The Growth of the English Constitution from the Earliest TimesFreeman, Edward A. (Edward Augustus)
History
The Growth of the English Constitution from the Earliest Times
Freeman, Edward A. (Edward Augustus)
Constitutional history -- Great Britain
And now what has modern legislation done towards getting rid of all
these pettifogging devices, and towards bringing us back to the simpler
doctrines of our forefathers? Parliament is still summoned by the
writ of the Sovereign; in settled times no other way of bringing it
together can be so convenient. But, if times of revolution should ever
come again, we, who do even our revolutions according to precedent,
shall probably have learned something from the revolutionary precedents
of 1399, of 1660, and of 1688. In each later case the subtlety is
one degree less subtle than in the former. The Estates of the Realm
which deposed Richard were changed into a Parliament of Henry by the
transparent fiction of sending out writs which were not, and could not
be, followed by any real elections. The Convention which recalled or
elected Charles the Second did indeed turn itself into a Parliament,
but it was deemed needful that its acts should be confirmed by another
Parliament. The acts of the Convention of 1688 were not deemed to need
any such confirmation. Each of these differences marks a stage in the
return to the doctrine of common sense, that, convenient as it is in
all ordinary times that Parliament should be summoned by the writ of
the Sovereign, yet it is not from that summons, but from the choice of
the people, that Parliament derives its real being and its inherent
powers. As for the other end of the lawyers’ doctrine, the inference
that Parliament is _ipso facto_ dissolved by a demise of the Crown,
from that a more rational legislation has set us free altogether.
Though modern Parliaments are no longer called on to elect Kings, yet
experience and common sense have taught us that the time when the
Sovereign is changed is exactly the time when the Great Council of
the Nation ought to be in full life and activity. By a statute only a
few years later than the raising of the question whether a Parliament
of William and Mary did or did not expire by the death of Mary, all
such subtleties were swept away. It was now deemed so needful that the
new Sovereign should have a Parliament ready to act with him, that it
became the Law that the Parliament which was in being at the time of
a demise of the Crown should remain in being for six months, unless
specially dissolved by the new Sovereign. A later statute went further
still, and provided that, if a demise of the Crown should take place
during the short interval when there is no Parliament in being, the
last Parliament should _ipso facto_ revive, and should continue in
being, unless a second time dissolved, for six months more. Thus the
event which, by the perverted ingenuity of lawyers, was held to have
the power of destroying a Parliament, was, by the wisdom of later
legislation, clothed with the power of calling a Parliament into being.
Lastly, in our own days, all traces of the lawyers’ superstition have
been swept away, and the demise of the Crown now in no way affects the
Public-domain text, read in full here on John Shaqi.
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