[(18)] Lingard (viii. 612) remarks that at this particular moment “there was no court to influence, no interference of the military to control the elections.” The Convention may therefore be supposed to have been more freely elected than most Parliaments.
[(19)] The Long Parliament had dissolved itself, and had decreed the election of its successor. By the Act 13 Charles II. (Revised Statutes, i. 733) the Long Parliament is “declared and adjudged to be fully dissolved and determined;” but it is not said when it was dissolved and determined. See also Lingard, ix. 5; Hallam’s Constitutional History, ii. 21, where the whole matter is discussed, and it is remarked that “the next Parliament never gave their predecessors any other name in the Journals than ‘the late assembly.’”
[(20)] See Norman Conquest, i. 365, 366.
[(21)] See the discussion on the famous vote of the Convention Parliament in Hallam, Constitutional History, ii. 260-263. Macaulay, ii. 623. Hallam remarks that “the word ‘forfeiture’ might better have answered this purpose than ‘abdication’ or ‘desertion,’” and he adds, “they proceeded not by the stated rules of the English government, but by the general rights of mankind. They looked not so much to Magna Charta as the original compact of society, and rejected Coke and Hale for Hooker and Harrington.” My position is that there is no need to go to what Hallam calls “higher constitutional laws” for the justification of the doings of the Convention, but that they were fully justified by the precedents of English History from the eighth century to the fourteenth.
The Scottish Estates, it should be remembered, did not shrink from using the word “forfeited.” Macaulay, iii. 285.
[(22)] See the Act 1 William and Mary “for removing and preventing all Questions and Disputes concerning the Assembling and Sitting of this Present Parliament” (Revised Statutes, ii. 1). It decrees “That the Lords Spiritual and Temporal, and Commons convened at Westminster the two and twentieth day of January, in the year of our Lord one thousand six hundred eighty-eight, and there sitting on the thirteenth day of February following, are the two Houses of Parliament, and so shall be and are hereby declared enacted and adjudged to be to all intents, constructions, and purposes whatsoever, notwithstanding any fault of writ or writs of summons, or any defect of form or default whatsoever, as if they had been summoned according to the usual form.” The whole history of the question is given in Macaulay, iii. 27-31. The whole matter is summed up in the words (iii. 27), “It was answered that the royal writ was mere matter of form, and that to expose the substance of our laws and liberties to serious hazard for the sake of a form would be the most senseless superstition. Wherever the Sovereign, the Peers spiritual and temporal, and the Representatives freely chosen by the constituent bodies of the realm were met together, there was the essence of a Parliament.” In earlier times it might perhaps have been held that there might be the essence of a Parliament even without the Sovereign.
[(23)] Macaulay, iv. 535. “A paper had been circulated, in which the logic of a small sharp pettifogger was employed to prove that writs, issued in the joint names of William and Mary, ceased to be of force as soon as William reigned alone. But this paltry cavil had completely failed. It had not even been mentioned in the Lower House, and had been mentioned in the Upper only to be contemptuously overruled.” From my point of view the cavil is certainly paltry, but it is hard to see that it is more paltry than the others.
[(24)] This is by the Acts 7 and 8 Will. III. c. 15; 6 Anne, c. 7; and 39 Geo. III. c. 127. See Stephen’s Commentaries, ii. 380. Blackstone’s reasoning runs thus: “This dissolution formerly happened immediately upon the death of the reigning sovereign; for he being considered in law as the head of the parliament (caput principium, et finis), that failing, the whole body was held to be extinct. But the calling a new parliament immediately on the inauguration of the successor being found inconvenient, and dangers being apprehended from having no parliament in being, in case of a disputed succession, it was enacted,” etc. By the Reform Act of 1867 the whole tradition of the lawyers was swept away.
[(25)] I have said something on this head in Norman Conquest, i. 94, but the whole thing should be studied in Allen’s great section on the Tenure of Landed Property; Royal Prerogative, 125-155. It is to Allen that the honour belongs of showing what bookland and folkland really were.