Tuesday, April 29, 2008

Blackstone ss20

"Section 20. Part 1 of Chapter 3 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 3, Part 1"

Chapter the third.

Of the KING, and his TITLE.

The supreme executive power of these kingdoms is vested
by our laws in a single person, the king or queen: for it
matters not to which sex the crown descends; but the person
entitled to it, whether male or female, is immediately invested
with all the ensigns, rights, and prerogatives of sovereign power;
as is declared by statute 1 Mar. st. 3. c. 1.

In discoursing of the royal rights and authority, I shall consider
the king under six distinct views: 1. With regard to
his title. 2. His royal family. 3. His councils. 4. His duties.
5. His prerogative. 6. His revenue. And, first, with regard
to his title.

The executive power of the English nation being vested in a
single person, by the general consent of the people, the evidence
of which general consent is long and immemorial usage, it became
necessary to the freedom and peace of the state, that a rule
should be laid down, uniform, universal, and permanent; in order
to mark out with precision, who is that single person, to whom
are committed (in subservience to the law of the land) the care
and protection of the community; and to whom, in return, the
duty and allegiance of every individual are due. It is of the
highest importance to the public tranquillity, and to the consciences of private men, that this rule should be clear and indisputable:
and our constitution has not left us in the dark upon
this material occasion. It will therefore be the endeavour of this
chapter to trace out the constitutional doctrine of the royal succession,
with that freedom and regard to truth, yet mixed with
that reverence and respect, which the principles of liberty and
the dignity of the subject require.

The grand fundamental maxim upon which the jus coronae,
or right of succession to the throne of these kingdoms, depends,
I take to be this: "that the crown is, by common law and
constitutional custom, hereditary; and this in a manner peculiar
to itself: but that the right of inheritance may from time
to time be changed or limited by act of parliament; under
which limitations the crown still continues hereditary." And
this proposition it will be the business of this chapter to prove,
in all it's branches: first, that the crown is hereditary; secondly,
that it is hereditary in a manner peculiar to itself; thirdly, that
this inheritance is subject to limitation by parliament; lastly,
that when it is so limited, it is hereditary in the new proprietor.

1. First, it is in general hereditary, or descendible to the
next heir, on the death or demise of the last proprietor. All regal
governments must be either hereditary or elective: and, as I believe
there is no instance wherein the crown of England has ever
been asserted to be elective, except by the regicides at the infamous
and unparalleled trial of king Charles I, it must of consequence
be hereditary. Yet while I assert an hereditary, I by no means
intend a jure divino, title to the throne. Such a title may be allowed
to have subsisted under the theocratic establishments of the
children of Israel in Palestine: but it never yet subsisted in any
other country; save only so far as kingdoms, like other human
fabrics, are subject to the general and ordinary dispensations of
providence. Nor indeed have a jure divino and an hereditary right
any necessary connexion with each other; as some have very
weakly imagined. The titles of David and Jehu were equally
jure divino, as those of either Solomon or Ahab; and yet David
slew the sons of his predecessor, and Jehu his predecessor himself.
And when our kings have the same warrant as they had,
whether it be to sit upon the throne of their fathers, or to destroy
the house of the preceding sovereign, they will then, and
not before, possess the crown of England by a right like theirs,
immediately derived from heaven. The hereditary right, which
the laws of England acknowlege, owes it's origin to the founders
of our constitution, and to them only. It has no relation to,
nor depends upon, the civil laws of the Jews, the Greeks, the
Romans, or any other nation upon earth: the municipal laws of
one society having no connexion with, or influence upon, the fundamental
polity of another. The founders of our English monarchy
might perhaps, if they had thought proper, have made
it an elective monarchy: but they rather chose, and upon good
reason, to establish originally a succession by inheritance. This
has been acquiesced in by general consent; and ripened by degrees
into common law: the very same title that every private
man has to his own estate. Lands are not naturally descendible
any more than thrones: but the law has thought proper, for the
benefit and peace of the public, to establish hereditary succession
in one as well as the other.

It must be owned, an elective monarchy seems to be the most
obvious, and best suited of any to the rational principles of government,
and the freedom of human nature: and accordingly we
find from history that, in the infancy and first rudiments of almost
every state, the leader, chief magistrate, or prince, hath usually been
elective. And, if the individuals who compose that state could
always continue true to first principles, uninfluenced by passion
or prejudice, unassailed by corruption, and unawed by violence,
elective succession were as much to be desired in a kingdom, as
in other inferior communities. The best, the wisest, and the
bravest man would then be sure of receiving that crown, which
his endowments have merited; and the sense of an unbiassed
majority would be dutifully acquiesced in by the few who were
of different opinions. But history and observation will inform us,
that elections of every kind (in the present state of human nature)
are too frequently brought about by influence, partiality,
and artifice: and, even where the case is otherwise, these practices
will be often suspected, and as constantly charged upon the
successful, by a splenetic disappointed minority. This is an evil,
to which all societies are liable; as well those of a private and
domestic kind, as the great community of the public, which regulates
and includes the rest. But in the former there is this advantage;
that such suspicions, if false, proceed no farther than
jealousies and murmurs, which time will effectually suppress;
and, if true, the injustice may be remedied by legal means, by
an appeal to those tribunals to which every member of society
has (by becoming such) virtually engaged to submit. Whereas,
in the great and independent society, which every nation composes,
there is no superior to resort to but the law of nature; no
method to redress the infringements of that law, but the actual
exertion of private force. As therefore between two nations,
complaining of mutual injuries, the quarrel can only be decided
by the law of arms; so in one and the same nation, when the
fundamental principles of their common union are supposed to be
invaded, and more especially when the appointment of their chief
magistrate is alleged to be unduly made, the only tribunal to
which the complainants can appeal is that of the God of battels[**battles ?],
the only process by which the appeal can be carried on is that of
a civil and intestine war. An hereditary succession to the crown
is therefore now established, in this and most other countries, in
order to prevent that periodical bloodshed and misery, which the
history of antient imperial Rome, and the more modern experience
of Poland and Germany, may shew us are the consequences
of elective kingdoms.

2. But, secondly, as to the particular mode of inheritance,
it in general corresponds with the feodal path of descents, chalked
out by the common law in the succession to landed estates; yet
with one or two material exceptions. Like them, the crown will
descend lineally to the issue of the reigning monarch; as it did
from king John to Richard II, through a regular pedigree of six
lineal descents. As in them, the preference of males to females,
and the right of primogeniture among the males, are strictly adhered
to. Thus Edward V succeeded to the crown, in preference
to Richard his younger brother and Elizabeth his elder sister. Like
them, on failure of the male line, it descends to the issue female;
according to the antient British custom remarked by Tacitus[a],
"solent foeminarum ductu bellare, et sexum in imperiis non discernere."
Thus Mary I succeeded to Edward VI; and the line of
Margaret queen of Scots, the daughter of Henry VII, succeeded
on failure of the line of Henry VIII, his son. But, among the
females, the crown descends by right of primogeniture to the
eldest daughter only and her issue; and not, as in common inheritances,
to all the daughters at once; the evident necessity of a
sole succession to the throne having occasioned the royal law of
descents to depart from the common law in this respect: and
therefore queen Mary on the death of her brother succeeded to
the crown alone, and not in partnership with her sister Elizabeth.
Again: the doctrine of representation prevails in the descent of
the crown, as it does in other inheritances; whereby the lineal
descendants of any person deceased stand in the same place as their
ancestor, if living, would have done. Thus Richard II succeeded
his grandfather Edward III, in right of his father the black prince;
to the exclusion of all his uncles, his grandfather's younger children.
Lastly, on failure of lineal descendants, the crown goes to
the next collateral relations of the late king; provided they are
lineally descended from the blood royal, that is, from that royal
stock which originally acquired the crown. Thus Henry I succeeded
to William II, John to Richard I, and James I to Elizabeth;
being all derived from the conqueror, who was then the
only regal stock. But herein there is no objection (as in the case
of common descents) to the succession of a brother, an uncle, or
other collateral relation, of the half blood; that is, where the
relationship proceeds not from the same couple of ancestors (which
constitutes a kinsman of the whole blood) but from a single ancestor
only; as when two persons are derived from the same father,
and not from the same mother, or vice versa: provided only,
that the one ancestor, from whom both are descended, be he from
whose veins the blood royal is communicated to each. Thus
Mary I inherited to Edward VI, and Elizabeth inherited to Mary;
all born of the same father, king Henry VIII, but all by different
mothers. The reason of which diversity, between royal and common
descents, will be better understood hereafter, when we examine
the nature of inheritances in general.

3. The doctrine of hereditary right does by no means imply
an indefeasible right to the throne. No man will, I think, assert
this, that has considered our laws, constitution, and history, without
prejudice, and with any degree of attention. It is unquestionably
in the breast of the supreme legislative authority of this
kingdom, the king and both houses of parliament, to defeat this
hereditary right; and, by particular entails, limitations, and provisions,
to exclude the immediate heir, and vest the inheritance
in any one else. This is strictly consonant to our laws and constitution;
as may be gathered from the expression so frequently
used in our statute book, of "the king's majesty, his heirs, and
successors." In which we may observe, that as the word,
"heirs," necessarily implies an inheritance or hereditary right,
generally subsisting in the royal person; so the word, "successors,"
distinctly taken, must imply that this inheritance may sometimes
be broke through; or, that there may be a successor, without
being the heir, of the king. And this is so extremely reasonable,
that without such a power, lodged somewhere, our polity
would be very defective. For, let us barely suppose so melancholy
a case, as that the heir apparent should be a lunatic, an
ideot[**typo for idiot?], or otherwise incapable of reigning: how miserable would
the condition of the nation be, if he were also incapable of being set
aside!--It is therefore necessary that this power should be lodged
somewhere: and yet the inheritance, and regal dignity, would
be very precarious indeed, if this power were expressly and avowedly lodged in the hands of the subject only, to be exerted whenever
prejudice, caprice, or discontent should happen to take the
lead. Consequently it can no where be so properly lodged as in
the two houses of parliament, by and with the consent of the
reigning king; who, it is not to be supposed, will agree to any
thing improperly prejudicial to the rights of his own descendants.
And therefore in the king, lords, and commons, in parliament
assembled, our laws have expressly lodged it.

4. But, fourthly; however the crown maybe limited or
transferred, it still retains it's[**sic][**P2: issue cleared] descendible quality, and becomes
hereditary in the wearer of it: and hence in our law the king is
said never to die, in his political capacity; though, in common
with other men, he is subject to mortality in his natural: because
immediately upon the natural death of Henry, William, or Edward,
the king survives in his successor; and the right of the
crown vests, eo instanti, upon his heir; either the haeres natus, if
the course of descent remains unimpeached, or the haeres factus,
if the inheritance be under any particular settlement. So that
there can be no interregnum; but as sir Matthew Hale[b] observes,[**; ?]
the right of sovereignty is fully invested in the successor by the
very descent of the crown. And therefore, however acquired, it
becomes in him absolutely hereditary, unless by the rules of the
limitation it is otherwise ordered and determined. In the same
manner as landed estates, to continue our former comparison, are
by the law hereditary, or descendible to the heirs of the owner;
but still there exists a power, by which the property of those
lands may be transferred to another person. If this transfer be
made simply and absolutely, the lands will be hereditary in the
new owner, and descend to his heirs at law: but if the transfer
be clogged with any limitations, conditions, or entails, the lands
must descend in that chanel, so limited and prescribed, and no other.

In these four points consists, as I take it, the constitutional
notion of hereditary right to the throne: which will be still farther elucidated, and made clear beyond all dispute, from a short
historical view of the successions to the crown of England, the
doctrines of our antient lawyers, and the several acts of parliament
that have from time to time been made, to create, to declare,
to confirm, to limit, or to bar, the hereditary title to the
throne. And in the pursuit of this enquiry we shall find, that
from the days of Egbert, the first sole monarch of this kingdom,
even to the present, the four cardinal maxims above mentioned
have ever been held the constitutional canons of succession. It is
true, this succession, through fraud, or force, or sometimes through
necessity, when in hostile times the crown descended on a minor
or the like, has been very frequently suspended; but has always
at last returned back into the old hereditary chanel, though
sometimes a very considerable period has intervened. And, even
in those instances where the succession has been violated, the
crown has ever been looked upon as hereditary in the wearer of
it. Of which the usurpers themselves were so sensible, that they
for the most part endeavoured to vamp up some feeble shew of a
title by descent, in order to amuse the people, while they gained
the possession of the kingdom. And, when possession was once
gained, they considered it as the purchase or acquisition of a new
estate of inheritance, and transmitted or endeavoured to transmit
it to their own posterity, by a kind of hereditary right of usurpation.

King Egbert about the year 800, found himself in possession
of the throne of the west Saxons, by a long and undisturbed descent
from his ancestors of above three hundred years. How his
ancestors acquired their title, whether by force, by fraud, by
contract, or by election, it matters not much to enquire; and is
indeed a point of such high antiquity, as must render all enquiries
at best but plausible guesses. His right must be supposed indisputably
good, because we know no better. The other kingdoms
of the heptarchy he acquired, some by consent, but most
by a voluntary submission. And it is an established maxim in civil
polity, and the law of nations, that when one country is united
to another in such a manner, as that one keeps it's government
and states, and the other loses them; the latter entirely assimilates
or is melted down in the former, and must adopt it's laws
and customs[c]. And in pursuance of this maxim there hath ever
been, since the union of the heptarchy in king Egbert, a general
acquiescence under the hereditary monarchy of the west Saxons,
through all the united kingdoms.

From Egbert to the death of Edmund Ironside, a period of
above two hundred years, the crown descended regularly, through
a succession of fifteen princes, without any deviation or interruption;
save only that king Edred, the uncle of Edwy, mounted
the throne for about nine years, in the right of his nephew a
minor, the times being very troublesome and dangerous. But this
was with a view to preserve, and not to destroy, the succession;
and accordingly Edwy succeeded him.

King Edmund Ironside was obliged, by the hostile irruption
of the Danes, at first to divide his kingdom with Canute, king
of Denmark; and Canute, after his death, seised the whole of
it, Edmund's sons being driven into foreign countries. Here the
succession was suspended by actual force, and a new family introduced
upon the throne: in whom however this new acquired
throne continued hereditary for three reigns; when, upon the
death of Hardiknute, the antient Saxon line was restored in the
person of Edward the confessor.

He was not indeed the true heir to the crown, being the
younger brother of king Edmund Ironside, who had a son Edward,
sirnamed (from his exile) the outlaw, still living. But this
son was then in Hungary; and, the English having just shaken
off the Danish yoke, it was necessary that somebody on the spot
should mount the throne; and the confessor was the next of the
royal line then in England. On his decease without issue, Harold II
usurped the throne, and almost at the same instant came on the
Norman invasion: the right to the crown being all the time in
Edgar, sirnamed Atheling, (which signifies in the Saxon language
the first of the blood royal) who was the son of Edward the outlaw,
and grandson of Edmund Ironside; or, as Matthew Paris[d]
well expresses the sense of our old constitution, "Edmundus autem
latusferreum, rex naturalis de stirpe regum, genuit Edwardum;
et Edwardus genuit Edgarum, cui de jure debebatur regnum

"End of Section 20"

Blackstone, ch 2 p 5

"Section 19. Part 5 of Chapter 2 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 2, Part 5"

VI. I proceed now, sixthly, to the method of making
laws; which is much the same in both houses: and I shall touch
it very briefly, beginning in the house of commons. But first I
must premise, that for dispatch of business each house of parliament
has it's speaker. The speaker of the house of lords is the
lord chancellor, or keeper of the king's great seal; whose office
it is to preside there, and manage the formality of business. The
speaker of the house of commons is chosen by the house; but
must be approved by the king. And herein the usage of the two
houses differs, that the speaker of the house of commons cannot
give his opinion or argue any question in the house; but the
speaker of the house of lords may. In each house the act of the
majority binds the whole; and this majority is declared by votes
openly and publickly given: not as at Venice, and many other
senatorial assemblies, privately or by ballot. This latter method
may be serviceable, to prevent intrigues and unconstitutional combinations:
but is impossible to be practiced with us; at least in
the house of commons, where every member's conduct is subject
to the future censure of his constituents, and therefore should be
openly submitted to their inspection.

To bring a bill into the house, if the relief sought by it is of
a private nature, it is first necessary to prefer a petition; which
must be presented by a member, and usually sets forth the grievance
desired to be remedied. This petition (when founded on
facts that may be in their nature disputed) is referred to a committee
of members, who examine the matter alleged, and accordingly
report it to the house; and then (or, otherwise, upon
the mere petition) leave is given to bring in the bill. In public
matters the bill is brought in upon motion made to the house,
without any petition at all. Formerly, all bills were drawn in
the form of petitions, which were entered upon the parliament
, with the king's answer thereunto subjoined; not in any
settled form of words, but as the circumstances of the case required[n]:
and at the end of each parliament the judges drew them
into the form of a statute, which was entered on the statute-rolls.
In the reign of Henry V, to prevent mistakes and abuses, the
statutes were drawn up by the judges before the end of the parliament;
and, in the reign of Henry VI, bills in the form of acts,
according to the modern custom, were first introduced.

The persons, directed to bring in the bill, present it in a
competent time to the house, drawn out on paper, with a multitude
of blanks, or void spaces, where any thing occurs that is
dubious, or necessary to be settled by the parliament itself; (such,
especially, as the precise date of times, the nature and quantity
of penalties, or of any sums of money to be raised) being indeed
only the sceleton of the bill. In the house of lords, if the bill
begins there, it is (when of a private nature) perused by two of
the judges, who settle all points of legal propriety. This is read
a first time, and at a convenient distance a second time; and after
each reading the speaker opens to the house the substance of the
bill, and puts the question, whether it shall proceed any farther.
The introduction of the bill may be originally opposed, as the
bill itself may at either of the readings; and, if the opposition
succeeds, the bill must be dropt for that sessions; as it must also,
if opposed with success in any of the subsequent stages.

After the second reading it is committed, that is, referred
to a committee; which is either selected by the house in matters
of small importance, or else, upon a bill of consequence, the
house resolves itself into a committee of the whole house. A
committee of the whole house is composed of every member;
and, to form it, the speaker quits the chair, (another member
being appointed chairman) and may sit and debate as a private
member. In these committees the bill is debated clause by clause,
amendments made, the blanks filled up, and sometimes the bill
entirely new modelled. After it has gone through the committee,
the chairman reports it to the house with such amendments as the
committee have made; and then the house reconsider the whole
bill again, and the question is repeatedly put upon every clause
and amendment. When the house have agreed or disagreed to
the amendments of the committee, and sometimes added new
amendments of their own, the bill is then ordered to be engrossed,
or written in a strong gross hand, on one or more long rolls of
parchment sewed together. When this is finished, it is read a
third time, and amendments are sometimes then made to it; and,
if a new clause be added, it is done by tacking a separate piece
of parchment on the bill, which is called a ryder. The speaker
then again opens the contents; and, holding it up in his hands,
puts the question, whether the bill shall pass. If this is agreed to,
one of the members is directed to carry it to the lords, and desire
their concurrence; who, attended by several more, carries it to
the bar of the house of peers, and there delivers it to their
speaker, who comes down from his woolsack to receive it.

It there passes through the same forms as in the other house,
(except engrossing, which is already done) and, if rejected, no
more notice is taken, but it passes sub silentio, to prevent unbecoming
altercations. But if it is agreed to, the lords send a message
by two masters in chancery (or sometimes two of the judges)
that they have agreed to the same: and the bill remains with the
lords, if they have made no amendment to it. But if any amendments
are made, such amendments are sent down with the bill
to receive the concurrence of the commons. If the commons disagree
to the amendments, a conference usually follows between
members deputed from each house; who for the most part settle
and adjust the difference: but, if both houses remain inflexible,
the bill is dropped. If the commons agree to the amendments,
the bill is sent back to the lords by one of the members, with a
message to acquaint them therewith. The same forms are observed,
mutatis mutandis, when the bill begins in the house of lords.
And when both houses have done with the bill, it always is deposited
in the house of peers, to wait the royal assent.

This may be given two ways: 1. In person; when the king
comes to the house of peers, in his crown and royal robes, and
sending for the commons to the bar, the titles of all the bills that
have passed both houses are read; and the king's answer is declared
by the clerk of the parliament in Norman-French: a badge,
it must be owned, (now the only one remaining) of conquest;
and which one could wish to see fall into total oblivion; unless
it be reserved as a solemn memento to remind us that our liberties
are mortal, having once been destroyed by a foreign force.
If the king consents to a public bill, the clerk usually declares,
"le roy le veut, the king wills it so to be;" if to a private bill,
"soit fait come il est desirè, be it as it is desired." If the king refuses
his assent, it is in the gentle language of "le roy s'avisera,
the king will advise upon it." 2. By statute 33 Hen. VIII. c. 21.
the king may give his assent by letters patent under his great seal,
signed with his hand, and notified, in his absence, to both houses
assembled together in the high house. And, when the bill has
received the royal assent in either of these ways, it is then, and
not before, a statute or act of parliament.

This statute or act is placed among the records of the kingdom;
there needing no formal promulgation to give it the force
of a law, as was necessary by the civil law with regard to the
emperors edicts: because every man in England is, in judgment
of law, party to the making of an act of parliament, being present
thereat by his representatives. However, a copy thereof is
usually printed at the king's press, for the information of the whole
land. And formerly, before the invention of printing, it was
used to be published by the sheriff of every county; the king's
writ being sent to him at the end of every session, together with
a transcript of all the acts made at that session, commanding
him "ut statuta illa, et omnes articulos in eisdem contentos, in singulis
locis ubi expedire viderit, publice proclamari, et firmiter teneri
et observari faciat
." And the usage was to proclaim them
at his county court, and there to keep them, that whoever would
might read or take copies thereof; which custom continued till
the reign of Henry the seventh[o].

An act of parliament, thus made, is the exercise of the highest
authority that this kingdom acknowleges upon earth. It hath
power to bind every subject in the land, and the dominions thereunto
belonging; nay, even the king himself, if particularly named
therein. And it cannot be altered, amended, dispensed with,
suspended, or repealed, but in the same forms and by the same
authority of parliament: for it is a maxim in law, that it requires
the same strength to dissolve, as to create an obligation.
It is true it was formerly held, that the king might in many
cases dispense with penal statutes[p]: but now by statute 1 W. & M.
st. 2. c. 2. it is declared, that the suspending or dispensing with
laws by regal authority, without consent of parliament, is illegal.

VII. There remains only, in the seventh and last place, to
add a word or two concerning the manner in which parliaments
may be adjourned, prorogued, or dissolved.

An adjournment is no more than a continuance of the session
from one day to another, as the word itself signifies: and this is
done by the authority of each house separately every day; and
sometimes for a fortnight or a month together, as at Christmas
or Easter, or upon other particular occasions. But the adjournment
of one house is no adjournment of the other[q]. It hath also
been usual, when his majesty hath signified his pleasure that both
or either of the houses should adjourn themselves to a certain day,
to obey the king's pleasure so signified, and to adjourn accordingly[r].
Otherwise, besides the indecorum of a refusal, a prorogation
would assuredly follow; which would often be very inconvenient
to both public and private business. For prorogation puts
an end to the session; and then such bills, as are only begun and
not perfected, must be resumed de novo (if at all) in a subsequent
session: whereas, after an adjournment, all things continue in
the same state as at the time of the adjournment made, and may
be proceeded on without any fresh commencement.

A prorogation is the continuance of the parliament
from one session to another, as an adjournment is a continuation
of the session from day to day. This is done by the royal authority,
expressed either by the lord chancellor in his majesty's presence,
or by commission from the crown, or frequently by
proclamation. Both houses are necessarily prorogued at the same
time; it not being a prorogation of the house of lords, or commons,
but of the parliament. The session is never understood
to be at an end, until a prorogation: though, unless some act be
passed or some judgment given in parliament, it is in truth no
session at all[s]. And formerly the usage was, for the king to give
the royal assent to all such bills as he approved, at the end of every
session, and then to prorogue the parliament; though sometimes
only for a day or two[t]: after which all business then depending
in the houses was to be begun again. Which custom obtained so
strongly, that it once became a question[u], whether giving the
royal assent to a single bill did not of course put an end to the
session. And, though it was then resolved in the negative, yet
the notion was so deeply rooted, that the statute 1 Car. I. c. 7.
was passed to declare, that the king's assent to that and some other
acts should not put an end to the session; and, even so late as the
restoration of Charles II, we find a proviso tacked to the first bill
then enacted[w] that his majesty's assent thereto should not determine
the session of parliament. But it now seems to be allowed,
that a prorogation must be expressly made, in order to
determine the session. And, if at the time of an actual rebellion,
or imminent danger of invasion, the parliament shall be separated
by adjournment or prorogation, the king is empowered[x] to call
them together by proclamation, with fourteen days notice of the
time appointed for their reassembling.

A dissolution is the civil death of the parliament; and
this may be effected three ways: 1. By the king's will, expressed
either in person or by representation. For, as the king has the
sole right of convening the parliament, so also it is a branch of
the royal prerogative, that he may (whenever he pleases) prorogue
the parliament for a time, or put a final period to it's[**sic] existence.
If nothing had a right to prorogue or dissolve a parliament
but itself, it might happen to become perpetual. And this
would be extremely dangerous, if at any time it should attempt
to encroach upon the executive power: as was fatally experienced by the unfortunate king Charles the first; who, having unadvisedly
passed an act to continue the parliament then in being
till such time as it should please to dissolve itself, at last fell a sacrifice
to that inordinate power, which he himself had consented
to give them. It is therefore extremely necessary that the crown
should be empowered to regulate the duration of these assemblies,
under the limitations which the English constitution has prescribed:
so that, on the one hand, they may frequently and regularly
come together, for the dispatch of business and redress of
grievances; and may not, on the other, even with the consent
of the crown, be continued to an inconvenient or unconstitutional

2. A parliament may be dissolved by the demise of
the crown. This dissolution formerly happened immediately upon
the death of the reigning sovereign, for he being considered
in law as the head of the parliament, (caput, principium, et
) that failing, the whole body was held to be extinct. But,
the calling a new parliament immediately on the inauguration of
the successor being found inconvenient, and dangers being apprehended
from having no parliament in being in case of a disputed
succession, it was enacted by the statutes 7 & 8 W. III. c. 15. and
6 Ann. c. 7. that the parliament in being shall continue for six
months after the death of any king or queen, unless sooner prorogued
or dissolved by the successor: that, if the parliament be,
at the time of the king's death, separated by adjournment or
prorogation, it shall notwithstanding assemble immediately: and
that, if no parliament is then in being, the members of the last
parliament shall assemble, and be again a parliament.

3. Lastly, a parliament may be dissolved or expire by
length of time. For if either the legislative body were perpetual;
or might last for the life of the prince who convened them,
as formerly; and were so to be supplied, by occasionally filling
the vacancies with new representatives; in these cases, if it
were once corrupted, the evil would be past all remedy: but
when different bodies succeed each other, if the people see cause
to disapprove of the present, they may rectify it's faults in the
next. A legislative assembly also, which is sure to be separated
again, (whereby it's members will themselves become private
men, and subject to the full extent of the laws which they have
enacted for others) will think themselves bound, in interest as
well as duty, to make only such laws as are good. The utmost
extent of time that the same parliament was allowed to sit, by
the statute 6 W. & M. c. 2. was three years; after the expiration
of which, reckoning from the return of the first summons,
the parliament was to have no longer continuance. But by the
statute 1 Geo. I. st. 2. c. 38. (in order, professedly, to prevent
the great and continued expenses of frequent elections, and the
violent heats and animosities consequent thereupon, and for the
peace and security of the government then just recovering from
the late rebellion) this term was prolonged to seven years; and,
what alone is an instance of the vast authority of parliament,
the very same house, that was chosen for three years, enacted it's
own continuance for seven. So that, as our constitution now
stands, the parliament must expire, or die a natural death, at the
end of every seventh year; if not sooner dissolved by the royal

"End of Section 19"

Blackstone, ch 2 p 4

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V. The peculiar laws and customs of the house of commons
relate principally to the raising of taxes, and the elections of
members to serve in parliament.

First, with regard to taxes: it is the antient indisputable
privilege and right of the house of commons, that all grants of
subsidies or parliamentary aids do begin in their house, and are
first bestowed by them[t]; although their grants are not effectual
to all intents and purposes, until they have the assent of the other
two branches of the legislature. The general reason, given for
this exclusive privilege of the house of commons, is, that the
supplies are raised upon the body of the people, and therefore it
is proper that they alone should have the right of taxing themselves.
This reason would be unanswerable, if the commons taxed
none but themselves: but it is notorious, that a very large share
of property is in the possession of the house of lords; that this
property is equally taxable, and taxed, as the property of the
commons; and therefore the commons not being the sole persons
taxed, this cannot be the reason of their having the sole right of
raising and modelling the supply. The true reason, arising from
the spirit of our constitution, seems to be this. The lords being
a permanent hereditary body, created at pleasure by the king, are
supposed more liable to be influenced by the crown, and when
once influenced to continue so, than the commons, who are a
temporary elective body, freely nominated by the people. It would
therefore be extremely dangerous, to give them any power of
framing new taxes for the subject: it is sufficient, that they have
a power of rejecting, if they think the commons too lavish or
improvident in their grants. But so reasonably jealous are the
commons of this valuable privilege, that herein they will not
suffer the other house to exert any power but that of rejecting;
they will not permit the least alteration or amendment to be made
by the lords to the mode of taxing the people by a money bill;
under which appellation are included all bills, by which money
is directed to be raised upon the subject, for any purpose or in
any shape whatsoever; either for the exigencies of government,
and collected from the kingdom in general, as the land tax; or
for private benefit, and collected in any particular district; as by
turnpikes, parish rates, and the like. Yet sir Matthew Hale[u]
mentions one case, founded on the practice of parliament in the
reign of Henry VI[w], wherein he thinks the lords may alter a
money bill; and that is, if the commons grant a tax, as that of
tonnage and poundage, for four years; and the lords alter it to
a less time, as for two years; here, he says, the bill need not be
sent back to the commons for their concurrence, but may receive
the royal assent without farther ceremony; for the alteration of
the lords is consistent with the grant of the commons. But such
an experiment will hardly be repeated by the lords, under the present
improved idea of the privilege of the house of commons:
and, in any case where a money bill is remanded to the commons,
all amendments in the mode of taxation are sure to be rejected.

Next, with regard to the elections of knights, citizens, and
burgesses; we may observe that herein consists the exercise of the
democratical part of our constitution: for in a democracy there
can be no exercise of sovereignty but by suffrage, which is the
declaration of the people's will. In all democracies therefore it
is of the utmost importance to regulate by whom, and in what
manner, the suffrages are to be given. And the Athenians were
so justly jealous of this prerogative, that a stranger, who interfered
in the assemblies of the people, was punished by their laws
with death: because such a man was esteemed guilty of high
treason, by usurping those rights of sovereignty, to which he had
no title. In England, where the people do not debate in a collective
body but by representation, the exercise of this sovereignty
consists in the choice of representatives. The laws have therefore
very strictly guarded against usurpation or abuse of this power,
by many salutary provisions; which may be reduced to these three
points, 1. The qualifications of the electors. 2. The qualifications
of the elected. 3. The proceedings at elections.

1. As to the qualifications of the electors. The true reason
of requiring any qualification, with regard to property, in voters,
is to exclude such persons as are in so mean a situation that they
are esteemed to have no will of their own. If these persons had
votes, they would be tempted to dispose of them under some
undue influence or other. This would give a great, an artful, or
a wealthy man, a larger share in elections than is consistent with
general liberty. If it were probable that every man would give
his vote freely, and without influence of any kind, then, upon
the true theory and genuine principles of liberty, every member
of the community, however poor, should have a vote in electing
those delegates, to whose charge is committed the disposal of his
property, his liberty, and his life. But, since that can hardly be
expected in persons of indigent fortunes, or such as are under the
immediate dominion of others, all popular states have been obliged
to establish certain qualifications; whereby some, who are
suspected to have no will of their own, are excluded from voting,
in order to set other individuals, whose wills may be supposed
independent, more thoroughly upon a level with each other.

And this constitution of suffrages is framed upon a wiser
principle than either of the methods of voting, by centuries, or
by tribes, among the Romans. In the method by centuries, instituted
by Servius Tullius, it was principally property, and not
numbers that turned the scale: in the method by tribes, gradually
introduced by the tribunes of the people, numbers only
were regarded and property entirely overlooked. Hence the laws
passed by the former method had usually too great a tendency to
aggrandize the patricians or rich nobles; and those by the latter
had too much of a levelling principle. Our constitution steers
between the two extremes. Only such as are entirely excluded,
as can have no will of their own: there is hardly a free agent to
be found, but what is entitled to a vote in some place or other
in the kingdom. Nor is comparative wealth, or property, entirely
disregarded in elections; for though the richest man has only one
vote at one place, yet if his property be at all diffused, he has
probably a right to vote at more places than one, and therefore
has many representatives. This is the spirit of our constitution:
not that I assert it is in fact quite so perfect as I have here endeavoured
to describe it; for, if any alteration might be wished or
suggested in the present frame of parliaments, it should be in
favour of a more complete representation of the people.

But to return to our qualifications; and first those of electors
for knights of the shire. 1. By statute 8 Hen. VI. c. 7. and
10 Hen. VI. c. 2. The knights of the shires shall be chosen of
people dwelling in the same counties; whereof every man shall
have freehold to the value of forty shillings by the year within
the county; which by subsequent statutes is to be clear of all
charges and deductions, except parliamentary and parochial taxes.
The knights of shires are the representatives of the landholders,
or landed interest, of the kingdom: their electors must therefore
have estates in lands or tenements, within the county represented:
these estates must be freehold, that is, for term of life
at least; because beneficial leases for long terms of years were
not in use at the making of these statutes, and copyholders were
then little better than villeins, absolutely dependent upon their
lord: this freehold must be of forty shillings annual value; because
that sum would then, with proper industry, furnish all the
necessaries of life, and render the freeholder, if he pleased, an
independent man. For bishop Fleetwood, in his chronicon pretiosum
written about sixty years since, has fully proved forty shillings
in the reign of Henry VI to have been equal to twelve
pounds per annum in the reign of queen Anne; and, as the value
of money is very considerably lowered since the bishop wrote, I
think we may fairly conclude, from this and other circumstances,
that what was equivalent to twelve pounds in his days is equivalent
to twenty at present. The other less important qualifications
of the electors for counties in England and Wales may be collected
from the statutes cited in the margin[x]; which direct, 2. That no
person under twenty one years of age shall be capable of voting
for any member. This extends to all sorts of members, as well
for boroughs as counties; as does also the next, viz. 3. That no
person convicted of perjury, or subornation of perjury, shall be
capable of voting in any election. 4. That no person shall vote in
right of any freehold, granted to him fraudulently to qualify him
to vote. Fraudulent grants are such as contain an agreement to
reconvey, or to defeat the estate granted; which agreements are
made void, and the estate is absolutely vested in the person to
whom it is so granted. And, to guard the better against such
frauds, it is farther provided, 5. That every voter shall have
been in the actual possession, or receipt of the profits, of his freehold
to his own use for twelve calendar months before; except
it came to him by descent, marriage, marriage settlement, will,
or promotion to a benefice or office. 6. That no person shall
vote in respect of an annuity or rentcharge, unless registered with
the clerk of the peace twelve calendar months before. 7. That
in mortgaged or trust-estates, the person in possession, under the
abovementioned restrictions, shall have the vote. 8. That only
one person shall be admitted to vote for any one house or tenement,
to prevent the splitting of freeholds. 9. That no estate
shall qualify a voter, unless the estate has been assessed to some
land tax aid, at least twelve months before the election. 10. That
no tenant by copy of court roll shall be permitted to vote as a
freeholder. Thus much for the electors in counties.

As for the electors of citizens and burgesses, these are supposed
to be the mercantile part or trading interest of this kingdom.
But as trade is of a fluctuating nature, and seldom long fixed in
a place, it was formerly left to the crown to summon, pro re nata,
the most flourishing towns to send representatives to parliament.
So that as towns encreased in trade, and grew populous, they
were admitted to a share in the legislature. But the misfortune
is, that the deserted boroughs continued to be summoned, as well
as those to whom their trade and inhabitants were transferred;
except a few which petitioned to be eased of the expence, then
usual, of maintaining their members: four shillings a day being
allowed for a knight of the shire, and two shillings for a citizen or
burgess; which was the rate of wages established in the reign
of Edward III[y]. Hence the members for boroughs now bear
above a quadruple proportion to those for counties, and the number
of parliament men is increased since Fortescue's time, in the
reign of Henry the sixth, from 300 to upwards of 500, exclusive
of those for Scotland. The universities were in general not
empowered to send burgesses to parliament; though once, in
28 Edw. I. when a parliament was summoned to consider of the
king's right to Scotland, there were issued writs, which required
the university of Oxford to send up four or five, and that of Cambridge
two or three, of their most discreet and learned lawyers
for that purpose[z]. But it was king James the first, who indulged
them with the permanent privilege to send constantly two of
their own body; to serve for those students who, though useful
members of the community, were neither concerned in the landed
nor the trading interest; and to protect in the legislature the
rights of the republic of letters. The right of election in boroughs
is various, depending intirely on the several charters, customs,
and constitutions of the respective places, which has occasioned
infinite disputes; though now by statute 2 Geo. II. c. 24. the right
of voting for the future shall be allowed according to the last determination
of the house of commons concerning it. And by
statute 3 Geo. III. c. 15. no freeman of any city or borough (other
than such as claim by birth, marriage, or servitude) shall be intitled
to vote therein unless he hath been admitted to his freedom
twelve calendar months before.

2. Our second point is the qualification of persons to be
elected members of the house of commons. This depends upon
the law and custom of parliaments[a] and the statutes referred to
in the margin[b]. And from these it appears, 1. That they must
not be aliens born, or minors. 2. That they must not be any of
the twelve judges, because they sit in the lords' house; nor of
the clergy, for they sit in the convocation; nor persons attainted
of treason or felony, for they are unfit to sit any where[c]. 3. That
sheriffs of counties, and mayors and bailiffs of boroughs, are not
eligible in their respective jurisdictions, as being returning officers[d];
but that sheriffs of one county are eligible to be knights
of another[e]. 4. That, in strictness, all members ought to be
inhabitants of the places for which they are chosen: but this is
intirely disregarded. 5. That no persons concerned in the management
of any duties or taxes created since 1692, except the
commissioners of the treasury, nor any of the officers following,
(viz. commissioners of prizes, transports, sick and wounded, wine
licences, navy, and victualling; secretaries or receivers of prizes;
comptrollers of the army accounts; agents for regiments; governors
of plantations and their deputies; officers of Minorca or
Gibraltar; officers of the excise and customs; clerks or deputies
in the several offices of the treasury, exchequer, navy, victualling,
admiralty, pay of the army or navy, secretaries of state,
salt, stamps, appeals, wine licences, hackney coaches, hawkers
and pedlars) nor any persons that hold any new office under the
crown created since 1705, are capable of being elected members.
6. That no person having a pension under the crown during pleasure,
or for any term of years, is capable of being elected. 7. That
if any member accepts an office under the crown, except an officer
in the army or navy accepting a new commission, his seat is void;
but such member is capable of being re-elected. 8. That all
knights of the shire shall be actual knights, or such notable
esquires and gentlemen, as have estates sufficient to be knights,
and by no means of the degree of yeomen. This is reduced to
a still greater certainty, by ordaining, 9. That every knight of a
shire shall have a clear estate of freehold or copyhold to the value
of six hundred pounds per annum, and every citizen and
burgess to the value of three hundred pounds; except the eldest
sons of peers, and of persons qualified to be knights of shires, and
except the members for the two universities: which somewhat
ballances[**typo for balances?] the ascendant which the boroughs have gained over the
counties, by obliging the trading interest to make choice of
landed men: and of this qualification the member must make
oath, and give in the particulars in writing, at the time of his
taking his seat. But, subject to these restrictions and disqualifications,
every subject of the realm is eligible of common right.
It was therefore an unconstitutional prohibition, which was inserted
in the king's writs, for the parliament holden at Coventry,
6 Hen. IV, that no apprentice or other man of the law should
be elected a knight of the shire therein[f]: in return for which,
our law books and historians[g] have branded this parliament with
the name of parliamentum indoctum, or the lack-learning parliament;
and sir Edward Coke observes with some spleen[h], that
there was never a good law made thereat.

3. The third point regarding elections, is the method of
proceeding therein. This is also regulated by the law of
parliament, and the several statutes referred to in the margin[i]; all which I shall endeavour to blend together, and extract
out of them a summary account of the method of proceeding to

As soon as the parliament is summoned, the lord chancellor,
(or if a vacancy happens during parliament, the speaker, by order
of the house) sends his warrant to the clerk of the crown in
chancery; who thereupon issues out writs to the sheriff of every
county, for the election of all the members to serve for that
county, and every city and borough therein. Within three days
after the receipt of this writ, the sheriff is to send his precept,
under his seal, to the proper returning officers of the cities and
boroughs, commanding them to elect their members; and the
said returning officers are to proceed to election within eight days
from the receipt of the precept, giving four days notice of the
same; and to return the persons chosen, together with the precept,
to the sheriff.

But elections of knights of the shire must be proceeded to
by the sheriffs themselves in person, at the next county court that
shall happen after the delivery of the writ. The county court is
a court held every month or oftener by the sheriff, intended to
try little causes not exceeding the value of forty shillings, in what
part of the county he pleases to appoint for that purpose: but
for the election of knights of the shire, it must be held at the
most usual place. If the county court falls upon the day of delivering
the writ, or within six days after, the sheriff may adjourn
the court and election to some other convenient time, not longer
than sixteen days, nor shorter than ten; but he cannot alter the
place, without the consent of all the candidates; and in all such
cases ten days public notice must be given of the time and place
of the election.

And, as it is essential to the very being of parliament that
elections should be absolutely free, therefore all undue influences
upon the electors are illegal, and strongly prohibited. For
Mr Locke[k] ranks it among those breaches of trust in the executive
magistrate, which according to his notions amount to a dissolution
of the government, "if he employs the force, treasure,
and offices of the society to corrupt the representatives, or openly
to preingage the electors, and prescribe what manner of persons
shall be chosen. For thus to regulate candidates and electors,
and new model the ways of election, what is it,[** "] says he, [** "]but
to cut up the government by the roots, and poison the very
fountain of public security?" As soon therefore as the time
and place of election, either in counties or boroughs, are fixed,
all soldiers quartered in the place are to remove, at least one day
before the election, to the distance of two miles or more; and
not return till one day after the poll is ended. Riots likewise have
been frequently determined to make an election void. By vote
also of the house of commons, to whom alone belongs the power
of determining contested elections, no lord of parliament, or lord
lieutenant of a county, hath any right to interfere in the election
of commoners; and, by statute, the lord warden of the cinque
ports shall not recommend any members there. If any officer of
the excise, customs, stamps, or certain other branches of the revenue,
presumes to intermeddle in elections, by persuading any
voter or dissuading him, he forfeits 100l, and is disabled to hold
any office.

Thus are the electors of one branch of the legislature secured
from any undue influence from either of the other two, and
from all external violence and compulsion. But the greatest danger
is that in which themselves co-operate, by the infamous practice
of bribery and corruption. To prevent which it is enacted
that no candidate shall, after the date (usually called the teste) of
the writs, or after the vacancy, give any money or entertainment
to his electors, or promise to give any, either to particular persons,
or to the place in general, in order to his being elected;
on pain of being incapable to serve for that place in parliament.
And if any money, gift, office, employment, or reward be given
or promised to be given to any voter, at any time, in order to influence
him to give or withhold his vote, both he that takes and
he that offers such bribe forfeits 500l, and is for ever disabled
from voting and holding any office in any corporation; unless,
before conviction, he will discover some other offender of the
same kind, and then he is indemnified for his own offence[l]. The
first instance that occurs of election bribery, was so early as
13 Eliz. when one Thomas Longe (being a simple man and of
small capacity to serve in parliament) acknowleged that he had
given the returning officer and others of the borough of Westbury
four pounds to be returned member, and was for that premium
elected. But for this offence the borough was amerced,
the member was removed, and the officer fined and imprisoned[m].
But, as this practice hath since taken much deeper and more universal
root, it hath occasioned the making of these wholesome
statutes; to complete the efficacy of which, there is nothing wanting
but resolution and integrity to put them in strict execution.

Undue influence being thus (I wish the depravity of mankind
would permit me to say, effectually) guarded against, the
election is to be proceeded to on the day appointed; the sheriff
or other returning officer first taking an oath against bribery, and
for the due execution of his office. The candidates likewise, if
required, must swear to their qualification; and the electors in
counties to theirs; and the electors both in counties and boroughs
are also compellable to take the oath of abjuration and that against
bribery and corruption. And it might not be amiss, if the members
elected were bound to take the latter oath, as well as the
former; which in all probability would be much more effectual,
than administring it only to the electors.

The election being closed, the returning officer in boroughs
returns his precept to the sheriff, with the persons elected by the
majority: and the sheriff returns the whole, together with the
writ for the county and the knights elected thereupon, to the
clerk of the crown in chancery; before the day of meeting, if it
be a new parliament, or within fourteen days after the election,
if it be an occasional vacancy; and this under penalty of 500l.
If the sheriff does not return such knights only as are duly elected,
he forfeits, by the old statutes of Henry VI, 100l; and the returning
officer in boroughs for a like false return 40l; and they
are besides liable to an action, in which double damages shall be
recovered, by the later statutes of king William: and any person
bribing the returning officer shall alio forfeit 300l. But the
members returned by him are the sitting members, until the
house of commons, upon petition, shall adjudge the return to
be false and illegal. And this abstract of the proceedings at elections
of knights, citizens, and burgesses, concludes our enquiries
into the laws and customs more peculiarly relative to the house
of commons.

"End of Section 18"

Blackstone, ch 2 p 3

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III. We are next to examine the laws and customs relating to
parliament, thus united together and considered as one aggregate

The power and jurisdiction of parliament, says sir Edward
Coke[c], is so transcendent and absolute, that it cannot be confined,
either for causes or persons, within any bounds. And of this
high court he adds, it may be truly said "si antiquitatem spectes,
est vetustissima; si dignitatem, est honoratissima; si juridictionem,
est capacissima
." It hath sovereign and uncontrolable[**uncontrollable ?] authority
in making, confirming, enlarging, restraining, abrogating, repealing,
reviving, and expounding of laws, concerning matters
of all possible denominations, ecclesiastical, or temporal, civil,
military, maritime, or criminal: this being the place where that
absolute despotic power, which must in all governments reside
somewhere, is entrusted by the constitution of these kingdoms.
All mischiefs and grievances, operations and remedies, that transcend
the ordinary course of the laws, are within the reach of
this extraordinary tribunal. It can regulate or new model the
succession to the crown; as was done in the reign of Henry VIII
and William III. It can alter the established religion of the land;
as was done in a variety of instances, in the reigns of king
Henry VIII and his three children. It can change and create
afresh even the constitution of the kingdom and of parliaments
themselves; as was done by the act of union, and the several
statutes for triennial and septennial elections. It can, in short,
do every thing that is not naturally impossible; and therefore
some have not scrupled to call it's power, by a figure rather too
bold, the omnipotence of parliament. True it is, that what
they do, no authority upon earth can undo. So that it is a matter
most essential to the liberties of this kingdom, that such members
be delegated to this important trust, as are most eminent for
their probity, their fortitude, and their knowlege; for it was a
known apothegm of the great lord treasurer Burleigh, "that
England could never be ruined but by a parliament:" and, as
sir Matthew Hale observes[d], this being the highest and greatest
court, over which none other can have jurisdiction in the kingdom,
if by any means a misgovernment should any way fall upon
it, the subjects of this kingdom are left without all manner of
remedy. To the same purpose the president Montesquieu, though
I trust too hastily, presages[e]; that as Rome, Sparta, and Carthage
have lost their liberty and perished, so the constitution of
England will in time lose it's liberty, will perish: it will perish,
whenever the legislative power shall become more corrupt than
the executive.

It must be owned that Mr Locke[f], and other theoretical writers,
have held, that "there remains still inherent in the people
a supreme power to remove or alter the legislative, when they
find the legislative act contrary to the trust reposed in them:
for when such trust is abused, it is thereby forfeited, and devolves
to those who gave it." But however just this conclusion
may be in theory, we cannot adopt it, nor argue from it, under
any dispensation of government at present actually existing. For
this devolution of power, to the people at large, includes in it a
dissolution of the whole form of government established by that
people, reduces all the members to their original state of equality,
and by annihilating the sovereign power repeals all positive
laws whatsoever before enacted. No human laws will therefore
suppose a case, which at once must destroy all law, and compel
men to build afresh upon a new foundation; nor will they make
provision for so desperate an event, as must render all legal provisions
ineffectual. So long therefore as the English constitution
lasts, we may venture to affirm, that the power of parliament is
absolute and without control.

In order to prevent the mischiefs that might arise, by placing
this extensive authority in hands that are either incapable, or else
improper, to manage it, it is provided that no one shall sit or
vote in either house of parliament, unless he be twenty one years
of age. This is expressly declared by statute 7 & 8 W. III. c. 25.
with regard to the house of commons; though a minor was incapacitated
before from sitting in either house, by the law and
custom of parliament[g]. To prevent crude innovations in religion
and government, it is enacted by statute 30 Car. II. st. 2. and
1 Geo. I. c. 13. that no member shall vote or sit in either house,
till he hath in the presence of the house taken the oaths of allegiance,
supremacy, and abjuration, and subscribed and repeated
the declaration against transubstantiation, and invocation of saints,
and the sacrifice of the mass. To prevent dangers that may arise
to the kingdom from foreign attachments, connexions, or dependencies,
it is enacted by the 12 & 13 W. III. c. 2. that no alien,
born out of the dominions of the crown of Great Britain, even
though he be naturalized, shall be capable of being a member of
either house of parliament.

Farther: as every court of justice hath laws and customs
for it's direction, some the civil and canon, some the common
law, others their own peculiar laws and customs, so the high
court of parliament hath also it's own peculiar law, called the
lex et consuetudo parliamenti; a law which sir Edward Coke[h] observes,
is "ab omnibus quaerenda, a multis ignorata, a paucis cognita."
It will not therefore be expected that we should enter
into the examination of this law, with any degree of minuteness;
since, as the same learned author assures us[i], it is much
better to be learned out of the rolls of parliament, and other records,
and by precedents, and continual experience, than can be
expressed by any one man. It will be sufficient to observe, that
the whole of the law and custom of parliament has it's original
from this one maxim; "that whatever matter arises concerning
either house of parliament, ought to be examined, discussed,
and adjudged in that house to which it relates, and not elsewhere." Hence, for instance, the lords will not suffer the
commons to interfere in settling a claim of peerage; the commons
will not allow the lords to judge of the election of a burgess;
nor will either house permit the courts of law to examine
the merits of either case. But the maxims upon which they proceed,
together with their method of proceeding, rest entirely in
the breast of the parliament itself; and are not defined and ascertained
by any particular stated laws.

The privileges of parliament are likewise very large and indefinite;
which has occasioned an observation, that the principal
privilege of parliament consisted in this, that it's privileges were
not certainly known to any but the parliament itself. And therefore
when in 31 Hen. VI the house of lords propounded a question
to the judges touching the privilege of parliament, the chief
justice, in the name of his brethren, declared, "that they ought
not to make answer to that question; for it hath not been used
aforetime that the justices should in any wise determine the
privileges of the high court of parliament; for it is so high
and mighty in his nature, that it may make law; and that
which is law, it may make no law; and the determination and
knowlege of that privilege belongs to the lords of parliament,
and not to the justices[k].[**missing "] Privilege of parliament was principally
established, in order to protect it's members not only from
being molested by their fellow-subjects, but also more especially
from being oppressed by the power of the crown. If therefore
all the privileges of parliament were once to be set down and ascertained,
and no privilege to be allowed but what was so defined
and determined, it were easy for the executive power to devise
some new case, not within the line of privilege, and under pretence
thereof to harass any refractory member and violate the
freedom of parliament. The dignity and independence of the
two houses are therefore in great measure preserved by keeping
their privileges indefinite. Some however of the more notorious
privileges of the members of either house are, privilege of speech,
of person, of their domestics, and of their lands and goods.
As to the first, privilege of speech, it is declared by the statute
1 W. & M. st. 2. c. 2. as one of the liberties of the people,
"that the freedom of speech, and debates, and proceedings in
parliament, ought not to be impeached or questioned in any
court or place out of parliament." And this freedom of speech
is particularly demanded of the king in person, by the speaker of
the house of commons, at the opening of every new parliament.
So likewise are the other privileges, of person, servants, lands
and goods; which are immunities as antient as Edward the confessor,
in whose laws[l] we find this precept. "Ad synodos venientibus,
sive summoniti sint, sive per se quid agendum habuerint, sit
summa pax
:" and so too, in the old Gothic constitutions, "extenditur
haec pax et securitas ad quatuordecim dies, convocato
regni senatu
[m]." This includes not only privilege from illegal
violence, but also from legal arrests, and seisures by process from
the courts of law. To assault by violence a member of either
house, or his menial servants, is a high contempt of parliament,
and there punished with the utmost severity. It has likewise peculiar
penalties annexed to it in the courts of law, by the statutes
5 Hen. IV. c. 6. and 11 Hen. VI. c. 11. Neither can any member
of either house be arrested and taken into custody, nor served
with any process of the courts of law; nor can his menial servants
be arrested; nor can any entry be made on his lands; nor
can his goods be distrained or seised; without a breach of the
privilege of parliament. These privileges however, which derogate
from the common law, being only indulged to prevent the
member's being diverted from the public business, endure no longer
than the session of parliament, save only as to the freedom
of his person: which in a peer is for ever sacred and inviolable;
and in a commoner for forty days after every prorogation, and
forty days before the next appointed meeting[n]; which is now
in effect as long as the parliament subsists, it seldom being prorogued
for more than fourscore days at a time. But this privilege
of person does not hold in crimes of such public malignity as
treason, felony, or breach of the peace[o]; or rather perhaps in
such crimes for which surety of the peace may be required. As
to all other privileges which obstruct the ordinary course of justice,
they cease by the statutes 12 W. III. c. 3. and 11 Geo. II.
c. 24. immediately after the dissolution or prorogation of the
parliament, or adjournment of the houses for above a fortnight;
and during these recesses a peer, or member of the house of commons,
may be sued like an ordinary subject, and in consequence
of such suits may be dispossessed of his lands and goods. In these
cases the king has also his prerogative: he may sue for his debts,
though not arrest the person of a member, during the sitting of
parliament; and by statute 2 & 3 Ann. c. 18. a member may
be sued during the sitting of parliament for any misdemesnor or
breach of trust in a public office. Likewise, for the benefit of
commerce, it is provided by statute 4 Geo. III. c. 33, that any
trader, having privilege of parliament, may be served with legal
process for any just debt, (to the amount of 100l.) and unless
he makes satisfaction within two months, it shall be deemed an
act of bankruptcy; and that commissions of bankrupt may be
issued against such privileged traders, in like manner as against
any other.

These are the general heads of the laws and customs relating
to parliament, considered as one aggregate body. We will
next proceed to
[note: the above is correct. ~jc]

IV. The laws and customs relating to the house of lords in
particular. These, if we exclude their judicial capacity, which
will be more properly treated of in the third and fourth books of
these commentaries, will take up but little of our time.

One very antient privilege is that declared by the charter of
the forest[p], confirmed in parliament 9 Hen. III; viz. that every
lord spiritual or temporal summoned to parliament, and passing
through the king's forests, may, both in going and returning, kill
one or two of the king's deer without warrant; in view of the
forester, if he be present; or on blowing a horn if he be absent,
that he may not seem to take the king's venison by stealth.

In the next place they have a right to be attended, and constantly
are, by the judges of the court of king's bench and commonpleas,
and such of the barons of the exchequer as are of the
degree of the coif, or have been made serjeants at law; as likewise
by the masters of the court of chancery; for their advice
in point of law, and for the greater dignity of their proceedings.
The secretaries of state, the attorney and solicitor general, and
the rest of the king's learned counsel being serjeants, were also
used to attend the house of peers, and have to this day their regular
writs of summons issued out at the beginning of every parliament[q]:
but, as many of them have of late years been members
of the house of commons, their attendance is fallen into disuse.

Another privilege is, that every peer, by licence obtained
from the king, may make another lord of parliament his proxy,
to vote for him in his absence[r]. A privilege which a member of
the other house can by no means have, as he is himself but a
proxy for a multitude of other people[s].

Each peer has also a right, by leave of the house, when a
vote passes contrary to his sentiments, to enter his dissent on the
journals of the house, with the reasons for such dissent; which
is usually stiled his protest.

All bills likewise, that may in their consequences any way
affect the rights of the peerage, are by the custom of parliament
to have their first rise and beginning in the house of peers, and
to suffer no changes or amendments in the house of commons.

There is also one statute peculiarly relative to the house of
lords; 6 Ann. c. 23. which regulates the election of the sixteen
representative peers of North Britain, in consequence of the
twenty second and twenty third articles of the union: and for
that purpose prescribes the oaths, &c, to be taken by the electors;
directs the mode of balloting; prohibits the peers electing from
being attended in an unusual manner; and expressly provides,
that no other matter shall be treated of in that assembly, save
only the election, on pain of incurring a praemunire.

"End of Section 17"

Blackstone, ch 2 p 2

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II. The constituent parts of a parliament are the next objects
of our enquiry. 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[n]. And the king and these three estates, together, form
the great corporation or body politic of the kingdom, of which
the king is said to be caput, principium, et finis. For upon their
coming together the king meets them, either in person or by representation;
without which there can be no beginning of a parliament[o];
and he also has alone the power of dissolving them.

It is highly necessary for preserving the ballance of the constitution,
that the executive power should be a branch, though
not the whole, of the legislature. 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 legislature 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[p]. 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 it's 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 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 enquiring into, impeaching,
and punishing the conduct (not indeed of the king, 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
themselves, 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.

Let us now consider these constituent parts of the sovereign
power, or parliament, each in a separate view. The king's majesty
will be the subject of the next, and many subsequent chapters,
to which we must at present refer.

The next in order are the spiritual lords. These consist of
two arch-bishops, and twenty four bishops; and, at the dissolution
of monasteries by Henry VIII, consisted likewise of twenty
six mitred abbots, and two priors[q]: a very considerable body,
and in those times equal in number to the temporal nobility[r].
All these hold, or are supposed to hold, certain antient baronies
under the king: for William the conqueror thought proper to
change the spiritual tenure, of frankalmoign or free alms, under
which the bishops held their lands during the Saxon government,
into the feodal or Norman tenure by barony; which subjected
their estates to all civil charges and assessments, from which they
were before exempt[s]: and, in right of succession to those baronies,
the bishops obtained their seat in the house of lords[t]. But
though these lords spiritual are in the eye of the law a distinct
estate from the lords temporal, and are so distinguished in all our
acts of parliament, yet in practice they are usually blended together
under the one name of the lords; they intermix in their
votes; and the majority of such intermixture binds both estates.
For if a bill should pass their house, there is no doubt of it's being
effectual, though every lord spiritual should vote against it; of
which Selden[u], and sir Edward Coke[w], give many instances: as,
on the other hand, I presume it would be equally good, if the
lords temporal present were inferior to the bishops in number,
and every one of those temporal lords gave his vote to reject the
bill; though this sir Edward Coke seems to doubt of[x].

The lords temporal consist of all the peers of the realm (the
bishops not being in strictness held to be such, but merely lords
of parliament[y]) by whatever title of nobility distinguished;
dukes, marquisses, earls, viscounts, or barons; of which dignities
we shall speak more hereafter. Some of these sit by descent,
as do all antient peers; some by creation, as do all new-made
ones; others, since the union with Scotland, by election, which
is the case of the sixteen peers, who represent the body of the
Scots nobility. Their number is indefinite, and may be encreased
at will by the power of the crown: and once, in the reign of
queen Anne, there was an instance of creating no less than twelve
together; in contemplation of which, in the reign of king George
the first, a bill passed the house of lords, and was countenanced
by the then ministry, for limiting the number of the peerage.
This was thought by some to promise a great acquisition to the
constitution, by restraining the prerogative from gaining the ascendant
in that august assembly, by pouring in at pleasure an unlimited number of new created lords. But the bill was ill-relished
and miscarried in the house of commons, whose leading members
were then desirous to keep the avenues to the other house
as open and easy as possible.

The distinction of rank and honours is necessary in every well-governed
state; in order to reward such as are eminent for their
services to the public, in a manner the most desirable to individuals,
and yet without burthen to the community; exciting
thereby an ambitious yet laudable ardor, and generous emulation
in others. And emulation, or virtuous ambition, is a spring of
action which, however dangerous or invidious in a mere republic
or under a despotic sway, will certainly be attended with good
effects under a free monarchy; where, without destroying it's
existence, it's excesses may be continually restrained by that superior
power, from which all honour is derived. Such a spirit,
when nationally diffused, gives life and vigour to the community;
it sets all the wheels of government in motion, which under a
wise regulator, may be directed to any beneficial purpose; and
thereby every individual may be made subservient to the public
good, while he principally means to promote his own particular
views. A body of nobility is also more peculiarly necessary in
our mixed and compounded constitution, in order to support the
rights of both the crown and the people, by forming a barrier to
withstand the encroachments of both. It creates and preserves
that gradual scale of dignity, which proceeds from the peasant to
the prince; rising like a pyramid from a broad foundation, and
diminishing to a point as it rises. It is this ascending and contracting
proportion that adds stability to any government; for
when the departure is sudden from one extreme to another, we
may pronounce that state to be precarious. The nobility therefore
are the pillars, which are reared from among the people, more
immediately to support the throne; and if that falls, they must
also be buried under it's ruins. Accordingly, when in the last
century the commons had determined to extirpate monarchy, they
also voted the house of lords to be useless and dangerous. And
since titles of nobility are thus expedient in the state, it is also
expedient that their owners should form an independent and separate
branch of the legislature. If they were confounded with the
mass of the people, and like them had only a vote in electing
representatives, their privileges would soon be borne down and
overwhelmed by the popular torrent, which would effectually
level all distinctions. It is therefore highly necessary that the
body of nobles should have a distinct assembly, distinct deliberations,
and distinct powers from the commons.

The commons consist of all such men of any property in the
kingdom as have not seats in the house of lords; every one of
which has a voice in parliament, either personally, or by his representatives.
In a free state, every man, who is supposed a free
agent, ought to be, in some measure, his own governor; and
therefore a branch at least of the legislative power should reside
in the whole body of the people. And this power, when the
territories of the state are small and it's citizens easily known,
should be exercised by the people in their aggregate or collective
capacity, as was wisely ordained in the petty republics of Greece,
and the first rudiments of the Roman state. But this will be
highly inconvenient, when the public territory is extended to any
considerable degree, and the number of citizens is encreased.
Thus when, after the social war, all the burghers of Italy were
admitted free citizens of Rome, and each had a vote in the public
assemblies, it became impossible to distinguish the spurious
from the real voter, and from that time all elections and popular
deliberations grew tumultuous and disorderly; which paved the
way for Marius and Sylla, Pompey and Caesar, to trample on
the liberties of their country, and at last to dissolve the commonwealth.
In so large a state as ours it is therefore very wisely
contrived, that the people should do that by their representatives,
which it is impracticable to perform in person: representatives,
chosen by a number of minute and separate districts, wherein all
the voters are, or easily may be, distinguished. The counties are
therefore represented by knights, elected by the proprietors of
lands; the cities and boroughs are represented by citizens and
burgesses, chosen by the mercantile part or supposed trading interest
of the nation; much in the same manner as the burghers
in the diet of Sweden are chosen by the corporate towns, Stockholm
sending four, as London does with us, other cities two,
and some only one[z]. The number of English representatives is
513, and of Scots 45; in all 558. And every member, though
chosen by one particular district, when elected and returned serves
for the whole realm. For the end of his coming thither is not
particular, but general; not barely to advantage his constituents,
but the common wealth; to advise his majesty (as appears from
the writ of summons[a]) "de communi consilio super negotiis quibusdam
arduis et urgentibus, regem, statum et defensionem regni Angliae
et ecclesiae Anglicanae concernentibus
." And therefore he is
not bound, like a deputy in the united provinces, to consult with,
or take the advice, of his constituents upon any particular point,
unless he himself thinks it proper or prudent so to do.

These are the constituent parts of a parliament, the king,
the lords spiritual and temporal, and the commons. Parts, of
which each is so necessary, that the consent of all three is required
to make any new law that shall bind the subject. Whatever
is enacted for law by one, or by two only, of the three is no statute;
and to it no regard is due, unless in matters relating to their
own privileges. For though, in the times of madness and anarchy,
the commons once passed a vote[b], "that whatever is enacted or
declared for law by the commons in parliament assembled hath
the force of law; and all the people of this nation are concluded
thereby, although the consent and concurrence of the king
or house of peers be not had thereto;" yet, when the constitution
was restored in all it's forms, it was particularly enacted by
statute 13 Car. II. c. 1. that if any person shall maliciously or advisedly
affirm, that both or either of the houses of parliament
have any legislative authority without the king, such person shall
incur all the penalties of a praemunire.

"End of Section 16"

Blackstone, ch 2 p 1

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Chapter the second.


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 also some 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 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, 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 parliaments is one of those
matters that 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 (or colloquium, as some of our historians
translate it) is comparatively of modern date, derived from
the French, and signifying the place where they 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; for what is there now called the parliament is
only the supreme court of justice, composed of judges and advocates;
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 meeting, and more frequently
wittena-gemote or the meeting of wise men. It was also stiled in
Latin, commune concilium regni, magnum concilium regis, curia
magna, conventus magnatum vel procerum, assisa generalis, and
sometimes communitas regni Angliae[c]. We have instances of it's
meeting to order the affairs of the kingdom, to make new laws,
and to amend the old, or, as Fleta[d] 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 mirrour[e] 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, "haec
sunt instituta, quae Edgarus rex consilio sapientum suorum instituit
or to be enacted by those sages with the advice of the
king, as, "haec sunt judicia, quae sapientes consilio regis Ethelstani
;" or lastly, to be enacted by them both together,
as; "hae sunt institutiones, qu[**e? **a]s rex Edmundus et episcopi sui cum
sapientibus suis instituerunt

There is also no doubt but these great councils were held
regularly 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 yet been ascertained by the general assise, or assembly,
but was left to the custom of particular counties[f]. Here
the general assise is spoken of as a meeting well known, and it's
statutes or decisions are put in a manifest contradistinction to customs,
or the common 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 court[g].

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 antiquarians;
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 arch-bishops, 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 enquire wherein consists this constitution
of parliament, as it now stands, and has stood for the space of
five hundred years. And in the prosecution of this enquiry, 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.

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. It is a branch of the royal prerogative,
that no parliament can be convened by it's 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 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 it's dignity
and independence, that it should be called together by none
but one of it's 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[h]. 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 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 king neglected to call a parliament for three years,
the peers might assemble and issue out writs for the 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
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[i]. 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 wave 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[k], 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.

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
an apprehension that king James the second had abdicated the
government, and that the throne was thereby vacant: which
apprehension of theirs 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 & 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.

And this by the antient statutes of the realm[l], 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 dispatch of business, if need be. These last words,
are so loose and vague, that such of our monarchs as were enclined
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. & 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. & 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[m]
after the determination of the former.

"End of section 15"