Page images

the words of Craffus the Roman orator,
when he opposed the encroachments of a
tyrannical consul on the authority of the
senate, Ille non consul est, cui ipfe fenator non
Jum;' He is no king, to whom we are not
an house of parliament. On the other hand,
should the representative of the commons,
like that of Denmark, surrender the rights
and liberties of the people into the hands of
the king, and the king, instead of diffolving
the parliament, should accept the surrender,
and attempt to maintain it, contrary to the
laws, and to the oath of the crown; or should
the two houses take the power of the militia,
the nomination of privy counsellors, and the
negative in passing laws out of the crown,
these would be cases tending to diffolution;
that is, they are cases which the law will not
put, being incapable of distrusting those, whom
it has invested with the supreme power, or its
own perpetual duration, and they are out of
the reach of laws, and stated remedies, because
they render the exercise of them precarious
and impracticable. This observation may
be applied to every similar case, which can
be found in imagination, relative to the seve-
ral estates, with this difference, that it holds
strongest as to the king, in whom both the
common and statute law have reposed the


[ocr errors]


king to convene

whole executive power; nor could the least branch of it be lodged in the two houses, for the purpose of providing a judicial remedy. against him, unless the constitution had erected imperium in imperio, and were inconsistent and destructive of itself.”

As circumstances have from time to time The original arisen in the state, so have different modifica- right in the tions been made in the royal prerogative, to parliaments

inf:. at his discretion meet the difficulty, or prevent the mischief in. future, which the legislative prescience had not expressly guarded against before. Thus, as the king was by the constitution indisputably intitled to the exclusive and discretionary right of convening and assembling the parliament, we find at last in the 16th year of King Charles II. A. D. 1664, the legislative altered into as body fixing the time of their being convened convening or summoned. I shall not undertake to in- three years, vestigate or set forth the reasons, why this frequency was at this time fixed upon or determined; but I shall merely observe, that the act *, after reciting that, “ whereas the act made in the parliament begun at Westminster the third day of November, in the sixteenth year of the reign of our late fovereign lord King Charles of blessed memory, intituled,

.* 16 Car. II. c. 1. An Ad for the assembling and holding of parliament once in three years at least. :


An Aet for the preventing of Inconveniences happening by the long Intermision of Parliaments, is in derogation of his majesty's just rights and prerogative inherent to the imperial crown of this realm, for the calling and assembling of parliaments, and may be an occasion of manifold mischiefs and inconveniencies, and much endanger the peace and safety of his majesty, and all his liege people of this realm, repeals such act, and enacts as follows:

« And because by the ancient laws and statutes of this realm, made in the reign of King Edward the Third, parliaments are to be held very often, your majesty's humble and loyal subjects the lords spiritual and temporal, and the commons, in this present parliament assembled, most humbly do beseech your most excellent majesty, that it may be declared and enacted, and be it declared and enacted by the authority aforesaid, that hereafter the sitting and holding of parliaments shall not be intermitted or discontinued above three years at the most; but that within three years from and after the determination of this present parliament, and so from time to time within three years after the determination of any other parliament or parliaments, or if there be occasion more often, your majesty, your heirs and successors, do iffue out your writs for calling, assembling,


and holding of another parliament, to the end there may be a frequent calling, assembling, and holding of parliaments once in three years at the least.” * « Moreover, as the most fatal conse- Writs to be

issued forty days quences might ensue, if laws, which might before the

meeting of par most materially affect public liberty, could be liamento enacted in parliaments abruptly and imperfectly summoned, it has been established, that the writs for assembling a parliament must be issued forty days at least before the meeting. Upon the same principle it has also been enacted, that the king cannot abridge the term he has once fixed for a prorogation, except in the two following cases; viz. of a rebellion, or of imminent danger of a foreign invasion ; in both which cases a fourteen days notice must be given t."

Although the king by his "royal preroga- Alterations in tive be the supreme head of the civil estab- tion. lishment of the church, he cannot alter the established religion, nor is he now permitted to hold the crown, if he profess the Roman catholic religion, as I have before ob- . ferved. I mention this again, to inforce the more sensibly the right of the legislature to alter the constitution ; and that this altera

the c


* De Lolme, c. viii. + 30 Geo. II. C, 25.

tion has been made since the revolution, is proved by the actual possession of the throne by king James II. before that event; the reasons of it were fully canvassed and submitted to even in those times of animosity and heat. * “ But when these prerogatives are asserted to a prince, who is of a contrary religion to that established by law, there would be always danger of their being abused to the prejudice or destruction of the established religion ; to which it cannot be forgotten, that the promoters of the bill of exclusion used the same argument; if you leave him king, say they, he will have all the prerogatives of a king, and those prerogatives may be made instrumental to the ruin of your religion ; which could not be denied by the gentlemen on the other side, who opposed that bill. Their only reply was, fiat juftitie, ruat cælum ; it is his right, and we must not do evil, that good may come; we must not do wrong, no, not to promote the interest of religion itself.” Nothing but an alteration in the constitution could prevent the possibility of the like event happening again.

* Lord Chief Jufiice Herbert's Reasons for the Judgment in the Case of Sir Edward Hales, p. 32. .

« With

« PreviousContinue »