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tenable. Would it not prevent his Majesty from creating or nominating Peers to sit in the upper House? A right which has never been disputed.

The King alone is entitled by the constitution to summon a Parliament, nor can this power be vested in any other department of the State with equal propriety; because, to borrow the words of Sir Wm. Blackstone (a), the King 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 legislature that has a separate existence, and is capable of performing any act at a time when no Parliament is in being.

There are indeed two memorable instances on record, in which Parliament have assembled without the authority of the King; and have, when so assembled, effected most momentous revolutions in the government. I allude to the Parliament which restored Charles 2.; and the Parliament of 1688 which disposed of the British Crown to William III. But in both these instances the necessity of the case rendered it necessary for the Parliament to meet as they did, there being no King to call them together, and necessity supersedes all law. Nor is it an exception to this rule, that by some modern statutes (b) on the demise of the King or Queen (which at common law dissolved the Parliament, because it could no longer consult with him who called it) (c), the Parliament then in being or otherwise the last Parliament shall revive or sit, and continue for six months after such demise, unless sooner prorogued or dissolved by the successor: that is, if the Parliament be at the time of the King's death separated by adjournment or prorogation, it shall notwithstanding assemble immediately; or, if no Parliament be then in being, the members of the last Parliament shall assemble and be again a Parliament. For in such case, the revived Parliament must have been originally summoned by the Crown.

By the statute 6 and 7 W. and M. c. 2. s. 1. it is declared and enacted that Parliaments shall be holden once in three years at least; by which we are not to understand that the

(a) 1 Comm. 150. See 1 Chalmers'

Coll. Op. 233, 337.

(b) 7 and 8 W. 3. c. 15. 5 Ann. c. 7. 1 Bla. Com. 188.

(c) Kelyng R. 19. 1 Chalmers' Coll. Op. 247. That death of King does not dissolve colonial assembly, ante ch.3.

King ought to convene within that period a new Parliament, for as the law now stands, Parliaments last for seven years, unless sooner dissolved by royal authority (a).

On a Parliament being called together, every lord, spiritual or temporal, is entitled, er debito justitice, to a writ of sunmons (b). This writ issues out of chancery, and each member should have a distinct one sent to him (c), which, as we have already seen, he is obliged to obey (d).

Upon a general election of members to serve in the House of Commons, writs of summons are issued, and directed to the sheriff of every county, by the clerk of the Crown in the Court of Chancery, in pursuance of a warrant from the Lord Chancellor for that purpose. If a vacancy happen during the sitting of Parliament, the Speaker of the House of Commons, by order of the House, sends this warrant to the clerk of the Crown (e). With regard to a vacancy by death, or the member's becoming a peer, the statute 24 Geo. 3, sess. 2. c. 26. provides that, if during any recess, either by prorogation or adjournment, any two members give notice to the Speaker, by a certificate under their hands, that there is a vacancy by death, or that a writ of summons has issued, under the great seal, to call up any member to the House of Lords, the Speaker shall forthwith give notice of it to be inserted in the gazette; and, at the end of fourteen days after such insertion, he shall issue his warrant to the clerk of the Crown, commanding him to make out a new writ for the election of another member. But this does not extend to any case where there is a petition depending, concerning such vacant seat, or where the writ for the election of the member so vacating, had not been returned fifteen days before the end of the last sitting of the House, or where the new writ cannot issue before the next meeting of the House for the dispatch of business. And, to prevent any impediment in the execution of this Act, by the Speaker's absence from the kingdom, or by the vacancy of his seat, at the beginning of every Parliament he shall appoint any

(a) 1 Geo. 1. st. 2. c. 38.

(b) 4 Inst. 1. For the form of the summons, Cotton's Records, 3, 4. Of the manner of suminoning King's counsel, and civilians, masters in Chancery, who have no voices; and how the writ differs from that to a lord of Parlia

ment; vide Reg. 261; F. N. B. 229. 4 Inst. 4.

(c) 4 Inst. 4.

(d) Ante ch. 2. s. 2.

(c) 1 Bla. Com. 177, where see thre statutes on this subject cited.

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number of members, from three to seven inclusive, and shall publish the appointment in the gazette. These members, in the absence of the Speaker, shall have the same authority as is given to him by this statute. These are the only cases provided for by Act of Parliament. So, for any other species of vacancy, no writ can issue during a recess.

It would be irrelevant to consider here the mode of electing and returning members, under the writs of summonses; this does not form any part of the royal authority, but is specifically provided for by various legislative enactments, which are cited and summarily arranged by Sir William Blackstone (a), and other subsequent authors (b), who have written exclusively on the subject.

The writs of summonses, both in the case of peers and members of the House of Commons, ought to be under the great seal (c), and should be issued forty days at least before the sitting of Parliament. This is a provision of the Magna Charta of King John, faciemus summoneri, &c. ad certum diem, scilicet ad terminum quadraginta dierum, ad minus et ad certum locum. It is enforced by 7 and 8 Wm. 3. c. 25. which enacts, that there shall be forty days between the teste and the return of the writ of summons; and this time is, by the uniform practice since the Union, extended to fifty days (d). This practice was introduced by the 22d article of the Act of Union, which required that time between the teste and the return of the writ of summons, for the first Parliament of Great Britain.

The members of each House being thus duly assembled, the Parliament, of which the King has been termed the caput, principium, et finis (e), cannot, in point of law, commence but by the presence of his Majesty, either in person or by representation; which representation may be either by a guardian of England, by letters patent under the great seal, when the King is in remotis out of the realm, or by commission under the great seal of England, to certain lords of Parliament, representing the person of the King, he being within the realm, in re

(a) 1 Comm. 177, &c.

(b) And see 2 Bac. Ab. 120, title Court of Parliament, D.

(c) And see 24 Geo. 3. sess. 2. c. 26. 1 Chalmers' Op. 234, 6.

s. 2.

(d) 2 Hats. 235.

(e) 4 Inst. 1, 2. Hale of Parliament 1, ante. See in 1 Chalmers' Coll. of Op. 336, a comment on these words.

spect

spect of some infirmity, or his being engaged in other urgent affairs (a).

The two Houses, respectively, possess the exclusive power of adjourning themselves, nor can the King exercise it; and an adjournment of one House is not, ipso facto, an adjournment of the other (b). It appears, however, to have been usual, when the King has signified his pleasure that both or either of the Houses should adjourn themselves to a certain day, to obey the King's pleasure so signified, and to adjourn accordingly. Otherwise, besides the indecorum of a refusal, a prorogation would assuredly follow; which, as it terminates the session (c), would occasion great inconvenience to public and private business (d). An adjournment may be made by the Houses not only from day to day, but for a fortnight, or a longer period, as is usually done at Christmas or Easter, or upon other particular occasions (e); but the King may, by proclamation, call them together at the end of fourteen days. from the date thereof, notwithstanding any previous adjournment to a longer and more distant day (ƒ).

A prorogation, which, as we have just remarked, puts an end to the session, and may be termed a continuation of Parliament from one session to another, can, however, be legally effected only by the authority of the King, expressed either by the Lord Chancellor in his Majesty's presence, or by commission from the Crown, or frequently by Proclamation (g). As the obligation of the members to attend arises from writs under the great seal, their discharge from liability to assemble must also flow from the same seal (h). It seems clear, notwithstanding the opinion of Lord Coke (i) to the contrary, that a prorogation of one House necessarily and tacitly operates as a prorogation of the other (k). This prorogation may be legally made even at the return of the writ, and before the meeting of Parliament (1). Thus the Parliament after the general election in the year 1790 was prorogued twice by writ, before it

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met (a); and the first Parliament in this reign was prorogued four times, by four writs of prorogation (b). On the day upon which the writ of summons is returnable, the members of the House of Commons who attend, do not enter their own House or wait for a message from the Lords, but go immediately up to the House of Lords, where the Chancellor reads the writ of prorogation. And when it is intended that they should meet upon the day to which the Parliament is prorogued for dispatch of business, notice is given by a proclamation (c).

His Majesty's assent to a bill during a session (d) does not end it (e) and it seems that an express prorogation or dissolution is necessary for this purpose (f). His Majesty is enabled to call Parliament together at the end of fourteen days from the date of his proclamation for that purpose, notwithstanding any previous prorogation of it to a longer period (g).

As the power of convening and proroguing Parliament is vested by the constitution, that is, by the common law, and by the custom of Parliament, in the King, so his Majesty possesses, on similar grounds, the power of dissolving it (h). This can only be done in the King's presence, either in person or by representation (i). The effect of the demise of the Crown on the continuance of Parliament has been already stated.

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(e) 4 Inst. 27. 1 Car. 1. c. 7. Comm. Journ. 21 Nov. 1554.

(S) 1 Bla. Com. 187.

(g) 39 and 40 Geo. 3. c. 14.

(h) 1 Bla. Com. 188.

(i) 4 Inst. 48. On the subject of dissolving Parliament in person, Mr. Evans, in his "Parliamentary Debates," makes the following observations:

"Some Gentlemen thought that the dissolution of Parliament by the Prince Regent in person was ungracious, and that it was intended as a mark of dis

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satisfaction. It certainly appears that, in former times, a dissolution in person was considered an offensive act in the Sovereign. On the 10th of March, 1628, the day to which both Houses were adjourned, King Charles I. came to the House of Lords, and without sending for the Commons, spoke as follows: My Lords-I never came here upon so unpleasant an occasion, it being the dissolution of a Parliament; therefore men may have some cause to wonder why I should rather not choose to do this by commission; it being rather a general maxim with Kings to leave harsh commands to their Ministers, themselves only executing pleasing things.' And then, after some words, directed the Lord-keeper to dissolve the Parliament. The entry on the Lords' journal is-Ipse Dominus Rex hoc præsens Parliamentum dissolvit. On the 28th of March, 1681, King Charles II. suddenly

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