was made for a demise of the Crown during a dissolution by 37 Geo. III, c. 127, s. 4. In such a case the new Parliament is to convene and sit' for six months, unless sooner prorogued or dissolved by the new sovereign. If the demise took place on or after the day named in the writs of summons for assembling the new Parliament, then this new Parliament was to meet under similar conditions. The Representation of the People Act, 1867, makes the duration of a Parliament independent of a demise of the Crown, but might arise occasions when the Act, 37 Geo. III, c. 127, would be of practical use. The inconveniences to which the doctrine while it prevailed the theory, might give rise may best be illustrated in the case of the flight of James II, when the country was left without a king, and with no means of satisfying the legal requirements of form for summoning a Parliament.

Inconve

niences of

The Prince of Orange summoned the peers, such members of the last three Parliaments of Charles II as happened to be in London, and some citizens; by their advice he issued letters, not in the form of writs, but of the same purport, addressed to the Lords Spiritual and Temporal, being Protestants, to the Coroners, or in their default to the Clerks of the Peace of the counties, to the Vice-Chancellors of the Universities, and the chief Magistrates of the towns, summoning a Convention. When at the request of this Convention William and Mary had accepted the crown and all the elements of a legislature were present, a Bill was passed which turned the Convention into a Parliament. It was dissolved at the end of the year, and its acts were declared to be valid by the next Parliament.

It is interesting to consider how much of all the procedure which I have just described is law, and how much is custom. I would include under the term 'law' not only statute law, but that which is sometimes called the law of Parliament, a set of rules which are really part of the common law; and under the term 'custom' those conventions a departure from which would

not affect the validity of any parliamentary proceedings or

touch any public or private right.

of this

Statute

Statute law determines the number and indicates the mode How much of election of the representative peers of Scotland and Ireland, chapter is it determines the number of the spiritual peers and the num- Law: ber and status of the Lords of Appeal. It provides a form of writ to be addressed to the returning officers of counties and towns. It fixes the form of oath to be taken or declaration made, and the penalty for non-observance of this rule. It determines the duration of Parliament subject to the prerogative right of the Crown to dissolve, and it has abolished the common law rule as to the effect of the demise of the Crown upon the existence of Parliament.

is Common

Common law governs all that relates to the prerogative of how much the Crown; its right to summon Parliament and to summon Law: it in the form of proclamation; to open, prorogue, and dissolve it, and to do so either in person or by Commission'.

The whole of the rights of the Peerage, except in so far as they are touched by Statute, are matter of Common Law, and these include the right of summons, and of summons in a certain form.

The existence of the privileges of the House of Commons (for we are not here concerned with their nature and extent) is also a part of the law of the land, although the form is used of asking and receiving them by favour of the Crown; so too is the right of adjournment exercised by both Houses, independently of one another or of the Crown, and without affecting the resumption of pending business.

is Custom.

From these rules, by which rights and liabilities public and how much private may be affected, we must distinguish conventions and formalities which are legally immaterial. The mode of elect

1 The statutory and the practical limits to the right and power of the Crown to conduct the business of the country without a Parliament will come to be dealt with later. The statutory limits are too wide to be worth mentioning here, and the practical limits too narrow to be easily explained till I have set out the process of legislation in respect of the appropriation of supply.

ing a Speaker could be altered at pleasure by the House of Commons; the approval of the Speaker-elect by the Queen is not seemingly a legal necessity; the claim of privilege made by the Speaker might probably be omitted without affecting the recognition of parliamentary privilege by the Courts of law. The speech from the throne setting forth the causes of summons may be necessary to put in motion the business of the Houses, but the addresses in answer are nonessential forms: for Parliament is not limited in legislation or discussion by the topics set forth from the throne, and each House is at pains to show its independence of those topics by reading a Bill for the first time before entering upon the consideration of the Queen's speech.

Sir E. May cites three cases of Speakers who acted as such without the royal approval; they occurred in the Convention Parliament which restored Charles II, in that which elected William III and Mary, and on one occasion during the insanity of George III in 1789. May, Parliamentary Practice (ed. 10), 154.

CHAPTER V.

THE HOUSE OF COMMONS.

WE have dealt so far with the mode in which a Parliament is brought into existence, its business set in motion, its session terminated by a prorogation, or its existence by a dissolution. We are now in a position to deal in detail with the various elements of which a Parliament is composed, with the Crown, the Lords, and the Commons. It is convenient to reverse the order of these in inquiring into the law respecting them; the Commons, though not the most ancient, are the most important part of the Legislature, and the most complex; for we have here to consider not only who may be members of the House of Commons and what are their privileges as such, but who may vote, and in what manner, at an election of members to serve in that House.

This part of the subject then resolves itself into four topics: (1) who may be chosen for the House of Commons; (2) who may choose; (3) how they may choose; (4) what are the special privileges possessed by the House of Commons collectively, or by its members individually.

SECTION I.

WHO MAY BE CHOSEN.

cations for

First, then, we must consider who may be chosen to serve Disqualifi in the House of Commons, or rather who are disqualified for House of membership by some incapacity, whether inherent, as in the Commons. case of an infant or lunatic, or acquired by profession or office, or incurred by felony, bankruptcy, or corruption.

Infancy.

Unsound

ness of mind.

Oldfield,

iii. 346.

§ 1. Infants are disqualified by the law of Parliament according to Sir Edward Coke, but the rule was not unfrequently broken until the disqualification was made statutory by 7 & 8 Will. III, c. 25, s. 8. It was applied to the Scotch members by the Act of Union with Scotland, and to members returned for Irish constituencies by 4 Geo. IV, c. 55, s. 74.

There have been cases since the passing of 7 & 8 Will. III, c. 25, in which a minor has been elected and has taken his seat without objection. Charles James Fox was returned, took his seat, and spoke while yet under age, and Lord John Russell was returned a month before attaining his majority. But there are no instances of such an infringement of the law since the passing of the Reform Bill of 1832.

§ 2. Lunacy or idiocy is a disqualification at Common Law, and, under certain conditions, by Statute 2.

3

The history of the law on this subject may be collected from the report of a Committee appointed to inquire into the case of Mr. Alcock in 1811.

Cases were not unusual, in times when a seat in the Commons was not so much an object of ambition as it now is, of members asking the House to relieve them from their duties on the ground of sickness or other infirmity. A further reason for such requests in the case of ill-health would seem to be that office was not a disqualification before the beginning of the eighteenth century; consequently a member could not vacate his seat by accepting the stewardship of the Chiltern Hundreds or other nominal office under the Crown. But the House would not declare a seat vacant on such grounds, unless

1 Many under the age of 21 years sit here by connivency but if questioned would be put out;' 1 Com. Journ. 681; and see Hatsell, ii. 6. 366 Com. Journ. 687.

2

49 Vict. c. 16.

In 1604 the borough of Dorchester petitioned that one of its members, Matthew Chubbe, might be relieved from his duties on the ground of bodily infirmity. The burgesses acknowledge that Mr. Chubbe did at the time of his election 'intreat us that he might be spared therein, offeringe to some other to be chosen five pounds towards his charges to serve therein.' They beg that he may not seem contemptuous by his absence, that it will please you to dismisse the saide Chubbe and to graunt a writ for the election of another.' It does not appear that this petition was granted.