Conftitutional 1 freedom of the

house of com

mons.

I will clofe this fubject with the words of an author who has taken much pains to collect the rights and duties of the house of com

mons.

* "There is nothing ought to be so dear to the commons of Great Britain as a free parliament; that is, a house of commons every way free and independent either of the lords or ministry, &c. free in their perfons; free in their eftates; free in their elections; free in their returns; free in their affembling; free in their speeches, debates, and determinations; free to complain of offenders; free in their profecutions for offences; and therein free from the fear and influence of others, how great foever; free to guard against the incroachments of arbitrary power; free to preferve the liberties and properties of the subject; and yet free to part with a share of thofe properties, when neceffary, for the fervice of the public; nor can he be juftly efteemed a representative of the people of Britain, who does not fincerely endeavour to defend their juft rights and liberties against 'all invafions whatfoever.'

Appendix to Lex Parliamentaria, p. 433

CHAP.

CHAP. XV.

OF THE COLLECTIVE LEGISLATIVE BODY.

I

Shall now prefent my readers with a ge

neral outline of the nature, laws, and cuftoms of parliament, united together in one aggregate body.

rifdiction of

*"The power and jurisdiction of parlia- Power and ju ment," fays Sir Edward Coke, "is fo tran- parliament. fcendent and abfolute, that it cannot be confined, either for caufes or perfons, within any bounds. And of this high court he adds, it may be truly faid, 'Si antiquitatem fpectes, eft vetuftiffima; fi dignitatem, eft hono ratiffima; fi jurifdictionem, eft capaciffima.' It hath fovereign and uncontroulable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all poffible denominations, ecclefiaftical or temporal, civil, military, maritime, or criminal; this being the place, where that abfolute despotic power, which muft in all governments refide

* Black. Com. b. i. c. 2. c. 160.

ti. e. concerning the civil Eftablishment of Religion, not upon the doctrine or points of revelation. fomewhere

Gg 2

1

fomewhere, is entrusted by the conftitution of these kingdoms. All mischiefs and grievances, operations and remedies, that tranfcend the ordinary courfe of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the fucceffion to the crown; as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land; * as was done in a variety of inftances, in the reigns of king Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom, and of parliaments themfelves; as was done by the act of union, and the feveral ftatutes for triennial and feptennial elections. It can in fhort do every thing, that is not naturally. impoffible; and therefore fome have not fcrupled to call its power by a figure rather too bold, the omnipotence of parliament. Omnipotence True it is, that what the parliament doth, 10 authority upon earth can undo. So that it is a matter most effential to the liberties of this kingdom, that fuch members be delegated to this important truft, as are most eminent for their probity, their fortitude, and their knowledge.

of parliament.

* i. e. the civil Eftablishment of it.

In

1

fit in either

In order to prevent the mischiefs, that might No minors to arife by placing this extenfive authority in houfe. hands, that are either incapable, or else improper to manage it, it is provided by the custom and law of parliament, that no one shall fit or vote in either house, unless he be twenty-one years of age. This is alfo exprefsly declared by statute 7 & 8 W. III. c. 25, with regard to the house of commons; doubts having arisen from fome contradictory adjudications, whether or no a minor was incapacitated from fitting in that house. It is also enacted by statute Oaths required 7 Jac. I. c. 6. that no member be permitted to members to enter the house of commons, till he hath taken

the oath of allegiance before the lord steward,

to qualify the

take their seats.

or his deputy; and by 30 Car. II. ft. 2. and 1 Geo. I. c. 13, that no member shall vote or fit in either house, till he hath, in the prefence of the house, taken the oaths of allegiance, fupremacy, and abjuration, and fubfcribed, and repeated the declaration against transubftantiation, and invocation of faints, and the facrifice of the mafs. Aliens, unless natura- Exclusion of lized, were likewife by the law of parliament incapable to ferve therein; and now it is enacted, by ftatute 12 & 13 W. III. c. 2. that no alien, even though he be naturalized, shall be capable of being a member of either houfe of parliament. And there are not only thefe

Gg3

aliens.

Criminals ad

judged by the

two houfes in

capable to fit.

Lex & confuetudo parliamenti.

Each houfe judge of their own causes.

these standing incapacities; but if any perfor is made a peer by the king, or elected to ferve in the houfe of commons by the people, yet may the refpective houfes, upon complaint of any crime in fuch perfon, and proof thereof, adjudge him difabled and incapable to fit as a member; and this by the law and cuftom of parliament.

The high court of parliament hath its own peculiar law, called the lex et confuetudo parliamenti; a law, which Sir Edward Coke obferves, is ab omnibus quærenda, a multis ignorata, a paucis cognita." It will not, therefore, be expected that we fhould enter into the examination of this law, with any degree of minuteness; fince, as the fame learned author affures us, it is much better to be learned out of the rolls of parliament, and other records, and by precedents, and continual experience, than can be expreffed by any one man. It will be fufficient to obferve, that the whole of the law and custom of parliament has its original from this one maxim; "That whatever matter arifes concerning either houfe of parliament, ought to be examined, difcuffed, and adjudged in that houfe, to which it relates, and not elfewhere." Hence for inftance, the lords will not fuffer the commons to interfere in fettling

the