of the king, as, " haec funt judicia, quae fapientes confilio regis "Ethelstani inftituerunt;" or laftly, to be enacted by them both together, as, "haec funt inftitutiones, quas rex Edmundus ❝et epifcopi fui cum fapientibus fuis inftituerunt.” THERE is also no doubt but these great councils were occafionally held under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry the second, fpeaking of the particular amount of an amercement in the fheriff's court, fays, it had never been yet ascertained by the general affife, or affembly, but was left to the custom of particular counties. Here the general affife is spoken of as a meeting well known, and it's statutes or decisions are put in [149] a manifest contradistinction to custom, or the common law. And in Edward the third's time an act of parliament, made in the reign of William the conqueror, was pleaded in the cafe of the abbey of St. Edmund's-bury, and judicially allowed by the court. h HENCE, it indifputably appears, that parliaments, or general councils, are coeval with the kingdom itself. How those parliaments were constituted and compofed, is another question, which has been matter of great difpute 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 affembly. But it is not my intention here to enter into controverfies of this fort. I hold it sufficient that it is generally agreed, that in the main the conftitution of parliament, as it now ftands, was marked out fo 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 fheriff and bailiffs; to meet * Quanta esse debeat per nullum affifam generalem determinatum eft, fed pro confuetudine fingulorum comitatuum debetur, l. 9. c. 10. h Year-book, 21 Edw. III. 60. at at a certain place, with forty days notice, to assess aids and fcutages when neceffary. And this constitution has fubfifted in fact at leaft from the year 1266, 49 Hen. III. there being still extant writs of that date, to fummon knights, citizens, and burgeffes to parliament (2). I proceed therefore to inquire wherein confifts this conftitution 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 confider, first, the manner and time of it's affembling: fe condly, it's constituent parts: thirdly, the laws and customs relating to parliament, confidered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house separately and diftin&tly taken: fixthly, the methods of proceeding, and of making statutes, in both houses: and laftly, the manner of the parliament's adjournment, prorogation, and diffolution. I. As to the manner and time of affembling. The parlia- [150] ment is regularly to be fummoned by the king's writ or letter, iffued out of chancery by advice of the privy council, at least forty days before it begins to fit (3). It is a branch of the royal prerogative, that no parliament can be convened by it's 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 (2) The origin and progrefs of parliaments and our constitution will be difcuffed at large in the supplemental volume. (3) This is a provifion of the magna charta of king John: faciemus fummoneri, c. ad certum diem, fcilicet ad terminum quadraginta dierum ad minus et ad certum locum. (Black. Mag. Ch. Joh. 14.) It is enforced by 7 & 8 W. III. c. 25. which enacts, that there shall be forty days between the teste and the return of the writ of fummons: and this time is by the uniform practice fince the union extended to fifty days. (2 Hatf. 235.) This practice was introduced by the 22d article of the act of union, which required that time between the tefte and the return of the writ of fummons for the first parliament of Great Britain. called [ 151 ] called together, it is impoffible 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 abfented themselves, who shall determine which is really the legislative body, the part affembled, or that which stays away? It is therefore neceffary 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 it's own constituent parts; and, of the three constituent parts, this office can only appertain to the king as he is a fingle person, whofe will may be uniform and steady; the first perfon in the nation, being fuperior to both houses in dignity; and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being'. Nor is it an exception to this rule that, by fome modern ftatutes, on the demife of a king or queen, if there be then no parliament in being. the last parliament revives, and it is to fit again for fix months, unless diffolved by the fucceffor: for this revived parliament must have been originally fummoned by the crown. (4) It is true, that by a statute, 16 Car. I. c. 1. it was enacted, that, if the king neglected to call a parliament for three years, the peers might affemble and iffue out writs for choofing one; and, in cafe of neglect of the peers, the constituents might meet and elect one themselves. But this, if i By motives fomewhat fimilar to these the republic of Venice was actuated, when towards the end of the feventh century it abolished the tribunes of the people, who were annually chofen by the feveral districts of the Venetian territory, and constituted a doge in their ftead; in whom the executive power of the ftate at prefent refides. For which their hiftorians have affigned (4) See page 188. 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. I. From thence therefore no precedent can be drawn. It is alfo true, that the convention-parliament, which restored king Charles the fecond, 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 faid parliament fat till the twenty-ninth of December, full seven months after the restoration; and enacted many laws, feveral of which are still in force. But this was for the necessity of the thing, which fuperfedes all law; for if they had not so met, it was morally impoffible that the kingdom should have been fettled in peace. And the first thing done after the king's return was to pafs an act declaring this to be a good parliament, notwithstanding the defect of the king's writs. So that, as the royal prerogative was chiefly wounded by their fo meeting, and as the king himself, who alone had a right to object, consented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Befides, we should also remember, that it was at that time a great doubt among the lawyers k, whether even this healing act made it a good parliament; and held by very many in the negative: though it feems to have been too nice a scruple (5). And yet, out of abundant caution, it was thought neceffary to confirm it's acts in the next parliament, by statute 13 Car. II. c. 7. & c. 14. (5) William Drake, a merchant of London, was impeached for writing a pamphlet, intitled, The Long Parliament revived, in which he maintained, that there could be no legislative `authority till that was legally and regularly diffolved by the king and the two houfes of parliament, according to the 16 Car. I. c. 7. Com. Journ, 20 Nov. 1660, IT is likewife true, that at the time of the revolution, A. D. 1688, the 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 affembling was upon a like principle of neceffity as at the restoration; that is, upon a full conviction that king James the fecond had abdicated the government, and that the throne was thereby vacant: which fuppofition of the individual members was confirmed by their concurrent refolution, when they actually came together. And, in such a case as the palpable vacancy of a throne, it follows ex neceffitate rei, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. For, let us put another poffible cafe, and fuppofe, for the fake of argument, that the whole royal line fhould at any time fail and become extinct, which would indifputably vacate the throne: in this fituation it seems reasonable to prefume, that the body of the nation, confisting of lords and commons, would have a right to meet and fettle the government; otherwise there must be no government at all. And upon this and no other principle did the convention in 1688 affemble. The vacancy of the throne was precedent to their meeting without any royal fummons, not a consequence of it. They did not affemble without writ, and then make the throne vacant; but, the throne being previously vacant by the king's abdication, they affembled 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, fuch meeting became abfolutely neceffary. And accordingly it is declared by statute 1 W. & M. ft. 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 neceffity, (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. |