When there is no business that requires immediate dispatch, the king usually waits till the end of the session, or at least till a certain number of bills are ready for him, before he declares his royal pleasure. When the time is come, the king goes to parliament in the same state with which he opened it; and while he is seated on the throne, a clerk, who has a list of the bills, gives, or refuses, as he reads, the royal assent.

When the royal assent is given to a public bill, the clerk says, Le roy le veut. If the bill be a private bill, he says, Sort fait comme il est desiré. If the bill has subsidies for its object, he says, Le roy remercie ses loyaux sujets, accepte leur bénévolence, et aussi le veut. Lastly, if the king does not think proper to assent to the bill, the clerk says, Le roy s'avisera which is a mild way of giving a refusal.

It is, however, pretty singular, that the king of England should make use of the French language to declare his intentions to his parliament. This custom was introduced at the Conquest, and has been continued, like other matters of form, which sometimes subsist for ages after the real substance of things has been altered: and Judge Blackstone expresses himself on this subject in the following words: "A badge, it must be owned (now the only one remaining), of conquest; and which one would wish to see fall into total oblivion, unless it be reserved as a solemn memento to remind us that our liberties are mortal, having once been destroyed by a foreign force."+

When the king has declared his different intentions, he prorogues the parliament. Those bills which he has rejected remain without force: those to which he has assented become the expression of the will of the highest power acknowledged in England: they have the same binding force

* William the Conqueror added, to the other changes he introduced, the abolition of the English language in all public as well as judicial transactions, and substituted for it the French that was spoken in his time: hence the number of old French words that are met with in the style of the English laws. It was only under Edward III. that the English language began to be re-established in the courts of justice.

Instead of retaining these French words, it would surely be more respectful to an independent nation like the British people, and for the sovereign of the British Empire, to express legislative terms in the strong and expressive language of the sovereign and the country.-Ed.

REPRESENTATION OF THE PEOPLE.

59

as the édits enrégistrés have in France, and as the populiscita had in ancient Rome: in a word, they are laws. And though each of the constituent parts of the parliament might, at first, have prevented the existence of those laws, the united will of all the three is now necessary to repeal them.*

* "The arguments used in this chapter, and also wherever De Lolme speaks of the representation of the people, would be perfectly just if the people were fairly represented in parliament. But if we take up the history of nearly every parliament, especially since the reign of Henry IV., and even as far back as the reign of Edward III., we find that the people have never properly been represented in the House of Commons, and that the legislative power has been by corruption wielded first by the king, and, down to the passing of the Reform Bill, by the ministers, or, through influence, by the barons and ecclesiastics. Bolingbroke shrewdly observes, that the king, the barons, and the clergy, were all in reality the enemies of public liberty. The party of each were as many factions in the nation, but they all helped in their turns to establish liberty. The Norman kings, of imperious tempers, assumed great powers. The barons did the same. The people groaned under the oppression of both. The king, the barons, and the clergy, had powerful means of promoting their usurpations; the community had little or no share in the legislative body, no figure in the government, and it is hard to conceive how they could act as others might, and certainly did, by particular concerts to their own particular interests."-Remarks on the History of England, Letter 4.-Ed.

The origin of the House of Commons is involved in obscurity. The Witena Gemote of the Saxons, or the Assembly of Wise Men, included only, it is probable, that smaller number of the inhabitants who were thanes, clergy, and freemen. Rapin quotes the preamble of a charter granted by Canute to the abbots of St. Edmundsbury, which lay at the time he wrote in the office of the king's Remembrancer of the Exchequer. It is as follows: "I, Canute, King of the whole Island of Albion, and many other nations, by the advice and decree of the Archbishops, Bishops, Abbots, Earls, and all my other faithful subjects, have ordained," &c. Rapin observes that this authority is of great force, "because Canute came to the crown by right of conquest, and consequently it is not at all probable he would have sought the concurrence of the estates had he not found it customary so to do.”—Ed.

Parliaments were called by the kings nearly altogether for the purpose of sanctioning taxation. The making of laws, until after the accession of the Tudors, appears to have engaged little of the time of parliament; and the sovereign seemed to arrogate the power of origi nating as well as of granting laws. In the charter of Henry III. it is set forth that the king of his "free will gave and granted:" "It is provided by the King, our lord, and his Justices;" "The King and his Justices of the Bench," &c.-Ed.

The first writs upon record are of the 49th year of Henry II., to

CHAPTER V.

OF THE EXECUTIVE POWER.

WHEN the parliament is prorogued or dissolved, it ceases to exist; but its laws continue still to be in force: the king remains charged with the execution of them, and is supplied with the necessary power for that purpose.

summon knights of the shire to parliament; and at the same time the cities and boroughs were written and required to send members. In the 52d of Henry III. mention is made of the king "calling the more discreet men of the realm as well of the higher as of the lower estate."-Ed.

In the 3rd of Edward I. the great council of the nation is called the Parliament, and the statutes of that year are by the assent of the "Archbishops, Bishops, Abbots, Earls, and Barons, and all the commonalty of the realm.". -See Ruffhead's Preface to the Statutes at Large; Blackstone's Commentaries, B. i. c. 2 and 8, B. ii. c. 5, B. iv. c. 33; Lyttleton's History of England; The 38/h of Henry III.—Ed.

But the commonalty above mentioned were a small minority compared with the number of the population in a slavish condition, called Servii, Villanii, Bordarii, and a few soccage tenants of poor and trifling possessions. See Dalrymple on Feudal Property, p. 262.—E/.

The Crusades were the first cause of the decline of the feudal system. Henry II. gave permission to the barons who were involved in debt to sell their possessions; but it was not until the confiscation of the property of the monasteries by Henry VIII. that the commonalty acquired such landed property as enabled them afterwards to exercise authority in the House of Commons.-Ed.

According to an authority quoted by Brady, the citizens, burgesses, and tenants in ancient demesne, first consulted together apart from the barons and prelates in the 34th of Edward I. The statute of Quia Emptores, 18th of Edward I., greatly increased the number of tenants in capite for it enacted that on the dismemberment of a fief he must hold of the chief lord of the fee, and when the vendor held a fief of the crown the purchaser became tenant in capite to the king.— Ed.

Even with respect to peers, until Richard II. conferred the dignity of baron by letters patent, no other barons but such as were summoned by writ in virtue of the tenure of their land and baronies were possessed of seats in parliament.—See Dalrymple's Feudal Property.— Ed.

The Statutes were not regularly drawn up by the Estates of Parlia ment, and read regularly a certain number of times before they were passed, but each house or estate drew up resolutions in a series of petitions, praying the king to give them satisfaction for what they humbly demanded of him. Such articles in those petitions as were approved of and assented to by the king were afterwards in a reduced form drawn up as statutes by the king's lawyers and councillors, and published under the sole authority of the Crown. But, as those statutes

It is, however, to be observed, that though, in his political capacity of one of the constituent parts of the parlia ment (that is, with regard to the share allotted to him in the legislative authority), the king is undoubtedly sovereign, and only needs allege his will when he gives or refuses his assent to the bills presented to him; yet, in the exercise of his powers of government, he is no more than a magistrate; and the laws, whether those that existed before him, or those to which, by his assent, he has given being, must direct his conduct, and bind him equally with his subjects.

I. The first prerogative of the king, in his capacity of supreme magistrate, has for its object the administration of justice.

1o. He is the source of all judicial power in the state: he is the chief of all the courts of law, and the judges are only his substitutes: every thing is transacted in his name; the judgments must be with his seal, and are executed by his officers.

2o. By a fiction of the law, he is looked upon as the universal proprietor of the kingdom: he is in consequence deemed directly concerned in all offences; and, for that reason, prosecutions are to be carried on in his name in the courts of law.

3o. He can pardon offences, that is, remit the punishment that has been awarded in consequence of his prosecution.

II. The second prerogative of the king is to be the fountain of honour, that is, the distributor of titles and dignities: he creates the peers of the realm, as well as bestows the different degrees of inferior nobility. He moreover disposes of the different offices, either in the courts of law, or elsewhere.

III. The king is the superintendent of commerce:* he

were frequently found to be framed in a different sense from what was originally intended, in consequence the bills were drawn up, in the reign of Henry V., by the judges, much in the same way as bills were prepared by those very irresponsible ministers, the Lords of the Articles in Scotland, and presented by them to the old Scottish parliaments.-Ed.

Bills in the form of acts, according to modern form, were introduced into Parliament in the reign of Henry VI.-Blackstone's Commentaries, B. i. c. 11.-See Supplementary Illustrations, No. 2.—Ed.

* That the sovereign is the superintendent of commerce is rather a fiction than a reality. It is true that treaties of commerce and navi

has the prerogative of regulating weights and measures; he alone can coin money, and can give a currency to foreign coin.

IV. He is the supreme head of the church. In this capacity he appoints the bishops, and the two archbishops; and he alone can convene the assembly of the clergy. This assembly is formed in England, on the model of the parliament: the bishops form the upper house: deputies from the dioceses, and from the several chapters, form the lower house the assent of the king is likewise necessary to the validity of their acts, or canons; and the king can prorogue, or dissolve, the Convocation.

gation have always been and still continue to be in the name of the sovereign, and negotiated by her ambassadors and ministers. But no one provision in those treaties can be repugnant to acts of parliament; and especially the navigation act, although many of its provisions have lately been abolished; nor to the customs laws, nor especially to the duties upon either imports or exports as established by acts of parliament.-Ed.

It is true that at one period even the great lawyers allowed the crown almost arbitrary authority in imposing duties upon articles which came in or went forth from the kingdom. Bacon, in the edition of his works in 4to., p. 504, assures us, "1st. The king may constrain the person of his subjects not to go out of the realm. 2nd. The king may forbid the exportation of any commodities out of the realm. 3rd. The king may forbid the importation of any commodities into this realm. 4th. The king may set a reasonable impost upon any foreign wares that come into the realm, and so of native wares that go out of the realm."-Ed.

The law being thus understood by the Crown lawyers, the colonial charters of that reign were drawn in conformity to their judgment. We now perceive the reason why there were inserted in every patent "a license to emigrate, a permission to export merchandises, an exemption from imposts during a limited term," and in the same manner of similar provisions, which were framed according to the prevailing notions of the times. It is curious to remark that it should seem, not only from the passage before cited, but from the argument of Bacon in the House of Commons in support of the same doctrines, there once existed, in the law of England, a principle, perhaps a practice, analogous to the taxation of the old colonies long arrogated by the Crown, since he contended that the king might establish an impost on exports and imports, though he admitted that the prerogative could not impose a domestic tax on lands, or polls, or property.-Ed.

Among the first grievances in America was the mischievous interference of James the First with the importation of tobacco, and letting the duties to the farmers of the customs.-Ed.