And after their union, the Mirror 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.' The subsequent Saxon and Danish monarchs held frequent councils of this sort, as appears from their codes of laws; the titles whereof usually speak them to be enacted, either by the king, with the advice of his wittena gemote, as Hæc sunt instituta, quæ Edgarus rex consilio sapientum suorum instituit: or to be enacted by those sages with the advice of the king; as Hæc sunt judicia quæ sapientes, consilio regis Ethelstani, instituerunt; or, lastly, to be enacted by them both together, as Hæ sunt institutiones quas rex Edmundus et episcopi sui, cum sapientibus suis, instituerunt. These great councils were also occasionally held under the first princes of the Norman line. Glanville, who wrote in the reign of Henry II., speaking of the particular amount of an amercement in the sheriff's court, says, it never yet had been ascertained by the general assize or assembly, but was left to the custom of particular counties. Here the general assize is spoken of as a meeting well known, and its statutes or decisions are put in a manifest contradistinction to custom, or the common law. And in Edward III.'s time, an act of parliament, made in the reign of William I., was pleaded in the case of the abbey of St. Edmund's Bury, and judicially allowed by the court. Hence it indisputably appears that parliaments, or general councils, are coeval with the kingdom itself. How those parliaments were constituted and composed has been matter of great dispute among our learned antiquarians; whether the commons were summoned at all; or at what period they began to form a distinct assembly. But, waiving these controversies, 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. Ď. 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. See MAGNA CHARTA. And this constitution has subsisted in fact at least from 1266, 49 Henry III., there being still extant writs of that date, to summon knights, citizens, and burgesses to parliament.

We proceed, therefore, to enquire, wherein consists this constitution of parliament, as it now stands, and has stood, for at least 500 years: 1. As to the manner and time of its assembling: 2. Its constituent parts: 3. The laws and customs relating to parliament: 4. The methods of proceeding; and of making statutes, in both houses; and, 5. The manner of the parlia ment's adjournment, prorogation, and dissolution. I. The parliament is regularly 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 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 of 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. Nor is it any exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then Lo 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 the convention parliament which restored King Charles II. 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 29th 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 writ: 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 waive the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Besides, it was at that time a great doubt among the lawyers, whether even this healing act made it a good parliament, and held by very many in the negative; though it seems to have been too nice a scruple. And yet, out of abundant caution, it was thought necessary to confirm its acts in the next parliament by stat. 13 Car. II. c. 7 and c. 14. It is likewise true, 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 III.), met in a convention, and therein disposed of the crown and kingdom. But this assembling was upon a like principle of necessity as at the Restoration; that is, upon a full conviction that king James II. had abdicated 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 itself, 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.

The power and jurisdiction of parliament,' says Sir Edward Coke,' is so transcendant 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 jurisdictionem, est capacissima. It has sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding all 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 reigns 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 its power, by a figure rather too bold, the omnipotence of parliament. True it is, that what the parliament doth, 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 knowledge; for it was a known apophthegm of the great lord treasurer Burleigh, that England could never be ruined but by a parliament:' and, as Sir Matthew Hale observes, This being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should anywise fall upon it, the subjects of this kingdom are left without all manner of remedy. Mr. Locke, and other theoretical writers, have held that there remains still inherent in the people a supreme power to remove or alter the legislature, when they find the legislature 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. To prevent the mischiefs that might arise by placing this extensive authority in hands either incapable or improper to manage it, it is provided by the custom and law of parliament that no one shall sit or vote in either house unless he be twenty-one years of age. This is also expressly declared by stats. 7 and 8 W. III. c. 25: yet, with regard to the house of commons, doubts have arisen from some contradictory abjudications, whether or not a minor was incapacitated from sitting in that house. It is also enacted by stat. 7 Jac. I. c. 6, that no member be permitted to enter the house of commons till he has taken the oath of allegiance before the lord steward or his deputy: and by 30 Car. II. stat. 2, and 1 Geo. c. 13, that no member shall vote or sit in either house, till he has, 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. Aliens, unless naturalised, were likewise by the law of parliament incapable to serve therein and now it is enacted by stat. 12 and 13 W. III. c. 2 that no alien, even though he be naturalised, shall be capable of being a member of either house of parliament. And there are not only these standing incapacities, but if any person is made a peer by the king, or elected to serve in the house of commons by the people, yet may the respective houses, upon complaint of any crime in such person, and proof thereof, adjudge him disabled and incapable to sit as a member : and this by the law and custom of parliament. For as every court of justice has laws and customs for its direction, some the civil and canon, some the common law, others their own peculiar laws and customs; so the high court of parliament has also its own peculiar law called the lex et consuetudo parliamenti; a law which Sir Edward Coke observes is ab omnibus quærenda, a multis ignorata, a paucis cognita. It will not therefore be expected that we should enter into the examination of this law with minuteness; since, as the same learned author assures us, it is much better to be learned out of the rolls of parliament and otner records, and by precedents and continual experience, than can be expressed by any one man. The whole of the law and custom of parliament has its 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 the election of a peer of Scotland; the commons will not allow the lords to judge of the election of a burgess; nor will either house permit the subordinate courts of law to examine the merits of either case. But the maxims upon which they proceed, together with the 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; and therefore, when, in 31 Henry VI., the house of lords propounded a question to the judges concerning them, the chief justice, Sir John Fortescue, 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 its nature that it may make law; and that which is law, it may make no law and the determination and knowledge of that privilege belongs to the lords of parliament, and not to the justices.' Privilege of parliament was principally established, in order to protect its 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 a 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. stat. 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 ancient as Edward the Confessor, in whose laws 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 hæc pax et securitas ad quatuordecim dies, convocato regni senatu. This included formerly not only privilege from illegal violence, but also from legal arrests and seizures by process from the courts of law. And still 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 stat. 5 Hen. IV. c. 6, and 11 Hen. VI. c. 11. Neither can any member of either house be arrested and taken into custody without a breach of the privilege of parliament. But all other privileges which derogate from the common law are now at an end, save only as to the freedom of the mem- ' ber's person; which in a peer (by the privilege of peerage) is for ever sacred and inviolable; and in a commoner (by the privilege of parliament) for forty days after every prorogation, and forty days before the next appointed meeting; which is now in effect as long as the parliament subsists: it seldom being prorogued for more than eighty days at a time. As to all other privileges, which obstruct the ordinary course of justice, they were restrained by the statutes 12 W. III. c. 3; 2 and 3 Ann. c. 18; and 11 Geo. II. c. 24; and are now totally abolished by statute 10 Geo. III. c. 50; which enacts that any suit may at any time be brought against any peer cr member of parliament, their servants, or any other person entitled to privilege of parliament; which shall not be impeached or delayed by pretence of any such privilege, except that the person of a member of the house of commons shall not thereby be subjected to any arret or imprisonment. Likewise, for the benefit of commerce, it is provided, by statute 4 Geo. III. c. 43, that any trader, having privilege of parliament, may be served with legal process for any just debt (to the amount of £100): and, unless he makes satisfaction within two months, it shall be deemed an act of bankruptcy; and that commission of bankruptcy may be issued against such privileged traders in like manner as against any other. The only way by which courts of justice could anciently take cognisance of privilege of parliament was by writ of privilege, in the nature of supersedeas, to deliver the party out of custody when arrested in a civil suit. For when a letter was written by the speaker to the judges, to stay proceedings against a privileged person, they rejected it as contrary to their oath of office. But since the statute 12 W. III. c. 3, which enacts that no privileged person shall be subject to arrest or imprisonment, it has been held that such arrest is irregular ab initio, and that the party may be discharged upon motion. It is to be observed that there is no precedent of any such writ of privilege, but only in civil suits; and that the statute of 1 Jac. I. c. 13, and that of king William, which remedy some inconveniences arising from privilege of parliament, speak only of civil actions. And, therefore, the claim of privilege has been usually guarded with an exception as to the case of indictable crimes; or, as it has been frequently expressed, of treason, felony, and breach of the peace. Whereby it seems to have been understood that no privilege was allowable to the members, their families, or servants, in any crime whatsoever; for all crimes are treated by the law as being contra pacem domini regis. And instances have not been wanting, wherein privileged persons have been convicted of misdemeanors, and committed, or prosecuted to outlawry, even in the middle of a session; which proceeding has after

wards received the sanction and approbation of parliament. To which may be added, that, about thirty years ago, the case of writing and publishing seditious libels was resolved by both houses not to be entitled to privilege; and that the reasons upon which that case proceeded extended equally to every indictable offence. So that the chief, if not the only privilege of parliament, in such cases, seems to be the right of receiving immediate information of the imprisonment or detention of any member, with the reason for which he is detained; a practice that is daily used upon the slightest military accusations, preparatory to a trial by a court-martial, and which is recognised by the several temporary statutes for suspending the habeas corpus act: whereby it is provided that no member of either house shall be detained, till the matter of which he stands suspected be first communicated to the house of which he is a member, and the consent of the said house obtained for his commitment or detaining. But yet the usage has uniformly been, ever since the Revolution, that the communication has been subsequent to the arrest. See KING, LORDS, and COMMONS.

IV. The method of proceeding, in enacting laws, is much the same in both houses. But for this we refer the reader to the article BILL, and shall only observe in this place that, for despatch of business, each house of parliament has its speaker. The speaker of the house of lords, whose office it is to preside there, and manage the formality of business, is the lord chancellor, or keeper of the king's great seal, or any other appointed by the king's commission; and, if none be so appointed, the house of lords, it is said, may elect. 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, if a lord of parliament, may. In each house the act of the majority binds the whole; and this majority is declared by votes openly and publicly given; not, as formerly, 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 practised 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.

V. i. An adjournment is no more than a continuance of the session from one day to another, as the word signifies; and this is done by the authority of each house separately every day; and sometimes for a fortnight or a month to gether, as at Christmas or Easter, or upon other particular occasions. But the adjournment of one house is no adjournment of the other. It has also been usual, when his majesty has 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. Otherwise, besides the indecorum of a refusal, a prorogation would as

suredly 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 adjournment made, and may be proceeded on without any fresh commencement. ii. A prorogation is the continuance of the parliament from one session to another; as an adjournment is a continuance 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. 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; after which all business then depending in the houses was not to be begun again.

Which custom obtained so strongly, that it once became a question, 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 reign of Charles II. we find a proviso frequently tacked to a bill, 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 should be separated by adjournment or prorogation, the king is empowered to call them together by proclamation, with fourteen days' notice of the time appointed for their reassembling. iii. 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 its existence. If nothing had a right to prorogue or dissolve a parliament but itself, it might 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 I.; 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