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 all 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 every thing that a good man would desire to do; and are restrained from nothing but what would be pernicious either to ourselves or our fellow-citizens. So that this review *of our situation may *145] fully justify the observation of a learned French author, who indeed

generally both thought and wrote in the spirit of genuine freedom,(z) and who hath not scrupled to profess, even in the very bosom of his native country, 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 in 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 to his country, "ESTO PERPETUA."

CHAPTER II.

OF 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 or governed; or, in other words, as magistrates and people. Of magistrates, some also are supreme, in whom the sovereign power of the state resides; others are subordinate, deriving all 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 of both making and of enforcing the laws, is vested in one and the same man, or 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 is possessed, in quality of dispenser of justice, with all the power which he, as legislator, thinks proper to give himself. But, where the legislative and 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 *147] supreme power is divided into *two branches; the one legislative, to wit, the parliament, consisting of king, lords, 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.'

(z) Montesq. Sp. L. 5.

It will not, of course, be forgotten by the American student that in the government under which it is his privilege to live, "legislative power," and "the supreme and absolute authority of the state," are not convertible terms. The people of every state alone possess, and can exercise, supreme and absolute authority; the legislature, as the other departments of government, are but the depositaries of delegated powers, more or less limited according to the terms of the letter of attorney, the constitution: their acts, if they transcend their powers or violate their written instructions, are null and void.—SHARSWOOD

The original 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 equally difficult and uncertain. The word parliament itself, (parlement or colloquium, as some of our historians translate it,) is comparatively of modern date; derived from the French, and signifying an assembly that 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.(a) But 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 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 estates in France ;(c) for what is there now called the parlia ment is only the supreme court of justice, consisting of the peers, certain dignified ecclesiastics, and judges, which neither is in practice, nor is supposed to be in theory, a general council of the realm.

With us in England this general council hath been held immemorially, under the several names of michel-synoth, or great council, michel-gemote, or great meet(c) These were assembled for the last time, A.D. 1561, (see Whitelocke of Parl. c. 72,) or, according to Robertson, a.D. 1614. (Hist. Cha. V. i. 369.)

(4) Mod. Un. Hist. xxiii. 307. The first mention of it in our statute law is in the preamble to the statute of Westm. 1 3 Edw. I. A.D. 1272.

(b) De minoribus rebus principes consultant, de majoribus omnes. Tac. de mor. Germ. c. 11.

"The word parliamentum was not used in England till the reign of Henry III. (Prynne on 4 Inst. 2.) Sir Henry Spelman, in his Glossary, ( voc. Parl.,) says, Johannes rex haud dicam parliamentum, nam hoc nomen non tum emicuit, sed communis concilii regni formam et coactionem perspicuam dedit.

It was from the use of the word parliamentum that Prynne discovered Lord Coke's manuscript, Modus tenendi parliamentum tempore regis Edwardi, filii regis Etheldredi, &c. to be spurious. Lord Coke set a high value upon it, and has assured us, "that certain it is, this modus was rehearsed and declared before the conqueror at the conquest, and by him approved." (4 Inst. 13.) But for many reigns after this word was introduced, it was indiscriminately applied to a session, and to the duration of the writ of summons: we now confine it to the latter, viz. to the period between the meeting after the return of the writ of summons and the dissolution. Etymology is not always frivolous pedantry; it sometimes may afford a useful comment upon the original signification of a word. No inconsiderable pains have been bestowed by learned men in analyzing the word parlia ment; though the following specimens will serve rather to amuse than to instruct. ““The word parliament," saith one, "is compounded of parium lamentum, because," as he thinks, "the peers of the realm did at these assemblies lament and complain each to the other of the enormities of the country, and thereupon provide redress for the same." (Lamb. Arch. 235.) Whitelocke, in his notes (174) declares, "that this derivation of parliament is a sad etymology." Lord Coke, and many others, say, "that it is called parliament, because every member of that court should sincerely and discreetly parler la ment, speak his mind for the general good of the commonwealth." (Co. Litt. 110.) Mr. Lambard informs us, that "Lawrence Vallo misliketh this derivation." (Arch. 236.) And Law rence Vallo is not singular; for Mr. Barrington assures us, that “Lord Coke's etymology of the word parliament, from speaking one's mind, has been long exploded. If one might presume," adds he, "to substitute another in its room, after so many guesses by others, I should suppose it was a compound of the two Celtic words parly and ment or mend. Both these words are to be found in Bullet's Celtic Dictionary, published at Besançon in 1754, 3d vol. fol. He renders parly by the French infinitive parler; and we use the word in England as a substantive, viz. parley; ment or mend is rendered quantite, abondance. The word parliament, therefore, being resolved into its constituent syllables, may not improperly be said to signify what the Indians of North America call a Great Talk." I shall leave it to the reader to determine which of these derivations is most descriptive of a parliament; and perhaps after so much recondite learning, it may appear presumptuous in me to observe, that parliament imported originally nothing more than a council or conference, and that ment in parliament has no more signification than it has in impeachment, engagement, imprisonment, hereditament, and ten thousand others of the same nature, though the civilians have adopted a similar derivation, viz. testament from testari mentem. Tay. Civ. Law, 70.-CHRISTIAN.

VOL. L-8

113

ing, and more *frequently wittena-gemote, or the meeting of wise men. It

*148] 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. *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

*150]

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

426.

(a) L. 2, c. 2. (*) C. 1, 3.

(9) Quanta esse debeat per nullam assisam generalem determinatum est, sed pro consuetudine singulorum comi tatum 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 con vened 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

()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., at 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 assembling 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 par liament, 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.

*152] *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 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 parliam ant 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 (m) 4 Edw. III. c. 14. 36 Edw. III. c. 10.

(*) Stat. 12 Car. II. c. 1.
(2) 1 Sid. 1.

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.

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 par liament 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 ambiquity, prove beyond all controversy that this is the true construction. In ancient times,