[c] Glanvil. l. 13 c. 32. l. 9. c. 10.—Pref. 9 Rep.—2 Inst. 526.
[d] l. 2. c. 2.
[e] c. 1. §. 3.
There is also no doubt but these great councils were held regularly 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 yet been ascertained by the general assise, or assembly, but was left to the custom of particular counties[f]. Here the general assise is spoken of as a meeting well known, and it's statutes or decisions are put in a manifest contradistinction to customs, 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[g].
[f] Quanta esse debeat per nullam assisam generalem determinatum est, sed pro consuetudine singulorum comitatuum debetur. l. 9. c. 10.
[g] Year book, 21 Edw. III. 60.
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 antiquarians; 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 arch-bishops, 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 to enquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of five hundred years. And in the prosecution of this enquiry, I shall consider, first, the manner and time of it's assembling: secondly, it's 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 statutes, in both houses: and lastly, the manner of the parliament's adjournment, prorogation, and dissolution.
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. It is a branch of the royal prerogative, that no parliament can be convened by it's 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 it's dignity and independence, that it should be called together by none but one of it's 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[h]. 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 is to sit again for six months, unless dissolved by the successor: for this revived parliament must have been originally summoned by the crown.
[h] 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 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.
It is true, that by a statute, 16 Car. I. c. 1. it was enacted, that if the king neglected to call a parliament for three years, the peers might assemble and issue out writs for the 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.