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And after their union, the Mirror informs us that royal prerogative that no parliament can be conking Alfred ordained, for a perpetual usage, that vened by its own authority, or by the authority these councils should meet twice in the year, or of any, except the king alone. And this prerooftener, if need be, to treat of the government of gative is founded upon very good reason. For, God's people ; how they should keep themselves supposing it had a right to meet spontaneously, from sin, should live in quiet, and should receive without being called together, it is impossible to right.' The subsequent Saxon and Danish mo- conceive that all the members of each of the narchs held frequent councils of this sort, as ap- houses would agree unanimously upon the propears from their codes of laws; the titles whereof per time and place of meeting; and if half of the usually speak them to be enacted, either by the members met, and half absented themselves, king, with the advice of his wittena gemote, as who shall determine which is really the lexislaHæc sunt instituta, qua Edgarus rex consilio tive body, the part assembled, or that which sapientum suorum instituit: or to be enacted by stays away? It is therefore necessary that the those sages with the advice of the king; as Hare parliament should be called together at a detersunt judicia qua sapientes, consilio regis Ethel- minate time and place; and highly becoming its stani, instituerunt; or, lastly, to be enacted by dignity and independence that it should be them both together, as llæ sunt institutiones called together by none but one of its own conquas rex Edmundus et episcopi sui, cum sapi- stituent parts: and, of the three constituent entibus suis, instituerunt. These great councils parts, this office can only appertain to the king; were also occasionally held under the first as he is a single person, whose will may be uniprinces of the Norman line.
Glanville, who form and steady; the first person in the nation wrote in the reign of Henry II., speaking of the being superior 10 both houses in dignity, and particular amount of an amercement in the the only branch of the legislature that has a sesheriff's court, says, it never yet had been ascer- parate existence, and is capable of performing tained by the general assize or assembly, but any act at a time when no parliament is in being. was left to the custom of particular counties. Nor is it any exception to this rule that, by some Here the general assize is spoken of as a meet. modern statutes, on the demise of a king or ing well known, and its statutes or decisions are queen, if there be then 1.0 parliament in being, put in a manifest contradistinction to custom, the last parliament revives, and is to sit again or the common law. And in Edward III's for six months, unless dissolved by the succestime, an act of parliament, made in the reign of sor; for this revived parliament must bave been William I., was pleaded in the case of the abbey originally summoned by the crown. of St. Edmund's Bury, and judicially allowed that the convention parliament which restored by the court. Ilence it indisputably appears king Charles II. met above a month before his that parliaments, or general councils, are coeval return; the lords by their own authority, and with the kingdom itself. How those parliaments the commons in pursuance of writs issued in the were constituted and composed has been matter name of the keepers of the liberty of England by of great dispute among our learned antiquarians ; authority of parliament; and that the said parwhether the commons were summoned at all; or liament sat till the 29th of December, full seven at what period they began to form a distinct as- months after the Restoration, and enacted many sembly. 'But, waiving these controversies, it is laws, several of which are still in force. But generally agreed that, in the main, the constitu- this was for the necessity of the thing, which tion of parliament, as it now stands, was marked supersedes all law; for,
they had not so mei, it out so long ago as the seventeenth year of king was morally impossible that the kingdom should John, A.D. 1215, in the great charter granted have been settled in peace. And the first thing by that prince; wherein he promises to summon done after the king's return was 10 pass an act all archbishops, bishops, abbots, earls, and declaring this to be a good parliament, potwithgreater barons, personally; and all other tenants standing the defect of the king's writ: so that, in chief under the crown, by the sheriff and as the royal prerogative was chietly wounded by bailiff's; to meet at a certain place, with forty their so meeting, and as the king himself, who days' notice, to assess aids and scutages when alone had a right to object, consented to waive necessary.
See MAGNA Charta. And this the objection, this cannot be drawn into an exconstitution has subsisted in fact at least from ample in prejudice of the rights of the crown. 1266, 49 llenry III., there being still extant Besides, it was at that time a great doubt among writs of that daie, to summon knights, citizens, the lawyers, whether even this healing act made and burgesses to parliament.
it a good parliament, and held by very many in We proceed, therefore, to enquire, wherein the negative; though it seems to have been 100 consists this constitution of parliament, as it nice a scruple. And yet, out of abundant caunow stands, and has stood, for at least 500 tion, it was thought necessary to contirm its acts years : 1. As to the manner and time of its as
in the next parliament by stat. 13 ('ar. II. c. 7 sembling : 2. Its constituent parts : 3. The laws and c. 14. It is likewise true, at the time of the and customs relating to parliament: t. The Revolution, A. 1). 1688, the lords and commons, methods of proceeding; and of making statutes, in by their own authority, and upon the summons both houses; and, 5. The manner of the parlia- of the prince of Orange (afterwards king Wilment's adjournment, prorogation, and dissolution. Tiam III.), met in a convention, and therein dis
I. The parliament is regularly summoned by posed of the crown and kingdon. But this asthe king's writ or letter, issued out of chancery sembling was upon a like principle of necessity by advice of the privy council, at least forty as at the Restoration; that is, upon a full condays before it begins to sit. It is a branch of the viction that king James II. had abdicated the government, and that the throne was thereby together form the great corporation or body polivacant: which supposition of the individual tic of the kingdom, of which the king is said to members was confirmed by their concurrent re- be be caput, principium, et finis. For upon solution, when they actually came together. their coming together the king meets them, either And, in such a case as the palpable vacancy of a in person or by representation, without which throne, it follows, ex necessitate rei, that the form there can be no beginning of a parliament; and of the royal writs must be laid aside, otherwise he also has alone the power of dissolving them.. no parliament can ever meet again. For let us It is highly necessary, for preserving the balance put another possible case, and suppose, for the of the constitution, that the executive power sake of argument, that the whole royal line should be a branch, though not the whole, of the should at any time fail, and become extinct, legislature. The total union of them, we have which would'indisputably vacate the throne : in seen, would be productive of tyranny; the total this situation it seems reasonable to presume disjunction of them, for the present, would in the that the body of the nation, consisting of lords end produce the same effects, by causing that and commons, would have a right to ineet and union against which it seems to provide. The settle the government; otherwise there must be legislature would soon become tyrannical, by no government at all. And upon this and no making continual encroachments, and gradually other principle did the convention in 1688 as- assuming to itself the rights of the executive semble. The vacancy of the throne was prece- power. Thus the long parliament of Charles I. dent to their meeting without any royal sum- while it acted in a constitutional manner, with mons, not a consequence of it. They did not the royal concurrence, redressed many heavy assemble without writ, and then make the throne grievances, and established many salutary laws. vacant; but the throne being previously vacant, But when the two houses assumed the power of by the king's abdication, they assembled without legislation, in exclusion of the royal authority, writ, as they must do if they assembled at all. they soon after assumed likewise the reins of adHad the throne been full their meeting would ministration; and, in consequence of these not have been regular; but, as it was empty, united powers, overturned both church and such meeting became absolutely necessary. And state, and established a worse oppression than accordingly it is declared by statute, 1 W. & M. any they pretended to remedy. To hinder therestat. 1. c. 1, that this convention was really the fore any such encroachments, the king is himself two houses of parliament, notwithstanding the a part of the parliament; and as this is the reawant of writi, or other defects of form. So that, son of his being so, very properly, therefore, the notwithstanding these two capital exceptions, share of legislation which the constitution has which were justifiable only on a principle of ne- placed in the crown consists in the power of cessity (and each of which, hy the way, induced rejecting rather than resolving; this being sufa revolution in the government), the rule laid ficient to answer the end proposed. For we may down is in general certain, that the king only apply to the royal negative, in this instance, can convoke a parliament. And this, by the what Cicero observes of the negative of the Roancient statutes of the realm, he is bound to do man tribunes, that the crown has not any power
every year, or oftener if need be.' Not that he of doing wrong, but merely of preventing wrong is, or ever was, obliged by these statutes to call from being done. The crown cannot begin of a new parliament every year; but only to per- itself any alterations in the present established mit a parliament annually for the redress of law; but it may approve or disapprove of the grievances, and despatch of business, if need be. alterations suggested and consented to by the These last words are so loose and vague, that two houses. The legislature, therefore, cannot such of our monarchs as were inclined to govern abridge the executive power of any rights which without parliaments neglected the convoking it now has by law, without its own consent; them, sometimes for a very considerable period, since the law must perpetually stand as it now under pretence that there was no need of them. does, unless all the powers will agree to alter it. But, to remedy this, by stat. 16 Car. II. c. 1, it And herein, indeed, consists the true excellence is enacted, that the sitting and holding of parlia- of the British government, that all the parts of ments shall not be intermitted above three years it form a mutual check upon each other. ' In the at the most. And by stat. 1 W. & M., stat. 2, legislature, the people are a check upon the c. 2, it is declared to be one of the rights of the nobility, and the nobility a check upon the peopeople, that for redress of all grievances, and ple, by the mutual privilege of rejecting what for the amending, strengthening, and preserving the other has resolved; while the king is a the laws, parliaments ought to be held frequently: check upon both, which preserves the executive And this indefinite frequency is again reduced power from encroachments. And this very exeto a certainty by stat. 6 W. & M., c. 2, which cutive power is again checked and kept within enacts, as the statute of Charles II. had done due bounds by the two houses, through the pribefore, that the new parliament shall be called vilege they have of enquiring into, impeaching, within three years after the determination of the and punishing the conduct (not indeed of the foriner.
king, which would destroy his constitutional inII. These are the king's majesty, sitting there dependence; but which is more beneficial to the in his royal political capacity, and the three es- public) of his evil and pernicious counsellors. tates of the realm; the lords spiritual, the lords Thus every branch of our civil polity supports temporal (who sit together with the king in one and is supported, regulates and is regulated, by house); and the commons, who sit by themselves the rest : for the two houses naturally drawing in another. And the king and these three estates in two directions of opposite interest, and the prerogative in another still different from them cannot adopt it, nor argue from it, under any both, they mutually keep each other from ex- dispensation of government at present actually ceeding their proper limits; while the whole is existing. For this devolution of power to the prevented from separation, and artificially con- people at large includes in it a dissolution of the nected together, by the mixed nature of the whole form of government established by that crown, which is a part of the levislative, and the people; reduces all the members to their orisisole executive magistrate. Like three distinct nal state of equality, and, by annihilating the powers in mechanics, they jointly impel the ma- sovereign power, repeals all positive laws wharchine of government in a direction different from soever before enaciend. No human laws will, what either, acting by itself, would have done; therefore, suppose a case, which at once must but at the same time in a direction partaking of destroy all law, and compel men to build afreshi each, and formed out of all; a direction which upon a new foundation ; nor will they make proconstitutes the true line of the liberty and hap- vision for so desperate an event as must render piness of the community.
all legal provisions ineffectual. So long, therefore, • The pouer und jurisdiction of parliament,' as the English constitution lasts, we may venture says Sir Edward Coke,' is so transcendant and to affirm, that the power of parliament is absolute, absolute, that it cannot be contined either for and without control. To prevent the mischiefs causes or persons within any bounds. And of that might arise by placing this extensive authis high court he adds, it may be truly said, Si thority in hands either incapable or improper to antiquitatem spectes, est vetustissima ; si digni- manage it, it is provided by the custom and law tatem, est honoratissima; si jurisdictionein, est of parliament that no one shall sit or vote capacissima. It has sovereign and uncontrol- in either house unless he be twenty-one years of lable authority in making, confirming, enlarging, age. This is also expressly declared by stats. 7 restraining, abrogating, repealing, reviving, and and 8 W. III. c. 25 : yet, with regard to the expounding all laws, concerning matters of all house of commons, doubts have arisen from possible denominations, ecclesiastical or tempo- some contradictory abjudications, whether or not ral, civil, military, maritime, or criminal; this a minor was incapacitated from siting in that being the place where that absolute despotic house. It is also enacted by stat. 7 Jac. I. c.0, power, which must in all governments reside that no member be permitted to enter the house somewhere, is entrusted by the constitution of of cominons till he has taken the oath of allethese kingdoms. All mischiefs and grievances, giance before the lord steward or his deputy : operations and remedies, that transcend the and by 30 Car. II. stat. 2, and i Geo. c. 13, ordinary course of the laws, are within the reach that no member shall vote or sit in either house, of this extraordinary tribunal. It can regulate till he has, in the presence of the house, taken or new-model the succession to the crown, as the oaths of allegiance, supremacy, and alijuwas done in the reigns of Henry VIII. and Wild ration, and subscribed and repeated the declaliam III. It can alter the established religion of ration against transubstantiation, and invocation the land; as was done in a variety of instances of saints, and the sacrifice of the mass. Aliens, in the reigns of king Henry VIII. and his three unless naturalised, were likewise by the law of children. It can change and create afresh even parliament incapable to serve therein : and now the constitution of the kingdom and of parlia- it is enacted hy stat. 12 and 13 W. III. c. 2 ments themselves; as was done by the act of that no alien, even though he be naturalisel, union, and the several statutes for triennial and shall be capable of being a member of either septennial elections. It can, in short, do every house of parliament. And there are not only thing that is not naturally impossible; and there- these standing incapacities, but if any person is fore some have not scrupled to call its power, made a peer by the king, or elected to serve in loy a figure rather too bold, the omnipotence of the house of commons by the people, yet may parliament. True it is, that what the parliament the respective houses, upon complaint of any doth, no authority upon carth can undo. So it crime in such person, and proof thereof, adjudge ii is a matter most essential to the liberties of him disabled and incapable to sit as a member : this kingilom, that such members be dergrated and this by the law and custom of parliament. to tliis important trust as are most eminent for for as every court of justice has laws and custheir probity, their fortitude, and knowledge; tons for its direction, some the civil and canon, for it was a known apophthegm of the great lord some the common law, others their own peculiar treasurer Burleich, that England could never laws and customs; so the high court of parbe ruined but by a parliament:' and, as Sirliament has also its own peculiar law called the Matthew Małe observes, This being the highest lex et consuetudo parliamenti; a law which Sir and greatest court, over which none other can Edward Coke observes is ab omnibus qua renda, have jurisdiction in the kingdom, if by any means a multis ignorata, a paucis cognita. It will not a misyovernment should anywise fall upon it, the therefore be expected that we should enter into subjects of this kingdom are left without all man- the examination of this law with minuteness; ner of remedy. Mr. Locke, and other theoretical since, as the same learned author assures us, it is writers, have held that • there remains still 1:1- much better to be learned out of the rolls of herent in the people a supreme power to remove parliament and otner records, and by precederts or alter the legislature, when they find the leris- and continual experience, than can be expressed lature act contrary to the trust reposed in them; by any one man.
The whole of tne law and for, when such trust is abused, it is thereby for- custom of parliament has its original from thuis feited, and devolves to those who gave it.' But, one maxim, that whatever matter arises conhowever just this conclusion may be in theory, we cerning either house of parliament, ought to be
examined, discussed, and adjudged in that house severity. It has likewise peculiar penalties anto which it relates, and not elsewhere. Hence, nexed to it in the courts of law by stat. 5 Hen. for instance, the lords will not suffer the com- IV. c. 6, and 11 Hen. VI. c. 11. Neither can mons to interfere in settling the election of a any member of either house be arrested and peer of Scotland ; the commons will not allow taken into custody without a breach of the privithe lords to judge of the election of a burgess ; lege of parliament. But all other privileges nor will either house permit the subordinate which derogate from the common law are now at courts of law to examine the merits of either an end, save only as to the freedom of the memcase. But the maxims upon which they proceed, ber's person; which in a peer (by the priviles e together with the method of proceeding, rest of peerage) is for ever sacred and inviolable; entirely in the breast of the parliament itself; and in a commoner (by the privilege of parliaand are not defined and ascertained by any par- ment) for forty days after every prorogation, and ticular stated laws. The privileges of parliament forty days before the next appointed meeting; are likewise very large and indefinite ; and which is now in effect as long as the parliament therefore, when, in 31 Henry VI., the house subsists: it seldom being prorogued for more of lords propounded a question to the judges than eighty days at a time. As to all other concerning them, the chief justice, Sir John For- privileges, which obstruct the ordinary course of tescue, in the name of his brethren, declared justice, they were restrained by the statutes 12 that they ought not to make answer to that W. III. c. 3; 2 and 3 Ann. c. 18; and 11 Geo. question ; for it hath not been used aforetime, II. c. 24; and are now totally abolished by statute that the justices should in any wise determine 10 Geo. III. c. 50; which enacts that any suit the privileges of the high court of parliament; may at any time be brought against any peer or for it is so high and mighty in its nature that member of parliament, their servants, or any it may make law; and that which is law, it may other person entitled to privilege of parliament; make no law: and the determination and know- which shall not be impeached or delayed hy ledge of that privilege belongs to the lords pretence of any such privilege, except that the of parliament, and not to the justices.' Privi. person of a member of the house of commons lege of parliament was principally established, in shall not thereby be subjected to any arret order to protect its members not only from being or imprisonment. Likewise, for the benefit of molested by their fellow-subjects, but also more commerce, it is provided, by statute 4 Geo. II. especially from being oppressed by the power of c. 43, that any trader, having privilege of pare the crown. If, therefore, all the privileges of liament, may be served with legal process for parliament were once to be set down and ascer- any just debt (to the amount of £100): and, untained, and no privilege to be allowed but what less he makes satisfaction within two months, it was so defined and determined, it were easy for shall be deemed an act of bankruptcy; and that the executive power to devise some new case, commission of bankruptcy may be issued against not within the line of privilege, and under pre. such privileged traders in like manner as against tence thereof to harass any refractory member, any other. The only way by which courts of and violate the freedom of parliament. The dig- justice could anciently take cognisance of privinity and independence of the two houses are lege of parliament was by writ of privilege, in therefore in a great measure preserved by keep- the nature of supersedeas, to deliver the party ing their privileges indefinite. Some, however, out of custody when arrested in a civil suit. For of the more notorious privileges of the members when a letter was written by the speaker to the of either house are, privilege of speech, of per- judges, to stay proceedings against a privileged son, of their domestics, and of their lands and person, they rejected it as contrary to their oath goods. As to the first, privilege of speech, it is of office. But since the statute 12 W. III. c. 3, declared by the statute i W. & M. stat. 2, c. 2, which enacts that no privileged person shall be as one of the liberties of the people: “That the subject to arrest or imprisonment, it has been freedom of speech, and debates, and proceedings held that such arrest is irregular ab initio, and in parliament, ought not to be impeached or that the party may be discharged upon motion. questioned in any court or place out of parlia- It is to be observed that there is no precedent of ment. And this freedom of speech is particu- any such writ of privilege, but only in civil suits; larly demanded of the king in person, by the and that the statute of 1 Jac. I. c. 13, and that speaker of the house of commons, at the opening of king William, which remedy some inconveof every new parliament. So likewise are the niences arising from privilege of parliament, other privileges of person, servants, lands, and speak only of civil actions. And, therefore, the goods; which are immunities as ancient as Ed. claim of privilege has been usually guarded ward the Confessor, in whose laws we find this with an exception as to the case of indictable precept, ad synodos venientibus, sive summoniti crimes; or, as it has been frequently expressed, sint, sive per se quid agendum habuerint, sit of treason, felony, and breach of the peace. summa pax ; and so, too, in the old Gothic con- Whereby it seems to have been understood that stitutions, extenditur hæc pax et securitas ad no privilege was allowable to the members, their quatuordecim dies, convocato regni senatu. This families, or servants, in any crime whatsoever ; included formerly not only privilege from illegal for all crimes are treated by the law as being violence, but also from legal arrests and seizures contra pacem domini regis. And instances have by process from the courts of law. And still to not been wanting, wherein privileged persons assault by violence a member of either house, or have been convicted of misdemeanors, and comhis menial servants, is a high contempt of par- mitted, or prosecuted to outlawry, even in the liament, and there punished with the utmost middle of a session ; which proceeding haz afterwards received the sanction and approbation suredly follow; which would often be very inof parliament. To which may be added, that, convenient to both public and private business. about thirty years ago, the case of writing and For prorogation puts an end to the session; and publishing seditious libels was resolved by both then such bills as are only beyun, and not perhouses not to be entitled to privilege; and that fected, must be resumed de novo, if at all, in a subthe reasons upon which that case proceeded ex- sequent session; whereas, after an adjournment, tended equally to every indictable offence. So all things continue in the same state as at the time that the chief, if not the only privilege of parlia- of adjournment made, and may be proceeded on ment, in such cases, seems to be the right of without any fresh commencement. ii
. A prororeceiving immediate information of the imprison- gation is the continuance of the parliament from ment or detention of any member, with the rea- one session to another; as an adjournment is a son for which he is detained ; a practice that is continuance of the session from day to day. This daily used upon the slightest military accu- is done by the royal authority, expressed either sations, preparatory to a trial by a court-martial, by the lord chancellor in his majesty's presence, and which is recognised by the several temporary or by commission from the crown, or frequently statutes for suspending the habeas corpus act: by proclamation. Both houses are necessarily whereby it is provided that no member of either prorogued at the same time; it not being a prohouse shall be detained, till the matter of which rogation of the house of lords or commons, but he stands suspected be first communicated to the of the parliament. The session is never underhouse of which he is a member, and the consent stood to be at an end until a prorogation; though, of the said house obtained for his commitment unless some act be passed, or some judgment or detaining. But yet the usage has uniformly given in parliament, it is in truth no session at been, ever since the Revolution, that the com- all. And formerly the usage was for the king munication has been subsequent to the arrest. to give the royal assent to all such bills as he See kino, Lords, and COMMONS.
approved at the end of every session, and then IV. The method of proceeding, in enacting to prorogue the parliament, though sometimes laws, is much the same in both houses. But for only for a day or iwo; after which all business this we refer the reader to the article Bill, and then depending in the houses was not io be beshall only observe in this place that, for despatch gun again. Which custom obtained so strongly, of business, each house of parliament has its that it once became a question, Whether giving speaker. The speaker of the house of lords, the royal assent to a single bill did not of course whose office it is to preside there, and manage put an end to the session! And, though it was the formality of business, is the lord chancellor, then resolved in the negative, yet the notion or keeper of the king's great seal, or any other was so deeply rooted that the statute 1 Car. I. appointed by the king's commission ; and, if none c. 7 was passed to declare, that the king's assent be so appointed, the honse of lords, it is said, to that and some other acts should not put an may elect. The speaker of the house of com- end to the session ; and even so late as the reign mons is chosen by the house; but must be ap- of Charles II. we find a proviso frequently proved by the king. And herein the usage of tacked to a bill, that his majesty's assent thereto the two houses differs, that the speaker of the should not determine the session of parliameni. house of commons cannot give his opinion or But it now seems to be allowed that a prorogaargue any question in the house ; but the speaker tion must be expressly made, in order to deterof the house of lords, if a lord of parliament, may. mine the session. And if at the time of an actual In each house the act of the majority binds the rebellion, or imminent danger of mvasion, the whole; and this majority is declared by votes parliament should be separated by adjournment openly and publicly given; not, as formerly, at or prorogation, the king is empowered to call Venice, and many other senatorial assemblies, them together by proclamation, with fourteen privately, or by ballot. This latter method may days' notice of the time appointed for their rebe serviceable to prevent intrigues and unconsti- assembling. iii. A dissolution is the civil death tutional combinations ; but is impossible to be of the parliament; and this may be effected practised with us, at least in the house of com- 'three ways: 1. By the king's will
, expressed mons, where every member's conduct is subject either in person or by representation. For, as to the future censure of his constituents, and the king has the sole right of convening the partherefore should be openly submitted to their in- liament, so also it is a branch of the royal prespection.
rogative, that he may (whenever he pleases) V. i. An adjournment is no more than a con- prorogue the parliament for a time, or put a final tinuance of the session from one day to another, period to its existence. If nothing had a right as the word signifies; and this is done by the to prorogue or dissolve a parliament bui itself, authority of each house separately every day; it might become perpetual. And this would be and sometimes for a fortnight or a month io- extremely dangerous, if at any time it should gether, as at Christmas or Easter, or upon other attempt to encroach upon the executive power; particular occasions. But the adjournment of as was fatally experienced by the unfortunate one house is no adjournment of the other. It king Charles I. ; who, having unadvisedly passed has also been usual, when his majesty has sig- an act to continue the parliament then in being nified luis pleasure, that both or either of the till such time as it should please to dissolve ithouses should adjourn themselves to a certain self, at last fell a sacrifice to that inordinate day, to obey the king's pleasure so signified, and power which he himself liad consented to give to adjourn accordingly. Otherwise, besides the ihem. It is therefore extremely necessary ihat indecorum of a refusal, a prorogation would as- the crown should be empowered to regulate the