On a few subjects of specially Imperial concern, and as to which uniformity of regulation is specially important, the Imperial Parliament still occasionally legislates for all the Queen's Dominions; see for instance the Copyright Act, 1842 (5 and 6 Vic. c. 45) ; parts of the Merchant Shipping Act, 1894 (57 and 58 Vic. c. 60) and the Privy Council Acts. Such legislation when expressly extended to the Colonies will be as binding on the Parliament and people of the Commonwealth as is the Constitution itself. (See Lefroy, Leg. Power in Canada, p. 208.) In the second place, it is under a real subjection to the Constitution, as a living central force, continuously in action, keeping the ruling organs of the federated community within the respective spheres mapped out by the Constitution, and checking invasions and encroachments beyond the limits of those spheres. Not only the Federal Government, but the Governments of the States, will be under the Federal Constitution to the extent to which the Constitution limits their powers, and to the extent to which the power of amendment may be exercised. The Constitution will therefore be the supreme law of the land binding the people of the Commonwealth, the Federal Parliament, and all the governing agencies and instruments of the Commonwealth to the extent expressed.

The Commonwealth is not established and the Constitution does not take effect until the date specified in the Queen's proclamation issued under Clauses 3 and 4. This proclamation was required to be issued within one year after the passing of the Act of the Imperial Parliament.

Be it therefore enacted by the Queen's Most Excellent Majesty," by and with the advice and consent of the Lords Spiritual and Temporal,13 and Commons," in this present Parliament assembled, and by the authority of the same, as follows:

UNITED STATES.-We the People of the United States,

15

do ordain and establish this

Constitution for the United States of America. [Preamble.] CANADA.-Be it therefore enacted and declared by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:- [Preamble.] GERMANY. - His Majesty, the King of Prussia, in the name of the North German Confederation, His Majesty the King of Bavaria, His Majesty the King of Wurtenburg, His Royal Highness the Grand Duke of Baden, and His Royal Highness the Grand Duke of Hesse and by Rhine for those parts of the Grand Duchy of Hesse which are situated south of the Main, conclude an eternal alliance. This Confederation shall bear the name of the German Empire, and shall have the following Constitution:- [Preamble.]

SWITZERLAND. In the name of Almighty God. The Swiss Confederation, . . has adopted the Federal Constitution following:- [Preamble.]

§ 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

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 âppears 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

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.)

§ 12. "Of the Lords Spiritual."

One of the oldest Acts in which this expression occurs is the Statute of 4 Hen. IV. (1402), which begins - "To the honour of God and Holy Church, and for the common wealth and profit of all the realm of England, our Lord the King, by the assent of the Lords Spiritual and Temporal, and at the special instance and request of the Commons, assembled at the Parliament holden at Westminster the morrow after the feast of St. Michael, the fourth year of his reign, hath ordained and established certain statutes and ordinances by the manner as followeth." (Stat. Rev. Ed., 1870, Vol. I., p. 272.) This form was used in all the Acts of Henry IV. It was followed in the Acts of Henry V., and with few exceptions it became the regular method of referring to the ecclesiastical element in the House of Lords. This reference to "Lords Spiritual” has led to the impression, in the minds of a large number of writers, that they constitute one of three estates of the realm. That is not so. The Lords Spiritual, in reality, form a component part of the House of Lords, which is, as a whole, only one of the estates. Another equally incorrect assumption, frequently met with, is that the Crown represents one of the three estates.

THE THREE ESTATES. — Among most of the nations of Western Europe, it was in the early and middle ages customary to consider a political community as divided into three orders or estates. In England it was generally held during a part of that period that the nobility, the clergy, and the commons, constituted the three states of which the Parliamentary Assembly was composed. The Crown shared in the sovereignty with

the Parliamentary body, but it was not an estate.

THE CLERGY AS AN ESTATE.-When William the Conqueror assumed the Government of England, he changed the spiritual tenure of Frankalmoign or free alms under which the bishops, mitred abbots, and other Spiritual Lords held their land, in Saxon times, into feudal tenure by barony. This tenure subjected the ecclesiastical estate to civil charges, pecuniary claims, assessments and aids from which they were before exempt. The inferior clergy and owners of religious houses, however, continued to

hold their lands on Frankalmoign, and thus free from liability to feudal burdens and taxation. As an incident of their right to the enjoyment of a succession to their baronies and of their consequent liability to feudal obligations, the bishops and abbots were summoned to attend the sittings of the King's Great Council (Magnum Concilium), which afterwards developed into the House of Lords, and they have ever since been allowed the privilege of membership of that order under the name, finally recognized, of the "Lords Spiritual." The Lords Spiritual, however, never constituted an estate or assembly of the clergy as a whole. The parochial clergy and owners of religious houses being legally exempt from taxation, and protected by law as well as by the sanctity of their order, the King could not tax them without their consent. expedient was therefore adopted for the purpose of obtaining their consent. A special assembly, or convocation, was organized in which the mass of the clergy could be officially represented by men of their own class, and of their own selection, charged with the duty of deciding the manner and measure of their taxation in aid of the King's

revenue,

An

In the "Model Parliament " of 1295 (23 Edw. I.) the clergy were for the first time represented as one of the three estates in a really national Legislature. In the Parliamentary writ of summons served on every bishop, requiring his attendance in the King's Great Council, he was "premonished" to cause the Dean of his Cathedral Church and the Archdeacon of his Diocese in person, and the chapter and the parish clergy of the Diocese, by their proctors, to attend the Parliament and there take part in the deliberations of the assembly of the clergy. This command to the bishops, usually known from its initial word as the " Premunientes Clause," was first issued in 1295; it was uniformly issued after 1354, and it was generally obeyed by the formal election of proctors until the Reformation (Hen. VIII. 1599-1547). (Hearn's Gov. of Eng. p. 432.)

The inferior clergy, however, though always summoned under the writ of premunientes, seldom attended. They preferred to keep aloof from secular legislation, and to tax themselves in their own Convocation. In the 14th century their attendance ceased altogether; though in Convocation they still formed a Legislative Council, by whose advice and consent alone, without that of the growing Commons, Edward III. and Richard II. passed laws, on ecclesiastical matters, to bind the laity. At last, in 1664, without any special legislative enactment, the practice of special ecclesiastical taxation ceased, and the lower clergy merged in the general body of the Commons. (Hallam, Middle Ages, III., 137; Taswell-Langmead, p.250.) Thus the clergy ceased to be an estate of the realm, and now there are only two estates, namely, the Lords and the Commons, forming one Parliament in which the clergy are represented in common with the rest of the nation.

At common law the clergy were not qualified to vote at elections for the House of Commons, nor were they qualified to be elected members of that House; the reason being that they were of a distinct and separate estate, and that one estate could not take part in the political deliberations of another. By the Acts of 10 Anne c. 31, and 18 Geo. II. c. 18, clergymen who are not members of the House of Lords have been conceded the right to vote; and by 33 and 34 Vic. c. 91 (1870) clergymen may, by deed, renounce their clerical capacity and become qualified for election as members of the House of Commons and other public bodies.

§ 13. "And Temporal."

The Lords Temporal consist of all the peers of the realm, by whatever title of nobility distinguished. Bishops are not peers; they, with the peers, form the Lords of Parliament or the House of Lords as an integrated legislative chamber. The origin of this body has been traced to the Great Council (Magnum Concilium), consisting of the nobles, tenants-in-chief, principal landowners and prelates, known before the Norman

conquest as "Witena-gemot," and after that event as the "Curia Regis," which assembled to advise the King in matters of legislation and administration. The peerage of the present day is the descendant of the old Great Council of the King. (Hearn's Gov. of Eng. p. 144.)

The House of Lords now consists of members who hold their seats either—(1) by hereditary right, (2) by the creation of the reigning sovereign, (3) by virtue of their office, such as English Bishops, (4) by election for life, such as Irish peers, of whom there are twenty-eight, (5) by election for the duration of a Parliament, such as the Scotch representative peers, of whom there are sixteen. In 1830, the number of peers on the roll of Parliament was 401; in 1899, the number had increased to 591; about two-thirds of the hereditary peerages at present in existence were created during the present century. (Statesmen's Year Book, 1900, P. 7.)

$ 14. "And Commons.”

ORIGIN. It would be difficult to condense into a brief note an adequate summary of the beginnings of that great and renowned parliamentary assembly whose name is thus officially given in the Imperial Act. The House of Commons was originally the legislative chamber in which were represented, not the common people of England, nor the English churls, nor the English plebeians, as those expressions are generally understood, but the various communities (Communitates) of the Kingdom. Communitates meant aggregations of persons residing in the same neighbourhood, entitled to the enjoyment of common rights, subject to common duties and burdens, having common interests; groups of population organized and localized; assemblages of persons liable to the same feudal obligations, and occupying the same relation to the King. Foremost in numerical strength among these Communitates were-(1) the communities of the counties, which included the knights of the shires, formerly the lesser barons and lesser Crown vassals; and (2) the communities of the cities, towns and boroughs, including the citizens and burgesses thereof. According to the theory of the Constitution, even in the middle ages, the maxim prevailed that "what touched all should be approved by all;" that no change should be made in a law affecting any class, order or community, and certainly that no tax could be imposed, without the consent of the group of persons immediately concerned. Hence the knights of the shires, when they became differentiated from the greater barons, who were summoned in person by special writ to attend the Magnum Concilium, began to meet, either in person or through their delegates, in an assembly of their own, to vote aids to the Crown and petition for redress of grievSimilarly, the cities and boroughs, being called upon by the King to grant aids and subsidies, sent delegates to represent them and to do their business in a gathering of their own.

ances.

The growth of these two middle classes, and their gradual representation for the discharge of public functions, was at times actually encouraged by the Crown in order to facilitate the collection of revenue or to counterbalance the increasing influence of the barons and prelates; at other times the popular tendency was supported by the leaders of the nobility, in order to gain support in their contests against the Crown.

ELECTION AND REPRESENTATION.-"The ideas of election and representation, both separately and in combination, had been familiar to the nation, in its legal and fiscal system, long before they were applied to the Constitution of the National Parliament. The English Kingship was always in theory, and to a great extent in practice, elective. The bishops and abbots were supposed to be elected by the clergy, of whom they were the representatives. In the local courts of the hundred and the shire, the reeve and. four men attended as representatives from each township; and the twelve assessors of the sheriff represented the judicial opinion of the whole shire." (Taswell-Langmead, p. 229.) It must be remembered that the national Government was a mere skeleton, whilst county government was highly organized; so that the extension of the representative system to the Parliament meant the centralization of popular institutions.