BOOK I. CONSTITUTION, POWERS, AND PRIVILEGES CHAPTER I. AND PRELIMINARY VIEW OF THE CONSTITUENT PARTS OF PAR- Remarks. THE present constitution of Parliament has been the Introductory growth of many centuries. Its origin and early history, though obscured by the remoteness of the times and the imperfect records of a dark period in the annals of Europe, have been traced back to the free councils of our Saxon ancestors. The popular character of these institutions was subverted, for a time, by the Norman Conquest; but the people of England were still Saxons by birth, in language, and in spirit, and gradually recovered their ancient share in the councils of the state. Step by step the legislature has assumed its present form and character; and after many changes its constitution is now defined by "The clear and written law,-the deep-trod footmarks No historical inquiry has greater attractions than that B Constituent parts of Parliament. I. The King or Queen. display Parliament in its present form, and to describe its various operations under existing laws and custom. For this purpose, the history of the past will often be adverted to; but more for the explanation of modern usage than on account of the interest of the inquiry itself. Apart from the immediate functions of Parliament, the general constitution of the British government is not within the design of this Treatise; and however great the temptation may be to digress upon topics which are suggested by the proceedings of Parliament, such digressions will rarely be admitted. Within these bounds an outline of each of the constituent parts of Parliament, with incidental reference to their ancient history and constitution, will properly introduce the consideration of the various attributes and proceedings of the legislature. The Imperial Parliament of the United Kingdom of Great Britain and Ireland, is composed of the King or Queen, and the three estates of the realm, viz. the Lords Spiritual, the Lords Temporal, and the Commons. These several powers collectively make laws that are binding upon the subjects of the British empire; and, as distinct members of the supreme legislature, enjoy privileges and exercise functions peculiar to each. I. The Crown of these realms is hereditary, and the kings or queens have ever enjoyed various prerogatives, by prescription, custom, and law; which assign to them the chief place in Parliament, and the sole executive But as the collective Parliament is the supreme power. legislature, the right of succession and the prerogatives of the Crown itself, are subject to limitations and change, by the consent and authority of the king or queen for the time being, and the three estates of the realm in Parliament assembled. To the changes that have been effected, at different times, in the legal succession to the Crown, it is needless to refer, as the Revolution of 1688 is a sufficient example. The power of Parliament over the Crown is distinctly affirmed by the statute law, and recognised as an important principle of the constitution. "1 oath. prerogative. All the kings and queens since the Revolution have taken Coronation an oath at their coronation, by which they have "promised and sworn to govern the people of this kingdom, and the dominions thereto belonging, according to the statutes in Parliament agreed on, and the laws and customs of the same. The Act 12 & 13 Will. 3, c. 2, affirms "that the Limitations of laws of England are the birthright of the people thereof; and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws; and all their officers and ministers ought to serve them respectively according to the same." And the statute 6 Anne, c. 7, declares it high treason for any one to maintain and affirm by writing, printing, or preaching, "that the kings or queens of this realm, by and with the authority of Parliament, are not able to make laws and statutes of sufficient force and validity to limit and bind the Crown, and the descent, limitation, inheritance, and government thereof." Nor was this a modern principle of constitutional law established by the Revolution of 1688. If not admitted in its whole force so far back as the great charter of King John, it has been affirmed by Parliament in very ancient times. In the 40th Edw. 3, the pope had demanded homage of that monarch for the kingdom of England and land of Ireland, and the arrears of 1,000 marks a year that had been granted by King John to Innocent the 3d and his successors. The king laid these demands before his Parliament, and it is recorded that "The prelates, dukes, counts, barons, and commons, thereupon, after full deliberation, answered and said with one accord, that neither the said King John, nor any other, could put himself or his kingdom, or people, in such subjection without their assent; and, as it appears by several evidences, that if this was done at all, it was done without their assent, and against his own oath on his coronation," they resolved to resist the demands of the pope with all their power." 11 Gul. & Mar. c. 6. 22 Rot. Parl. 290. From the words of this record it would appear, that whether the charter of King John submitted the royal prerogatives to Parliament or not, it was the opinion of the Parliament of Edward 3, that even King John had been bound by the same laws which subsisted in their own time. The same principle had been laid down by the most venerable authorities of the English law, before the limits of the constitution had become defined. Bracton, a judge in the reign of Henry 3d, declared that "the king must not be subject to any man; but to God and the law, because the law makes him king." At a later period, the learned Fortescue, the lord chancellor of Henry 6 in his banishment, thus explained the king's prerogative to the king's son: "A king of England cannot, at his pleasure, make any alterations in the laws of the land, for the nature of his government is not only regal but political." "He can neither make any alteration or change in the laws of the realm without the consent of the subject, nor burthen them, against their wills, with strange impositions."2 Later still, during the reign of Elizabeth, who did not suffer the royal prerogative to be impaired in her time, Sir Thomas Smyth affirmed that "the most high and absolute power of the realm of England consisteth in the Parliament;"3 and then proceeded to assign to the Crown, exactly the same place in Parliament as that acknowledged, by statute, since the Revolution. Not to multiply authorities, enough has been said to prove that the Revolution only defined the constitutional prerogatives of the king, and that the Bill of Rights1 was but a declaration of the ancient law of England. 1 Bracton, lib. 1, c. 8. 2 De Laudibus, Leg. Ang. c. 9. 3 De re-publicâ Anglorum, book 2, c. 1, by Sir Thomas Smyth, knt. "That the pretended power of suspending or dispensing with laws, or the execution of laws, without consent of Parliament, is illegal." "That levying money for or to the use of the Crown, by pretence of prerogative, without grant of Parliament, for longer time or in other manner than the same is or shall be granted, is illegal."—1st, 2d, and 4th articles of the Bill of Rights. |