CHAPTER XVII.

PARLIAMENTARY LAW AND USAGE. THE SPEAKER. TWO HOUSES. THE VETO.

35. It is not only necessary that the legislature be the sole judge of the right each member may have to his seat, but that the whole internal management and the rules of proceeding with the business belong to itself. It is indispensable that the legislature possess that power and those privileges which are necessary to protect itself and its own integrity, taking care, however, that this power may not, in turn, become an aggressive

one.

In this respect are peculiarly important the presiding officer of the popular branch or speaker, the parliamentary law, and the rules of the houses.

The speaker of the English Commons was in former times very dependent on the crown. Since the revolution of 1688, his election may be said to have become wholly independent. It is true that the form of obtaining the consent of the monarch is still gone through, but it is a form only, and a change of the administration would unquestionably take place, were the ministers to advise the crown to withhold its consent..

Were the refusal insisted on, disturbances would doubtless follow, which would end in a positive declaration and distinct acknowledgment on all hands, that the choice of the speaker "belongs, and of right ought to

belong," to the House of Commons. There is no danger on that score in England, so long as a parliamentary government exists there at all. The growth of the Commons' independence in this respect is as interesting a study as it is historically to trace, step by step, any other expanding branch of British liberty.

The constitution of the United States says that "the House of Representatives shall choose their speaker and other officers," and so chosen, he is speaker, without any other sanction.

The charter granted by Louis the Eighteenth, of France, prescribed that "the president of the Chamber of Deputies is nominated by the king from a list of five members presented by the Chamber." This was altered by the Revolution of 1830, and the charter then adopted decreed that "the president of the Chamber of Deputies is to be elected by the chamber itself at the opening of each session." It need not be added that, according to the "constitution of the empire," the emperor of the French simply appoints the president of the "legislative corps." In all the States of the Union, the speakers are within the exclusive appointment of the houses. In the British colonial legislatures, the speaker must be confirmed by the governor; but, as was observed of the speaker of the Commons, if consent be refused it would be a case of disagreement between the administration and the legislature, which must be remedied either by a new administration or a new house-that is, new elections.

The presiding officer of the upper house is not made thus dependent upon it. In England, the chief officer of the law, the Lord Chancellor or Keeper of the Seals,'

'A keeper of the seals, whom usage does not require to be a peer, is now appointed as the chief officer of the law, only when, for some reason or

presides over the House of Peers.. There seems to be a growing desire in England wholly to separate the Lord Chancellor from the cabinet and politics. At present he is always a Member of the Administration, and, of course, leaves his office when the cabinet to which he belongs goes out. It will be an interesting subject to determine who shall preside over the Lords, if the change thus desired by many should take place.

The United States Senate is presided over by the Vice-president of the United States, who is elected by the Union at large, as the President is. It must be observed, however, that neither the Chancellor on the woolsack, nor the Vice-president of the United States, as President of the Senate, exercises any influence over their respective legislative bodies, that can in any degree be compared to that of the speakers over their houses. The American Senate and the British House of Lords allow but very little power in regulating and appointing to the presiding officer, who interferes only when called upon to do so.2

other, no lord chancellor is appointed. The keeper of the seals, nevertheless, presides in the House of Lords, or "sits on the woolsack." The chancellor is now always made a peer, if he is not already a member of the House of Lords, and he is always a member of the cabinet. This mixture of a judicial and political character is inadmissible according to American views; yet it ought to be remembered as an honourable fact, that no complaint of partiality has been made in modern times against any lord chancellor in his judicial capacity, although he is so deeply mixed up with politics. Lord Eldon was probably as uncompromising, and, perhaps, as bigoted a politician as has ever been connected with public affairs; but I am not aware that any suspicion has existed on this ground against his judicial impartiality. There is at present a traditional fund of uncompromising judicial rectitude in England, which has never been so great at any other period of her own history, or excelled in any other country.

2 This difference in the position of the presiding officers appears, among other things, from the fact that the members of the House of Lords address, "My lords," and not the chancellor; while usage and positive rules demand that the member of the other house who wishes to speak shall address "Mr. Speaker," and receive "the floor" from him. The chancellor would only give the floor if appealed to in case of doubt. In the United States

The power of the Houses of Parliament over persons that are not members, or the privileges of Parliament, or of either House, so far as they affect the liberty of individuals, and the support of their own power, constitute what is called parliamentary law-an important branch of the common law. Like all common law, it consists in usage and decisions; there are doubtful points as well as many firmly settled ones. It must be learned from works, such as Hatsell's Precedents, &c., Townsend's History of the House of Commons, and others.

As a general remark it may be stated that, with the rise of liberty in England, the jealousy of the House of Commons also rose, and continued during the period of its struggle with the executive; and that, as the power of the House has become confirmed and acknowledged, the jealousy of the House has naturally abated. I very much doubt, whether at any earlier period, the Committee of Privileges would have made the same declaration which it made after Lord Cochrane, in 1815, had been arrested by the Marshal of the King's Bench, while sitting on the Privy Councillors' Bench in the House of Commons, prayers not yet having been read. The Committee declared that "the privileges of Parliament did not appear to have been violated so as to call for the interposition of the House."

The two American Houses naturally claim the "power of sending for persons and papers, and of examining

senate, the president of the senate is, indeed, directly addressed, althongh occasionally "senators" have been addressed in the course of a speech. That body, however, appoints its committees, and leaves little influence to the presiding officer, who, it will be remembered, is not a member of the senate, and has a casting vote only.

3 I would refer the general reader, on this and kindred subjects, to the article Parliament, in the Political Dictionary, London, 1846.

upon oath," and they have also exercised the power of punishing disturbances of their debates by intruders, and libellers of members or whole houses. But no power to do so is explicitly conferred by the constitution of the United States.*

Of far greater importance is the body of the rules of procedure, and that usage which has gradually grown up as a part of common law, by which the dispatch of parliamentary business and its protection against impassioned hurry are secured, and by which the order and freedom of debate, fairness, and an organic gestation of the laws, are intended to be obtained. The development of parliamentary practice, or rules of proceeding and debate, such as it has been developed by England, independently of the executive, and like the rest of the common law been carried over to our soil, forms a most essential part of our Anglican constitutional, parliamentary liberty. This practice, as we will call it for brevity's sake, is not only of the highest importance for legislatures themselves, but serves as an element of freedom all over the country, in every meeting, small or

*This is not the place for discussing the doubts which some have entertained regarding the power of the Houses of Congress, to do that which is possessed by every court of justice, though the lowest-namely, to arrest and punish disturbers. The doubt is simply on the ground that it has not been conferred. But there are certain rights which flow directly from the existence of a thing itself, and some that are the necessary consequence of action and life, and without which neither can manifest itself. A legislative body, without the power of sending for persons to be examined by committees, would be forced to legislate, in many cases, in the dark. It is true that legislative bodies have become tyrannical; but it must not be forgotten that wherever, in the wide range of history, any struggle for liberty has taken place, we find that a struggle to establish the habeas corpus principle has always accompanied it, and that this struggle for securing personal liberty is always against the executive. I do not remember a single case of an established and separate guarantee of personal liberty against parliamentary violence.

The reader is referred to Mr. Justice Story's Comm. on the Const. U. S. chap. xii., and to Chancellor Kent's Commentaries.