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Jefferson's Parliamentary Writings
"Parliamentary Pocket-Book" and a Manual of Parliamentary Practice
By Wilbur Samuel Howell PRINCETON UNIVERSITY PRESS
Copyright © 1988 Princeton University Press
All rights reserved.
ISBN: 978-0-691-04713-3
CHAPTER 1
PARLIAMENTARY POCKET-BOOK
1. The three estates are. 1. the King. 2. the Lords. 3. the Commons. And the second estate includes the lords Spiritual as well as temporal, not as Spiritual persons, but by reason of the Temporal baronies annexed to their bishopricks. Parliaments may be held & have been excluso clero; agreed Trin.7. H.8. by all the judges of England: Lex. Parliamentaria. c.l. Sadler's rights pa 79 to 93. Kelw. rep. 184. Stamf. P.C. 153. Bro. Par. 107. Hakew. 85.
2. It had been usual for the kings of England by their charters to give to towns a right of sending members to parliament. Writ temp. Car.2. the commons declared the elections void which were made by that prince's charters. By a stat. 34.35.H.8. c.13. Chester was enabled to send members to parliament. The like right was given to Durham by stat.25. Car.2. c.9. The present number of the house of commons is 558.L.Parl. c.l. Spelm. voce 'Major.'
3. In the Saxon government there was an appeal from the lesser assemblies of the people to the greater. Thus their County courts Thus there was an appeal from the courts of manors & Tythings to the Wapentakes or Hundred courts, from these again to the Folkmotes or County cts. and from these to the Witenagemote or Parliament. And all of these assemblies were held twice a year on stated days, so that there was no occasion for any Summons to them. The inferior courts were held about the end of September for electing their magistrates and officers, and about the end of March for the distribution of justice. So that all was over before the Witenagemote which by an express law commenced the first on the calends of October for constituting the Aldermen, Earls, Lord Lieutenants of the counties and other great officers; and the other about the Calends of May for the distribution of justice. Wilk. LL. Sax. Lamb Arch. Spelm. 540. Mirr. c.5. s.l. Sadler. 50. Wilk. LL. Sax. 205. c.2. Spelm. glos. verb, 'manor1 'turnus' 'comitatus.' Law Edw. Conf. 32d Wilk. 205. c.l. Lex. Pari, c.l. pa.19.20.21.22. See post. 5.
4. Among the Saxons no officer Civil, Military or Ecclesiastical could be appointed without the free election of those over whom he was to preside. This election seems in some instances at least to have been subject to the confirmation of the King. Spelm. Glos. verb. 'Vicecom.' Sax. Chron. anno 1064. LL. Inae. c.8.36. LL. Edgari c.3. LL. Canuti c.13. 14. Atk' power of pari. 32.2 Lex. Parl. c.l. p.22.23. that Bishops were elected by the people even after the conquest. Sadler's rights of the kingdom, p.1178.133.134.140. And these officers were subject to deprivation and censure in their folkmotes & other conventions. Lex. Parl. c.l. p.25. Peace and war also were made by common consent of the people either in person or by their representatives. L. Parl. c.l. p.28. William the conqueror took upon himself the nomination of all officers. L. Parl. c.l. p.34. post 6.
5. On the return of Robert, eldest son of W.1. from the holy land Henry 1. who had ascended the throne called a parliament. The words of the historian are 'Magnatibus EDICTO REGIO convocatis' M. Par. p.42. This was one of those extraordinary parliaments called to consult 'de arduis negotiis regni' and not one of those ordinary stated parliaments which were held twice yearly. These ordinary parliaments were reduced afterwards to one yearly by divers statutes, viz. 36. E.3. c.10. St.4. E.3. c.14. 4. Inst. 9. And they were to meet then certainly, or oftener if called by special Summons. L. Parl. c.l. p.39. ante. 3. And 16. Car.2. c.l. declares these statutes in force.
6. H.I. on the invasion of his brother Robert having called a parliament, promised them in these words 'Scripta subarata, si provediritis,' roborare, et iteratis juramentis confirmare, omnia videlicet quae sanctus rex Edvardus sancivit.' The charter granted on this promise was probably the one produced to k. John at Runny-mede, and not the one which Henry had granted at his coronation which had a restriction, viz 'lagam regis Edvardi vobis reddo cum illis emendationibus quibus pater meus emendavit' This is presumeable because it appears from history that for some years after the granting this new Charter by H. l. the people were restored generally to their right of chusing their magistrates and officers civil, military & ecclesiastical. Mat. Par. 167. 38. L. Parl. c.l. p.41.42. ante. 4. See several instances of the exercise of this right in chusing Bishops in England Scotland Ireland & France from ann. 1113. downwards. L. Parl. c.l. p.44.45. The people originally chose Conservators of the peace who became out of date by the introduction of justices of the peace who are appointed by the king. This was brought about by stat. E.3. while that king was a minor & the queen and Mortimer ruled, all. Lamb. Just. 16.19.20.147. L. Parl. c.l. p.47.
7. At the return of the writs the parliament cannot begin but by the presence of the king in person or by representation. 4 Inst. 6. L. Parl. c.2. p.55. Hakew. 66.
8.a. When a parl. is called & doth sit and is dissolved without any act of parl. passed or judgment given it is no session of parl. but a convention. 4. Inst. 28. L. Parl. c.2. p.55.
8.b. Matters of parl. are not to be ruled by the Common law. 4. inst. 17. L. parl. c.2. p.56. Nor doth it belong to the judges to judge of any law, custom or privilege of parl. 1. inst. 50. L. parl. 56.
9. It is generally believed that the whole parl. sat together in one house before E.3. time, and the separation was at the desire of the commons. 1. Ro. rep. 18. L. parl. c.2. p.60.
10. What is done by either house according to the law and usage of parl. is in the judgment of the law the act of the whole parl. The house of Lords cannot exercise any power as an house of parl. or as a court for error without the house of commons be in being at the same time. Both houses must be prorogued & dissolved together. Atk. arg. 14.34.41.51.55. L. parl. 57.61. c.2.
11. The law has provided but one way to correct the errors of parl. that is by a subsequent parl. who may do it. Atk. arg. 60. L. parl. 62. Bro. parl. 16.
12. A parliamt. may be holden at any place the king shall assign; but it ought not to {depart be dissolved} as long as any bill remains undiscussed, and proclamation must be made in the parliamt. that if any person have any petition, he shall come in and be heard, and if no answer be given it is intended the public are satisfied. Lex Constitution. 157. Jac's L. D. by Ruffhead. voce parliamt. Mod. ten. parl. 28. 30.4 Inst. 11.
13. When If a parliamt. is assembled & orders made and writs of error brought in the house of peers, & several bills agreed on, but none signed; this is but a Convention & no parliamt. or sessions of parl. But every session in which the king signs a bill is a parliamt., and so every parliamt. is a session. Jac's L. D. by Ruffhead. voce. parliamt. 1 Ro. rep. 29. Hutt. 61.
14. All orders of parliamt. determine by prorogation; and one taken by order of the parliamt., may after their prorogation, may be discharged on an habeas corpus, as well as after a dissolution: but the dissolution of a parliamt. doth not alter the state of impeachments brought up by the Commons in a preceding parliamt. Raym. 120. Jac's L. D. by Ruffh. Parl. And it hath been resolved that cases of appeals and writs of error, shall continue and are to be proceeded in statu quo &c as they stood at the dissolution of the last Parl. Raym. 381. Ruffh's Jac's L. D. parl. On return of a hab. corp. that the party was taken by order of the house of lords for a contempt, the house being now prorogued, per curiam their orders are all at an end & every other thing before them except writs of error & scire facias's upon them. 1. Lev. 165. Prichard's case.
15. An act was to continue in force 3. years, and thence to the end of the next session of parl. Per curiam by the 'next session' the stat. intends the session which begins next after the expiration of the three years, and not one which, having begun during the three years, finishes after them. 1. Lev. 265. Man v. Cooper.
3. estates. 16. The parl. consists of the king and of the three estates, viz. 1. the Lords spiritual in number 24. who sit in respect of their baronies. 2. the Lords temporal, in number 106. & 3. the Commons, in number 493. Of this court the king is caput, principium et finis. 4. Inst. 1. 3.
17. Commons, are in legal understanding taken for the frank tenants or freeholders of the counties. Thus in 28. E.3. c.6. it is provided that the coroners of counties shall be chosen in full county per les Commons de mesme les counties. Regist. 177. F.N.B. 164.k. PI. R. 232. Stanf. Pl. C.49. 4. Inst. 2.
18. Of antient times both houses sat together. Ld. Coke thinks they sat together 21.E.3. because to letters written to the pope the Common seal of England was put for the king et pro totâ Communtate regni [but qu. whether 'communitas' may not signify the 'community' as it does classically, & so include Lords & Commons; as well as 'Commonalty' which confines it to the Commons alone] whereas sais he if the Commons had had a Speaker at that time they would have appointed him to seal for them, as they did to an act of parl. 8.H.4. concerning the succession of the crown whereunto all the Lords severally sealed, and the Speaker in the name of the commons put to his seal. The Commons had no continual Speaker antiently, but after consultation had, they agreed upon some one or more of them that had greatest aptitude for the present business to deliver their resolution. And. he thinks that on the separation of the two houses they for the first time chose a continual Speaker. 4. Inst. 2.
19. All the judges of the realm, barons of the Exchequer of the Coif, the king's learned counsel & the Civilians masters of the chancery are called by writ to attend in the house of lords 'super praemissis tracturi vestrumque consilium impensuri.' But they have no vote. 4. Inst. 4.
20.a. It is enacted by 8.H.5 c.l., that if the king being beyond seas cause a parl. to be summoned by writ under the teste of his Lieutenant, and afterwards the king arriveth in the realm, the parl. is not dissolved but shall proceed without New Summons. Quod nota, quia in praesentia majoris cessat potestas minoris. 4. Inst. 7.
20.b. When the parl. is not to begin at the return of the writ there must be a writ patent under the whole great seal reciting the summons & Proroguing it to a certain day, which writ of prorogation being read in the upper house before certain of the Lords & Commons there assembled, the parl. is prorogued. 4. Inst. 7.
21. The king or Chancellor most commonly (tho' any other person by his appointment & even in his presence may) declare the causes of calling the parl. to the Lords & commons. 4. Inst. 7.
22. The Commons have a right to chuse their Speaker; yet seeing that the king may refuse him, the use is for the king to name (as in the Conge d'eslire in the bishop) & the Commons to elect him; but without their election no Speaker can be appointed for them, because he is their mouth & trusted by them & so necessary that they cannot sit without him. Grievous sickness is good cause for removing a Speaker & chusing another. But it is no cause for removing a Burgess or Knight. Seymour. fol. 75. Hale Parl. 116.3 So note the diversity. For want of attending to this an erroneous opinion was begotten 38.H.8. Bro. Parl. 7. in which case a Burgess was discharged for sickness and a writ issued to elect another, who was received by the Commons. The Speaker when chosen standing in his place [not in the chair] disables himself to undergo so weighty a charge & desires the house to proceed to a new choice. Which being denied, he is led to the chair by two members where being set in the chair & then he prayeth them to give him leave to disable himself to the king in the Lords' house. The Commons being called into the Lords' house, the Speaker is brought between two of them with low obeisance to the bar & presented to the king, where after he hath disabled himself to speak before the king & for the whole body of the realm, and made humble suit to the k lest by his insufficiency the business of the realm may be hindred to be discharged & a more sufficient man to be chosen: if he be allowed by his majesty, then he maketh a protestation consisting on three parts: 1. that the Commons in this parliament may have free speech, as of right & by custom they have used. & all their antient & just privileges and liberties allowed to them. 2. that in any thing he shall deliver in the name of the Commons (if he shall commit any error) no fault may be arrected to the Commons, and that he may resort again to the Commons for declaration of their true intent, & that his error may be pardoned. 3. that as often as necessity for his majesty's service & the good of the commonwealth shall require, he may by the direction of the house of Commons have access to his royal person. This is in the Parl. rolls called a Protestation in respect of the first part, that the house of Commons be not concluded to speak only of those things which the k. or L. Chanc. delivers, but in a parliamentary course of all other arduous & urgent business. 4. Inst. 8. After return to their house he prays the Commons to assist him & promises all diligence, ib. 10.
23. By 4.H.8. all suits, accusements, punishments &c. to be had on any member for any bill, speaking, reasoning or declaring of any matter or matters concerning the parliament to be communed or treated of, be utterly void. And this clause of the act is declaratory of the antient law and custom of Parl. 4. Inst. 9.
24. The Commons being the general inquisitors of the realm appoint COMMITTEES of Grievances, of Courts of justice, of Privileges, and of advancement of trade; who when they meet, elect one of themselves to sit in the chair. They examine & vote the qestions, and by one whom they appoint, their resolution is reported to the house. 4. Inst. 11.
25. A Lord of parl. by license of the k. upon just cause of absence may make a proxy: but at this day he must do it to a Lord or Lords of parl. But a knight or Burgess cannot make a Proxy, because he is elected & trusted by multitudes. 4. Inst. 12. By the Lord's coming and sitting in parl. his proxy is revoked, ib. 13.
26. By the antient law of parl. proclamation was made at the beginning of the parl. that no man upon pain to lose all that he hath, should during the parl. in London, Westminster or the suburbs &c wear any privy coat of plate, or go armed, or that games, pastimes, or strange shews should be used there during the Parl. ib. 14.
27. It is the law & custom of parl. when any NEW DEVICE is moved on the k's behalf, the Commons may answer that they tender the k's estate and are ready to aid the same, only in this new device they dare not agree without CONFERENCE WITH THEIR COUNTIES: which shews that such conference is warrantable by the law & custom of Parl. 4. inst. 14.34.
28. Tho' one be chosen for one particular county yet when he is returned & sits in parl. he serveth for the whole realm. 4. inst. 14.
29. As every court hath laws & customs for it's direction, some by the common law, some by the civil &c. so the high court of parl. suis propriis Iegibus et consuetudinibus subsistit. It is lex & consuetudo parliamenti that all matters in parl. moved concerning the peers of the realm or commons in parl. assembled, ought to be determined by the course of the parl. & not by the Civil or Common law of this realm used in more inferior courts. And this is the reason that judges ought not to give any opinion of a matter of parl. because it is not to be decided by the Com. law but secundum legem et consuetudinem parliamenti. And some hold that every offence committed in any court punishable by that court, is punishable in the same, or some higher court only. And the court of parl. hath none higher. In the 3.E.3.19. the bp. of Winton was proceeded against in B.R. by the Atty. Gen. for having absented himself from parl. without leave. To which he pleaded that he ought to be corrected in parliament & not elsewhere in a lesser court, and so concluded against the jurisdiction. Which plea after divers days given did stand & was never overruled. In the 1. & 2. Ph. & Mar. informations were preferred in K.B. by the Atty. Gen. against 39. of the house of commons for departing from parl. without license. 6. timorous Burgesses submitted to their fines. Edmd Plowden pleaded constant attendance & was acquitted. And nothing was ever done with the others. 4. Inst. 15.-20.
30. The king cannot take notice of any thing said or done in the house of Commons, but by the report of the house. 4. inst. 15.
31. Every member of the house of Commons hath a judicial place, & can be no witness. 4. inst. 15.
32. A privy counsellor is by his oath & the custom of the realm a privy counsellor for the life of the king who hath made choice of him, without any patent or grant. 4. Inst. 54.
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Excerpted from Jefferson's Parliamentary Writings by Wilbur Samuel Howell. Copyright © 1988 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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