Chapter 14

HENCE it indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. How those parliaments were constituted and composed, is another question, which has been matter of great dispute among our learned antiquarians; and, particularly, whether the commons were summoned at all; or, if summoned, at what period they began to form a distinct assembly. But it is not my intention here to enter into controversies of this sort. I hold it sufficient that it is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of king John, _A.D._ 1215, in the great charter granted by that prince; wherein he promises to summon all arch-bishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with forty days notice, to assess aids and scutages when necessary. And this constitution has subsisted in fact at least from the year 1266, 49 Hen. III: there being still extant writs of that date, to summon knights, citizens, and burgesses to parliament. I proceed therefore to enquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of five hundred years. And in the prosecution of this enquiry, I shall consider, first, the manner and time of it's assembling: secondly, it's constituent parts: thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and distinctly taken: sixthly, the methods of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament's adjournment, prorogation, and dissolution.

I. AS to the manner and time of assembling. The parliament is regularly to be summoned by the king's writ or letter, issued out of chancery by advice of the privy council, at least forty days before it begins to sit. It is a branch of the royal prerogative, that no parliament can be convened by it's own authority, or by the authority of any, except the king alone. And this prerogative is founded upon very good reason. For, supposing it had a right to meet spontaneously, without being called together, it is impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting: and if half of the members met, and half absented themselves, who shall determine which is really the legislative body, the part assembled, or that which stays away? It is therefore necessary that the parliament should be called together at a determinate time and place; and highly becoming it's dignity and independence, that it should be called together by none but one of it's own constituent parts; and, of the three constituent parts, this office can only appertain to the king; as he is a single person, whose will may be uniform and steady; the first person in the nation, being superior to both houses in dignity; and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being[h]. Nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and is to sit again for six months, unless dissolved by the successor: for this revived parliament must have been originally summoned by the crown.

[Footnote h: By motives somewhat similar to these the republic of Venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chosen by the several districts of the Venetian territory, and constituted a doge in their stead; in whom the executive power of the state at present resides. For which their historians have assigned these, as the principal reasons. 1. The propriety of having the executive power a part of the legislative, or senate; to which the former annual magistrates were not admitted. 2. The necessity of having a single person to convoke the great council when separated. Mod. Un. Hist. xxvii. 15.]

IT is true, that by a statute, 16 Car. I. c. 1. it was enacted, that if the king neglected to call a parliament for three years, the peers might assemble and issue out writs for the choosing one; and, in case of neglect of the peers, the constituents might meet and elect one themselves. But this, if ever put in practice, would have been liable to all the inconveniences I have just now stated; and the act itself was esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed by statute 16 Car. II. c. 1. From thence therefore no precedent can be drawn.

IT is also true, that the convention-parliament, which restored king Charles the second, met above a month before his return; the lords by their own authority, and the commons in pursuance of writs issued in the name of the keepers of the liberty of England by authority of parliament: and that the said parliament sat till the twenty ninth of December, full seven months after the restoration; and enacted many laws, several of which are still in force. But this was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have been settled in peace. And the first thing done after the king's return, was to pass an act declaring this to be a good parliament, notwithstanding the defect of the king's writs[i]. So that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Besides we should also remember, that it was at that time a great doubt among the lawyers[k], whether even this healing act made it a good parliament; and held by very many in the negative: though it seems to have been too nice a scruple.

[Footnote i: Stat. 12 Car. II. c. 1.]

[Footnote k: 1 Sid. 1.]

IT is likewise true, that at the time of the revolution, _A.D._ 1688, the lords and commons by their own authority, and upon the summons of the prince of Orange, (afterwards king William) met in a convention and therein disposed of the crown and kingdom. But it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon an apprehension that king James the second had abdicated the government, and that the throne was thereby vacant: which apprehension of theirs was confirmed by their concurrent resolution, when they actually came together. And in such a case as the palpable vacancy of a throne, it follows _ex necessitate rei_, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. For, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail, and become extinct, which would indisputably vacate the throne: in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government; otherwise there must be no government at all. And upon this and no other principle did the convention in 1688 assemble. The vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. They did not assemble without writ, and then make the throne vacant; but the throne being previously vacant by the king's abdication, they assembled without writ, as they must do if they assembled at all. Had the throne been full, their meeting would not have been regular; but, as it was really empty, such meeting became absolutely necessary. And accordingly it is declared by statute 1 W. & M. st. 1. c. 1. that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. So that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in the government) the rule laid down is in general certain, that the king, only, can convoke a parliament.

AND this by the antient statutes of the realm[l], he is bound to do every year, or oftener, if need be. Not that he is, or ever was, obliged by these statutes to call a _new_ parliament every year; but only to permit a parliament to sit annually for the redress of grievances, and dispatch of business, _if need be_. These last words are so loose and vague, that such of our monarchs as were enclined to govern without parliaments, neglected the convoking them, sometimes for a very considerable period, under pretence that there was no need of them. But, to remedy this, by the statute 16 Car. II. c. 1. it is enacted, that the sitting and holding of parliaments shall not be intermitted above three years at the most. And by the statute 1 W. & M. st. 2. c. 2. it is declared to be one of the rights of the people, that for redress of all grievances, and for the amending, strengthening, and preserving the laws, parliaments ought to be held _frequently_. And this indefinite _frequency_ is again reduced to a certainty by statute 6 W. & M. c. 2. which enacts, as the statute of Charles the second had done before, that a new parliament shall be called within three years[m] after the determination of the former.

[Footnote l: 4 Edw. III. c. 14. and 36 Edw. III. c. 10.]

[Footnote m: This is the same period, that is allowed in Sweden for intermitting their general diets, or parliamentary assemblies. Mod. Un. Hist. xxxiii. 15.]

II. THE constituent parts of a parliament are the next objects of our enquiry. And these are, the king's majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal, (who sit, together with, the king, in one house) and the commons, who sit by themselves in another[n]. And the king and these three estates, together, form the great corporation or body politic of the kingdom, of which the king is said to be _caput, principium, et finis_. For upon their coming together the king meets them, either in person or by representation; without which there can be no beginning of a parliament[o]; and he also has alone the power of dissolving them.

[Footnote n: 4 Inst. 1.]

[Footnote o: 4 Inst. 6.]

IT is highly necessary for preserving the ballance of the 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.]