different into and party ment. and executive powers of the Crown have, as it were, bifurcated, lodged in and there is a real dualism in our constitution, the Crown in hands, Parliament, and the Crown in Council. The severance took place so soon as Parliament arose, a body outside the executive, but necessary to the executive, by reason of its control over supply. Centuries of experience were needed to demonstrate the inconvenience of this dualism and to suggest the remedy. We now see the de facto executive, the ministers of the Crown, brought living their political lives in the midst of the legislature, and harmony acting necessarily in close harmony with the majority of the by Cabinet representatives of the people. We forget that the executive governde jure is the Crown in Council, that the Crown in this capacity is wholly outside Parliament, that the part which the Crown plays in Parliament is to receive the advice of its people and to make laws; not to submit, formulate or defend a policy. The difficulty of understanding our constitution But really may perhaps be diminished if we remember that the Crown in Council was once the sole repository of sovereign power, whether executive or legislative; that this power has now passed into two different sets of hands, Ministers and Parliawhile the Crown, in name, does the acts of State; and in name, though we are apt to forget it, enacts laws; and that a happy combination of circumstances has brought into intimate connection the two bodies into whose hands the real power in these matters has passed. We shall be most helped in this inquiry by fixing the attention upon what has happened, and what does happen, instead of relying, like Blackstone, upon phrases; or, like Austin, wresting facts into harmony with an abstract conception of what a sovereign ought to be. ment; twofold. L た CHAPTER IV. Topics THE MEETING OF PARLIAMENT. I HAVE now endeavoured to define what I mean by the dealt with 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. Topics to Parliament 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 though Parliament does not habitually control the executive, it 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 Houses collectively enjoy. tion and of the Houses. tion. Thirdly, we must trace the process of legislation in so far Legislaas it is effected by the joint action of the two Houses. Fourthly, we must consider the part played by the Crown The Crown and its ministers in making laws and in communicating with ment. the two Houses. in Parlia ence of with Fifthly, we must note as a matter of history, necessary to Interferbe dealt with in order that we may understand the present executive relations of the Houses of Parliament and the Crown, the legislature. 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 parties to legislathe Lords, and the Commons. Nominally the Crown makes laws, the Lords and Commons advise as to their making, assent to them when made, and their assent is necessary to give validity to the law enacted. 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 of Parlia ment. The con stitution of Parlia ment. which the Crown bears in making them, will be dealt with later; and the omnipotence of the legislature thus constituted may properly be considered when we have seen what it is made of, and how it works. It is enough here that laws can only be made by an assembled Parliament, and by the concurrence of the two bodies of which that 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 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 public interest; that they criticise the conduct of ministers; that they may address the Crown on matters of general policy, 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 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. of tenants. The Council of Magnates was expanded, upon occasion, The into the Commune Concilium Regni, or the entirety of the assembly tenants-in-chief, and the first formal provision for the sum-in-chief. mons 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. In the twelfth section of the Charter, John promises that Magna Charta, he will not levy scutage or aid other than the three recognised s. 12. 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 |