ePub 版

the ruin and destruction of this kingdom, proceeding from the wilful mistake of the supreme and lawful authority." All these laws, and many more, were left unrepealed at the Revolution, which shows that it was in the person, and not the government, that our revolution proceeded.

Blackstone, in his Commentaries, proceeds to say, that the constituent parts of a parliament are the next objects of inquiry. "And these," says he, "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 house. 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, on their coming together, the King meets them, either in person or by representation, without which there can be no beginning of a parliament; and he also has alone the power of dissolving them."*

The same high authority goes on to say, that the legislature, therefore, cannot abridge the executive power of any rights which it still retains, 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 all its parts form a mutual check on each other. In the legislature, the people are a check upon the nobility, and the nobility again act as a check upon the people, by the mutual privilege of rejecting what the other has resolved, while the King is a check upon both, and 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 which has been conceded to them by the crown, of inquiring into, impeaching, and punishing the conduct of the King's evil and pernicious councillors. The King can constitutionally do no wrong, and were parliament to pass censures on him, it would destroy his constitutional independence, render him inferior to his parliament, and destroy his supremacy entirely. Thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest ;-for the three estates, naturally drawing in different directions, of opposite interests, and the prerogative of the crown in another still different from the two houses, they mutually keep each other from exceeding their proper limits, while the whole is prevented from separation, and are artificially connected together by the mixed nature of the crown, which is the caput, principium, et finis, the beginning, the middle, and the end of the legislature, and the sole cxecutive power. Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from that which either, if

• Blackstone, B. i. c. 2.


acting by itself, would have done; and, at same time, in a direction partaking of each, and formed out of all, a direction which constitutes the true line of liberty and happiness of the community.

The first estate of parliament is the Spiritual Lords, who consist of two archbishops and twenty-four bishops for England, and, since the Union with Ireland, four Spiritual Lords of that kingdom sit by rotation of sessions in the House of Lords, making the number for the United Kingdom thirty. At the dissolution of the monasteries by Henry VIII., the first estate, besides the bishops, consisted of twenty-six mitred abbots and two priors, and were then, in point of numbers, equal to the Temporal Lords. The bishops hold certain ancient baronies under the King. But, though these Lords Spiritual be, in the eye of the law, a distinct estate from the Lords Temporal, and are so distinguished in 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.

Sir Edward Coke says,* that a bishop is regularly the King's immediate officer of justice in causes ecclesiastical; all the (temporalities of the) bishoprics in England are of the King's foundation, and the King is patron of them all; at first they were donative, as appears from all lawbooks, acts of parliament, and history, and that was per traditionem annuli et pastoralis baculi, i. e. by the crosier. King Henry I. being persuaded by the bishop of Rome, refused to consent to their being elected by their chapters; but King John, by royal charter, acknowledging the custom and right of the crown in former times, yet granted, de communi consensu baronum, that they should be elective, which was afterwards confirmed by divers acts of Parliament. Afterwards, the manner and order, as well of the election of archbishops and bishops, as of the confirmation of their election and consecration, is enacted and expressed in the 25th Hen. VIII., which is still unrepealed, but remains in full force and effect.

The second estate of parliament is the Temporal Nobility, which consists of all the peers of the realm, of whatever title of nobility. All the ancient peers sit by descent, because their titles are hereditary. The new made peers take their seats from the date of their creation, and the Scottish peers, since the union with that ancient kingdom, sit as representatives of the whole body of the Scottish nobility, and are elected for each new parliament.

The distinction of rank and honour is necessary in every well governed state; as a reward for eminent public services in a manner the most desirable to individuals, and yet without any burden to the community; exciting an ambitious yet laudable, arduous, and generous emulation in every

• Lib. ii. c. 11, sect. 201, p. 131.

class of the people. However dangerous these generous emotions might be in a republic, they will certainly be attended with the happiest effects under a free monarchy, when, without destroying its existence, or disturbing the public peace, guilty ambition will be continually restrained by the superior power, the sovereign, from which all honour is derived. A desire for advancement, when rationally diffused, gives life and vigour to the community, it sets all the wheels of government in motion, which, under a wise and patriotic sovereign, may be most beneficially directed: and, in consequence, every individual may be made subservient to the good of the public, while he exclusively seeks only to promote his own private views. A body of nobility is also more peculiarly necessary in our mixed and compound constitution, in order to support both the rights of the crown and the people, by forming a barrier to withstand the encroachments of each. It creates and preserves that gradual scale of dignity which proceeds from the peasant to the prince; rising like a pyramid from the broad foundation of the people, and diminishing to a point as it rises, the sovereign being its apex. The nobility being the pillars raised up from among the people, more immediately to support the throne.

The third estate is the Commons, who sit in a house by themselves, which is frequently called the Lower House, in contradistinction to the House of Lords, or the Upper House. The old constitution of this house is, that the counties are to be represented by knights, elected by the proprietors of lands; and the cities and boroughs to be represented by citizens and burgesses, chosen by the mercantile part, or supposed trading interest of the nation. In the year 1832, a bill was passed, which greatly extended the right of suffrage, and altered in a small degree the number of representatives for each of the three kingdoms. This is commonly called the Reform Bill, and an abstract of it will be found in another part of the volume. The number of representatives in the British House of Commons formerly was 668, of whom 513 were for England and Wales, 45 for Scotland, and 100 for Ireland. Every member says Blackstone, 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 commonwealth, "to advise his Majesty," (as appears from the writ of summons,)" in the great council of the nation, touching certain difficult and urgent affairs concerning the King, and defence both of the kingdom and church of England." And, therefore, he is not bound, like a deputy in the United Provinces, or the Congress of North America, to consult with, or take the advice of, his constituents upon any particular point, unless he himself thinks it proper and prudent so to do.

The house of Commons only gradually attained to its present importance; it was not till the reign of James I. that the universities enjoyed

the permanent privilege of being represented there. Indeed, so little were the advantages of the Lower House of Parliament understood, that, in the reign of Edward I., no intelligence could be more disagreeable to any borough than to find that it must elect, or to any individual than that he was elected, to a trust to which no honour was then attached. At that time, it was usual for the members to give sureties for their attendance before the king and parliament, their expenses being respectively borne by their constituents. But the weight and influence of the house of Commons increased from time to time, till it arrived at its present rank and authority in the legislature.

These, says Blackstone, page 160, are the constituent parts of a parliament, the King, who is the caput, principium, et finis, the Lords Spiritual and Temporal, and the Commons,-parts, of which each is so necessary, that the consent of all is required to make any new law that shall be binding upon the subject. Whatever is enacted for law by one or by two only of these, is no statute, and no regard is due to it, unless in matters relating to the privi leges of either house. And at the restoration of Charles II., when the constitution rose from the ruins into which Cromwell had crushed it, it was particularly enacted, 13th 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 præmunire."

Our monarchy is said to be a limited one; and, therefore, for the better understanding of this common expression, a term which is of daily occurrence, it may not be unnecessary to say a few words on the subject of limitation. There are limitations of concession and of coercion; both are always the act of a superior to inferiors. Thus the Almighty was pleased to limit himself, when he made covenants with, and granted conditions to mankind, and is obliged by his veracity to perform them. Fathers may also limit themselves to their children, and kings may limit themselves to their subjects, by granting them certain laws and privileges, and giving them his solemn oath to observe and keep them. Laws were made by kings, therefore kings must have been in existence before the laws; no law can be produced that made the first king in England. We have been governed by kings as far back as history can carry us, and all the laws of England were made by kings, by the advice of parliament. Parliament recognises our kings, as particularly specified in the act 1st Eliz. and 1st James I. wherein parliament acknowledged the prior right of these sovereigns from proximity of blood, but made no pretence of conferring the crown as at the disposal of parliament, but acknowledged their right and title to be from God, " and thereunto we most humbly and faithfully do submit and oblige ourselves, our heirs and posterity for ever, until the last drop of our blood be spent."

Magna Charta, which begins the statute book, is wholly an act of concession on the part of King John, and granted, as it so expresses, entirely of his free will. There was no house of Commons till after the concession of the great charter, when, as before mentioned, Henry III. first summoned the commons to aid the crown with their advice, when the style of enactments was-" Be it enacted by the king," or, 66 our sovereign lord the king hath ordained, by the advice of the lords, and the humble petition of the commons." At that time, it was the privilege of the lords to advise, but the commons petitioned; the prerogative of enacting was wholly in the crown. By subsequent acts of concession, the king has limited his prerogative not to make laws without the advice and consent of the three estates of parliament, yet he has not given up any of his prerogative to them, for he alone can make an act of parliament to be law; not by way of a negative voice, for all the negatives in the world will never make a positive. A negative is only the saying this shall not be law. But the king's saying, this act shall be a law, and putting his name to it, makes it law. It is the king alone who can say, "Le roy le veut," the king wills this to be a law, and this makes it law. The present style of acts of parliament is," Be it enacted by the King, with the advice of the Lords Spiritual and Temporal, and Commons, and by the authority of the same." Here the power of enacting rests wholly in the king, the power of advising is in the three estates; to advise and consent is one thing, to enact is another; "by authority of the same," is the king's authority, who enacts, and that of the lords and commons, who advise. "In the multitude of councillors

there is wisdom."

The king of Great Britain, therefore, is the greatest potentate on earth, and under him, and deriving their being and authority from him, the parliament of England is the most august and powerful national assembly in the whole world. The power and jurisdiction of parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined either for causes or persons within any bounds. It has 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. The king in this place is incontrollable, 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 and new-model the succession to the crown, as was done in the reign of Henry VIII. and his three children and successors. 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

« 上一頁繼續 »