[150] at a certain place, with forty days notice, to assess aids and fcutages when neceffary. And this conftitution has fubfifted in fact at least from the year 1266, 49 Hen. III: there being still extant writs of that date, to fummon knights, citizens, and burgeffes to parliament (2). I proceed therefore to inquire wherein confifts this conftitution of parliament, as it now ftands, and has stood for the fpace 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 constituent 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 distinctly taken: fixthly, the methods of proceeding, and of making statutes, in both houses: and laftly, the manner of the parliament's adjournment, proroga tion and diffolution. 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 (3). 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 (2) The origin and progress of parliaments and our conftitution will be difcuffed at large in the fupplemental volume. (3) This is a provifion of the magna charta of king John : faciemus fummoneri, &c. ad certum diem fcilicet ad terminum quadraginta dierum ad minus et ad certum locum. (Black. Mag. Ch. Joh. 14.) It is enforced by 7 & 8 W. c. 25. which enacts that there fhall be forty days between the teste and the return of the writ of fummons; and this time is by the uniform practice fince the union extended to fifty days. (2 Hatf. 235.) This practice was introduced by the zzd article of the act of union, which required that time between the tefte and the return of the writ of fummons for the firft parliament of Great Britain. 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 abfented themfelves, who fhall 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 should be called together by none but one of it's own conftituent parts: and, of the three constituent parts, this office can only appertain to the king; as he is a fingle perfon, whofe will may be uniform and fteady; the first perfon in the nation, being fuperior 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 ftatutes, on the demife of a king or queen, if there be then no parliament in being, the laft parliament revives, and it is to fit again for fix months, unlefs diffolved by the fucceffor: for this revived parliament must have been originally fummoned by the crown (4). It is true, that by a ftatute, 16 Car. I. c. 1. it was enact-[151] ed, 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 i By motives fomewhat fimilar to thefe the republic of Venice was actuated, when towards the end of the fe venth century it abolished the tribunes of the people, who were annually chofen by the feveral diftricts of the Venetian territory, and constituted a doge in their ftead; in whom the executive power of the ftate at prefent refides. For which their hiftorians have affigned (4) See p. 188. ever put in practice, would have been liable to all the incon veniencies 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. I. From thence therefore no precedent can be drawn. Ir is also true, that the convention-parliament, which reftored 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 reftoration; and enacted many laws, feveral of which are ftill in force. But this was for the neceffity of the thing, which fuperfedes all law; for if they had not fo 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 pass 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, confented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Befides we should alfo 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 seems to have been too nice a fcruple (5). And yet, out of abundant caution, it was thought neceffary to confirm it's acts in the next par liament, by ftatute 13 Car. II. c. 7. & c. 14. (5) William Drake, a merchant of London, was impeached for writing a pamphlet intitled, The Long Parliament revived, in which he maintained, that there could be no legislative authority till that was legally and regularly diffolved by the king and the two houfes of parliament, according to the 16 Car. I. c. 7. Com. Jour. 20 Nov. 1660. 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 disposed 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 poffible cafe, and fuppofe, for the fake of argument, that the whole royal line fhould at any time fail and become extinct, which would indifputably vacate the throne: in this fituation it seems reafonable 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 affemble 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 affembled at all. Had the throne been full, their meeting would not have been regular; but, as it was really empty, fuch meeting became absolutely neceffary. And accordingly it is declared by ftatute 1 W. & M. ft. 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 thefe 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 parliament, AND BOOK I. AND this by the antient ftatutes of the realm' 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 fit annually for the redrefs of grievances, and dispatch of business, if need be (6). Thefe laft words are fo loofe and vague, that such of 14 Edw. III. c. 14. 36 Edw. III. c. 10. (6) Mr. Granville Sharp, in a treatife published fome years ago, argued ingenioufly againft this conftruétion of the 4 Ed. III. and maintained that the words, if need be, referred only to the preceding word, oftener. So that the true fignification was, that a parliament should be held once every year at all events; and if there fhould be any need to hold it oftener, then more than once. (See his Declaration, &c. p. 166.) The cotemporary records of parliament, in fome of which it is fo expreffed without any ambiguity, prove beyond all controverfy that this is the true conftruction. In ancient times many favourite laws were frequently re-enacted. In the 50 Ed. III. it is exprefsly and abfolutely declared, that a parliament should be held once a year. Rot. Parl. No. 186. In the R. II. we find again another petition from the commons, that a parliament should be held once a year at the leaft: "Que plefe a ne dit St de tenir parlement un foetz par an au meynz, et " ceo en lieu convenable." The king's answer is, "As to that "parliament shall be held every year, let the ftatutes thereupon "be kept and preferved; but as to the place where the parliament "fhall be held, the king will therein do his pleafure." (Ret. Parl. No. 95.) And in the next year, the king declared he had fummoned the parliament, because it was ordained that parliament should be held once a year. (Rot. Parl, 2 R. II. No. 4.) 66 But I can by no means agree with Mr. Sharp, and those who contend that it is the meaning of these records and statutes that there fhould be an election every year. The word parliament at that time did not neceffarily include any fuch idea; for it is every where applied to a feffion without any diftinction, whether it was held after a prorogation or a diffolution. (Rot. Parl. paffim.) It is true that for fome time after the houfe of commons was regularly eftablished diffolutions were frequent; for at that time the |