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 [145] situation may fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom2; 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 it's constitution. Recommending, therefore, to the students in our laws a farther 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!" Ꮓ Montesq. Sp. L. xi, 5. CHAPTER THE SECOND. OF THE PARLIAMENT. WE 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 some are also 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 both of 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 entrust the latter with so large a power as may tend to the subversion of it's own independence, and therewith of the liberty of the subject. With us therefore in England this supreme power is divided into two branches; the one legislative, to wit, the parliament, [147] 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. 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. 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; 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: for what is there now called the parliament 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 mychel-synoth or great council, michel-gemote, or great meeting, and more [148] 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, a 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. 1275. sultant, de majoribus omnes. Tac. de mor. Germ. c.11. These were assembled for the last time, A. D.1561. (See Whitelocke of De minoribus rebus principes con- parl. c. 72.) or, according to Robertson, 4. D. 1614, (Hist. Ch. V. i. n. QQ.). assisa generalis, and sometimes communitas regni Angliae. 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 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 informs us, that king Alfred obtained 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, “hoc est institutum, quod Eadgarus rex cum consilio sapientum 66 suorum instituit ;" or to be enacted by those sages with the advice of the king, "haec sunt judicia, quae sapientes consilio "regis Ethelstani instituerunt ;" or, lastly, to be enacted by them both together, as, "haec 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 the amercement in the sheriff's court, says, it had never been yet ascertained by the general assise, or assembly, but was left to the custom of particular counties. Here the general assise is spoken of as a meeting well known, and its statutes or decisions are put in a manifest contradistinction to custom, or the common [149] law. And in 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. Edmund's-bury, and judicially allowed by the courth. 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 it's assembling: secondly, it's 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. (1) [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 chancery by advice of the privy council, at least forty days before it begins to sit. (2) It is a branch of the (1) I refer the student to Mr. Turner's chapters on the Wittenagemote, Hist, of Ang-Sax. b. viii. ch. 4. & 5,, and to that of Mr. Hallam on the commencement of the representative system in England, Midd. Ages, ch. viii., for much information on those interesting subjects. (2) This was the term fixed in King John's charter, and enforced by 7 & 8 W. 3. c. 25.; but since the union with Scotland the practice has been |