Tuesday, April 29, 2008

Blackstone, ch 2 p 1

"Section 15. Part 1 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"
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"Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 2, part 1"

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"