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one branch of no
pectively, but in declaring this law they must act judicially, and are under a solemn obligation jus dicere and not jus dare (k).
It is said by Selden (1) that a breach of privilege com- Breach of privimitted in, or against one Parliament, may be punished in bepunished inay another succeeding one.
In thus endeavouring to define the limits and extent of Resolutions of Parliamentary privilege, there is also another manner by power in law. which the privilege of one branch of the Legislature may be invaded by the other, and that is, by either branch taking upon themselves to suspend the Execution of the Law in a certain case,-or attempting to give their own Resolutions the power and authority of a decision sanctioned by the three Estates.
At different periods of English History attempts of this kind have been made and strenuously insisted upon by the invading parties, but they have always been met with such determined opposition by the other Branches, as have prevented their recurrence, and generally crushed them in the bud.
By a statute of Edward the III, a declaration is made Eve that every legislative measure not sanctioned by the con- miune de sang sent of the King, Lords and Commons, shall be void ; three Estates. and by the 13 Car. II. ch. 1. it is enacted, that if any person shall maliciously or unadvisedly affirm that both or either of the Houses of Parliament have any legislative authority without the King, such person shall incur the penalties of a præmunire.
The justice of these enactments, has, with a few exceptions, been universally acknowledged. And these exceptions have principally arisen in the Lords and Commons, who have each, in their day, attempted to enforce their claims in this respect.
Every measure must be sanctioned by the
(k) Dwar. 70.
Kings of England
, Kings of England have long before the passage of the 15
5" careful of this
clause in the Bill of Rights expressly guaranteeing it --right.
abstained from irnposing taxes without the consent of Parliament, -even at times when every inducement was operating in their minds to resort to such a course, had it been lawful : they have solicited assistance from the bounty of individuals and of Parliament, without any salvo of their right: moneys which the Crown has. obtained without the common consent, have been recovered by suits at law. And Kings have acknowledged in Parliament, the impropriety of infringing upon this undoubted privilege of the subject.
And it is obvious that the liberties of a country, however cautiously provided for by existing institutions, would remain in an insecure position, if it were in the power of the Sovereign to change the laws, or to suspend or dis
pense with them at pleasure. , The House of The House of Lords has often, as the annals of our attempted to give Judicial History will show, attempted to assume to themthe force of law. selves powers with which the Constitution has not in
vested them, but in every case they have met with a resolute and successful resistance. *
The House of Commons, also, has made several similar attempts. During the reign of Charles II. they promulgated their opinion that a particular branch of the law should not be put in execution ; and Burnet observes upon this proceeding that it was thought to be “ a great invasion “ of the rights of the Legislature, and to be acting like “ Dictators in the State.”
The manner in which a Court of Law should treat every How a Court of assumption of the kind, by one branch of the Legislature, such an assump- of those powers which belong only to the whole when
And also the
Law should treat
* See the case of Skinner and the East India Company; the case of the Banbury Peerage; the case of Bridgman & Holt; and see Hargrave's Preface to Hale's Jurisdiction of the House of Lords.
'united, was properly expressed by Lord Mansfield, in the
Proceedings of this kind will often occur in bodies pos- Conclusion. sessed of such extensive powers as the individual parts of the Legislature ; when, losing sight of the limits that are placed upon the proceedings of each, and arrogating to themselves the power of the whole, they endeavour to usurp that which the transient excitement of popular feeling has taught them to believe their own. Forgetting the observation of Sir Edward Coke, that it is the first duty of Parliament to set an example of justice to inferior Courts (m).
It is not by either House assuming to itself the power of the whole,-nor by their resisting the power of the Judges as an important and independent branch of the State, that the purposes and ends of justice will be accomplished, or the dignity of Parliament upheld; but it is by each House maintaining unimpaired its own privileges, and resisting encroachments upon them by others; and by the Bench standing in its place in the gap, to stop the progress of either House in an attempt to enlarge that privilege to an unlimited and dangerous extent: it is by this, and this only, that the liberties of the people of England can be handed down by us to posterity, as we have received them from our forefathers,--and Britain be still preserved in the enjoyment of those blessings secured to her by her CONSTITUTION.
* See also Debates in Lords and Commons, on the power of the Commons to suspend the execution of the Law, A. D. 1784.
(m) Lex Constitution. 161.
Speaker of the
OF THE SPEAKER OF THE HOUSE OF LORDS.
to preside there, and manage the formality of business, is His appointment the Lord Chancellor, or Keeper of the King's Great Seal,
ex officio, or any other appointed by the King's Commission (a), and if none be so appointed, the House of Lords may elect one (6): the exercise of this privilege has never been called forth in the British House of Lords, but an instance of the kind is mentioned as having occurred in the Irish Parliament (c); although a Speaker pro tempore is often chosen during the absence, for a time, of the Lord Chancellor, &c. (d)
The usage of the House of Peers with respect to their Speaker, differs but slightly from that of the Commonsthe principal points of difference are as follows:
The Speaker of the House of Lords need not* be a Member (e); and if he be a Member, votes in common
(a) Standing Order H. of L. iii.; and in Canada, see 31 Geo. III. ch. 31, s. 12.
* When he receives bis appointment by virtue of the King's Commission, he not only need not be a member of the House of Lords, but his being a Member of the House of Commons has appeared to be no hindrance. For in 1835, Sir C. Pepys, Master of the Rolls, and a Member of the H. of Commons, sat as Speaker during the temporary absence of the Lord Chancellor.
with the rest (f); he has no casting vote, for, according and speaking. to the constitution of the House of Peers, in the case of an equality on any subject, the nays have it (g).
If he be not a Peer, he may neither speak to the question, nor vote on it; but being a Peer, if he is desirous of giving his opinion, he must leave the woolsack, and go to his place among that rank of Nobility to which he belongs (h).
The person appointed to this office by the King, in the event of the absence of the Lord Chancellor or Lord Keeper, is always a legal functionary of high rank, which, from the judicial powers of the House of Lords, is of course necessary.
OF THE SPEAKER OF THE HOUSE OF COMMONS.
In order to enforce the forms and rules of the House,
Speaker of the and to act as the organ and mouthpiece in all matters, a Commons. Speaker is chosen by the Commons, at the commencement of every new Parliament, or when a vacancy occurs by death or otherwise. The Member chosen for this high and honorable office, is styled “The Speaker,” because it is his business to speak to, or address the King in the name Why called of the House, when occasion requires ; and during his absence, no business can be transacted by the House, nor any question moved but that of adjournment.
I. As to his Election and Presentation.
The Parliament having assembled, before the cause of summons is declared, the Commons are commanded, in the His election. name of the King, to choose a Speaker, and present him to His Majesty on a certain day—and the Commons
(1) 1 Bl. Com. 181.