CHAPTER IV. Topics dealt with. Topics to be dealt with. Parlia ment and the Crown. THE MEETING OF PARLIAMENT. I HAVE endeavoured to define what I mean by the words 'Constitutional Law': I have given a brief sketch of the mode in which Parliament obtained the place and power which it possesses in our constitution; and I have pointed out some characteristics in which our constitution differs from others, not only in the actual rules of which it consists, but in the process of its development, and the shape in which it presents itself to the student. I now propose to deal, first, with the Legislature, and then with the Executive of this country. I have given reasons in the last words of the preceding chapter for treating the two as distinct parts of the sovereign body, and for holding that it is impossible to subordinate the one to the other. But Parliament, though it does not habitually control the executive, might exercise a practical control by legislation, and does exercise a moral control as the representative of public opinion. It is the supreme power in the state and should be dealt with first. So I propose to divide the general subject-matter of my treatise into Parliament and the Crown, or the Legislature and the Executive, and to devote the rest of this volume to the consideration of Parliament. The subjects which fall under the head of Parliament may conveniently be arranged thus: First, we must get Parliament together and regard it as a whole, in respect of its summons, the setting in motion of The meetits business, its adjournment, prorogation, and dissolution. ing of Parliament. Secondly, we must consider in detail the constituent parts of the two Houses of Parliament, the Commons and the Lords, in respect of the process by which the members of Constitueither House attain to membership, and the privileges which privileges such membership confers upon the individuals, or which the of the Houses collectively enjoy. tion and Houses. Thirdly, we must trace the process of legislation in so far Legislaas it is effected by the joint action of the two Houses. tion. Crown in Fourthly, we must consider the part played by the Crown The and its ministers in making laws and in communicating with Parliathe two Houses. ment. ence of lature. Fifthly, we must note as a matter of history, necessary to Interferbe dealt with in order that we may understand the present executive with legisrelations of the Houses of Parliament and the Crown, the attempts which the Crown has made to interfere with, or to influence the action of the Houses, and the attempts which one branch of the Legislature has made to control the action of the rest. Court of Lastly, we must deal with certain functions of Parliament, The High other than legislative, which may be conveniently included in Parliathe term 'the High Court of Parliament.' § 1. Parties to Legislation. ment. There are three necessary parties to legislation-the Crown, The the Lords, and the Commons. Nominally the Crown makes parties to legislalaws, the Lords and Commons advise as to the making, and tion. their assent is necessary to give validity to the enactment of the law thus made. And so the enacting clause of every statute runs thus: 'Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:' The actual process by which laws are made, and the part The duties ment. which the Crown bears in making them, will be dealt with later. It is enough here, to state that laws can only be made by an assembled Parliament, and by the concurrence of the two bodies of which Parliament consists, and of the Crown. And first we must ascertain who are invited to attend upon this Parliament, for what purposes and in what manner it is brought together, how its business is set in motion, and how it may be dismissed for a time or dissolved for good. We shall find in the end that, as regards the functions of Parlia of Parliament, the bodies of which Parliament consists are not summoned mainly, or even primarily, for purposes of legislation; that legislation is only one of various functions which they discharge; that they discuss all matters of national or imperial concern; that they criticise the conduct of ministers; that they may address the Crown on matters of general policy, that they may institute inquiries, in the public interest, into the conduct of persons or public bodies; and in the last resort may bring to justice a great political offender. But what we are concerned with here is the legal constitution of the Houses of Parliament, the legal rights of their members, and of each House in its entirety, and their power, in conjunction with. the Crown, of making laws which can affect all private and public rights within the United Kingdom. The con stitution of Parlia ment. The right to discuss matters of general interest, the right to criticise the conduct of ministers, is also matter of constitutional law and must be dealt with under the head of Parliamentary privilege and otherwise. But we must first construct our Parliament, and it is necessary, in order to understand its constitution, that we should glance, however briefly, at its early history. § 2. Who are summoned to Parliament. We need not consider the Assembly of the Wise under the Saxon monarchy, nor the Council of the Magnates under the Norman kings; it is enough that in times when the business of State was rather the declaration and enforcement of custom than the enactment of new laws or the changing of old ones, and when the King discharged in person the executive duties of government, he acted in concert with a body which, whether the qualification for membership was wisdom or property, advised, and to some extent controlled, his action. in-chief. The Council of Magnates was expanded, upon occasion, The assembly of into the Commune Concilium Regni, or the entirety of the tenantstenants-in-chief, and the first formal provision for the summons of this assembly is to be found in the Magna Charta of 1215. In mode and object of summons we note some approach to the later Parliament. S. 12. In the twelfth section of the Charter, John promises that Magna Charta, he will not levy scutage or aid other than the three recognised feudal aids, ‘nisi per commune consilium regni.' And in the fourteenth section, the process of holding this Common s. 14. Council is described. Archbishops, bishops, abbots, earls, and greater barons are to be summoned individually, 'sigillatim per literas nostras.' The tenants-in-chief are to be summoned 'in generali' by writs addressed to the sheriffs. The writs in all cases are to name the day and place of meeting, and the cause of summons. Forty days' notice, at least, is to be given, and on the day named the Council is to transact the business for which it has been summoned, whether or no it is attended by all to whom the summons is addressed. How far this clause of Magna Charta expressed and formulated existing practice is not clear. It was omitted from subsequent confirmations of the Charter, and it may have been omitted as unnecessary because it was merely declaratory; or as unpopular with the barons who procured these confirmations because it was too stringent; or lastly, it may have been omitted from no special design, but because other matters were more pressing at the time of the confirmations. But though it provided for a systematic assemblage of a large body of persons interested in the matter of taxation, How far different and though it exhibits, in the two modes of summons, the germ of the distinction between Lord and Commons, yet the assembly for which it provides differs obviously from the later Parliament. It differed, firstly, in that it was not representative. The from the clergy are not summoned as an estate, nor are the Commons; the inferior clergy, the towns, and those freeholders of the shires who held of mesne lords have no place in the commune concilium of the Angevin kings. Parliament of Edw. I. The model Parlia It differed, secondly, in the mode in which matters were submitted to it: the commune concilium was not summoned to advise the king generally, but merely to assent to the imposition of taxes. In fact the representative system had already begun, and the provisions of 1215 described an assembly of a type which was already passing away. The constitution of the shire moot or county court had always been representative, and the practice of representation had been applied to the kingdom at large in 1213. For to a council held in that year had been summoned four discreet men' of each county, to be sent up by the shire moot without reference to their tenure. Shire representation, as opposed to representation of the tenants-in-chief, does not recur until 1254, when the regents of the kingdom (Henry III being in Gascony) summoned four knights from each shire, and representatives of the clergy from each diocese. The towns were first represented in the famous Parliament of Simon de Montfort; and then through various assemblies, more or less completely representative of the various interests of the country, we reach the great and model Parliament,' summoned by Edward I in 12951. This Parliament, both as to causes of summons, and as to ment, and constitution, may be justly regarded as the ideal of a reprewho were sentative assembly for the age in which it existed. It was, in moned. fact, to the kingdom what the full county court was to the sum 1 Stubbs, Const. Hist. ii 128. |