Imágenes de páginas
PDF
EPUB

of performing any act at a time when no parliament is in being. By some modern statutes, on a demise of the crown, if there be no parliament in existence, the last parliament revives, and is to sit again for six months, unless dissolved by the successor. But this is a provision for a case in which no exercise of discretion is necessary.

The deposition of king Richard II., and the revolution of 1688, occasioned two remarkable cases wherein the observance of these rules of the common law was not possible. The cession of king Richard of course put an end to the existence of the parliament summoned by his writs. But his successor, Henry IV., found it expedient, or perhaps necessary, not to wait for the summoning and assembling of a new parliament. The lords and commons, however, in conformity with the principles of the common law, did not take the name of a parliament, but only that of the estates of the realm.

Their assembly was, accordingly, not opened by commission; no one presided therein; the commons did not adjourn to their own chamber; and they chose no speaker. The parliament summoned by the writs of king Richard could not legally sit as the parliament of king Henry. To overcome these difficulties, an expedient was devised, of issuing writs for a new parliament, returnable in six days. These writs neither were nor could be complied with; but the same members as had deposed Richard sat in the new parliament, which was regularly opened by Henry's commissioner, as if they had been duly elected.

By this ingenious contrivance of supposing, by a legal fiction, that a new parliament had been duly elected, the colour of a legal parliament was given to the convention of estates, by assuming them to be assembled and to sit in obedience to king Henry's writs.1

1 Hallam, Mid. Ages, v. ii. part iii. c. viii. p. 112.

The convention-parliament which restored king Charles II. met above a month before his arrival—the lords by their own authority, and the commons in pursuance of writs issued, in the name of the keepers of the liberties of England, by authority of parliament. But this was (as Blackstone says) for the necessity of the thing, which supersedes all law; for, if they had not met, it was morally impossible that the kingdom should have been settled in peace. And the first thing done on the king's return was to pass an act declaring this to be a good parliament, though not summoned by the king's writs. It was at that time a great doubt among lawyers whether even this healing act made it a good parliament, and held by very many in the negative, though Blackstone is of opinion that this is too nice a scruple. Out of abundant caution it was thought necessary to confirm its acts in the next parliament by statute 13 Car. II. c. vii. and cxiv.

"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 III.), met in 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 the restoration; that is, upon a full conviction that king James II. 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 case as the palpable vacancy of the 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 of 1688 assemble. The vacancy of the throne was precedent to their meeting without 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 mu3t 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 the stat. 1 W. & M. s. i. c. i., that this convention was really the two houses of parliament, notwithstanding the want of writs and other defects of form. So that, notwithstanding these two capital exceptions (at the restoration, and the revolution of 1688), which were justifiable only upon 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."1

Though the crown is at liberty to convoke parliament

1 Blackst. Com. b. i. c. ii. p. 151, 152. Hallam sees this famous transaction in a very different light, which is, indeed, more consistent with the facts of the case. He holds the word " abdication" to have been meant to express, not a voluntary cession, but a constructive abandonment of right by misconduct, which is, in truth, much the same in substance as a forfeiture. In fact it is acknowledged that the change of dynasty was brought about by a revolution. But Blackstone's theory is the only one that can clothe the revolution of 1688 with a legal form and colour; and, as a legal theory, it is interesting and valuable. See Hallam, Const . Hist. vol . iii. p. 128, &c.

at whatever time and place it thinks proper, it is bound by the statute 16 Car. II. c. i. not to intermit holding a parliament for above three years. And by the statute 1 W. & M. stat. 2. c. ii., it is declared to be one of the rights of the people, that for redress of all grievances, and for mending, strengthening, and preserving the laws, parliaments ought to be held frequently. And it is again enacted by the stat. 6 W. & M. c. ii., that a new parliament shall be called within three years after the determination of the former. However, the best security for the frequent sitting in parliament, is the practice of voting the supplies only for one year.

II. We are next to examine the laws and cust8ms relating to parliament considered as one aggregate body.

"The power and jurisdiction of parliament," says Coke,1 " 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 species, est vetustissima; si dignitatem, est honoratissima; sijurisdictionem,estcapacissima." It is, however, sufficient to say that it is invested with that sovereign uncontrollable power of legislation, which must exist somewhere in every state.

The high court of parliament is said, by Lord Coke, to have its own peculiar law, called tlie law and custom of parliament, which is to be better learned out of the rolls of parliament, and other records, and by precedents, and continual experience, than by any one man.2 Blackstone observes, that the whole law and custom of parliament has its original in this one maxim: "that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which

1 4 Inst. 36; and Co. Lift. 110 a.
- 1 Inst. 11. 4 Inst. 50.

it relates, and not elsewhere."1 Thus the house of lords would not allow the commons to interfere in deciding on the election of a representative peer; nor would the commons suffer the lords to judge of an election petition: and neither house would permit the ordinary courts of law to examine any such matter. But the maxims on which they proceed, and the mode of proceeding, are entirely dependent upon the will of parliament.

The privileges of parliament are also very large and indefinite. But here we must be careful not to confound the supreme and uncontrollable power of parliament, composed of the queen, the lords, and the commons, with the privileges of the house of lords and the house of commons, which are only parts of the parliament. Thus, privileges that have the sanction of the whole parliament, such as the right of freedom of speech, which is particularly demanded of the queen or her representatives, in the presence of the lords, by the speaker of the house of commons, at the beginning of every parliament (a right declared by stat. 2 W. & M. st. c. ii.), are a part of the parliamentary law of the land. Of the same nature are the privileges of either house of parliament which are established as custom, by the tacit sanction of the other branches of the legislature. But the supposed power of the houses of parliament separately to declare what are their respective privileges, and to make new privileges by their own authority without any control, cannot be grounded on the supreme power of parliament.2 Black

1 Blackft. Com. b. i. c. ii. p. 162. (Coke) 4 Inst. 15.

2 See Hallam, Const. Hist . vol . iii. p. 379, &c. The privilege of publishing any papers, though containing libellous matter, is secured by stat. 3 Vict. c. ix., entituled, An act to give summary protection to pertotu employed in the publication of parliamentary papers. The Kt begins by a recital, that it is essential to the due and effectual ex

« AnteriorContinuar »