quently wittena-gemote or the meeting of wife men. It was alfo ftiled in Latin, commune concilium regni, magnum concilium regis, curia magna, conventus magnatum vel procerum, affifa generalis, and fometimes communitas regni Angliae1. We have instances of it's meeting to order the affairs of the kingdom, to make new laws, and to mend 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 feveral realms of the heptarchy. And, after their union, the mirror informs us, that king Alfred ordained for a perpetual ufage, that thefe councils fhould meet twice in the year, or oftener, if need be, to treat of the government of God's people; how they fhould keep themselves from fin, fhould 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 ufually fpeak them to be enacted, either by the king with the advice of his wittena-gemote, or wife men, as, "haec funt inflituta, quae Edgarus rex confilio fapientum fuorum inftituit;" or to be enacted by thofe 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, " haec funt inftitutiones, quas rex Edmundus "et epifcopi fui cum fapientibus fuis inflituerunt?” THERE is alfo no doubt but these great councils were occafionally held 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 fheriff'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 aflife is fpoken of as a meeting well known, and it's ftatutes or decifions are put in a manifeft contradiftinction to cuftom, 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 h HENCE it indifputably appears, that parliaments, or general councils, are coeval with the kingdom itfelf. How thofe parliaments were conftituted and compofed, is another queftion, which has been matter of great difpute among our learned antiquaries; and, particularly, whether the commons were fummoned at all; or, if fummoned, at what period they began to form a distinct 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; wherein 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 sheriff and bailiffs; to meet at a certain place, with forty days notice, to affefs aids and fcutages when neceffary. And this conflitution has fubfift-· ed in fact at least from the year 1266, 49 Hen. III: there being still extant writs of that date, to fummon knights, ci tizens, and burgeffes to parliament. I procced therefore to inquire wherein confifts this conftitution of parliament, as it now ftands, and has stood for the space of at least five hundred years. And in the profecution of this inquiry, 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 customs relating to each house, separately and diftinctly taken: fixthly, the methods of proceeding, and of making statutes, in both houfes and Jaftly, the manner of the parliament's adjournment, prorogation and diffolution. h Year book. 21 Edw. III. 60. K 3 I. As I. As to the manner and time of affembling. The parlia ment is regularly to be fummoned by the king's writ or letter, iffued 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 its 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 absented themselves, who shail determine which is really the legislative body, the part assembled, or that which stays away? It is therefore neceffary that the parliament should be called together at a determinate time and place and highly becoming it's dignity and independence, that it fhould 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 fingle perfon, whofe will may be uniform and steady; the first person 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 fome modern statutes, 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, unlefs 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 diftricts of the Venetian territory, and conftituted a doge in their ftead; in whom the executive power of the state at prefent refides. For which their hiftorians have affigned Ir 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 choofing one; and, in cafe of neglect of the peers, the conftituents 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 ftatute 16 Car, II. c. 1. From thence therefore no precedent can be drawn. It is alfo true, that the convention-parliament, which restored king Charles the fecond, met above a month before his return; the lords by their own authority, and the commons in pursuance 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 neceflity 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 pafs 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 fcruple. And yet, out of abundant caution, it was thought neceffary to confirm it's acts in the next parliament, by ftatute 13 Car. II. c. 7, & c. 14. iStat. 12 Car. II. c. 1. ki Sid. 1 IT K 4 BOOK I. Ir 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 reftoration; that is, upon a full conviction that king James the fecond had abdicated the government, and that the throne was thereby vacant: which fuppofition of the individual members was confirmed by their concurrent resolution, when they actually came together. And, in fuch 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 poífible cafe, and fuppofe, for the fake of argument, that the whole royal line fhould at any time fail and become extinct, which would indisputably vacate the throne: in this fituation it seems reasonable to prefume, that the body of the nation, confifting of lords and commons, would have a right to meet and fettle the government; otherwife 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 meeting without any royal fummons, not a confequence of it. They did not assemble 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 assembled at all. Had the throne been full, their meeting would not have been regular; but, as it was really empty, fuch meeting became abfolutely neceffary. And accordingly it is declared by ftatute 1 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 parlia ment. AND |