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CHAPTER THE SECOND.
OF THE PARLIAMENT.
E are next to treat of the rights and duties of persons as they are members of fociety, and ftand in various relations to each other. These relations are either public or private: and we will firft confider thofe 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 also some are fupreme, in whom the fovereign power of the state refides; others are fubordinate, deriving all their authority from the fupreme magiftrate, accountable to him for their conduct, and acting in an inferior fecondary sphere.
In all tyrannical governments the fupreme magiftracy, or the right both of making and of enforcing the laws, is vested in one and the fame man, or one and the fame body of men; and wherever thefe two powers are united together, there can be no public liberty. The magiftrate may enact tyrannical laws, and execute them in a tyrannical manner, fince he is poffeffed, in quality of difpenfer of justice, with all the power which he as legiflator thinks proper to give himself. But, where the legislative and executive authority are in diftinct hands, the former will take care not to entrust the latter with fo large a power, as may tend to the fubverfion of it's own independence, and therewith of the liberty of the fubject. With us therefore in England this fupreme
fupreme power is divided into two branches; the one legislative, to wit, the parliament, consisting of king, lords, and commons; the other executive, confifting of the king alone. It will be the bafinefs of this chapter to confider the British parliament; in which the legislative power, and (of courfe) the supreme and abfolute authority of the ftate, is vested by our constitution.
THE original or first institution of parliaments is one of thofe matters that lie fo far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. The word parliament, itfelf (or colloquium, as fome of our hiftorians tranflate it) is comparatively of modern date; derived from the French, and fignifying the place where they met and conferred together. It was firft applied to general assemblies of the ftates under Louis VII in France, about the middle of the twelfth century. But it is certain that, long before the introduction of the Norman language into England, all matters of importance were debated and fettled in the great councils of the realm. A practice, which feems to have been univerfal among the northern nations, particularly the Germans; and carried 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 still 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 supreme court of justice, confifting of the peers, certain dignified ecclefiaftics, and judges; which neither is in practice, nor is fuppofed 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 michel-fyngth, or great council, michel-gemote or great meeting, and more frequently
a Mod. Un. Hift. xxiii. 307. The Art majoribus omnes. Tac. de mor. Germ. c. 11. mention of it in our ftatute law is in the preamble to the statute of Westm. 1. 3. Edw. I. A. D. 1272.
↳ De minoribus rebus principes confultant, de
c These were affembled for the last time, A. D. 1561. (See Whitelocke of parl. c. 72.) or according to Robertfon, A. D. 161♪.. (Hift. Cha. V. i. 369.)
wittena-gemote or the meeting of wife men. It was also ftiled in Latin, commune concilium regni, magnum concilium regis, curia magna, conventus magnatum vel procerum affifa generalis, and fometimes communitas regni Angliae. We have inftances of it's meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as Fleta 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 several realms of the heptarchy. And, after their union, the mirrour informs us, that king Alfred ordained for a perpetual ufage, that these councils fhould meet twice in the year, or oftner, if need be, to treat of the government of God's people; how they should keep themselves from fin, fhould live in quict, 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 ufually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wife men, as, " haec funt inftituta, quae Edgarus rex confilio fapientum fuorum infti"tuit;" or to be enacted by those fages with the advice of the king, as," haec funt judicia, quae fapientes confilio regis Ethelftani inftituerunt;" or laftly, to be enacted by them both together, as, "bae funt inftitutiones, quas rex Edmundus et epifcopi fui cum fapientibus fuis inftituerunt."
THERE is alfo no doubt but thefe great councils were held regularly 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 sheriff's court, fays, it had never yet been afcertained by the general affife, or affembly, but was left to the cuftom of particular counties. Here the general affife is spoken of as a meeting well known, and it's ftatutes
statutes or decifions are put in a manifeft contradiftinction to cuftoms, 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 coeval with the kingdom itself. How those parlia ments were conftituted and compofed, is another question, which has been matter of great difpute among our learned antiquarians; and particularly, whether the commons were fummoned at all; or, if fummoned, at what period they began to form a diftinct 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; whereiu he promises to fummon all arch-bishops, bishops, abbots, earls, and greater barons, perfonally; and all other tenants in chief under the crown, by the fheriff and bailufs; to meet at a certain place, with forty days notice, to affefs aids and foutages when neceffary. And this conftitution has fublified in fact at least from the year 1266, 49 Hen, III: there being ftill extant writs of that date, to fummon knights, citizens, and burgeffes to parliament. I proceed therefore to enquire wherein confifts this conflitution of parliament, as it now stands, and has stood for the space of at leaft five hundred years. And in the profecution of this enquiry, I fhall confider, first, 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 or proccding, and of making flatutes, in both houfes: and lafily, the manner of the parliament's adjournment, prorogation and diffolution.
4 Year book, 2 Adw. III, 65.
1. As to the manner and time of affembling. The parliament is regularly to be fummoned 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 fit. 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 reafon. For, fuppofing it had a right to meet spontaneously, without being 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 fhall 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 determined time and place: and highly becoming it's dignity and independence, that it should be called together by none but one of it's own conftituent parts: and of the three conftituent parts, this office can only appertain to the king; as he is a fingle perfon, whose will may be uniform and fteady; the firs perfon 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 parlia ment is in being'. Nor is it an exception to this rule that, by fome modern ftatutes, on the demise of a king or queen, if there be then no parliament in being, the laft parliament revives, and is to fit again for fix months, unless diffolved by the fucceffor: for this revived parliament must have been originally fummoned by the crown.
By motives fomewhat fimilar to thefe 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 stead; in whom the executive power of the state at prefent refides. For
which their historians have affigned thefe, as the principal, reasons. 1. The propriety of having the executive power a part of the legislative, or fenate; to which the former annual magistrates were not admitted. 2. The neceffity of having a single perfon to convoke the great council when feparated. (Mod. Un. Hist. xxvii. 15.)