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wounding the king through the sides of a private person. The absolute prerogative of the crown, is no subject for the tongue of a lawyer, nor is it lawful to be disputed.”(a) In modern times, however, it has been the aim of the English government not to leave the laws at the disposal of the king. The basis of the English Constitution, the principle on which it depends is, that the legislative power belongs to the parliament alone; that is to say, the power of establishing laws, and of abrogating, changing, or explaining them. § 23. The constituent parts of parliament are the King, the House of Lords, and the House of Commons.(b) But neither the king nor his privy council can make any amendment in the bills preferred by the two houses, he having merely the right to accept or reject such laws as shall be passed by the parliament. In the beginning of the existence of the house of commons, bills were presented to the king under the form of petitions. Those to which the king assented were registered among the rolls of parliament, with his answers to them, and at the end of each parliament the judges framed them into statutes. Several abuses having crept into this method of proceeding, it was afterward ordained that in future cases, the judges should make the statutes before the end of each session, to the end that parliament might detect, and if need be, correct any errors occurring therein. In process of time, it was found that even this was insufficient, and then the present method of framing bills was established, so that now the practice is in England as in this country, that both houses frame the statutes in the
(a) Miller's Eng. Gov., Vol. i., sec. 1, pp. 153, 154. (b) Stev. Eng. Con., Vol. ii., p. 531.
very form and words in which they are to stand when they receive the royal assent. It is the practice of the king, as it is of the executive in this country, to send messages to either house. These messages are very different now from what they were anciently, being generally expressed in very general words; instead of being directory, they are only made to desire the house to take certain subjects into their consideration. No particular clauses are expressed; the commons are not to declare at any stated time, their acceptance or rejection of the proposition made by the king, but they follow the same modes of proceeding as are pursued in relation to petitions presented by private individuals. Some member usually makes a motion upon the subject expressed in the king's message; a bill is framed in the usual way; and such bill, like any other, may be dropped at any stage of it: in short, it is treated not as the proposal of the crown, but as the motion of . some of their own members, which the house discusses, and finally accepts or rejects.(a) The bill when passed both houses, is presented to the king for his royal assent: those bills which he rejects remain without force, and those to which he assents are incorporated into the statutes of the kingdom, and thereafter treated as the express will of the highest power acknowledged in England. They have the same binding force as the edits en registies have in France, and as the populis-cita had in ancient Rome. And although each of the constitutent parts of parliament might, at the first, have prevented the existence of those laws, the united will of the three, when once enacted, is necessary to repeal them.(b)
(a) Stev. Eng. Con., Vol. ii., ch. 4, pp. 831, 832. (b) Stev. Eng. Con.., Vol. ii., ch. 4, p. 537.
§ 24. This much of the origin and history of statutes in England was deemed proper to incorporate into this treatise as a source of some degree of information to the legal student; a further prosecution of this branch of the subject, is incompatible with the object and design of this work.
It only remains to state in a few words what efficacy is attached to statutes when thus framed in England. A statute when clothed with all the solemnities of a law of the kingdom, it is said hath power to bind every subject of the realm to which legislative authority extends, and under the forms of government there existing: it binds the king if therein particularly named, although it is true as a general rule, that the king is not to be restrained of a liberty or right he before possessed by the general words of an act of parliament, unless he is expressly named in such act; but if the statute be intended to give a remedy against a wrong,(a) to punish frauds,(b) tortius usurpations, or the decay of religion, the king, though not named, shall be bound by it. So, too, although not named expressly, he is bound by an act for the advancement of religion or learning, or for providing for the poor.(c) So also was an act of parliament for the consolidation of endowed rectories and vicarages, held to bind the crown, though not named.(d) If an act spoke of the king generally and indefinitely, being named in a public capacity, it extended to all his successors, and to a queen, if the crown descended to a female.(e) A statute being regarded as the highest authority that government acknowledged on earth,(f) it has been held that
(a) 3 Inst. 618.
it could discharge a person from his allegiance, and restore him to a state of nature; it could make his estate to cease in the same manner as if the party possessing it were dead:(a) it even has been said, that it could do no wrong; yet Lord Holt has quaintly said, “That it may do several things that look pretty odd:” it can make Malta in Europe, and can make a woman a mayor, or a justice of the peace (b) but it cannot change the laws of nature so as to make a woman a man, or a man a woman.(c) It can dissolve a marriage and enable the adulteress to intermarry with her paramour;(d) it can enable a man to have or be an heir, who could not otherwise have or be an heir.(e) So an estate tail may be limited by a statute, without a dower, and the validity of such a limitation is not in such case to be measured by the rules of common law, for the reason that a statute can control those rules:(f) it can confirm conveyances defectively executed, and statutes for that purpose must be carried into effect. It may also, upon the request of parties, owners of real property, limit and vest their estates as they desire, or as they could do by deed.(g) § 25. But whenever a statute which limits an estate in real property is inconsistent with the estate granted by a prior deed, its effect is not merely to cure formalities in its execution, but it must be held to create a new estate. The parliament of England can regulate or new model the succession of the crown, as it did in the reign of Henry the VIII. and William the III. It can alter the
(a) Midway's Case, 6 Rep. 48.
(b) 2 John, 12.
(c) Steph. Elec. L., p. 110.
(d) 12 Mod. 88.
(e) 1 Lev. 75.
established religion of the land, as was done in a variety of instances in the reign of Henry the VIII. and his three children; it can change and create afresh, even the constitution of the kingdom, and of parliament itself, as was done by the act of the union, and the several statutes for biennial and septennial elections. In short, it is even claimed that it can do every thing which is not naturally impossible.(a) That it is clothed with all the legal attributes of omnipotence in the scale of political existence: The extent and qualifications of this last assumption will come under review in a succeeding chapter.
(a) Steph. Elect. L., Wol. i. p. 11.