§ 11. “By the Queen's Most Excellent Majesty.”

The enacting words, showing the Authority by which the Commonwealth is created, are in the form in which Acts of Parliament have been framed from a remote period of English history. According to the theory of the Constitution the Queen is the source of law, the Queen makes new laws, the Queen alters or repeals old laws, subject only to the condition that this supreme power must be exercised in Parliament and not otherwise. Every Act of Parliament bears on its face the stamp and evidence of its royal authority. It springs from the Queen's Most Excellent Majesty. It is in the Crown, and not in Parliament, that legislative authority is, according to Constitutional theory, directly vested. Parliament is the body assigned by law to advise the Crown in matters of legislation, and the Crown could not legally legislate without the advice and consent of Parliament. “It is, however, constitutionally and theoretically true that the legislative function resides in Queen Victoria no less than it resided in William the Conqueror. The conditions and limitations under which that power is exercisable have

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indeed been profoundly modified.” (Hearn's Government of England, p. 51.) Several stages in the history of the Royal legislative function, and in the mode of its initiation and its exercise, may be summarized:—

LEGISLATION BY THE KING IN COUNCIL.—In the earliest periods of English history of which we have any authentic records, we find that both the subjects of legislation and the mode of dealing with them rested entirely with the King and his Council of immediate advisers and great men; the King presiding at the Council in person, preparing and presenting the matters for consideration, and sharing in the deliberations of the Council. From time immemorial the Crown has always been assisted by a consultative or advisory body under the fluctuating names of “The Michel Synoth,” or Great Council; “The Michel Gemot,” or Great Meeting; “The Witena Gemot,” or Meeting of Wise Men. In Latin it was variously styled the Commine Concilium Regni; the Magnum Concilium; and the Curia Regis Magna. Long before the Norman conquest all matters of public importance were debated and settled by the King in the Great Council of the realm. (Freeman's Growth of the English Constitution, pp. 40 and 53.)

This practice seems to have been universal among the Northern nations, and particularly among the Teutonic tribes, in whose primitive institutions, as described by Tacitus, there can be discerned the germs which afterwards expanded into the elaborate mechanism of representative and parliamentary government. In the very earliest accounts of these tribes we find the community generally ruled by a chief or prince with the advice and consent of the assembled nobles and people. This system was afterwards carried by the Germans into all the countries of Europe which they over-ran upon the dissolution of the Roman Empire. (Tomlin's British Law, vol. II. [Parliament]; Hearn's Government of England, p. 416.) So early as the reigns of Ina, King of the West Saxons; Offa, King of the Mercians; Ethelbert, King of Kent, instances occur of the meeting of such a Council “to consider the affairs of the kingdom and to advise the king to make new laws as well as to mend old ones.”

After the union of the several realms of the Heptarchy, King Alfred ordained for a perpetual usage, that these Councils should meet twice in the year, or oftener, if need be, to treat of the government of the people; “how they should keep themselves from sin, should live in quiet, and should receive right.” Our succeeding Saxon and Danish monarchs frequently held councils of this sort, as appears from their respective codes of laws; the title whereof usually speak them to be enacted, either by the King with the advice of his Witena-gemot, or wise men, or by these sages with advice of the King, or lastly, by both together. There is also no doubt but that these great councils were occasionally held under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry II., speaking of a particular amount of an amercement in the Sheriff's Court, says, “It had never yet been ascertained by the General Assizes or Assemblies, but was left to the custom of particular counties.” (Glanvil, b. 9, c. 10.) Here the general assizes are spoken of as a meeting well known, and its statutes or decisions are put in a manifest contradistinction to custom, or the common law.—Tomlin's B.L. vol. II. (Parl.).

LEGISLATION BY THE KING ON PETITION.—The “Great Council,” whose concurrence in legislation was thus required, was the historical original of the House of Lords. Long after the sole right of the Commons to grant supplies to the Crown was established, there was no recognition of their right to be consulted in matters of general legislation. The “power of the purse,” however, enabled them to claim legislation for the redress of grievances; and in 1309, early in the reign of Edward II., we find them granting a subsidy “upon this condition, that the King should take advice and grant redress upon certain articles, in which their grievances were set forth.” Thirteen years later their right to concur in all legislation was affirmed. The Act of 15 Edward II. (1322) contains a clause which is said to be the first formal recognition of our present legislative system, viz., “the matters which are to be established for the estate of our Lord the King and

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of His Heirs and for the estate of the realm and of the people, shall be treated, accorded and established in Parliaments by our Lord the King and by the assent of prelates, earls and barons, and the commonalty of the realm, according as it hath been heretofore accustomed.” (Taswell-Langmead, p. 269.) Almost all the Acts passed during the reign of Edward III. (1327–1377) express in some shape the concurrence of the Lords and of the Commons. At the same time they were the laws of the King, made by the King, at the request of or on the petition of the people or communities of the people with the assent of the Lords “for the common benefit of the people of the realm.” (Hearn's Gov. of Eng. 54.)

LEGISLATION BY THE KING, ON BILL PRESENTED BY PARLIAMENT.—The third period marks the transition from legislation preceded by petition, to the modern form of legislation by Bill, presented to the Crown by Parliament. The Commons, disappointed at the frequent neglect of their petitions, and equally aggrieved by the frequent passage of laws, not according to the terms of their petitions, adopted a new expedient; they submitted for the Royal assent “a petition containing in itself the form of a bill.” This instrument, which contained the precise provisions that they desired, was the identical document on which the Royal fiat was placed. No room was thus left for fraud or misunderstanding. But an unforeseen and remarkable consequence followed. It became difficult, if not altogether impossible, for the Crown to amend the petition thus presented. When a request was made in so precise a form, nothing remained but either to assent to it or to reject it as a whole. Hence, although a few exceptions occur in the reign of Edward IV., the practice was established, at all events before the accession of the Tudors, that the Royal assent should be given to or withheld from the precise advice tendered to the King by his Parliament. (Hearn's Gov. of Eng. p. 59.)