112 OF THE RIGHTS [Book 1. by representation; without which there can be no beginning of a parliament: (0) and he also has alone the power of dissolving them. [154] It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislative. 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 legislative 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 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 its 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 [155] all the parts of it form a mutual check upon each other. In the legis lature, 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 inquiring into, impeaching, and punishing the conduct (not indeed of the king, (q) 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 itself, would have done; but at the same time in a direction partaking of each, and !! 3.9. o 4. Inst. 6. Sulla-tribunis plebis suae lege injuriae faciendae potestatem ademit, auxilii ferendi reliquit. De LL. q Stat. 12 Car. II. c. 50. formed out of all; a direction which constitutes the true line of the liberty and happiness of the community.9 Let us now consider these constituent parts of the sovereign power, or (9) These observations have been termed by Mr. Reeve, in his fourth letter, entitled, Thoughts on the English Government," a fabulous invention, contrived in order to round and finish more completely his mythological account of three coequal and co-ordinate powers in the legislature." But the truth and propriety of the learned commentator's doctrine is admirably elucidated by the following extract from a work of considerable merit. "This security is sometimes called the balance of the constitution: and the political equili brium, which this phrase denotes, consists in two contrivances, A BALANCE OF POWER and A BALANCE OF INTEREST. By a balance of power is meant, that there is no power possessed by one part of the legislature, the abuse or excess of which is not checked by some antagonist power, residing in another part. Thus the power of the two houses of parliament to frame laws is checked by the king's negative; that if laws subversive of real government should obtain the consent of parliament, the reigning prince, by interposing his prerogative, may save the necessary rights and authority of his station. On the other hand, the arbitrary application of this negative is checked by the privilege which parliament possesses, of refusing supplies of money to the exigencies of the king's administration. The constitutional maxim, that the king can do no wrong, is balanced by another maxim, not less constitutional, that the illegal commands of the king do not justify those who assist or concur in carrying them into execution; and by a second rule, subsidiary to this, that the acts of the crown acquire not any legal force, until authenticated by the subscription of some of its great officers. The wisdom of this contrivance is worthy of observation. As the king could not be punished without a civil war, the constitution exempts his person from trial or account; but, lest this impunity should encourage a licentious exercise of dominion, various obstacles are opposed to the private will of the sovereign, when directed to illegal objects. The pleasure of the crown must be announced with certain solemnities, and attended by certain officers of state. In some cases, the royal order must be signified by a secretary of state; in others it must pass under the privy-seal, and in many, under the great seal. And when the king's command is regularly published, no mischief can be achieved by it, without the ministry and compliance of those to whom it is directed. Now, all who either concur in an illegal order, by authenticating its publication with their seal or subscription, or who in any manner assist in earrying it into execution, subject themselves to prosecution and punishment, for the part they have taken; and are not permitted to plead, or produce the command of the king, in justification of their obedience. But further; the power of the crown to direct the military force of the kingdom, is balanced by the annual necessity of resorting to parliament for the maintenance and government of that force. The power of the king to declare war is checked by the privilege of the house of commons to grant or withhold the supplies by which the war must be carried on. The king's choice of his ministers is controlled by the obligation he is under of appointing those men to offices in the state, who are found capable of managing the affairs of his government with the two houses of parliament. This consideration imposes such a necessity upon the crown, as hath, in a great measure, subdued the idea of favouritism; insomuch, that it is become no uncommon spectacle in this country, to see men promoted by the king to the highest offices, and richest preferments which he has in his power to bestow, who have been distinguished by their opposition to his personal inclinations. "By the balance of interest, which accompanies and gives efficacy to the balance of power, is meant this, that the respective interests of the three estates of the empire are so disposed and adjusted, that which ever of the three shall attempt any encroachment, the other two will unite in resisting it. If the king should endeavour to extend his authority, by contracting the power and privileges of the commons, the house of lords would see their own dignity endangered by every advance which the crown made to independency upon the resolutions of parliament. The admission of arbitrary power is no less formidable to the grandeur of the aristocracy, than it is fatal to the liberty of the republic; that is, it would reduce the nobility, from the hereditary share they possess in the national councils, in which their real greatness consists, to the being made a part of the empty pageantry of a despotic court. On the other hand, if the house of commons should intrench upon the distinct province, or usurp the established prerogative of the crown, the house of lords would receive an instant alarm from every new stretch of popular power. In every contest in which the king may be engaged with the representative body, in defence of his esta blished share of authority, he will find a sure ally in the collective power of the nobility. An attachment to the monarchy, from which they derive their own distinction; the allurement of a court, in the habits, and with the sentiments of which they have been brought up; their hatred of equality, and of all levelling pretensions, which may ultimately affect the privileges, or even the existence of their order: in short, every principle, and every prejudice which are wont to actuate human conduct, will determine their choice to the side and support of the crown. Lastly, if the nobles themselves should attempt to revive the superiorities which their ancestors exercised, under the feudal constitution, the king and the people would alike remember, how the one had been insulted and the other enslaved, by that barbarous tyranny. They would forget the natural opposition of their views and inclinations, when they saw themselves threatened with a return of a domination, which was odious and intolerable to both." Chitty VOL. I. 15 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 archbishops, and twenty-four bishops ;10 and at the dissolution of monasteries by Henry VIII., consisted likewise of twenty-six mitred abbots, and two priors (r) a very considerable body, and in those times equal in number to the temporal nobility.(s)". And these hold, or are supposed to hold, cer[156] tain ancient baronies under the king for William the Conqueror thought proper to change the spiritual tenure of frank-almoign 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 :(t) and, in right of succession to those baronies, which were unalienable from their respective dignities, the bishops and abbots were allowed their seats in the house of lords. (u) But though these lords spiritual are in the eye of the law a distinct estate from the lords temporal, and are so distinguished in most of 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 joins both estates. And from this want of a separate assembly and separate negative of the prelates, some writers have argued (v) very cogently, that the lords spiritual and temporal are now in reality only one estate (w) which is unquestionably true in every effectual sense, though the ancient distinction between them still nominally continues. For if a bill should pass their house, there is no doubt of its validity, though every lord spiritual should vote against it; of which Selden, (x) and sir Edward Coke,(y) 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 sir Edward Coke seems to doubt (2) whether this would not be an ordinance, rather than an act, of parliament." t Gilb. Hist. Exch, 55. Spelm. W. I. 291. v Whitelocke on Parliam. c. 72. Warburt. Alliance, b. 2. c. S. w Dyer, 60. x Baronage, p. 1. c.6. The act of uniformity, 1 Eliz. c. 2. was passed with the dissent of all the bishops: (Gibs codex, 286) and therefore the style of lords spiritual is omitted throughout the whole. y 2 Inst 585, 6, 7. See Keilw. 184; where it is holden by the judges, 7 Hen. VIII, that the king may hold a parliament without any spiritual lords. This was also exemplified in fact in the two first parliaments of Charles I.; wherein no bishops were summoned till after the repeal of the statute 16 Car. I. c. 27. by statute 13 Car. II. st. 1. c. 2. z 4 Inst. 25. (10) By the act of union with Ireland, 39 and 40 Geo. III. c. 67. four Irish lords spiritual, taken from the whole body by rotation of sessions, have been added, who rank next after the spiritual lords of Great Britain." (11) In the place referred to, lord Coke says there were twenty-seven abbots and two priors, and he is there silent respecting the number of the temporal peers; but in the first page of the fourth Institute, he tells us that their number, when he is then writing, is 106, and the number of the commons 493. (12) No rational or ancient principle can perhaps be suggested why the bishops should not have exactly the same legislative functions as the other peers of parliament; the style of the house of lords, viz. the lords spiritual and temporai, was probably intended as a compliment to the bishops, to express the precedence which they are entitled to before all the temporal barons, which originally was the only character that gave a claim to a seat in the house of lords. Unless precedents could be found to the contrary, there seems to be no reason to doubt, but that any act at this day would be valid, though all the temporal lords or all the spiritual lords were absent. In the 1 Eliz. c. 2. the style of the parliament is, the lords and commons in parliament assembled ; Dat there is the same style used also in 1 Eliz. c. 11. a revenue act. Lord Mountmorris informs us, that on the 18th Feb. 1641, a motion was make in the Irish house of lords, "That as all the bishops were against a representation against certain grievances, the lords spiritual should not ! 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 parlia- [157] ment) (a) 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 ancient 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.13 Their number is indefinite, and may be increased 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. The distinction of rank and honour 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 burden to the community; exciting thereby an ambitious yet laudable ardour, 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 its existence, its 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 there- [158] by 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 its 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 in a Staunford, P. C. 153. be named: upon which the judges were consulted; and their opinion was, that in any act or order which passed, it must be entered by the lords spiritual and temporal." 1 vol. 344. Chitty. (13) And the 28 Irish peers by the act of union, 39 and 40 Geo. III. c. 67. who represent the Irish aristocracy, and who have rank next after peers of the same degree in Great Britain ? dependent 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 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 its 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 rudi[159] ments 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 increased. 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 election and popular deliberations grew tumultuous and disorderly; which paved the way for Marius and Sylla, Pompey and Cæsar, 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, Stockolm sending four, as London does with us, other cities two, and some only one. (b) The number of English representatives is 513, and 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) (c) " 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. 14 These are the constituent parts of a parliament; the king, the [160] lords spiritual and temporal, and the commons. Parts, of which each is so necessary, that the consent of all three is required to anake any new law that shall bind the subject. Whatever is enacted for law b Mod. Un. Hist. xxxiii. 18. c 4Inst. 14. (14) This number has been augmented by the addition of 100 representatives for Ireland, by act of union, 39 and 40 Geo. III. c. 67. |