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§ 51. “Parliament.”

ORIGIN.—This word, which, Bagehot says, is descriptive of the greatest inquiring, discussing, and legislative machine the world has ever known, “the great engine of popular instruction and political controversy,” is derived from the Old English, Parlement; French, Parlement, Parler, to speak; Low Latin, Parliamentum—a parleying, a discussion, a conference; hence a formal conference on public affairs; an assembly of representatives of a nation. (Webster's Internat. Dictionary.) Freedom of speech is the essence of political representation, and without it a national council could not exist.

“The word (which was at first applied to general assemblies of the States under Louis VII. in France, about A.D. 1150) was not used in England until the reign of Hen. III., and the first mention of it, in our statute law, is in the preamble to stat. Westm. I., 3 Ed. I., A.D. 1272. When therefore it is said that Parliaments met before that era, it is by a license of speech, considering every national assembly as a Parliament. See I. Comm., c. 2, p. 147, and the notes thereof.” (Tomlins's British Law—Title, Parliament.)

“In 21 Henry III. the King finds himself, in consequence of pressing money embarrassments, again compelled to make a solemn confirmation of the charter, in which once more the clauses relating to the estates are omitted. Shortly afterwards, as had happened just one hundred years previously in France, the name ‘parliamentum’ occurs for the first time (Chron., Dunst., 1244; Matth., Paris, 1246), and, curiously enough, Henry III. himself, in a writ addressed to the Sheriff of Northampton, designates with this term the assembly which originated the Magna Charta: ‘Parliamentum Runemede, quod fuit inter Dom. Joh., Regem patrem nostrum et barones suos Anglice.’ (Rot Claus., 28 Hen. III.) The name ‘parliament’ now occurs more frequently, but does not supplant the more indefinite terms concilium, colloquium, &c.” (Gneist, English Constitution, p. 261.)

PRECURSORS AND PROTOTYPES.—The Parliament of the Commonwealth is not an original invention in any of its leading principles. It has its roots deep in the past. It has been built on lines suggested by the best available models of its kind. Its framers did not venture to indulge in any new fangled experiments; they resisted every temptation to leave the beaten tract of precedent and experience, or to hanker after revolutionary ideals. In constructing a legislative machine for the new community they believed that they would most successfully perform their work by utilizing and adapting the materials to be found in the British, American, and Canadian Constitutions, with such developments and improvements as might be justified by reason and expediency. Of them and their work it may be said, as of the authors of the Constitution of the United States and of their work—

“They had a profound disbelief in theory and knew better than to commit the folly of breaking with the past. They were not seduced by the French fallacy that a new system of Government could be ordered like a new suit of clothes. They would as soon have thought of ordering a suit of flesh and skin. It is only on the roaring loom of time that the stuff is woven for such vesture of their thought and experience as they were meditating.” (Mr. Lowell's Address on Democracy, Oct. 6, 1884.)

“They had neither the rashness nor the capacity necessary for constructing a Constitution, a priori. There is wonderfully little genuine inventiveness in the world, and perhaps least of all has been shown in the sphere of political institutions. These men, practical politicians who knew how infinitely difficult a business government is, desired no bold experiments. They preferred, so far as circumstances permitted, to walk in the old paths, to follow methods which experience had tested. Accordingly they started from the system on which their own colonial governments, and afterwards their State governments, had been conducted. This system bore a general resemblance to the British


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Constitution; and in so far it may with truth be said that the British Constitution became a model for the new national government.” (Bryce's American Comm., I., p. 31.)

“There were other precursors of the federal government; but the men who framed it followed the lead of no theoretical writer of their own or preceding times. They harboured no desire of revolution, no craving after untried experiments. They wrought from the elements which were at hand, and shaped them to meet the new exigencies which had arisen. The least possible reference was made by them to abstract doctrines; they moulded their design by a creative power of their own, but nothing was introduced that did not already exist, or was not a natural development of a well-known principle. The materials for building the American constitution were the gifts of the ages.” (Bancroft, Constitution of the U.S, II, p. 322.)

“In the constant remaking of the constitutions of Europe, South America, and even Asia, Africa, and the Pacific islands, they should teach statesmen the pitfalls to avoid and the paths to seek for the permanent security of both liberty and property. These can be found only by an exhaustive study of the precedents which are landmarks of the progress of the development of the Constitution of the United States, before as well as since its adoption. They lead from the forests of Germany in the time of Tacitus, over the island of Runnymede and the rock at Plymouth, beyond the apple-tree at Appomatox into the old Senate Chamber at Washington, where Chief Justice Fuller sits with his associates. They were the result of conflicts with the sword, the pen, and the tongue, in the field, the press, the senate, and the court. Amongst their builders are enrolled the names of Simon de Montfort, Coke, Eliot, Hampden, Lilburne, Milton, Shaftesbury, Locke, Wilkes, Jefferson, Hamilton, Marshall, Webster, and Lincoln. They present the spectacle of the struggles of a people to obtain civil and religious liberty for themselves, to extend them to those of another and despised race, and now to combine them with the rights to ungoverned labour and complete security for private property.” (Foster's Comm., I., p. 2.)

“The form of government which prevails usually in primitive communities comprises a king or chief, a senate or gathering of elders or selectmen with whom he consults, and a public assembly of all freemen with the right of suffrage, who decide questions of importance, whether legislative, executive, or judicial, which are submitted to them. This naturally arose from the councils of war, where the general, after consulting the more experienced, took the sense of the whole body of warriors before an important enterprise. Such a legislative assemblage of the whole people may still be seen once a year on the Tynwald in the Isle of Man, in the Swiss cantons of Uri, Unter-walden, Glarus, and Appenzell; and more frequently in the town meetings in New England and the Western States. In Switzerland the voters still follow the early custom of attending armed. Of such a character were the federal assemblies of the Achaian, Ætolian and Lycian Leagues, which each citizen had a right to attend, although they voted by cities. They were manifestly impracticable when a government was spread over an extensive territory, and to the lack of representative institutions has been ascribed the loss of liberty in Greece and Rome. The senates of these confederations seem to have been composed of the present and former magistrates of the different cities, who acted rather as ambassadors than legislators, and voted by cities, each having an equal voice regardless of differences in wealth and population.” (Id., p. 307-8.)

Part I.—General.

Legislative Power.

1. The legislative power52 of the Commonwealth shall be vested in a Federal Parliament53, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called “The Parliament,” or “The Parliament of the Commonwealth.”

UNITED STATES.—All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.—Const., Art. I., sec. 1. CANADA.—There shall be one Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.—B.N.A. Act, 1867, sec. 17.

HISTORICAL NOTE.—The clause in the Commonwealth Bill of 1891 was in substantially the same form. The clause as introduced at the Adelaide session, 1897, substituted “States Assembly” for “Senate,” but in Committee, on Mr. Walker's


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motion, the name “Senate” was restored. (Conv. Deb., Adel., pp. 480-2.) Mr. Higgins proposed “National Assembly” in place of “House of Representatives,” and Mr. Symon proposed “House of Commons,” but both suggestions were negatived. (Conv. Deb., Adel., pp. 483, 628-9, 1189.) At the Sydney session, suggestions of the Legislative Council of New South Wales, to omit “Federal” and to substitute “House of Assembly” for “House of Representatives,” were negatived. (Conv. Deb., Syd. [1897], p. 253.) At the Melbourne session, after the fourth report, “power” was substituted for “powers.”

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