CHAPTER II.

OF THE PARLIAMENT.

WE are next to treat of the rights and duties of persons, as they are members of society, and stand in various relations to each other. These relations are either public or private: and we will first consider those that are public.

The most universal public relation, by which men are connected together, is that of government; namely, as governors and governed; or, in other words, as magistrates and people. Of magistrates, some also are supreme, in whom the sovereign power of the state resides; others are subordinate, deriving all their authority from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary sphere.

In all tyrannical governments, the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he, as legislator, thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power as may tend to the subversion of its own independence, and therewith of the liberty of the subject. With us, therefore, in England, this supreme power is divided into *two branches; the one legislative, to wit, the parliament, consisting of [*147] king, lords, and commons; the other executive, consisting of the king alone. It will be the business of this chapter to consider the British parliament, in which the legislative power, and (of course) the supreme and absolute authortiy of the state, is vested by our constitution.

The original or first institution of parliament is one of those matters which lies so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. (1) The word parliament itself, (parlement or colloquium, as some of our historians translate it,) is comparatively of modern date; derived from the French, and signifying an assembly that met and conferred together. It was first applied to general assemblies of the states under Louis VII, in France, about the middle of the twelfth century. (a) But it is certain that, long before the introduction of the Norman language into England, all matters of importance were debated and settled in the great councils of the realm: a practice which seems to have been universal among the northern nations, particularly the Germans, (b) and carried by them into all the countries of Europe, which they overran at the dissolution of the Roman empire: relics of which constitution, under various modifications and changes, are still to be met with in the diets of Poland, Germany, and Sweden, and the assembly of the estates in France; (c) for what is there now called the parliament is only the supreme court of justice, consisting of the peers, certain dignified ecclesiastics, and judges, which neither is in practice, nor is supposed to be in theory, a general council of the realm.

With us in England this general council hath been held immemorially under the several names of michel-synoth or great council, michel-gemote, or great meet[ *148 ] ing, and more frequently wittena-gemote, or the meeting of wise men. It was also styled in Latin, commune concilium regni, magnum concilium

(a) Mod. Un. Hist. xxiii. 307. The first mention of it in our statute law is in the preamble to the statute of Westm. 1. 3 Edw. I. A. D. 1272.

(b) De minoribus rebus principes consultant, de majoribus omnes. Tac. de mor. Germ. c. 11. (c) These were assembled for the last time, A. D. 1561 (see Whitelocke, of Parl. c. 72.) or according to Robertson. A. D. 1614. (Hist. Cha. V. i, 369.)

(1) [The word parliamentum was not used in England till the reign of Henry III. Prynne on 4 Inst. 2.] The gradual development of representative institutions in England is shown in Hallam (Const. Hist.) and Todd (Parl. Gov.) and is discussed more or less in the popular histories.

regis, curia magna, conventus magnatum vel procerum assisa, generalis, and sometimes communitas regni Angliæ. (d) We have instances of its meeting to order the affairs of the kingdom, to make new laws, and to mend the old, or, as Fleta (e) expresses it," novis injuriis emersis nova constituere remedia," so early as the reign of Ina, king of the West Saxons, Offa, king of the Mercians, and Ethelbert, king of Kent, in the several realms of the heptarchy. And, after their union, the Mirror (f) informs us, that King Alfred ordained for a perpetual usage, that these councils should meet twice in the year, or oftener, if need be, to treat of the government of God's people; how they should keep themselves from sin, should live in quiet, and should receive right. Our succeeding Saxon and Danish monarchs held frequent councils of this sort, as appears from their respective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wise men, as "hæc sunt instituta, quæ Edgarus rex consilio sapientum suorum instituit;" or to be enacted by those sages with the advice of the king, as, "hæc sunt judicia, quæ sapientes consilio regis Ethelstani instituerunt;" or lastly, to be enacted by them both together, as, "hæc sunt institutiones, quas rex Edmundus et episcopi sui cum sapientibus suis instituerunt."

There is also no doubt but these great councils were occasionally held under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry the Second, speaking of the particular amount of an amercement in the sheriff's court, says, it had never been yet ascertained by the general assize, or assembly, but was left to the custom of particular counties. (g) Here the general assize is spoken of as a meeting well known, and its statutes or decisions are put in *a manifest contradistinction to custom, or the common law. And in [*149] Edward the Third's time an act of parliament, made in the reign of William the Conqueror, was pleaded in the case of the abbey of St. Edmund'sbury, and judicially allowed by the court. (h)

!

Hence it indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. How those parliaments were constituted and composed, is another question, which has been matter of great dispute among our learned antiquaries; and, particularly, whether the commons were summoned at all; or, if summoned, at what period they began to form a distinct assembly. But it is not my intention here to enter into controversies of this sort. I hold it sufficient that it is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of King John, A. D. 1215, in the great charter granted by that prince; wherein he promises to summon all archbishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with forty days' notice to assess aids and scutages when necessary. And this constitution has subsisted in fact at least from the year 1266, 49 Hen. III: there being still extant writs of that date, to summon knights, citizens, and burgesses, to parliament. I proceed therefore to inquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of at least five hundred years. And in the prosecution of this inquiry, I shall consider, first, the manner and time of its assembling: secondly, its constituent parts: thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and distinctly taken: sixthly, the methods of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament's adjournment, prorogation and dissolution.

*I. As to the manner and time of assembling. The parliament is regu- [*150]

larly to be summoned by the king's writ or letter, issued out of chancery by advice of the privy council, at least forty days before it begins to sit. (2) It

(d) Glanvil, l. 13. c. 32. l. 9. c. 10.-Pref. 9 Rep.-2 Inst. 526. (e) L. 2. c. 2. (f) C. 1. § 3. (g) Quanta esse debeat per nullam assısam generalem determinatum est, sed pro consuetudine singulorum comitatum debetur. 1. 9. c. 10. (h) Year book, 21 Edw. III, 60.

(2) The period was at one time fifty days, but is now reduced to thirty-five. Stat. 15 Vic. c. 23.

is a branch of the royal prerogative, that no parliament can be convened by its own authority, or by the authority of any, except the king alone. And this prerogative is founded upon very good reason. For, supposing it had a right to meet spontaneously, without being called together, it is impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting; and if half of the members met, and half absented themselves, who shall determine which is really the legislative body, the part assembled, or that which stays away? It is therefore necessary that the parliament should be called together at a determinate time and place: and highly becoming its dignity and independence, that it should be called together by none but one of its own constituent parts: and, of the three constituent parts, this office can only appertain to the king; as he is a single person, whose will may be uniform and steady; the first person in the nation, being superior to both houses in dignity; and the only branch of the legisla ture that has a separate existence, and is capable of performing any act at a time when no parliament is in being. (i) Nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and is to sit again for six months, unless dissolved by the successor: for this revived parliament must have been originally summoned by the crown.

*It is true, that by a statute, 16 Car. I, c. 1, it was enacted, that if

[*151] the king neglected to call a parliament for three years, the peers might assemble and issue out writs for choosing one; and, in case of neglect of the peers, the constituents might meet and elect one themselves. But this, if ever put in practice, would have been liable to all the inconveniences I have just now stated; and the act itself was esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed by statute 16 Car. II, c. 1. From thence therefore no precedent can be drawn.

It is also true, that the convention-parliament, which restored King Charles the Second, met above a month before his return; the lords by their own authority, and the commons, in pursuance of writs issued in the name of the keepers of the liberty of England, by authority of parliament: and that the said parliament sat till the twenty-ninth of December, full seven months after the restoration; and enacted many laws, several of which are till in force. But this was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have settled in peace. And the first thing done after the king's return was to pass an act declaring this to be a good parliament, notwithstanding the defect of the king's writs. (k) So that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to waive the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Besides we should also remember, that it was at that time a great doubt among the lawyers, (7) whether even this healing act made it a good parliament; and held by very many in the negative: though it seems to have been too nice a scruple. And yet, out of abundant caution, it was thought necessary to confirm its acts in the next parliament, by statute 13 Car. II, c. 7, and c. 14.

*It is likewise true, that at the time of the revolution, A. D. 1688, the [*152] lords and commons by their own authority, and upon the summons of the prince of Orange, (afterwards King William,) met in a convention, and therein disposed of the crown and kingdom. But it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon a full conviction that King James the Second had abdicated the (i) By motives somewhat similar to these the republic of Venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chosen by the several districts of the Venetian territory, and constituted a doge in their stead; in whom the executive power of the state at present resides. For which their historians have assigned these, as the principal reasons. 1. The propriety of having the executive power a part of the legislative, or senate; to which the former annual magistrates were not admitted. 2. The necessity of having a single person to convoke the great council when separated. (Mod. Un. Hist. xxvii, 15.) (k) Stat. 12 Čar, II, c. 1. (2) 1 Sid. 1.

government and that the throne was thereby vacant: which supposition of the individual members was confirmed by their concurrent resolution, when they actually came together. And in such a case as the palpable vacancy of a throne it follows ex necessitate rei, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. For, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail and become extinct, which would indisputably vacate the throne: in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government; otherwise there must be no government at all. And upon this and no other principle did the convention in 1688 assemble. The vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. They did not assemble without writ, and then make the throne vacant; but the throne being previously vacant by the king's abdication, they assembled without writ, as they must do if they assembled at all. Had the throne been full, their meeting would not have been regular; but as it was really empty, such meeting became absolutely necessary. And accordingly it is declared by statute 1 W. and M. St. 1, c. 1, that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. So that notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which by the way, induced a revolution in the government,) the rule laid down is in general certain, that the king, only, can convoke a parliament.

*And this by the ancient statutes of the realm (m) he is bound to do [*153] every year, or oftner, if need be. Not that he is, or ever was, obliged by these statutes to call a new parliament every year; but only to permit a parliament to sit annually for the redress of grievances, and dispatch of business, if need be. (3) These last words are so loose and vague, that such of our monarchs as were inclined to govern without parliaments, neglected the convoking them sometimes for a very considerable period, under pretence that there was no need of them. But, to remedy this, by the statute 16 Car. II, c. 1, it is enacted, that the sitting and holding of parliaments shall not be intermitted above three years at the most. And by the statute 1 W. and M. St 2, c. 2, it is declared to be one of the rights of the people, that for redress of all grievances, and for the amending, strengthening and preserving the laws, parliaments ought to be held frequently. And this indefinite frequency is again reduced to a certainty by statute 6 W. and M. c. 2, which enacts, as the statute of Charles the Second had done before, that a new parliament shall be called within three years (n) after the determination of the former. (4)

(m) 4 Edw. III, c. 14. 36 Edw. III, c. 10.

(n) This is the same period, that is allowed in Sweden for intermitting their general diets, or parliamentary assemblies. Mod. Un. Hist. xxxiii, 15.

(3) [Mr. Granville Sharp, in a treatise published some years ago, argued ingeniously against this construction of the 4 Edw. III, and maintained that the words if need be, referred only to the preceding word, oftener. So that the true signification was, that a parliament should be held once every year at all events; and if there should be any need to hold it oftener, then more than once. See his Declaration, &c., p., 166. The cotemporary records of parliament, in some of which it is so expressed without any ambiguity, prove beyond all controversy that this is the true construction.]

In the following reigns the longest durations and intermissions were nearly as follows:

(4) As the supplies and the mutiny act are voted for a year only, an annual session of parliament is a necessity.

The Congress of the United States is required by the constitution to assemble at least once in every year: Art. 1, § 4; and the president may besides, on extraordinary occasions, convene both houses or either of them. Art. 2, § 3.

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II. The constituent parts of a parliament are the next objects of our inquiry. And these are the king's majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal, (who sit, together with the king, in one house) and the commons, who sit by themselves in another. And the king, and these three estates, together, form the great corporation or body politic of the kingdom, (0) of which the king is said to be caput principium et finis. For upon their coming together the king meets them either in person or by representation; without which there can be no beginning of a parliament; (p) and he also has alone the power of dissolving them.

[*154] *It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislative. The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present would in the end produce the same effects, by causing that union against which it seems to provide. The legislative would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power. Thus the long parliament of Charles the First, while it acted in a constitutional manner, with the royal concurrence, redressed many heavy grievances, and established many salutary laws. But when the two houses assumed the power of legislation, in exclusion of the royal authority, they soon after assumed likewise the reins of administration; and, in consequence of these united powers overturned both church and state, and established a worse oppression than any they pretended to remedy. To hinder therefore any such encroachments, the king is himself a part of the parliament: and, as this is the reason of his being so, very properly, therefore the share of legislation, which the constitution has placed in the crown, consists in the power of rejecting rather than resolving; this being sufficient to answer the end proposed. For we may apply to the royal negative, in this instance, what Cicero observes of the negative of the Roman tribunes, that the crown has not any power of doing wrong, but merely of preventing wrong from being done. (q) The crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses. The legislative therefore cannot abridge the executive power of any rights which it now has by law, without its own consent; since the law must perpetually stand as it now does, unless all the powers will agree to alter it. And herein indeed consists the true excellence of the English government, that all the parts of it form a mutual *check upon each other. In the legis

[*155] lature, the people are a check upon the nobility, and the nobility a check upon the people; by the mutual privilege of rejecting what the other has resolved: while the king is a check upon both, which preserves the executive power from encroachments. And this very executive power is again checked and kept within due bounds by the two houses, through the privilege they have of inquiring into, impeaching and punishing the conduct (not indeed of the king, (r) which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors. Thus every branch of our civil polity supports and is supported, regulates and is regulated by the rest: for the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits; while the whole is prevented from separation and artificially connected together by the mixed nature of the crown, which is a part of the legislature, and the sole executive magistrate. Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by itself, would have done; but at the same time in a direction partaking of each,

(0) 4 Inst. 1. 2. Stat. Eliz. c. 3. Hale, of Parl. 1.

(p) 4 Inst. 6,

(q) Sulla-tribunis plebis şua lege injuriæ faciendæ potestatem ademit, auxilii ferendi reliquit. De LL. 3. 9. (r) Stat. 12 Car. II, c. 30.