The Governments of Europe

[Footnote 186: See p. 314.]

[Footnote 187: Parliament, 113-114.]

[Footnote 188: Ilbert, Parliament, 119. On the Commons' control of the Government see Lowell, Government of England, I., Chap. 17; Moran, English Government, Chap. 8; Low, The Governance of England, Chap. 5; Todd, Parliamentary Government, II., 164-185.]

*136. Judicial Powers: Impeachment and Attainder.*--The functions of a judicial character which, in the capacity of the High Court of Parliament, the two chambers fulfill are of secondary importance and do not call for extended discussion. So far as the law of the subject goes, they comprise (1) the powers possessed by each of the houses to deal with the constitution and conduct of its own membership; (2) the power of the Lords to try their own members when charged with treason or felony; (3) the jurisdiction of the Lords in the capacity of a final court of appeal for the United Kingdom; (4) the power of the two houses, acting jointly, to carry through impeachments of public officers and to enact bills of attainder; and (5) the effecting of the removal of certain kinds of public officers through the agency of an address from both houses to the crown. In days when the king and the ministers were disposed to defy the law and to evade responsibility the power of impeachment by the Commons at the bar of the Lords, originated as early as the reign of Edward III., was of the utmost importance. When, however, the House of Commons progressed in competence to the point where it was able to review and control the conduct of ministers with such thoroughness and continuity as to make it impossible for them to conduct business without a parliamentary majority, impeachment lost its value and fell into disuse. The last occasion upon which impeachment proceedings were instituted was in 1805.[189] Procedure by bill of attainder, arising from the legislative omnipotence of Parliament and following the ordinary course of legislation, is also obsolete.

[Footnote 189: Anson, Law and Custom of the Constitution, I., 362-366; Moran, English Government, 327-332.]

*137. The House of Lords as a Court.*--Most important among surviving parliamentary functions of a judicial character is the exercise of appellate jurisdiction by the House of Lords. The judicial authority of the Lords is an anomaly, although as it is actually exercised it does not seriously contravene the principle which forbids the bringing together of judicial and legislative powers in the same hands. Historically, it arose from a confusion of the functions of two groups of men which were long largely identical in personnel, i.e., the Great Council, on the one hand, and the Lords of Parliament, on (p. 131) the other. In the reign of Henry IV. the Commons asked specifically to be relieved from judicial business, and the parliamentary jurisdiction which survived was recognized thereafter to be vested in the House of Lords alone. From an early date this jurisdiction was, as it is to-day, both original and appellate. As a court of first instance the chamber acquired the right to try peers charged with treason and felony and, on the accusation of the House of Commons, to bring to justice, through the process of impeachment, offenders who were not of the peerage. Nowadays these powers are of no practical consequence.

The position of the Lords as an appellate tribunal, however, is still a fundamental fact in the judicial system. Starting with control, by way of appeal, over the courts of common law in England, the chamber acquired in time a similar control over the English courts of chancery, and eventually over the courts of both Scotland and Ireland. Its jurisdiction has stopped short only of the ecclesiastical courts, and of the courts of the outlying portions of the Empire, appeals from which are heard in the Judicial Committee of the Privy Council. By the Supreme Court of Judicature Act of 1873, whereby the higher tribunals of the realm were remodelled, the appellate jurisdiction of the Lords was abolished outright; but in 1876, before the measure had been put in operation the plan was modified and there was passed the Appellate Jurisdiction Act whereby the appellate functions of the Lords were restored and provision was made for the creation at first of two, later of three, and eventually of four, salaried life peers, to be selected from men of eminence in the law, and to be known as Lords of Appeal in Ordinary. In so far as it is controlled by statute at all, the appellate jurisdiction of the chamber is regulated to-day by this measure. Nominally, judicial business is transacted by the House as a whole, and every member has a right not only to be present but to participate in the rendering of decisions. Actually, such business is transacted by a little group of law lords (the attendance of but three being necessary) under the presidency of the Lord Chancellor, and the unwritten rule which prohibits the presence at judicial sessions of any persons save the law lords is quite as strictly observed as is any one of a score of other important conventions of the constitution.[190] Under the act of 1876 it is within the competence of the law lords to sit and to pronounce judgments in the name of the House at any time, regardless of whether Parliament is in session.[191] A sitting of the Court is, technically, a sitting of the Lords, and all actions (p. 132) taken are entered in the Journal of the House as a part of its proceedings.[192]

[Footnote 190: Lowell, Government of England, II., 465.]

[Footnote 191: When Parliament is in session the sittings of the law lords are held, as a rule, prior to the beginning of the regular sitting at 4.30 p.m.]

[Footnote 192: The judicial functions of Parliament are described at some length in Anson, Law and Custom of the Constitution, I., Chap. 9. The principal work on the subject is C. H. McIlwain, The High Court of Parliament and its Supremacy (New Haven, 1910). On the House of Lords as a court see MacDonaugh, The Book of Parliament, 300-309; A. T. Carter, History of English Legal Institutions (London, 1902), 96-109; and W. S. Holdsworth, History of English Law, I., 170-193.]

*138. Control of Legislation and Finance.*--The principal and altogether most indispensable ends which Parliament to-day subserves are those of legislation and of financial control. Many of the measures, important and unimportant, under which the affairs of the realm are regulated are but temporary and require annual re-enactment, and the volume of fresh legislation which is unceasingly demanded is all but limitless. Similarly, to employ the words of Anson, the revenues which accrue to the crown and can be dealt with independently of Parliament would hardly carry on the business of government for a day,[193] and not only does Parliament (in effect, the House of Commons) by its appropriation acts make possible the legal expenditure of virtually all public moneys; it provides, by its measures of taxation, the funds from which appropriations are made.

[Footnote 193: Law and Custom of the Constitution, I., 52.]

VI. GENERAL ASPECTS OF PARLIAMENTARY PROCEDURE

By reason of the supreme importance which attaches to the legislative and fiscal activities of the two chambers it is necessary that attention be directed at this point to the character of the procedure which these activities involve. For the purpose in hand it will be sufficient to speak of only the more important principles of procedure in relation to the three fundamental phases of legislative work: (1) the enactment of non-financial public bills, (2) the adoption of money bills, and (3) the passage of private bills. And within at least the first two of these domains the preponderance of the Commons is such that the procedure of that chamber alone need be described. The procedure of the two chambers upon bills is substantially the same, although, as is illustrated by the fact that amendments to bills may be introduced in the Lords at any stage but in the Commons at only stipulated stages, the methods of conducting business in the upper house are more elastic than those prevailing in the lower.

*139. Fundamental Principles.*--The legislative omnipotence of Parliament has been emphasized sufficiently.[194] Any sort of measure upon any conceivable subject may be introduced and, if a sufficient number of the members are so minded, enacted into law. No measure (p. 133) may become law until it has been submitted for the consideration of both houses, but under the terms of the Parliament Act of 1911 it has been rendered easy for money bills, and not impossible for bills of other sorts, to be made law without the assent of the House of Lords. In the ordinary course of things, a measure is introduced in one house, put through three readings, sent to the other house, put there through the same routine, deposited with the House of Lords to await the royal assent,[195] and, after having been assented to as a matter of course, proclaimed as law. Bills, as a rule, may be introduced in either house, by the Government or by a private member. It is important to observe, however, in the first place, that certain classes of measures must originate in one or the other of the houses, e.g., money bills in the Commons and bills of attainder and other judicial bills in the Lords, and, in the second place, that with the growth of the leadership of the Government in legislation the importance, if not the number, of privately introduced bills has tended steadily to be decreased, and likewise the chances of their enactment.

[Footnote 194: See p. 45.]

[Footnote 195: Except that money bills remain in the custody of the Commons.]

*140. Public Bills: First and Second Readings.*--The steps through which a public bill, whether introduced by the Government or by a private member, must pass in the Commons are still numerous, but by the reduction of some of them to sheer formalities which involve neither debate nor vote the actual legislative process has been made much more expeditious than once it was. The necessary stages in the enactment of a bill in either house are, as a rule, five: first reading, second reading, consideration by committee, report from committee, and third reading. Formerly the introduction of a measure involved almost invariably a speech explaining at length the nature of the proposal, followed by a debate and a vote, sometimes consuming, in all, several sittings. Nowadays only very important Government bills are introduced in this manner. In the case of all other bills the first reading has become a mere formality, involving nothing more than a motion on the part of a member, official or private, for permission to bring in a measure and the giving of leave by the House, almost invariably without discussion. Upon all measures save the most important Government projects, opportunity for debate is first afforded at the second reading, although the discussion at this stage must relate to general principles rather than to details. By the adoption of a motion that the bill be read a second time "this day six months" (or at some other date falling beyond the anticipated limits of the session) a measure may at this point be killed.