The Liverpool Tractate an Eighteenth Century Manual on the Procedure of the House of Commons 9780231895286

Table of contents :
Acknowledgments
Table of contents
Introduction
Bibliography
Text of the Liverpool Tractate (British Museum Additional Manuscript 38456)
Index

Citation preview

STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW Edited by the FACULTY OF POLITICAL SCIENCE OF COLUMBIA

UNIVERSITY

N U M B E R 430

THE LIVERPOOL TRACTATE AN EIGHTEENTH CENTURY MANUAL ON T H E PROCEDURE OF T H E HOUSE OF COMMONS BV

CATHERINE STRATEMAN

THE LIVERPOOL TRACTATE AN EIGHTEENTH CENTURY MANUAL ON THE PROCEDURE OF THE HOUSE OF COMMONS

EDITED W I T H AN

INTRODUCTION

BY CATHERINE

STRATEMAN,

NEW COLUMBIA

P h .

D .

YORK

UNIVERSITY

PRESS

LONDON : P . S . KING & SON, L T D .

1937

COPYRIGHT,

1937

BY COLUMBIA UNIVERSITY

PRESS

FIIWTED IN T H E UNITED STATES OF AMERICA

ACKNOWLEDGMENTS THIS study was begun in Dr. M. A. Thomson's seminar at the Institute of Historical Research, University o f London. T o Dr. Thomson I am grateful for many initial suggestions. I wish also to thank Professors Carlton J . H . Hayes and Evarts B. Greene of Columbia University, Professor Wallace Notestein of Yale University, and Mr. Thomas H . Thomas o f Cambridge, Massachusetts, who read my dissertation and made valuable comments. I am chiefly indebted to Professor Robert Livingston Schuyler of Columbia University who gave me much friendly help and criticism at all stages in the preparation of this study.

TABLE OF CONTENTS PAGES

INTRODUCTION

vii-lxxx

I

The Liverpool Tractate 1. Other Manuals 2. Authorship 3. Contents . . . . . . II Earlier Tractates on the Procedure of the House of Commons . . . . . 1. Hooker and Smith 2. Lambarde and Hakewill. . . . 3. Elsynge 4. The Privileges and Practice of Parliaments 5. Scobell 6. George Petyt III Some Notes on the Development of Procedure, 1689-1760 1. The Protection of the Minority . . 2. The Speaker 3. Bills 4. Giving Notice 5. Destroying a Question . . . . 6. Committees 7. Order of Business BIBUOGRAPHY T E X T OF THE

vii-xxix vii-xi xi-xviii xviii-xxix xxx-lx xxxi-xxxvi xxxvi-xlvii xlvii-li li-liii liii-lviii lviii-lx lxi-lxxx lxi-lxii lxii-lxvi lxvi-lxviii lxviii-lxx lxx-lxxii lxxii-lxxiv lxxiv-lxxix lxxxi-xcii

LIVERPOOL TRACTATE

(British

Museum

Additional Manuscript38456)

1-94

INDEX

95-105

v

INTRODUCTION SECTION

I

T H E LIVERPOOL T R A C T A T E ON T H E PROCEDURE OF T H E H O U S E OF C O M M O N S

IN the literature on the English constitution there are many tractates on the procedure of the House of Commons.1 Especially is this true of the seventeenth and the nineteenth century, as will presently be shown. For the eighteenth century, on the other hand, there is a distinct dearth of such accounts. There does exist in manuscript, however, as Volume 267 of the Liverpool Papers in the British Museum (catalogued as Additional Manuscript 38456) a description of eighteenth century procedure, composed about 1763 and apparently never printed hitherto. This is the document published in the present volume and henceforth designated as the Liverpool Tractate. The nineteenth century produced many descriptions of procedure, the most erudite, comprehensive, and authoritative being that by Sir Thomas Erskine May, A Treatise upon the Law, Privileges, Proceedings, and Usage of Parliament,2 which is well known to students of English constitutional history. May had a number of predecessors in the nineteenth century, the more important of whom are mentioned in the footnote below.* 1 The roost recent description of Campion's An Introduction

Commons procedure is G. F. M.

to the Procedure

of

the House

of

Commons

(London, 1939). 2 First published in 1844. A thirteenth edition, edited by Sir T. Lonsdale Webster, was published in 1924. 3 Vide, e. g., Ellis, C. T . , Practical Remarks and Precedents of Proceedings in Parliament... relative to the applying for, and passing, Bills for enclosing or draining lands, making Turnpike Roads, etc. ( L o n d o n , 1802) ; B r a m w e l l , G „ Proceedings of the House of Commons on Passing Bills ( L o n d o n , 1809) ; H a m m o n d , A n t h o n y , Summary Treatise on the Practice and Proceedings in Parliament in the Passing of Public and Private Bills ( L o n d o n , 1825) ; H a l c o m b , J., A Practical Treatise on passing Private Bills ( L o n d o n , 1836) ; Lumley, B., Parliamentary Practice on passing Private Bills through the House of Commons ( L o n d o n , 1838) ; A Manual of the Practice of Parliament in passing Public and Private Bills (anon., L o n d o n , 1827) ; Practical Instructions on the passing of Private Bills through both Houses of Parlia-

ment, by a Parliamentary Agent (London, 1827).

vii

viii

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T h e history of descriptions of the procedure of the House of Commons is indeed a long one. It is true that the medieval work, Modus Tenendi Parliamentum* deals but briefly with the procedure of the Commons, but from the latter part of the sixteenth century down to the present time the number of works dealing wholly or in part with this subject is impressive. Among the earlier of these are John Hooker's tractate, The Order and Usage How to Keepe a Parlement in England in These Dates, published for the first time in 1575,® and Sir Thomas Smith's famous work, De Republica Anglorum, published first in 1583, the second chapter of the second book of which treats of the " forme of holding the Parliament"." Toward the end of the sixteenth century, between 1586 and 1601, William Lambarde, the antiquary, wrote a description of procedure which was not published until 1641, after the meeting of the Long Parliament, when it appeared anonymously with the title, The Orders, Proceedings, Punishments, and Privileges of the Commons House of Parliament in England.7 Early in the seventeenth century, possibly in 1610 or 1611, William Hakewill wrote an account of Commons procedure; the publication of this work, like that of Lambarde's, was delayed until 1641, when it appeared in two editions, one unauthorized, with the title, The Order and Course of Passing Bills in Parliament, and the other, containing an author's preface, with the title, The Manner How Statutes Are Enacted in Parliament by Passing of Bills.* In 1625 Henry Elsynge completed the first book of his famous work, The Manner of Holding Parliaments in Englandthough this was not published until 1660 when it appeared with the title The Ancient Method and Manner of Holding Parliaments. In 1628 the first edition of another work on Parliament dealing in part with the House of Commons was published. This is the work printed anonymously with the title, The Privileges and Practice of Parliaments in England In 1656 Henry Scobell, then clerk of the parliaments, published a description of Commons procedure entitled Memorials of the 4 Infra, pp. xxx-xxxi.

5 Infra, pp. xxxi-xxiv.

6 Infra, pp. xxxiv-xxxvi.

7 Infra, pp. xxxvi-xliii.

8 Infra, pp. xliii-xlvii. 10 Infra, pp. li-liii.

9 Infra, pp. xlvii-li.

INTRODUCTION

ix

Method and Manner of Proceedings in Parliament in Passing Bills.11 Near the end of the seventeenth century, in 1690, was published George Petyt's Lex Parliamentaria, a considerable portion of which is devoted to the procedure of the House of Commons. 12 These sixteenth and seventeenth century descriptions of procedure may not appear numerous when contrasted with those of the nineteenth century. Y e t relative to the time of their publication their number is not inconsiderable; and particularly is this true when these early works are contrasted in respect to their number and their content with the productions of the eighteenth century on the same subject." There is, to be sure, the elaborate collection by John Hatsell, Precedents of Proceedings in the House of Commons. Hatsell, who was clerk of the House from 1768 to 1797, published in 1776 one volume, entitled A Collection of Cases of Privilege of Parliament from the Earliest Records to 1628. This was reprinted in 1781 as the first volume of Precedents of Proceedings. The second volume, first published in 1781, deals with members, rules of proceeding, the speaker, the clerk, and similar matters, while the third volume, first published in 1785, deals with relations with the House of Lords, and procedure on supply bills. The last volumes, on conferences with the Lords and impeachments, appeared in 1796. 14 This collection, though very elaborate, is not an actual description of procedure, but a collection of cases, taken from the Journals of the House of Commons, illustrating certain aspects of procedure and embellished with " Observations " by Hatsell himself. While it is valuable for the history of those matters of which it treats, it would be of but slight use to one not already familiar with procedure. In addition to Hatsell's collection, there were published in the latter part of the eighteenth century a description of procedure by Sir Samuel Romilly and a theoretical essay on certain aspects of procedure by Jeremy Bentham. The inspiration 11 Infra, pp. liii-lviii.

12 Infra, pp. lviii-lx.

13 No account is taken here of collections of rules and standing orders, since these are not descriptions of procedure. 14 The first three volumes were reprinted in 1796. An edition in two volumes, that is, four in two, was published in that year also. The latest edition is that of 1818, in four volumes.

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of both was the meeting of the Estates General of France in 178g.1' Romilly's description, though of course written in English, was translated into French by the Comte de Mirabeau and first published in 1789 with the title Rcglemens observés dans la Chambre des Communs pour débattre les matières et pour voter.1* Romilly briefly but adequately describes various aspects of procedure, as, for example, rules of speaking, the method of voting, and committees. Bentham's work, also intended for the use of the Estates General, was never translated into French and was, in fact, not published until 1791, when it appeared with the title An Essay on Political TacticsUnlike Romilly's work, this is not a straightforward description of procedure, but, as Bentham himself described it, an exposition of the " theory of a copious and unattempted branch of political science".18 In fact, Bentham discusses the duties of the presiding officer of a deliberative assembly and certain matters relative to the making of motions and to voting. Bentham's essay adds very little to our knowledge of the details of procedure, but it is interesting in that it appears to be the first discussion of the theory of procedure. In addition to these works by Hatsell, Romilly, and Bentham, there appeared in 1799 a work by Charles Thomas Ellis called The Solicitor's Instructor in Parliament concerning Estate Bills and Enclosure Bills. This deals, as the title indicates, with certain types of private bills and gives the standing orders of the House relative to them. The seventeenth century, then, is relatively well supplied with works dealing wholly or in part with the procedure of the House of Commons, and the same is true of the nineteenth. But for the eighteenth century, as already indicated, the case is different. Save for re-editions of earlier writings, there appears to be no printed work on the subject before the second volume of Hatsell's Pre15 Vide Romilly, Samuel, Memoirs (London, 1840), vol. i, p. 101-2, and Bentham, Jeremy, Works (Bowring ed., London, 1843), vol. x, pp. 198-9. 16 This is erroneously attributed to Bentham by Professor Redlich. Vide Redlich, Procedure of the House of Commons (London, 1906), vol. ii, p. 16. 17 It appears that this was intended to be only part of a projected larger work, a plan of which is appended to the Essay. 18 Bentham, Jeremy, Essay on Political Tactics (London, 1791), Preface, p. v.

INTRODUCTION

xi

cedents of Proceedings in 1781 and no actual description of procedure before Romilly's in 1789." The Liverpool Tractate helps to fill the gap between Petyt and Hatsell. Catalogued as Additional Manuscript 38456, it is a volume of the Liverpool Papers, the voluminous collection of the papers, official and private, of Charles Jenkinson, first Earl of Liverpool, and of his sons, the second Earl and the third Earl. Additional Manuscript 38455 is apparently a companion volume of the tractate on procedure, for both were similarly bound before they were deposited in the British Museum. It also is anonymous but is entitled A State of the Matter with relation to the Amending of Money Bills Sent from the Commons to the Lords.20 This is of no great value for procedure in general since it consists of a description of various conferences held between the Lords and the Commons in the period 1661-1743, regard to the amending of money bills by the Lords. There are no personal references or observations on the part of the compiler. The account is purely narrative and is based entirely on the Journals of the House of Lords. The tractate on procedure consists of one hundred and twentyeight pages, of which the first one hundred and twenty-three are apparently in the handwriting of the private secretary of the first Earl, M. Pierrepont." Pages 124, 125, 126, and 127 are in another hand, while page 128 contains a pencilled note apparently 19 It should be observed here that an anonymous description of procedure on bills, published in 1767 with the ambiguous title of The Method of Proceedings in order to Obtain a Private Act of Parliament, deals almost entirely with the procedure of the House of Lords. Less than a page is given to Commons procedure. Vide, op. cit., p. 33. 20 In the F i f t h Report of the Historical Manuscripts Commission, Appendix, p. 405, in the report of the manuscripts of A . C. Ranyard, Esq., of Lincoln's Inn, there is a description of what seems to be the same collection. I t has the same title, except that it reads " Brought up f r o m the House of Commons ", instead of " Sent f r o m the Commons 2 1 1 have not been able to discover his first name or many details about him. H e appears to have become Jenkinson's secretary sometime in 1775 f o r fhe letterbooks f r o m that year to the summer of 1783 are in his handwriting. H e died between 30 July and 9 August 1783. See Add. M S . 38309. f. 83b, two letters, that of the first date referring to his illness and that of the last date r e f e r r i n g to his death.

xii

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in the handwriting of the first Earl of Liverpool. The volume lacks a title page, and nowhere in it is there any reference to the author by name. W e can be almost certain that it was not written by Jenkinson, for in the tractate there is a reference to some proceedings in the House of Lords on April 22, 1740, and the author specifically states that he " was in their Lordships House at the time". 2 2 Jenkinson was not born until 1727, and it is highly improbable that he was present as a spectator at a meeting of the Lords in 1740. All that we can certainly say of the author from the tractate itself is that he was presumably an adult in 1740 and that he was still living about 1762-3. The drafting of our tractate can be dated in the latter period from several references to past events. On page 40 of the manuscript there is a reference to a bill passed " about 18 years ago " regarding the manor of Schotover and another reference to a bill passed " about 12 years since " regarding the manor of Garstang. 2 ® The first bill was passed in 1744 and the second in 1750. These references indicate that the tractate was written about 1762. A reference on pages 84-5 24 of the manuscript to the fact that " last year " the committee of ways and means had voted twelve million pounds at one time, which the committee of supply was slow to equal, puts the date of the composition of the tractate as 1762-3, for a vote of twelve millions by the committee of ways and means occurred in December, 1 7 6 1 , that is, the parliamentary year, 1 7 6 1 - 1 7 6 2 . On page 39 the author refers to a petition from Whitehaven, presented " in the last Session of Parliament ". 2 5 This petition was presented in February, 1762. Thus, the author would seem to have been writing during the course of the parliamentary year, 1762-3. In addition, it seems safe to infer from the tractate that the author had been for a number of years keenly observant of the procedure of the Commons and that he was in all probability attached to the House in some capacity. He may, of course, have been an officer, but his point of view throughout is that of a member. In any case, it seems improbable that his great knowledge of the minutiae of procedure could have been acquired except at 22 Infra, p. 83.

23 Infra, p. 32.

24 Infra, p. 62.

25 Infra, p. 32.

xiii

INTRODUCTION

first-hand. H e comments in several places on the procedure in committees, indicating an intimate and a long acquaintance with the defects of the committee system. In fact, he says that disorders " at Committees have been encreasing for a long time ", and that he remembers them " infinitely more orderly than at present ". a " There are other similar comments, tending to show the author's close connection with the House. Of Arthur Onslow, who was speaker from 1728 to 1 7 6 1 , he says that " he was particularly careful in this and all other Matters of a like Nature even to a scrupulous exactness and very few such [errors] can be shewn in his time but no wonder that in an Administration of so many years aliquando dormitat ", 1 T There is a similar indication of familiarity with the House and its personalities in his rather acid description of the " late learned Chairman of the Money Chair (a Man of great Gravity and who had every point of Order in his Head but unfortunately so very ill arranged that as sure as ever he came to apply them so sure he mistook one for another)". 3 " In another place, he casts the scorn of an old parliament man upon the member who " thinks he knows something of Order " and in ignorance, yet with " a look of conscious Sagacity ", persuades committees to an irregular practice." It appears extremely probable, if not certain, that the author was a member of the House in the session of 1756-7, for, in speaking of a rule laid down by the speaker in connection with the inquiry into the conduct of Admiral Charles Knowles as governor of Jamaica, he says that " this I am the better enabled to say as I was the only Person who had noted down the last recited Precedent which determined the Speaker", 3 0 and in the session of 1759-60, for he speaks, apparently with first-hand knowledge, of a select committee on a petition in that year. 3 1 There appears to be no other evidence in the Liverpool Papers as to the authorship of the tractate. There are, however, two letters, either of which may refer to it. The first, dated October 20, 1763, is from Arthur Onslow, late speaker of the House of 26 Infra,

p. 57.

27 Infra,

p. "2.

28 Infra, pp. 37-38.

29 Infra, p. 8.

30 Infra, p. 78.

31 Infra, p. 44.

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Commons." The letter itself has been damaged, and the portion containing the name of the addressee has been lost, but the cataloguer noted on it, with a question mark, " to G. Grenville " . Presumably there was some special reason for suggesting Grenville, instead of Jenkinson, as addressee. T h e letter reads in part as follows: I t h a n k you for the sight [of] the Book I herewith return to you. I lookt a [ t ] the part you mentioned, and find it as y[ou under-] stand it. It is always a very p a r t i c u l a r ] pleasure to me to kiss your hands he [nee] I beg it m a y be only when you are [at per-] feet leisure; because your business [is, I am] sure, of too much importance, for m[e to] break into it. I have a true regard [for you in] all situations, and am, with great [ ? ] Sir, Your faith full affectionate hum[ble] Servant A r : Onslo[w] 8 3 T h e other letter is dated September 14, 1 7 6 4 and is from Philip Carteret W e b b to Charles Jenkinson. 34 It reads in part: 32 Add. MS. 38201, f- 19933 It is unlikely, on the whole, that Onslow would write in these terms to Jenkinson, with whom his acquaintance must have been slight, since Jenkinson's entrance into public life in 1761 coincided closely with Onslow's retirement from it. Nor could Jenkinson's business at this time have been so important as the letter would indicate. On the other hand, Grenville was then (October, 1763) first lord of the treasury and chancellor of the exchequer. The acquaintance between Onslow and Grenville was a long one and presumably began not later than 1741 when Grenville entered the House of Commons as a member. The relationship between them is indicated by a letter from Grenville to Lord Trevor, written in December, 1767 shortly before Onslow's death. Grenville wrote that he was very sorry " for my poor old friend the late Speaker; a mortification in the leg at his time of life seems indeed very desperate. He has lived, however, long enough to have the additional mortification of outliving the credit and dignity of that House which had been the great object of his l i f e , . . . " Vide Grenville Papers (London, 1853), vol. iv, p. 207. 34 Add. MS. 38203, f. 143.

INTRODUCTION O n m y r e t u r n f r o m a small E x c u r s i o n Y e s t e r d a y , I h a d r e c e i v i n g y o u r L e t t e r , I h a v e m a d e s o m e p r o g r e s s in t h e w o r k w e talked over w h e n I last s a w you, b u t I find it p e r u s a l of m a n y M a t e r i a l s t h a t a r e in L o n d o n b e f o r e I D e g r e e of p e r f e c t i o n I would wish.

XV t h e p l e a s u r e of Outline for the will r e q u i r e t h e can give it t h e

Either one of these letters may refer to the tractate on procedure, or either may refer to some other work. The situation is made no easier by the presence in the Liverpool Papers of a manuscript book entitled A Justification of the Issuing and Execution of the Warrant for Taking the Author of the North Briton into Custody; Containing an Exact and Circumstantial State of Every Material Fact Attending That Transaction, In Which the Question Whether Secretaries of State Have Power to Issue Warrants for the Seising the Authors Printers and Publishers of Treasonable and Seditious Libels and Their Papers Is Fairly Stated, and Submitted to the Consideration of the PublicThis also is anonymous. The Catalogue of Additional Manuscripts dates it as 1763, while the tractate on procedure is dated as " about 1764 ", a date which would seem to be too late on the basis of the evidence cited above. The arrest of Wilkes by a warrant issued by the secretaries of state, Egremont and Halifax, occurred in April, 1763. Either Grenville or W e b b " could qualify for the authorship of both the tractate on procedure and the book on the arrest of Wilkes, since both had long parliamentary and official experience. It is perhaps more likely that Onslow would be consulted about the work on procedure than about the work on Wilkes' arrest. Moreover, it is conceivable that the composition of the latter might be delayed until 1764, the date of Webb's letter. However, the tractate on procedure may have been intended as a parliamentary guide for Jenkinson, who came into the House as a member for the first time in 1761. He was then under-secretary of state, and in 1763 became joint secretary 3 5 A d d . M S . 38461.

36 W e b b was, as a matter of fact, the author of two printed books on the Wilkes case: Copies Taken from the Records of the Court of King's Bench, the Office-Books of the Secretaries of State, of Warrants Issued by the Secretaries of State and Some Observations on the Late Determination for Discharging Mr. Wilkes from the Tower, both published in 1763. Neither of these is identical with Add. M S . 38461.

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of the treasury and was thus Grenville's assistant. Thenceforth he was chiefly responsible for the passage of money bills through the House. A f t e r the retirement of Lord Bute he became leader of the " K i n g ' s Friends " in the House. Thus it was necessary that he should be well versed in procedure. It must be admitted at the outset that there is no incontrovertible evidence that Onslow's letter was addressed to George Grenville or that the " Book " to which Onslow referred is the tractate on procedure. W h a t is known about Grenville is, however, quite consistent with the supposition that he was its author. He was born in 1712, was admitted to the Inner Temple in 1729, and called to the bar at the Inner Temple in 1735. In 1740, when the author of the tractate was present at a meeting of the House of Lords, Grenville was not yet a member of the House of Commons, but there is nothing in that reference requiring us to conclude that the author was at that time a member of the Commons. He may have been a casual visitor to the Lords. Grenville sat in the House of Commons as a member for Buckingham from 1741 until his death in 1770. H e was a lord of the admiralty in the Pelham administration in 1745, became a lord of the treasury in 1747, and treasurer of the navy in 1754. This latter office he held until 1762, save for several short intervals. H e was admitted to the cabinet in February, 1761, became a secretary of state in May, 1762, and resigned that office and was appointed first lord of the treasury and chancellor of the exchequer in April, 1763. His parliamentary and official experience was thus long and varied. Moreover, he was known as an authority on the forms of proceeding in the House of Commons. In 1761, when Arthur Onslow retired as speaker of the House, it was proposed that Grenville succeed him. According to his own account, Grenville ardently desired the Chair, which he described " as the highest honour that could have befallen me, and as a safe retreat from those storms and that uneasiness to which all other public situations . . . are unavoidably exposed ", and was dissuaded therefrom only by the K i n g himself." In the same year, 1761, Charles Jenkinson wrote to Grenville, asking information about a " Parliamentary Case ", 37 Gtcnvillt

Papers,

cit. sup., vol. i, pp. 398-9.

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INTRODUCTION

enclosed in the letter, the nature of which he did not disclose. " I have no doubt of the point ", wrote Jenkinson, " and yet should be obliged to you for an answer to it, that I may be sure in the advice I give Sir James Lowther . . . ". SB As early as 1754, William Pitt described Grenville as " universally able in the whole business of the House, and, after Mr. Murray and Mr. F o x , . . . certainly one of the very best parliament men in the House Horace Walpole, long an observer of the House, said of Grenville, after his death, that he was " confessedly, the ablest man of business in the House of Commons, . . . " 4 0 Perhaps the highest praise of Grenville as a parliament man was bestowed upon him by Edmund Burke in his famous speech on American taxation, on April 19, 1774. Of Grenville's imperial policy Burke did not approve, but of Grenville himself he said: H e took public business, not as a duty which he was to fulfil, but as a pleasure he was to e n j o y ; and he seemed to have no delight out of this House, except in such things as some w a y related to the business that was to be done within it . . . his ambition was of a noble and generous strain. It w a s . . . to secure himself a well-earned rank in Parliament by a thorough knowledge of its constitution and a perfect practice in all its business. 4 1

It is worth adding that the author of the Liverpool tractate speaks with apparently first-hand knowledge of the proceedings in a select committee on a petition for a Staffordshire navigation bill in 1760 and that Grenville was a member of that committee." There is also the statement that a certain allegedly unparliamentary practice " will be practiced with vast Success ", unless it is " animPresumably, the adverted upon by some Person of consequence author considers himself sucha person, and George Grenville would 38 Ibid., p. 365. 39 Pitt, William, Earl of Chatham, Correspondence (London, 1838), vol. i, p. 106. In a letter to the Earl of Hardwicke, April 6, 1754. 40 Walpole, Horace, Memoirs of the Reign (London, 1894), vol. iv, p. 125. 41 Burke, Edmund, Writings and Speeches 42 Infra, p. 44. 43 Infra, p. 45.

of King

George III,

to

1771

(Boston, 1901), vol. ii, p. 37.

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have been the first to admit that he himself was a person of consequence. It will be apparent that the evidence as to the authorship of our tractate is slight. T h e work itself, however, is obviously genuine and of considerable interest, especially since, as has been said, no earlier eighteenth century description of Commons procedure is known. A f e w cases are cited, but this work is in no sense a precedent book. Nor is it as a whole a compilation from learned authorities. It is a description of the daily and routine procedure of the House in legislation. A s an examination of the tractate shows, the first six chapters, on public bills, private bills, petitions, committees, supply, divisions and questions, and the fourteenth chapter, on " Conferences, Lords amendments & Messages between the two Houses ", arc long and detailed. T h e other chapters arc brief and of no particular value. The last five pages consist of brief notes in a different hand, which have no close connection with the body of the tractate. A s to the materials used in the preparation of the work, no lengthy criticism is possible, for the chief source, it is almost certain, was the author's own knowledge, gained at first-hand. However, it is interesting to observe that he did make some use of two seventeenth century tractates, Hakewill's and Scobell's. Hakewill is cited several times in the first chapter on public bills and at great length in the chapter on conferences. Scobell is cited frequently in the chapter on committees, a subject on which his tractate is particularly valuable. Parenthetically, it may be said that these references, by the author of a description of procedure as it was about 1760, to seventeenth century authorities are in themselves testimony to the truth of the Porritts' statement: " In its organization for work the House of Commons was complete before the Great Rebellion; and on the eve of the R e f o r m Act there was scarcely an order or a usage which could not be traced as far back as the reign of James I or Charles I . " 4 4 T h e first chapter of our tractate outlines the procedure of the House on public bills. 45 T h e description is in great detail, far more 44 Porritt, Edward and Porritt, Annie G., The Commons (London, 1903), vol. i, p. 542. 45 Infra, pp. 5-19.

Unreformed

House

of

xix

INTRODUCTION

so than is the later description by Romilly, or, as we shall see, any of the earlier descriptions of this aspect of procedure. The Journals state that leave was given to bring in a bill and that on a certain day the bill was presented and read, but the Journals do not tell us, nor does any other tractate, exactly what procedure was followed. But it appears from our tractate that the member sponsoring the bill goes to the clerk of the House for the order of leave, " which is always made out and signed by him and is your Authority for presenting your Bill ", and having received it, brings this order of leave, the bill itself, and a breviate, or precis, of the bill up to the Bar of the House. Then the speaker, who has already been informed that the bill is ready, calls upon the member to state his business. Thereupon, says the author, the speaker puts a question that the bill be brought up to the table and, if the question pass in the affirmative, the member accordingly brings the bill to the table and delivers it to the clerk. 44 There is a special discussion of the procedure usual in the case of bills of importance and bills of " disputable Utility ". In these cases it is usual " to appoint a Day for the second Reading that the Matter may be debated " and to order the bill printed. 47 There is a good explanation of the difference in procedure, in committees, on the preamble of a public and a private bill. The preamble of a public bill is to be postponed by the committee until all the clauses have been discussed and then fitted to the resolutions of the committee. On the other hand, the preamble of a private bill embodies the reason for the bill and contains the grounds on which the House granted leave to bring in the bill. Therefore, the committee must examine the preamble first for its accuracy, and see that the body of the bill merely gives effect to the preamble. 48 The author casts his scorn on the member who " thinks he knows something of Order " and attempts, " with a look of conscious Sagacity ", to cause a committee to postpone the preamble of a private bill.49 In this chapter, and elsewhere, the author makes observations which, if we may rely on them, shed much light on the actual efficiency of committees in the House. Here he laments that the pp. 5-6.

47 Infra,

p. 6.

48 Infra, pp. 8-9.

49 Infra,

p. 8.

46 Infra,

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THE

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TRACTATE

" fine T h e o r y " of the committee system is in practice very disappointing. O n e reason he alleges to be the fact that of the members o f the committee " half of them have some favourite Point in V i e w which ingrosses their whole attention ". 5 0 T h e consequence is that various parts of the bill may contradict each other. M o r e over, " late in the day " a clause may be voted which nullifies other parts of the bill, the reason o f this being that " prudence and patience though they so eminently shine in most Senators are sometimes not so happily blended in the same Person as might be wished and that those who are endowed with the largest share of the former have too often but a Scanty Portion of the latter virtue T h i s chapter on public bills is sufficiently specific and detailed to indicate the great number of motions in the proceeding on a bill and consequently the opportunities for debate and delay; for although the second reading was by now accepted as the chief time for debate, a bill might be dehated at every motion. It appears that there were at least thirteen stages at which questions were put in the routine procedure on a public bill committed to a select committee : the initial motion ordering that the bill be brought i n ; the motion that the bill, when offered, be brought to the table; the motion for the first reading; for the second reading at some future time; for the second reading now; for commitment; for receiving the report of the committee at some future time; for receiving the report of the committee n o w ; for engrossing the bill; for the third reading; f o r passing the bill; for agreeing to the title o f the bill when it has been passed; and finally, for sending the bill to the House of L o r d s . I n addition, if the committee made amendments or added clauses to the bill, the usual course, there would be a series of questions for agreeing to the amendments and the clauses. Finally, if the bill were committed to a committee of the whole, instead o f to a select committee, there would be other questions necessary for establishing and ending the committee. T h e author does not list these steps as such nor make any comment on their number. T h e y are simply mentioned as he describes the procedure on public bills. T h e r e f o r e , it appears safe to assume that these 50 Infra, p. 10. 51 Ibid.

xxi

INTRODUCTION

numerous questions were not at this time the serious barrier to the progress of legislation which they were to become later; for in view of the author's frankly adverse criticism of committees, and his statement that " it is a matter of surprize to every one who knows how Laws are made to find things no worse than they are ", 52 we might expect an equally frank criticism of these questions on bills. The second chapter, on private bills, also indicates the numerous questions which must be put and which might be debated. In private bills, in fact, there appear to be at least six additional preliminary steps not observed in the case of public bills. Private bills " must be introduced not by motion but by Petition There must be then a question that the petition be brought up to the table; that it be read; that it be referred to a committee ; that the report of the committee be read; that leave be given to bring in a bill; and finally, a question on the members who shall bring in the bill. In addition, there might also be a question on the membership of the committee on the petition and the time and place of its meeting and perhaps a question on the power of the committee to send for " Persons Papers and Records A development in procedure which is, as we shall see, not mentioned by earlier writers is that there must be three " clear " days between the first and second reading of private bills. The author fails to explain the reasons for this; we can only assume that hasty procedure on private bills, with the time for consideration reduced to a minimum, had resulted in too many errors and in some cases of injustice. 55 Another development described here is 52 Infra,

p. 10.

53 Infra,

p. 20.

54 Infra,

p. 22.

55 Cf. Emden, Cecil S., The People and the Constitution ( O x f o r d , 1933), p. 67. " By the middle of the nineteenth century a practice had grown up of allowing a sufficient period to elapse between the first introduction of a Bill into Parliament and its second reading to enable the views of the general public to be expressed in regard to it." It is doubtful if the interests of the " general public entered into the consideration of the House in making these orders in the early eighteenth century. In any case, three days would be too short a period to accomplish such a purpose. A n effort to inform all the interested parties, though not the " general public ", is more evident in the rules of the House concerning bills relating to estates in Ireland. These rules, vide infra, p. 73, require long notice, in advance, of the intention to

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the requirement for printing private bills before their first reading. T h e former procedure, as regulated by an order of 1705, repeated in 1706. 1708, and 1709, was to print the bill between the first and second readings. But in 1722 a standing order was passed that all private bills be printed and that copies be delivered to the members of the House before the first reading. Because of the fact that much of the business of the House at this time was concerned with private bills 5 4 and because these were introduced by petition only, procedure on petitions was an important question and is in fact accorded a whole chapter in our tractate. Sage advice is given here about the drafting of petitions. It is wise to make them as brief as possible and not to descend to details which may " embarass your Proceedings " and cause " no small Expence of the Parties trouble to y o u r s e l f 5 1 and hazard of the Bill ", 58 A n advantage of a general petition is that " you may sometimes sketch your Examination a little at the Committee so as to hook in something that was never thought of at the drawing the Petition and that appearing in the Report will be a sufficient warrant for inserting it in your Bill ". 69 A second piece of advice is that the solicitor " on whom your chief dependence is " be consulted before the petition is presented in order to save expense and trouble. Here is an indication that procedure in private bills had become very technical, requiring expert advice lest the bill be thrown out because of errors in form. Parenthetically, it appears that solicitors had long held this position as expert advisers, for an earlier writer, Hakewill, writing in the reign of James I, says that private bills are usually drafted by lawyers, who may or may not be members of the House. 90 file

a p e t i t i o n f o r s u c h a bill and a period o f t h i r t y days b e t w e e n the

first

a n d s e c o n d r e a d i n g o f the bill. 5 6 E x a m i n a t i o n of the J o u r n a l s , f o r e x a m p l e f o r the period 1689 t o 1760, will

s h o w e a s i l y t h a t a s i d e f r o m the supply bills and a f e w o t h e r

bills

r e l a t i n g to a d m i n i s t r a t i o n and p a s s e d annually, the bulk o f the bills p a s s e d w e r e private.

N o t until t h e nineteenth c e n t u r y did g r e a t public

b u l k v e r y l a r g e in the b u s i n e s s o f the

measures

House.

5 7 i. e., the m e m b e r p r e s e n t i n g the bill. 5 8 Infra,

p. 28.

5 9 Infra,

6 0 H a k e w i l l , W i l l i a m , The ment by Passing

of Bills

Mannei

Hoiv

Statutes

( L o n d o n , 1670), p. 133.

p. 28. Ate

Enacted

in

Parlia-

xxiii

INTRODUCTION

By far the longest chapter is Chapter IV on committees. In this are discussed at some length committees of the whole House and select committees, while there is a brief mention of grand committees. The only committees of the whole here considered are those on bills, petitions, " or other Matters of great Consequence which affect the Trade or Police [sic] of the whole Kingdom and which are imagined of too great importance to go to a Select Committee ". 81 Committees of supply and ways and means are reserved for a later discussion. The duty of committees of the whole is stated to be the report of their opinion upon the matters referred to them; " they never state Evidence nor facts but Resolutions only ". 62 This important aspect of these committees is clearly explained: that although committees of the whole are, in fact, only the House in another form, their resolutions are not of any effect until they have been voted by the House itself. 83 Grand committees, that is, committees of the whole appointed to consider matters of religion, grievances, courts of justice, and trade, are stated to be '"'obsolete ". The description of t h e m " is taken, almost entirely, from the seventeenth century tractate by Scobell." This chapter is, in fact, devoted chiefly to a discussion of select committees and their proceedings. Here the author delivers himself of certain reflections on the errors and usurpations of power frequently made by select committees. Committees on petitions, instructed by the House to " examine the Matter of the Petition and report the same as it shall appear to them to the House", 86 frequently mistake their power and express their opinion on the evidence offered them, though this is ultra vires, and the House itself alone is qualified to judge of the evidence. Some committees, however, are instructed not only to examine the matter of a petition, but also to report their opinion. In this case, the power of " the Committee is . . . the greatest ever given by the House to a Committee ",8T for the committee have then the power to present resolutions in their 61 Infra, p. 36.

62 Infra, p. 36.

63 Infra, p. 37.

64 Infra, pp. 38-40.

65 Scobell, Henry, Memorials of the Method and Manner of Proceedings m Parliament in Passing Bills (London, 1670), pp. 9-10 and 35-6. 66 Infra, p. 41.

67 Infra,

p. 43-

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report and to declare whether, in their opinion, the allegations of the petition have been proved. A third type of instruction is that the committee " examine and state to the House the Matter of Fact contained in a Petition " , with the provision, sometimes, that they report their opinion too. 68 This instruction gives great power to the committee, as " you may take what all the Witnesses say together and digest it in the plainest and most concise manner you can leaving out all frivolous Circumstances and reporting only to the House the Medulla " . In addition to going beyond their instructions, committees have sometimes acted irregularly by postponing consideration of an unpopular petition, and thus preventing its presentation to the House, a practice " contrary to order, Decency and Common Sense because the committee has no power cxcept that delegated by the House and is required to consider and report upon the petition. Select committees on private bills are required to post a week's notice of their meeting in the lobby of the House, an obligation not imposed on committees on petitions. 70 The committee proceeds by reading the preamble and then examining the evidence offered to prove the preamble, a process which may be " very tedious, especially if the parties have money enough to throw away in feeing Counsel " . I f , however, the bill is not litigated, the examination may be very inconsiderable and the committee may be satisfied with the report on the petition. The author finds serious defects in the examination of witnesses by committees. They should, he says, be examined separately, and each should be barred from the committee room except during his own examination and he should be questioned by the counsel or the agent first, and then by the members. Moreover, the counsel or agents of the litigating parties should be present only during the examination of the witnesses and not during the debate on the petition or bill. However, these rules are not observed; " generally speaking every body is admitted and the Members are perpetually breaking in upon the Counsel or Agent." 7 1 Moreover, "it is common for them [the counsel or agents] of !ate to stay & debate the whole 68 Infra,

p. 43.

69 Infra,

p. 44.

70 infra,

p. 47.

71 Infra,

p. $7.

INTRODUCTION

XXV

Bill through with the Members indeed an A g e n t by staying in the R o o m m a y sometimes set a thing right during the Process of the B i l l " . T h e author concludes with the uncompromising valedictory: The Disorders at Committees have been encreasing for a long time and I remember them infinitely more orderly than at present but I think the evil cannot go much farther for it would be difficult to imagine they can be worse than they are. O f the committee of privileges and elections it is said that it has precedence of all other committees, one reason f o r which is " the strict regard to impartial j u s t i c e " exhibited by the committee. W h i l e this may be true of the committee in its dealings on matters of privilege, it is certainly not in the case of elections. T h e author may, indeed, have been indulging in a bit of sarcasm, f o r proceedings in disputed elections were at this time, and had long been, notorious for open partisanship. T h e situation had become so bad by 1770 that in that year a law, of which George Grenville was the author, was passed, providing for the decision of election cases by small select committees on which the government and the opposition parties were equally represented. 72 T h e fifth chapter, entitled " Supply ", deals with the financial procedure of the House. 7 3 T h i s chapter is a pure description of procedure, unmixed with any discussion of controversial points, such as the position of the L o r d s with relation to supply; for as the author says, since " the Right of granting Supplies and likewise of carrying up the Bills of Supply to receive the R o y a l Assent . . . seems at present to be given u p by the L o r d s it would be spending time to no Purpose to write anything on those Points . . . " 7 4 O n this presumption the chapter is confined to " the mode of voting Supplies and passing A c t s f o r that Purpose " . S i x preliminary steps in the voting of supply are listed: first, the king's request for a supply in his Speech from the T h r o n e at the 72 These Grenville committees continued to decide election cases until 1868 when the matter of disputed returns was transferred to the inferior courts. Vide Anson, Law and Custom of the Constitution, vol. i (5th edition by Maurice L. Gwyer, Oxford, 1922), p. 17®. 73 Infra,

pp. 59-66.

74 Infra,

p. 59.

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opening of the Parliament; the address of the House in response, promising a supply; the motion to consider the Speech; the consideration and the motion to grant a supply; the consideration of that motion in the committee of the whole for supply; and lastly, the report of the committee recommending that a supply be granted. 73 This general procedure must be followed before the specific clauses are considered. Then the House orders that certain estimates and accounts be submitted to it by the various departments of the administration. No motions are to be made in the committee of supply except on the basis of these papers, with the exception of the motion for the number of sailors to be employed. W h y this should be an exception the author cannot explain, save that " the Marine is and ever has been a favourite Service in this Country ",T* These papers must be allowed to lie on the table, in the custody of the clerk, long enough to allow the members to examine them. On the basis of the papers, the committee of supply in its various sessions makes resolutions granting money for specified services. These resolutions are reported to the House from time to time and then " put into the Clause of Appropriation at the End of the Session " . " The committee of the whole for ways and means is not appointed until " a competent Sum of Money " has been voted by the committee of supply, and it is a rule that the amount voted in the committee of ways and means may not exceed that granted in the committee of supply; " otherwise you are guilty of an Impropriety in voting Ways and Means before you know whether they will be wanted When a tax is voted in the committee of ways and 75 Infra, p. 60. 76 Infra, p. 61.

77 Infra, p. 61.

78 Infra, p. . There is a memorandum in Add. MS. 38335 (containing the official papers of the first Earl of Liverpool for February to December, 1763), ff. 247-250 on procedure in voting supply. It reads in part ( f . 249) : " When a sufficient Sum is voted in the Committee of Supply the House may go into the Committee of Ways and Means and vote the Malt or Land Tax—so that if the Land Tax is to be at 4s—the Sum of ¿2,750,000 or near that should be voted in the Supply before both these Duties can regularly be granted in Ways and Means—This Rule has been (it is presumed with great Impropriety) broke through in some few Instances." This memorandum has no apparent connection with the tractate on procedure.

xxvii

INTRODUCTION

means, the H o u s e , on receiving the resolutions of the committee, orders a bill to be brought in and commits the preparation of the bill to a select committee composed of the chairman of the committee of w a y s and means, the chancellor of the exchequer, the lords of the treasury and their secretaries, the attorney general, and the solicitor general. 7 9 T h e s e bills have the same procedure as other bills, except that it is a rule that the H o u s e will not receive petitions directly against a bill laying a tax. A f t e r mentioning some f u r t h e r details on supply, the author then concludes with a discussion o f the clause of appropriation, which specifically directs the use of money

raised by the t a x bills. T h e s e clauses he describes

as

" equally agreeable to H i s M a j e s t y ' s Ministers, and the rest of his S u b j e c t s , & most happily adapted f o r the ease and security of all Sides ", 80 T h e f o l l o w i n g chapter, on divisions and questions, 8 1 contains little worthy of remark and is indeed derived almost wholly f r o m Scobell's tractate. Scobell's description of the " previous question " , a motion used to destroy another motion without actually voting it down, is quoted. 8 2 T h e earlier tractates of the seventeenth century d o not mention this. 83 O f

even greater brevity is the seventh

chapter, on clauses and instructions." Perhaps the most interesting portion of the chapter is the explanation of the conditions under which clauses suggested f o r a bill m a y be received by a committee without a previous instruction of the H o u s e . T h i s is permissible where the clause " tends simply to explain or i n f o r c e the

first

original Scheme ", but the committee may not receive without instruction anything " w h i c h has in its T e n d e n c y , respect to any new Matter ", 8 5 A brief chapter cites the standing orders of 1707, w h i c h regulate the procedure on bills f o r Ireland.8® O f similar nature are chapters I X and X , which cite the special rules of the H o u s e f o r bills confirming letters patent and f o r naturalization 79 Infra,

p. 63.

8 0 Vide infra, p. 66.

81 Infra,

pp. 67-70.

8 2 Infra,

83 T h e

previous

question

was

used

in

the

H a t s e l l f o u n d a n e x a m p l e of it in 1604. Vide

bills."

p. 69. early

seventeenth

Precedents

v o l . ii, p. 104. 84 Infra,

pp. 71-72.

So Infra,

p. 71.

86 Infra,

p. 73-

8 7 Infra,

pp. 73-74.

of

century.

Proceedings,

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The following three chapters, X I , X I I , and X I I I , are likewise chiefly citations from the Journals of the House. 88 T h e fourteenth chapter deals with a subject which had been of some importance in the seventeenth century, that is, relations with the House of Lords. But by the middle of the eighteenth century, this subject was apparently not regarded as of great current importance, for the author of this tractate confesses that he is " not Master of enough of the Subject to write about it with any Manner of Precision ". 88 In fact, although the chapter is long, it is chiefly occupied with a narrative account of a dispute between the two Houses in 1740 about the Lords' amendments of a bill " for prohibiting Commerce with Spain ". 40 T h e source of this account is evidently the Journals of the House of Commons. The rest of the chapter is taken largely from Hakewill's tractate with the addition of a f e w original observations. Apparently, in the matter of conferences, modern practice had had no opportunity to break through the cake of custom. T h e fifteenth and last chapter deals with the royal assent to bills, and in it are cited the various forms of assent, still given in the old Norman French. 91 Following this chapter are brief notes which require no special notice. This examination of the Liverpool Tractate confirms the ideas as to procedure to be derived from the Journals; for as the Journals for 1765 are very much like those for 1665, so the outlines of procedure, as they appear in this eighteenth century description, are, as will be seen, essentially those which appear in the earlier tractates. There are a f e w changes, to be sure; the committee of the whole bulks rather more largely in this eighteenth century description than it does in Hakewill, for example; bills are now required to be printed before the first reading; the time for reading private bills has been regulated, and it is provided that there be three days between the first and second readings. T h e procedure on finance bills has been greatly systematized, but this has been a matter of practice rather than of positive change. Aside from these changes, it is difficult to discover in this tractate anything to cause a modification of the statement by the Porritts, quoted S8 Infra,

pp. 75-79-

8 9 Infra,

p. 80.

9 0 Infra,

p. So.

91 Infra,

p. 91.

INTRODUCTION

XXIX

above. 8 2 T h e particular value of the tractate lies chiefly in the incidental remarks on the procedure of committees. W h a t we should never learn from the Journals and the other official and quasi-official sources, we learn from this description: that the proceedings at committees are irregular and that definite rules are there transgressed; that committees ignore their instructions and often go beyond their powers; that, in summary, the disorders " at Committees have been encreasing for a long time . . . the evil cannot go much farther for it would be difficult to imagine they can be worse than they are " . Secondly, although the tractate describes a procedure similar, in general, to that described by Romilly in his brief account and outlined in the Journals, it is here done with more painstaking care and attention to detail. O n e can imagine a young member, Charles Jenkinson, for example, putting it to good use. 92 Vide supra,

p. xviii

SECTION II EARLIER

TRACTATES

ON T H E PROCEDURE OF T H E H O U S E OF C O M M O N S

THE principal sources relied upon by the author of our tractate are, as we have seen, his own observation of daily procedure in the House and, in lesser degree, the Journals of the House, both contemporary and earlier. In addition, as the editorial footnotes appended to the tractate will indicat'e, the author drew heavily in some portions of his work on two seventeenth century descriptions, those by Hakewill and Scobell. It has, therefore, seemed appropriate to indicate briefly the quality of these two accounts, and something will also be said of some other early descriptions of procedure. It is hoped thus not only to indicate more fully the position which our tractate holds in the history of accounts of procedure, but perhaps also to draw some conclusions as to the development of procedure itself. The medieval tractate, Modus Tenendi Parliamentum, would, of course, be of slight value to a writer on eighteenth century procedure, and a discussion of it is not within the scope of this introduction.1 Yet its influence on later tractates was not inconsiderable and precludes its being entirely ignored. This influence is most obvious in the case of Henry Elsynge, the author of a famous seventeenth century work on Parliament. Not only was Elsynge fond of quoting " the antient manuscript, dc Modo tenendi Parliamentum" as an authority,2 but in addition, the 1 The contents and importance of the Modus are exhaustively discussed by Miss M. V. Clarke in her recent book, Representation and Consent: A Study of Early Parliaments in England and Ireland, with Special Reference to the Modus Tenendi Parliamentum (London, 1936). 2 Elsynge, Henry, The Manner of Holding Parliaments in Englaiui (6th edition, London, 1768), p. 113. The editor of this edition, Thomas Tyrwhit, says, in commenting on the general excellence of Elsynge's materials: " I must except the 'old MS. Modus tenendi Parliamentum', which is quoted much too often. . . . Mr. Prynne . . . has demonstrated it to be a forgery, and of no authority at all." Preface, p. vi, n. Modern opinion rates the Modus more highly. Miss Clarke says: " When the total mass of evidence is both disjointed and deficient, we must rot lightly discard a document which XXX

INTRODUCTION

XXX i

Modus partly determined the form and content of his work. In its printed editions Elsynge's work bears an English title, but he himself gave it the Latin title, Modus tenendi Parliamentum apud Anglos. The first section of the Modus, " Summonitio Parliam e n t ", is matched in Elsynge's tractate by the first chapter of the first book, " O f Summons ", while " De Locis et Sessionibus in Parliamento" finds its counterpart in " Locus et Modus Sedendi " and " De Diebus et Horis ad Parliamentum " in " Parliament Days ". That the Modus was regarded as of importance by another seventeenth century student of parliamentary practice is indicated by the fact that Elsynge's contemporary, William Hakewill, published a translation of it in 1641 with his own description of modern Commons procedure. Moreover, of the forty-seven manuscript copies of the Modus in the British Museum, eighteen are of the sixteenth century and nineteen of the seventeenth century, 3 thus indicating an interest in the Modus long after the time of its composition, 4 and long after the conditions which it describes had disappeared. Furthermore, the Modus was the basis of an early printed tractate on sixteenth century parliamentary procedure, that by John Hooker, alias Vowell. Hooker, who lived from about 1526 to 1601, sat in the Irish Parliament as a burgess in 1568 and in the English Parliament in 1571. H e was the editor of the second edition of Holinshed's Chronicles, published in 1586 in three folio volumes, and the author of a translation of the medieval Modus which was first published in 1572 and later included in Somers' TractsThis is a set description of the Parliament of estates, written on a simple and logical plan and with a general meaning that is perfectly clear. Op. cit., p. 4. P r o f e s s o r Pollard is of the same opinion. See Pollard, A . F., The Evolution of Parliament ( L o n d o n and N e w York, 1926), pp. 68 and 432-6. 3 Vide Hodnett, D o r o t h y K. and White, W i n i f r e d P., " The Manuscripts of the Modus Tenendi Parliamentum ", English Historical Review, vol. x x x i v (April, 1919), P- 209, et seq. 4 1321 is the date suggested by P r o f e s s o r W . A . Morris in his article, " T h e D a t e of the Modus Tenendi Parliamentum", English Historical Review, vol. x l i x (July, 1934), pp. 407-22. Miss Clarke apparently considered 1322 the most probable date; op. cit., p. 367. 5 Somers' Tracts, F o u r t h Collection (London, 1751), vol. ii, pp. 335-44. T h e translation is in the second edition also (London, 1809), vol. i, pp. 175-83.

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has the title, The Otd and Ancient Order of Keeping of the Parlement in England, Used in the Time of King Edward the Confessor. Hooker's tractate is to be found in his edition of Holinshed's Chronicles and bears the title The Order and Usage How to Keepe a Parlement in England in These Dares.'1 It was published separately in L o n d o n in 1575 and may be found also in L o r d Mountmorres' History of the Principal Transactions of the Irish Parliament, from the Year 1634 to 1666.7 T h e British Museum possesses an early manuscript copy of this original tractate in Harleian M S . 1178, ff. 19-26, which has the title given in Holinshed. T h e r e is a decided resemblance between Hooker's translation o f the Modus and his original description of Commons procedure. 8 Indeed, it would seem that he attempted to fit his description into the outline of the Modus. A s in the Modus, there are in his description chapters on summons, days and hours of the Parliament, and the order of beginning and ending the Parliament. H o w e v e r , various chapters in the Modus are omitted f r o m the original tractate and replaced with others dealing with modern practice. T h e r e are sections on the upper house and its officers and on the lower house and its officers. In discussing the latter question, Hooker gives us some information as to the legislative procedure of the 6 The Second Volume of Chronicles: Containing the Description, Conquest Inhabitation, and Troblesome Estate of Ireland; first collected by Raphaell Holinshed, and now newlie recognised, augmented, and continued from the death of King Henrie the eight until this present time of sir John Perot knight, lord deputie: as appeareth by the supplie beginning in pag. 109 etc. By John Hooker, alias Vowell, gent (London, 1586). The tractate is in the section, The Supplie of This Irish Chronicle, pp. 121-9. The references below are to this edition. The tractate is also in the London, 1808 edition of the Chronicles, vol. vi, pp. 345-62. 7 London, 1793, vol. i, pp. 87-152. 8 This resemblance seems to have caused some confusion as to the distinction between Hooker's translation of the Modus and his original tractate. In Somers' Tracts, edition of 1809, vol. i, p. 175, it is said that: "This tract was inserted in Hollinshed's Chronicle ". This is an error. The tract in the Chronicles is the original tractate, while that in Somers' Tracts is the translation of the Modus. The author of the D. N. B. article on Hooker has fallen into a similar error (vol. ix, p. 1182), as has Miss Clarke, op. cit., p. 365.

xxxiii

INTRODUCTION

Commons in his own time.® Beginning with a description of the size and proportions of the place of meeting of the Commons, he tells also where the speaker, the clerk, and the privy councillors are to sit. Save for these and the burgesses of London and York, he says that " none claimeth, nor can claime anie place; but sitteth as he cometh, . . . 10 The speaker is chosen by the Commons to guide them in their deliberations and to see that their orders and customs are observed. H e should be a man of " gravitie, wisedome, experience, and learning "- 11 When he is presented to the king on the third day after his election, it is his duty to " make his oration in commendation of the lawes and of the parlement" and to petition the king for certain rights of the Commons, viz., that they may enjoy all their past privileges, and in particular, freedom of debate, freedom from arrest during the Parliament and coming to and from it, and pardon for errors committed by himself or any other agent, with no advantage taken from the error by the king. The speaker must also oversee the business of the House, give the clerks their directions, receive bills "and safelie... keepe the same", state their contents at the first reading, and have bills engrossed after the second reading. In addition, he is to act as agent for the House in receiving messages from the Lords. He moderates at the debates, deciding who shall speak and keeping speakers " to the matter ". 1S He is to call for a vote on a bill after its third reading and assign the tellers in case the will of the House be not clear by oral vote and a division be necessary. Likewise if the yeas and the nays be equal, he is to cast the deciding vote. It is laid down that he be impartial: during the time of the parlement he ought to sequester himselfe from d e a l i n g or i n t e r m e d l i n g in anie publike or privatt affaires, and dedicat and bend himselfe wholie to serve his office and function. Also he ought not to resort to anie noble man, councellor, or other person, to deale in anie of the parlement matters : but must and o u g h t to have with him a competent number of s o m e of that house, w h o maie be witnesses of his doings. 1 3 9 Holinshed, Chronicles,

cit. sup., vol. ii, pp. 124-6.

10 Ibid., p. 124.

11 Ibid.,

12 Ibid.

13 Ibid.

p. 125.

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There is also a brief outline of the duties of the clerk and of the sergeant. The clerk, subordinate to the speaker, is to keep records of the business and orders of the House, to preserve the bills presented in the House, to read them " openlie, plainelie, and sensiblie ", and to oversee the engrossing of bills.14 The sergeant, or porter, is appointed by the king. He is to guard the doors of the House, permitting none to enter, save the members, and messengers from the House of Lords or the king. Likewise, he is to keep in his custody persons committed to him by the House and to carry the mace before the speaker when the latter enters or leaves the House. 11 A description of Commons procedure contemporaneous with that by Hooker is to be found in Sir Thomas Smith's famous work, De República Anglorum. This was composed between 1562 and 1566 1 4 and thus may antedate in composition Hooker's description. It was not printed, however, until 1583. The work appeared in eleven English editions in the sixteenth and seventeenth centuries, that is, in 1583, 1584, 1589, 1594, 1601, 1609, 1612, 1621, 1633, x 635, and 1640, and in four Latin editions, in 1610, 1625, 1630, and 1641." The section on Commons procedure is to be found in the second chapter of the second book, entitled " The forme of holding the Parliament ", 18 The description here is almost as brief as Hooker's and is incidental to the general discussion of the form of the Parliament. It begins with the sending of writs of election, discusses the suffrage, and the meeting of the Lords on the first day of the Parliament, and the method of voting in the upper House. Then is discussed the meeting of the Commons with the Lords and the king's order to the former to choose a speaker. This they do on their return to their own House. At an appointed time they 14 Ibid., p. 126. 15 Ibid. 16 Smith, Thomas. De República Anglorum: A Discourse of the Commonwealth of England (Edited by L . Alston, with a P r e f a c e by F . W . Maitland, Cambridge, 1906). Vide the Introduction, p. xiii. All references below are to this critical edition, based on the first edition of 1583. 17 Op. cit. sup., Appendix A, pp. 144-6. 18 Ibid,

pp. E1-7.

INTRODUCTION

XXXV

present their speaker to the king. It is the custom for the speaker to protest his own inability and ask that another be chosen. Smith, like Hooker, cites no precedents. Therefore there is here no mention of cases where the speaker's excuse has been accepted by the king, and it is said only that the lord chancellor praises him and on behalf of the king approves his election. The speaker, thus installed, petitions for all the past privileges of the House, and in particular for freedom of debate, the right to impose punishments themselves on any of their members who have offended the king, and finally freedom of access to the king. 19 It is to be observed here that Hooker and Smith, although writing almost contemporaneously, differ as to the speaker's petitions; for Hooker states that the speaker is to request in advance the king's pardon for errors committed by himself or any other agent of the House, while this is not mentioned by Smith. On the other hand, Smith lists the right to punish their own members, obviously an important part of the privileges of the House, and of this Hooker says nothing. Smith discusses the Commons procedure in legislation after a description of the Lords' procedure and the sending of bills down to the Commons. When bills are sent from the Lords " by two or three of those which doe sit on the woolsacks ", 30 the speaker is to receive the bills, and they, like all other bills, are to be read by the clerk three times on three different days. The order of debating seems especially admirable to Smith. He says that in the debate " is a mervelous good order used in the Lower house. He that standeth uppe bareheadded is understanded that he will speake to the bill ". 21 The member who rises first is to be first heard, and all address the speaker, thus eliminating personal altercations. Other members are to be addressed in " circumlocution " only. Moreover, a member may speak only once a day to the same bill, " for else one or two with altercation woulde spende all the time No irreverent, seditious, " reviling ", or " nipping " words are to be used. The result of these rules is that " in such a multitude, and in such diversitie of mindes, and opinions, there is the greatest modestie and temperance of speech that can be used The 19 Ibid., p. 52.

20 Ibid., p. 53.

21 Ibid., p. 54.

22 Ibid., p. 54.

23 Ibid., p. 55.

THE

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s p e a k e r h a s no v o i c e pro o r con a n d is only to declare the " e f f e c t " o f the bill w h e n it is r e a d . B i l l s a r e t w i c e read a n d then o r d e r e d to be e n g r o s s e d . F i n a l l y , a f t e r " t h e bill hath beene t w i s e r e a d e , a n d t h e n i n g r o s s e d a n d e f t s o o n e s reade and disputed on y n o u g h a s is t h o u g h t : t h e s p e a k e r a s k e t h if they will goe to the q u e s t i o n . "

24

I f there is d o u b t a s t o w h e t h e r the yeas or the nays be greater, t h e H o u s e d i v i d e s ; t h a t is, those w h o a r e f o r the bill " g o d o w n " w h i l e the o t h e r s sit still. I f it is desired t o a m e n d the bill, then a c o m m i t t e e " o f t h e m w h o h a v e s p o k e n with the bill a n d against i t " a r e c h o s e n . 2 5 T h i s o c c u r s usually b e f o r e e n g r o s s m e n t but sometimes a f t e r . T h e s e t w o a c c o u n t s of

p r o c e d u r e leave m u c h to be

desired,

it is t r u e . B o t h a r e v e r y b r i e f . H o o k e r ' s description is p e r h a p s s o m e w h a t strained b y a n a t t e m p t to fit a description of E l i z a b e t h a n p r o c e d u r e into the f o r m o f the m e d i e v a l Modus,

while S m i t h ' s is

badly o r g a n i z e d . M o r e o v e r , t h e y a r e both less i n f o r m a t i v e as to the d e v e l o p m e n t o f p r o c e d u r e than some of the later tractates, because no p r e c e d e n t s a r e cited. B o t h p u r p o r t to describe t h i n g s as t h e y are, not h o w t h e y h a v e c o m e to be. Y e t in these t w o early tractates w e o b s e r v e the e x i s t e n c e of a p a r l i a m e n t a r y not even s u g g e s t e d b y the m e d i e v a l Modus.

procedure

T h e descriptions o f

the speaker, at o n c e the s e r v a n t of the H o u s e and the e m b o d i m e n t o f its p o w e r a n d d i g n i t y , the fixed p r o c e d u r e on bills, a n d " the m e r v e l o u s g o o d o r d e r u s e d in the L o w e r h o u s e " in debate, s h o w t h a t the H o u s e o f C o m m o n s had long p o s s e s s e d — f o r there is no s u g g e s t i o n of i n n o v a t i o n in either of these

accounts—essentially

the s a m e f o r m o f p r o c e e d i n g as that described in the

Liverpool

Tractate. A

valuable

early

description

of

procedure

in the H o u s e

of

C o m m o n s , o n e a p p a r e n t l y not used by the a u t h o r of the L i v e r p o o l T r a c t a t e , w a s printed a n o n y m o u s l y in 1641 w i t h the title The Proceedings, of

Punishments,

Parliament

in

and Privileges

England.

The

of the Commons

author

of

this

is

Orders, House William

L a m b a r d e , 2 6 w h o w a s k e e p e r of the records at the R o l l s C h a p e l 24 Ibid., p. 56.

25 Ibid., pp. 56-7.

26 Lambarde has been identified as the author by Professor J . E. Neale in his article, " Peter Wentworth", English Hitto'icol Rci"cu\ vol. x x x i x (January. 1924), p. 50, n. 3.

INTRODUCTION

xxxvii

from 1597 until his death and sat in Parliament as a member for Aldborough in 1562-3 and 1566. Although it was not published for the first time until 1641, the tractate was in manuscript long before. The last precedent cited refers to the twenty-ninth year of the reign of Elizabeth, that is, 1586, and Lambarde himself died in 1601. T h e tractate was reprinted in 1661 and was later included in the Harleian Miscellany. 27 A l l these printed editions are, however, notably corrupt, and reference will be given here to an early manuscript copy of the work in the British Museum, Add. M S . 5123, which has the title, Some certaine notes of ye Order, Proceedings, punishments, and privileges of the lower howse of Parliament. Gathered by IV. Lambart. O n the title page, folio 1, there is a virtual bibliography in which are listed, among other works, the " ould Treatise: Modus tenendi Parliamentum " and " Hokers booke of ye Parliamt ". 28 T h e difference between Lambarde's tractate on the House of Commons and the brief descriptions by Hooker and Sir Thomas Smith is obvious immediately. T h e latter were incidental to accounts of the court of Parliament as a whole, while Lambarde's comparatively long work is entirely devoted to the House of Commons and appears to be the first tractate, in point of composition, of which this is true. T h e work is divided into twenty chapters which vary considerably in length. Not all are devoted to legislative procedure. There are chapters on the qualifications of members, the giving of evidence in the House of Commons by members of the House of Lords, the privileges of the House, the punishment of members, and other matters. But most of the chapters deal in a general and a particular way with the legislative procedure of the Commons. T h e chapter on the speaker describes his election, his presentation to the king, and his speech after the presentation. The 27 Vide t h e L o n d o n , 1808 edition, vol. iv, pp. 559-71. 28 O t h e r w o r k s listed a r e " T h e T r e a t i s e of P a r l i a m t . " , " T h e f r a g m e n t s of m y w r i t i n g " , " T h e C h a r t e r of y e O r d e r of S i t t i n g e in P a r l i a m t . " , and " T h e statutes f o r places in p a r l i a m t . & o a t h t o ye B u r : " . T h e r e is a n o t h e r m a n u s c r i p t c o p y in H a r l . M S . 4619, ff. 1-17, a n d a slightly incomplete copy in H a r l . M S . 2234, ff. 1-17. T h e r e is a copy of t h e table of contents a n d of t h e first t w o chapters in L a n s d o w n e M S . , 489, ff. 5-9.

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chapter is without precedents, but is informative, particularly on the question of the election of the speaker. Lambarde, like Hooker and Smith, states that the Commons are commanded by the king to choose a speaker and that their choice is free. Yet, with greater insight, he says that the member of the privy council who reminds the House of the king's command freely to choose a speaker, nevertheless " comendeth in his opynion some personn by name Apparently, Lambarde intends to qualify the statement that the speaker is to be freely chosen. The speaker's oration, he says, generally consists of " entrance aptly taken from the tyme or person ", praise of the king and his government, thanks-giving for " sumoning the Parlyament whereby the soares of the comonwealth may be prevented and remedyed " and a promise of " diligence and fidelity " on the part of the Commons. He concludes by asking for the privileges of the House and its members, their servants, and their property.' 0 Chapters III, IV, and V, treating of the first reading of bills, the second reading, and " Orders to be observed by such as shall speak ", are long and detailed, and indicate how elaborate, as well as how flexible, was the procedure of the House even then. Ceremonious detail had evidently grown up about the reading of bills. At the first reading the speaker is to hold the bill in one hand and his cap in the other, and recite the contents. Debate is not encouraged then; rather the speaker should read other bills for the first time, " which is a means not onely to hear effectuall speeche but alsoe to save a greate deale of tyme". 31 Bills are usually not committed on the first reading, although here Lambarde, with a regard for accuracy, cites an exception. After the second reading, a bill is to be either engrossed, committed, or rejected. The second reading offers the most favorable opportunity for debate on a bill, yet it is not an unlimited opportunity. For the speaker, at his discretion, may say that " the Bill is sufficiently spoken unto " after three have spoken pro, and three con. When the debate has been closed, the question is to be put for commitment or engrossment. If the majority be for commitment, the speaker is to ask the House 29 Add. MS. 5123, f. 5. 31 Ibid., ff. 7-7t>.

30 Add. MS. 5123, f. 6.

INTRODUCTION

xxxix

to name the committees and the time and place of their meeting. If, in this or any other vote, the number of yeas and nays cannot be determined by the speaker, the House must divide, the yeas going " down ". When the tellers have made their report, those who are in the minority " shall goe, and fetch them [the majority] upp in token of consent Though the rule is that a bill be read only once on the same day, yet it may be read twice; it may also be committed after it has been engrossed. In speaking, the familiar rules are to be observed, those which we have already found in Hooker and Smith, but Lambarde cites a few precedents to illustrate the rules. H e speaks in addition of measures used to limit individual speeches. If the speech be " within the matter ", the member may not be interrupted, but if " o u t of the matter", the speaker may remind him of the shortness of time and may interrupt also if the member's words be dangerous or " evill ". There are to be no speeches except to a bill, and all motions are to be put in the form of a bill. Lambarde, in another chapter, discusses the practice of calling the House. Parliamentary managers of all periods would understand his explanation that the House is called to " keepe the companie togeather ",** and that heavy penalties must be imposed to ensure faithful attendance. There is a very brief chapter on the commitment of bills and the reports of committees on bills. Here it is said merely that after the committee report on a bill, it is to be thrice read and " yt may be spoken unto att every reading ", 34 Likewise there is a citation of an undated order of the House, to the effect that at conferences with the Lords on bills, the committees of the Commons may " urge anie reasons tending to the maintenance of anie thing, that had passed that house, but not of anie newe thing to be propounded, untill the house were made privy thereunto ". 32 Add. MS. 5123, f- 8b. 33 Ibid., f. 11. The situation was apparently much the same about one hundred fifty years after Lambarde wrote these words. Horace Walpole, in a letter to Horace Mann in 1742, writes: " T h e call of the House, which they have kept off from fortnight to fortnight, to keep people in town, was appointed for today." Walpole, Letters (Toynbee edition, Oxford, 1903), vol. i, p. 233. 34 Add. MS. 5123, ff- " b - 1 2 .

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T h e r e is a long chapter o n the third reading of bills; its length is accounted f o r partly by the detailed discussion and partly by the number of precedents cited. W h e n the bill has been engrossed and read the third time, it must be either passed or rejected. If it is passed, it is to be endorsed, " Soit Bailie as Segneurs " and sent to the Lords. If the L o r d s agree to a bill from the Commons, they send it back with the endorsement, " L e s Segneurs ont assentus " . If the Commons agree to a bill from the Lords, it is to be similarly endorsed, " L e s Commons ont assentus If one House alter the other's bill, a conference is required, that each may understand the other. If a bill, such as one for a general pardon, come f r o m the L o r d s already signed by the king, the C o m mons may not alter it. Otherwise a bill may be freely altered " by notinge what should be taken f r o m it or added unto it " . s e A case is cited where a bill was sent to the L o r d s without the proper endorsement and f o r that reason returned by them. There is then some mention of the procedure used when bills are brought f r o m the L o r d s and delivered to the speaker. A n y bill, even though already passed, may be amended, then read three times and passed. Lambarde considers it doubtful whether a debate on a bill may be adjourned to another sitting, although he cites two cases in the twenty-ninth year of Elizabeth where this was done. 87 In a brief chapter he states that if the House be adjourned for a time, the speaker and some members should meet to read a bill pro forma, but his use of the word " o u g h t " seems to imply that this was a practice fallen into desuetude. T h e sixteenth chapter is an interesting one, for it is devoted to the nature of bills of subsidy and the procedure on them. T h e subsidy bill, Lambarde says, is to be carried alone to the king for his assent, " to prepare the Royall assent to the rest and to present the subsidy ". s 8 T h e subsidy is offered by the Commons alone, and the L o r d s merely read and pass the bill sent to them. Subsidy bills are not introduced like other bills, without previous discussion in the House. O n the contrary, a motion must be made and passed to grant a subsidy. T h e n " the devise and dealing therein is 35 Ibid., ff. 12-12b.

36 Ibid., i. 12b.

37 Add. MS. 5123, f. 15b.

38 Ibid., 1. 21.

INTRODUCTION

xli

comitted to divers, whoe agree uppon articles which they doe bringe in to be ordered by the house " . T h e n the House bids the attorney general draw up the articles in the form of an act, " and so passeth as other bills doe but yet comonly the consideracons in the preamble [of a subsidy bill] is [sic] penned by some comittees whereof some be alwaies of the privy councell T h e tractate is practically concluded with a chapter dealing with the royal assent to bills; in this the various forms of the assent are given, substantially as in the Liverpool Tractate, with the omission of the assent to the bill of general pardon. 40 T h i s abstract of the contents of Lambarde's tractate has been given in some detail in order to indicate its nature and value. T h e tractate is indeed remarkable in the first place for its organization and comprehensiveness. T h e subjects discussed are arranged in logical order, beginning with the members of the House and their election, proceeding through the choice of the speaker to the various processes in the passing of bills, and concluding with the final step, the royal assent. O n l y occasionally is one conscious of matter badly placed or extraneous. F o r example, the seventh chapter, on the calling of the House, appears out of place between a chapter on " License f r o m the kinge to proceede " and another chapter on the committing of bills, while the last chapter on the attendance of the warden of the fleet would appear to be a hasty, and not a particularly appropriate addition. Likewise, the subjects of committees and the amending of bills are somewhat slightly treated. Y e t one is conscious of few omissions and, in fact, the numerous details are g r a t i f y i n g to the student of procedure, while the citation of exceptions to rules is indicative of accuracy and thoroughness. T h e tractate suggests that its author was interested in procedure not only from the practical point of view but also, more abstractly, as a scholar. T h e r e appears to be a definite effort t o outline the development of procedure, or at any rate to indicate the relative antiquity of various aspects, and the many precedents cited put this tractate on a high plane of scholarship. Chapters I, V I , V I I , X , X I I , X I I I , and X I V are indeed composed almost 39 Ibid., ff. 2 i - 2 i b . 4 0 Ibid., i. 22.

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entirely of cases and precedents. The work has thus justly been called the " first parliamentary precedent book ". 41 The use of precedents is interesting not only because of the light it sheds on the development of procedure but also because it indicates that, in parliamentary law as well as in other branches of English law, practice was at this time making theory. Lambarde's tractate seems not only more detailed and accurate but also perhaps more realistic than the accounts by Hooker and Smith. The statement cited above, that although the Commons choose their own speaker, yet a member of the privy council usually " comendeth in his opynion some personn by name ", reveals the scene behind the curtain of ceremonial procedure. Equally informative is the statement that the law officer of the crown, the attorney general, draws up the bill of subsidy and that, of the committee on the preamble, *' some be alwaies of the privycouncell". This criticism and the elaboration of these two statements should not be taken as indicating that Lambarde's tractate shows any sign of strife between the crown and Parliament; it is quite unpolemical in nature. But it does show that the choice of the speaker and bills of subsidy, long cherished as dearest of the privileges of the Commons, were then recognized as at least partly under the influence of the law officers and councillors of the crown, the servants of the king and responsible to him alone. In 1641, the year in which Lambarde's tractate first appeared in print, there was published, also anonymously, a tractate entitled The Order and Course of Passing Bills in Parliament, which is substantially identical with another tractate published in the same year by William Hakewill, entitled The Manner How Statutes Are Enacted in Parliament by Passing of Bills. This, the second edition, has a preface by the author stating that the other edition of 1641 had been printed without his knowledge from one of numerous manuscript copies and that the many errors in it had induced him to print an edition himself. The tractate was reprinted in 1659 and in 1670,12 together with Hakewill's translation of the medieval Modus. Although it was not printed until 1641, this tractate was 41 Neale, English Historical Review, vol. xxxix, pp. 50-1, n. 3. 42 References belaw arc tc the edition of 1670.

INTRODUCTION

xliii

undoubtedly composed long before and belongs probably to the early part of the reign of James I. T h e author's parliamentary career belongs to the period 1601-1629 when he sat for various Cornish boroughs and finally for Amersham, while in his preface to the authorized edition of 1641 he himself says that he began his collection " about thirty years past ", which would put the date of composition at about 1611. In fact, the last precedent cited refers to an occurrence in parliament in 1610. Hakewill's long parliamentary experience, his great learning, and the character of his tractate gave it deserved reputation among his contemporaries and later. This influence is indicated not only by the relatively large number of printed editions, four, but also by the numerous manuscript copies, of which there are at least nine in the British Museum alone. 48 T h e tractate is especially relevant to the subject of this introduction because it is wholly devoted to the legislative procedure of the Commons, is a systematic treatment of the subject, and therefore proved a valuable source for the author of the Liverpool Tractate. Hakewill begins with the making and presenting of bills, discusses the order in which they are to be read, the procedure on the first and second reading, committees, the third reading, the amending of bills, the sending of bills from one House to the other, and finally the royal assent. T h e table of contents alone suffices to show how comprehensive is the scope of this work, and the comprehensive outline is elaborated with equal comprehensiveness. T h e first section deals with the presentation of various types of bills. Public bills may be drawn up by any member " ( w i t h the advice of L a w y e r s ) " 44 who is desirous of effecting a public good, and may be presented either publicly to the speaker, or privately to the speaker or the clerk. A committee may be appointed to draw up such a bill, giving legal effect to a motion made by a member and requiring the making of a law. T h e subsidy bill " is usually drawn up by some of the Kings Councell, after the substance 43 Add. MSS. 6411, ff. 77b-io4b; 8980, ff. 1-18; 26644; and 36856, ff. 30-46; and Harl. MSS. 305, ff. 294b-307b; and ff. 31315-334; 1578, ff. 380-390; 6666, ff. 2-22b; and 6810, ff. 20-45. 44 Hakewill, The Manner How Statutes Are Enacted in Parliament

Passing of Bills (London, 1670), p. 131.

By

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thereof, for the number of Subsidies and fifteens to be granted, and the times of payment is first agreed in the House ", 45 Private bills are usually drafted by lawyers who may or may not be members of the House. Hakewill, it appears, doubts the legality of members officiating in such a capacity; " which howsoever it hath been held by some to be lawful, yet it cannot be but very inconvenient, seeing they are afterwards to be Judges in the same cause ". 4 S As to the order in which various bills are to be read, he says that public bills are to be preferred to private, and of the public bills, first, " such as concern the service of God and good of the Church ", secondly, bills concerning the king, and, lastly, private bills, in order as they were presented.47 In summary of these rules Hakewill cites the chapter of the medieval Modus, " De Ordine Deliberandi Negotia Parliamenti ". A comparison of the two will indicate how closely Hakewill has followed the order listed in the Modus. Yet the conclusion of his discussion is perhaps more enlightening as to the practice actually observed, for he says that the speaker is not strictly bound by these rules and that it is " left to his own good discretion " when to read bills.48 At the first reading of a bill, the clerk, directed usually by the speaker, but sometimes by the House, as to which bill to read, is to read first the title and then the contents. Then the speaker in turn reads the title and gives the substance, using the breviate or precis attached.4® First readings, says Hakewill, occur usually in the mornings early and second and third readings later, when " the House grow full ". 5 0 Debate on the first reading is unusual but not unprecedented " in cases where the matter of the Bill is apparently inconvenient and hurtful to the Commonweal, and so not fitting to trouble the House any longer ". B 1 The procedure at the second reading is much the same as at the first. The chief difference is that the second reading is the time for debate. If no one desires to dispute the bill, or to speak against it for detail, the speaker is to put the question for engrossment. 45 Ibid., pp. 132-3. 47 Ibid., p. 134. 49 Ibid., pp. 137-8. 51 Ibid., p. 139.

46 Ibid., p. 133. 48 Ibid., p. 136. SO Ibid., p. 139.

INTRODUCTION

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Usually, however, there are some objections offered, and the House orders the bill to be committed. Every member is privileged to name one person, and no more, as a member of the committee on the bill. No one who has spoken against the body of the bill is to be named, " for he that would totally destroy will not amend " . " Bills from the House of Lords are already engrossed, and, therefore, if they are not committed, the question to be put after the second reading should be for the third reading. If this question passes in the affirmative, the bill should then be read and passed immediately. 5 ' When a committee makes its report, the reporter is first to give the substance of the amendments and the reasons for them, and then the clerk is to read the amendments themselves twice, but separately and without reference to the bill; for it is the duty of the reporter to explain beforehand the bearing of the amendments. The practice of later times has made the second reading the chief time for debate, but apparently this was not the case in the early seventeenth century, for Hakewill, in spite of his remark cited above,54 here says that debate is not only permissible at the third reading, but also that " for the most part it is more spoken unto this time then upon any of the former readings He then proceeds to a detailed discussion of the addition of provisoes and schedules to bills and the amending of amendments. Provisoes are to be offered in paper while the bill is in paper, but in parchment if the bill has been engrossed. 54 But all provisoes are to be read as many times as the bill itself has already been read. If the Commons and the Lords absolutely disagree on an amendment, then the bill must fail, for " if the Commons say, put out, and the Lords say, let it stand as it was, the same being before determined by question in the Commons House, cannot be brought to the question again Amendments to a bill are to be made in the House where the bill began, even though the amendment has been suggested by the other House. Hakewill concludes his tractate with a discussion of the forms used in the sending of bills to the House of Lords and in the giving of the royal assent. Here, as in 52 Ibid.,

p. 146.

54 Vide supra, 56 Ibid.,

p. 160.

5 3 Ibid., pp. 146-7. p. xliv.

55 H a k e w i l l , o/>. cil., pp. 153-4. 57 Ibid., p. 166.

xlvi

THE

LIVERPOOL

TRACTATE

the Liverpool Tractate and in Lambarde, the forms of the king's answer are given. The great difference which appeared between Lambarde's tractate and the accounts by Hooker and Smith is obviously not in point here. Hakewill's work can hardly be said to be greatly superior to Lambarde's in form or substance. Both are well arranged, although from the point of view of legislative procedure, Hakewill's is perhaps superior because it is wholly confined to that subject. Lambarde, it will be remembered, includes a brief discussion of the qualifications and election of the members of the House and certain other irrelevant matters. Both cite precedents fairly extensively, and both show an interest in indicating the history and development of various forms of procedure. Hakewill's work, composed perhaps twenty years later than Lambarde's, has, of course, the obvious advantage of recording more, and later, precedents of proceedings. For the history of procedure, therefore, it is more valuable, since these precedents are the records of that history. Moreover, in two important particulars, it supplements Lambarde's account. The process of amending bills by simple alteration and by the addition of provisoes and schedules is very adequately treated. Furthermore, although the procedure within a committee appointed to amend a bill is neglected in both accounts, Hakewill describes, in somewhat greater detail than Lambarde, the procedure in reporting a bill from a committee and the actions of the House on the report. On the other hand, Hakewill omits almost entirely any mention of the rules of debate in the House. These, to be sure, were probably very familiar to his contemporaries, and in fact Lambarde's account of them is very little dissimilar to the account given by Sir Thomas Smith. However, the important Chapter X V I in Lambarde's work, on the bill of subsidy, has no counterpart in Hakewill. He states that the " substance " of subsidy bills must be discussed in the House first, before a bill may be brought in, but he does not emphasize, as does Lambarde, the difference, in both theory and practice, between any other bill and a subsidy bill, which is brought into the House only upon special order, by a committee appointed by the House and fully instructed as to the provisions and substance of the bill which it is to draft. Lambarde appeals to have recognized more fully than Hakewill that this

xlvii

INTRODUCTION

difference is not merely one of the minutiae of procedure but that it is a reflection of the constitutional development of the House. Neither tractate is completely satisfactory; yet taken together, they give, in part, duplicative but also supplementary accounts of the legislative procedure of the Commons in the Elizabethan and the early Stuart period. Possibly the most famous seventeenth century work on parliament is Henry Elsynge's The Manner of Holding Parliaments in England. However, Elsynge, who was clerk of the parliaments, that is, clerk of the House of Lords, from 1620/1 to 1635, was interested more in the Lords and their procedure than in the Commons. His work cannot, therefore, figure very largely in this discussion of tractates on Commons procedure, nor could it have been a particularly useful source for the author of the Liverpool Tractate. T h e only wholly relevant section is to be found in the seventh chapter of the first book, 58 " Prolocutor Domus Communis ".6® This book, containing the chapter on the speaker of the House of Commons, was completed in 1625 60 but was not published for the first time until 1660. It was reprinted in 1662, 1663, 1675, and 1679. The last edition, with the title The Manner of Holding Parliaments in England, was published in 1768 under the editorship of 58 The printed work, The Manner of Holding Parliaments in England, is actually only the first book of Elsynge's treatise, Modus lenendi Parliamentum a pud Anglos. References in the printed portion suggest that Elsynge intended t o write a second book, and these are confirmed by the existence of a table of contents of the second book, to be found in Elsynge's autograph d r a f t of the first book, British Museum Harl. M S . 1342, f. 158. On this second book see m y article, " Expedicio Billarum A n t i q u i t u s " , American Historical Review, vol. xlii (January, 1937), pp. 225-243, especially pp. 326-234.

59 Elsynge, Henry, The Manner (London, 1768), pp. 155-261.

of

Holding

Parliaments

in

England

6 0 H a r l . M S . 1342, the autograph draft, has on the last folio, f. 157 the date and signature: " 3 M a i j : 1625 H . Elsynge, Cler. Par.". Manuscript copies of the first book in the British Museum, in addition to Harl. M S . 1342, a r e : Harl. M S . 4273; Lansdowne M S S . 489, ff. n - 3 9 b ; 492, ff. 2-io8b; Add. M S S . 26642; S t o w e M S . 1057, ff. I05-I55b; Hargrave M S S . 228; 255, ff. 1-64; 278, ff. 2-110b. Lansdowne M S . 491, ff. 2-15 contains the table of contents and the first chapter.

xlviii

THE

LIVERPOOL

TRACTATE

Thomas Tyrwhit and is the most accurate of all the editions since it was collated with the original manuscript of the work. Therefore, all references below will be to this edition. Elsynge's work has been called the " best single example of the importance attached to medieval precedents ", 61 and this devotion to precedent, and especially to medieval precedent, is fully as evident in the chapter on the speaker as elsewhere. T h e first section, devoted to proving that the Commons " ever had a speaker ", is, in fact, little more than a collection of citations, largely from the Rolls of Parliament, with one from " lib. sanct. Albani, fol. 207, in Sir Robert Cotton's library ". Elsynge finds in this last source a possible reference to a speaker in the forty-fourth year of Henry III, although the first mention of such an officer he finds in the roll for the fifty-first of Edward I I I where Sir Thomas Hungerford is said to be the speaker. It is Elsynge's conclusion that, although no speakers are mentioned in the rolls before this time, they did exist, on the analogy that many rolls of Richard II mention the speaker while others do not. 02 In discussing the election of the speaker, 43 he describes briefly the procedure in the Commons in his own time and then returns to his study of precedents to decide, first, whether the Commons could choose a speaker without the king's command and, second, whether the election " be in their own absolute choice " , M T o the first he answers that while the command has always been given and regarded as essential since the early part of the reign of Henry I V , before that time the precedents indicate that it was not essential. T o the second question the precedents answer unqualifiedly in the affirmative. 65 The ceremonies observed in the Lords House when the speaker is presented are described, these also resting firmly on precedent. 06 T h e speaker's excuse to the king is described as " now formal and out of modesty " and its history traced from the reign of Richard II. 67 For good measure, the history of the speaker's protestation, telling 61 Richardson, H . G. and Sayles, George, Roluli Parliamentorum Anglie Hactcnus Inediii. Royal Historical Society, Camden Third Series (London, 1935), vol. li, p. xxii, n. 5. 62 Elsynge, op. cit., pp. 157-8.

63 Ibid., pp. 159-64.

to Ibid., p. 161.

65 Ibid., p. 164.

6GIbid., pp. iC4-5-

S" Ibid., pp. 16C-7.

INTRODUCTION

xlix

the king that what he has said was by leave of the House, is traced, although Elsynge states that at " this day the speaker wholly omits the protestation giving the illuminating reason that the speaker no longer " comes to speak on the behalf of the commons, unless to demand judgment against any whom they have accused to the lords ". Elsynge obviously perceived that the disappearance of the protestation is related to a change in the forms used in Parliament. When legislation was enacted by petitions and the answers to them, the speaker must come to the king and the Lords to present petitions on behalf of the Commons. Hence the protestation, saying that he spoke under instruction and asking that amendment be made before his departure if he went beyond the orders of the House. On the other hand, the need for this protestation disappeared when the Commons became a separate House of Parliament and presented their requests in the form of a bill formam actus in se continens. As the protestation disappeared in the course of time, so the speaker's speech to the king altered. As numerous precedents prove, it was orginally given at no set time, but delivered whenever the speaker had some message to give on behalf of the Commons. Precedents of Richard II, Henry IV, and down to the early years of Henry VIII, bear witness to this. With some sharpness this seventeenth century antiquary and historian digresses to remark on the lack of records during the reign of Henry VIII while Cardinal Wolsey " had the seal On this account, says Elsynge, " the antient forms of Parliament are much obscured and diminished ".T0 He presents a still graver charge against Wolsey: His ambition first b r o u g h t in t h e privy counsellors, and others of t h e king's servants, into the house of commons, f r o m whence they w e r e a n t i e n t l y e x e m p t e d . T h e effects are, t h e c o m m o n s have lost their chief jewel ( f r e e d o m of speech) and t h e lords departed with as much of their judicature.

The alteration in the position of the Commons which eliminated the need for the protestation altered the speech also. The speaker now delivers a speech of his own at the time of his presentation 68 Ibid., p. 170. 70 Ibid., p. 171.

69 Ibid., p. 170.

THE

1

LIVERPOOL

TRACTATE

to the king, " having no direction at all from the commons touching the same ", 71 In lieu of a protestation, the speaker petitions for freedom of access to the king, freedom of speech, and freedom from arrest. These, Elsynge believes, the Commons have ever held, although the records do not always show their petitions. It is interesting to observe that Elsynge in one place lays aside his impartial precedent-seeking to launch into a spirited defense of the Commons' right of free speech: And, if my poor opinion may be heard, what hurt or prejudice can it be to suffer the commons to have their consultations free, without check or control? They will use no unseemly terms of any man. They can d o n o t h i n g of t h e m s e l v e s ; . . . If they be suffered t o p r o c e e d freely, their proposition will the sooner be rejected or agreed on among themselves. If agreed on, it will be related to the lords or to the k i n g : . . . W h e r e a s on the contrary side, to be denied free liberty of speech seems very harsh unto them, and hath made them so jealous of their privileges, that they have appropriated more unto themselves of late than ever they claimed heretofore . . . 7 3

With this question of the petitions Elsynge's discussion of Prolocutor Domus Communis virtually ends. There follows an account of some cases of privilege," and the chapter closes with some notes on the choice of a speaker to replace one who resigned or died in office.7* It is to be regretted that Elsynge's writings on the Commons were apparently limited to this one chapter on the speaker. His description of seventeenth century practice is indeed subordinated to his loving and diligent search for medieval precedent to support that practice; yet his perusal of the records of Parliament and of other records has obviously been so thorough that we are willing to compound for his brief treatment of seventeenth century practice. He was, perhaps, on safer ground in his search of records than he could have been in an account, from second-hand, of modern procedure in the Commons. In any case, Elsynge produced, if not the first parliamentary precedent book, then certainly the most thorough and scholarly one which we have encountered thus 71 Ibid., p. 173.

72 Ibid., p. 183.

73 ¡bid., pp. 192-254.

74 Ibid., pp. 254-61.

INTRODUCTION

li

far. Lambarde's work is in some degree a precedent book, but what are most interesting are not Lambarde's precedents, but his descriptions of modern procedure. The reverse is the case with Elsynge. Composed probably at about the same time as Elsynge's work, but published years before, was a tractate entitled The Privileges and Practice of Parliaments in England: Collected out of the Common Laws of This Land. This tractate was printed anonymously in London in 1628, 1640, 1641, and 1680." In addition to these printed editions there are eight manuscript copies in the British Museum.74 The account of Commons procedure contained therein is brief, and the tractate as a whole is slight. Yet the fact that it exists in print in four editions at least, and that there are at least eight manuscript copies, indicates that it was regarded in the seventeenth century as an authority of some importance. As all the printed editions are anonymous, so are all but two of the manuscript copies. Harl. MS. 37 contains on folio 36 a dedication to Charles, Prince of Wales, signed " Raphe Starkey ". Presumably this is Ralph Starkey, the archivist, who died in 1628 and whose manuscripts and collections, acquired first by Sir Simond d'Ewes, were later sold by d'Ewes' grandson to Sir Robert Harley. They now form part of the Harleian collection in the British Museum. On the other hand, the copy in Add. MS. 36856, ff. 3-22b, is attributed to another person. The tractate proper begins on folio 3 where it is entitled A Discourse of the Priviledge and Practice of the High Court of Parliamt. in England. Collected out of the Common Laws of This Land, but on folio 1 there is the following note, dated 1 7 1 0 : " Mem. This is a Copy of Serjt Richardson's MS. who was chosen Speaker of the H. of Comons Jan. 30. 1620. 18 Jac. The Original is Sir John Trevor's the Master of the Rolls". This " Serjt. Richardson" is Sir 75 References below are to the edition of 1680. 76 Add. M S S . 22591, ff. 117-126; 30197; 34217, ff. 54-65; and 36856, ff. 3-22b; Harl. M S S . 37, ff. 3 " In the Answer of the Common House of Parliament to K i n g James his Objections in Sir Francis Goodwin's Case 3d April 1604 the Objection being that they refuse Conference with the Lords " T h e A n s w e r is in these words " Concerning 108 Probably from Scobell, p. 33. 109 Scobell, p. 33. 75

j6

THE

LIVERPOOL

TRACTATE

our refusing Conference with the Lords there was none desired until after our Sentence passed, and then W e thought, that in a Matter private to Our own House which by Rule of Order might not be by us revoked we might without imputation refuse to c o n f e r [ " ] " • 110/bid., pp. 33-4-

[ I O 2 ] CAP. OF

IO.111

EVIDENCE.

There will be no Occasion to be very explicit in this Chapter, as the different Resolutions in regard to Evidence, will appear more fully than they can be explained here under the Head of Evidence in the Book of Notes, relating to Elections 112 for upon those Questions the Evidence has been more tortured than any other Matter whatsoever.—It may be sufficient to observe that no Petitioner can be admitted as Evidence, nor can any Affidavit be admitted; for, [ " ] in the Parliament 21 Jac. Upon a Report made from the Committee of Privileges and Elections, praying the Direction of the House, whether Affidavits might be made use of at that Committee, these Reasons being insisted on that Affidavits should not be admitted ["] 1st. Because it makes the Parliament Law without the Chancery. [ " ] 2dly It intitleth the Chancery to judge of Returns. ["] 3

INDEX

IOI

Lowndes, William, 63, n 89 Lowther, Sir James, xvii Lumley, B., Parliamentary Practice on Passing Private Bills through the House of Commons, vii, n 3 Lyttelton (Lyttleton), George, lxix

Mountmorres, Harvey Redmond, 2d Viscount, History of the Principal Transactions of the Irish Parliament, xxxii Murray, William, ist Earl of Mansfield, xvii

Mann, Horace, letters t o : xxxix, n 33. lxv, 33. n 59. 52. n 77 Mann, Theophilus, 37 Manner How Statutes Are Enacted in Parliament by Passing of Bills. See under H A K E W I L L , W I L L I A M Manner of Holding Parliaments in England. See under E L S Y N G E ,

NAMES,

HENRY

Manual of the Practice of Parliament in passing Pttblic and Private Bills (anon.), vii, n 3 Markham, Rev. Dr., presumably William Markham, Archbishop of York, letter to, lxiv Marshall, Henry, 82, n 121 May, Sir Thomas Erskine, Treatise upon the Law, Privileges, Proceedings, and Uiagc of Parliament : vii, lxxx, 5, n 19 Memorials of the Method and Manner of Proceedings in Parliament in Passing Bills. See under SCOBELL, H E N R Y

MESSAGES, from one House to the other. See under LORDS, H O U S E OF Method of Proceeding in order to Obtain a Private Act of Parliament, xi, n 19 M I N O R I T Y , PROTECTION OF, Ixi-lxii Mirabeau, Honoré Gabriel de Riquetti, comte de, x Modus Tenendi Parliamentum : viii, xxxvi, xxxvii, xlii, xliv, liii, lxi, lxxiv ; date of, xxxi, n 4 ; value of, xxx-xxxi, n 2 ; influence on later writers on parliamentary procedure : on Elsynge, xxx-xxxi ; on Hakewill, xxxi ; on Hooker, xxxixxxii ; used by George Petyt, lix Molyneux, Sir More, letter to, lxiv Morpeth, Charles Howard, Viscount, lxxi Morris, W . A., xxxi, n 4 MOTIONS. See also under Q U E S TIONS. That leave be giveni to bring in a private bill, 23 ; that a supply be granted to His Majesty, 60; giving notice of, lxviii-lxx

B I L L S FOR C H A N G I N G .

See

under BILLS NATURALIZATION, under B I L L S

BILLS

FOR.

See

Naylor, Francis, letter to, lxvi Neale, J. E . : xxxvi, n 2 6 ; xlii, n 4 i North, Frederick, Lord, 2d Earl of Guildford: letter to, l x x ; on opposition motions made without notice, lxx North Papers, 84, n 125 Notestein, Wallace: lvii, n 102; 12, n 30 Nowell, Dr. Alexander: refused a seat in the House of Commons, 92 Oglethorpe, General James, 31 Old and A undent Order of Keeping of the Parlement in England. See under HOOKER, J O H N Onslow, Arthur, speaker of the House of Commons: xiii, xv, xvi, lxxvi, n s 8 , 68, 72; letters from, xiii-xiv, xvi, lxiv; his acquaintance with George Grenville, xiv, n 33; his retirement as speaker, xvi; on the protection of the minority, lxi-lxii; relations with Lord Egmont, lxiii-lxiv; his reputation as speaker, lxiv; his opinion of the duty of the speaker, lxivlv; Henry Pelham's comment on him, lxv; Horace Walpole's comments on him, lxv Order and Course of Passing Bills in Parliament. See under Hakewill, William Order and Usage How to KecPe a Parlement in England in These Dates. See under Hooker, John ORDER OF B U S I N E S S AND

TION OF T I M E

in

the

DISTRIBU-

House

of

Commons: lxxiv-lxxix; in the modern House, lxxiv; in the 18th century House, lxxiv-lxxix, 6, n 20; impediments to the rapid movement of business, lxxv-Ixxvi ORDERS OF LEAVE : 5 a n d n 19, 18

I02

INDEX

ORDER OF THE DAY : used to destroy questions. See under QUESTIONS Orders, Proceedings, Punishments, and Privileges of the Commons House of Parliament in England. See under Lambarde, William Original Institution, Jurisdiction, and Pozver of Parliaments: authorship of falsely attributed to Sir Matthew H a l e ; nature o f ; manuscript copies of in the British Museum, lx, n i l l Owen, Edward, letter to, lxxi Oxendon, Sir George, lxix Palgrave, Reginald, lxxix-lxxx Peel, Sir Robert, lxxix Pelham, Heitry: lxix; letter from, Ixv; on the duty of the speaker, lxiv-lxv; comment on Arthur Onslow, lxv Perry, M i c a j a h : lxvi, 82, n 121 Peterborough, Earl of, 94, n 150 PETITIONS. See a l s o u n d e r BILLS, a n d COMMITTEES. I n t h e Liverpool

Tractate: xxii, 28-35; petitions against petitions, 35; petitions containing similar requests, 35; petitions f o r public money to be levied, 30-31 ; f r o m the City of London, 21; where the Crown is concerned in interest, 30, 31-32; in election cases ; presentation of, 21; hearing of counsel on, 79 PETITIONS f o r private bills: required by standing order, 20; contents of, 20; introduction of, 20-21; commitment of, 21; solicitor to be consulted in drafting of, 28; to be short and general, 28-29; to be signed by petitioners, 29; those which must be referred to a committee ; those which need not be referred. 29-30; limitation of time f o r receiving, 32; when time limit is dispensed with, 33-34 PETITIONS against bills: those absolutely against, 34; procedure on, 34; those asking additions or alterations. 34; procedure on, 34-35; time f o r presenting, 35; against money bills, 63; when admissible, 93; against taxes; when received, 93-94 Petyt, George, Lex Parliamentaria: ix, xi, lviii-lx; editions of, lviii,

sources of, lix; contents, lviii-lix; value of, lix-lx Petyt, William, Miscellanea Parliamentaria, lix Pierrepont, M., private secretary of Charles Jenkinson, xi and n 2 i Pitt, William, Earl of Chatham: l x i x ; letter from, xvii; opinion of George Grenville, xvii Plowden's Commentaries, liii Pollard, A. F., Evolution of Parliament, xxxi, n 2 Porritt, Edward and Porritt, Annie G., Unreformed House of Commons-. xviii, xxviii Practical Instructions on the passing of Private Bills through both Houses of Parliament (anon.),vii, n3 PREAMBLES OF BILLS, 9, n 26.

also under BILLS

PREVIOUS QUESTION*. QUESTIONS

PRIVILEGE of

the

See

House

of

See under

Com-

mons, 92; questions f o r ; see un-

der

QUESTIONS

Privileges and Practice of Parliaments in England: viii, li-liii; authorship of, li-lii; editions of, li; manuscript copies of in the British Museum, li, n 7 6 ; general character of, li, lii; contents, lii-liii PROCEDURE OF THE H O U S E OF C O M MONS. See under ACCOUNTS, BILLS, COMMITTEES, e t c .

Ptilteney, William, Earl of lxvi, lxviii Pym, John: lxxix, 84

Bath:

QUESTIONS : n u m b e r of put 011 a pub-

lic bill: xx-xxi, lxvii-lxviii; 011 a private bill, x x i ; methods of destroying questions : lxx-lxxii; in the House; by a nullifying amendment, lxx-lxxi; by the previous question, lxxi; by calling f o r the orders of the day, lxxi-lxxii; by adjournment of the House, lxxii; in a committee of the whole, 3738; previous question: xxvii and n 8 3 ; impropriety of in a committee of the whole, 38; peremptory nature of, 69; order of putting questions when several have been made, 69: whether a member may change his vote, 69; method of

INDEX entering questions in the Journal, 69 ; debate on after proposal of, 70 ; division of complicated questions, 70; questions for adjournment of House and questions of privilege, precedence granted to, 91 QUESTIONS, forms o f , when put by the speaker from the chair: on a public bill : that the bill be brought up, 6 ; that the bill be read f o r the first time, 6; that the bill be read the second time in the future, 6 ; that the bill be committed, 7 ; for a committee of the whole at a future time, 11 ; on amendments to a bill, 15; on engrossing a bill, 16; on reading the bill the third time, 1 7 , 011 amending a bill a f t e r the third reading, 17; on the title of the bill, 18; on sending a bill to the House of Lords, 18; on private bills : on bringing up the petition, 21 ; on reading the petition, 21 ; on referring the petition to a committee, 21 ; on naming the committee, 22; on receiving and reading the report, 23 ; on the motion for leave to bring in the bill, 23; on the committee to prepare the bill, 23 QUESTIONS, form o f , when put by the chairman of a committee : in a committee of the whole on a public bill : on reporting progress, 10; on reporting the bill, 9 ; on leaving the chair, 9 and 10 ; in a select committee on a private bill : on the preamble of the bill, 47; on the clauses of the bill, 47-48; on adding clauses, 48; on reporting the bill, 48 ; on leaving the chair, 48 ; in a select committee on a petition : on reporting the petition, 46; on leaving the chair, 46 Record Commission, select committee on, 1836, lxxii Redlich, Josef, Procedure of the House of Commons : x, n 16, lxi, lxii, lxxiv-lxxv, 61, n87 Réglemens observes dans la Chambre des Communes pour débattre les maticres et pour voter. See under Romilly, Samuel R E L A T I O N S OF H O U S E OF W I T H H O U S E OF LORDS. LORDS

COMMONS See under

R e l f , Frances H., 12, i»30 Remembrances of Some Methods, Orders and Proceedings of the House of Lords. See under Scobell, Henry RESOLUTIONS

OF

THE

HOUSE

OF

COMMONS: once made, not to be questioned in the same session, 75 ; forms of, in the House : for a committee of the whole on a bill, 50; for a committee of the whole to consider of the supply granted to His Majesty, 60; for a committee of the whole to consider a special message from the king, 64; in a committee of the whole : that a supply be granted to His Majesty, 60 Ribble River, bill for bridge over, 49 and n 74 Richardson, H . G., xlviii, n 61 Richardson, Thomas, speaker of the House of Commons, li : possible author of Privileges and Practice of Parliaments in England, li-lii RIDERS. See also under CLAUSES: 17; offered at third reading of a bill, 71 Romilly, Sir Samuel : Réglemens observés dans la Chambre de Communes pour débattre les matières et pour voter : ix-x, xi, x i x , x x i x , Ixviii, l x x , 38, n 6 4 ; purpose of, ix-x ; translation of into French, x ; contents, x ; on methods of destroying a question, l x x ; on the previous question, 38, nÓ4 Royal Marriage Bill, 1772, lxxii Rules and Customs Which by Long and Constant Practice Have Obtained the Name of Orders of the House. See under Scobell, Henry Rules for the Guidance of Members of Parliament in the Management of Select Committees, and the Preparation of Reports, lxxiilxxiii Rushworth, John, Historical Collections, lix Sarum, Earl of, 94, n 150 Sayles, George, xlviii, n 6 i Schotover, manor, bill f o r purchase of. xii, 32 Schutz, Augustus, 32 Scobeü, Henry, clerk of the parliaments, liii : his tractate, Memorials

INDEX

I04

of the Method and Manner of Proceedings in Parliament in Passing Bills: viii-ix, xviii, xxiii, xxvii, x x x , liii-lviii, lxii, lxvii, lxviii, 20, 1 1 4 1 ; used by George Petyt, l i x ; cited in Original institution. Jurisdiction and Power of Parliaments, lx, n 1 1 1 ; cited m the Liverpool Tractate, 38-40; 44-45; Si"52. 55. 57; 67-70; 7 5 7 7 ; editions of, liii; contents of, liv-lvii; speaker, liv; rules of debate, liv; standing committees, liv-lv; committees of the whole, lv-lvi; passing of bills, lvilvii; commitment of bills, lvi; amendment of bills, lvi-lvii; value of, lvii-lviii; compared with Elsynge's, lvHi SERGEANT

OF T H E H O U S E OF

COM-

MONS: duties of described by Hooker, x x x i v ; in the Liverpool Tractate, 56 Seymour, S i r Edward, 84 and n 125 Seymour, Francis, 2d Marquis of Hertford, lxix Shaw, W. A., Calendar of Treasury Books, 61, n 87 Smith, S i r Thomas, De República Anglorum: viii, xxxvii, xxxviii, x x x i x , xlvi, lxi, l x v i ; used by Petyt, l i x ; cited in Arcana Parliamentaria, liii, n 8 1 ; date of composition, x x x i v ; editions of, x x x i v ; description of Commons procedure in, x x x i v - x x x v i ; election and presentation of the speaker, x x x i v x x x v ; his petitions, x x x v ; rules of debate, x x x v ; passing of bills, x x x v - x x x v i ; commitment of bills, x x x v i ; divisions, x x x v i ; compared with Hooker's, x x x v and x x x v i ; compared with Lambarde's, x x x v i i SOLICITORS : as members of committees, 22, n 44; their position as expert advisers in drafting bills and petitions, xxii, xliii, 24, 28 Solicitor's Instructor in Parliament. See under Ellis, Charles Thomas SPEAKER MONS.

OF T H E

HOUSE

OF

COM-

See also under Q U E S T I O N S . passim, 5-70 in the Liverpool Tractate ; to write in amendments to bills made in the House, 1 5 - 1 6 ; extra-official and partisan activities o f , lxii-lxvi; described by Hooker, x x x i i i ; by Smith, x x x i v - x x x v ; by

Lambarde, xxxvii-xxxviii ; by Elsynge, xlviii-l ; by Scobell, liv Staffordshire, petition from, xvii, 44 Stamford, Earl of, 55 Stanley, Lord, 94 State of the Matter with Relation to the Amending of Money Bills Sent from the Commons to the Lords (British Museum Add. MS. 38455), xi and n 2 0 Starkey, Ralph, li : possible author of Prnnlegcs and Practice of Parliaments in England, li-lii Staverford ( Northamptonshire), petition from, 35, i»6i Strange, Lord, 49, n 74 Strickland, Sir William, lxix S U P P L Y , B I L L S OF. See also under ACCOUNTS,

BILLS,

and PETITIONS.

COMMITTEES,

Development of

procedure on, lxvii ; as described by Lambarde, xl ; by Hakewill, xliii-xliv; in the Liverpool Tractate, xxv-xxvM and 59-66 ; preliminaries, 59-63; speech from the throne, 60; address in reply, 60; consideration of the speech in the House, 60; motion to grant a supply, 60; reference of the motioni to a committee of the whole, 60; resolution that a supply be granted, 60; address for accounts and estimates, 60-61 ; consideration of the supply in a committee of the whole for supply, 61 ; resolution for a committee of the whole for ways and means, 61 ; voting of a tax in the committee of ways and means, 63 ; report of its resolution, 63 ; ordering of a bill laying the tax, 63 ; the committee for drafting the bill, 63; appropriation of votes of the committee of wavs and means, 64-66

Tonson's Parliamentary History, 92 Town she nd, Heywood, Historical Collections, lix Treatise upon the Law, Privileges, Proceedings, and Usage of Parliament. See under May, Sir Thomas Erskine Trevor, Sir John, li Trevor, Robert, letter to, lxvi Trevor, Robert Hampden, 4th Baron, letter to, xiv, n 33

INDEX Tyrwhit, Thomas: his edition of Elsynge's treatise, xlvii-xlviii; his comment on the Modus Tenendi Parliamcntum, x x x , n 2 Walpole, Sir Edward, 32; letter to, lxx Walpole, Horace, 4th Earl of Orford: letters from, x x x i x , lxv, lxix, 33, n 59, 52, n 77; Memoirs of the Reign of George II, l x v ; Memoirs of the Reign of George III, xvii; his opinion of George Grenville, xvii; his comments on Arthur Onslow, lxv Walpole, Horatio, 1st Baron Walpole of Wolterton: lxviii, lxix, 80, n 115, 81, n 116, and n n 8 , 82, 83; letter from, lxvi

Walpole, Sir Robert, 1st Earl of Orford: lxiii, lxix, 58, n84, 63, » 9 0 ; letter from, lxx Webb, Philip Carteret: letter from, xiv-xv; possible author of the Liverpool Tractate, x v ; his writings on the Wilkes' case, xv, n 36 Weston, Edward, letter to, lxxi White, Winifred P., xxxi, n 3 Whitehaven, petition from, xii, 32 Wilkes, John, xv Wilmington, Lord, lxiii-lxiv Wolsey, Cardinal Thomas, xlix Yonge, Sir William, secretary of war, 82, n 120 Yorke, John, letter from, lxxi