The original or first institution of parliament is one of those matters which lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain (1). The word parliament itself, (parlement or colloquium, as some of our historians translate it,) is comparatively of modern date; derived from the French, and signifying an assembly that met and conferred together. It was first applied to general assemblies of the states under Louis VII. in France, about the middle of the twelfth century (a). But it is certain that, long before the introduction of the Norman language into England, all matters of importance were debated and settled in the great councils of the realm: a practice which seems to have been universal among the northern nations, particularly the Germans (b), and carried by them into all the countries of Europe, which they overran at the dissolution of the Roman empire: relics of which constitution, under various modifications and changes, are still to be met with in the diets of Poland, Germany, and Sweden, and the assembly of the estates in France (c); for what is there now called the parliament is only the supreme court of justice, consisting of the peers, certain dignified ecclesiastics, and judges, which neither is in practice, nor is supposed to be in theory, a general council of the realm.

With us in England this general council hath been held immemorially, under the several names of michel-synoth or great council, michel

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

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

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

It was from the use of the word parliamentum that Prynne discovered Lord Coke's manuscript, Modus tenendi parliamentum tempore regis Edwardi, filii regis Etheldredi, &c. to be spurious. Lord Coke sets a high value upon it, and has assured us, "that certain it is, this modus was rehearsed and declared before the conqueror at the conquest, and by him approved. (4 Inst. 13.) But for many reigns after this word was introduced, it was indiscriminately applied to a session, and to the duration of the writ of summons: we now confine it to the latter, viz. to the period between the meeting after the return of the writ of summons and the dissolution. Etymology is not always frivolous pedantry; it sometimes may afford an useful comment upon the original signification of a word. No inconsiderable pains have been bestowed by learned men in analysing the word parliament; though the following specimens will serve rather to amuse than to instruct: "The word parliament,” saith one, "is compounded of parium lamentum, because (as he thinks,) "the peers of the realm did at these assemblies lament and complain each to the other of the enormities of the country, and thereupon provided redress for the same." (Lamb. Arch. 235.) Whitelock, in his notes (174) declares, "that this derivation of parliament is a sad etymology." Lord Coke, and

(c) These were assembled for the last time, A. D. 1561. (See Whitelocke of Parl. c. 72.) or according to Robertson, A. D. 1614. (Hist. Cha. V. i. 369.)

many others, say, that "it is called parliament, because every member of that court should sincerely and discreetly parler la ment, speak his mind for the general good of the commonwealth." (Co. Litt. 110.) Mr. Lambard informs us, that "Lawrence Vallo misliketh this derivation." (Arch. 236.) And Lawrence Vallo is not singular: for Mr. Barrington assures us, that "lord Coke's etymology of the word parliament, from speaking one's mind, has been long exploded. If one might presume (adds he,) to substitute another in its room after so many guesses by others, I should suppose it was a compound of the two Celtic words parly and ment, or mend. Both these words are to be found in Bullet's Celtic Dictionary, published at Besançon in 1754, 3d vol. fol. He renders parly by the French infinitive parler; and we use the word in England as a substantive, viz. parley; ment or mend is rendered quantitè, abondance. The word parlia ment, therefore, being resolved into its constituent syllables, may not improperly be said to signify what the Indians of North America call a Great Talk." I shall leave it to the reader to determine which of these derivations is most descriptive of a parliament; and perhaps, after so much recondite learning, it may appear presumptuous in me to observe, that parliament imported originally nothing more than a council or conference, and that ment in parliament has no more signification than it has in impeachment, engagement, imprisonment, hereditament, and ten thousand others of the same nature, though the civilians have adopted a similar derivation, viz. testament from testari mentem. Tay. Civ. Law, 70.

gemote or great meeting, and more frequently wittena-gemote, or [148] the meeting of wise men. It was also styled in Latin, commune concilium regni, magnum concilium regis, curia magna, conventus magnatum vel procerum, assisa generalis, and sometimes communitas regni Angliæ (d). We have instances of its meeting to order the affairs of the kingdom, to make new laws, and to mend the old, or, as Fleta (e) expresses it, “novis injuriis emersis nova constituere remedia," so early as the reign of Ina King of the West Saxons, Offa King of the Mercians, and Ethelbert King of Kent, in the several realms of the heptarchy. And, after their union, the Mirror (f) informs us, that King Alfred ordained for a perpetual usage, that these councils should meet twice in the year, or oftener, if need be, to treat of the government of God's people; how they should keep themselves from sin, should live in quiet, and should receive right. Our succeeding Saxon and Danish monarchs held frequent councils of this sort, as appears from their respective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wise men, as, hæc sunt instituta, que Edgarus rex consilio sapientum suorum instituit;" or to be enacted by those sages with the advice of the king, as, "hæc sunt judicia, que sapientes consilio regis Ethelstani instituerunt;" or lastly, to be enacted by them both together, as, "hæc sunt institutiones, quas rex Edmundus et episcopi sui cum sapientibus suis instituerunt."

There is also no doubt but these great councils were occasionally held under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry the Second, speaking of the particular amount of an amercement in the sheriff's court, says, it had never been yet ascertained by the general assize, or assembly, but was left to the custom of particular counties (g). Here the general assise is spoken of as a meeting well known, and its statutes or decisions are put in *a manifest contra- [*149] distinction to custom, 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 (h).

Hence it indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. How those parliaments were constituted and composed, is another question, which has been matter of great dispute among our learned antiquaries; and, particularly, whether the commons were summoned at all; or, if summoned, at what period they began to form a distinct assembly. But it is not my intention here to enter into controversies of this sort. I hold it sufficient that it is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of King John, A, D. 1215, in the great charter granted by that prince; wherein he promises to summon all archbishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with forty days' notice, to assess aids and scutages when necessary. And this constitution has subsisted in fact at least from the year 1266, 49 Hen. III.: there being still extant writs of that date, to summon knights, citizens, and burgesses, to parliament. I proceed therefore

(d) Glanvil. I. 13. c. 32. l. 9. c. 10.-Pref. 9 Rep. -2 Inst. 526.

(e) L. 2. c. 2.

(f) C. 1. § 3.

(g) Quanta esse debeat per nullam assisam generalem determinatum est, sed pro consuetudine singu

lorum comitatum debetur. 1. 9. c. 10.

(h) Year book, 21 Edw. III. 60.

to inquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of at least five hundred years. And in the prosecution of this inquiry, I shall consider, first, the manner and time of its assembling: secondly, its constituent parts: thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and distinctly taken: sixthly, the methods of proceeding, and of making stastutes, in both houses and lastly, the manner of the parliament's adjournment, prorogation and dissolution.

[*150] *I. As to the manner and time of assembling. The parliament is regularly to be summoned by the king's writ or letter, issued out of chancery by advice of the privy council, at least forty days before it begins to sit (2), (3). It is a branch of the royal prerogative, that no parliament can be convened by its own authority, or by the authority of any, except the king alone. And this prerogative is founded upon very good reason. For, supposing it had a right to meet spontaneously, without being 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 its dignity and independence, that it should be called together by none but one of its own constituent parts: and, of the three constituent parts, this office can only appertain to the king; as he is a single person, whose will may be uniform and steady; the first person in the nation, being superior to both houses in dignity; and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being (i). Nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and it is to sit again for six months, unless dissolved by the successor for this revived parliament must have been originally summoned by the crown.

[*151]

*It is true, that by a statute, 16 Car. I. c. 1, it was enacted, that,

(1) By motives somewhat similar to these the republic of Venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chosen by the several districts of the Venetian territory, and constituted a doge in their stead; in whom the executive power of the state at present resides. For

(2) Now, it is enacted by 37 Geo. III. c. 127, that his majesty may issue his proclamation for the meeting of parliament, in fourteen days from the date thereof; (not withstanding a previous adjournment to a longer day. 39 and 40 Geo. III. c. 14.) And in case of the king's demise after the dissolution of a parliament, and before the assembling of a new one, the last preceding parliament shall meet and sit. The same also, if the successor to the crown die within six months, without having dissolved the parliament, or after the same shall have been dissolved, and before a new one shall have met. It is also enacted, that in case of the king's demise, on, or after the day appointed for assembling a new parlia

which their historians have assigned these, as the principal reasons. 1. The propriety of having the executive power a part of the legislative, or senate; to which the former annual magistrates were not admitted. 2. The necessity of having a single person to convoke the great council when separated. (Mod. Un. Hist. xxvii. 15.)

ment, such new parliament shall meet and sit.

(3) This is a provision of the magna charta of King John: faciemus summoneri, &c. ad certum diem scilicet ad terminum quadraginta dierum ad minus et ad certum locum. (Black. Mag. Ch. Joh. 14.) It is enforced by 7 and 8 W. c. 25, which enacts that there shall be forty days between the teste and the return of the writ of summons; and this time is by the uniform practice since the union extended to fifty days. (2 Hats. 235.) This practice was introduced by the 22d article of the act of union, which required that time between the teste and the return of the writ of summons for the first parliament of Great Britain.

if the king neglected to call a parliament for three years, the peers. might assemble and issue out writs for choosing one; and, in case of neglect of the peers, the constituents might meet and elect one themselves. But this, if ever put in practice, would have been liable to all the inconveniences I have just now stated; and the act itself was esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed by statute 16 Car. II. c. 1. From thence therefore no precedent can be drawn.

It is also true, that the convention-parliament, which restored King Charles the Second, met above a month before his return; the lords by their own authority, and the commons, in pursuance of writs issued in the name of the keepers of the liberty of England, by authority of parliament: and that the said 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 (k). So that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to 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 (1), whether even this healing act made it a good parliament; and held by very many in the negative: though it seems to have been too nice a scruple (4). And yet, out of abundant caution, it was thought necessary to confirm its acts in the next parliament, by statute 13 Car. II. c. 7, and c. 14.

*It is likewise true, that at the time of the revolution, A. D. 1688, [*152] the lords and commons by their own authority, and upon the summons of the Prince of Orange, (afterwards King William,) met in a convention, and therein disposed of the crown and kingdom. But it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon a full conviction that King James the Second had abdicated the government, and that the throne was thereby vacant: which supposition of the individual members was confirmed by their concurrent resolution, when they actually came together. And, in such a case as the palpable vacancy of a throne, it follows ex necessitate rei, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. For, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail and become extinct, which would indisputably vacate the throne in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government; otherwise there must be no government at all. And upon this and no other principle, did the convention in 1688 assemble. The vacancy of the throne was precedent to their meeting without any

(k) Stat. 12 Car. II. c. 1.

(4) William Drake, a merchant of London, was impeached for writing a pamphlet, entitled The Long Parliament revived, in which he maintained that there could be no legislative VOL. I.

19

(7) 1 Sid. 1.

authority till that was legally and regularly dissolved by the king and the two houses of parliament, according to the 16 Car. I. c. 7. Com. Jour. 20 Nov. 1660.

royal summons, not a consequence of it. They did not assemble without writ, and then make the throne vacant; but, the throne being previously vacant by the king's abdication, they assembled without writ, as they must do if they assembled at all. Had the throne been full, their meeting would not have been regular; but, as it was really empty, such meeting became absolutely necessary. And accordingly it is declared by statute 1 W. and M. st. 1. c. 1, that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. So that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in the government,) the rule laid down is in general certain, that the king, only, can convoke a parliament.

[*153] *And this by the ancient statutes of the realm (m) he is bound to do every year, or oftener, if need be. Not that he is, or ever was, obliged by these statutes to call a new parliament every year; but only to permit a parliament to sit annually for the redress of grievances, and dispatch of business, if need be (5). These last words are so loose and vague, that such of our monarchs as were inclined 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. and M. st. 2. e 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. and 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 (n) after the determination of the former (6).

II. The constituent parts of a parliament are the next objects of our

(m) 4 Edw. III. c. 14. 36 Edw. III. c. 10.

Sweden for intermitting their general diets, or par(n) This is the same period, that is allowed in liamentary assemblies. Mod. Un. Hist. xxxiii. 15.

(6) Mr. Granville Sharp, in a treatise published some years ago, argued ingeniously against this construction of the 4 Ed. III. and maintained that the words, if need be, referred only to the preceding word, oftener. So that the true signification was, that a parliament should be held once every year at all events; and if there should be any need to hold it oftener, then more than once. (See his Declaration, &c. p. 166.) The cotemporary records of parliament, in some of which it is so expressed without any ambiguity, prove beyond all controversy that this is the true construction. In ancient times many favourite laws were frequently re-enacted. In the 50 Edw. III. it is expressly and absolutely declared, that a parliament should be held once a year. Rot. Parl. No. 186. In the 1 R. II. we find again another petition from the commons, that a parliament should be held once a year at the least: "Que plese a nre dit Sr de tenir parlement un foetz par an au meynz, et ceo en lieu convenable." The king's answer is, "As to that parliament shall be held every year, let the statutes thereupon be kept and preserved; but as to the place where the parliament shall be held, the

king will therein do his pleasure." (Rot. Parl. No. 95.) And in the next year, the king declared he had summoned the parliament, because it was ordained that parliament should be held once a year. (Rat. Parl. 2 R. II. No. 4.)

(6) This part of the statute 6 W. and M. c. 2, confirms the statute 16 Car. II. c. 1, in declaring, that there shall not be a longer interval than three years after a dissolution; but the 16 Car. II. seems to be more extensive in its operation, by providing that there shall not be an intermission of more than three years after any sitting of parliament, which will extend also to a prorogation. But as the mutiny act, and the land-tax and malt-tax acts are passed for one year only, these two statutes are now of little avail, for the parliament must necessarily be summoned for the dispatch of business once every year.

"The congress of the U. S. meets at least once a year, and may be convened oftener by the President. (Const. Art. 1, Sect. 4; and Art. 2, Sect. 3.) The constitutions of the several states have similar provisions as to the convening of the state legislatures."