by them into all the countries of Europe, which they overran at the diffolution of the Roman empire. Relics of which conftitution, under various modifications and changes, are ftill to be met with in the diets of Poland, Germany, and Sweden, and the affembly of the eftates in France: for what is there now called the parliament is only the fupreme court of justice, confifting of the peers, certain dignified ecclefiaftics and judges; which neither is in practice, nor is suppofed to be in theory, a general council of the realm. WITH us in England this general council hath been held immemorially, under the feveral names of mychel-fynoth or great council, michel-gemote, or great meeting, and more frequently wittena-gemote, or the meeting of wife men. It was [148] also stiled in Latin, commune concilium regni, magnum concilium regis, curia magna, conventus magnatum vel procerum, affifa generalis, and fometimes communitas regni Angliae ^. have inftances of its meeting to order the affairs of the kingdom, to make new laws, and to mend the old, or, as Fieta expreffes it, "novis injuriis emerfis nova conftituere remedia,” fo early as the reign of Ina king of the Weft Saxons, Offa king of the Mercians, and Ethelbert king of Kent, in the feveral realms of the heptarchy. And, after their union, the mirror informs us, that king Alfred ordained for a perpetual usage, that these councils fhould meet twice in the year, or oftener, if need be, to treat of the government of God's people; how they fhould keep them felves from fin, fhould live in quiet, and fhould receive right. Our fucceeding Saxon and Danish monarchs held frequent councils of this fort, as appears from their refpective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wife men, as, "haec funt inflituta, quae Edgarus rex confilio fapientum fuorum "inflituit," or to be enacted by thofe fages with the advice • These were affembled for the laft time, A.D. 1561. (See Whitelocke of parl. c. 72.) or according to Robertson, A.D. 1614. (Hift. Ch. V. i. 369.) Glanvil. . 13. c. 32. l. 9. c. 10.-- e 1. 2. c. 2. f c. I. § 3. of of the king, as," haec funt judicia, quae fapientes confilio regis «Ethelstani inflituerunt;" or laftly, to be enacted by them both together, as, "haec funt inflitutiones, quas rex Edmundus "et epifcopi fui cum fapientibus fuis inflituerunt." THERE is alfo no doubt but thefe great councils were occafionally held under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry the fecond, fpeaking of the particular amount of an amercement in the fheriff's court, fays, it had never been yet afcertained by the general affife, or affembly, but was left to the cuftom of particular counties. Here the general affife is fpoken of as a meeting well known, and it's ftatutes or decifions are put in [149] a manifeft contradiftinction 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 ". HENCE, it indifputably appears, that parliaments, or general councils, are coëval with the kingdom itself. How those parliaments were conftituted and compofed, is another queftion, which has been matter of great difpute among our learned antiquaries; and, particularly, whether the commons were summoned at all; or if fummoned, at what period they began to form a diftin&t affembly. But it is not my intention here to enter into controverfies of this fort. I hold it fufficient 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 feventeenth year of king John, A. D. 1215, in the great charter granted by that prince; wherein he promises to fummon all archbishops, bishops, abbots, earls, and greater barons, perfonally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet Quanta effe debeat per nullam affifam generalem determinatum eft, fed pro confuetudine fingulorum comitatuum de betur, l. 9. c. 10. b Year-book, 21 Edw. III. 60. at at a certain place, with forty days notice, to affefs aids and fcurages when neceffary. And this conftitution has fubfisted in fact at leaft from the year 1266, 49 Hen. III. there being ftill 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 ftands, and has stood for the fpace of at leaft five hundred years. And in the profecution of this inquiry, I fhall confider, firft, the manner and time of it's affembling: fecondly, it's conftituent parts: thirdly, the laws and customs relating to parliament, confidered as one aggregate body: fourthly and fifthly, the laws and cuftoms relating to each houfe feparately and diftinctly taken: fixthly, the methods of proceeding, and of making statutes, in both houses: and laftly, the manner of the parliament's adjournment, proro gation, 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, fuppofing it had a right to meet spontaneously, without being (2) The origin and progress of parliaments and our conftitution will be difcuffed at large in the fupplemental 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. c. 25. which enacts, that there shall be forty days between the tefte 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 firft parliament of Great Britain. VOL. I. called called together, it is impoffible to conceive that all the members, and each of the houfes, would agree unanimously upon the proper time and place of meeting; and if half of the members met, and half abfented themfelves, who fhall determine which is really the legislative body, the part affembled, or that which stays away? It is therefore neceflary that the parliament fhould 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 conftituent parts, this office can only appertain to the king: as he is a fingle perfon, whofe will may be uniform and steady; the first person in the nation, being fuperior to both houfes 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 ena&ed, 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 case 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 several 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 historians 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 ftatute 16 Car. II. c. 1. From thence therefore no precedent can be drawn. It is also true, that the convention-parliament, which teftored king Charles the fecond, met above a month before his return; the lords by their own authority, and the commons in pursuance of writs iffued 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 feven months after the restoration; and enacted many laws, feveral of which are ftill in force. But this was for the neceffity of the thing, which fuperfedes all law; for if they had not fo 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, confented 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 *, 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 fcruple (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 Parliameot 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 houses of parliament, according to the 16 Car. I. c. 7. Com. Jour. 20 Nov. 1660. |