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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 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now stated; and the act itself was efteemed fo highly detrimental and injurious to the royal prerogative, that it was repealed by statute 16 Car.II.c.1.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 resto red king Charles the fecond, met above a month before his return; the lords by their own authority, and the commons in purfuance 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 still in force. But this was for the neceffity of the thing, which fuperfedes all law; for if they had not so met, it was morally impoffible that the kingdom fhould have been fettled 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'. 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, 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. And yet, out of abundant caution, it was thought neceffary to confirm it's acts in the next parliament, by statute 12 Car. II. c. 7, & c. 14.
j Stat. 12 Car. II. c. I.
* Sid. r
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 fummons of the prince of Orange, (afterwards king William) met in a convention, and therein difpofed 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 second 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 cafe as the palpable vacancy of a throne, it follows ex neceffitate rei, that the form of the royal writs must be laid afide, otherwise no parliament can ever meet again. For, let us put another poffible cafe, and suppose, 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 situation it feems reasonable to prefume, that the body of the nation, confifting 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 mecting 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 affembled at all. Had the throne been full, their meeting would not have been regular; but, as it was really empty, fuch meeting became abfolutely ncceflary. And accordingly it is declared by ftatute W. & M. ft. 1. c. 1. that this convention was really the two houfes of parliament, notwithstanding the want of writs or other defects of form. So that, notwithstanding these two capital exceptions, which were juftifiable 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 this by the antient statutes of the realm', he is bound to do every year, or oftener, if need be. Not that he is, or ever was, obliged by thefe ftatutes to call a new parliament every year; but only to permit a parliament to fit annually for the redress of grievances, and difpatch of business, if need be. Thefe laft words are fo loose and vague, that fuch of our monarchs, as were inclined to govern without parliaments, neglected the convoking them, fometines for a very confiderable period, under pretence that there was no need of them. But, to remedy this, by the ftatute 16 Car. II. c. 1. it is enacted, that the fitting and holding of parliaments shall not be intermitted above three years at the most. And by the statute 1. W. & M. ft. 2. c. 2. it is declared to be one of the rights of the people, that for redrefs of all grievances, and for the amending, ftrengthening, and preferving the laws, parliaments ought to be held frequently. And this indefinite frequency is again reduced to a certainty by ftatute 6 W. & M. c. 2. which enacts, as the ftatute of Charles the fecond had done before, that a new parliament fhall be called within three years after the determination of the former.
H. THE Conftituent part of a parliament are the next objects of our enquiry. And these are, the king's majefty, fitting there in his royal political capacity, and the three eftates of the realm; the lords fpiritual, the lords temporal, (who fit, together with the king, in one houfe) and the commons, who fit by themselves in another. And the king and these three eftates, together, form the great corporation or body politic of the kingdom", of which the king is faid to be caput principium, et finis. For upon their coming together the king meets them, either in perfon or by reprefentation; without which there can be no beginning of a parliament: and he alfo has alone the power of diffolving them.
IT is highly neceffary for preferving the ballance of the conftitution, that the exccutive power should be a branch, though not the whole, of the legislature. The total union of them, we have feen, would be productive of tyranny; the total disjunction of them for the prefent, would in the end produce the fame effects, by causing that union against which it feems to provide. The legislature would foon become tyrannical, by making contiqual encroachments, and gradually affuming to itself the rights of the executive power. Thus the long parliament of Charles the firft, while he acted in a conftitutional manner, with the royal concurrence, redreffed many heavy grievances and cftablished many falutary laws. But when the two houses affumed the power of legiflation, in exclufion of the royal authority, they foon after affumed likewife the reins of administration; and, in confequence of these united powers, overturned both church and state, and established a worfe oppreffion than any they pretended to remedy. To hinder therefore any fuch encroachments, the king, is himself a part of the parliament: and, as this is the reafon of his being fo, very properly therefore the share of legislation, which the 'conftitution has placed in the crown, confifts in the power of rejecting, rather than refolving; this being fufficient to answer the end propofed. For we may apply to the royal negative, in this inftance, what Cicero obferves 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". The crown cannot begin of itself any alterations in the prefent cftablished law; but it may approve or difapprove of the alterations fuggefted and confented to by the two houfes. The legiflative therefore cannot abridge the executive power of any rights which it now has by law, without it's own confent; fince the law muft perpetually ftand as it now does, unlefs all the powers will agree to alter it. And herein indeed confifts the true excellence of the English government, that all the parts of it form a mutual check upon
P Sulla-tribunis plebis fua lege injuriae faciendae poteftatem ademit, auxili, feront role
quit. De LL. 3. 9.
each other. In the legiflature, 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 refolved: while the king is a check upon both, which preferves 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 enquiring into, impeaching, and punishing the conduct (not indeed of the king", which would destroy his conftitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors. Thus every branch of our civil polity fupports and is supported, regulates and is regulated, by the reft: for the two houfes naturally drawing in two directions of oppofite intereft, and the prerogative in another flill different from them both, they mutually keep each other from exceeding their proper limits; while the whole is prevented from feparation, and artificially connected together by the mixed nature of the crown, which is a part of the legislative, and the fole executive magiftrate. Like three diftinct 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 fame time in a direction partaking of each, and formed out of all; a direction which conftitutes the true line of the liberty and happiness of the community.
LET us now confider these conftituent parts of the fovereign power, or parliament, each in a feparate view. The king's majefty will be the fubject of the next, and many fubfequent chapters, to which we must at prefent refer.
THE next in order are the fpiritual lords. Thefe confift of two arch-bishops, and twenty four bifhops; and, at the diffolution of monafteries by Henry VIII, confifted likewife of twenty fix mitred abbots, and two priors': a very confiderable body, and in thofe times equal in number to the temporal nobility'.