tion bills.
the seventh day after the first reading. In the case of such bills
originating in the House of Lords, petitions are to be pre-
sented on or before the seventh day after the second reading.
No petition for additional provision is to be presented Petitions for
without the sanction of the chairman of committees; and no provision.
such petition will be received in the case of a bill brought
from the House of Commons.
The same provision is made as in the Commons, in regard Houses of the
labouring
to bills in which power is sought to take houses inhabited by classes.
the working classes.
When powers are applied for to amalgamate with any Amalgama-
other company, or to sell or lease the undertaking, or pur-
chase or take on lease another undertaking, or to enter into
traffic arrangements, all such particulars are to be specified in
the bill as introduced into Parliament.
The second reading, as in the Commons, affirms generally Second read-
ing and com-
the principle of the bill, subject to the proof of the allega- mitment.
tions of the preamble, before the committee, and is imme-
diately followed by the commitment. Unopposed local and Unopposed
bills referred
provisional order confirmation bills are referred to “all the to open com-
lords present this day,” who are presided over by the chair- mittees.
man of the Lords' committees, assisted by his counsel. 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. Every bill has been previously examined Chairman of
by the chairman and his counsel : but at this period the and his
chairman exercises the authority of his own office, combined counsel.
with that of a committee of the house. In the absence of
the chairman from illness, another peer has been appointed
to take the chair in all committees, upon private bills, and
other matters. This supervision of private bills, by respon-
sible officers, originated in the House of Lords; and for
many years the House of Commons, relying upon the aid
which its legislation received from the other house, did not
adopt any similar arrangement of its own : but, as private
1 Viscount Eversley, 13th Feb. 1871; 103 Lords' J. 15.
committees
886
LORDS' COMMITTEES
bills.
business increased in importance, the house gradually en-
trusted to the chairman of ways and means, many duties
analogous to those performed by the chairman of committees
in the House of Lords. And with the assistance of the
counsel to Mr. Speaker, he is now charged with the super-
vision of all private bills.
Unopposed The chairman of committees may, in any case, report his
bills when
treated as op- opinion to the house, that any unopposed bill on which he
posed.
shall sit as chairman, ought to be proceeded with as an
opposed bill.
Committees Every opposed local bill or provisional order bill is referred
on opposed
to a select committee of five, selected by the committee of
selection, by whom also the chairman is appointed. Every
one of the committee is ordered to attend the proceedings
during their whole continuance; 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.
Committee of These committees are appointed in a manner very similar
selection.
to that adopted in the Commons. The committee of selection
consists of the chairman of committees 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 local or provisional order bill, and appoint
the chairman. On the 2nd April 1868, it was resolved that
the absence of any lord, except on sufficient reason, ought
not to prevent the committee of selection from calling for his
services.2
Sittings of
The attendance of the Lords upon such committees is very
committees on
bills.
strictly enforced. The committee is to
“Meet not later than eleven o'clock every morning and sit till four,
and shall not meet at a later hour, nor adjourn at an earlier hour,
without leave of the house, or without reporting the cause of such
later meeting or earlier adjournment. No committee shall adjourn
1 Oriental Bank Corporation Bill, 1873.
2 103 Lords' J. 103.
ON PRIVATE BILLS.
887
1
over any day except Saturday and Sunday, Christmas Day, and Good
Friday, without leave of the house:- but should a committee meet on
a Saturday, the sitting is to be in conformity with this order."
“All the members are to attend the proceedings of the committee,
during the whole continuance thereof."
“If any member is prevented from continuing his attendance, the
committee shall adjourn, and shall not resume its sittings in the
absence of such member, without leave of the house; but if the house
is not then sitting the committee may, with the consent of all parties,
continue its sittings in the absence of any member, provided that the
number of the committee be not less than four, and that the committee
report accordingly to the house, at its next meeting."
The committee on the bill, whether opposed or not, per- Proceedings
form the same duties as in the Commons. They examine the of committees
provisions of the bill, make amendments, add clauses, and, in
particular cases, inquire into the compliance with such Stand-
ing Orders as are to be proved before them. No committee
on a local or provisional order confirmation bill, however,
may examine into the compliance with such Standing Orders
as are required to be proved before the examiners.
If no parties appear on their petitions against a bill, or Where oppo-
sition with
having appeared, withdraw their opposition, the committee is
drawn.
forthwith to refer it back, with a statement of the facts, to
the chairman of committees, to be dealt with by him as if
originally unopposed.
The proceedings of a Lords' committee differ in no mate- Witnesses on
rial point from those of a committee in the Commons. By the
21 & 22 Vict. c. 78, any committee of the House of Lords may
administer an oath to the witnesses examined before them;
and thus the inconvenience of a previous attendance at the
bar of the house is avoided. When petitions against the bill Petitioners
are referred, the parties are heard by themselves, their coun-
sel, agents, and witnesses, in the same manner, and subject
to nearly the same rules, as in the Commons. Some are heard
upon the preamble, and others against particular clauses, or
in support of new clauses or amendments: but the committee
require both parties to state all the amendments which they
oath.
heard.
.
1 See debates on the absence of
Lord Gardner, 24th and 26th June
1845; 81 Haus. Deb. 3rd Ser, 1104.
1190.
888
LORDS' COMMITTEES
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.
It is ordered by the Lords, that proprietors dissenting at a
meeting held under the Wharncliffe order, may be heard
before the examiners on the compliances with such Standing
Order, or on petitioning the house, by the committee on the
bill.
Special Stand- The directions to Lords' committees upon local bills are
to
be proved orº generally similar to those of the Commons, already described,
enforced.
and the greater part of the Standing Orders relating to rail-
way and other local bills are the same. They differ, how-
ever, in regard to particular matters, which, by special Stand-
ing Orders, are required to be proved or enforced, either in
relation to all bills, or to bills of particular classes or descrip-
tions. These orders may now be enumerated.
Letters patent
Compliance with the following Standing Orders specially
bills, special relating to bills for extending the terms of letters patent, is
to be proved before the committee on the bill:-
1. " Every bill for confirming any letters patent is required to have
a true copy of such letters patent annexed."
2. “ The term of any letters patent for any invention or discovery
granted under the great seal of England, Scotland or Ireland, shall
not be extended, unless such letters patent will expire within two
years from the commencement of the session of Parliament in which
the application for such bill is to be made; and unless it shall appear
that the application for extending the term of the letters patent is
made by the person, or by the representatives of the person who him-
self originally made the invention or discovery for which such letters
patent were granted; and that the knowledge of such invention was
not acquired by such person by purchase or otherwise, or by informa-
tion that such invention or discovery was known and pursued in any
foreign country.”
The following orders respecting a cemetery or burial ground
are to be observed by the committee on the bill :
Cemetery or
“In every bill for making, altering or enlarging any cemetery or
burial ground. burial ground, a clause shall be inserted prohibiting the making, alter-
ing or enlarging such cemetery or burial ground within 300 yards of
1 See supra, p. 846 ct seq.
ON PRIVATE BILLS.
889
any house of the annual value of 501., or of any garden or pleasure
ground occupied therewith, except with the consent of the owner,
lessee and occupier thereof in writing.”
In every bill for making, altering or enlarging any ceme- Limits of
cemetery or
tery or burial ground, or for constructing gas works or sewage gas works,
works, or works for the manufacture or conversion of residual &o.
products, there shall be inserted a clause defining the limits
within which such cemetery or burial ground may be made,
or such works may be constructed.
In the case of railway bills, in addition to the general Provisions
required to bo
inquiries conducted by the committee, they are ordered to inserted in
observe that particular provisions be inserted for restricting railway bills.
loans on mortgage; for maintaining the levels of roads, and
for restraining the crossing of roads on a level. They are
also required to observe the same rules, and to introduce the
same clauses and provisions, as in the Commons, relative to
the non-payment of interest on calls or deposits out of
capital, and the financial arrangements of companies in cases
of purchase and amalgamation. All these provisions, how-
ever, being included in the bill when it leaves the Commons,
need not be more particularly mentioned here.
A clause is also required to be inserted in every railway
bill:
" The directors appointed by this Act shall continue in office until Election of
the first ordinary meeting to be held after the passing of the Act, and directors in
at such meeting the shareholders present, personally or by proxy, may panies.
railway com-
either continue in office the directors appointed by this Act, or any
number of them, or may elect a new body of directors, or directors to
supply the places of those not continued in office, the directors ap-
pointed by this Act being eligible as members of such new body."
No local bill is to be re-committed to the same or another Recommit-
committee before the third day on which the house shall sit ment of bills.
after notice has been given of the motion to re-commit the
bill.
In order to ensure attention to bills affecting public inte- Recommit-
ment to com-
i See supra, p. 847.
890
REPORT AND THIRD READING.
at Board of
Trade.
mittee of the rests, the chairman of committees may propose that any local
whole house.
bill be re-committed to a committee of the whole house;
and printed copies of such bills are to be delivered to the
Lords at least two days before the committee; but no local
bill so re-committed is, by reason of such commitment, to be
allowed to proceed as a public bill.
Amended It is further ordered, that all local bills in which any
bills to be re- amendments have been made in the committee, shall be
printed.
reprinted as amended, previously to the third reading, unless
the chairman of the committee shall certify that the re-
printing of such bill is unnecessary.
Amended A copy of every railway bill, as amended in committee, is
railway bill
to be deposited to be deposited at the Board of Trade three days before the
third reading, and proof thereof is to be given by depositing
a certificate from that board in the office of the clerk of the
Parliaments.
Amendments No amendment may be moved to any bill on the report
on report and
third reading, or third reading, unless it have been submitted to the chair-
man of committees, and printed copies, in any case in which
he shall not consider printing to be unnecessary, deposited in
the office of the clerk of the Parliaments one clear day, at
least, prior to such report or third reading.
Proceedings
When a private bill has been read a third time, and
reading passed, it is either returned to the Commons, with amend-
ments, or a message is sent to acquaint the Commons that
it has been agreed to without any amendment. The ordinary
proceedings in the Commons upon amendments made to
such bills were described in the last chapter. In the event
of any disagreement between the houses in reference to
amendments, the same forms are observed as in the case of
public bills.2
after third
See supra, p. 876.
2 See supra, p. 586.
LORDS' BILLS.
891
CHAPTER XXVIII.
RULES, ORDERS, AND COURSE OF PROCEEDINGS IN THE LORDS UPON
PRIVATE OR PERSONAL BILLS BROUGHT INTO THAT HOUSE UPON
PETITION : AND PROCEEDINGS OF TIE COMMONS UPON PRIVATE
BILLS BROUGHT FROM THE LORDS.
LOCAL AND PERSONAL AND
PRIVATE ACTS OF PARLIAMENT,
Having traced the progress of private bills received from Private bills
the Commons, through every stage in the House of Lords, the Lords.
originating in
until they are returned to the house in which they originated,
it is time to advert to the proceedings peculiar to those bills
which are first solicited in the Lords.
All estate, divorce, naturalisation, and name bills, and all Personal bills.
other private bills not elsewhere specified as local bills, are
termed personal bills.
It is ordered that-
“No personal bill shall be brought into this house until the house Petitions for
be informed of the matters therein contained, by petition for leave to bills.
bring in such bill;" and, " that one or more of the parties principally
concerned in the consequences of any personal bill, shall sign the
petition that desires leave to bring such personal bill into this house."
A copy of every personal bill is to be delivered to every Personal bills
person concerned before the second reading; and, in case of to be delivered
to persons
infancy, such copy is to be delivered to the guardian, or next concerned.
relation of full age, not concerned in the consequences of the
bill.
To these rules, however, there is a remarkable exception. Bills for resti-
Bills for reversing attainders; for the restoration of honours honours and
and lands; and for restitution in blood, are first signed by in blood.
the Queen, and are presented by a lord to the House of
Peers, by command of the Crown; after which they pass
through the ordinary stages, and are sent to the Commons.
892
LORDS' BILLS.
3
Here the Queen's consent is signified before the first read-
ing; and if this form be overlooked, the proceedings will be
null and void.1 After the second reading, the bill is com-
mitted to several members specially nominated, “and all
the members of this house who are of her Majesty's most
honourable privy council, and all the gentlemen of the long
robe.' » ? Such bills receive the royal assent in the usual form,
as public bills.
The Lords, having power to consult the judges in matters
of law, order that-
Petitions for "Every petition for an estate bill not approved by the Chancery
English estate Division of the High Court of Justice concerning estates in land in
bills referred
to two of the England, shall, on presentation, be referred to two of the judges of
judges. the Queen's Bench (Common Pleas or Exchequer] Division of the said
Court, who are to report to the house, under their hands, whether,
presuming the allegations contained in 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 amendments, if any, are required therein; and in
the event of their approving the said bill, they are to sign the same.”
Scotch and There are similar orders, mutatis mutandis, in respect of
Irish estate
bills.
Scotch and Irish estate bills.
Petition, &c. No estate bill will be read a first time, until a copy of the
to be delivered
to chairman petition and of the report of the judges has been delivered to
of committees. the chairman of committees.
Notice to Notice of an estate bill is to be given to every mortgagee,
mortgagees.
before the second reading.
Committees No committee is to sit upon any estate bill until ten days
on estate
bills.
after the second reading.
Petitions Petitions against estate bills are to be presented at such
against estate
bills.
time, and such proceedings are to be taken thereon, as the
chairman of committees shall, in each case, having regard to
all the circumstances, direct.
1 Drummond's Restitution Bill,
1853; 108 Com. J. 578.
2 108 Com. J. 584.
3 56 Lords' J. 260. 425 ; and Re-
port of Precedents, Ib. 286. Max.
well's Restitution Bill, 1848 ; 80 Ib.
270. 365. Lord Lovat's Restitution
Bill, 1854.
ESTATE, DIVORCE, AND NATURALIZATION BILLS.
893
At the commencement of every session, an order is made Time limited
for petitions
that no petitions for private bills shall be received after a for bills.
certain day; nor any report from the judges thereon, after
another day more distant;1 but this order, like the preceding,
refers to estate bills alone.
The several proceedings of committees on estate bills, the Committees
consents and acceptances of trusts, the evidence required, the on estate bills.
provisions to be inserted, and all other matters, are specifically
directed by the Standing Orders.?
Both houses have retained their Standing Orders in regard Divorce bills.
to divorce bills, as, for the present at least, parties beyond
the jurisdiction of the court for divorce and matrimonial
causes in England may still apply for divorce Acts; and par-
ticularly in India, whence a large proportion of such applica-
tions have ordinarily proceeded; but as these are exceptional
cases, for which it may be hoped that the legislature will
soon provide a more convenient tribunal, it will be sufficient
to direct the attention of parties interested to the Standing
Orders themselves, without a more particular allusion to
them.
It is ordered, " that no bill for naturalizing any person No natura-
born in any foreign territory shall be read a second time, to be read a
until the petitioner shall produce a certificate from one of his second time
majesty's principal secretaries of state respecting his conduct;" tificate, &c.
and that no such bill shall be read a second time, unless the
consent of the Crown has been previously signified. But
certificates of naturalization being now granted by the Secre-
tary of State, under the 7 & 8 Vict. c. 66, and 33 & 34 Vict.
c. 14, Naturalization Acts are no longer applied for, except in
a few exceptional cases, where more extended privileges are
sought than are granted under the general law, and espe-
cially the right of sitting in Parliament, which, though not
without a cer-
1 The order is not enforced where
a peer is the petitioner, or if proceed-
ings be pending in chancery, or if the
bill has been rendered necessary by
circumstances arising too late for
compliance with this order.
2 Standing Orders, Nos. 160-174.
894
ESTATE, DIVORCE, AND NATURALIZATION BILLS.
expressly conferred, has been given, in effect, by later Natu-
ralization Acts 1
Second read No particular interval is enforced between the first and
ing of bills.
second readings of personal bills, 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. No provisional order bill is to be read
a second time after some day in June, as defined by sessional
order.
Petitions It is not usual for petitions to be presented, praying to be
against
second read- heard against any private bills on the second reading, excep
ing.
divorce and peerage bills; and in those cases, whether there
are opposing petitions or not, counsel are heard and wit-
nesses examined at the bar, in support of the bill on the
second reading
Depositions It may be stated in regard to divorce bills, that when
divorce cases, the adultery is alleged to have been committed in India,
depositions taken before the judges in India are admitted
as evidence. By the Act 1 Geo. IV. c. 101, when any
person 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 to
the recorder of Bombay, for the examination of witnesses;
and the evidence taken before them, accompanied by a
declaration that the examinations have been fairly con-
ducted, 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 pro-
rogation or dissolution of Parliament, until the examination
shall have been returned: but "such proceedings may be
in India in
1 Bishop of Jerusalem, 1846 ;. Mr.
Tufton, 1849 ; Giustiniani, 1857,
1860; Bolckow, 1868; Sir Richard
Wallace, 1872; De Virte and Baron
Mackay, 1877; Baron de Ramingen,
1880, passed in two days.
COMMITMENT, REPORT, ETC.
895
.
resumed and proceeded upon in a subsequent session, or in
a subsequent Parliament, 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."1
When à petitioner prays that evidence may be taken in Warrant for
taking depo-
India by virtue of this Act, his petition is referred to a com- sitions, how
obtained.
mittee, upon whose report the orders are made for issuing
the necessary warrants, and the bill is read a first time. No
further proceeding can then take place until the depositions
have been returned from India; and, unless they are received
in time to proceed while Parliament is sitting, the bill is not
read a second time until the following session. If the pro-
ceedings 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 personal bills are referred to an open Commitment.
committee, consisting, as already explained, of the lords
then present; who inquire whether all the Standing Orders
applicable to such bills have been complied with, and take
care that the proper provisions are inserted.
Unlike other private bills, divorce bills, instead of being Divorce bills
committed to an open committee, or to a selected committee, of the whole
are committed, like public bills, to a committee of the whole house.
house.
When a private bill is reported from a committee, and any Report.
Third read.
amendments that may have been made are agreed to by the
ing, &c.
house, the bill is ordered to be read a third time on a future
day, when it is read a third time, passed, and sent to the
House of Commons, in the usual form.
The bills sent down to the Commons pass through the Lords' private
same stages, and are subject to nearly the same rules, as Commons.
other private bills, except that name bills need not be
printed.
bills in the
1 1 Geo. IV. c. 101, 8. 4.
2 78 Lords' J. 1043.
896
SECOND READING AND COMMITÄIENT.
mitment.
Referred to The bills when received from the Lords and provisional
examiners.
order bills are read a first time, and, unless they be name or
divorce bills, are referred to the examiners of petitions for
private bills. Two clear days' notice is given of the exami-
nation of every such bill, and memorials complaining of non-
compliance with the Standing Orders may be deposited before
twelve o'clock on the day preceding that appointed by the
examiner. If the examiner report that the Standing Orders
have been complied with, or that no Standing Orders are
applicable, the bills are read a second time. Not less than
three clear days, nor more than seven, are required to elapse
between the first and second reading, unless the bill has been
referred to the examiners, in which case it is not to be read
a second time later than seven clear days after his report, or
Second read- that of the Standing Orders Committee. Three clear days'
ing and com-
notice of the second reading is to be given, but not until the
day after the first reading. After the second reading, every
such bill, except a divorce bill, is referred to the committee of
selection, by whom it is committed to the chairman of ways
and means and two other members, of whom one at least is
not to be locally or otherwise interested in the bill, or one
Notices and member and a referee. There must be three clear days
between the second reading of a name or ordinary estate bill
and the sitting of the committee, and six clear days if the
estate bill relate to crown, church, or corporation property,
or property held in trust for public or charitable purposes.
One clear day's notice is given, by the clerk to the committee
of selection, of the sitting of the committee. Amendments
are rarely made to such bills, after they have been received
from the Lords; and on being reported from the committee
they are, therefore, ordered to be read a third time. One
clear day's notice of such third reading is to be given, but
not until the day after the bill has been ordered to be read a
Standing third time. Many of these bills, however, are received by
pended.
the Commons at so late a period of the session, that it
becomes necessary to suspend the Standing Orders, and
intervals.
Orders sus-
LOCAL AND PERSONAL ACTS.
897
mons.
tioner for bill.
to permit them to proceed without the usual intervals and
notices.
All that need be said of divorce bills in the Commons, is Divorce bills
in the Com-
that at the commencement of each session a committee is
nominated, consisting of nine members, of whom three are a
quorum, and is denominated “The select committee on
divorce bills.” To this committee all divorce bills are com-
mitted after the second reading. There are several orders
applicable to such bills, which need not be enumerated.
In the case of Chippendall's divorce bill, in 1850, the Fees remitted.
committee made a special report, recommending the remission
of the fees on account of the poverty of the promoter; and
their report was agreed to by the house. On the 13th June Death of peti-
1854, Berens' divorce bill had been read a third time and
passed, when intelligence was received of the death of Mr.
Berens, the husband and petitioner for the bill. On the fol-
lowing day the proceedings upon the third reading were
ordered to be null and void. Another day was named for
the third reading, but the bill was subsequently allowed to
drop.
All private bills, during their progress in the Commons, Divisions of
are known by the general denomination of private bills : but private bills.
in the Lords the several bills, which are divided into the
first and second class, are now distinguished in the Standing
Orders as local bills; and estate, divorce, naturalization, name,
and other bills not specified as local bills, are termed personal
bills. 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 passed before the year 1. Local and
personal acts.
1851, contained a clause, declaring that it "shall be a public
Act, and shall be judicially taken notice of as such :” but by
Lord Brougham's Act of 1850, for shortening the language
1 105 Com. J. 563; and sce infra, p. 901.
P.
3
898
PRIVATE ACTS PRINTED.
of Acts of Parliament, it is enacted that every Act" shall be
deemed and taken to be a public Act, and shall be judicially
taken notice of as such, unless the contrary be expressly pro-
vided and declared by such Act,”1 and the “public clause
has consequently been omitted from all local and personal
Acts since that time. Acts of this class receive the royal
assent in the form of public Acts. The practice of declaring
particular Acts of a private nature to be “public Acts,” com-
menced in the reign of William and Mary, and was soon
extended to nearly all private Acts, by which felonies were
created, penalties inflicted, 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 enactments : but since 1798 they have been printed in
a separate collection, and are known as local and personal
Acts. With the exception of inclosure, or inclosure and
drainage Acts, all the bills of the two classes so often re-
ferred to are included in this category, and have contained
the public clause. In some special cases where local and
personal Acts have been of an unusually public character,
they have not only contained the ordinary public clause, but
have been printed amongst the public general. Acts.
Since 1867 a considerable class of Acts, previously included
in the collection of the public general Acts, have been trans-
ferred to the local and personal Acts. These were Acts for
the confirmation of provisional orders, and for various local
purposes. This change was introduced with a view to reduce
the inconvenient bulk of the statute book, and has been
carried out as far as circumstances will admit.
2. Private acts 2. From 1798 to 1815, the private Acts, not declared
printed.
public, were not printed by the Queen's printers, and could
only be given in evidence by obtaining authenticated copies
1 13 Vict. c. 21, s. 7.
4 Manchester Stipendiary Magis-
2 Preface to Spiller's Index to the trate Acts, 53 Geo. III. c. 72; 7 & 8
Statutes.
Vict. c. 30. Manchester Warehousing
3 In the black letter edition of the Act, 7 & 8 Vict. c. 31.
public general acts.
Public acts of
a local cha-
racter.
PRIVATE ACTS NOT PRINTED,
899
tions.
from the statute rolls in the Parliament Office : but since
1815, the greater part of the private Acts have been printed
by the Queen's printers, and have contained a clause declar-
ing that a copy so printed “shall be admitted as evidence
thereof by all judges, justices, and others.” These consist,
almost exclusively, of inclosure, or inclosure and drainage,
and estate Acts. Since Lord Brougham's Act, this evidence
clause has been retained, with the addition of an enactment
that the “ Act shall not be deemed a public Act.'
3. The last class of Acts are those which still remain un- 3. Private acts
not printed.
printed: 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.
A local and personal Act, declared public, may be used for Legal distinc-
all purposes, as a public general statute. It may be given
in evidence upon the general issue, and will be judicially
noticed, without being formally set forth. Nor is it neces-
sary 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 enactments. A private
Act, on the contrary, whether printed or not, must be specially
pleaded, and given in evidence like any other record. If
printed, the copy printed by the Queen's printers is received
as an examined copy of the record; if not printed, an authen-
ticated copy is produced from the statute rolls in the Parlia-
ment office.
By the Act 8 & 9 Vict. c. 113, s. 3, it is enacted “that all Queen's
printers'
copies of private and local and personal Acts of Parliament
copies.
not public Acts, if purporting to be printed by the Queen's
printers," "shall be admitted as evidence thereof by all
courts, judges, justices, and others, without any proof being
given that such copies were so printed.”
1 2 Phillipps & Amos, 611.
3 v2
900
FEES PAYABLE ON PRIVATE BILLS.
CHAPTER XXIX.
FEES PAYABLE BY TIE PARTIES PROMOTING OR OPPOSING PRIVATE
BILLS.
TAXATION OF COSTS OF PARLIAMENTARY AGENTS, SO-
LICITORS AND OTITERS.
bills.
Fees payable The fees which are chargeable upon the various stages of
on private
private bills, and are payable by the several parties promoting
or opposing such bills, have been settled in both houses. The
tables of fees are well known to parliamentary agents, and
to suitors; they are published in the Standing Orders of the
Commons, and in the House of Lords they are separately
printed, and are readily accessible to parties interested.
It is declared by the Commons, “That every bill for the
particular interest or benefit of any person or persons, whether
the same be brought in upon petition or motion, or report from
a committee, or brought from the Lords, hath beon and ought
to be deemed a private bill, within the meaning of the table
of fees; " and that “the fees shall be charged, paid, and re-
ceived at such times, in such manner, and under such regu-
lations as the Speaker shall from time to time direct.” 1
In both houses there are officers whose special duty it is to
lected,
take care that the fees are properly paid by the agents, who
are responsible for the payment of them. If a parliamentary
agent, or a solicitor acting as agent for any bill or petition,
be reported as a defaulter in the payment of the fees of the
house, the Speaker orders that he shall not be permitted to
enter himself as a parliamentary agent, in any future pro-
ceeding, until further directions have been given. In the
House of Commons the whole of the fees were formerly col-
lected and carried to a fee fund, whence the salaries and
How col-
1 Table of fees.
2 Scc supra, p. 780.
?
T.IX.ITION OF COSTS.
901
1
expenses of the establishment were partly defrayed; the balance and applicd.
being supplied from the consolidated fund: but by the 12 &
13 Vict. c. 72, all monies arising from the fees of the house
are carried to the consolidated fund; and the officers are paid
from the public revenues. In the House of Lords, the fees
upon private bills have also been appropriated to a general
fee fund.
In the case of Chippendall's Divorce Bill in 1850, the pro- Divorce bill
in forma
moter petitioned to be allowed to prosecute the bill in formâ pauperis
.
pauperis, and in both houses this privilege was conceded to
him, on proof of his inability to pay the fees. The com-
mittee on the bill in the Commons, to whom his petition had
been referred, distinguished his case from that of the suitor
for any other kind of bill, and considered that the remission
of the fees would not afford a precedent in other parliamen-
tary proceedings.
In pursuance of an address of the House of Commons, in Turnpike road
continuance
1829, the fees payable upon all bills for continuing or amend-
ing Turnpike Road Acts, which receive the royal assent, are
discharged by the Treasury. 2 . But such Acts are now
usually continued by a General Turnpike Act Continuance
Bill.
The last matter which need be mentioned in connection Taxation of
with the passing of private bills, is the taxation of the costs
incurred by the promoters, opponents, and other parties.
Prior to 1825, no provision had been made by either house,
as in other courts, for the taxation of costs incurred by suitors
in Parliament. In 1825, an Act was passed to establish such
a taxation in the Commons;; and in 1827, another Act was
passed, to effect the same object in the Lords. Both these
Acts, however, were very defective, and have since been re-
pealed. By the present “House of Commons” and “House
acts.
costs.
See report, 25th July 1850 ; 105
Com. J. 663. In 1604, counsel was
assigned to a party, in a private bill,
in forma pauperis, he “ being a very
poor man.
1 Ib. 241.
2 S4 Ib. 90.
3 6 Geo. IV. c. 69.
7 & 8 Geo. IV. c. 64.
902
TALATION OF COSTS.
cers.
for taxation,
of Lords Costs Taxation Acts," a regular system of taxation
has been established in both houses, and every facility is
afforded for ascertaining the reasonable and proper costs
arising out of every application to Parliament.
Taxing offi- In each house there is a taxing officer, having all the
necessary powers of examining the parties and witnesses on
oath, and of calling for the production of books or writings
Lists of in the hands of either party to the taxation. Lists of charges
charges.
have been prepared, in pursuance of these Acts, in both
houses, defining the charges which parliamentary agents,
solicitors, and others will be allowed to charge for the various
services usually rendered by them.?
Applications
Any person upon whom a demand is made by a parlia-
mentary agent or solicitor, for any costs incurred in respect
of any proceedings in the house, or in complying with its
Standing Orders, may apply to the taxing officer for the
taxation of such costs. And any parliamentary agent or
solicitor who may be aggrieved by the non-payment of his
costs, may apply, in the same manner, to have his costs
To be within taxed, preparatory to the enforcement of his claim. The
after delivery client, however, is required by the Act to make this applica-
tion within six months after the delivery of the bill. But
the Speaker in the Commons, or the clerk of the Parliaments
in the Lords, on receiving a report of special circumstances
from the taxing officer, may direct costs to be taxed after the
expiration of the six months.
Costs of both The taxing officer of either house is enabled to tax the
together. whole of a bill brought before him for taxation, whether
the costs relate to the proceedings of that house only, or to
the proceedings of both houses; and also other general costs
incurred in reference to the private bill or petition. And
each taxing officer may request the other, or the proper officer
of any other court, to assist him in taxing any portion of a
six months
of bill.
houses taxed
1 10 & 11 Vict. c. 69 ; 12 & 13 Vict.
c. 78.
2 These lists are printed, for dis-
tribution to all persons who may
apply for them.
TAXATION OF COSTS.
903
bill of costs. And the proper officers of other courts may, in
the same manner, request their assistance in the taxation of
parliamentary costs.
In the Commons the taxing officer reports his taxation to Certificate to
the Speaker, and in the Lords to the clerk of the Parliaments. effect of a
If no objection be made within twenty-one days, either party warrant to
confess judg-
may obtain from the Speaker or clerk of the Parliaments, as ment.
the case may be, a certificate of the costs allowed, which in
any action brought for the recovery of the amount so certified,
will have the effect of a warrant of attorney to confess judg-
ment, unless the defendant shall have pleaded that he is not
liable to the payment of the costs.
By the House of Commons Costs Taxation Act, 1879, the Powers of
taxing officer
powers of the taxing officer were extended to costs in respect extended.
of provisional orders and certificates, and bills promoted by
public authorities, and opposition to public bills.
quested by a Secretary of State, or by the Local Government
Board, he is also required to tax costs incurred in respect of
any provisional order or certificate.
If re-
(905)
APPENDIX.
I.
PROCLAMATION FOR ASSEMBLING PARLIAMENT ON A DAY EARLIER
THAN THAT TO WHICH IT STOOD PROROGUED.
By the QUEEN.
A PROCLAMATION.
VICTORIA, R.
WHEREAS our Parliament stands prorogued to Thursday the four-
teenth day of December next; and whereas, for divers weighty, and
urgent reasons, it seems to us expedient that our said Parliament
shall assemble and be holden sooner than the said day: We do, by and
with the advice of our Privy Council, hereby proclaim and give notice
of our royal intention and pleasure that our said Parliament, notwith-
standing the same now stands prorogued, as hereinbefore mentioned,
to the said fourteenth of December next, shall assemble and be holden
for the despatch of divers urgent and important affairs, on Tuesday
the twelfth day of December next; and the Lords Spiritual and Tem-
poral, and the Knights, Citizens, and Burgesses, and the Commissioners
for Shires and Burghs of the House of Commons, are hereby required
and commanded to give their attendance accordingly, at Westminster,
on the said twelfth day of December, one thousand eight hundred and
fifty-four.
Given at our Court at Windsor, this twenty-seventh day of
November, in the year of our Lord' one thousand eight hundred
and fifty-four, and in the eighteenth year of our reign.
God save the QUEEN.
906
APPENDIX.
II.
PROCLAMATION FOR ASSEMBLING PARLIAMENT FOR THE DESPATCH
OF BUSINESS, UPON A DAY ALREADY APPOINTED FOR ITS
ASSEMBLING.
By the QUEEN.
A PROCLAMATION.
VIOTORIA, R.
WHEREAS our Parliament stands prorogued to Thursday the
seventeenth day of January next: We, by and with the advice of our
Privy Council, hereby issue our Royal Proclamation, and publish and
declare our royal will and pleasure, that the said Parliament shall, on
the said Thursday the seventeenth day of January, one thousand
eight hundred and seventy-eight, assemble and be holden for the
despatch of divers urgent and important affairs; and the Lords
Spiritual and Temporal, and the Knights, Citizens and Burgesses, and
the Commissioners for Shires and Burghs of the House of Commons,
are hereby required and commanded to give their attendance accord-
ingly, at Westminster, on the said Thursday the seventeenth day of
January, one thousand eight hundred and seventy-eight.
Given at our Court at Windsor, this twenty-second day of
December, in the year of our Lord one thousand eight hundred
and seventy-seven, and in the forty-first year of our reign.
GOD save the QUEEN.
APPENDIX.
907
III.
FORM OF CERTIFICATE TO AUTHORIZE THE SPEAKER TO ISSUE
A WARRANT FOR A NEW WRIT DURING A RECESS.
Schedule of 24 Geo. 3, sess. 2, c. 26, and 21 & 22 Vict. c. 110.
day of
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
; or, is become a peer of Great Britain, and that a writ of
summons hath been issued under the great seal of Great Britain to
summon him to Parliament [as the case may be], or has accepted the
office of (as the case may be], and has been gazetted thereto in the
Gazette, dated the
day of
and has thereby vacated
his seat; 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 the Act 24 Geo. 3.
INDEX
ABBOT, Mr. Speaker; speech of, at the
bar of the Lords (1814), 270, n.; ruling
of, as to personal interest, 420; speaks
in committee of the whole house, 416.
Abercromby, Mr.; his complaint of words
used by the lord chancellor, 101.
Abingdon, Lord; case of published speech,
124.
Abjuration, Oath of. See Oaths.
Absence, Leave of. See Leave of Absence.
Abstracts, made of returns presented to
the House, 634.
Access to the Crown. See Crown, II.
Account, Votes on, in Committee of Sup-
ply, 678.
Accounts and Papers; protected from libel
law by statute; 126; laid before Par-
liament, 623; obtainable by order or by
address, ib. ; presented by command of
the Crown or under Act, 627; unop-
posed motions for, and for papers to be
presented immediately, 288. 627; power
of committees to send for papers, 454 ;
after answer to address, the parties are
subject to an order, 624; or further ad-
dresses moved, ib.; messages for, 625;
not usual in certain cases, ib. ; in both
houses, ib.; orders for, discharged, 624;
added to, 625; relating to theother house,
ib.; subjects of returns, ib.; opinions of
law officers, ib. ; returns ordered to be
made forthwith, 626; effect of a proro-
gation, 627; the presentation of papers,
ib.; debate on, objectionable, 628; dum-
mies, 629; ordered to be printed, ib.;
unprinted, 630; distribution of printed
papers by Lords, ib.; sale of, by the
Commons, ib. ; delivered to meinbers by
vote office, 631; transmitted by post,
ib.; their arrangement and statistical
character, 632; certain orders and re-
gulations laid before parliament, 630;
preparation of orders for returns, 634 ;
blank forms, ib. ; abstracts, ib. ; Act for
publication of papers, 184.
Acts of Parliament; annendment of, in the
same session, 338 ; read, in proceedings
of the house, 307. 526; commencement
of, 598; public, repealed by private bills,
753; public, superseding private acts,
759.
See also Dills. Private Bills.
Additional Provision (Private Bills); peti-
tions for, 788; when considered by the
whole house, 789.
Addresses to the Crown; in answer to the
royal speech, 223; dress of mover and
seconder of, in both houses, ib.; amend-
ments moved to, ib. 305. 319; presen-
tation of addresses by whole house, 70.
223, 224, n. 515; by lords with white
staves, 224. 515; by privy councillors,
70. 224. 515; by members specially
nominated, 515; her Majesty's pleasure
inquired when she will be attended, 224.
514; addresses in answer to written
messages from the Crown, 511; to verbal
messages, 512 ; joint addresses, 513;
separate, 514 ; prepared by committee,
512. 514; presentation of the resolution
for address, 514; prefaced by Speaker
on presentation, ib. n. ; subjects of ad-
dresses, 515; for prosecutions, 95; for
proclamations against absconding wit-
nesses, 472. 474. 692; for accounts and
papers, 623; not to relate to pending
bill, 515; answers to, 516; interrupt
debate, 307; orders for, discharged, 624;
or superseded by a resolution, 329;
addresses for public money, 691; joint
addresses for commissions of inquiry
into corrupt practices, 731.
Adelaide, Queen; message to Commons
regarding provision for, 505, n.; forms
on royal assent to bill, providing for,
597, n.
ADJOURNMENT:
I. Of Debate.-Rules, and form of
motion, 301. 394; when moved, ib.; it
may not be moved by a member who
has spoken, 361; when moved he may
speak again, ib.; no adjournment of
debate in committee of whole house,
439; nor of a vote in committee of sup-
ply, 678; motions analogous thereto in
coinmittees, 410.
II. Of the House.-In sole power of
each house, 51; interference of Crown
regarding adjournment, 52; long ad-
joinments ; adjournment of both
houses to enable the Commons to
consider new rules of procedure,
ib. 12.; imprisonment by the Commons
not concluded by, 116, 12.; adjournment
by the Speaker if 4.) inembers not pre-
seut at four o'clock, 236; except when
910
INDEX.
ADJOURNMENT-continued.
a commission is appointed, 236; when
notice taken, or it appears on division
that 40 members are not present, 237;
sittings on Wednesday and Saturday,
ib. ; in committee, ib. 439. 570; Friday
and Wednesday adjournments, 238. 282;
otherwise only upon question, 239; sit-
tings suspended without, 241. 282;
adjournments as a mark of respect to
deceased members, 241; on royal fune-
rals, 212; motions for adjournment of
the house to supersede questions, 300.
350; restrictions put on use of these
motions for purposes of obstruction,
302 ; precedence given to motions
for adjournment of the house at its
rising, beyond next day, 293, and 1.;
no amendment to, except as to time,
351; irrelevant specches on, 350; re-
straint of motions for adjournment
before public business, 356; precedents,
357; discussion of orders of the day, or
motions, not permitted on, 352; reply
allowed to mover of a substantive ino-
tion for adjournment, 360, 361 ; not to
be moved by member who has moved
adjournment of debate, 301; debates on
motions for adjournment to be confined
to the matter of such motions, 394; divi-
sions on questions of adjournment, 407;
extended adjournments after passing of
Appropriation Act, 690, and n.
III. Of Committees.-Select, 464; on
private bills, 869.
Admiralty, secretaryship to, does not va-
cate seat, 704; (Private Bills); super-
vision of, over, 770.809. Former juris-
diction of, in certain cases, transferred
to Board of Trade, 809.
Admiralty court; judge of, disqualified to
sit in Parliament, 34, n.
Admonition; by Speaker, distinction be-
tween, and reprimand, 115.
Advertisement; notices by, of private bills,
769; duty on, proceedings on reduction
of, 686, 12.
Affidavit; evidence of breach of privilege
in Ireland, 106; of compliance with
Standing Orders of both houses, 775.
846.
Affirmations ; permitted to Quakers, &c.,
209; bill for this purpose, not originat-
ing in committee, 528; Mr. Bradlaugh's
case,
See also Oaths.
Agency; proof of, before election com-
mittees and election judge, 726 et seq.
Agents (Private Bills). See Parliamentary
Agents.
Aid and supply, bills of, 694.
Albert, Prince; excepted from the opera-
tion of i Geo. I. stat. 2, c. 4..32.
Aliens; incapable of voting, 31; not eli-
gible as members, ib.; entitled to all
political rights, by recent acts, 32; cases
of, ib. n.; general law for naturaliza-
tion of, 767.
Amalgamation bills, 884 ; locus standi
against, 828.
Ambassadors, &c.; acceptance of office of,
does not vacate seat, 706.
AMENDMENTS :
In regard to public bills; to question for
leave to bring in bill, 525; bill ordered
by way of amendment, ib.; no amend-
ment to question of first reading or
printing a bill, 541; amendments to
question for second reading of bills, 546;
for committal of bill, 552, 553. 661; re-
straint imposed, ib. 1.; time for moving
such amendments, 552; to bills in com-
mittee, 561. 564; must be coherent,
565; to bills committed pro formai, 568;
to bills on consideration of bill as
amended, 572 ; on the third reading,
verbal amendments only, 582; restric-
tions to amendments on stages of bills,
320 ; consideration of Lords' amend-
ments, 586; consequential amendments,
587; amendments agreed to by mistake,"
589; no amendments to bills after agree-
ment of both houses, 587; amendments
- agreed to, with special entries, 588.645;
amendments to amendments to be rele-
vant, 587; conferences on amendments,
490. 492. 589, 590. See also Bills.
To private bills ; (Commons), amend-
ments before sitting of committee, 808;
in committee, 861; to be within order of
leave, ib.; to preamble, 864; on consi-
deration of bill as amended, and third
reading, 873; referred to chairman of
ways and means, ib.; to Standing Orders'
Committee, ib.; notice of, in Votes, ib.;
to be printed, ib. ; consideration of op-
posed amendments adjourned, 874 ; no-
tice of amendinents made in the House,
ib.; Lords' amendments considered, ib.;
(Lords), amendments by chairman of
Lords' committees, inserted in bills be-
fore the Commons, 879; amendments
in committee, 887; on report, 890.
To Questions; amendment must be
withdrawn or negatived before leave
given to withdraw motion, 299; to evade
or alter question, 305; objects and prin-
ciple of amendments, 316; the various
modes of, 317; times for moving, ib.;
notice of, ib.; moved without notice, ib.;
priority where notices of amendments
given, 318; amendments to leave out
210 et seq.
INDEX.
911
AMENDMENTS- continued.
words, 317; to leave out words and to
insert or add others, 318; to insert or
add words, 319; question and amend-
ment, both objected to, 318; restrictions
in proposing amendments, 320; same
amendments may not be moved when
previously negatived, 330; amendments
to proposed amendments, 322. 324. 683;
amendment to be relevant to question,
325; to be consistent with itself, 326;
moved before previous question, ib.;
moved afterwards, ib. ; seconded in the
Commons, 327 ; except in committee,
334 ; amendments on going into com-
mittee, 432; question of adjournment
not to be amended, except as to time,
351; amendments to question for second
reading of resolutions, 442. 682; to in-
structions to a committee, 557; on report
of resolutions from committees of whole
house, 443. 681, 682; to proposed
amendment of resolutions, 683 ; mode of
putting amendments in committees of
supply or ways and means, 661; mem-
bers speak again after an amendment
is moved, 362; member not voting on
an amendment, may vote on main ques-
tion, 402; amendments moved by an
interested member, 424.
America, House of Representatives of;
restriction on divisions, 407, n.
Ancient Baronies ; precedence to holders
of, in House of Lords, 226.
Anne, Queen; the last sovereign who at-
tended on the first day of a new parlia-
ment, 196, n.; who attended Lords'
debates, 503, and 1. ; refused the royal
assent to a bill, 596.
Apologies; when required of members,
371. 375; Dr. Kenealy's case, 376.
Appeals for Murther or Felonye; declara-
tion as to (1689), 741.
Appearances (Private Bills); on memo-
rials, 776; on bills, 781; on petitions
against, 781. 815. 855.
Appellate Jurisdiction of the Lords, 56.
Applications to Owners, Lessees, and Oc-
cupiers (Private Bills), 769.
Appropriation Act; passed at end of ses-
sion, 638. 687; not to be anticipated
prior to end of session, 684; its enact-
ments, 688; form of proceeding on,
changed (1854), ib.; power to Treasury
to alter proportionate amounts, 688 ;
diversion of original votes sanctioned
by a Committee of the whole House, ib.;
debates thereon, 689; effect of, antici-
pated by votes of Commons, 639; par-
liament not to be prorogued or dissolvca
APPROPRIATION ACT—continucd.
before passing of, 639, 640; royal assent,
689; adjournments, after passing of,
690.
Archbishops. See Bishops.
Archdale, John, a Quaker, case of, 209.
Army Discipline and Regulation Act,
(1879), 659; not to come into force ex-
cept by annual Act, ib.
See also Commissions. Court Martial.
Mutiny Bills.
Arrest, freedom from ; antiquity and ex-
tent of privilege, 127; and from distress
of goods, 128 ; carly precedents (Com-
mons), 128-133; (Lords), ib.; statutes
defining the privilege, 135. 146 ; mode
of enforcement of the privilege, 135,
136; servants' privilege discontinued,
137; duration of the privilege, 138 ;
after a dissolution, 142; persons in
arrest elected members, 143, or becom-
ing peers, ib.; privilege of not being
impleaded, 144 ; suits stayed by letter,
145; present state of the privilege, 146;
privilege from summons as witness or
juror, 148, 149; no privilege against
criminal commitments, 151; causes of
commitment communicated, 153. 606;
extent of privilege in cases of bank-
ruptcy, or commitment for contempt,
154, 155; privilegcs of witnesses and
others connected with service of Par-
liament, 161, 162.
Ash Wednesday, Ascension Day, &c.;
sitting of Committees thereon, 243.
464.
Ashby and White, case of, referred to, 59.
75. 180. 404.
Attachment. See Commitment. Contempt
of Court.
Attainder, Acts of ; disqualify from a seat
in Parliament, 39; a branch of Parlia-
mentary judicature, 57. 744; petition
from person attainted received, 613;
bishops vote on bills of, 743; passing
of, 744; reversal of, 891.
Attendance of Members; duty of, on scr-
vice of Parliament, 228, 229; on com-
mittees, 233. 803, 804 ; attendance of
the Lords procured by summons, 229;
call of House of Lords, ib. ; of Com-
mons, 230,
Attorney-General, the; part of the Con-
silium Regis, 57; directed by Parlia-
ment to prosecute, 95. 102. 164. 729 ;
practice of directing him, or addressing
Crown for this purpose, 96; institutes
prosccutions for corrupt practices with-
out directions, 729.
912
INDEX.
Atwyll's Case (17 Edw. IV.); 69. 129.
145.
" Aylesbury Men,” the; case of, referred
to, 61. 75. 172. 180.
BAIL; persons committed by Parliament
not admitted to, 83; exceptions, 113;
persons impeached bailed, 737; members
not admissible as, 144.
Ballot; on giving notice of motion, 285;
select committees appointed by, 447.450.
460; formerly election committees, 716.
Bankruptcy; position of members, how
far affected by, 38, 39. 154 ; privilege
of Parliament not applicable to bank-
rupts, 38. 154; issue of new writs in
case of, during recess, 701; Peers be-
coming bankrupt, 38, 39.
Banks; introduction of bills relating to,
531.
Bar of the House ; (Lords), prisoners
brought to, 116; witnesses sworn, and
examined at, 472; witnesses at select
committees not sworn at, 479; papers
delivered at, 627; attendance of Com-
mons at, on the opening, &c. of parlia-
ment, 195. 201. 220. 689; strangers ad-
mitted below, 266 ; peers tried at, 741;
(Commons), prisoners brought to, 116;
members not sworn, sit below, 217, n.;
heard at the bar, 207. 211 et seq. ; wit-
nesses examined at, 484; members ap-
pearing at, to present bills, 627; or.papers,
ib.; petitions presented at, 614, 615.
Barnardistou v. Soame, case of, referred
to, 59. 172.
Barons; origin of the title, 11.
Beaumont, John; the first upon whom
the title of viscount was conferred, 11.
Beer Bills; held to concern trade, 530.
Bentham, Jeremy, quoted, 380, 1.
Benyon v. Evelyn; case supporting juris-
diction of the courts in matters of privi-
lege, 174.
Biggar, Mr. ; suspension of, for disre-
garding authority of the chair, 349.
Bill of Rights; declaratory of ancient law
of England, 5; that no Roman Catholic
shall possess the Crown, ib. ; that dis-
pensing with laws, or levying taxes
without consent of parliament is illegal,
5,1. 638, n.; confirms freedom of speech,
in parliament, 123; and right to peti-
tion for redress of grievances, 606, n.;
condemns prosecutions for inatters cog-
nisable only in parliament, 178; parlia-
ment prorogued to admit of its renewal,
49,
BILLS-
Generally.—Bill read pro formå at be-
ginning of session, 222; general pre-
cedence given to particular bills, 280 ;
rule that same question be not twice
offered in one session, applied to bills,
328. 330; Lords' Journals inspected,
and new bills ordered, 336. 877; bills
laid aside, 337; Lords search Commons'
votes, ib.; prorogation to renew bills, ib.;
acts may be amended in session in which
they are passed, 338; proposals for sus-
pending or resuming bills, ib.; dura-
tion of temporary laws to be expressed
in bill, 583; provision relating to con-
tinuance bills, ib.; royal recommenda-
tion or consent to, 507. 786. 875; with-
held, 509 ; proceedings on bill passed
without, declared void, 508. 875; ad-
dresses not to be presented, relating to
a bill depending, 515 ; ancient and
modern system of enacting laws, 519,
520; similarity of practice in both
houses, 520; where bills originate, 521.
In the Cominons : poor-la w bills, ib.;
bills involving a charge upon people,
ib. ; exceptions, 522. In the Lords:
restitution bills, ib. 891; act of grace
or general pardon, 523; distinction be-
tween public and private bills, ib. 745;
and hybrid bills, 746. 870.
Introduction of Public Bills.--Bills of
which notice has been given may be
brought in, although debate on address
to the Crown is adjourned, 225; public
bills presented in the Lords, 524 ; or-
dered in the Commons, ib. ; motion for
leave to bring in bill, ib.; members
appointed to bring them in, ib.; instruc-
tions to such members, ib.; other mem-
bers appointed, ib.; debate not allowed
upon merits of bill, 525; amendments
to title on motion to bring in bill, ib.;
bill ordered by way of amendment, ib.;
preliminaries to introduction of bills,
ib. ; bills ordered upon resolutions, ib. ;
of both houses, 526; a second bill
brought in upon the same resolution,
638; upon documents before the house,
ib.; upon reports of commissioners to
inquire into bribery, 732; bills originat-
ing in committee, 526. 538 ; relating to
religion and trade, 527 ; to grants of
public money, ib. ; to charge upon the
subject, ib. 686; money clauses printed
in italics, 533; construction of these
rules: as to religion, 527,528; trade, 530–
533. 686; for regulation of trade (Lords),
544; grants of public money, 533;
taxes, 535; bills for local taxation or
for reduction of taxes brought in upon
motion, 535. 537. 684, 685; capital
punishincnts, 538; other bills originat-
INDEX.
913
BILLS-continued.
ing in committee, 538; resolutions with
the same object as a bill before the
house, not to be proposed in a com-
mittee, ib. ; when preliminary com-
mittees may sit, 539.
Preparation of Bills, 539 ; objections
to form, prior to second reading, ib.;
blanks or italics, ib.; presented, 540;
first reading and printing, ib.; limited
number of copies printed, 542 ; no
amendment or debate on such questions,
ib. ; question for first reading nega-
tived, 511; how bills are read, ib.;
breviates of bills, ib. ; withdrawn, and
other bills presented, 513; after first
reading, no longer the property of
member, ib.
Second Reading, 544; amendments to
question for, 546. 549; in the form of
resolutions, 546; to relate to the bill,
547; previous question moved on stages
of bills, 549; bills dropped, 550 ; re-
jected, ib. ; proceedings on, rescinded,
ib.; counsel heard, 551.
Committees on Bills. In the Lords,
552; in the Commons, ib.; instructions
to, ib. 553; consolidation of bills into
one, 559; instructions, when and how
to be moved, 556 ; resolutions in the
nature of, 558; amendment moved to an
instruction, ib. ; amendment made pur-
suant to instruction, 567; several Bills
referred to one committee, 559; instruc-
tions to hear counsel, ib.12.; proceedings
in committee, 560; proceedings on title
and preamble, ib.; amendments, when
to be offered, 561; when several are
moved to same clause, ib.; not to be in
nature of new clauses, 562 ; proceedings
on clauses, ib.; on blanks, ib. ; rule re-
garding motion for smaller sum or longer
time, ib. ; practice regarding imposition
of charges upon people in bilīs, 563.
683; what amendments admissible, 565;
not to be in form of previous question,
566 ; special report, if title amended,
ib. ; postponed clauses, ib.; amend-
ments to clauses, ib.; mode of dealing
with new clauses and schedules, 568;
clauses added, ib. ; question put on
preamble and title, ib. ; bills consoli-
dated or divided, ib. ; preambles of
consolidated bills severally postponed,
ib. ; witnesses examined, or counsel
heard, ib. ; bills committed pro formii,
ib. 569; proceedings not known till
reported, ib. ; report of progress, 570;
of the bill, ib.; as amended, cannot be
printed until reported, 572; but amended
clauses sometimes printed when com-
mittee makes no report, ib. ; committee
BILLS—continued.
revived, 571.579; proceedings resumed
at point of interruption, ib.; proceedings
on report, ib. 574; bills reprinted, 572;
proceedings on consideration of bill as
amended, ib. ; what anendments ad-
missible, 573; rules of debate, 574 ;
notice required of proposed clauses,
573; clauses amended, ib.; amendment,
by leaving out clause, 575; bills re-
committed, ib. ; again re-committed,
576; re-committed on third reading,
577. 582; committed to select commit-
tees, 577.
Third Reading and Passing.–Ingross-
ment discontinued, 581 ; third reading,
ib.; amendments to questions for, ib.;
verbal amendments only admissible, ib.;
bill passed, 582 ; passed nem. con., 583;
title of bill, ib.; bill not to be altered
otherwise than by amendment, ib. ; bills
passed with unusual expedition, 599.
Communication of Bills between both
Houses, 487. 584 ; sent by mistake, 585;
brought from Commons to Lords, 584;
standing order relative to, ib. ; consi-
deration of Lords' amendments, 586 ;
agreed to or amended, 587 ; or dis-
agreed to, 589; consequential amend-
monts, 587; Lords' amendments relat-
ing to charges upon the people, 589.
645; agreed to by Commons, with spe-
cial entries, 588. 612. 645 ; conferences
and free conferences, 490.589; proceed-
ing's on amendment agreed to by mis.
take, 589; when house agrees, or does
not insist, no reasons are offered, 590;
indorsement of bills, 591; Lords have
custody of bills prior to royal assent,
585. 592; informalities in the agree-
ment of both houses, 601; cases, ib.
602; imperfect indorsement, 603.
Royal Assent, 592 ; to appropriation
bill, 689 : by commission, 593; form
thereof, 594, 595; royal assent refused,
596 ; assent by Queen in person, ib.
690; given when the Queen absent from
the realm, 597; informalities in, 603;
given by mistake, 605; titles transposed,
ib. ; ingrossment rolls, or vellum prints,
598 ; commencement of act, ib. ; forms
in the progress of bills not binding, ib.
See also Blanks. Informalities in Bills.
Private Bills. Royal Assent. Titles.
Bishops ; archbishops and bishops ap-
pointed by the Crown, 6; their position
and seats as lords spiritual, 6. 15. 742 ;
their number, 8. 15; their dissent to the
Act of Uniformity, 15; in Parliament an
estate of the realm, ib. ; title to their
scats, 7; bishops not having a seat in
P.
3 N
914
INDEX
Bishops-continued.
the Lords, 8, and 1. ; nunber of lords
spiritual, 8. 15; former representatives
of the Irish church, 8. 56. 744; deprived
of their seats by Act of 1869..9. 56 ;
their places in the house, 15. 22.5;
prayers read by, 198; introduction of,
199; not now appointed triers of peti-
tions, 607, 12. ; anciently voted sub-
sidies for themselves, 24. 637; vote on
bills of attainder, 743.
Black Rod. See Usher of the Black Rod.
Blanks ; in joint addresses, 513; in bills,
539. 562; proceedings on, in committee,
562. 684 ; taxing clauses in bills from
Lords treated as, 644; in private bills,
797.
Board of Health ; powers of, transferred
to Privy Council; and since to Local
Government Board, 764.
Board of Trade, tables of revenue, &c.,
prepared by, 633; private bills, super-
vision by, 762. 809; copies of private
bills deposited at (Commons), 873;
(Lords), 884; office of vice-president
of, abolished, 706.
Bond (railway bills); to be entered into for
completion of line, 851 ; time for, ib.
penalties recovered applied to purposes
of compensation, ib.
Books, newspapers, &c.; not to be read in
the house, 365. 385.
Books of Reference. See Plans, 8c.
Bradlaugh, Mr., his expulsion and re-
election, 64. 214; his action against
Mr. Erskine for assault in removing
him from the lobby, 189. 213 ; his
affirmation (1880), 210; his oath, 212;
proceedingsin 1882..213, 214; Affirma-
tion Bill introduced, but lost, 215; his
case further referred to, 292. 326. 330.
405.
Breach of the Peace; privilege does not
extend to, 152.
Breach of Privilege. See Privileges of Par-
liament,
Bread, sale of ; bills concerning, must
originate in committee, 530.
Breaking open outer doors ; powers of
serjeant as to, 78.
Brereton, Mr., case of, 156.
Breviates (Public Bills), 541.
Bribery. See Elections, Controverled, VII.
Bribes ; resolution declaring offer of, to
members, a breach of privilege, 102;
acceptance of, by members, punished,
103 ; offer to influence a comunittee
punished as breach of privilege, ib.
Bridges (Railway); fences to, 847.
Brougham, Lord ; dictum in Mr. Long
Wellesley's case, 157; his act for ab-
breviation of acts, 897. 899.
Buckingham, Duke of (1626); committee
on charges against, 457.
Budget, the annual ; described, 667; not
always brought forward in committee
of ways and means, ib. ; when, by first
lord of the Treasury, ib., 12.
Buller, Mr. C.; not allowed to act as
counsel before the Lords, 426.
Burdett, Sir Francis; his cases referred
to, 75. 79. 88. 97. 181. 392 ; the power
of serjeant-at-arms to break into Qwell-
ing-house, affirmed, 79; and of the
house to commit for libel, 97.
Burial Ground Bills; standing orders re-
lating to, 768. 854. 888; clause defining
limits, to be inserted, 889.
Burke, Mr., on relevancy in debate, 348,n.;
on resistance to punishment of the
printers, 380, 12.
Burton, Mr. Christie ; taken in execution
before election, 138. 143.
CALL of the House ; (Lords), 229; (Com
mons), 230, 231; negatived, 232.
Canada, Lower; the constitution of, sus-
pended in 1838..42.
Canal Bills. See Railway and Canal Bills.
Candidates ; Commons have no control
over eligibility of, 63 ; petitioning, eli-
gible to parliament, 714.
Candles ; motions for bringing in, 308.
Canterbury Election (1853); form of ad-
dress respecting, 731.
Capital of Railway Companies. See Rail-
way and Canal Bills.
Capital Punishment; introduction of bills
relating to, 538.
Caroline, Queen ; presence of Lords en-
forced on proceedings relating to, 230 ;
members pleading before Lords on the
bill against, 425.
Casting Voice. See Speaker. Chairman of
Committees.
Cattelyn, Sir R.; first commoner who
acted as Lord Speaker, 245, n.
Cemeteries. See Burial Grounds.
Certificates ; of return of member, 217;
case of non-production thereof, 231;
special certificate of Clerk of Crown,
702; certificate authorising Speaker to
issue warrants for new writs, 700;
form of, App. 907; of examiner for
INDEX
915
Certificates-continued.
standing orders, 775. 779. 880; of con-
sents, 846. 866 ; of deposit of amended
bill, 871; of examination on fair print
of bill, 875; of deposit of bill at board
of trade (Lords), 884; of taxation of
costs, 903.
Certiorari; writ of, on indictment against
peers, 741.
Chatham, Earl of; exception taken to
words of, 372.
Chiltern Hundreds, the three stewardships
of; granted to members, 708. 710; re-
fused, 709, n.
Chippenham Election Petition (1741);
mentioned, 715.
Church of England; Crown the head of,
6; introduction of bills relating to, 527
et seq. ; when public or private bills,
751, 752.
Cinque Ports; the representatives of the,
styled barons, 27, n.; term, abolished in
writs and returns by Act of 1872, ib. 12.;
lord wardenship of, vacates seat, 712.
Cities and Boroughs ; elective franchise
of, 29.
Citizens and Burgesses ; position of, in
the legislature, 19; their wages, 25;
property qualification of, abolished, 31.
Civil List Bills; form of Royal assent to,
697, and 12.
Civil Power; assistance of, in support to
parliamentary authority, 77.
Clarke, Mrs.; case of tampering with wit-
nesses, 104.
CHAIRMAN of Committees of the whole
House; duties of, 427. 561.
Lords.-Appointment of, 427; on ill-
ness of Chairman, another peer ap-
pointed to take the chair, 428 ; duties
of, on private bills, 427. 808. 878. 885.
Commons.—Generally the chairman of
the Committee of ways and means, 428;
election of, ib.; his duties, ib.; his cast-
ing voice, 410. 430 : governed by the
same principles as the Speaker, 430;
reports progress on points of order, &c.
435; leaves the chair if quorum not
present, 438; motions for him to report
progress, or to leave the chair, 440;
leaves the chair, 283. 435. 439; reports
resolutions or other proceedings, 442;
temporary chairmen, 429; retirement
of chairman, ib.
Chairman of committee of ways and means ;
his appointment, 657; and duties, 428.
657; acts as deputy Speaker, 248; cases
of, 249, 250; formerly carried bills and
messages to the Lords, 488; his duties
on private bills, 807. 842. 865; case of
his personal interest in a private bill,
423.
CHAIPMEN OF SELECT COMMITTEES :
Lords.-Vote like other peers, 449;
sign orders for witnesses' expenses, 486.
Commons.-Witnesses summoned by,
454. 472; sign orders for their expenses,
486; casting vote of, 466; the votes
of chairmen of private bill comunittees,
462. 842.
Challenges and quarrels ; by or to mem-
bers, prevented, or punished, 99. 376.
jurisdiction of the house extended to
the lobbies, Dr. Kenealy's case, ib.
Chancery Fee Funds; not public money
under the standing orders, 534.
Chaplain (Mr. Speaker's); prayers read by,
204 ; instances of his absence ; reference
to the origin of the office, ib., 12.
Charles I. ; prosecuted Sir J. Eliot, &c.,
122; noticed debates in the Lords, 369.
Charles II. ; on restoration of, parliament
met on its own authority, 44, dissolved
parliament in person, 54; noticed dis-
orders of the Lords, 503, 1. .
Clauses ; added, divided, &c. in commit-
tee, 561. 564; money clauses, 563. 575;
clauses added on consideration of bill
as amended, 573;. clauses involving
local taxation, 563; mode of dealing
with new clauses and schedules, 565;
bills recommitted for addition of, 575.
582; (Private bills) clauses inserted in
committee on railway bills, 850; con-
sidered in committee, 861; petitions
against, ib.; concerning public interests,
ib. ; added on consideration of bill as
amended, 873; referred to chairman of
ways and means, ib.; to committee on
standing orders, ib. ; to be printed, ib.;
notice of, in votes, ib. ; opposed, 874.
Clergy; cannot sit in the House of Com-
mons, 35; nor Roman Catholic clergy,
ib. Persons who have relinquished office
of priest and deacon, eligible to sit in
Parliament, ib. ; formerly taxed them-
selves, 637.
Clerk of the Crown; delivers return-book
to the Clerk of the House of Commons,
195 ; certifies the election of represen-
tative peers of Scotland, 198 ; and of
Ireland, 199; non-production by him of
certificate of return of member, 217. 231;
ordered to attend and amend returns,
62, 219. 703. 725; warrants directed to
him, to issue new writs, 62. 701 ; and
to Clerk of the Crown and Hanaper in
3 72
916
INDEX.
of, and duties, 257; second clerk assist-
Clerk of the Crown-continucil.
Coke, Sir Edward; his opinions; on the
Ireland, 701; examined regarding error separation of the two houses, 23; on
in delivery thereof, 702; copy of minors being members, 32; on authority
Speaker's appointment of members to and privileges of parliament, 43. 171; on
issue writs, deposited with, 701 ; if no the law of parliament, 72 ; on claim of
return be made, attends to explain, Commons to be a court of record, 112.
703; duties of, on Royal assent being 258; on freedom of speech, 121; on
given to bills, 594, 595. 597.
freedom from arrest, 125; moved that a
Clerk of the House of Commons; his ap-
bill be torn in the house, 550.
pointment and duties, 256 ; his book, Colonies ; introduction of responsible go-
257; puts questions, and appoints tellers
vernment, 42; laws of, subordinate to
on the election of Speaker, 200; formerly Parliament, ib. and . ; commitment by
put question for adjournment, in his
legislatures of, 74; bills relating to the
absence, 248; read prayers, 204, 1.; trade of, within standing order as to
records absentees from call of house, trade, 533 ; governorship of, vacates
231 ; formerly attended on further pro- seat in the house, 707; case of Sir
rogations, 271 ; takes down words, 377;
Bryan O’Loghlen, ib., 713.
reads orders of the day, 275; reports of
committees of the whole house, 443;
Commission ; for opening parliament, 48,
titles of bills presented, 541; and peti-
49. 195. 221; for prorogations and fur-
tions, 618; signs the summons to wit-
ther prorogations, discontinued, 49.271;
a commission makes a house, if ap-
nesses before the house, 473; and orders
for their expenses, 486; bears messages
pointed before four o'clock, 236; for
to House of Lords, 489. 584; indorses
giving Royal assent to bills, 593; to
bills, 591 ; has custody of Speaker's
investigate corrupt practices at elec-
appointment of members to issue writs,
tions, 731.
701; and reads private business list, 784. Commissions; acceptance of, by members
Clerk of the Parliaments; his duties, 255;
in the Army and Navy, &c.; does not
vacate seats in the house, 706.
authenticates extract from Journals,
262; receives money bills from the
Commitment: the right of both houses,
Speaker, 271. 690; signs the summons 73; exercised by colonial legislatures,
to witnesses before the Lords, 472; cer-
74; instances and manner of exercise,
tifies their expenses, 486 ; bears mes-
75; assistance of the civil power, 77 ;
sages to Commons, 489. 584 ; reads causes of commitment cannot be in-
messages from the Crown, 504; in- quired into by courts of law, 82 ; need
dorses bills, 591; and acts, 598 ; his not bo stated, 88; persons sent for in
duties regarding the Royal assent, 592. custody, ib. ; arrests without warrant,
598; deposits of private bills at office of, 89; commitments by Speaker, 105 ; for
879; and report of examiners, 880; and
offences in a former session, 109; by the
of amendments, 890; certifies taxed Lords for fixed time, 111; petitions for
costs, 903.
release, 114 ; by Commons concluded
Clerk of the Peace; alterations of plans,
by prorogation, 116; but not by ad-
&c. (Lords) deposited with, 883.
journment, ib. 11.
See also Focs on Commitment.
Clerk Assistant (Commons); appointment
Committee on public petitions, 620.
ant, ib. ; attended at the Lords on fur- Committee of privileges, 444.
ther prorogations, 271; carry messages Committees, Grand; their annual appoint-
to House of Lords, 489. 584; clerk
ment discontinued, 443.
assistant officiates in committees of the
whole house, 445; indorses bills in ab- Committees, Joint; of Lords and Commons,
sence of clerk, 591, n. ; notices of mo-
461. 481. 496, 497.
tion, in writing, to be given to second COMMITTEES OF THE WHOLE HOUSE:
clerk assistant, 285; (Lords), duties of,
255; reading clerk, ib. ; bear messages
I. Lords.--Appointment of, 427.552;
chairman of, 427; members may speak
to Commops, 489. 584.
more than once, 434; house resumed,
Closed doors ; breaches of privilege for-
435; proxies not used in, 417 ; mode of
merly inquired into with, 106; select obtaining adjournment of, 439; pro-
and secret committees deliberate with,
ceedings of, entered in Journals, 445;
456. 460; private bill committee, 855. recommitment to, of private bills, 889.
Cochrane, Lord ; privilege not extended II. Commons.-Appointment of com-
to, on criminal commitment of, 153. mittees, 127. 552 ; conduct of business
INDEX.
917
COMMITTEES OF THE WHOLE HOUSE-cont.
in, 429; functions of, 430; chairman of
ways and means the usual chairman,
428 ; his casting vote, 410. 430; when
to report progress on Wednesdays, 282;
and morning sittings, ib. ; sitting of
committee suspended, 442; divisions in
committee, 417. 433; witnesses ex-
amined by, 431. 480 et seq.; members
may speak more than once in, 359. 434;
to speak standing, 435 ; words of heat
arising in, 374 ; house resumed on in-
terruptions, or questions arising in,
390. 437; or on summons to attend the
Queen, ib.; matters committed, 431;
royal message read, 434; instructions
and amendments on going into com-
mittee, 432. 552. 660; time for moving
such instructions and amendments, 432.
556; discussion on matters in, not to be
anticipated in house, 353. 433; motions
in, not seconded, ib.; previous ques-
tion not admitted, ib. 566; analogous
motions, ib. ; questions of sums and
dates, ib. 562. 668; resolution proposed
in, cannot be postponed, 434. 678;
relevant amendment may be proposed
on second reading of resolutions, 443;
amendments to questions in, 434. 672,
673; amendments to proposed amend-
ments, 322 ; quorum, 438; committee
cannot adjourn, 439; mode of obtaining
adjournment, 440; motions that the
chairman report progress or leave the
chair, moved alternately, 441; report
of proceedings, 442; till report made,
proceedings of committee not to be
referred to, . ib. ; report relating to
grant of public money, to be received
on a future day, ib. ; Speaker entitled
to speak and vote in, 415; proceedings
entered in Journals, 445; clerk assistant
officiates in, as clerk, ib. ; oaths adminis-
tered by, 481 ; bills originating in com-
mittee, 527. 683; resolutions with same
object as bill before the house, not to
be proposed in committee, 539; pro-
ceedings in committees on bills, 560; in
committees of supply and ways and
means, 668-671 ; objections to a com-
mittee of the whole housc, 579; petitions
for additional provision considered in
committee, 788.
See also Amendments, Bills, Standing
Committees, Supply, and Jays and Means.
COMMITTEES, SELECT :-
I. Generally.-Libels on, published,
101, 102, n.; witnesses before, protected,
161–166 ; should not send for papers
attainable by address, 455 ; general
province of, 446; order of reference, and
special instructions, ib. ; reports, &c.,
COMMITTEES, SELECT—continued.
referred, 446; petitions referred, 447;
secret committees, 460; appointed by
ballot, ib.; committees to examine sick
witnesses, 463; nomination of standing
committees renewed every session, 452;
of both houses communicating with each
other, 498; other means of communica-
tion, ib.; printed minutes of evidence,
465; alterations to be confined to cor-
rection of inaccuracies, ib. ; publication
of, before report, a breach of privilege,
93. 466; power to report, standing
order thereon, 468 ; special report, ib.;
power to report from time to time, ib. ;
report of evidence by a re-appointed
committee, 469 ; publication of draft
rcports, ib. ; circulation of resolutions
or report to members before considera-
tion, 466 ; report cancelled, 469 ; pre-
sented, 470; referred to a secretary of
state, 471 ; committees to inspect jour-
nals, 337. 877; to consider questions
regarding members' seats, 713; com-
mittees (Commons) to prepare addresses
and reasons, 512 et seq. ; reports recom-
mending grant of public money, 652;
offering reward for absconding wit-
nesses, 692 ; bills brought in upon re-
ports, 526; bills committed to select
committees, 577; to committees spe-
cially constituted, 805; relevant amend-
ments admissible, 578; power to such
committees to send for papers, &c., ib.;
on bill for confirming provisional orders,
nominated by committee of selection,
807.
II. Lords. -- Appointment of, 447;
standing order relative to, ib. ; ses-
sional committees, ib.; select
mittees may sit, notwithstanding any
adjournment, 448; chairman has no
casting vote, 449; by ballot, 447. 460;
quorum, 447. 453 ; minutes of proceed-
ings, 448; witnesses or documents pro-
cured, ib. 472.; absconding witnesses,
ib.; oaths adıninistered by, 448. 479 ;
presence of strangers, 456 ; of Lords,
not of the committee, ib.; secret com-
mittees, 460. 498; divisions, 461; wit-
nesses, pcers, &c., summoned, 472; ex-
amined, 478.
III. Commons.--Obligation of mem-
bers to attend, 233; appointment, con-
stitution, and practice of, 449 ; on pri-
vilege cases without notice, 450 ; nomi-
nation of members, ib. ; by ballot, ib.
460 ; chairman chosen by general voice
of members, 461; to serve without voting,
450; by the general committee of elec-
tions, ib. ; by committee of selection,
452; members added and discharged,
com-
918
INDEX.
ib.;
COMMITTEES, SELECT—-continued.
453; motion to raise number of com-
mittee above fifteen, ib. ; quorum,
if no quorum named, ib. ; power to
report evidence taken in absence of
quorum, 454; to send for persons, papers,
and records, ib.; to send for papers
and records only, 455; cases where not
allowable, ib., resolution respecting
reports, 466; appointment of committees
discharged, 456; presence of strangers,
ib. ; of members, 457; orders of the
house thereon, ib. ; secret committees
460. 498; divisions, 461 ; casting voice
of chairman, ib.; adjournment, 462.464;
from place to place, 462; may not sit
without leare, during evening sitting,
nor after adjournment of house, 463 ;
notice of prayers from serjeant, ib.;
leave given to sit, 464 ; sittings on Ash
Wednesday and Ascension day, ib.;
committee revived, owing to irregularity
in adjournment, 465 ; counsel heard,
ib. ; witnesses summoned, 454.473; ab-
sconding, 474. 692; examined, 448.
481 ; indemnified, 484 ; their expenses,
486; attendance and examination of
members as, 474, 480 ; of peers, 475;
of officers, 476.
See also Elections, Controverted, III.
IV. Private Bills. Witnesses.
Committees, Standing: See Standing Com-
mittees.
COMMONS, House of; elected under writ
from Crown, 6; third estate of realm,
16; origin of, 16-24; knights of the
shire, 18; citizens and burgesses, 19;
indications of present constitution in
Magna Charta, 20; early instances of
writs of summons, ib.; originally sat
with the Lords, 22; when separated,
24 ; number of members at different
periods, 25-28 ; wages of, 25; members
added on unions of Scotland and Ire-
land, 25, 26; effects of the Reform
Acts (1832), 26; present number of
members, and classification of constitu-
encies, 27, 28 ; constituency of English
counties, 28; of cities and boroughs, 29;
registration, ib.; Scottish and Irish fran-
chises, 30 ; qualification of voters, 31;
and of members, ib.; mode of election,
40; and of summons, 44; powers of the
house, in adjournment, 51; in impeach-
ments, 57.739; in voting supplies, 58.
647; in determining elections, and
issuing new writs, 59-62. 695 et seq.;
in control over candidates, 63; in ex-
pulsion of members, ib. ; privileges of
the house, 68 ; claim of, to be a court of
record, 111; proceedings on meeting of
parliament, 105; clection and duties of
COMMONS, House of continued.
speaker, 199. 247 ; prayers, 204. 249,
n.; oaths taken, 204; consideration of
royal speech, 47. 223. 656; call of house,
230;. times of meeting, 234; the quorum
of, 235; house counted, 236; sittings
on Wednesday and Saturday,
238 ;
longest sittings, ib. 1.; extraordinary
sittings, 239; thanksgiving and fast
days, 240; chief officers of, 256. 264 ;
votes and journals, 257; admission of
strangers, 266; proceedings on proro-
gation, 269 ; distribution of business
over days of sitting, 275; petitions,
606 et scq. ; opposed business not to be
taken after half-past twelve, 308 ; reso-
lution respecting, ib. ; does not extend
to amendments in committee, 309. -
See also Adjournment, II.-Members of
the House of Commons.
Commons Inclosure Act (1876), provisional
orders under the, 788.
Complaints. See Privileges of Parliament.
Complicated Questions ; divided, 309.
Composite Tax Acts, 650.
Condolence; addresses and messages of,
on demise of members of the royal
family, 515. 517.
Conferences ; character and subjects of,
490; deliberations of houses suspended
whilst held, ib. 307; the demand for,
i!. 490; purpose to be stated, 491; to
offer reasons, 492; time and place of
meeting, 493; managers thereof, ib.;
conferences regarding bills, 494. 589;
free conferences, 495; forms of holding,
ib.; standing orders of Lords, 496 ; other
means of communication, 498 ; bill in-
troduced on resolutions agreed upon at
a conference, 526.
Conflict of opinion between thetwo houses;
instances, 499. 501.
Conquest, The; position of the people
after, 17.
Consent of the Crown. See Crown, III.
.
Consents to Private Bills; by standing
orders (Commons), to be reported on,
866; (Lords) of directors and companies,
&c., 883; of parties affected by altera-
tion of plans, &c., ib. ; proof of, to
subscriptions to another company, ib.
See also Estate Bills.
Consequential Amendments; to bills, 587.
876.
Consilium Regis; the, 56, 57. 253.
Consolidated Funds. See Supply, and Vays
und Means.
Consolidation Acts; incorporation of, in
bills, 770.
INDEX.
919
Constabulary Acts; general, 766.
Constituencies; classification of, 28; of
English counties, ib.; of cities and
boroughs, 29; registration, ib. ; in
Scotland, 30; in Ireland, ib.; qualifi-
cation of voters, 31.
Consul or Consul General; acceptance of
office of, vacates seat, 707.
Contempt of Court; breach of parliamen-
tary privilege, punishable as, 73; mem-
bers of both houses liable to commitment
and attachment by courts of justice for,
155—160; but only in cases of quasi
criminal contempt, 160; Mr. Whalley's
case, 158 ; and to sequestration of pro-
perty, 159; peers and members unattach-
able for non-payment of money, under
awards, 157, n.; privilege reserved in
cases of contempt of ecclesiastical courts,
159 ; punished by colonial legislaturcs,
74 ; power to punish for, disclaimed bý
legislature of New South Wales, ib., 17.
Contracts; conditions relating to, 655;
not to be binding until approved by re-
solution of the house, ib. ; to be laid on
table, if Parliament is sitting, ib.; or
fourteen days after meeting, ib.; Trea-
sury Minute setting forth grounds of
approval, ib.; case of Treasury letter,
ib., n. ; contract not to be confirmed by
a private bill, 800.
Contractors (Government); disqualified
from serving as members, 35. 713. 723;
for government loans not disqualified,
36.
Controverted Elections. See Elections, Con-
troverted.
Convocation ; subsidies of clergy voted in,
637; origin of, ib., 1. ; still summoned,
ib.
Cope, Mr., and others; case of, 122.
Copyholds; general acts passed to facili-
tate the enfranchisement of, 761.
Copyright Bills; whether to originate in
committee, 531.
Corn Bill (1846); debate thereon, 343;
protest, 419, n. ; (1772), kicked out of
the house, 550.
Cornwall, Duke of; Edward the Black
Prince created, 9; consent of the Crown
signified in regard to the Duchy of,
508 ; to private bill, 875;. of Prince of
Wales as, ib.
Coronation ; both houses attend, if sitting,
241.
Coronation oath, the, referred to, 3. 5.
Corporations, petitions from, to be under
their common seal, 610. 837.
Corrupt Practices Acts (1854, 1863, 1868);
the provisions of, 728, 729; (1879), 62.
Costs, awarded on private bills, 864; of
private bills, taxation of, 901.
Counsel; professional statements by, pri-
vileged, 167; members not to act as,
before committees, &c., 425; or before
the Lords, except in judicial cases, ib.;
heard before select committees, 465 ;
upon public bills, 551.559; on impeach-
ments, 737; rules regarding hearing of
counsel on private bills, 856, 16., 858,
859, 860, n. ; (Lords) on second reading
of divorce and peerage bills, 893.
Coursel; to Chairman of Lords' Committees;
and to Mr. Speaker (Commons). See
Private Bills.
Counties;. origin of the term, 10; elective
franchise of, in England, 28; in Scot-
land, 30; in Ireland, ib.
Counting the house, 236. 438; house
counted out, 236; a second count not
allowed immediately after the house has
been counted, 238; a count not permitted
after a question put from the chair, ib.
County Constabulary Acts; establishing
police force, &c., 766.
Courts of Law; causes of commitment by
houses, not to be inquired into by, 82-
86; jurisdiction of, over privilege, 169;
authorities favouring the jurisdiction of
parliament, 170–173 ; of the courts, 173
-176; judgments of courts, and proceed-
ings of parliament thercon, 177-188;
present position of privilege, 190; pro-
ceedings on private bills restrained by
injunction, 756.
Courts Martial; notice of arrest of mem-
bers by, given to the house, 154. 506;
address, in answer,
512.
Credit; votes of, and special supplies, 680.
Criminal Commitments. See Arrests, Free-
dom fron.
Cromwell, Lord, case of, 155.
Crosby, Brass; committed to the Tower,
75. 77. 85. 173.
Cross Benches; in the Lords, 226.
Crossing the House; rules as to, 386.
CROWN, THE:
I. Prerogatives.--Hereditary, but sub-
ject to parliament, 2; ancient right of
females to inherit, 2, n.; definition of
its prerogatives, 3–5; declaration re-
quired of sovereign respecting religion,
5; head of the Church of England, 6,
and n.; power of adding to Irish peer-
age, limited, 13; prerogative of pardon,
739.
920
INDEX.
CROWN, TIE-continued.
command, 627; relating to expenditure
of public money on Crown property, by
order, 624; the revenue of the Crown
dependent on parliament, 638; of what
it consists, ib. ; private bill re-committed
to make provision thereout, 790; func-
tions of Crown regarding public income
and expenditure, 638. 650.
IV. Acceptance of Oſice under.—Va-
cates seats in parliament, 33. 703. 708 ;
exceptions, 33.
See also Addresses to the Crown. Dis-
solution of Parliament. Proclamations.
Cumulative Offices, 710.
Customs Duties Bills; affecting trade, to
originate in committee, 685, 686.
DANLY, Earl of (1679) ; impeachment of,
15, n. 739. 743.
Dangerfield's narrative; the Speaker pro-
secuted for publishing, 178.
David's, St., Bishop of (19 Edw. I.); case
of, 128.
Davitt, Michael, declared incapable of
being elected, 725 ; his case referred to,
325.
1
CROWN, THE-continued.
II. Demise of. - Parliament meets
upon, without summons, 46; instances
of, ib.; formerly continued six months
only, 47; both houses again take the
oaths, 219; addresses of condolence on,
515.
III. Its relations to, and communica-
tions with, Parliament. -- Summons of
parliament, 46; causes of, declared, 47.
219; approves Speaker of Commons, 49.
201; assembles or prorogues parliament,
49.219.270; adjournment of Loth houses
at pleasure of Crown, 51; last occasion
thereof, 52; power over adjournments,
conceded by statute, ib.; duration of
parliament formerly at will of Crown,
53; dissolves parliament, ib. ; by sove-
reign in person, ib. ; prorogation with
view to a dissolution, 54 ; confirmation
by, of Commons' privileges, 69. 201;
Commons' privileges, independent of
Crown, 70 ; freedom of access to sove-
reign, by the Commons, ib. 515; by
peers, 71. 516; favourable construction
of the Commons' proceedings, 71 ; ad-
dresses to, for prosecutions, 05; Queen's
name not to be used in debate, 368;
statement of facts in name of the sove-
reign not excluded, 369, 370; presence
of, in parliament, supposed, 502 ; cases
of personal attendance, 503, and n. ; in-
terference by, in its proceedings, limited,
502 ; presence of sovereigns in House of
Lords, ib.; communicates with parlia-
ment in person, or by commission, 503 ;
by message, 504; subjects thereof, ib.;
to both houses, 505; on matters of
supply, ib. ; verbalmessages on arrest of
members, 506; Queen's pleasure signi-
fied, 507; royal recommendation or
consent to bills, petitions, motions, &c.,
ib. 596. 651. 786. 875. 892 ; petitions
for compensation, duly recommended,
referred to committee of supply, 652;
proceedings on bills passed without
royal consent, declared void, 508, and
12., 522. 875; consent signified on final
question that the bill do pass, 508, and
N.; amendments in committee affecting,
509, and n.; consent withheld, ib.;
places its interests at disposal of parlia-
ment, 510; cases of, ib. ; character of
the communications between the Crown
and parliament, 511; how acknowledged,
ib. ; addresses to, 511. 516; resolutions
communicated, 516 ; ministers respon-
sible to Crown and parliament, 518;
bills for the restitution of honours, or
pardon, originate with Crown, 522. 891;
royal assent to bills, 592-597. 689; to
bills providing for the dignity of Crown,
597; accounts and papers presented by
DEBATES ; a peer addresses the Lords in
general, 340; greater licence in putting
and answering questions in Lords, 357;
in the Commons, the Speaker is ad-
dressed, 340 ; speech not to be read, ib.;
members to speak standing and un-
covered, 341; exceptions, ib. ; may
speak from the galleries, ib., 1. ; pro-
cedence to debates on privilege cases,
289. 698; and when adjourned, 292;
when debate arises, 299. 341; interrup-
tions to debate, 289. 307 ; time of
speaking, 341; who may speak, 342;
divisions to decide, 344 ; when two
members rise together, ib. and 11. ; mo-
tion that a member do not speak, 346;
precedence to member who has moved
the adjournment, 346 ; member not en-
titled to speak on main question, after
having moved or seconded motion for
adjournment of debate, 347; precedence
to new members, 348 ; to speak to the
question, ib. ; adjournment of debates,
292. 394; on Wednesdays, 347; member
to confine himself to formal motions on
adjournment, 394 ; similar motions in
committee, 440, 441; debate on ques-
tions of adjournment, 350, 362, 363;
standing orders in restraint of such dis-
cussions, 350; no amendment admissible
to questions of adjournment, except as
to time, 351 ; orders of the day and no-
tices not to be discussed on question of
INDEX.
921
DEBATES—continued.
adjournment, 352; merits of a bill not
to be discussed on motion for postpone-
ment, 353; discussion of motion or bill
not to be anticipated by a question,
354; nor of bill sent to the Lords, ib. ;
when no question is before the house,
ib. ; questions to other members, ib.;
personal explanation, 358. 619; to speak
once only, 359; mover and seconder of
amendment not to speak again upon
question, 361 ; except to explain, ib.;
and in committee, ib. 434 ; when reply
allowed, 360; speech of mover or se-
conder of motion reserved, 361 ; when
new question arises, 362 ; order in
debate, 363 ; rules for members speak-
ing, ib. ; reference to prior debates, 356.
364 ; cases in which allowed, ib. 365 ;
latitude to ministers of the Crown, 356;
members not to refer to general tenour
of speech, on questious of order, 362;
allowed for personal explanation, 365 ;
reading speeches from newspapers, ib.;
distinction drawn between the speeches
of living or dead members, 366, 12. ; not
to reflect upon votes of the house, ib.;
nor to allude to debates in the other
house, 367; allusions to reports, 368;
use of the Queen's namo, ib.; not to
use words against parliament, or either
house, 371 ; nor against a statute, 372 ;
personal allusions, 373; Lords' standing
order, 374 ; words of heat, ib. ; chal-
lenges, 376; words taken down, 377;
not to cite documents not before the
house, 378; rules to be observed by
members not speaking, 385 ; to keep
their places, ib.; entering and leaving
the house, 386; not to cross before mem-
bers speaking, ib.; not to read books,
&c., in their places, ib. ; to maintain
silence, ib. ; hissing and disorderly in-
terruption, 387, and n.; misbehaviour to
members in the house, 388; interrup-
tions in committee, 389; authority of
the Speaker, 390. 437; members with-
draw when their conduct is under de-
bate, 392. 716 ; conduct of debate in
committees of the whole house, 415-429;
petitions not to allude to debates, 612,
613; debates on petitions, 619; rele-
vancy of debate in committee of supply,
677; and on appropriation bill, 689.
See also Freedom of Speech. Notions.
Newspapers. Obstruction. Suspension of
Member's.
Debts to the Crown; rules as to petitions
for compounding, &c., 613. 652.
Declaration ; petitions not received in the
form of, 609; made by members serving
on committees on private bills, 804.811.
Demise of the Crown. See Crown.
De Modo tenendi Parliamentum; this
treatise referred to, 23.
Denison, Mr. Speaker, spoke in com-
mittee of the whole house, 416.
Deposit of Documents and Money (Pri-
vate Bills); Standing Orders, as to,
769. 883. 888.
Deputy serjeant-at-arms appointed by
the Crown to be serjcant-at-arms, 204, n.
Deputy Speakers (Lords), 245; (Com-
mons), 248-250.
Derby-day, house adjourns over, 243.
De Tallagio non Concedendo; this statute
referred to, 22. 637.
Dillon, Mr.; named and suspended, 389.
Directors of Railway Companies ; stand-
ing orders (Lords), consent of, to any
bills to be proved, 883.
Disfranchisement Bill; service of copy of,
on returning officer, 730, n.
Disraeli, Mr., premier; allowed to make
statement in the house on the authority
of the Queen, 371.
Dissenters; bills for relief of, originated
in committee, 528.
Dissolution of Parliament; by the Crown,
53 ; Parliament not determined by de-
mise of the Crown, ib.; by proclamation,
or in person, ió.; prorogations, with a
view to, 54 ; interval between a dissolu-
tion and assembling, ib. ; duration of
privilege after, 141; does not determine
an impeachment, 739 ; nor a divorce
bill, in certain cases, 894.
Distress of goods ; privilege of freedom
from, 128 et seq.
Dividends (Railway Bills); standing orders
relating to, $49.
DIVISIONS :-
I. Gencrally.- Division on clection of
Speaker, 200; when division arises, 312;
voices to determine votes, ib. ; time for
taking objection to a vote, 314; members
speak sitting and covered on question
during a division, 313. 341; proposed
restrictions upon, 406; personal interest
in the question, 419.
II. Lords.-Lordsvoting to be present
when question put, 396; presence of
strangers, 398; the woolsack not within
the house, 245. 405; arrangements
adopted since 1857..402; vote of peer in
the wrong lobby, 403; division lists
recorded in Votes and Journals, 403;
appointment of tellers, ib.; vote of
Speaker given from woolsack, ib.; of
922
INDEX.
Drainage Bills; general laws respecting
drainage of land, 761; duties of com-
mittees on (Commons), 853.
Drawbacks and allowances; rules as to
proposing, 563. 684.
Dropped Orders ; resolution concerning,
284.
Dublin City; revision of list of voters for,
30; when bills relating to, are public
or private, 749 ;-Corporation, petitions
from, presented, 615, and n.; bill for
disfranchisement of freemen ordered as
amendment of question for new writ,
525.
Dukes; origin of the title, &c., 9.
"Dummies," presentation of, irregular,
629; order to prevent abuses, ib.
Duncombe, Mr., his case of privilege, 142;
motion respecting renewed, 331.
Duties; not to be increased by Committee
on the bill, 564; petitions for remission
of, 613; altered by votes of Commons,
drawbacks, &c., considered in
committee, 684.
Dwellings, artisans' and labourers'; gene-
ral laws for improvement of, 765.
640 ;
DIVISIONS—continued.
infirm peers from seats, 403; votes by
proxies discontinued, 417 ; peers going
into wrong lobby, 403; question nega-
tived when voices equal, 404; rule re-
versed on judicial decisions, ib. ; peers,
not law lords, voting in judicial cases,
ib.; against the opinion of the judges,
ib. ; protests, 418.
III. Commons.-Members to be pre-
sent when question put, 396; if not,
their votes are disallowed, 396—398 ;
the lobbies not within the house, 397;
members permitted to withdraw, ib.;
presence of strangers, 398; proceedings
prior to division, 399; members present
must yote, ib.; members in wrong
lobby, 409; member voting by inad-
vertence bound by his vote, ib. ;
question twice put, 401; divisions on
Wednesday, ib.; members not voting
on amendment may vote on main
question, 402 ; mode of dividing, 408;
Speaker appoints two tellers, for each
party, ib.; no division without two
tellers, ib.; mode of noting the names,
ib. ; report of numbers, ib. ; second di-
vision in case of disagreement, ib.;
casting voice of Speaker, 410—415; of
chairman of house in committee, 415.
430; divisions on questions of adjourn-
ment, 407; members to retire into one
of the lobbies, ib. ; divisions in com-
mittee, 417; publication of division
lists, ib. ; pairs, ib.
IV. In Select Committees. —Divisions
in, 449. 461; on private bills, 462. 842.
Divorce Bills; applied for by parties be-
yond jurisdiction of Divorce Court, 767,
n. 893 ; not affected by a prorogation
or dissolution, 894 ; depositions in
India, ib. ; in the Commons, 897 ; fees
remitted, ib. ; death of petitioner, ib.
Documents ; not before the house, not to
be cited in debate, 378; if private, need
not be laid upon the table, 379; opinion
of law officers not usually cited, 380;
referred to committees, 446 ; power of
sending for, given to committees, 454,
866.
Dodson, Mr., accepts Chiltern Hundreds,
710.
Door-keepers; duties of, on divisions,
399; copies of private bills deposited
with, 797. 871.
Dormant and Extinct Peeray'es; laws re-
specting the assumption of, 13.
Double Returns; proceedings on, 718 and
n. 722. 725; in Ireland, prohibited, 718;
returning officer entitled to give addi-
tional vote, ib.
EALDORMEN ; title amongst the Saxons, 10.
Earls; origin of the title, 10.
East Hendred, Manor of; stewardship of,
701. 709.
East India Judicature Committee (1782);
exclusion of members from, 457.
East India Revenues, 653.
Ecclesiastical Courts; privilege reserved in
cases of contempt of, 159.
Ecclesiastical Titles Assumption Bill(1851),
proceedings thereon, 529. 560.
Edinburgh, petitions of corporation of,
615; introduction of bills concerning,
749.
Education Act, Elementary, resolution
concerning, held not to exclude motion
for a bill, 333; provision for compul-
sory purchase of school sites, 767.
Edward the Confessor; enactment as to
freedom from arrest, 127.
Edward I. ; summons of Parliament by,
21; recognition of consent of Commons
to taxation, 637; præmunientes clause
inserted by, in writs of summons to
bishops, ib. n.
Edward II. ; recognition of Commons in
his statutes, 22.
INDEX.
923
Edward III. ; laid Pope's demand of hom-
age before parliament, 3; recognised
annual holding of parliament, in his
statutes, 45, 46.
Elections; how held, 40; public nomina-
tion of candidates discontinued, ib. ;
votes taken by ballot, ib. ; returning
officer gives notice of day of election,
ib.; extent of Commons' jurisdiction in
matters of, 59; its judicature in such
matters delegated to courts of law, 62;
laws, and number of statutes relating
to, 695, and n. ; issue of new writs, 62.
695 et seq. See also Writs.
ELECTIONS, CONTROVERTED :
I. Generally.--Trial of, 715; formerly
by the votes of house, ib. ; principle of
the Grenville Act, ib. ; constitution of
committees under, 716; the present sys-
tem, ib. 720; members returned for two
places, 717 ; to withdraw while their
returns are in question, ib.; double
returns, 718; resolution respecting, ib.;
resolutions respecting voting and inter-
ference of peers, 719; case of bishops,
ib., 97. ; of ministers under Crown, 720;
and bribery, ib. ; attendance of Clerk of
Crown to amend return, 725 ; proceed-
ings of house upon determination of
election trials, ib.; case of, ib., 12. ;
special reports, 726.
II. Election Petitions, 8c. Act, 1868,
and later Acts.-Trial of election peti-
tions confided to courts of law, 721; to
be tried by two judgeş, ib. ; time for
presentation of petitions, 696, 12., 721;
determination of judge certified in
writing to Speaker, 721; reports whe-
ther corrupt practices have prevailed,
ib.; makes a special report in certain
cases, 722 ; judge reports withdrawal
of election petition, ib. ; certificates and
reports entered in Journals, ib. ; in case
of a double return, ib.; proceedings of
house in matters of election, ib.; proof
of agency, 726; punishment of candidate
guilty of personal bribery, 728; may
not sit or vote for a certain period, 729;
penalty for employing corrupt agents,
ib. ; disqualification of persons not can-
didates, ib.
III. Bribery.-Sessional resolution as
to, 720; special reports concerning :
agency, 726; proof of, ib.; disqualifica-
tion caused by bribery and treating, 727;
sitting members examined, 728 ; general
rruption to be reported, 729; writs
suspended, 730; commissions of inquiry,
731; form of address for, ib.; bills
founded on reports of, 732; certificates
of indemnity only a protection in civil
or criminal proceedings, ib.
Elective Franchise; outline given of, 28-31.
Electric Lighting Act, 1882 ; granting of
licences and provisional orders, 766.
Eliot, Sir John; prosecution of, with
Hollis and Valentine, 122.
Ellenborough, Lord; his opinion on the
separation of the two houses, 24, n.; on
authority of serjeant-at-arms, 79; in
Burdett's case, 88. 174 ; Mr. Creevey's,
125; Thorpe's, 171, n.; Jay v. Topham,
179.
Elsynge ; his opinion on the tenure of
bishops, 7, n.; on the separation of the
two houses, 25; on parliamentary privi-
leges, 70. 118.
Entailed Estates (Scotland); general acts
respecting, 767.
Entering the House; rules to be observed
by members on, 385.
Equality of Votes. See Divisions.
Equity, Courts of; injunction by, to stay
proceedings on a private bill, 756.
Erskine, Lord Chancellor ; his ruling on
reception of the printed Journal as evi-
dence, 262.
Essex, Earl of (1646); adjournment on
death of, 241.
Estate Bills (Commons) ; interval between
second reading and committee, 805 ;
(Lords), Bills, from Commons, or peti-
tions for, referred to judges, 879. 892 ;
except when settled in chancery, ib.;
proceedings on Scotch and Irish Es-
tate Bills, ib.; Petition to be delivered
to chairman of committee, ib. ; notice
to mortgagees, ib. ; committees on, ib.
893; petitions against, 892; second
reading, 894 ; commitment, 895.
See also Local Bills.
Estates of Members ; claim of privilego
for, omitted (1853), 69, n.
Estimates, Annual; presented, 656; re-
ferred to committee of supply, 657.
Estimates (private bills) ; required to be
made and deposited, 769.
Ethelbert, King; his laws quoted, 127.
Evidence; before select committees, pub-
lication of, a breach of privilege, 93, and
12., 466; taken down and printed, 465;
report of, from time to time, 468 ; by a
re-appointed committee, 469; referred
to a secretary of state, 471; unreported,
laid before the house, 470; false evidence
punished, 482 ; evidence of compliance
with standing orders, 771; evidence re-
ferred to private bill committees, 860;
report of evidence on private bills, 868;
924
INDEX.
Evidence--continued.
printed, in certain cases, ib. ; resolu-
tion respecting printing of, 355; not
applicable to hybrid bills, ib.; deposi-
tions in India in divorce cases, 894. See
also Oaths. Vitnesscs.
Examiner of Petitions for Private Bills
(Commons) ; for Standing Orders (Lords).
See Private Bills, III.
Exchequer Bills ; issue of, authorized by
Committee of Ways and Means, 666;
Treasury empowered to issue to a cer-
tain amount, ib.
Exchequer and Audit Departments (Act),
1866; provides for issue of monies, to
meet grants of Commons, 639.
Exhibition of 1851 ; house met later on
day of opening, 234.
Expenses of Witnesses. See TVitnesses.
Explanations in Debate; rules concerning,
359.
Expulsion of Members ; from the Com-
mons, does not create disability, 63;
cases and grounds for, 63, 64; evidence
of offences, 66.
Expunging Motions and Protests; from
the Journals, 263.419; from the clerk's
book, 263.
First Reading ; of public bills, 540; of
private bills, 797.
Fitzherbert's case, 132.
Flower's case, 74. 85. 99. 110, n.
Floyde's case, 113.
Foreigners, petitions from ; received, 614.
Forgery or Fraud ; in preparing or sign-
ing petitions, 611.
Fourdrinier, Messrs.; report, recommend-
ing compensation to, 652.
Fox, Mr.; sat as member, under age, 33;
his verdict against Bailiff of Westmin-
ster, 62 ; disputes with Mr. Pitt on
speaking first, 345, and n.; quarrel
with Mr. Wedderburn, 376.
Franchise. See Elcctive Franchise.
Franking Letters ; privilege abolished,
141; Acts relating thereto, indicate
duration of freedom from arrest, ib.
Free Conferences; the forms of, 495.
Freedom of Access to the Sovereign; a
privilege of the Commons as a body, 70 ;
when exercised, ib. 515; of peers, as a
house and individually, 71.
Freedom from Arrest. See Arrest, Freedom
from.
Freedom of Speech ; principle of the pri-
vilege, 118; secured by statute, ib. 123;
ancient precedents, 119; interpretation
thereof, 121 ; violations thereof, 122;
members punished for abuse of, ib.;
not extended to published speeches,
124; publication of parliamentary
papers, protected by statute, 126.
Friday; adjournments from Friday till
Monday; when resolution for, required,
238; practically a notice day, 662.
Frivolous Complaints; not entertained,
108.
Funerals of the Royal Family; adjourn-
ment of house on, 242.
FACTORIES BILL, (1829); informality in
passing, 602; not within the standing
order concerning bills for trade, 532.
Fast days ; Divine service attended on,
by both houses, 240.
Favourable Construction of Commons'
proceedings; privilege of, 71.
Fees; resolution on the acceptance of, by
members for professional services con-
nected with proceedings in Parliament,
103; payment or remission of, on com-
mitment to custody, 115.
See also Private Bills, VIII.
Felony; conviction for, a disqualification
for a seat in the Commons, 39. 66. 724;
privilege not extended to, 152.
Farmers' Estate Society (Ireland) Bill;
treated as a public bill, 752.
Ferrers, George, case of, 130.
Feudal System; legislative taxation traced
to the, 635.
Financial Inquiries by the Lords, 647.
Fines; imposed by Lords, 110 ; by Com-
mons, 113; last case of, 114 ; fees of
commitment partake of that character,
115.
GALLERIES ; members may speak from side
galleries, 341, 1. ; strangers' gallery
not now cleared on divisions, 269. 398.
Gardner, Lord ; absence of, from a com-
mittee, 233, 1., 887, 12.
Garter King of Arms; duty of, on open-
ing Parliament, 199 ; his opinion re-
specting the Speaker's precedence, 247,1.
Gas and Water Bills; consumers ad-
mitted to oppose, 833.
INDEX.
925
Gas and Water Works ; facilities given
by Act for obtaining powers for, 765;
clause as to limits, 854; as to additional
capital, ib. ; as to increase or decrease
of standard price and dividend, ib.
Gazette, London; notice given therein by
Speaker prior to issue of warrant for
new writ, 700 ; of his appointment of
members to issue new writs, 701.
George III. ; came down on first day of
Commons choosing Speaker, 196, n. ;
Parliament opened and Speaker chosen,
during illness of, 48. 203; secret com-
mittee to examine physicians, 458.
George IV.; provisions respecting his
signature to commissions, 594.
Good Friday; select and private bill com-
mittees not to sit on, 886.
Gordon, Lord George (1780); communi-
cation of his arrest to the house, 154.
506.
Gosset. See Howard v. Gosset.
Government nights; practice in regard to,
275, 276 ; origin of, 275, n.
Grace, Act of. See Pardon.
Grand committees, 443 ; partial revival of
(1882), 444. See Standing Committees.
Grants ; of public money, rules as to, 533.
563. 653. 690.
Great Seal; Pursuivant of the, his duties
transferred to the messenger of, 702, n.
Greater or Lesser Sun. See Supply.
Grenville Act; object of, 715; constitu-
tion of committees under, 716.
Grimston, Sir Harbottle ; chosen Speaker
without royal approbation, 203.
Grissell, C. E., committed for evading
execution of Speaker's warrant; again
committed in following session, 109.
Group Committees, on Private Bills. Seo
Private Bills, V.
HABEAS CORPUS ACT, how far enforce-
able in cases of parliamentary commit-
ments, 83; cases of resistance to writs
of, ib. ; return thereto by serjeant-at-
arms directed, 86; privileged persons
formerly released by, 135; peers not
privileged against, 157; clause in A.cts
for suspension of Habeas Corpus Act,
as to consent of House to arrest of mem-
bers, 153.
Hale, Lord ; his opinion on seats of lords
spiritual in Parliament, 7;
on the
council summoned by William the First,
19; on royal assent to bills, 592; on the
legality of impeachments by Commons,
735.
Hall, Arthur; imprisoned and fined, ex-
pelled and disabled from sitting in
House of Commons, 64. 96. 113.
Harlow v. Hansard ; this action stayed
pursuant to Act, 185, 1.
Harrison, Mr. Fortescue, case of, 160.
Hastings, Warren ; the impeachment of,
referred to, 58. 235. 736. 737. 739.
Hear, Hear ;'' use of, 387.
Hempholme ; stewardship of manor of,
701. 709.
Henry IV.; his recognition of freedom of
speech, 120; origin of petitions to
Commons during his reign, 607. 765;
of Commons' right of supply, 638.
Henry VI. ; his declaration respecting his
presence at Lords' debates, 502; origin
of modern system of legislation dates
from reign of, 520. 755.
Henry VIII. ; royal assent by commission,
in his reign, 593. 603.
Herbert, Lord, of Cherbury (1642); ex-
ception to words of, 372 ; ordered to
withdraw, 392.
High Treason. See Treason.
Hissing, rules against, 387.
Hobhouse, Sir J. C. ; his case referred to,
75. 85. 97.
Hollis, Gervaise (1641); a member sus-
pended from sitting, 64; see also Eliot,
Sir John.
Home Office; supervision of, over turn-
pike road bills, transferred to Local
Government Board, 809.
Honours ; bills for restoration of, 522.
891.
House. See Adjournment of the House.
Commons, House of Lords, House of.
Houses of the Labouring Classes ; dis-
placement of, by public works, 885; ac-
commodation to be provided for persons
displaced, 854.
Howard v. Gossett; 1st action, 80. 185;
(2nd action), 75. 80. 89. 176. 179. 186.
Hungerford, Sir T.; Speaker of the Com-
mons, 23.
Hybrid Bills ; introduction of, 746 et seq.;
examined as to compliance with stand-
ing orders, 797; committed, 870.
IMPEACHMENT; power of Parliament in,
57 ; rare in modern times, ib. 733;
grounds of, 734; question as to impeach-
ment of Commoners, ib. ; cases, ib. 735;
commencement of proceedings, 736 ;
926
INDEX
IMPEACHMENT—-continued.
articles of impeachment, 736 ; accused
taken into custody, 737 ; managers ap-
pointed, witnesses summoned, ib. ; the
trial, ib. ; charges to be confined to
articles, ib. ; Lords give, Commons de-
inand, judgment, 738; the judgment,
739 ; proceedings not concluded by pro-
rogation or dissolution, ib. ; pardon not
pleadable in bar of, but may be giren
afterwards, ib. 740.
Impleading in Civil Actions ; privilege of
not being impleaded in civil actions, 144;
writs of supersedeas issued, ib. ; suits
stayed by letter, 145; privilege limited
by statute, 146.
Improvement of Towns. See Lighting, sc.
of Towns.
Inclosure bills; general laws to facilitate
inclosures, 760, standing orders relating
thereto, 853, 854. See also Commons
Inclosure Act.
Incumbered Estates (Ireland) i general
acts in regard to, 767.
“ Indemnity of the Lords and Commons"
(1407); this statute cited, 638.
Indemnity; of witnesses before Parlia-
ment, 484 ; acts of, 523.
Indenture; the certificate of return of, 217;
certificate annexed instead of, 702; in-
denture discontinued by Ballot Act,
718. 726, and n.
India; motion for charge upon revenues of,
to be recommended by Crown, 652; re-
venues of, not applicable out of India,
without consent of Parliament, 654 ;
cases, ib.; secretary and under secre-
tary of state for, to sit in House, 705.
Indorsement of bills, modes of, 591 ; im-
perfect, 603.
In formâ pauperis ; à private bill pro-
moted in, 897. 901.
Informalities in Bills; Bill withdrawn if
discovered in the progress thereof, 539;
afterroyal assent, 601; in the agreement
of both houses, ib.; in indorsement, 603;
in royal assent, ib. ; omission of royal
consent, 508. 522. 875. 892; transposi-
tion of titles, 605.
Ingrossment; of bills, discontinued, 581.598.
Injunction. See Equity, Courts of.
Instructions; to committees of the whole
house, 432. 552. 567 ; examples of, 554,
555; amendments to, retain form of in-
struction, 557 ; mandatory instructions
in Lords, 553; resolutions in the nature
of instructions, 557, 558; to select com-
mittees, 446; to committee of selection,
805; to private bill committees, 845.862.
Interest on Calls (Railway Bills); payment
of, prohibited, '852.
Interest, Personal. See Personal Interest.
Interference in Elections ; resolutions
against, 719, 720, and n.
Interruption of Debates, 307. 387, 388 ;
disorderly noises behind the Speaker's
chair, 387; in committee, 389; Major
O'Gorman's case, 388.
Intoxicating liquors ; bills relating to sale
of, on Sundays, in particular counties
treated as public bills, 751, and n.
Introduction ; of peers to the house, 198,
199; of new members returned after
general election, 218; dispensed with
in Dr. Kenealy's case, ib.
IRELAND; representative bishops of, prior
to 1869..8; peers of, restricted to 100 by
Act of Union, 13; power of Crown to
add to, limited, ib.; represented in House
of Lords by 28 representative peers, ib.;
privileges of peers and peeresses of, 14.
139; unless representative peers, may
sit in House of Commons, 33; but lose
privilege of peerage, 14 ; judicature of
Lords over seats of representative peers,
55; certificate of their election from clerk
of Crown,199; rights of, on trial of peers,
744 ; 100 members in House of Com-
mons assigned to Ireland at the Union,
26; effects of Reform Act (1832), 28;
Irish Reform Act (1868), ib. ; present
number of representatives for, ib.; elec-
tive franchise of, 30; holders of offices
in, and judges, disqualified as members,
33; also contractors for government in,
36; notice of arrest of member in, from
the Lord Lieutenant, 507; Speakers'
warrant for election of members directed
to clerk of the Crown and Hanaper in,
701; acceptance of office under Lord
Lieutenant, vacates seat, 706 ; double
return in Ireland prohibited, 718;
general Acts for improvement of towns-
in, 763, 764.
Irish Church; bills relating to; whether
to originate in Committee, 529. 535.
Irrelevance or repetition in debate; con-
demned, 349 ; standing order on, 350.
Italics in Bills; explained, 539.
JAMAICA ; legislated for by British Par-
liament, 43.
James I. ; offended at language of Speaker's
petition, 68, n.
Jay v. Topham; the case cited, 76. 179.
INDEX.
927
Justices of the Peace; examined witnesses
for the Commons, 480.
KENEALY, Dr. ; his introduction dispensed
with, 218; ordered to withdraw offen-
sive expressions used in the lobby, 376.
Kenyon, Lord; his opinion in Flower's
case, 85; on claim of House of Lords
to be a court of record, 110 ; in Lord
Abingdon's case, 124; in Rex v. Wright,
173.
King (or Queen), The. See Crown.
Knaresborough Election (1852); treble
return for, 718, n.
Knights of the shire; historical notice of,
18; the election of, 28. 40; wages of,
25; present number, 27; term disused in
writs and returns, ib. 17.
.
Jews; legal obstacles to admission of, into
Parliament, 207; admission of, to House
of Commons, 209; resolution for, ib.;
Act of 1860, to substitute a standing
order for the resolution, ib. ; case of
Baron de Rothschild, 207. 216; and of
Mr. Salomons, 208; new oath common
to Jews and other members, 209; bills
for removing civil disabilities of, intro-
duced in committee, 528.
Joint Addresses; when usual, 513. 731 ;
mode of presenting, 515.
Joint Committees; of Lords and Com-
mons, how constituted, 461. 496 ; in-
stances of, 497.
Joint Stock Banks ; bills for, whether to
originate in committee, 531.
Joint Stock Companies; general law for
establishment or winding up of, 761.
Jones, Sir T. (a judge); committed, 77.
179.
JOURNALS:
I. Of both Houses.-Their formation
and nature, 255, 256; their legal charac-
ter, 257; given in evidence, 259; periods
over which they extend, 257, n.; entry
in, of proceedings of committees of the
whole house, 445.
II. Lords.Inspected by Commons,
336. 877; protest expunged from, 419;
special entries on agreement to Com-
mons' amendments, 588.
III. Commons.--Its claim to be a re-
cord, 258 ; entries expunged, 263 ; pub-
lication of such entries, a breach of
privilege, 91; special entries of agree-
ment to Lords' amendments to money
bills, 588. 645.
Judges; disqualified from sitting in the
Commons (except master of the rolls in
England), 33, 92. ; part of the consilium
regis, 56, 57; summoned as assistants of
the House of Lords, 57. 253 ; formerly
voted, 254; change of titles, 253 ;
places of, 254; of Scotch judges, ib.;
examined witnesses for the Commons,
480; examined by the Commons, 485;
bearers of messages from Lords to Com-
mons, 488, 489; drew up the statutes
from the Commons' petitions, 519; tenure
of office, 733, n. ; duties of, on trial of
election petitions, 721; regarding estate
bills, 892.
Judicature of the Lords. See Lords, House
of Parliament. Peers.
Judicature Act (1873), and later acts, 56.
Jurors; members privileged from service
as, 149; extent of this privilege, 150;
member fined for non-attendance as, ib.
LADIES' Gallery, 266; not included in
order for withdrawal of strangers, 269.
Lake v. King (19 & 20 Chas. II.); re-
ferred to, 167.
Lands Clauses Consolidation Acts, 770.
Language, unparliamentary ; punishable
as the House may think fit, 124; trea-
sonable or seditious, not allowed in
parliament, 368; members reprimanded
or committed, ib.
Law and Courts of Justice. See Standing
Committees.
Law Lords; duties of, in judicial cases,
404.
Leave of Absence; granted, 233; refused,
ib. ; forfeited, ib.
Lefevre, Mr. Shaw; elected Speaker, 200,
n.; his ruling as to precedence of Go-
vernment orders, 283; spoke in com-
mittee of whole house, 416.
Letters Patent Bills; notices and standing
orders regarding, 853 ; (Lords), 888.
Letters, Threatening, to members, a breach
of privilege, 100.
Levels of Roads; alterations of, by rail-
ways, 846 ; level crossings, ib. ; Lords'
standing orders as to, 889.
Libels upon the House, or Members ; a
breach of privilege, 95, 97; in certain
cases not fit subjects for complaints to
the House, 100; against former parlia-
ments, 97. 110; prosecutions by at-
torney-general ordered, 95; resolution
respecting, 98; seditious, 152.
Librarian (House of Commons); consulted
on orders for returns, 633.
Life Prerage. See Peerage.
1
928
INDEX.
Lighting, Watching, Police, and Improve-
ment of Towns; general laws for, 763 ;
Ireland, ib. ; Scotland, 764.
Lines v. Russell (1852); the case referred
to, 81. 86. 189.
Llandaff, Bishop of (1779); libel on, 85.
99.
Loans; restrictions on railway companies
as to, 846. See also Local Government.
Loans, Government; contractors for, not
disqualified for House of Commons, 36.
Lobbies; jurisdiction of the house extended
to the, in case of challenges or quarrels ;
Dr. Kenealy's case, 376.
Local bills; when public or private, 745
et seq.
Local and Personal Acts; defined, 897; to
be deemed public acts, ib.; given in evi-
dence, 898.
Local government; general laws relating
thereto, 764; the practice regarding
bills or clauses for local taxation, 535.
563; provisional orders of Local Go-
vernment Board confirmed by public
Acts, 763; as to borrowing money by
local authorities without sanction of,
853; (Ireland) sanction of, required to
application by local authority for new
powers, ib.
Lord Mayor; of London, examined within
the bar, 485; of Dublin, presents
petitions, 615. See also London City.
Lord Privy Seal ; usually manager of a
conference, 496.
Lords Commissioners; for opening Par-
liament, 195. 221 ; for giving the Royal
assent to bills, 593, 594.
LORDS, HOUSE OF; the component parts
of, 6; Lords spiritual, ib. ; Lords tem-
poral, 9; representative peers of Scot-
land, 12; of Ireland, 13; Lords spiri-
tual and temporal form one body, 15;
number and classification of, 16; the
Lords and Commons originally sat to-
gether, 22; when separated, 24; the
summons of, by the Crown, 44 ; their
power of adjournment, 51; the rights
and functions of the house, 55 ; the
judicatures exercised by, 56, 56 ; appel-
late jurisdiction surrendered by Judi-
cature Act, but restored, 56 ; three lords
of appeal added, ib.; the privileges of
the house, 71. 196 et seq. ; their claim to
be a court of record, 110; proceedings
in, on the meeting of Parliament, 195;
on prorogations, 270 ; consideration of
Royal speech, 48. 223; call of the
house, 229 ; times of meeting, 234.
236; order of business changed by
special order, 273; cases of, ib. 274 ;
quorum, 235; extraordinary sittings,
238, 239; attendance at St. Paul's, 241;
duties of Speaker, 243; assistants of the
house, 57, 253; chief officers of, 255;
the Minutes and Journals, ib. ; presence
of strangers, 266; orders relating to
distribution of business, 273; and to the
conduct of debate, 340 et seq. ;
wit-
nesses summoned' and examined by,
472. 478; in custody of, produced be-
fore Commons, 473; custody of bills
prior to Royal assent, 585. 592 ; supply
bills not to be altered by the Lords,
641 ; nor rates and charges, 642; Lords'
amendments agreed to, 645; charges
to be provided by Parliament, not
allowed to be made by the Lords, ib.
rejection of money bills by the Lords,
648 ; power to legislate on tolls and
charges in private bills, 646. 758. 798;
financial inquiries by, 647.
See also Bishops. Chairman of Com-
mittees (Lords). Committees of the
whole House, II. Committees, Se-
lcct, II. Ireland. Peers. Petitions.
Scotland. Speaker, I.
Lords' Journals. See Journals, I. II.
Lords Lieutenant of Counties ; not to in-
terfere in elections, 719.
Locus standi; cases of, before Court of
Referees, 817; rules for their hearing,
818; of petitioners against private bills
before committees, 819 et seq.; of land-
owners, 820; of traders, 821 ; qualified
interests, 822; contingent damage, 823;
against amalgamation bills, 828.
London City; sheriffs, lord mayor, and
aldermen of, committed by the House,
76, 77; the claim of members for, to sit
on Treasury Bench, 227; the question
whether they are knights,” ib. n.;
presentation of petitions from the cor-
poration, 614 ; bills respecting, whether
public or private, 747.
London Gazette. See Gazette.
Long robe, gentlemen of the; explanation
of term, 107, n.
Longer or Shorter Time. See Supply.
Lord Great Chamberlain; to receive Royal
visitors to House of Lords, 256, n.
Lord High Chancellor; is speaker of the
Lords, 49; writs of privilege formerly
issued by, 130. See also Speaker, I.
Lord High Steward; duties of, at trials
of peers, 737–741; his court, 740.
Lord Lieutenant of Ireland. See Ireland,
INDEX
929
Melville, Lord; his impeachment referred
to, 262. 411. 739.
Lovat, Lord (1746); his impeachment, 58.
738.
Lunatics; incapable of voting, 31; ineli-
gible as members, 33.
MACE; formerly the serjeant's authority
for arrest, 89. 115, and n.; Speaker,
when attended by, commits persons,
105 ; history of, 201, n. ; laid on the
table when Speaker-elect takes the
chair, ib.; Speaker elected during ses-
sion leaves the house without, 202 ; left
on table during suspended sittings, 241;
borne before the Speaker, 247 ; put
under table when house in committee,
427; placed on table on disturbance
arising therein, 437; position of the
mace during examination of witnesses,
484; sheriffs of London presenting peti-
tions introduced with, 614.
Magistrates; notice to the house on com-
mittal of members by, 164.
Magna Charta ; illustrates the constitu-
tion of Parliament, 20; forty days be-
tween the teste and return of the writ
of summons assigned by, 46, 12. ; recog-
nises the right of petitioning, 606, n. ;
and the principle of representation, 636;
forbids trial of commoners by the Lords
at the suit of the Crown, 734.
Managers; of conferences, 493; of inn-
peachments, 737.
Manchester, Bishoprick of; arrangement
on creation of, to prevent addition to
number of Lords spiritual, 8.
Manchester Ship Canal Bill, 1883; 793;
instruction to the committee, 801.
Manners Sutton, Mr. Speaker; speaks in
committee of the whole House, 416.
Mansfield, Lord; his opinion whether
House of Commons is a court of record,
112. 258, 12. ; on the jurisdiction of the
courts, 174.
Marines; acceptance of commission in
the, not vacating seat, 706.
Marquess; origin of the title, 9.
Master of the Rolls in England; may not
sit in the House of Commons, 33, n. ;
member of the consiliuni regis, 57.
Masters in Chancery; their attendance on
the Lords, 255. 488; formerly triers of
petitions, 607; their office abolished,
255, n.
Mayors, Justices, &c., ordered to assist
serjeant in executing a warrant, 77.
Meeting of a new Parliament; time of,
195; of both houses, 234.
MEMBERS of the House of Commons ;
knights of the shire and citizens and
burgesses, 18, 19; number of, at dif-
ferent times, 25–28; wages of, 25;
classification of, 27, 28; property quali-
fication of, abolished, 31 ; qualifications
and disqualifications, 31. 39; disqualifi-
cations, viz. : aliens, 31; minors, 32 ;
members already sitting, 33; imbecile
persons, ib. ; English and Scotch peers,
ib.; Irish representative peers, ib. ;
judges, ib.; certain officers under the
Crown, ib. 703; holders of certain
pensions, 34; sheriffs and returning
officers, ib.; clergy, 36 ; Government
contractors, ib. ; but not contractors for
Government loans, 36; bankrupts, ib. ;
persons attainted, 39 ; expulsion of
members, 63 ; suspension of members,
cases, 64; forcontempt, 66.408; members
not admissible as bail, 144; privilege of
access to sovereign, 68. 70. 515. 516;
publication of debates and of committee
proceedings, by members, a breach of
privilege, 90-94 ; case of publication of
proceedings before Select Committee on
Foreign Loans, 94; assaults or libels
upon members a breach of privilege, 98;
or the offer to them or their acceptance
of bribes, 102, 103; resolution as to
professional fees of members, 103, 425;
the privileges of members, 117. 159;
fined for contempt of court, 160; cases
of, ib. ; arrest of, under Protection of
Person and Property Act, to be com-
municated to the House, 164; the oath
required of them, 204 et seq.; privi-
leges of, before oath, 216; a member
cannot be proposed as Speaker, dur-
ing the session, before taking oaths
and seat, 202, 12.; cannot present a
petition before taking the oath, 216,
and n.; subscription of the test roll,
218; new members introduced and
Sworn, their places, and how se-
cured, 226, 227 ; service in Parliament,
228. 233; call of the house, 230; mem-
ber first in the return book accounted
the senior, 231, 12. ; leave of absence,
232; allowed to vote against motions
made by themselves, 314.
Rules for members speaking, 340. 363
et seq. 434, 435; when two rise together,
344; precedence to member who moved
adjournment of the debate, 346, 347,
and n. ; new members, 348 ; questions
to other members, 354; personal ex-
planations, 358 ; personal allusions and
challenges, 373–377 ; rules for mem-
bers not speaking, 385; members to
ih. ;
P.
30
930
INDEX.
MESSAGES-continued.
creased, 673; message respecting vote
of credit for war expenditure, 680 ; vote
of credit granted without, ib.
II. Between the two Houses.-Ancient
forms of, 487; when an interruption
to debate, 307, n. ; now carried by the
clerks of each house, 489, 490. 584 ;
when substituted for conferences, 513.
III. To the Royal Family, and com-
munications from them, 517, 518.
Metropolis, bills relating to the, dealt
with as public bills, 746 ct seq.
Middlesex, Sheriff of; case, 86. See also
Stockdale v. Hansard.
Militia ; Parliament to be assembled when
called out, 50; commissions in, not va-
cating seats, 706 ; change in practice
regarding militia estimates, 651.
Militia Acts Consolidation Act, referred
.
to, 50.
MEMBERS of the House of Commons-
continued.
withdraw when their conduct is under
debate, 392. 717; petitions complaining
of members, 393; members in contempt,
ib. ; divisions, 396; members to retire
into one of the lobbies, 407 ; pairs, 417;
personal interest, 419. $11; members
not to be counsel before committees, &c.,
425; nor parliamentary agents, ib. 782;
nor counsel before the Lords, 425; leave
given ib. ; refused, 426; may plead in
judicial cases before Lords, ib.; duties
as members of select and secret com-
mittees, 233. 449; attendance and ex-
amination of inembers as witnesses be-
fore their own house, and the committees
thereof, 474. 485; before the Lords,
475. 478 ; regarding taxation, 617; be-
fore courts of law as to proceedings of
the house, 483; sent with messages to
the Lords, 488; uncover when message
from Crown is read, 504; imprisonment
of, messages concerning, 148. 506; how
acknowledged, 512 ; obtain leave to
bring in a bill, 524; and mode of pre-
sentation, 540; petition from member
to be presented by another member, 615;
duties of members regarding petitions,
616; power of sending parliamentary
papers free of postage, 632; vacation of
seats, 695; by peerage, 697; bank-
ruptcy, 701 ; by acceptance of office,
700. 703. 710; Chiltern Hundreds,
708 ; by admission of disqualification,
712 ; holders of pensions for Civil Ser-
vices not disqualified from sitting in
Parliament, 707 ; questions touching
seat of members referred to
mittees, 713; members vacating seat
to be re-elected, 714; duties and re-
sponsibilities of members regarding
controverted elections, 716; members
returned for two places, 717; duties of
members conducting private bills, 784 ;
on private bill committees, 803 et seq.
See also Cominons, House of Debates.
Divisions. Oaths, I. Privileges.
Memorials (Private Bills); complaining of
non-compliance with standing orders,
772 ; appearances on, 775.
MESSAGES :-
I. From the Crown.—Under the sign-
manual, 504; subjects of, ib. ; commu-
nicated to both houses, 505; on matters
of supply, ib.; verbal messages, 506; on
arrest of members, ib.; addresses in an-
swer to written or verbal messages, 511,
512; exceptions in the Commons, ib.;
messages for pecuniary aid to be con-
sidered in committee on future day, ib.;
grants recommended by, cannot be in-
Militia (Scotland) Bill (1707); Royal assent
refused, 596.
Ministers of the Crown; when ministers
are not permitted to answer a second
question, 358; uot to interfere in elec-
tions, 720; responsible ministers in both
houses, 518; maintain the closest rela-
tions between the Crown and legisla-
ture, ib.
See also offices under the Crown.
.
Minors ; not to be voters, 32; nor mem-
bers of the House of Commons, ib.
Minutes of Eridence. See Evidence. TTit.
12csses.
com -
Minutes of Proceedings (Lords); how
compiled, 255 ; laid upon the table of
the House of Commons, ib. 92.; of select
committees, 448 ; (Commons), of select
and private bill committees, 449. 845.
855.
See also l'otos and Procccdings.
Misrepresentation ; of parliamentary pro-
ceedings, a breach of privilege, 102; per-
sonal explanation regarding, 358 et seq.
Mitchel, John, his election set aside, 39, 12.
724.
Money Bills ; excepted from Standing
Order as to opposed business after half-
past twelve, 308; not to be amended
by Lords, 641 ; Lords' amendments
agreed tu, ib. ; returned to the Com-
mons, and presented by the Speaker
for the royal assent, 592. 689; Compo-
site Tax Acts, 650.
See also supply, and Ways and Means.
Montford, Peter de (44 Hen. 3); his sig.
nature as Speaker, 23.
INDEX.
931
MOTIONS- continued.
to intended motions, 613; rules regard-
ing motions for grants of public money,
653. 673.
See also Debates, Questions.
Moyle, Mr. Speaker ; first petitioner on
behalf of Commons for freedom of
speech, 120.
Municipal Authorities, &c. ; locus standi
of, against a private bill, 832.
Munster; escheator of, 701. 709.
Murray, Mr. (1751); committed for libel
on the house, 75. 84; ordered to be
committed for offence committed in a
previous session, 109; his refusal to
kneel, 117.
Mutiny Bills; former, when to be ordered
in, 658 ; annual meeting of parliament
secured by practice thereon, 659.
Name Bills; copies of, not delivered to
doorkeepers, 797 ; interval between se-
cond reading and committee, 805.
Naming Members; by the Speaker, 387
ct scq.
Montfort, Simon de; writs issued by, for
summons of Commons, 21.
Moravians. See Quakers, 8c.
Morning Sittings; orders relating to, 282,
283; resolutions relating to, ib.; Go-
vernment orders have precedence, ib. ;
ruling of Speaker, ib. ; leave to sit till
four, and report at six o'clock, 282;
change of hours in 1867, ib. 283.
See also Wednesday Sittings.
MOTIONS ; rules as to notices of, 272; in
the Lords, 273 ; in the Commons, 274 ;
restriction as to time in giving notices,
ib. ; priority to Government in certain
cases, 287 ; on Tuesday notices of mo-
tions, 275; orders of day postponed till
after certain motions, 277; motions post-
poned till after an order of day, 279;
orders of the day postponed till after
notice of motion, 280 ; notices of, how
given, 285; combination of members
to secure priority for, condemned by
Speaker, 286; on private bills, 783.
785; rule as to change of day of motion,
287 ; notice given by one member for
another, ib. ; time to elapse between
notice and motion, ib.; motions without
notice, 288; unopposed, ib.; for, a re-
turn to be presented forthwith, ib. 624;
precedence to questions of privilege,
289. 292; carefully limited, 292, and
17.; to motions for new writs, 291, 698;
and to votes of thanks, 294 ; motions
taken at half-past four o'clock, 293 ;
precedence to class of motions relating
to business of the house, ib.; cases as
to adjournment of the house at its
rising, ib. 17. ; leave to make motions,
294 ; notices expunged, ib. ; refused
to be received, 295; informal notices
corrected, ib.; dropped notices, ib. ; mo-
tions made, 296 ; a seconder not needed
in the Lords, ib. ; to be seconded in the
Commons, ib.; but not in committee,
433; motions not seconded, 297 ; pro-
posed by the Speaker in words of mover,
297; verbal alterations allowed, but
not substantial, ib.; formerly Speaker
framed motion, ib.; omission of objec-
tionable words, ib. ; irregular questions
not put from the chair, 298 ; motions
by leave withdrawn, 299; withdrawing
motionsandamendments, ib.300; motions
for superseding a question, 300—305;
standing order as to opposed business
after midnight, 308; amendments to
motions, 316 et seq.; motions withdrawn
may be repeated in the same session,
332; and motions superseded, ib.; a
motion may be proposed by an in-
terested member, 423; petitions alluding
Naturalization Bills; clause disqualifying
from service as member no longer in-
serted in, 31; general laws relating to
naturalization of aliens, 767; second
reading of, 893 ; certificate from secre-
tary of state, ib.
Naval review, Spithead (1853); house met
later than four o'clock, 234.
Nary. See Commissions.
New Members ; how introduced, 218.
Newcastle-under-Lyme Election (1842);
report on bribery thereat, 728.
Newgate; persons committed to, 473. 482.
Newspapers; privilege not enforced against
faithful reports by, of parliamentary
proceedings, 93; and protected from the
law of libel, ib. and 1. ; reporters ex-
cluded from the house with other
strangers, 267; proceedings on com-
plaints against, 107, and n., 292, n.; rule
as to reading from, 107. 365; Mr. Par-
nell's case, 107, 12. ; by members in
their places, 386; publication in, of
committee proceedings prior to report,
94. 466,
Norfolk, Duke of (1546); attainder of, 604.
Norfolke, Sir J. (1675); removed from
office of serjeant, 264.
3 0 2
932
INDEX.
Norman French ; indorsement of bills in,
591 ; royal assent given in, 594 ; abo-
lished during the Commonwealth, ib. ;
attempt to do so in 1706..596 ; used in
appointment of receivers and triers of
petitions (Lords), 607.
Northstead, manor of, stewardship of,
701. 709.
Norwich; disfranchised during the par-
liament, 730, n.
NOTICES (PRIVATE BILLS) :-
I. Preliminary Notices.-Requirements
of Standing Orders respecting notices
by advertisement, 769, n.
II. During Progress of Bills (Commons).
--Notice, by examiners, of day ap-
pointed for examination of each peti-
tion, 774 ; notices of private business,
how given, 782; if not duly given, 783;
notices published, ib.; of second read-
ing, 798; of examination of No. 2 bill
by examiner, ib.; of bill received from
Lords, 896; of appointment of members
to committees, 803; of first sitting of
committees, 810; if postponed, ib. ; of
consideration of each bill in committee,
841; of adjournment of committee, 869;
of consideration of bill as amended,
873 ; of proposed clause or amendments,
ib.; of meeting of committee on re-
commitment, 874 ; of third reading, ib.;
of motion to suspend Standing Orders,
876 ; other notices and intervals, 896.
III. In the Lords.—Of proceedings
before examiners, 879 ; of meeting of
Standing Order Committee, 880; notices
to be given where work is altered in
parliament, 883; of re-committal, 874.
Notices ; of Amendments, see Amendments;
of Motions, see Motions.
QATAS:
I. Taken by Members. In the House
of Lords, first by lord chancellor and
peers of blood royal, 198; form of oath
taken, 205; in the House of Commons,
first by Speaker, 204 ; one oath now sub-
stituted for the oaths formerly taken,
205 ; time and manner of taking, ib.;
refusal to take oaths, 206; oath for-
merly taken by Roman Catholics, ib.;
declaration, &c. in lieu of oath, 209;
resolution respecting the admission of
Jews, ib.; the resolution made a Stand-
ing Order, under act, ib.; take the same
oath as other members, ib. ; case of
Mr. Bradlaugh, 210 et seq.; penalties
in case of omission to take oaths, 215;
new writ to be moved for immediately,
216; privileges of members before they
are sworn, ib.; evidence of return prior
OATHS--continued.
to administration of oath, 217; new
members sworn, 218; and members
seated on petition, ib.; oaths re-taken
on demise of Crown, 219; act to make
valid oaths taken by members in ab-
sence of Speaker, ib. ; bills for altering
oaths of members originate in commit-
tee, 528.
II. Administration of Oaths in Parlia-
ment.-By Lords at the bar, 478; before
committees, 448. 478. 886; power of,
not enjoyed by Commons until 1871,
when it was conferred by statute, 481 ;
by private bill committees, 855; by
courts of referees, 482; by joint com-
mittees, ib. ; by taxing officers of both
houses, 902.
See also Coronation Oath. Witnesses,
II., III. Bradlaugh, Nr.
O'Brien, Mr. W. Smith; his refusal to
serve on a committee, 233. 393. 804 ;
leave given when in custody to attend
the Lords, 476, 12. ; his arrest for high
treason referred to, 39, n. 154. 507, n.;
petition from, when attainted, 613.
Obstruction of debates by straining rules
of the house, 314. 380; declaration of
the Speaker respecting, ib.; Burke cited,
ib., n.; considered by select committee,
381 ; measures for repressing, ib. et seq.
See also Suspension of Members.
Obstructions ; in the streets ; sessional
orders as to, 235; to members, 99.
O'Connell, Mr.; complaint of expressions
used by, 97; his refusal to take the
oaths, 206; precedence given to privi-
lege case respecting him, 290.292;
withdrew while it was under debate,
392; returned for two places, 717.
O'Connell, Mr. J. (1849); complaint by,
of a newspaper report, 108, 12.
O'Connor, Mr. Feargus; refused as bail,
144, 1.; notice to the house of his com-
mittal, 154, 12.; his misbehaviour in the
house, 389; committed for contempt,
390.
O'Donnell; case of, motion that he be not
heard withdrawn, 346; named and sus-
pended, 389.
O'Donovan Rossa ; declared incapable of
sitting by resolution of house, 39, n. 724.
Officers of Parliament; privileged from
arrest within precincts of the house,
69, n.; protected in executing the orders
of the house, 75, 76, 77. 104; messages
for attendance of, as witnesses in the
other house, 476; clerk of the Parlia-
ments and other clerks at the table, 256;
INDEX.
933
and n.
Orders of the Day-continued.
276 ; government orders on Wednes-
days, ib.; and on Tuesdays, 277; orders
of the day postponed till after notices,
277, 278; put before notices, 279; orders
appointed for half-past four, 281; can-
not be changed to an earlier day, ib.;
sittings on Wednesday, 282 ; other
morning sittings, ib. ; resolutions re-
specting, 283; government orders have
precedence, ib.; dropped orders, 284 ;
orders superseded by adjournment, not
dropped orders, ib.; proceedings on
orders of the day being read, ib.; orders
moved without seconder, 296; motion
for reading, to supersede questions, 302;
petitions presented after order of the
day is read, 285. 622; orders of the
day after half-past twelve, 308, 309.
Orders and Resolutions. See Resolutions ;
Standing Order.
Ordnance; lieutenant-generalship of, held
not to vacate seat in the house, 706.
Out-door oaths; abolished, 204, 12.
Orners, Lessces, and Occupiers. See Notices.
Officers of Parliament-continued.
gentleman and yeoman usher of the
black rod, and serjeant-at-arms, 256,
Of the House of Commons : —
Clerk, and clerk-assistant, 256; ser-
jeant-at-arms, 264; not to give evidence
elsewhere without leave, 483; petitions
for attendance of officers as witnesses,
ib.; not to act as parliamentary agents,
782.
Offices under the Crown; a disqualifica-
tion for parliament, 34. 703; members
accepting, against whose return elec-
tion petitions were pending, 696 ; issue
of writ on acceptance of office during
recess, 700; acceptance of, vacates seat,
ib.; not on transfer of secretary of state
to another department, 703; members
holding certain offices not required to
vacate seats on acceptance of other of-
fices, 704; or on resuming office before
appointment of successor, ib. ; transfer
from certain offices, vacates seat, ib., n.;
under secretaries of state, ib.; Chiltern
Hundreds, &c., 708.710; office of vice-
president of board of trade abolished,
705; substitution of a parliamentary
secretary, 706; new offices under the
Crown vacate seats, 708; in certain cases
disqualified from re-election, 709, 710;
cumulative, ib. ; first lord of the trea-
sury, also chancellor of the excbequer,
710, and 711, n.; without salary, 712;
opinions of law officers withheld from
Parliament, 625.
O'Gorman, Major; ordered to withdraw,
388.
O'Kelly, Mr. ; suspended, 389.
O’Loghlen, Sir Bryan; case of, 707. 713.
Oliver, Alderman; committed by the
Commons, 75. 77.
Opposed business after half-past twelve,
308.
“ Order;" call to, 386–388. See also
Debates.
Order Book; regulations concerning (Com-
mons), 274 et seq. 285; restriction in
placing notices on, 274; dropped orders
replaced in, 284; printed daily, 285, n.;
notice expunged from, 294 ; when
notices for private business are entered
in, 782.
Order, Questions of; may interrupt de-
bates, 288. 307.
Orders of the Day; Standing Orders as
to; Lords, 273; Commons, 275-286;
days on which orders have precedence,
276; government nights, 275, and n.;
Tuesdays taken for orders of the day,
Packet and telegraphic contracts, condi-
tions regarding, 665.
See also Contracts.
PAINS AND PENALTIES, ACTS OF; modo of
passing, 57, 58. 744.
Pairs ; system of, 417, 418.
Paper Duties Bill, 1860; 649.
Pardon; not pleadable in bar of impeach-
ment, 15, n. 739; given afterwards,
740; bills for a general pardon, 523 ;
cannot be amended by parliament, ib.;
royal assent thereto, 595; want of, dis-
qualification of convicted felon for seat
in parliament, 39, n.
PARLIAMENT; constitution of, traceable to
the free Saxon councils, 1 ; constituent
parts of, 2-23; the Crown, 2; the
House of Lords, 6; the Commons, 16 ;
the three estates of, originally sat toge-
ther, 22 ; when separated, 24; legisla-
tive authority of, 42; prerogatives of
Crown in reference to, 44. 53, 54; sum-
mons from Crown, 44. 46. 195; two
occasions of meeting without, 44; days
for which usually summoned, 195, n. ;
ancient laws concerning its annual
meeting, 44, 45; meeting of, on demise
of Crown, 46; causes of summons de-
clared,. 47. 219; considered by both
houses, after bill first read pro formâ,
48. 222; prorogation, how accom-
plished, and effect, 49. 269-271 ; par-
liament assembled by proclamation, 50;
934
INDEX.
PARLIAMENT– continued.
law relating thereto, 50; adjournment
solely in power of each house, 51; ad-
journments at the pleasure of the
Crown, ib.; adjournments, pursuant to
statute, 52; expiration of parliament
under the Septennial Act, 53; dissolu-
tion by proclamation, ib. ; by king in
person, 54; prorogation with view
thereto, ib. ; judicature of parliament
in acts of attainder, &c., and in im-
peachments, 57. 733; privileges thereof,
68 et seq.; law and custom of, explained,
72; proceedings of, how regulated, 192
et seq. ; proceedings upon its first meet-
ing, 195; exceptional course in opening
of, 196, 197 ; service of parliament,
228 ; prorogation, 269 ; sovereign sup-
posed to be present in, 502; communi-
cated with by sovereign or royal family,
503—518; statements to, not action-
able, 167 ; but admissible in evidence,
168.
See also Commons, House of ; Lords,
House of, 8c.
Parliamentary Agents; (Commons) mem-
bers not to practise as, 425; nor officers
of the house, 782; rules regarding, 780 ;
declaration and registry, ib.; change of
agent, 781; responsible for the pay-
ment of fees, 901; privileged from
arrest, 162.
Turliamentary papers. Sec Accounts and
Papers. Stockdale v. Hansard.
Parnell, Mr. ; named and suspended, 389;
not allowed to read cuttings from news-
papers, 107, 12.
Parochial relief; persons in receipt of, in-
capable of voting, 31.
Patents. See Letters Patent.
Pease, Mr. : allowed to affirm, 210.
Pecuniary penalties and fees ; Commons'
rules in regard to Lords' imposing, re-
laxed, 646, 647.
Pecuniary Interest. See Personal Interest.
Peel, Sir Robert; breach of privilege
against, 100; house adjourns on death
of, 242; motion against him expunged
from votes, 263; prevented from speak-
ing after question fully put, 342;
opinion as to reading extracts from
newspapers, 366; use of Queen's name
by, 3702
Peerage; list of, on roll of House of
Lords, 12 ; dormaut peerages, laws re-
lating to, 13; life peerages, 14; re-
port of committee thereon, ib.; creation
of three, 15; vacancies in the House of
Commons by, 697.
Peeresses ; privileges of, 138; forfeited
when peeresses intermarry with com-
moners, ib. See also Peers.
Peers ; created, and formerly summoned
to parliament, by the Crown, 6; de-
grees of rank, 9-12; representative
peers of Scotland, 12 ; of Ireland, 13;
not to sit until of age, 14; titles of
temporal peers hereditary, ib.; number
and classification of peers, 15, 16; Eng-
lish and Scotch peers ineligible to Com-
mons, 33; Irish, not representative
peers, may sit for places in Great
Britain, 14, 33; rights and functions of
peers, 55; peers becoming bankrupts
disqualified from sitting and voting, 38,
39; privileges of, 71. 127. 138. 140;
privileges of peers of Ireland and
Scotland, 12, 13. 138. 743, 744; intro-
duction of peers to house, 198, 19.9 ;
their places in the house, 225 ; service
of parliament, 228; summoned to at-
tend, 229; ancient privilege of voting
by proxy, 228 ; votes of peers in judi-
cial cases, 404; mode of couducting the
proceedings of the house, 273. 296; and
debates, 340; the right of explanation,
359 ; words of heat between peers, 374;
conduct in the house, 386; divisions,
312, 396 et seq.; protests, 418, 419; per-
sonal interest, 419. 810; attendance as
witnesses before their own house, 472.
478 ; before the Commons, 475. 485;
duties of peers, on select or secret com-
mittees, 447 et seq.; presentation of
bills by peers, 524 ; of petitions, 615;
resolutions of Commons, as to interfer-
ence of peers in elections, 719, 720 ;
impeachments, 734; trials and indict-
ment of peers, 740, 741; peers not to be
concerned in the levy of tolls, 798.
See also Bishops. Divisions. Lords,
House of. Proxies.
Pelham H. (1647); his appointment as
Speaker of the Commons, approved by
the House of Lords, 203.
Pemberton, Sir F. (a judge); committed,
77. 179.
Penalties. See Pccuniary Penalties, fc.
Pensions. See Members of the House of
Commonas.
Perjury. See TVitnesses.
Personal allusions ; rules concerning, 373.
bills; which so termed, 891; to
be delivered to persons con-
cerned, ib.
explanation ; by members, 358.
619.
INDEX.
935
Personal interest; votes of members inte-
rested in public matters, 419; in private
bills, 421; in private bill committees,
423; member or peer personally inte-
rested, discharged from attendance, 811.
886; declaration of members respecting,
811.
Persons, Papers and Records ; Commons'
committees authorised to send for, 454 ;
but such powers not given to private
bill committees, 867; nor to Lords' com-
mittees, 448 ; power to send for papers
and records only, 455.
Petitions. (Private Bills.) See Private Bills.
PETITIONS, PUBLIO; right of petitioning,
606; ancient mode of petitioning, ib.;
receivers and triers, 607; commence-
ment of modern system, 608 ; modern
practice, ib.; form of, ib.; to a previous
parliament not received, 609, n.; nor re-
monstrances, &c., ib.; unless concluding
with a prayer, ib.; cannot be presented
by member before being sworn, 216,
and n.; rules regarding signature, &c.,
610; forgery or fraud, 611; priority
to motions respecting, as to a breach
of privilege, 292, n., 619; character
of petitions, 611; containing offensive
imputations upon the judges and the
Speaker, rejected, ib. 612; may oppose
taxes, 618; not received if irregular,
611; and proceedings thereon dis-
charged, ib. 612; containing offensive
imputations on the judges and reflec-
tions on the Speaker, proceedings on, dis-
charged, ib.; petitions respecting public
money, or debts to the Crown, 613;
or for compensation, ib.; from persons
attainted, ib.; from abroad, 614; pre-
sentation of petitions, ib. 616; time,
&c., thereof, 621; member to affix his
name at the beginning, ib.; concerning
matter depending, 285. 622 ; from the
corporation of London or Dublin, 615;
if lord mayor a member, ib.; from a
member, to be presented by another,
ib.; complaining of the conduct of
members, 390; not received on first day
of session, 616; transmission by post,
ib.; members responsible for petitions
they present, ib.; petitions withdrawn
or rejected, ib.; presentation and dis-
cussion of in the Lords, 617; in the
Commons, ib.619; statement of numbers
of, 617, n.; read by the clerk, 618;
petitions not to be discussed, on motion
for adjournment, 619; dealt with by
committee on public petitions, 618. 620;
printed with the votes, ib.; reprinted,
621.
Piers and Harbours; general laws pro-
viding for coustruction of, 765.
Pitt, Mr.; amendment of question concern-
ing, 306; his opinion on voices at a di-
vision, 312; rose together with Mr. Fox,
345, and 12.; resolution (1784) respecting
the supplies during his ministry, 638, n.;
first Lord of the Treasury and Chan-
cellor of the Exchequer at same time,
711,
PLACES OF MEMBERS :
I. Lords.-To sit in the order pre-
scribed by act, 225; places of, ib.; rules
in going to and leaving, 386.
II. Commons. Treasury and opposi-
tion benches, 226; members for the city
of London, 227, places retained by
members thanked by the house, ib.;
secured at prayers, ib.; not lost by a
division or commission, 228; rules in
going to and leaving, 386.
Plans, Sections, Cross Sections, and Books
of Reference; orders respecting, 769;
plans, &c. to be signed by chairman of
committee, 865; (Lords) deposit of
plans of alterations made after intro-
duction of bill into parliament, 883.
Pleasure of the House; how signified, 299.
Pledall's case,
140.
Plimsoll's, Mr., case, 109.
Pliny, Letter of, cited, 323, n.
Plutarch cited, ib. 12.
Police and Sanitary regulations, in local
bills; to be reported on by committee,
849.
Poor Law Bills; originate with Commons,
521; instances of, with Lords, ib.;
general laws relating to, 763.
Post; transmission of parliamentary
papers by, 631.
Postmaster-General ; seat vacated by ac-
ceptance of office of, 708.
Præmunientes clause; inserted in bishop's
writ of summons, 637, 1.
Prayers ; in the Lords, read by bishop or
peer in holy orders, 198; in the com-
mons, by Speaker's chaplain, 204; by
Speaker in his absence, ib. n.; when first
said in each house on opening of parlia-
ment, 219; omission of, during absence
of Speaker, 249; places secured at, 227;
house counted after, 236; notice of,
to select and private bill committees,
463. 869 ; proceedings of, void after,
463; adjournment of, to be determined
on previously, 464. 869.
Preachers; before the houses, appointment
of, 210.
· 936
INDEX.
PREAMBLES of BILLS :
I. Of Public Bills.- Postponed in com
mittee, 560; considered last, 568 ;
amended, ib.
II. Of Private Bills.-First proved,
857 ; petitioners against, heard, 819;
proceedings on, 859 ; not proved, 862 ;
the bills recommitted, ib.; cases of, ib. ;
alterations in, to be specially reported,
864.
Precedence; of peers, rules and orders as
to, 226; to notices of motions or orders
of the day, 276. 277 ; to questions of
privilege, 289; to votes of thanke, 294.
Preference Shares (Railway Bills); Stand-
ing Orders as to, 848, 849; Locus standi
of preference shareholders, 836.
Preliminary Inquiries Act; requirements
of, 770. 809.
Preliminary Objections; (Private Bills),
777.
Prerogative; taxes by, ceased at Revolu-
tion (1688), 5, n. 638.
Presbyterian Church of Scotland ; sove-
reign bound to maintain, 6.
Prevarication ; commitments for, 81. 479.
482.
PREVIOUS QUESTION, the; explained, 303;
questions cannot be amended after the
previous question agreed to, ib.; nor
can amendment be proposed till it is
withdrawa, ib.; form adopted by the
United States congress, 304 ; cannot be
amended, ib.; used on stages of bills,
ib. 549; cannot be moved on an amend-
ment, 304. 326; nor after motion to
read orders of the day, 305 ; nor in com-
mittee, 304.433.566; amendment moved
before, 326; questions in committee on
the Reform Bill in the nature of, 566, 12.
Printed Papers. See Stockdale v. Hansard.
Printing; of accounts and papers, 629; of
petitions, 618. 620; Printing Committee
(Commons), 629; recommendations of
(1841), 633; of public bills, 540.
572;
of private bills (Commons),
796; as amended by committee, 871;
also clauses or amendments on con-
sideration, 873; (Lords) reprint of
amended bills, 890; proposed amend-
ments to be printed, ib.; of private
acts, 898, 899.
Prisons, Keepers of; to bring up witnesses
in their custody, 472, 473.
Private Bill Office. See Private Bills.
PRIVATE BILLS:
I. Generally.-Origin of, 608; dis-
tinction between public and private bills,
745. 752 ; and hybrid bills, 746. 870;
private bills involving considerations of
public policy, 746 ; containing powers
to raise money, 747 ; affecting public
monuments, 750; religious communi-
ties, 752 ; public administration, ib. ;
private bill not to be taken up as a public
bill after its introduction, 753; public
acts repealed by, ib. ; origin of private
bills, 608. 754; different functions of
Parliament in passing bills, 755. 757;
suitors in Parliament restrained by courts
of equity, 756; compelled by Parliament
to apply for a bill, 757. 852 ; originated
chiefly with the Commons, 758._878;
practice altered by power given to Lords
to legislate on tolls and charges in, 758;
power of transferring a bill from Com-
mons to Lords, 759; enumeration of
general laws that supersede private
bills, ib. ; personal interest of members
in private bills, 421; discharged from
attendance on committees, 423. 804.
886; bills suspended and proceeded
with in another session, 779; no bill to
pass through more than one stage in a
day, 875; notice to suspend Standing
Orders, 876; Wharncliffe order adopted
by Commons, 882; Registers (Com-
mons) ; of petitions, 772; of parliamen-
tary agents, 780 ; of private business,
782; of proceedings on bills, 785.
II. Preliminary Conditions.—Classifi-
cation of private bills under Standing
Orders, 768; requirements of the Stand-
ing Orders, 769, 770; the preparation
of bills, 770; Consolidation Acts, ib.;
Preliminary Inquiries Act, ib. 809;
proof of compliance with orders, 770.
III. Proceedings before Examiners for
both Houses. Their functions and
powers, 771. 871. 879; petitions set
down for hearing before, distinguishing
opposed and unopposed, 773; notice of
examination, 774 , daily lists of peti-
tions, ib. ; petitions struck off the list,
ib. ; re-inserted, ib. ; statement of
proofs, ib. 880; appearances on me-
inorials, 775; formal proofs, ib. ; by
affidavit, ib.; unopposed cases, ib. ; in-
dorsement of petition and report respect-
ing compliance, ib. 779. 880 ; opposed
cases, 776; rules regarding evidence
and hearing of opposed cases, 776 ;
questions of merits excluded, 778; bills
referred to examiners upon amendments
in committees, 871; and bills introduced
in the Lords, 895.
IV. Proceedings of the Commons.-Pro-
gress of private bills, 780; notices of
INDEX.
937
PRIVATE BILLS- continued.
private business, how given, 782; time
of private business, 783; what to be
deemed private business, ib.; resolutions
for amendment of Standing Orders and
adjourned debates thereon, taken during
time of private business, 784; order of
proceeding in the house, ib.; conduct of
bills by members, ib.; use of their names
on presentation of bill, 796; special
motions, 785; entries and register of
proceedings, ib. ; if any stage of bill in
the house be opposed, consideration post-
poned till next sitting, 800.
Petitions for Bills.-Deposit of, 745;
how dealt with by examiners, 771; list
of, 772; petitions struck off, 774 ; pre-
sented, 786 ; recommendation of Crown
to be signified, ib.; when Standing
Orders not complied with, ib. ; with-
drawn and other petitions presented,
ib.; bills introduced upon petition, 787;
exceptions, ib.; when provisional orders
are amended, 788; petitions for addi-
tional provision, ib.; considered in com-
mittee of the whole house, 789; bill
re-committed to make provision out of
revenues of Crown, 790; petitions for
leave to deposit petitions for bills, 795.
Standing Orders Committee. -Consti-
tution and duties of, 790. 872 ; reports
of, 792; overruled, 793; amendments
on consideration of bill referred, 874.
Bill presented, 796 ; irregularities
therein, 796 ; rates, tolls, &c. in italics,
ib. ; first reading, 797; copies delivered
to door-keepers, ib. ; examination of
hybrid bills, ib.; proceedings before
second reading, ib.; bill examined in
private bill office, 798 ; withdrawn, if
informal; and new bill (No. 2), pre-
sented, ib. ; peers' names to be struck
out of bills, ib.; bill in violation of the
standing orders, 799.
• Second reading.–Proceedings thereon,
799; if opposed, consideration postponed
till next sitting, 800; provisions for
Government contracts, ib.
Commitinent. --To the committee of
selection, 801; exceptions, ib. ; instruc-
tions to, ib. 805, 806; for confirming
provisional orders, nominated by, 807;
constitution and duties thereof, 803.
876; and of general committee on rail-
way and canal bills, 802; constitution
of committees on private bills, 803; on
road bills, ib.; on unopposed bills, ib.
842; treated as opposed, 841. 844; on
opposed bills, ib.; duties of selected
members, 803. 811; their declaration,
811; one member substituted for an-
PRIVATE BILLS—-continued.
other, 804; interval between second
reading and committee, 805 ; first sit-
ting of committee fixed, ib. ; postponed,
810; duties of chairman of ways and
means, and Speaker's counsel, 807; and
of chairman of Lords' committees, 808 ;
house in which bills are to be first con-
sidered, ib.; amendments before sitting
of committee, ib.; limits to, 809; super-
vision by public departments, 808 ; de-
posit of filled-up bill, 810.
Referees.—Changes effected by consti-
tution of, 812; their number, ib. ; deci-
sions, 834 et seq. ; power of administer-
ing oaths to witnesses extended to, 482;
rules as to hearing counsel, ib. 819;
standing orders relative to, ib.; gas and
water bills referred to, by committee of
selection in 1867, 813; exceptions, ib. ;
oaths administered by, ib. ; associated
with committees of the house, ib.; not
to vote, ib. ; form separate court for
determining cases of locus standi, 818 ;
cases of locus standi, 820. 824. 828; rules
for hearing such cases, 818; disallowed
in case of no appearance, ib. ; allega-
tions admitted, 819; what constitutes
a locus standi, 820 ct scq.; disallowed in
case of opposition being withdrawn in
Lords, 826; standing order as to hear-
ing municipal authorities, &c., 832; as
to hearing local authorities, against
water and lighting bills, ib. ; what evi-
dence necessary, ib. 833 ; locus standi
of shareholders, 834; cases of refusal
to be heard, ib. et seq. ; will not inquire
into genuineness of signatures, 839.
Petitions for and against Private Bills.
-Presented, 814 ; withdrawn, ib. ;
against bill, stand referred, ib.; order
as to printing petitions at expense of
petitioners, 841; death of petitioners,
814 ; appearances on petitions, 815;
rules as to hearing petitioners, ib.; part
of petition omitted, ib. ; petitions depo-
sited after time, 816; special reference
of, ib. ; grounds of objection to be spe-
cified, 817. 840; names withdrawn from,
ib. ; against preamble, 819 ; respecting
clauses, 861; informalities in, 838.
Procecdings of Committees on unopposed
Bills.-Special rules and orders, 843;
filled-up bill to be delivered, ib. ; altera-
tions proposed by chairman of ways and
meaus, ib.; duties of the committee, ib.
Proceedings of Committees, whether Bills
opposed or unopposed.--Quorum of pri-
vate bill committees, 811. 543; on re-
committed bill, 873; proceedings sus-
pended if quorum not present, 811;
members absent reported, ib. ; excused,
938
INDEX
consent of
PRIVATE BILLS—continued.
PRIVATE BILLS--continued.
&c., 811; if quorum or chairman cannot notice of committee, 873, 874; entry of
attend, ib. ; opposed bills treated as un- amendments in bill, ib.
opposed, 841; unopposed as opposed,
Third Reading. — Notice of, given,
ib. ; order in which bills are considered,
874; third reading, 875; verbal amend-
ib. ; copies of, to be laid before mem-
ments only to be made, and notice
bers, 842; questions decided by majority,
thereof, ib. ; Queen's consent, ib. ; and
ib.; casting voice of chairman, 462.842;
of Prince of Wales as Duke of Corn-
provisions to be inserted in bills, ib.;
wall, ib. ; certificate of examination,
orders to committees, 844 ; instructions,
ib. ; Lords' amendments, 876; referred
845. 865 ; not empowered to send for
to committee, ib. ; committee to search
· persons, papers, or records, 866; reports
Lords' Journals, 877.
from public departments and documents
referred, 844. 859; names of members V. Proceedings in the Lords, upon Bills
entered on minutes, 845 ; what standing from the Coinions.-Submitted to chair-
orders to be inquired into, ib.; proof of man of Lords' Committees, &c., while
compliance, 846 ; special duties regard- pending in Commons, 878, estate bills
ing railway bills, ib. ; letters patent, referred to the judges, 879 ; standing
853 ; inclosure and drainage, ib.; turn- orders committee, 880.
pike roads (Ireland),854; burial grounds,
Standing Orders of the Lords. — The
or gas works, ib. ; committees controlled
Wharncliffe order, 881 ; orders peculiar
by chairman of ways and means, and by
to the Lords, 881-885; proof required
the house, 864; committees revived, 868;
proceedings upon bills brought down
to another company, 883; petitions
from the Lords, 890.
against bills presented, 884; deposit of
Proceedings of Committees on opposed railway bills, ib..; time for first and
Bills.—Their general proceedings, 854, second reading of bills, ib:; petitions for
855; parties appear, 555; when there additional provision, 885; labourers'.
is no appearance, 856 ; appearance by houses, ib.; commitment, ib.; unop-
solicitors, 857 ; witnesses examined posed bills referred, ib. ; when treated
upon oath, 855; summoned, 474. 867; as opposed, 886; committees on opposed
room, when open, 855; case opened, bills, ib.; committee of selection, ib.;
857; proof of preamble, ib. ; when peti- proceedings of committees on bills,
tioners entitled to be heard, 858; locus 887; opposition withdrawn, ib.; wit-
standi of petitioners, 825 et seq. ; pro- nesses, ib.; bill reported, 888; special
ceedings on preamble, 859; practice in standing orders to be enforced, ib.;
deciding upon competing bills, ib. ; as to letters patent bills, ib. ; as to
clauses considered, 561; opposed, ib. ; cemetery bills, ib. ; limits of cemetery,
clauses proposed by public departments, or gas works, 889; as to railway bills,
ib.; preamble not proved, 862; le- ib. ; re-commitment of bills, ib.; to com-
committal of bill to reconsider decision mittee of the whole house, ib.; amended
of committee, 863.
bills reprinted, 890; amendments on
report and third reading, ib. ; subse-
Reports of Committees. Preamble not
quent proceedings, ib.
proved, 862; or altered, 864; duty of
committees to report bills, 866. 869;
VI. Private Bills originating in the
Lords.-Petitions for bills, 891, 892;
special reports, 866; of evidence, 868;
that witness had been guilty of perjury,
bills for restitution of honours, 891;
ib.; that parties do not proceed, ib.;
amalgamation bills, 885 ; second read-
on adjournment of committees, and no-
ing, 894 ; petitions against, ib. ; refer-
tice to private bill office, 869; committee
ence to examiners, 896 ; commitment,
bill sent to private bill office, 870;
ib. ; report, ib. ; third reading, ib.
amended bill to be printed and deli- Divorce Bills; applied for by parties
vered to door-keepers, 871; bills with-
beyond the jurisdiction of the Divorce
drawn, or referred to examiner after
and Matrimonial Causes Act, 767, n.
report, ib. ; report to lie upon the
892 ; second reading of, 894 ; deposi-
table, 872; interval between report and
tions in India, ib. ; warrant for, ib.;
consideration of bill, ib.; notice of, 873;
bill committed, 895; in the Commons,
bill or clauses to be laid before chair-
897; death of petitioner for bill, ib.
man of ways and means, ib. ; referred
to standing orders committee, ib. ; con-
Estate Bills; practice regarding, 879.
sideration of bill, clauscs or amend-
ments, $73, 874 ; re-commitment, ib. ; Naturalization Bills; second reading
891 et see
INDEX..
939
assistance of the civil power, 77 ; pre-
PRIVATE BILLS—continued.
PRIVILEGES OF PARLIAMENT—-continued.
of, 893 ; Queen's consent to be signified, 104; inquiry into alleged breaches of
previous to, ib.
privilege, 105; in the Lords, ib. ; in
Peerage Bills; second reading of, 894.
the Commons, 106. 619; by committee
of privileges, 106. 444; by select com-
Lords Private Bills in the Commons.-
mittees, 107; complaints of newspapers,
Subject to same rules as other bills, 895;
ib. 289, 1. ; frivolous complaints, Lords'
proceedings stated, 896.
resolution against, 108 ; publication of
VII. Local, Personal, and Private Acts printed placards reflecting on a member,
of Parliament. --Classification of, 897, 109; evasion of punishment for breach
898; given in evidence, 899.
of privilege, visited with imprisonment,
VIII. Fees Payable on Private Bills.-
ib.; offences committed in a former
Classes of bills subject to, 900; col-
session of parliament, ib.; false evidence
lected and applied, ib. ; remitted, 897 ;
a breach of privilege, 482; also fraud
on turnpike-road bills, 901.
connected with petitions, 611.
IX. Taxation of Costs.-System of,
IV. Punishments inflicted by the tro
901; awarded in certain cases, 864; tax-
Houses.—In former times, 96; present
ing officers, 902; lists of charges, ib.; modes of, 114; differences in the punish-
applications for taxation, ib.; certificate ment inflicted by the two houses, 110;
of taxation, 903.
the imposition of fines, ib. ; reprimand
and admonition, 115 ; payment of fees,
PRIVILEGES OF PARLIAMENT :
ib. ; imprisonment by the Commons con-
I. General view thereof.—Title of Par-
cluded by prorogation, 116; prisoners
liament thereto, 68; claim of the Com-
formerly sentenced kneeling, ib.
mons for, ib. 291; claim of privileges
for estates omitted, 69, n.; favourable V. Privileges attaching to Members of
construction of Commons' proceedings both Houses, and others.-Freedom of
not a privilege, 71; definition of the law speech, 118; from arrest or molestation,
and custom of parliament, 72; new pri- 128; of not being impleaded in civil ac-
vileges may not be created, ib. ; claim tions, 144 ; of not being summoned as a
of House of Lords to be a court of re- witness, 148; or a juror, 149; privileges
cord, 110; of House of Commons, 111. of members before they are sworn, 216 ;
II. Privileges of each House collectively.
privilege not extended to criminal mat-
-How enjoyed, 71; freedom of access
ters, 151 ; or to commitments for con-
to sovereign, 70, 71. 515; power of
tempt, 155 ; causes of commitment
commitment, 73; by the speaker, 105;
communicated, 153. 506 ; privilege of
witnesses and others in attendance on
authority and protection of officers in
executing orders of either house, 75;
parliament, 161; of counsel, 167; state-
ments to parliament and reports of pro-
cedents touching the power to break
ceedings, privileged, 93. 167; in certain
open outer doors, 78; causes of commit- cases not privileged, 124 ; admissible in
ment cannot be inquired into by courts
evidence, 168.
of law, 82; need not be stated, 88;
VI. Jurisdiction of Courts of Law in
habeas corpus enforceable in cases of
matter's of Privilege. — Principles and
commitments by Parliament, 83; such
cases, 169 et seq. ; present position of
prisoners cannot be bailed, ib. ; cases
privilege, 189; remedy by statute pro-
cited, 83-86; persons sent for in cus-
posed, 190.
tody, 88; arrests without warrant, 89;
attachment by Lords, ib.
VII. Debate, fc. on Questions of Pria
III. Breaches of Privilege. Defined,
vilege. Questions of privilege con-
89; disobedience to orders and rules, 90;
sidered without notice, and have prece-
publication of debates, 90–93; of pro-
dence, 288. 619. 698 ; also when post-
ceedings before committees, 93. 454;
poned or adjourned, 292; may interrupt
libels upon the house, 95; practice of
debates, 307; precedence to motion for
both houses regarding prosecutions by
new writ, as à question of privilege,
291. 698.
the attorney-general, ib; assaults, in-
sults, or libels upon members, 98—101; See also Arrest, Freedom from. Bribes.
offer or acceptance of bribes, 102; reso- Commitment. Conteinpt of Court. Courts
lution respecting fees for professional of Law, Freedom of Speech. Habeas
services connected with parliamentary Corpus. Impleading in Civil Actions.
proceedings, 103; interference with
Proceedings in Parliament,
Tritncsscs,
officers, 104; tampering with witucssos, fic. Writs of Privilege.
940
INDEX.
Privy Council; class of appeal cases tried
before, 57 ; powers of, regarding public
health, transferred to local government
board, 764.
Privy Councillors ; addresses of the com-
mons presented by, 224. 514; consent of
Crown, &c., given by, 508; places of,
in the House of Commons, 226.
Procedure, new rules of, precedence given
to consideration of, 281.
Proceedings in Parliament; favourable
construction of, by Crown, claimed by
Commons, 71; publication of, 90; pro-
tected from law of libel, 93; wilful mis-
representation of, a breach of privilege,
ib. 102; not to be questioned elsewhere,
Proxies (Lords) ; privilege of service by
proxy, 228; difficulty caused by the
King's illness, ib. n.; discontinued
31st March, 1868..228. 417.
Public Accounts ; committee of, 689.
Public Acts; repeal of, by private bills,
753; prior to 1798..754 ; local and per-
sonal acts to be deemed such, 897; of
local character, transferred to local and
personal acts, 898. See also Bills.
Public Business Office; has custody of cer-
tificate of return of member, 217; pre-
pares public bills for presentation, 540.
Public Health Acts ; power under, trans-
ferred to Privy Council, and thence to
local government board, 764.
118.
See also Debates, Motions. Minutes
of Proceedings. I'otes and Proceedings.
Proclamations; parliament assembled by,
49; forms of, App. 905, 906; prorogued
by, except at close of session, 49; prior
to prorogation, &c., 51 ; length of no-
tice prior to meeting for dispatch of
business, ib. ; prorogation and further
proclamation (December 1877), ib.; for
dissolution of parliament, 53; addresses
for, in case of absconding witnesses,
474; to be moved in committee, on
future day, 692.
Progress ; report of, from committees of
the whole house, 440.-570; of supply,
681.
Proofs (Private Bills) ; of compliance with
standing orders, 770. 846. 879.
Property Qualification. See Qualification.
Prorogation of Parliament; provision in
case of demise of Crown during, 46;
how accomplished, 49; prorogations be-
fore and after first meeting of parliament,
269, 270; old forms superseded by pro-
clamation, 271; further prorogations, ib.
50; prorogation to renew bills, 49. 337;
effect of, upon the proceedings of Par-
liament, 49 ; upon orders for accounts
and papers, 627; upon imprisonment by
parliament, 111. 116; prorogation be-
fore passing an appropriation act, irre-
gular, 639; an impeachment not con-
cluded by, 49. 739 ; nor a divorce bill in
certain cases, 894.
Protection of Person and Property Act
(1881), airest of member under, to be
communicated to the house, 154.
Protests (Lords) ; rules concerning, 418 ;
protests by proxy, 419; protests ex-
punged, ib. ; withdrawn, ib.
Provisional Orders'; confirmation bills,
580. 766. 787. 797. 898; not requiring
confirmation, 766.
QUAKERS, MORAVIANS, &c.; make affirma-
tions instead of oaths, 209.
Qualification ; of members abolished, 31;
want of, admitted, 712 ; of voters, 31;
removal of disabilities, ib.
Quarrels. See Challenges. Jords of Hcat,
gc.
Queen, The. See Crown.
" Question," cries of; when disorderly,
349. 388.
QUESTIONS; every matter determined upon
question, 272 ; how proposed, ib.; of
privilege take precedence, 288. 619;
questions moved and seconded, 296; pro-
posed by Speaker, 298; how supersededor
evaded, 300; by adjournment of house
or debate, ib. ; by reading orders of the
day, 302; by previous question, 303 ; by
amendments, 305; when questions are
not entered in votes, 301 ; questions in-
terrupted, 307; complicated, 309; put,
310 ; again stated, 312; voices on the
question, 312 ; when agreed to, ques-
tions become orders and resolutions,
315; amendments to questions, 316;
question and amendment both objected
to, 318; questions reduced to the word
" That," ib. ; question not to be re-
peated in a session, 328; evasions of
the rule, 330 ; question put before con-
clusion of debate, 314 ; rules of debate
on questions, 340 et seq. ; discussion of
motion or bill not to be anticipated by,
354 ; questions to other members, ib.;
to members of the government, 355 ;
restrictions as to, ib. ; earliest example
of, to ministers, ib. n.; to chairman of
Metropolitan Board of Works, &c., ib.
11. ; proceedings against members com-
menced by a question ; case of Dr.
Kenealy, ios; members not to refer to
INDEX.
941
QUESTIONS—continued.
general tenour of speech on questions
of order, 362; notice given in votes,
355 ; not to be argumentative, ib.; ir-
regular, corrected or omitted, Dr.
Kenealy's case, 356 ; greater license in
Lords, 357 ; notice to be given if state-
ment or discussion intended, 358; prac-
tice of reading questions discontinued,
357; standing order for putting the
question, 384; members not present
when question put on divisions, 396 ;
rule as to putting question of sums and
dates, 433. 668—671 ; rule not observed
in committees on bills, or in proceed-
ings in the house, 562. 672 ; questions
proposed in committees of supply, or
ways and means, 673; to witnesses be-
fore select committees, 449. See also
Prerious Question.
Quorum ; the, of the House of Lords, 235 ;
of the Commons, ib.; sixty proposed as
number for, ib. n.; of committee of
whole house, 438 ; of select committees
in the Lords, 453; in the Commons, ib.;
of Standing Committees, 801; and of
railway and canal bills, 802; of the
committee of selection, ib. ; on private
bills, 803; on re-committed bills, 874.
Receivers and Triers of Petitions (Lords) ;
constitution of, 607; appointed, ib. ;
not being spiritual lords, ib., n.
Recess of parliament; issue of new writs
during, 700 et seq.
Recognizances; of parliamentary agents,
780.
Recommendation of the Crown. See Crown.
Re-commitment; of public bills, 575; of
private bills, 874. 889.
Red ink clauses, in Lords' bills, 6+1.
Referees on private bills. See Private Dills.
Reflections ; on parliament, punished, 15.
366; on members, 98.
Reform Acts; (1832) effect of, 26-30 ;
proceedings in committee on, 566, 1. ;
(1867) disfrauchisement of certain bo-
roughs, 26, 27; re-distribution of seats,
ib. ; alterations effected by, 30.
Registration of Electors; provision for,
29.
RAILWAY AND CANAL BILLS; constitution
and duties of the general committee on,
802; certain railway and canal bills re-
ferred to a joint committee, 807 ; stand-
ing orders suspended, ib. ; rules of locus
standi superseded, ib.; duties of Com-
mons' committees on this class of bills,
846 ; special matters of inquiry, ib.;
the Wharncliffe order enforced, 882;
when standing orders do not apply, 847;
principles of legislation to be observed
by committees, ib. ; clauses to be in-
serted, 850; locus standi of railway com-
panies, 828. 831; of shareholders, 834;
(Lords) standing orders, peculiar to,
881 ; copy of bill to be deposited with
Board of Trade, 884 ; provisions to be
inserted in railway bills, 889.
Railway Commissioners; powers of, trans-
ferred to Board of Trade, 762.
Rates and Charges : not to be altered by
the Lords, 642; their amendments
adopted by Commons, 588. 643; how
far Lords may legislate on tolls and
charges in private bills, 646. 758;
printed in italics in public bills, 540.
563; in private bills, 796 ; committees
on railway bills to fix, 847; peers not
to be concerned in levy of, 798.
Reasons for disagreeing to amendments
to bills; prepared, &c., 493.
Religion; the introduction of bills re-
lating to, 527; the grand committee
for, 443.
Religious communities; bills for regu-
lating, public bills, 751.
Remonstrances; petitions in form of,
when received by house, 609.
Reply; when allowed to members in de-
bate, 360.
Reports; of committees of the whole
house, 442; of public bills, 570; when
title amended, 566; of privato bills
(Commons), 866 ; special, ib.; of rail-
way bills, 844; that parties do not pro-
ceed, 868; of supply, and ways and
means, 681; charges not to be increased
by amendment to, 683; of select com-
mittees, 468 et seq. ; recommending
grants of public money, 652; of stand-
ing orders committee, 792. 873 ; of ex-
aminers of private bills, 779 ; reports
from public departments referred to
committees, 844. See also Resoluíions.
Reporters. See Debates. Newspapers.
Representative Peers of Ireland ; see Ireland.
Puers of Scotland ; see Scotland.
Reprimand. See Speaker, III.
Resolutions ; duration of, 194 ; observed
as permanent without being made
standing orders, ib. n. ; are questions
resolved in the affirmative, 315; re-
scinded, 328; or modified by other re-
solutions, 329, 330; to be proposed in
committee, not to be discussed in the
942
INDEX.
Resolutions-continued.
house, 433; proposed in committee,
cannot be postponed, 434. 678; reported
from committee of whole house, 442;
communicated at conferences, 488; laid
before the Sovereign, 517; before mem-
bers of the Royal Family, ib. ; bills
ordered upon, 525. 683 ; à second bill
brought in upon the same resolutions,
538 ; amendments to question for second
reading of bills in the form of reso-
lutions, 546, 547; resolutions in the
nature of instructions, 557, 558; amend-
ment to question for second reading of
resolutions, 682; rejection of, in general
terms not incompatible with later motion
for particular amendment of the law,
333; abstract, 654. See also Reports.
Restitution Bills; originate with the
Lords, 522 ; Queen's consent to be sig-
nified on first reading, ib. 891.
Restoration, 1660; parliament met, and
chose Speaker of its own authority, 44.
203.
Return Book ; delivered by clerk of the
Crown to clerk of the House of Com-
mons, 195; outstanding returnsat general
election entered by deputy clerk of the
Crown, ib. n.; names of members read
from, on call of the House, 231 ; mem-
bers returned after general election, to
be entered therein, ib.
Returning officers; how far disqualified
for parliament, 34; hold elections, 40;
give notice of day of election, 41.
Returns. See Accounts and Papers. Elec-
tions, Controverted. Writs for New
Members.
Revenue ; certain officers of, formerly dis-
qualified from voting, 30; tables of, 633;
charges of collection, 668.
Revival of committees; select, 465; of
the whole house, 571; of supply, 660;
on private bills, 869.
Revolution of 1688; effect of, on the
Constitution, 3. 5; parliament met, and
chose Speaker of its own authority, 44.
203; freedom of speech confirmed at,
123; practice of petitioning respecting
public measures introduced after, 608;
no taxes by prerogative since, 638.
Richard II. ; petition to, respecting the
annual holding of parliament, 45.
Rochdale Election; alleged tampering
with witness, 104 ; debate whether ac-
cused party is bound to criminate him-
self, 105; exclusion of members from
select committee on, 459.
Roebuck, Mr.; and Mr. Roche, 364, 12. ;
and Mr. Somers, 377, n.; pleads as
counsel in the Lords, 426.
Rolls of Parliament, the, 258, n. 598.
Roman Catholic Clergy; excluded from
sitting in parliament, 35.
Roman Catholic Faith; a disability for
holding Crown, 5; declaration against,
by Sovereign, ib.
Roman Catholics ; oaths formerly taken
by, 205 ; now the same oath for all
members, ib.
Roman Senate; forms of putting ques-
tions, and of divisions in, 311, 12. 323, n.
Rothschild, Baron de; case of, 207; com-
mittee respecting his contracting for
Government loans, 36. 713; took oath
under resolution, 209; chosen of a com-
mittee and conference prior to taking
oath, 216 ; certificate of clerk of Crown
being first read, 231.
ROYAL ASSENT to Bills; the final stage,
592; bills passed cannot be withheld
froin, ib. ; custody of bills prior to
Royal assent, ib. ; session not con-
cluded by, 593; given by commission,
ib.; forms of commission for declaring
the, prescribed by Order in Council,
92, n.; form of giving assent, 594 ; of
refusing, 596; given by Queen in per-
son, ib. ; when the Queen absent from
the realm, 597; civil list bills, ib. and 12.;
informalities in, 603; given by mis-
take, 605 ; supply bills presented for,
by Speaker, 270. 595. 689.
Royal Commission; report of, held to be
a parliamentary paper under 3 & 4 Vict.
c. 9..185, 12.
Royal Family; peer of, takes oath in
House of Lords, singly, 198; adjourn-
ment of the Commons on funerals of,
242 ; messages for provision for, 505;
messages to, 517; communications from,
518.
Royal Pleasure, signified, 507; answered,
511.
Royal Titles Act, 6.
SADLEIR, Mr. JAMES; expelled the house,
having fled from justice, 66. 291, n.
St. Albans; disfranchised, 730, n.; election
(Lines's case), 81. 86.
St. Paul's Cathedral; attendance of both
houses at, 241.
Sale, Powers of ; not to be in bill for con-
struction of railway, 849.
INDEX.
943
Selection, Committee of-continued.
committees on bills for confirming pro-
visional orders, nominated by, 806 ;
select committees of Commons nomi-
nated by, 452; duties of Lords' Conn-
mittee of, 886.
Separatists. See Quakers, fc.
Septennial Act (1 Geo. I. c. 38); referred
to, 53.
Salomons, Alderman ; proceedings in re-
gard to his taking the oaths, 208.
Saturday; meeting of houses on, 238;
order of business on, 284 ; leave to com-
mittees to sit on, 464.
Savings Banks; bills relating to, when
founded on resolutions of committees,
534.
Schedules to Bills; proceedings ou, 565;
accidentally omitted, allowed to be added,
796.
SCOTLAND; the Sovereign to maintain the
Presbyterian Church in, 6; peers of, re-
presented in parliament, 12; elect six-
teen representatives for each parliament,
ib.; their privileges, 12. 138. 743; of
what the Scottish peerage consists, 12;
a representative peer ceases to be so on
becoming peer of Great Britain, 13;
law respecting dormant peerages, ib.;
Scottish peers and judges ineligible to
House of Commons, 33; representative
peers must be of full age, 14 ; judicature
of Lords over seats of, 55; certificate of
election from clerk of Crown, 198; forty-
five members assigned at the Union, 25;
antiquity of representation by freeholders
in Scotland, as proved by legal enact-
ments, 26, 12. ; alterations effected by
Reform Acts (1832, 1868), 27. 30; num-
ber of representatives for, 28; elective
franchise of, 30; Scotch judges, places
for, in House of Lords, 254 ; form of
putting question in Scottish parliament,
311, 1. ; general laws for improvement
of towns in, 764. See also Estate Bills.
Second Reading; of public bills, 544 ; of
private bills in the Commons, 797. 799.
894 ; in the Lords, 884.
Secret Committees. See Committces, Select, I.
Secretaries of State, &c.; vacation of seats,
on appointment, 703; not on transfer
between offices, ib.; or on resumption of
office prior to appointment of successor,
704 ; number of, in house, limited, ib.
705; case of five under secretaries inad-
vertently sitting, 705; under secretaries
do not vacate their seats, 704.
Seditious Libels; a breach of privilege,
152.
Select Committecs. See Committees, Select.
Selection, Committee of; duties of (Com-
mons), 802 ; nominates standing com-
mittees on law and trade, ib. 452 ; em-
powered to send for persons, &c., 805;
choose committee to consider Lords'
amendments, 876 ; to consider bills from
the Lords, 896; instructions to, 805;
Serjeant-at-Arms; (Lords).—His duties,
256. (Commons).-Supported by the
house in execution of their orders, 75 ;
assistance of the civil power, 77 ; power
to break open outer doors, 78; may not
occupy the premises, 80 ; returns made
by, to writs of habeas corpus, 83-86 ;
made arrests under authority of mace,
89; arrests persons under orders of the
house, ib. ; persons committed to his
custody, 114; appointed by Crown, 264,
and 1. ; his duties, ib.; assisted by a
deputy, 265; dutiesrespecting strangers,
ib.; members, 385; at divisions, 399;
arrests a disorderly member, 389; gives
notice of prayers to select committees,
463 ; enforces the attendance of wit-
nesses, 473; attends Lords with witness
in custody, 476; witnesses prevaricat-
ing, committed to, 482 ; stands with
mace at the bar on examination of wit-
nesses in custody, 484; introduces peers,
judges, &c. on examination at the bar,
485; sheriffs of London presenting pe-
titions, 614; and commoners impeached,
737.
Serjeants-at-Law; part of the consilium
regis, 57.
Servants of Members; formerly privileged
from arrest, 69, and 12. 128. 137; havo
now no privileges, 137.
Session ; question when decided on, not
to be offered again in the same session,
335; not concluded by royal assent to
bills, 593 ; private bills suspended and
proceeded with in another session, 779.
Sessional Orders ; their nature and dura-
tion, 193.
Settled Land Act, 1882; powers conferred
on tenants for life by, 767.
Settlement, Act of; disables a Roman
Catholic from holding the Crown, 5;
declares that pardon is not pleadable in
bar of impeachment, 740.
Seymour, Sir Ed. (Speaker); seized Mr.
Serjeant Pemberton, 105; royal appro-
bation of, refused, 203.
944
INDEX.
Shareholders ; locus standi as petitioners,
834 et seq. ; dissentient, standing orders
respecting, 773. 837. See also Prefer-
ence Shares.
Sheriffs; disqualifications of, 34; hold
elections in pursuance of Queen's writ,
40; ordered to assist serjeants in exe-
cuting a warrant, 78; formerly directed
to summon members on call of the
house, 231.
Shiro-Gemót; its character and functions,
16.
Shirley, Sir T., case of, 134.
Short-hand Writers (Commons); take down
evidence before select committees, 465 ;
and when a witness is examined at the
bar, 485; not to give evidence elsewhere
without leave, 483; their first employ-
ment by parliament, ib. n. ; report evi-
dence and judgment upon trials of
election petitions, 726, n.
Sign Manual; messages under the royal,
504.
Sittings of the House.
See Adjournment
of the House. Mceting of the House.
Morning Sittings. Quorum. Saturday.
Wednesday Sittings.
Small Debts Courts; general laws for esta-
blishment of, 763.
Smalley's case ; referred to, 113. 132.
Sodor and Man, Bishop of; has no seat in
parliament, 8, n.
Soldiers in uniform; admitted to strangers'
gallery, 269.
Solicitor-General; part of the consilium
regis, 57.
Solicitors ; privileged when attending the
house, 162; appear before private bill
committees, 857.
South Sea Company; prorogation for intro-
duction of new bills, 338; evidence on
oath taken by committee on (1720), 481.
SPEAKER:
I. Of the House of Lords.-The lord
chancellor, or lord keeper, 49. 243; pro-
rogues parliament by royalcommand, 49;
duties of, 243, 244. 246 ; not necessarily
a peer, 244 ; cases of, ib. ; when great
seal in commission, 245 ; on meeting of
new parliament, 195 et seq. ; signifies
approval of Commons' Speaker, 201;
reads the royal speech to the house,
222; sits on the woolsack, 225. 244;
ordered to write to desire the attendance
of peers, 231 ; obligation to attend, 244,
and n. ; deputy Speakers, 245; Speaker
pro tempore, ib. ; his place when he ad-
SPEAKER—continued.
dresses the house, 246, 1. ; attended by
serjeant-at-arms with mace, 256 ; pro-
rogues parliament, 271 ; omits objec-
tionable words from motion, 297 ; pro-
poses questions, 298 ; puts the question,
ib.; effect of his limited authority upon
the conduct of debates, 342. 390 ; has,
by courtesy, precedence in speaking, 343;
appoints tellers on a division, 402: votes
from woolsack, 403; writes to desire the
attendance of peers and peeresses as wit-
nesses, 472 ; reads messages from the
Crown, 504 ; presents joint address of
both houses to her Majesty, 516; reports
answer to addresses, 517; has notice
when a commission for loyal assent to
bills is wanted, 592; issues warrants for
taking evidence on divorce bills, 894.
II. Of the House of Commons.---
1. Generally.-Earliest mention of the
office, 23, and 12.; his rank, 247; words
of, taken down, 377.
2. Choice of Speaker. Chosen by
Commons at desire of Crown, 196. 507;
election of Speaker, 199; special commis-
sion required, if vacancy occurs during
session, 196, 11.; case of, ib., 1.; during
session, 202; member who has not taken
the oaths and seat cannot be proposed as,
ib., n. ; Speaker elect leaves the house
without the mace, ib. ; royal approba-
tion of, 49. 202; refused, 203, elected
without, ib.; duration of office, 202.
3. His Duties and Authority.--Peti-
tions for Commons' privileges, 68. 201;
persons committed by, 105; admonishes
or reprimands culprits, 116 ; his duties
at the opening of a new parliament,
204; calls on members to take the oath,
ib.; takes the oath himself, ib.; reads
prayers in the absence of the chaplain,
ib., 12. ; oaths taken by members in ab-
sence of, 219; waits in clerk's chair till
approach of black rod, ib.; goes up with
Commons to hear the royal speech, 220 ;
reads it to house, 222; formerly wrote to
sheriffs to summon members to calls of
the house, 231; counts the house after
prayers, 236; again at four o'clock, ib.;
adjourns the house without question put,
if quorum not present after four o'clock,
ib.; adjournments on Wednesdays and
morning sittings, 238, and n. 282;
general view of his duties, 247; dura-
tion of office after a dissolution, 248 ;
former practice on Speaker's absence,
ib.; provision for temporarily supplying
his place (1853), ib.; acted upon in
1855..249; value and efficiency of new
system tested in 1866..251; proceedings
on retirement of a Speaker, 202, n.;
INDEX.
945
SPEAKER—continued.
report on office of Speaker, 250, 12.
251, n.; standing order and statute
appointing a deputy Speaker, 250. 257;
resumes the chair during the samo
sitting, 262; peruses votes of the house,
257 ; his duties at prorogation, 270.
690; ceased to attend at further pro-
rogations, 271, 12.; calls members to
bring up bills, 540; to bring up papers,
627; authorises delivery of papers to
members, 631; demands judgment on
impeachments, 739; directs arrest of
offenders, 89; formerly empowered to
stay suits by letter, 145; the privilege
restricted, 147.
Questions.-Formerly framed by him,
297 ; power to alter or declino putting,
298 ; proposed by him, ib.; takes plea-
sure of house on withdrawal of motions,
299; puts question, 310; permitted to do
so sitting, 311, 12.; questions again stated
by, 312; ruling by, that a member's
voice determiues his vote, ib. ; states
amendments to questions, 317; calls at-
tention when the same question is twice
offered, 330.
Debates.--Addressed by members, 340;
calls upon members to speak, 343;
maintains order in debate, 344. 391;
names disorderly members, 387; his
authority, 390 ; refers doubtful cases to
the judgment of the house, 391; is al-
ways to be heard, ib.
Divisions.--Enforces rule that mem-
bers voting must be present when ques-
tion put, 396; and that when present,
must" vote, 399; orders strangers to
withdraw, ib. ; puts the question, 310.
399; divisions on Wednesday, 401;
orders admission to members between
divisions on an amendment, and on the
main question, 402; directs the division,
406 ; appoints tellers, ib.; declares the
numbers, 408; his casting voico, 410;
assigns reasons, ib.; precedents, ib. 415.
Committees of the whole House. In
committee entitled to speak and vote,
415; cases, ib. ; earliest examples of,
ib.; puts the question for his leaving
the chair, upon house going into com-
mittee, 427. 552.
Resumes the Chair. „To put the ques-
tion on election of chairman, 428; on
points of order arising in committee,
435; on summons by black rod, 437;
at time for conference, ib.; or if dis-
order arises, ib.; when quorum is not
present in committee, 438.
Witnesses.--Issues warrants for at-
tendance of witnesses at the bar, 473;
SPEAKER- continued.
for the attendance of witnesses in cus-
tody, 473; authorises, in the recess, at-
tendance of officers of the house at
trials, 483 ; examines witnesses and pri-
soners at the bar, 484.
Messages and Addresses, 80.-Reads
written messages from the Crown, 504;
presents addresses to sovereign, 70.515;
mode of approach to palace, 516; ad-
vances to throne on left
hand of the Lord
Chancellor, on presenting jointaddresses,
ib., and n.; the mover and seconder on
his left hand, in the case of a separate
address, 516; reports answers, 517;
communications from royal family to
him, by letter, 518.
Elections and Writs.--Duties of, re-
garding the issue of new writs, 62. 695
et seq.; form of certificato to authorise
him to issue warrant for new writ
during recess, App. 907.
Private Business.--Authority of, over
agents, 780 ; duties of, regarding pri-
vate business, 784; notices to house a
violation of standing orders, 786; issues
warrant for taking evidence on divorce
bills, 894 ; certifies taxed costs, 903.
Special Reports. See Reports.
Speech from the Throne ; at opening of
session, 47. 219. 655 ; at a prorogation,
270.
Spiritual Lords. See Bishops.
Standing Committees, 452 ; on law and
trace, shipping, &c. appointed, 444;
how nominated, ib. 801; appointment
of chairman, 445 ; commitment and re-
port of bills, ib. 580 ; proceedings of, ib.
Standing Orders; character of, 193 ; au-
thorised collections of, published, ib. ;
earliest example of a standing order
being repealed, ib., n. ; resolutions of a
former session inade standing orders,
ib., 12. ; suspended, and bills passed
with unusual expedition, 599.876. 896 ;
resolutions for their amendment taken
at time of private business, 784; notice
required in case of private bills, 876 ;
requirements of, in case of private bills,
769 ; similarity of, in Lords and Com-
mons, ib. ; standing orders peculiar to
the Lords, 881. 888.
See also Private Bills.
Standing Orders Committee :-Commons :
Its constitution and functions, 790; re-
ports of examiner referred to, ib. ; re-
ports of, 792; overruled or referred
back, 793, 794 ; clauses and amendments
referred to, 873.-Lords : Its appoint-
ment and functions, 880, 881; notice
prior to meeting thercof, 881.
1.
3 1
946
INDEX.
Star Chamber, prosecutions in, 58.
Statement of Proofs. See Proofs.
Statistical returns, 632, 633.
Statutes ; abusive mention of, 372; how
enacted, 519.
See also Bills.
Steamboats ; standing order as to power
of railways to acquire, 848; companies,
locus standi of, 831.
Stockdale v. Hansard ; case referred to, 48.
116. 174. 179. 182; outline of the pro-
ceedings, ib.; precedence to adjourned
debate on, 292.
Strangers; taken into custody for miscon-
duct, 89; regulations of admission, 266;
ordered to withdraw, 267; resolution
respecting withdrawal of, 268; pro-
ceedings thereupon, ib.; order to
withdraw not applied to ladies' gallery,
269; presence of, on divisions, 267, 12.
269. 398; soldiers in uniform, 269;
strangers in the Irish parliament,
399, n. ; in select committees of the
Lords, 456; of the Commons, ib. ; in
private bill committees, 855 ; not al-
Iowed at conferences, 496; crowding in
lobby of the house, 265.
See also Closed Doors.
Strode's case; referred to, 119. 122.
Subpoenas; privilege of members not to
be summoned by, 148, 149.
Sudbury; disfranchised, 730, n.
Sugar duties; bills (1845 and 1848), reso-
lution moved as an instruction to a
committee on, 558, n. 686, n.; illus-
trative of practice regarding permanent
or annual duties, 693.
Suitors in Parliament; privileged, 161;
restrained by injunction, or by order of
the house, 756.
Summons of Parliament; by act of Crown,
44; parliament meeting on its own
authority, ib.; writ of summons, 46 ;
parliament to meet without, on demise
of Crown, ib.; causes of, declared, 47.
219.
See also Writs of Summons.
Sums and dates; rules regarding questions
on, 433. 668–671; not observed in com-
mittees on bills, 563; or in proceedings
in the house, 672.
Sunday; excluded in reckoning time for
election proceedings, 41; meetings of
Parliament on, 47. 239; committees not
to sit on, 887.
Supersedeas, Writs of. See Irits, de.
SUPPLY AND WAYS AND MEANS :-
Right of the Commons in voting, 58;
ancient acknowledgment of rights of
Commons in, 637; taxes by prerogative
abolished, 638; -revenue of Crown de-
pendent upon parliament, ib.; legal
effect of grants, ib.; effect of, before
appropriation act, 639 ; prorogation or
dissolution of parliament previous to,
ib.; duties collected as altered by votes
of Commons, 640; Lords excluded from
altering supply bills, 641; and rates and
charges, 642; expedients for intro-
duction of such bills into the Lords, 643,
644; Lords' amendments agreed to by
Commons, 588. 643. 645; monies to be
provided by Parliament not to be dealt
with by the Lords, 645; rule regarding
tolls and charges in private bills re-
laxed, 646; also fees and pecuniary
penalties, ib.; financial inquiries by the
Lords, 647; tacks to bills of supply, ib.;
rejection of money bills by the Lords,
648 ; constitutional principle of supply,
650 ; the militia estimates, 651; recom-
mendation of the Crown prior to grants
of money, 651; to charge upon revenues
of India, 652; to proceedings prelimi-
nary to such grants, ib.; to petitions
for compounding debts to Crown, ib. ;
such motions not to be presently entered
upon, 653; and only in committee, ib.;
abstract resolutions, 654.
Proceedings of parliament in the
annual grant of money, 655 et seq. ;
Royal speech, ib.; committee of supply,
657; estimates presented and referred,
ib.; annual grants described, ib.;
charges upon the consolidated fund,
ib. 666; transferred from, to annual
estimates, 668; chairman of committees
of supply and ways and means, 657;
first sitting of committee of ways and
means, ib. ; votes of, in excess of sup-
plies, 658; former mutiny bills, ib.;
days on which the committees sit, 659;
order for committee revived, 660; sit-
ting of committee suspended, 442;
amendments on going into committee,
660; resolution respecting, ib.; rules
and precedents relative thereto, 661;
need not be relevant, ib.; limitations
to this rule, 352. 661; order as to
committee on Monday and Thursday,
ib.; resolution immediately to resolve
into committee, 663; functions of these
committees distinguished, 665; of com-
mittee of supply, ib.; of ways and
means, 666; the annual budget not inva-
riably proposed in this committee, 667;
charges of collection of revenue, 668;
proceedings in the committees, ib.;
rules as to proposal of greater or lesser
INDEX.
947
SUPPLY AND WAYS AND MEANS--continued. Suspension of.Members—continued.
sum, 668, 669; rules of proceeding in Speaker's rules, 65. 349. 381; appli-
committee of supply, ib. 670; longer or cations of, 382; standing order respect-
shorter time, 671; reduction of vote to be ing, 383.
substantial, ib. ; questions and amend-
Suspension of sittings; of the house, 241;
ments in committees of supply, and ways of committee of the whole house, 442.
and means, 672, 673. 675; general
resolution in, considered irregular, 676, TABLE OF THE HOUSE ; peers and
peeresses
12. ; relevancy of debate therein, 677; sworn at, 478; petitions laid upon,
minister in charge of estimates to make a Lords, 617; Commons, 618; and papers,
general statement, ib.; after agreement 628; Lords' minutes, 255, n.; and pri-
of first vote, debate to be confined to par- vate business list, 783. See also Mace.
ticular vote, ib.; grants proposed by
Tacks to money bills explained ; abuses
message or in estimates cannot be in-
thereof, 647.
creased, 673; proposal of new tax,
except by minister, 674; exceptions, 675;
Tallage; explained, 22. 635; statute De
vote in committee cannot be postponed,
tallagio, fc., 22. 637.
678; votes on account, ib. ; exceeding Tampering with witnesses before parlia-
amount required, 679; votes of credit, ment; a breach of privilege, 104
ib. ; granted without message from Taxation ; feudal origin of parliamentary
Crown, 680.
taxation, 635; by prerogative, abolished,
Report of supply and ways and
638; proposal of new tax, except by
means, 681 ; time for, ib.; not to be re-
minister, 674; imposed otherwise than
ported the same day, ib.; amendments
in ways and means, 693; annual and
on or after second reading, 682; on ques-
permanent, ib.; imposition of, to origi-
tion for agreeing to report, ib. ; charge nate in committee, 535. 563. 687; but
not to be increased upon report, 683; not of local taxation, 535. 563; petitions
amendments to proposed amendments against proposed taxes, received, 618.
of resolution, ib. ; bills founded on See also supply and Ways and Means.
resolutions, ib.; instructions, ib.; pro-
Taxation of Costs; of private bills, 901.
positions for reducing charges upon the
people, 684 ; drawbacks and allowances, Telegraphic Contracts. See Packet and
ib. ; questions of amount of duties on Telegraphic Contracts.
report, 685 ; exemption from duty may Tellers on Divisions, See Divisions.
not be repealed except in committee,
686; when committee on a bill may in-
Temporary Laws; duration of to be ex-
crease a charge, 685; distinction in the
pressed, 583; continued during passing
case of a new tax, 686; new tax to be
of continuance bills, ib.
voted in committee, though introduced
Test Roll, the ; subscribed by members,
in bill for reduction of duties, 687; 218.
close of supply, ib.; Appropriation Act, Teste (Writs) ; interval between the teste
ib.; debates on, 689; Royal assent to, and return of writs, 46.
ib. 595 ; duty of committee of public
accounts, 689; expenditure not to ex-
Thanks of the House ; precedence to
motions for, 294 ; place of member
ceed grants, 688; grants otherwise than
thanked, 227.
in committee of supply, 690; settlement
on Princess Royal, 691 ; addresses for Thanksgiving Days; custom of houses to
public money, ib. ; to be entertained in attend service on, 240.
committee and on future day, 692; Third reading and passing; of public
taxes imposed otherwise than in com- bills, 581, 582; of private bills, in the
mittee of ways and means, 693; dis- Commons, 875; in the Lords, 890. 895.
tinction between annual and permanent
Thorpe's case (1452), 129. 137. 170.
taxes, ib. ; bills of aid and supply, 694;
messages on matters of supply sent to Tithes; introduction of bills relating to,
both houses, 505. 680; answers thereto, 529; general laws relating to, 761.
512.
Titles of Bills; amendments to, on ques-
Supremacy, oath of; cases of refusal to
tion for leave to bring in bill, 525 ;
take the oath, 206.
special report, if title amended, in com-
mittee, 566; amendment of title in the
Suspension of members; early cases of, 64; Lords, 583; in the Commons, ib.; not
of members for disregarding authority necessary to express duration of tem-
of the chair, and for obstruction, 65. porary laws in, ib. ; transposition of,
349. 381; the Urgency Resolution and by mistake, 605.
948
INDEX.
bills;
Turnpike Roads and Highways; general
laws respecting, 766 ;
supervision of, formerly by Home Office,
but since 1871 by local government
board, 809; consideration of, in com-
mittee, 803; and Irish road bills, 854 ;
fees on, paid by Treasury, 901.
Titles of Honour; the gift of the Crown, 6.
Tobacco; members not to take, in the
house, 385, 12.
Toll Bridges (River Thames) Bill; pro-
ceedings relating to, 871.
Tolls and Charges. See Rates and Charges.
Tooke, Mr. Horne; a member, though in
holy orders, 35; his application for a
oriminal information, 125.
Trade; (Commons), bills relating to, to
originate in committee, 527. 530; in re-
straint of Sunday trading not requiring
a committee, 532; grand committee for,
443, 530; standing committee on bills
relating to, 444. 580; private bills
(Lords), select committee on, 886.
Tramways; general acts, and provisional
orders facilitating construction of, 763;
railway companies refused a locus standi
against, 832; owners and occupiers of
houses allowed a locus standi against, ib.
833; standing order as to bills, ib.;
powers to work and take tolls for, not
given to local authorities, 848; how
length of line to be stated, 852.
Treason; member attainted of, disquali.
fied to sit, 39; petition from, 613; no
privilege in cases of, 152; notice of ar-
rest of members for, 153.512; Commons
impeach peers and commoners for, 734;
peers tried for, ib. 741.
Treasury; authority given to, by Appro-
priation Act, 639. 688; secretaryship
to, does not vacate seat, 704; grant the
Chiltern Hundreds, 709; expenses of
witnesses before select committees paid
at, 486; supervision over private bills,
809; financial statement made by First
Lord of, 667, n.; First Lords holding
also Chancellorship of the Exchequer,
711, and 1.
Treating. See Bribery. Corrupt Practices
Acts.
Trevor, Sir John; expelled for receipt of
· gratuity, 103.
Triennial Act (6 & 7 Will. & M. c. 2);
referred to, 46. 53.
Triers of Petitions. See Receivers and
Trier's of Petitions.
Trustees; no privilege over property held
by peers as, 136..
Tumultuous Assemblages ;
the
houses, orders for dispersal of, 235;
house when in committee resumed on,
438.
" UMBRELLA CASE," The; (Lords), 76.
106, 12.
Under Secretaries of State. See Secretaries
of State.
Undue Influence. See Elections, Contro-
verted, III.
Uniformity, Act of; passed, the lords
spiritual dissenting, 15.
Union : with Ireland, see Ireland ; with
Scotland, see Scotland.
United States; houses of legislature of,
enforce answer to questions by law,
105, 1. ; quorum of, 235, 12. ; congress of,
form of previous question adopted by,
304, 12.
Universities of Oxford and Cambridge ;
members for, styled burgesses, 27, n.
Unopposed motions; rules in regard to,
288.
Unusual expedition; bills passed with,
599. 875. 896 ; in the Lords, 600; in
the Commons, ib.
Urgency Resolution, 1881 ; and Speaker's
rules against obstruction, 381.
Usher of the Black Rod; Gentlemen and
Yeoman Usher; appointment of, and
duties, 78. 256, n. ; bear messages for
attendance of Commons in the House
of Peers, 195. 221; attend with wit-
nesses in custody, 473; have custody of
persons impeached, 737.
VACANCIES IN SEATS: causes of, 695. et seq.;
by members to be re-elected, 32. 714.
See also Ofices under the Crown. TV rits.
Viscount; origin of the title, 10.
Vote Office (Commons) ; distribution of
parliamentary papers by, 631.
Votes ; on account, 678; of credit and
special supplies, 680.
Votes and proceedings (Commons) ; com-
pilation of the record of, 257; period
over which they extend, ib., n.; entries
expunged from, 263; journals prepared
from, 257; when questions are not en-
tered in, 297 ; votes rescinded, 328 ;
proceedings on a bill, 550 ; and on re-
port of ways and means, 681; Lords
near
INDEX.
949
Votes and Proceedings-continucil.
search Commons' votes, 337; division
lists, printed with, 417; and petitions,
620; notices given in, relating to
controverted elections, 698; relating to
private business, 785. 803. 874.
See also Minutes of Proceedings (Lords) ;
Journals, IIT.
Votes of thanks. See Thanks of the House,
WAGES OF MEMBERS; amount of, in time
of Edward III., 25.
Wales, Prince of. See Cornwall, Duke of.
Walpole, Sir Robert; expelled and de-
clared incapable of sitting, 64; use of
king's name by, 369 ; resignation of
office, 715; holds two offices of First Lord
of the Treasury and Chancellor of the
Exchequer, 711.
Walsh's Case (12 Edward IV.), 144.
War; message from Crown respecting,
505. 680; address in answer to, 511;
vote of credit on account of, 680;
secretary and under-secretary of state
for, to sit in house, 705.
Warrant; committal without, 89; tenor
and legal effect of Speaker's warrant of
committal, 77. 187; of chairman of
election comiittee, 81; for taking de-
positions in Indian divorce cases, 894.
See also Speaker, II. 3.
Ways and Means, Committee of; its
functions, 656 et seq.
See also Chairman of Committee of
Supply and Ways and Means. Supply
and Ways and Meanis.
Wednesday sittings; adjournment at six
o'clock, 238. 282; usual adjournment
superseded by prolonged sitting of
Tuesday, 238, n.; rules and orders re-
specting, 275.282 ; divisions at a quarter
before six o'clock on Wednesdays, 401;
government orders taken on, 283.
Wellesley, Mr. Long, case of, 157.
Whalley, Mr.; committal of, by Queen's
Bench for contempt, communicated to
the house, 158.
Wharncliffe order; (private bills), 837.
881; adopted by Commons, 882; pro-
prietors dissenting may be heard before
examiners, 773. 837.888; or on petition-
ing the house, ib.
Wilkes, John; proceedings op expulsion
and re-election of, 63. 152, 263 ; extra-
ordinary sitting on his case, 223, 12.
William the Conqueror; changes tenure
of spiritual lords in Parliament, 7;
summons a council, 19; reference in his
charter to taxation, 635.
William the third ; Parliament meeting
on death of, 47.
Williams, Sir W., case of, 178.
“Winding-up Acts" (joint-stock com-
panies) ; their objects, 762.
Witena-gemót; described, 17; freedom
from arrest traced to, 127.
WITNESSES BEFORE PARLIAMENT:
I. Privilege of Witnesses.—The privi-
leges of, 161; tampering with, a breach
of privilege, 104; answers to criminating
questions, 105; statements by, to Par-
liament, not actionable, 163; admissible
in evidence, 164; acts of indemnity to
witnesses, 484.
II. Before the Lords.-Summoned to
attend, 448. 472 ; brought from prison,
472; proceedings against absconding
witnesses, 473, 474; peers and peeresses
summoned, 472; rule as to witnesses
correcting evidence, 465; messages for
attendance of members of House of
Commons, 475; of the officers thereof,
476 ; mode of examination described,
478; oaths taken at the bar, 479; at the
table ib. ; before committees, 448. 479;
consequences of perjury and prevarica-
tion, 479; expenses of witnesses, 486 ;
summons to witnesses at impeachments,
737.
III. Before the Commons.--Summoned
to be examined by the house, or by
committees of the whole house, 472;
attendance of peers, members, &c. pro-
cured, 475, 476; and of witnesses in
custody, 473; examination at the bar,
484 ; by counsel, 485 ; of members,
peers, &c., ib.; proceedings against non-
attending or absconding witnesses, 473;
against their abettors, ib. ; address
for proclamation against, to originate
in committee, 692; House of Commons
formerly unable to administer oath ;
expedients resorted to, 480. 497 ; power
now conferred by statute, 481, false
evidence a breach of privilege, 482;
report of case of perjury from a private
bill committee, 868; sick witnesses ex-
amined by committee, 463.
Select and Private Bill Committees.-
Standing Orders, and rules regarding
evidence, 449. 465 ; summons to wit-
nesses, 454. 472; not summoned from
India or the colonies, 154 ; enforced, ib.
473; cxamination of witnesses, 451. 465.
479 ; of members and peers, 478. 485;
P.
3 Q
950
INDEX.
WITNESSES BEFORE PARLIAMENT-cont.
before a joint committee formerly sworn
at the bar of the Lords, 480. 497; ex-
penses of witnesses, 486, and 1.;-Pri-
vate bill committees empowered to ad-
minister oath, 481. 855. 887; witnesses
before, summoned, 472. 867; witnesses
before examiners, 776.
Woods and Forests, Commissioners of;
supervision of, over private bills, 790.
809.
Woolsack (Lords) ; not within the house,
245; vote of peer on the woolsack first
taken, 403.
Words of Heat, &c.; interrupt debates,
307; taken down, 377.
Writs for election of New Members ;
powers of Commons regarding issue of,
62. 695; issued during session, ib.;
during the recess, ib. ; to be moved im-
mediately to replace member omitting
to take the oaths, 216; issue of, sus-
pended, 739, and n. ; while returns may
be questioned, 696; or election petitions
pending, ib. ; precedents of motion for
new writ, 291.698; supersedeas to writs,
699; issue of warrants for writs, ib.
700; Speaker's appointment of members,
701 ; form of certificate to authorise the
Writs for New Members-continued.
issue of warrant for new writ, App. 907;
to whom warrants directed, 701; delivery
of writs, ib. ; error in, 702; errors in re-
turn, ib. ; when no return made, 703;
acceptance of office under Crown, ib.;
Chiltern Hundreds, &c., 708; other oc-
casions for issuing writs, 709.
Writs of Error and Appeals before the
House of Lords, 49. 55, 56.
Writs of Privilege; when applied for, by
the Commons, 130; discontinued, 137.
Writs of Prorogation; described, 49. 269,
270.
Writs of Summons; Commons elected
under writ from Crown, 40; Parliament
summoned by, 46; time between the
teste and the return, ib. ; to name day
and place of meeting, ib. ; writs to peers,
198. 697; excepting Scotch representa-
tive peers, 198, 1.
Writ of Summons in civil action, as to
service of, on member within precincts
of Parliament, 147, 12.
Writs of Supersedeas issued, 144. 699.
Wyndham, Sir W.; ordered to withdraw,
392.
Yarmouth; disfranchised, 730, n.
PRINTED BY C. F. ROWORTH, BREAM'S BUILDINGS, CHANCERY LANE-E.C.
UNIVERSITY OF MICHIGAN
3 9015 02789 8280