« ZurückWeiter »
as to the legality of what has already been done but the consideration of the second is doubtless necessary, for the upright discharge of the duties of Parliament.
The laws of England are, as it is well known, divided into two kinds, the unwritten, or common law, and the written, or statute law. Within the first description, all our writers include the Law of Parliament. It is a branch of our common law, standing on the same grounds, and to be ascertained by the same rules as every other part of it.
“ The only method of proving that this or “ that maxim is a rule of the common law, is « by shewing, 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 evidence, therefore, of the law of Parliament must, in like manner, be learnt from the practice and decisions of that court, or as Sir Edward Coke expresses it, « out of the rolls “ of Parliament and other records, and by prece“ dents and continued experience." I
... Nothing ?: Nothing can be more deceitful, than the attempt to argue any part of this question by analogies, drawn from the powers or practice of inferior courts. The principles on which they rest are not the same; the necessity in which they originate, and the purposes for which they are exercised, are materially different. : ; :: It has long since * been declared by the judges, that they ought not to make answer to a question concerning privilege of Parliament's “ for it hath not been used aforetime, that the « justices should, in any wise, determine the “ privileges of the High Court of Parliament.” ..
* Blackstone, 1. 68.
+ Ibid. 1. 71.
4th Inst. 50.
The authority of this high court is supreme, and paramount to that of every other within this kingdom, and the whole of that authority has, from time immemorial, been separately possessed and exercised by each of the Houses, in so far as is necessary for their own distinct functions. Each House is a Chamber of the King's High Court of Parliament : in each of them the King's person is, in the eve of the law, perpetually present ; and it is expressly stated by Lord Coke, in his fourth Institute, that's the Lords, in their “ House, have power of judicature, and that B 2
* 31 Hen. VI.
" the Commons, in their House, have power “ of judicature also."*
Appeals from the inferior courts are directed to the Parliament, yet the duty of decid: ing upon them is, by lorg usage, performed by the House of Lords only, which, for this purpose, uses the style and authority of the whole Parliament. Other functions of Parliament belong exclusively to the Commons; but the whole of the law and custom of Parliament proceed on this maxim, “ that whatever matter “ arises concerning either House, ought to be “ examined, discussed, and adjudged, in that “ House to which it relates, and not elsewhere.”+
· The House of Commons, therefore, possesses a complete and exclusive judicature in all matters of election ; and both Houses, separately, possess the same, upon all subjects concerning their respective privileges; the violation of which has ever been considered as a distinct and substantive offence, cognizable only in the respective Houses of Parliament, and punishable by their sentene.
Of the same nature with the error of expounding the privileges of Parliament by analogy, is that
* Coke, 4 Inst. 23.
of comparing the inquisitorial functions of the House of Commons to those of a grand jury. It is an inquest, but an inquest of a very different des cription. A grand jury is, in its nature, tránsitory, and limited in its powers. It has no means even of originating any enquiry; nó puwer of summoning a witness, or of hearing a defence. The House of Commons is an original and permanent part of the highest judicature in the country, and, as a Chamber of Parliament, combines the magisterial and judicial functions with those of a permanent and universal inquest.
· It has therefore the right of committing to custody for high treason or misdemeanors, which it may think fit to investigate, either by impeachment, or other criminal prosecution., : Many fallacies have arisen from the maxim first stated by Montesquieu, and since copied by other theoretical writers, that it is a principle of the constitution of England, to separate the legislative authority entirely from the judicial. On the contrary, it is of the very essence of Parliament, that this high court should unite the supreme power, both legislative and judicial, and that, as such, it should not only be a court of appeal, but should also, in both its chambers, exercise a constant superintendance and supre
macy over all other judges and courts whatever, instead of being in any manner subject, or su. bordinate to them. And this principle applies alike to both Houses in the exercise of their own functions, and particularly in the punishment of breaches of their privileges. .
The House of Commons, in its celebrated apology of 1621, distinctly asserts its own claim to be a Court of Record. * To the records of that court we must, therefore, appeal for its practice.
This reference would, indeed, be superfluous, if any credit were due to some modern arguments on the subject. We have lately been told, “ that " the acts of the House of Commons, be they ever ” so numerous, can never be admitted as prece« dents to establish their own claims ;” andt « that the modern decisions of such men'as De 66 Grey, Mansfield, or Kenyon, can hardly be « worth quoting, on either side of the question.”I
How then is the law to be learnt: The decisions of the Commons must either haýe been submitted to, as legal and regular, in which case they would only appear by the records of the House of Commons; or attempts must have been
* " We avouch, also, that our House is a Court of Re"' cord, and so ever esteemed.”
+ Sir Francis Burdett's Letter, page 51. † Ibid. p. 54.