CHAPTER THE SECOND.

OF

THE PARLIAMENT.

WE are next to treat of the rights and duties of perfons,

as they are members of fociety, and stand in various relations to each other. These relations are either public or private and we will first confider those that are public.

THE most univerfal public relation, by which men are connected together, is that of government; namely, as governors and governed, or, in other words, as magiftrates and people. Of magiftrates fome alfo are fupreme, in whom the fovereign power of the ftate refides; others are fubordinate, deriving all their authority from the fupreme magiftrate, accountable to him for their conduct, and acting in an inferior secondary sphere.

In all tyrannical governments the fupreme magiftracy, or the right of both making and of enforcing the laws, is vested in one and the fame man, or one and the fame body of men; and wherever these two powers are united together, there can be no public liberty. The magiftrate may enact tyrannical laws, and execute them in a tyrannical manner, fince he is poffeffed, in quality of dispenser of justice, with all the power which he as legiflator thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with fo large a power, as may tend to the fubverfion of it's own independence, and therewith of the liberty of the fubject. With us therefore in England this fupreme power is divided into

two branches; the one legiflative, to wit, the parliament, consisting of king, lords, and commons; the other executive, confifting of the king alone. It will be the business of this chapter to confider the British parliament; in which the legislative power, and (of course) the fupreme and abfolute authority of the state, is vefted by our constitution.

THE original or first inftitution of parliament is one of thofe matters which lie fo far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. The word, parliament, itself, (parlement or colloquium, as fome of our historians tranflate it,) is comparatively of modern date; derived from the French, and fignifying an affembly that met and conferred together. It was firft applied to general affemblies of the ftates under Louis VII in France, about the middle of the twelfth century (1). But

a Mod. Un. Hift. xxiii. 307. The first mention of it in our ftatute law is

a

(1) The word parliamentum was not used in England till the reign of Hen. III. (Pryn. on 4 Inft. 2.) Sir Henry Spelman in his Gloffary (voc. Parl.) fays, Johannes rex haud dicam parliamentum, nam hoc nomen non tum emicuit, fed communis concilii regni formam et coactionem perfpicuam dedit.

It was from the ufe of the word parliamentum that Prynne difcovered lord Coke's manufcript, Modus tenendi parliamentum tempore regis Edwardi, filii regis Etheldredi, &c. to be fpurious. Lord Coke fet a high value upon it, and has affured us," that certain it is, this modus was rehearsed and declared before the conqueror at the conqueft, and by him approved. (4 Inft. 12.) But for many reigns after this word was introduced, it was indifcriminately applied to a feflion and to the duration of the writ of fummons; we now confine it to the latter, viz. to the period between the meeting after the return of the writ of fummons and the diffolution. Etymology is not always frivolous pedantry; it fometimes may afford an ufeful comment upon the original fignification of a word. No inconfiderable pains have been bestowed by learned men in analyfing the word parliament; though the following fpecimens will ferve rather to amufe than to instruct: « The word parliament,” faith

one,

it is certain that, long before the introduction of the Norman language into England, all matters of importance were debated and fettled in the great councils of the realm. A practice, which feems to have been univerfal among the northern nations, particularly the Germans ; and carried

↳ De minoribus rebus principes confultant, de majoribus omnes. Tac. de mor.

Germ. c. 11.

one,

" is compounded of parium lamentum ; becaufe (as he thinks) "the peers of the realm did at these assemblies lament and com"plain each to the other of the enormities of the country, and "thereupon provided redress for the fame." (Lamb. Arch. 235.) Whitelocke, in his notes (174.), declares," that this derivation of "parliament is a fad etymology." Lord Coke and many others. fay, that it is called parliament becaufe every member of that " court should fincerely and discreetly parler la ment, speak his mind "for the general good of the commonwealth." (Co. Litt. 110.) Mr. Lambard informs us, that "Lawrence Vallo mifliketh this "derivation." (Arch. 236.) And Lawrence Vallo is not fingular; for Mr. Barrington affures us, that " lord Coke's etymology of the "word parliament from speaking one's mind has been long ex

ploded. If one might prefume (adds he) to fubftitute another "in it's room after so many guesses by others, I fhould fuppofe "it was a compound of the two Celtic words parly and ment, or “mend. Both these words are to be found in Bullet's Celtic Dictionary published at Besançon in 1754. 3d vol. fol. He renders parly by the French infinitive parler; and we use the word in

"

England as a fubftantive, viz. parley; ment or mend is rendered "quantitè, abondance. The word parliament therefore being re"folved into it's conftituent fyllables, may not improperly be faid "to fignify what the Indians of North America call a Great "Talk." I fhall leave it to the reader to determine which of thefe derivations is moft defcriptive of a parliament; and parhaps after fo much recondite learning it may appear prefumptuous in me to obferve, that parliament imported originally nothing more than a council or conference; and that ment in parliament has no more fignification than it has in impeachment, engagement, imprifonment, hereditament, and ten thousand others of the fame nature, though the civilians have adopted a fimilar derivation, viz. teftament from teftari mentem. Tay. Civ. Law. 70.

by them into all the countries of Europe, which they over ran at the diffolution of the Roman empire. Relics of which conftitution, under various modifications and changes, are ftill to be met with in the diets of Poland, Germany, and Sweden, and the affembly of the eftates in France: for whatis there now called the parliament is only the fupreme court of justice, confifting of the peers, certain dignified eccléfiaftics and judges; which neither is in practice, nor is fuppofed to be in theory, a general council of the realm.

WITH us in England this general council hath been held immemorially, under the feveral names of michel-fyngth or great council, michel-gemote or great meeting, and more fre[148]quently wittena-gemote, or the meeting of wife men.

It was

allo ftiled in Latin, commune concilium regni, magnum concis lium regis, curia magna, conventus magnatum vel procerum, affifa generalis, and fometimes communitas regni Angliae. We have inftances of it's mecting to order the affairs of the king-dom, to make new laws, and to mend the old, or, as Fleta expreffes it, "novis injuriis emerfis nova conftituere remedia,” fo early as the reign of Ina king of the weft Saxons, Offa king of the Mercians, and Ethelbert king of Kent, in the feveral realms of the heptarchy. And, after their union, the mirror informs us, that king Alfred ordained for a perpetual ufage, that thefe councils fhould meet twice in the year, or oftener, if need be, to treat of the government of. God's people; how they fhould keep themselves from fin, fhould live in quiet, and fhould receive right. Our fucceeding Saxon and Danish monarchs held frequent councils of this fort, as appears from their refpective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wife men, as,

haec funt inflituta, quae Edgarus rex confilio fapientum fuorum inflituit;" or to be enacted by thofe fages with the advice

e Thefe were affembled for the laft time, A. D. 1561. (See Whitelocke of parl. c. 72.) or according to Robertfon, A D. 1614. (IHst. Cha. V. i. 369.)

d Glanvil. 7. 13. c. 32. l. 9. c. 10 -Pref. 9 Rep.--2 Inft. 526.

e 1. 2. c. 2.

f c. I.

§ 31

of

of the king, as, " baec funt judicia, quae fapientes confilio regis "Ethelfiani inflituerunt;" or lastly, to be enacted by them both together, as, "haec funt inflitutiones, quas rex Edmundus "et epifcopi fui cum fapientibus fuis inftituerunt."

THERE is alfo no doubt but these great councils were occafionally held under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry the fecond, fpeaking of the particular amount of an amercement in the sheriff's court, fays, it had never been yet ascertained by the general affife, or affembly, but was left to the custom of particular counties . Here the general affife is spoken of as a meeting well known, and it's statutes or decifions are put in a manifest contradistinction to custom, or the common law, [149] And in Edward-the third's time an act of parliament, made in the reign of William the conqueror, was pleaded in the cafe of the abbey of St. Edmund's-bury, and judicially allowed by the court ",

HENCE it indifputably appears, that parliaments, or ge neral councils, are coeval with the kingdom itself. How those parliaments were conftituted and compofed, is another queftion, which has been matter of great difpute among our learned antiquaries; and, particularly, whether the commons were summoned at all; or if fummoned, at what period they began to form a distinct affembly. But it is not my intention here to enter into controverfies of this fort. I hold it sufficient that it is generally agreed, that in the main the conftitution of parliament, as it now stands, was marked out fo long ago as the feventeenth year of king John, A. D, 1215, in the great charter granted by that prince; wherein he promises to fummon all arch-bifhops, bifhops, abbots, earls, and greater barons, perfonally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet

h Year book. 21 Edw. III. 60.

Quanta effe debeat per nullam affisam c. 10. generalem determinatum eft, fed pro confuetudine fingulorum comitatuum debetur. l. 9.