Sivut kuvina
PDF
ePub

at the time of the adjournment made, and may be proceeded on without any freth commencement.

A prorogation is the continuance of the parliament from one feffion to another, as an adjournment is a continuation of the feffion from day to day. This is done by the royal authority, expreffed either by the lord chancellor in his Majefty's prefence, or by commission from the crown, or frequently by proclamation. Both houses are neceffarily prorogued at the fame time; it not being a prorogation of the house of lords or commons, but of the parliament. The feffion is never understood to be at an end, until a prorogation: Though, unless fome act be paffed, or fome judgment given in parliament, it is in truth no feffion at all e. And formerly the ufage was, for the king to give the royal affent to all fuch bills as he approved, at the end of every feffion, and then to prorogue the parliament, though fometimes only for a day or two f: After which all bufi. nefs then depending in the houses was to be begun again. Which custom obtained fo ftrongly, that it once became a question 8, whether giving the royal affent to a fingle bill did not of courfe put an end to the feflion. And, though it was then refolved in the negative, yet the notion was fo deeply rooted, that the ftatute 1 Car. I. c. 7. was paffed to declare, that the king's affent to that and fome other acts fhould not put an end to the feffion; and, even fo late as the reign of Charles II. we find a provifo frequently tacked to a bill h, that his majefty's affent thereto should not determine the feffion of parliament. But it now feems to be allowed, that a prorogation muft be exprefsly made, in order to determine the feffion. And, if at the time of an actual rebellion, or imminent danger of invafion, the parliament fhall be feparated by adjournment or prorogation, the king is empowered to call them together by proclamation, with fourteen days notice of the time appointed for their reaffembling.

e 4 Inft. 28. Hale of parl. 38. Hutt. 61.

f Com. Journ. 21 Oct. 1553.

g Ibid. 21 Nov. 1554.

h Stat. 12 Car. II. c. 1. 22 & 23 Car. II, c. 1.

i Stat, 30 Geo. 11. c. 25.

A

A diffolution is the civil death of the parliament; and this may be effected three ways: 1. By the king's will, expreffed either in perfon or by reprefentation. For, as the king has the fole right of convening the parliament, fo also it is a branch of the royal prerogative, that he may (whenever he pleases) prorogue the parliament for a tíme, or put a final period to its existence. If nothing had a right to prorogue or diffolve a parliament but itfelf, it might happen to become perpetual. And this would be extremely dangerous, if at any time it should attempt to encroach upon the executive power: As was fatally experienced by the unfortunate king Charles I.; who, having unadvifedly paffed an act to continue the parliament then in being till fuch time as it fhould please to diffolve itself, at laft fell a facrifice to that inordinate power, which he himself had confented to give them.It is therefore extremely neceffary that the crown should be empowered to regulate the duration of these affemblies, under the limitations which the English constitution has prescribed: So that, on the one hand, they may frequently and regularly come together, for the dispatch of bufinefs, and redrefs of grievances; and may not, on the other, even with the confent of the crown, be continued to an inconvenient or unconftitutional length.

2. A parliament may be diffolved by the demise of the crown. This diffolution formerly happened immediately upon the death of the reigning fovereign: For, he being confidered in law as the head of the parliament, (caput, principium, et finis) that failing, the whole body was held to be extinct. But, the calling a new parliament immediately on the inauguration of the fucceffor being found inconvenient, and dangers being apprehended from having no parliament in being in cafe of a difputed fucceffion, it was enacted, by the Atatutes 7 & 8: W. III. c. 15. and 6 Ann. c. 7. that the parliament in being fhall continue for fix months after the death of any king or queen, unless sooner prorogued or diffolved by the fucceffor: That, if the parliament be, at the time of the king's death, feparated by adjournment or proroga tion, it shall notwithstanding affeinble immediately: And: that if no parliament is then in being, the members of the laft parliament fhall affemble, and be again a parliament.. 3. Lafly,

3. Laftly, a parliament may be diffolved or expire by length of time. For, if either the legislative body were perpetual; or might laft for the life of the prince who convened them, as formerly, and were fo to be supplied by occafionally filling the vacancies with new representatives; in these cafes, if it were once corrupted, the evil would be past all remedy: But when different bodies fucceed each other, if the people fee caufe to disap prove of the prefent, they may rectify its faults in the next. A legiflative affembly alfo, which is fure to be feparated again, (whereby its members will themselves become private men, and subject to the full extent of the laws which they have enacted for others) will think themselves bound, in interest as well as duty, to make only fuch laws as are good. The utmost extent of time that the fame parliament was allowed to fit, by the ftatute 6 W. & M. c. 2. was three years; after the expiration of which, reckoning from the return of the first fummons, the parliament was to have no longer continuance. by the statute 1 Geo. I. ft. 2. c. 38. (in order, profeffedly, to prevent the great and continued expenfes of frequent elections, and the violent heats and animofities confequent thereupon, and for the peace and fecurity of the government, then just recovering from the late rebellion) this term was prolonged to feven years; and what alone is an inftance of the vaft authority of parliament, the very fame house, that was chofen for three years, enacted its own continuance for feven. So that, as our constitution now ftands, the parliament must expire, or die a natural death, at the end of every seventh year; if not fooner diffolved by the royal prerogative.

But

CHAPTER

CHAPTER THE THIRD.

OF THE KING, AND HIS TITLE.

THE fupreme executive power of thefe

kingdoms is vefted by our laws in a fingle perfon, the king or queen: For it matters not to which fex the crown defcends; but the perfon entitled to it, whether male or female, is immediately invested with all the enfigns, rights, and prerogatives of fovereign power; as is declared by ftatute 1 Mar, ft. 3. C. 1.

In difcourfing of the royal rights and authority, I fhall confider the king under fix diftin&t views: 1. With regard to his title. 2. His royal family. 3. His councils. 4. His duties. 5. His prerogative. And first, with regard to his title.

6. His revenue.

The executive power of the English nation being vefted in a fingle perfon, by the general confent of the people, the evidence of which general confent is long. and immemorial usage, it became neceffary to the freedom and peace of the ftate, that a rule fhould be laid down, uniform, univerfal, and permanent; in order to mark out with precifion, who is that single perfon, to whom are committed (in fubfervience to the law of the land) the care and protection of the community; and to whom, in return, the duty and allegiance of every individual are due. It is of the highest importance to the publick tranquillity, and to the confciences of

private

private men, that this rule fhould be clear and indifputable And our constitution has not left us in the dark upon this material occafion. It will therefore be the endeavour of this chapter to trace out the constitutional doctrine of the royal fucceffion, with that freedom and regard to truth, yet mixed with that reverence and refpect which the principles of liberty and the dignity of the fubject require.

The grand fundamental maxim upon which the jus coronae, or right of fucceffion to the throne of thefe kingdoms, depends, I take to be this: "That the Crown " is, by common law and constitutional custom, heredi"tary; and this in a manner peculiar to itfelf: But "that the right of inheritance may from time to time be "changed or limited by act of parliament; under which "limitations the crown ftill continues hereditary." And this propofition it will be the bufinefs of this chapter to prove, in all its branches; firft, that the crown is hereditary; fecondly, that it is hereditary in a manner peculiar to itfelf; thirdly, that this inheritance is fubject to limitation by parliament; laftly, that when it is fo limited, it is hereditary in the new proprie

tor.

1. First, it is in general hereditary, or defcendible to the next heir, on the death or demife of the laft proprietor. All regal governments must be either hereditary or elective: And, as I believe there is no instance wherein the crown of England has ever been afferted to be elective, except by the regicides at the infamous and unparalleled trial of King Charles I, it muft of confequence be hereditary. Yet while I affert an hereditary, I by no means intend a jure divino title to the throne. Such a title may be allowed to have subsisted under the theocratick establishments of the children of Ifrael in Palestine: But it never yet subsisted in any other country, fave only, fo far as kingdoms, like other human fabricks, are fubject to the general and ordinary difpenfations of providence. Nor indeed have a jure divino and an hereditary right any neceffary connexion with each other, as fome have very weakly imagined. The titles of David and Jehu were equally jure divino as thofe of either

Solomon

« EdellinenJatka »