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CHAPTER THE SECOND.

OF THE

PARLIAMENT.

W

E are next to treat of the rights and duties of persons, as they are members of society, and stand in various relations to each other. These relations are either public or private : and we will first confider those 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 magistrate, accountable to him for their conduct, and acting in an inferior fecondary sphere.

In all tyrannical governments the supreme magistracy, 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 these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, fince he is possessed, in quality of difpenfer of justice, with all the power which he as legiflator thinks proper to give himself. But, where the legiflative and executive authority are in distinct hands, the former will take care not to entrust the latter with so 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, confifting of king, lords, and commons; the other executive, confifting of the king alone. It will be the business of this chapter to confider the British parliament; in which the legifslative power, and (of course) the fupreme and abfolute authority of the state, is vested by our conftitution.

THE original or first institution of parliaments is one of those matters that lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. The word, parliament, itself (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 first applied to general assemblies of the states 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 seems 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 dissolution of the Roman empire. Relics of which constitution, under various modifications and changes, are still to be met with in the diets of Poland, Germany, and Sweden, and the assembly of the eftates in France; for what is there now called the parliament is only the fupreme court of justice, compofed of judges and advocates; which neither is in practice, nor is supposed to be in theory, a general council of the realm.

b

WITH US in England this general council hath been held immemorially, under the several names of michel-fynoth, or great council, michel-gemote or great meeting, and more frequently wittena-gemote or the meeting of wife men. It was also stiled in Latin, commune concilium regni, magnum concilium regis, curia magna, conventus magnatum vel procerum, assisa generalis, and fometimes communitas regni Angliae. We have instances of it's meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as Fletad expresses it, “novis injuriis “emerfis nova conftituere remedia," so early as the reign of Ina king of the west Saxons, Offa king of the Mercians, and Ethelbert king of Kent, in the feveral realms of the heptarchy. And, after their union, the mirrour informs us, that king Alfred ordained for a perpetual usage, that these councils should meet twice in the year, or oftener, if need be, to treat of the government of God's people; how they should keep themselves from fin, should live in quiet, and should receive right. Our fucceeding Saxon and Danish monarchs held frequent councils of this fort, as appears from their respective 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, "baec "funt inftituta, quae Edgarus rex confilio fapientum fuorum infti"tuit ;" or to be enacted by those sages with the advice of the king, as, “ haec funt judicia, quae fapientes confilio regis Ethelstani “inftituerunt ;" or lastly, to be enacted by them both together, as, “hae funt inftitutiones, qu s rex Edmundus et epifcopi fui cum “fapientibus fuis inftituerunt.”

2 Mod. Un. Hift. xxiii. 307.

b De minoribus rebus principes confultant, de majoribus cmres. Tac. de mor. Germ. c.11. magna,

THERE is also no doubt but these great councils were held regularly under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry the second, speaking of the particular amount of an amercement in the sheriff's court, says, it had never yet been ascertained by the general assise, or assembly, but was left to the custom of particular counties. Here the general affife is spoken of as a meeting well known, and it's statutes or decifions are put in a manifeft contradistinction to cuftoms, or the common law. And in Edward the third's time an

Glanvil. 1. 13. 6. 32. 1. 9. c. 10.-Pref. Rep.- 2 Inst. 526. $1.2. c. 2. c. 1. §. 3.

* Quanta effe debeat per nullam assisam generalem determinatum eft, fed pro confuetudine fingulorum comitatuum debetur. 1.9. 6. 10.

act

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 indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. How those parliaments were conftituted and composed, is another question, which has been matter of great dispute among our learned antiquarians; and, particularly, whether the commons were fummoned at all; or, if fummoned, at what period they began to form a distinct assembly. But it is not my intention here to enter into controversies of this fort. I hold it fufficient that it is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of king John, A. D.1215, in the great charter granted by that prince; wherein he promises to fummon all arch-bishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with forty days notice, to assess aids and scutages when necessary. And this constitution has subsisted in fact at least from the year 1266, 49 Hen. III: there being still extant writs of that date, to fummon knights, citizens, and burgesses to parliament. I proceed therefore to enquire wherein consists this conftitution of parliament, as it now stands, and has stood for the space of five hundred years. And in the profecution of this enquiry, I shall confider, first, the manner and time of it's assembling : fecondly, it's constituent parts: thirdly, the laws and customs relating to parliament, confidered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and diftinctly taken: fixthly, the methods of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament's adjournment, prorogation, and diffolution.

1. As to the manner and time of assembling. The parliament as regularly to be fummoned by the king's writ or letter, issued

& Year book, 21 Edw. III. 60.
T

out

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 reason. For, supposing 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 shall determine which is really the legiflative body, the part affembled, or that which stays away? It is therefore necessary that the parliament should be called together at a determinate 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 constituent parts; and, of the three conftituent parts, this office can only appertain to the king; as he is a single person, whose will may be uniform and steady; the first perfon in the nation, being superior to both houses 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 some modern ftatutes, on the demife of a king or queen, if there be then no parliament in being, the last parliament revives, and is to fit again for fix months, unless dissolved by the fucceffor: for this revived parliament must have been originally summoned by the crown.

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,

By motives fomewhat similar to these the repui lic of Venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chofen by the several districts of the Venetian territory, and conftituted a doge in their stead; in whom the executive power of the state at present reides. For

which their historians have affigned these, as the principal reafors. 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 necessity of having a single perfon to convoke the great council when feparated. Mod. Un. Hift. xxvii. 15.

the

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