*148] ing, and more *frequently wittena-gemote, or the meeting of wise men. It was also styled in Latin commune concilium regni, 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 mend 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(f) 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 of his wittena-gemote, or wise men, as "hac sunt instituta quæ Edgarus rex consilio sapientum suorum instituit;" or to be enacted by those sages with the advice of the king, as, "hæc sunt judicia, quæ sapientes consilio regis Ethelstani instituerunt;" or lastly, to be enacted by them both together, as, "hæc sunt institutiones, quas rex Edmundus et episcopi sui cum sapientibus suis instituerunt."

There is also no doubt but these great councils were occasionally held 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 been yet ascertained by the general assize, or assembly, but was left to the custom of particular counties.(g) Here the general assize is spoken of as a meeting well known, and its statutes or decisions are put in *a manifest contradistinction to custom, or the common law. And in *149] Edward the Third's time an act of parliament, made in the reign of William the Conqueror, was pleaded in the case of the Abbey of St. Edmunds-bury, and judicially allowed by the court.(h)

Hence it indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. How those parliaments were constituted and composed, is another question, which has been matter of great dispute among our learned antiquaries; and, particularly, whether the commons were summoned at all; or, if summoned, at what period they began to form a distinct assembly. But it is not my intention here to enter into controversies of this sort. I hold it sufficient 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 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 this constitution has subsisted in fact at least from the year 1266, 49 Hen. III.: 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 at least five hundred years. And in the prosecution 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, separately and distinctly taken: sixthly, the methods of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament's adjournment, prorogation, and dissolution.

*150]

*I. As to the manner and time of assembling. The parliament is regularly to be summoned by the king's writ or letter, issued out of

(d) Glanvil. 7. 13, c. 32, l. 9, c. 10. Pref. 9 Rep. 2 Inst.

526.

(e) L. 2, c. 2. (5) C. 1, 83.

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

(*) Year Book, 21 Edw. III. 60.

chancery by advice of the privy council, at least forty days before it begins to sit. 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 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 legis lative 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; as he is a single person, 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.(i) Nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and it is to sit again for six months, unless dissolved by the successor: 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 [*151 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 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. II. 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 parlia ment 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

(1) By motives somewhat similar to these the republic of Venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chosen by the several districts of the Venetian territory, and constituted a doge in their stead, in whom the executive power of the state at present resides; for which

their historians have assigned these as the principal reasons: 1. The propriety of having the executive power a part of the legislative, or senate, to which the former annual magistrates were not admitted. 2. The necessity of having a single person to convoke the great council when separated. Mod. Un. Hist. xxvii. 15.

This is a provision of the Magna Charta of king John:-faciemus summoneri, &c., ad certum diem scilicet ad terminum quadraginta dierum ad minus et ad certum locum. (Black. Mag. Ch. Joh. 14.) It is enforced by 7 and 8 W. c. 25, which enacts that there shall be forty days between the teste and the return of the writ of summons; and this time is by the uniform practice since the union extended to fifty days. (2 Hats. 235.) This practice was introduced by the 22d article of the act of union, which required that time between the teste and the return of the writ of summons for the first parliament of Great Britain. -CHRISTIAN.

Now, it is enacted by 37 Geo. III. c. 127, that his majesty may issue his proclamation for the meeting of parliament in fourteen days from the date thereof, notwithstanding a previous adjournment to a longer day. (39 and 40 Geo. III. c. 14.) And in case of the king's demise after the dissolution of a parliament, and before the asscmbling of a new one, the last preceding parliament shall meet and sit. The same, also, if the successor to the crown die within six months without having dissolved the parliament, or after the same shall have been dissolved and before a new one shall have met. It is also enacted that, in case of the king's demise on or after the day appointed for assembling a new parliament, such new parliament shall meet and sit.-CHITTY.

By the 37 Geo. III. c. 127, fourteen days' notice is sufficient, even though the parlia ment may have adjourned to a longer day. (39 and 40 Geo. III. c. 14.) And after a dissolution parliament may now meet within thirty-five days after the proclamation.—— STEWART.

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. (k) 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 also remember, that it was at that time a great doubt among the lawyers, (1) 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 statute 13 Car. II. c. 7, and c. 14.

*It is likewise true, that at the time of the revolution, A.D. 1688, the *152] 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 not assemble without writ, and then make the throne vacant; but the throne being previously vacant by the king's abdication, they assembled 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, such meeting became absolutely necessary. And accordingly it is declared by statute 1 W. and M. st. 1, c. 1, that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. So that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (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 parliament. *153] *And this, by the ancient statutes of the realm,(m) he is bound to do every year, or oftener, if need be. Not that he is, or ever was, obliged by these statutes to call a new parliament every year; but only to permit a parliament to sit annually for the redress of grievances, and despatch of business, if need be. These last words are so loose and vague, that such of our

(*) Stat. 12 Car. II. c. 1.
(1) 1 Sid. 1.

(m) 4 Edw. III. c. 14. 36 Edw. III. c. 10.

William Drake, a merchant of London, was impeached for writing a pamphlet, entitled "The Long Parliament Revived," in which he maintained that there could be no legislative authority till that was legally and regularly dissolved by the king and the two houses of parliament, according to the 16 Car. I. c. 7. Com. Jour. 20 Nov. 1660.—CHRIS

TIAN.

5 Mr. Granville Sharp, in a treatise published some years ago, argued ingeniously against this construction of the 4 Ed. III., and maintained that the words if need be referred only to the preceding word, oftener. So that the true signification was, that a parliament should be held once every year, at all events; and, if there should be any need to hold it oftener, then more than once. (See his "Declaration," &c., p. 166.) The contemporary records of parliament, in some of which it is so expressed without any ambiguity, prove beyond all controversy that this is the true construction. In ancient times,

monarchs as were inclined to govern without parliaments, neglected the convoking them sometimes for a very considerable period, under pretence that there was no need of them. But, to remedy this, by the statute 16 Car. II. c. 1, it is enacted, that the sitting and holding of parliaments shall not be intermitted above three years at the most. And by the statute 1 W. and M. st. 2, c. 2, it is declared to be one of the rights of the people, that for redress of all grievances, and for the amending, strengthening, and preserving the laws, parliaments ought to be held frequently. And this indefinite frequency is again reduced to a certainty by statute 6 W. and M. c. 2, which enacts, as the statute of Charles the Second had done before, that a new parliament shall be called within three years(n) after the determination of the former."

II. The constituent parts of a parliament are the next objects of our inquiry. And these are the king's majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal, (who sit, together with the king, in one house,) and the commons, who sit by themselves in another. And the king and these three estates, together, form the great corporation or body politic of the kingdom,(0) of which the king is said to be caput, principium, et finis. For, upon their coming together, the king meets them,

(n) This is the same period that is allowed in Sweden for (0) 4 Inst. 1, 2. Stat. Eliz. c. 3. Hale of Parl. 1.
intermitting their general diets, or parliamentary assemblies.
Mod. Un. Hist. xxxiii. 15.

many favourite laws were frequently re-enacted. In the 50 Edw. III. it is expressly and absolutely declared that a parliament should be held once a year. (Rot. Parl. No. 186.) In the 1 R. II. we find again another petition from the commons that a parliament should be held once a year at the least:-"Que plese a nre dit Sr de tenir parlement un foetz par an au meynz, el ceo en lieu convenable." The king's answer is, "As to that parliament shall be held every year, let the statutes thereupon be kept and preserved; but as to the place where the parliament shall be held, the king will therein do his pleasure." (Rot. Parl. No. 95.) And, in the next year, the king declared he had summoned the parlia ment because it was ordained that parliament should be held once a year. (Rot. Parl. 2 R. II. No. 4.)

But I can by no means agree with Mr. Sharp and those who contend that it is the meaning of those records and statutes that there should be an election every year. The word "parliament" at that time did not necessarily include any such idea; for it is everywhere applied to a session, without any distinction, whether it was held after a prorogation or a dissolution. (Rot. Parl. passim.) It is true that, for some time after the House of Commons was regularly established, dissolutions were frequent; for at that time the electors were few, and a seat in parliament was considered rather a burden to be avoided than a distinction to be solicited; and the members were not enabled to receive their wages till the king had discharged them from further attendance by putting an end to the parliament. In the first reigns after the representation of the commons was established, the duration and intermissions of parliament were short; but, for several reigns preceding the revolution, both had become extended to such a length that it became necessary for the parliament to interpose its authority and fix some limits to its own existence.

In the following reigns, the longest durations and intermissions were nearly as follows:-Hen. VIII., dur. 6 years, int. 4 years. Edw. VI., dur. 4. Eliz., dur. 11, int. 4. Ja. I., dur. 9, int. 6. Ch. I., dur. 8, int. 12. Ch. II., dur. 17, int. 4. (See the printed report of the committee to examine precedents in impeachments, April 19, 1791, p. 16, et seq.) In Ireland, there was no regular meeting of the parliament from 1666 till 1692; and from the reign of Queen Anne, in 1703, it assembled only once in two years till 1783,—since which time it has sat every year, as in England. (Lord Mountmor. 419.)— CHRISTIAN.

As the Mutiny Act, the Marine Forces Act, and other acts, are passed for one year only, parliament must necessarily be summoned for the despatch of business once in every year; and such has been the practice of the constitution since the revolution in 1688.

The Congress of the United States "shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day."-Const. U. S. art. 1, s. 4.

The President may on extraordinary occasions convene both houses or either of them; and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper." (Ibid. art. 11, s. 3.)

-SHARSWOOD.

either in person or by representation; without which there can be no beginning of a parliament;(p) and he also has alone the power of dissolving them.

*154] *It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislative. The total union of them, we have seen, would be productive of tyranny; the total disjunction of them, for the present, would in the end produce the same effects, by causing that union against which it seems to provide. The legislative would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power. Thus the long parliament of Charles the First, while it acted in a constitutional manner, with the royal concurrence, redressed many heavy grievances, and established many salutary laws. But when the two houses assumed the power of legislation, in exclusion of the royal authority, they soon after assumed likewise the reins of administration; and, in consequence of these united powers, overturned both church and state, and established a worse oppression than any they pretended to remedy. To hinder therefore any such encroachments, the king is himself a part of the parliament: and as this is the reason of his being so, very properly therefore the share of legislation, which the constitution has placed in the crown, consists in the power of rejecting rather than resolving; this being sufficient to answer the end proposed. For we may apply to the royal negative, in this instance, what Cicero observes of the negative of the Roman tribunes, that the crown has not any power of doing wrong, but merely of preventing wrong from being done.(q) The crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses. The legislative therefore cannot abridge the executive power of any rights which it now has by law, without its own consent; since the law must perpetually stand as it now does, unless all the powers will agree to alter it. And herein indeed consists the true excellence *155] of the English government, that all the parts of it form a mutual *check upon each other. In the legislature, the people are a check upon the nobility, and the nobility a check upon the people, by the mutual privilege of rejecting what the other has resolved: while the king is a check upon both, which preserves the executive power from encroachments. And this very executive power is again checked and kept within due bounds by the two houses, through the privilege they have of inquiring into, impeaching, and punishing the conduct (not indeed of the king,(r) which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors. Thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest: for the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits; while the whole is prevented from separation and artificially connected together by the mixed nature of the crown, which is a part of the legislative, and the sole executive magistrate. Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by itself, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community."

(P) 4 Inst. 6.

(9) Sulla-tribunis plebis sua lege injuriæ faciendæ potes tatem ademit, auxilii ferendi reliquit." De LL. 3, 9.

(r) Stat. 12 Car. II. c. 30.

These observations have been termed by Mr. Reeve, in his fourth letter, entitled "Thoughts on the English Government," "a fabulous invention, contrived in order to round and finish more completely his mythological account of three co-equal and coordinate powers in the legislature." But the truth and propriety of the learned commentators' doctrine is admirably elucidated by the following extract from a work of considerable merit:

"This security is sometimes called the balance of the constitution; and the political equilibrium, which this phrase denotes, consists in two contrivances, A BALANCE OF POWER and A BALANCE OF INTEREST. By a balance of power is meant, that there is no power possessed