constitution, that the executive power should be a branch, though not
the whole, of the legislature. The total union of them, we have seen,
would be productive of tyranny; the total disjunction of them for the
present, would in the end produce the same effects, by causing that
union, against which it seems to provide. The legislature would soon
become tyrannical, by making continual encroachments, and gradually
assuming to itself the rights of the executive power. Thus the long
parliament of Charles the first, while it acted in a constitutional
manner, with the royal concurrence, redressed many heavy grievances
and established many salutary laws. But when the two houses assumed
the power of legislation, in exclusion of the royal authority, they
soon after assumed likewise the reins of administration; and, in
consequence of these united powers, overturned both church and state,
and established a worse oppression than any they pretended to remedy.
To hinder therefore any such encroachments, the king is himself a part
of the parliament: and, as this is the reason of his being so, very
properly therefore the share of legislation, which the constitution
has placed in the crown, consists in the power of _rejecting_, rathar
[Transcriber's Note: rather] than _resolving_; this being sufficient
to answer the end proposed. For we may apply to the royal negative, in
this instance, what Cicero observes of the negative of the Roman
tribunes, that the crown has not any power of _doing_ wrong, but
merely of _preventing_ wrong from being done[p]. The crown cannot
begin of itself any alterations in the present established law; but it
may approve or disapprove of the alterations suggested and consented
to by the two houses. The legislative therefore cannot abridge the
executive power of any rights which it now has by law, without it's
own consent; since the law must perpetually stand as it now does,
unless all the powers will agree to alter it. And herein indeed
consists the true excellence of the English government, that all the
parts of it form a mutual check upon each other. In the legislature,
the people are a check upon the nobility, and the nobility a check
upon the people; by the mutual privilege of rejecting what the other
has resolved: while the king is a check upon both, which preserves the
executive power from encroachments. And this very executive power is
again checked, and kept within due bounds by the two houses, through
the privilege they have of enquiring into, impeaching, and punishing
the conduct (not indeed of the king, which would destroy his
constitutional independence; but, which is more beneficial to the
public) of his evil and pernicious counsellors. Thus every branch of
our civil polity supports and is supported, regulates and is
regulated, by the rest; for the two houses naturally drawing in two
directions of opposite interest, and the prerogative in another still
different from them both, they mutually keep each other from exceeding
their proper limits; while the whole is prevented from separation, and
artificially connected together by the mixed nature of the crown,
which is a part of the legislative, and the sole executive magistrate.
Like three distinct powers in mechanics, they jointly impel the
machine of government in a direction different from what either,
acting by themselves, would have done; but at the same time in a
direction partaking of each, and formed out of all; a direction which
constitutes the true line of the liberty and happiness of the
community.
[Footnote p: _Sulla--tribunis plebis sua lege injuriae faciendae
potestatem ademit, auxilii ferendi reliquit._ _de LL._ 3. 9.]
LET us now consider these constituent parts of the sovereign power, or
parliament, each in a separate view. The king's majesty will be the
subject of the next, and many subsequent chapters, to which we must at
present refer.
THE next in order are the spiritual lords. These consist of two
arch-bishops, and twenty four bishops; and, at the dissolution of
monasteries by Henry VIII, consisted likewise of twenty six mitred
abbots, and two priors[q]: a very considerable body, and in those
times equal in number to the temporal nobility[r]. All these hold, or
are supposed to hold, certain antient baronies under the king: for
William the conqueror thought proper to change the spiritual tenure,
of frankalmoign or free alms, under which the bishops held their lands
during the Saxon government, into the feodal or Norman tenure by
barony; which subjected their estates to all civil charges and
assessments, from which they were before exempt[s]: and, in right of
succession to those baronies, the bishops obtained their seat in the
house of lords[t]. But though these lords spiritual are in the eye of
the law a distinct estate from the lords temporal, and are so
distinguished in all our acts of parliament, yet in practice they are
usually blended together under the one name of _the lords_; they
intermix in their votes; and the majority of such intermixture binds
both estates. For if a bill should pass their house, there is no doubt
of it's being effectual, though every lord spiritual should vote
against it; of which Selden[u], and sir Edward Coke[w], give many
instances: as, on the other hand, I presume it would be equally good,
if the lords temporal present were inferior to the bishops in number,
and every one of those temporal lords gave his vote to reject the
bill; though this sir Edward Coke seems to doubt of[x].
[Footnote q: Seld. tit. hon. 2. 5. 27.]
[Footnote r: Co. Litt. 97.]
[Footnote s: Gilb. Hist. Exch. 55. Spelm. W.I. 291.]
[Footnote t: Glanv. 7. 1. Co. Litt. 97. Seld. tit. hon. 2. 5. 19.]
[Footnote u: Baronage. p. 1. c. 6.]
[Footnote w: 2 Inst. 585, 6, 7.]
[Footnote x: 4 Inst. 25.]
THE lords temporal consist of all the peers of the realm (the bishops
not being in strictness held to be such, but merely lords of
parliament[y]) by whatever title of nobility distinguished; dukes,
marquisses, earls, viscounts, or barons; of which dignities we shall
speak more hereafter. Some of these sit by descent, as do all antient
peers; some by creation, as do all new-made ones; others, since the
union with Scotland, by election, which is the case of the sixteen
peers, who represent the body of the Scots nobility. Their number is
indefinite, and may be encreased at will by the power of the crown:
and once, in the reign of queen Anne, there was an instance of
creating no less than twelve together; in contemplation of which, in
the reign of king George the first, a bill passed the house of lords,
and was countenanced by the then ministry, for limiting the number of
the peerage. This was thought by some to promise a great acquisition
to the constitution, by restraining the prerogative from gaining the
ascendant in that august assembly, by pouring in at pleasure an
unlimited number of new created lords. But the bill was ill-relished
and miscarried in the house of commons, whose leading members were
then desirous to keep the avenues to the other house as open and easy
as possible.
[Footnote y: Staunford. P.C. 153.]
THE distinction of rank and honours is necessary in every
well-governed state; in order to reward such as are eminent for their
services to the public, in a manner the most desirable to individuals,
and yet without burthen to the community; exciting thereby an
ambitious yet laudable ardor, and generous emulation in others. And
emulation, or virtuous ambition, is a spring of action which, however
dangerous or invidious in a mere republic or under a despotic sway,
will certainly be attended with good effects under a free monarchy;
where, without destroying it's existence, it's excesses may be
continually restrained by that superior power, from which all honour
is derived. Such a spirit, when nationally diffused, gives life and
vigour to the community; it sets all the wheels of government in
motion, which under a wise regulator, may be directed to any
beneficial purpose; and thereby every individual may be made
subservient to the public good, while he principally means to promote
his own particular views. A body of nobility is also more peculiarly
necessary in our mixed and compounded constitution, in order to
support the rights of both the crown and the people, by forming a
barrier to withstand the encroachments of both. It creates and
preserves that gradual scale of dignity, which proceeds from the
peasant to the prince; rising like a pyramid from a broad foundation,
and diminishing to a point as it rises. It is this ascending and
contracting proportion that adds stability to any government; for when
the departure is sudden from one extreme to another, we may pronounce
that state to be precarious. The nobility therefore are the pillars,
which are reared from among the people, more immediately to support
the throne; and if that falls, they must also be buried under it's
ruins. Accordingly, when in the last century the commons had
determined to extirpate monarchy, they also voted the house of lords
to be useless and dangerous. And since titles of nobility are thus
expedient in the state, it is also expedient that their owners should
form an independent and separate branch of the legislature. If they
were confounded with the mass of the people, and like them had only a
vote in electing representatives, their privileges would soon be borne
down and overwhelmed by the popular torrent, which would effectually
level all distinctions. It is therefore highly necessary that the body
of nobles should have a distinct assembly, distinct deliberations, and
distinct powers from the commons.
THE commons consist of all such men of any property in the kingdom as
have not seats in the house of lords; every one of which has a voice
in parliament, either personally, or by his representatives. In a free
state, every man, who is supposed a free agent, ought to be, in some
measure, his own governor; and therefore a branch at least of the
legislative power should reside in the whole body of the people. And
this power, when the territories of the state are small and it's
citizens easily known, should be exercised by the people in their
aggregate or collective capacity, as was wisely ordained in the petty
republics of Greece, and the first rudiments of the Roman state. But
this will be highly inconvenient, when the public territory is
extended to any considerable degree, and the number of citizens is
encreased. Thus when, after the social war, all the burghers of Italy
were admitted free citizens of Rome, and each had a vote in the public
assemblies, it became impossible to distinguish the spurious from the
real voter, and from that time all elections and popular deliberations
grew tumultuous and disorderly; which paved the way for Marius and
Sylla, Pompey and Caesar, to trample on the liberties of their
country, and at last to dissolve the commonwealth. In so large a state
as ours it is therefore very wisely contrived, that the people should
do that by their representatives, which it is impracticable to perform
in person: representatives, chosen by a number of minute and separate
districts, wherein all the voters are, or easily may be,
distinguished. The counties are therefore represented by knights,
elected by the proprietors of lands; the cities and boroughs are
represented by citizens and burgesses, chosen by the mercantile part
or supposed trading interest of the nation; much in the same manner as
the burghers in the diet of Sweden are chosen by the corporate towns,
Stockholm sending four, as London does with us, other cities two, and
some only one[z]. The number of English representatives is 513, and of
Scots 45; in all 558. And every member, though chosen by one
particular district, when elected and returned serves for the whole
realm. For the end of his coming thither is not particular, but
general; not barely to advantage his constituents, but the _common_
wealth; to advise his majesty (as appears from the writ of summons[a])
"_de communi consilio super negotiis quibusdam arduis et urgentibus,
regem, statum et defensionem regni Angliae et ecclesiae Anglicanae
concernentibus_." And therefore he is not bound, like a deputy in the
united provinces, to consult with, or take the advice, of his
constituents upon any particular point, unless he himself thinks it
proper or prudent so to do.
[Footnote z: Mod. Un. Hist. xxxiii. 18.]
[Footnote a: 4 Inst. 14.]
THESE are the constituent parts of a parliament, the king, the lords
spiritual and temporal, and the commons. Parts, of which each is so
necessary, that the consent of all three is required to make any new
law that shall bind the subject. Whatever is enacted for law by one,
or by two only, of the three is no statute; and to it no regard is
due, unless in matters relating to their own privileges. For though,
in the times of madness and anarchy, the commons once passed a
vote[b], "that whatever is enacted or declared for law by the commons
in parliament assembled hath the force of law; and all the people of
this nation are concluded thereby, although the consent and
concurrence of the king or house of peers be not had thereto;" yet,
when the constitution was restored in all it's forms, it was
particularly enacted by statute 13 Car. II. c. 1. that if any person
shall maliciously or advisedly affirm, that both or either of the
houses of parliament have any legislative authority without the king,
such person shall incur all the penalties of a praemunire.
[Footnote b: 4 Jan. 1648.]
III. WE are next to examine the laws and customs relating to
parliament, thus united together and considered as one aggregate body.
THE power and jurisdiction of parliament, says sir Edward Coke[c], is
so transcendent and absolute, that it cannot be confined, either for
causes or persons, within any bounds. And of this high court he adds,
it may be truly said "_si antiquitatem spectes, est vetustissima; si
dignitatem, est honoratissima; si juridictionem, est capacissima_." It
hath sovereign and uncontrolable authority in making, confirming,
enlarging, restraining, abrogating, repealing, reviving, and
expounding of laws, concerning matters of all possible denominations,
ecclesiastical, or temporal, civil, military, maritime, or criminal:
this being the place where that absolute despotic power, which must in
all governments reside somewhere, is entrusted by the constitution of
these kingdoms. All mischiefs and grievances, operations and remedies,
that transcend the ordinary course of the laws, are within the reach
of this extraordinary tribunal. It can regulate or new model the
succession to the crown; as was done in the reign of Henry VIII and
William III. It can alter the established religion of the land; as was
done in a variety of instances, in the reigns of king Henry VIII and
his three children. It can change and create afresh even the
constitution of the kingdom and of parliaments themselves; as was done
by the act of union, and the several statutes for triennial and
septennial elections. It can, in short, do every thing that is not
naturally impossible; and therefore some have not scrupled to call
it's power, by a figure rather too bold, the omnipotence of
parliament. True it is, that what they do, no authority upon earth can
undo. So that it is a matter most essential to the liberties of this
kingdom, that such members be delegated to this important trust, as
are most eminent for their probity, their fortitude, and their
knowlege; for it was a known apothegm of the great lord treasurer
Burleigh, "that England could never be ruined but by a parliament:"
and, as sir Matthew Hale observes[d], this being the highest and
greatest court, over which none other can have jurisdiction in the
kingdom, if by any means a misgovernment should any way fall upon it,
the subjects of this kingdom are left without all manner of remedy. To
the same purpose the president Montesquieu, though I trust too
hastily, presages[e]; that as Rome, Sparta, and Carthage have lost
their liberty and perished, so the constitution of England will in
time lose it's liberty, will perish: it will perish, whenever the
legislative power shall become more corrupt than the executive.
[Footnote c: 4 Inst. 36.]
[Footnote d: of parliaments, 49.]
[Footnote e: Sp. L. 11. 6.]
IT must be owned that Mr Locke[f], and other theoretical writers, have
held, that "there remains still inherent in the people a supreme power
to remove or alter the legislative, when they find the legislative act
contrary to the trust reposed in them: for when such trust is abused,
it is thereby forfeited, and devolves to those who gave it." But
however just this conclusion may be in theory, we cannot adopt it, nor
argue from it, under any dispensation of government at present
actually existing. For this devolution of power, to the people at
large, includes in it a dissolution of the whole form of government
established by that people, reduces all the members to their original
state of equality, and by annihilating the sovereign power repeals all
positive laws whatsoever before enacted. No human laws will therefore
suppose a case, which at once must destroy all law, and compel men to
build afresh upon a new foundation; nor will they make provision for
so desperate an event, as must render all legal provisions
ineffectual. So long therefore as the English constitution lasts, we
may venture to affirm, that the power of parliament is absolute and
without control.
[Footnote f: on Gov. p. 2. Sec. 149, 227.]
IN order to prevent the mischiefs that might arise, by placing this
extensive authority in hands that are either incapable, or else
improper, to manage it, it is provided that no one shall sit or vote
in either house of parliament, unless he be twenty one years of age.
This is expressly declared by statute 7 & 8 W. III. c. 25. with regard
to the house of commons; though a minor was incapacitated before from
sitting in either house, by the law and custom of parliament[g]. To
prevent crude innovations in religion and government, it is enacted by
statute 30 Car. II. st. 2. and 1 Geo. I. c. 13. that no member shall
vote or sit in either house, till he hath in the presence of the house
taken the oaths of allegiance, supremacy, and abjuration, and
subscribed and repeated the declaration against transubstantiation,
and invocation of saints, and the sacrifice of the mass. To prevent
dangers that may arise to the kingdom from foreign attachments,
connexions, or dependencies, it is enacted by the 12 & 13 W. III. c.
2. that no alien, born out of the dominions of the crown of Great
Britain, even though he be naturalized, shall be capable of being a
member of either house of parliament.
[Footnote g: 4 Inst. 47.]
FARTHER: as every court of justice hath laws and customs for it's
direction, some the civil and canon, some the common law, others their
own peculiar laws and customs, so the high court of parliament hath
also it's own peculiar law, called the _lex et consuetudo
parliamenti_; a law which sir Edward Coke[h] observes, is "_ab omnibus
quaerenda, a multis ignorata, a paucis cognita_." It will not
therefore be expected that we should enter into the examination of
this law, with any degree of minuteness; since, as the same learned
author assures us[i], it is much better to be learned out of the rolls
of parliament, and other records, and by precedents, and continual
experience, than can be expressed by any one man. It will be
sufficient to observe, that the whole of the law and custom of
parliament has it's original from this one maxim; "that whatever
matter arises concerning either house of parliament, ought to be
examined, discussed, and adjudged in that house to which it relates,
and not elsewhere." Hence, for instance, the lords will not suffer
the commons to interfere in settling a claim of peerage; the commons
will not allow the lords to judge of the election of a burgess; nor
will either house permit the courts of law to examine the merits of
either case. But the maxims upon which they proceed, together with
their method of proceeding, rest entirely in the breast of the
parliament itself; and are not defined and ascertained by any
particular stated laws.
[Footnote h: 1 Inst. 11.]
[Footnote i: 4 Inst. 50.]