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are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must *act in opposition to one or other of [*172] these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in its full vigour; and that limits, certainly known, be set to the royal prerogative. And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence. And these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints-restraints in themselves so gentle and moderate, as will appear upon further inquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do everything that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or to our fellow-citizens. So that this review of our situation may justify the observation of a learned French author(z), who generally both thought and wrote in the spirit of genuine freedom; that the English is the only nation in the world where political or civil liberty is the direct end of its constitution. Recommending therefore to the student of our laws a further and more accurate search into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul(a) to his country, "ESTO PERPETUA!”

[*173]

*CHAPTER II.

THE PARLIAMENT.

WE 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 consider 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 one, according to our constitution, is supreme, in whom the sovereign power of the state resides; others are subordinate, deriving their authority from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary 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 same man, or in

(z) Montesq. Sp. L. xi. 5.

(a) Pietro Sarpi (commonly called Father Paul) flourished A. D. 1552-1623.

one and the same 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, since he possesses, in quality of dispenser of justice, all the power which he as legislator thinks proper to give himself. But, where the legislative and the executive authority are in distinct hands, the former will take care not to intrust the latter with so large a power as may tend to the subversion of its own independence, and therewith of the liberty of the subject. With us therefore in England this supreme [*174]

power is divided into two branches; the one legislative, to wit, the parliament, consisting of king, lords, spiritual and temporal, and commons; the other executive, consisting of the king alone. It will be the business of this chapter to consider the British parliament; in which the legislative power, and (of course) the supreme and absolute authority of the state, is vested by our constitution.(65)

ments.

The origin or first institution of parliament is one of those matters which lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing Origin of parlia- equally difficult and uncertain. The word "parliament" itself, (parlement or colloquium, as some of our historians translate it), is comparatively of modern date(a); derived from the French, and signifying an assembly that met and conferred together. It is certain that, long before the introduction of the Norman language into England, all matters of importance were debated and settled in the great councils of the realm. A practice, which seems to have been universal among the northern nations, particularly the Germans(b); and carried by them into the countries of Europe, which they overran at the dissolution of the Roman empire. Relics of which constitution, under various modifications and changes, were formerly to be met with in the diets of Poland, Germany, and Sweden, and the assembly of the estates in France: but what was there called the parliament was only the supreme court of justice, consisting of the peers, certain dignified ecclesiastics, and judges; which neither was in practice, nor was supposed to be in theory, a general council of the realm.

*With us in England this general council has been held immemo[*175] rially, under the several names of michel-synoth, or great council, michel-gemote or great meeting, and more frequently witena-gemôt or the meeting of wise men(c). It was variously styled in Latin, commune concilium regni,

(a) Mr. Millar (Eng. Gov. ii., 85, et seq.) considers that the great assembly of the realm which succeeded the Witenagemôt was first called "the parliament," temp. William I.; post, p. 176, n. (k). The first mention of Parliament in our statute law is in the preamble to the statute of West. 1, 3 Edw. 1, A.D. 1275. (b) De minoribus rebus principes consultant, de majoribus omnes. Tac. Germ. c. 11.

(e) "As the freemen or allodial proprietors of a tything, of a hundred, and of a shire, determined the common affairs of their several districts, and were convened for that purpose by the tything-man, the hundreder, and the alderman; so the union of people

belonging to different shires produced a greater assembly, consisting of all the allodial proprietors of a kingdom, and summoned by the king, the great military leader and chief magistrate of the community. This national council received the appellation of the mickle-mote or Wittenagemote." Millar, Eng. Gov. i., 200.

To Turner's Ang. Sax., b. 8, c. 4 & c. 5, Hallam's Mid. Ag. ch. viii., and Palgrave's Rise and Progress of the Eng. Commonw. vol. 2, pp. 225, 385, the student is referred for information respecting the constitution and powers of this assembly.

(65) In this country the legislative power of the United States is vested in congress; while that of the several states is lodged in the state legislatures. And while the supreme power of legislation is to be exercised by these bodies, they do not possess an absolute, unlimited

magnum concilium regis, curia magna, conventus magnatum vel procerum, assisa generalis, and sometimes communitas regni Angliæ(d). We have instances of its meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as Fleta(e) expresses it, "novis injuriis emersis nova constituere 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 several realms of the heptarchy. And, after their union, the Mirror(ƒ) 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 sin, should live in quiet, and should receive right. Our succeeding Saxon and Danish monarchs held frequent councils of this sort, as appears from their respective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice [ *176] of his witena-gemôt or wise men, as, "This is the ordinance *that king Edgar with the counsel of his witan ordained "(g); or to be enacted by those sages with the advice of the king, "hæc sunt judicia, quæ sapientes Exoniæ consilio Ethelstani regis instituerunt "(h); or lastly, to be enacted by them both together, as, "hæc est institutio, quum Edmundus rex et episcopi sui cum sapientibus suis instituerunt"(i).

There is also no doubt but similar great councils were occasionally held. under the first princes of the Norman line(k). 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 been yet ascertained by the general assize, or assembly, but was left to the custom of particular counties(). Here the general assize is spoken of as a meeting well known, and its statutes or decisions are put in manifest contradistinction to custom, or the common law. In Edward III.'s time an act of parliament, made in the reign of William the Conqueror, was pleaded in the case of the abbey of St. Edmund's-bury, and judicially allowed by the court(m).

Hence, it appears, that general councils are coeval with the kingdom itself. How those councils were constituted and composed, is another question, which has been matter of dispute among our learned antiquaries; and particularly whether the commons were at all summoned to attend them; or, if summoned,

[ *177] at what period they began to *form a distinct assembly(n). But it is

not my intention here to enter into controversies of this sort. It is generally agreed, that in the main the constitution of parliament, as it now

(d) Glanvil, 1. 13, c. 32; 1. 9, c. 10; Pref. 9 both lay and clerical; -(A.D. 1123), that all

Rep. ; 2 Inst. 526.

(e) L. 2. c. 2.

(f) C. 1, s. 3.

(g) Anc. Laws and Inst. Eng. 111. (h) Id. 92.

(i) Id. 107.

(k) In the Saxon Chronicle it is mentioned (A.D. 1087), that William the Conqueror three times in every year met his "witan" or "commune concilium;"-(A.D. 1102), that Henry I. used to summon assemblies of all the "heafodemen" or magnates of the land,

the bishops, abbots, and thanes came to the king's "gewitene-mot;"-(A.D. 1125), to the king's "concilie;"-(A.D. 1127), and else where, to his "hird" or court.

(1) Quanta esse debeat per nullam assisam generalem determinatum est, sed pro consuetudine singulorum comitatuum debetur. L. 9, c. 10.

(m) Year-book, 21 Edw. 3, 60.

(n) For further information upon this subject, see Hallam's Mid. Ag. iii. 40; Millar's Eng. Gov. ii. 217, et seq.

authority. The national and state constitutions are the supreme law of the land, and every legislative act which violates such constitutions will be held void by the courts. Where there is no constitutional limitation of power, the authority of congress or of the legisla tures is nearly unlimited. See ante, 33 (*44), Note 10; ante, 69 (*95), Note 34.

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 summon all archbishops, 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, although the above remarkable provision does not appear in the charter of Henry III., this constitution has subsisted in fact at least from the year 1266 (49 Hen. 3), there being still extant writs of that date, to summon knights, citizens, and burgesses, to parliament. I proceed therefore to inquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of six hundred years. And in the prosecuDivision of the tion of this inquiry, I shall consider, first, the manner and time of its assembling: secondly, its constituent parts: thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house: sixthly, the method of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament's adjournment, prorogation, and dissolution. The various heads specified being treated in a purely elementary manner, such as would alone be consistent with the design of these Commentaries(0).

subject under

seven heads.

I. Manner and time of assembling.

[ *178]

I. As to the manner and time of assembling. A new *parliament was regularly to be summoned by the king's writ or letter, issued out of chancery by advice of the privy council, and according to the magna carta of king John, it was summoned at least forty days before it began to sit(p); a period which after the union with Scotland (g) was extended to fifty days, and has recently (r) been reduced to thirty-five days from the date of the proclamation appointing a time for the first meeting of the parliament. 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 sovereign 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 impossible 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 shall determine which is really the legislative body, the part assembled, 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 its dignity and independence, that it should be called together by none but one of its own constituent parts: and, of the three constituent parts, this office can only appertain to the king or queen; who is a single person, and whose 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 a *modern statute, on the demise of a

king or queen, if there be then no parliament in being, the last par- [ *179]

(0) For details concerning "the Law, Privileges, Proceedings, and Usage of Parliament," the reader is referred to the admirable work so entitled, by Sir Thomas Erskine May.

(p) Cap. 17; 7 & 8 Will. 3, c. 35, s. 1. (q) The 22nd article of the Treaty of Union with Scotland, on account of the distance of

some parts of that country from London, re
quired that the time between the teste and
the return of the writ of summons for the
assembling of the first parliament of Great
Britain should not be less than fifty days.
(r) 15 Vict. c. 23.

liament shall immediately convene and sit again for six months, unless sooner prorogued or dissolved by his or her successor; for the parliament thus reassembling must have been originally summoned by the crown(s).

It is true, that by a statute, 16 Car. 1, c. 1, it was enacted that, if the king neglected to call a parliament for three years, the peers might assemble and issue out writs for choosing one; and, in case of neglect of the peers, the constituents might meet and elect one of 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 esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed by statute 16 Car. 2, c. 1. From thence therefore no precedent can be drawn.

It is also true that the convention-parliament, which restored king Charles the Second, met above a month before his return; the lords by their own authority, and the commons in pursuance of writs issued in the name of the keepers of the liberty of England by authority of parliament: and that the said parliament sat till the twenty-ninth of December, full seven months after the Restoration; and enacted many laws, several of which are still in force. But this was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have been settled 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(t). So that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to waive the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Besides, we should *remember, that it was at [ *180] that time a great doubt among lawyers(u), whether even this healing act made it a good parliament; and held by very many in the negative: though it seems to have been too nice a scruple. And yet, out of abundant caution, it was thought necessary to confirm its acts in the next parliament, by statutes 13 Car. 2, c. 7, and c. 14.

It is likewise true, that at the time of the Revolution, A.D. 1688, the lords and commons, by their own authority, and upon the summons of the prince of Orange (afterwards king William), met in a convention, and therein disposed of the crown and kingdom. But it must be remembered, that this assembling was upon a like principle of necessity 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 supposition of the individual members was confirmed by their concurrent resolution, when they actually came together. And, in such a case as the palpable vacancy of a throne, it follows ex necessitate rei, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. For, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail and become extinct, which would indisputably vacate the throne: in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government; otherwise there must be no government at all. And upon this and no other principle did the convention in 1688 assemble. The vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. They did

(8) 37 Geo. 3, c. 127, post.

(t) Stat. 12 Car. 2, c. 1.

(u) Memorandum, 1 Sid. 1.

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