II. NEXT to personal security, the law of England regards, asserts,
and preserves the personal liberty of individuals. This personal
liberty consists in the power of loco-motion, of changing situation,
or removing one's person to whatsoever place one's own inclination may
direct; without imprisonment or restraint, unless by due course of
law. Concerning which we may make the same observations as upon the
preceding article; that it is a right strictly natural; that the laws
of England have never abridged it without sufficient cause; and, that
in this kingdom it cannot ever be abridged at the mere discretion of
the magistrate, without the explicit permission of the laws. Here
again the language of the great charter[g] is, that no freeman shall
be taken or imprisoned, but by the lawful judgment of his equals, or
by the law of the land. And many subsequent old statutes[h] expressly
direct, that no man shall be taken or imprisoned by suggestion or
petition to the king, or his council, unless it be by legal
indictment, or the process of the common law. By the petition of
right, 3 Car. I, it is enacted, that no freeman shall be imprisoned or
detained without cause shewn, to which he may make answer according to
law. By 16 Car. I. c. 10. if any person be restrained of his liberty
by order or decree of any illegal court, or by command of the king's
majesty in person, or by warrant of the council board, or of any of
the privy council; he shall, upon demand of his counsel, have a writ
of _habeas corpus_, to bring his body before the court of king's bench
or common pleas; who shall determine whether the cause of his
commitment be just, and thereupon do as to justice shall appertain.
And by 31 Car. II. c. 2. commonly called _the habeas corpus act_, the
methods of obtaining this writ are so plainly pointed out and
enforced, that, so long as this statute remains unimpeached, no
subject of England can be long detained in prison, except in those
cases in which the law requires and justifies such detainer. And, lest
this act should be evaded by demanding unreasonable bail, or sureties
for the prisoner's appearance, it is declared by 1 W. & M. st. 2. c.
2. that excessive bail ought not to be required.
[Footnote g: c. 29.]
[Footnote h: 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. and 28 Edw.
III. c. 3.]
OF great importance to the public is the preservation of this personal
liberty: for if once it were left in the power of any, the highest,
magistrate to imprison arbitrarily whomever he or his officers thought
proper, (as in France it is daily practiced by the crown) there would
soon be an end of all other rights and immunities. Some have thought,
that unjust attacks, even upon life, or property, at the arbitrary
will of the magistrate, are less dangerous to the commonwealth, than
such as are made upon the personal liberty of the subject. To bereave
a man of life, or by violence to confiscate his estate, without
accusation or trial, would be so gross and notorious an act of
despotism, as must at once convey the alarm of tyranny throughout the
whole kingdom. But confinement of the person, by secretly hurrying him
to gaol, where his sufferings are unknown or forgotten; is a less
public, a less striking, and therefore a more dangerous engine of
arbitrary government. And yet sometimes, when the state is in real
danger, even this may be a necessary measure. But the happiness of our
constitution is, that it is not left to the executive power to
determine when the danger of the state is so great, as to render this
measure expedient. For the parliament only, or legislative power,
whenever it sees proper, can authorize the crown, by suspending the
_habeas corpus_ act for a short and limited time, to imprison
suspected persons without giving any reason for so doing. As the
senate of Rome was wont to have recourse to a dictator, a magistrate
of absolute authority, when they judged the republic in any imminent
danger. The decree of the senate, which usually preceded the
nomination of this magistrate, "_dent operam consules, nequid
respublica detrimenti capiat_," was called the _senatus consultum
ultimae necessitatis_. In like manner this experiment ought only to be
tried in cases of extreme emergency; and in these the nation parts
with it's liberty for a while, in order to preserve it for ever.
THE confinement of the person, in any wise, is an imprisonment. So
that the keeping a man against his will in a private house, putting
him in the stocks, arresting or forcibly detaining him in the street,
is an imprisonment[i]. And the law so much discourages unlawful
confinement, that if a man is under _duress of imprisonment_, which we
before explained to mean a compulsion by an illegal restraint of
liberty, until he seals a bond or the like; he may alledge this
duress, and avoid the extorted bond. But if a man be lawfully
imprisoned, and either to procure his discharge, or on any other fair
account, seals a bond or a deed, this is not by duress of
imprisonment, and he is not at liberty to avoid it[k]. To make
imprisonment lawful, it must either be, by process from the courts of
judicature, or by warrant from some legal officer, having authority
to commit to prison; which warrant must be in writing, under the hand
and seal of the magistrate, and express the causes of the commitment,
in order to be examined into (if necessary) upon a _habeas corpus_. If
there be no cause expressed, the goaler is not bound to detain the
prisoner[l]. For the law judges in this respect, saith sir Edward
Coke, like Festus the Roman governor; that it is unreasonable to send
a prisoner, and not to signify withal the crimes alleged against him.
[Footnote i: 2 Inst. 589.]
[Footnote k: 2 Inst. 482.]
[Footnote l: 2 Inst. 52, 53.]
A NATURAL and regular consequence of this personal liberty, is, that
every Englishman may claim a right to abide in his own country so long
as he pleases; and not to be driven from it unless by the sentence of
the law. The king indeed, by his royal prerogative, may issue out his
writ _ne exeat regnum_, and prohibit any of his subjects from going
into foreign parts without licence[m]. This may be necessary for the
public service, and safeguard of the commonwealth. But no power on
earth, except the authority of parliament, can send any subject of
England _out of_ the land against his will; no not even a criminal.
For exile, or transportation, is a punishment unknown to the common
law; and, wherever it is now inflicted, it is either by the choice of
the criminal himself, to escape a capital punishment, or else by the
express direction of some modern act of parliament. To this purpose
the great charter[n] declares that no freeman shall be banished,
unless by the judgment of his peers, or by the law of the land. And by
the _habeas corpus_ act, 31 Car. II. c. 2. (that second _magna carta_,
and stable bulwark of our liberties) it is enacted, that no subject of
this realm, who is an inhabitant of England, Wales, or Berwick, shall
be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places
beyond the seas; (where they cannot have the benefit and protection of
the common law) but that all such imprisonments shall be illegal; that
the person, who shall dare to commit another contrary to this law,
shall be disabled from bearing any office, shall incur the penalty of
a praemunire, and be incapable of receiving the king's pardon: and
the party suffering shall also have his private action against the
person committing, and all his aiders, advisers and abettors, and
shall recover treble costs; besides his damages, which no jury shall
assess at less than five hundred pounds.
[Footnote m: F.N.B. 85.]
[Footnote n: cap. 29.]
THE law is in this respect so benignly and liberally construed for the
benefit of the subject, that, though _within_ the realm the king may
command the attendance and service of all his liege-men, yet he cannot
send any man _out of_ the realm, even upon the public service: he
cannot even constitute a man lord deputy or lieutenant of Ireland
against his will, nor make him a foreign embassador[o]. For this might
in reality be no more than an honorable exile.
[Footnote o: 2 Inst. 47.]
III. THE third absolute right, inherent in every Englishman, is that
of property; which consists in the free use, enjoyment, and disposal
of all his acquisitions, without any control or diminution, save only
by the laws of the land. The original of private property is probably
founded in nature, as will be more fully explained in the second book
of the ensuing commentaries: but certainly the modifications under
which we at present find it, the method of conserving it in the
present owner, and of translating it from man to man, are entirely
derived from society; and are some of those civil advantages, in
exchange for which every individual has resigned a part of his natural
liberty. The laws of England are therefore, in point of honor and
justice, extremely watchful in ascertaining and protecting this right.
Upon this principle the great charter[p] has declared that no freeman
shall be disseised, or divested, of his freehold, or of his liberties,
or free customs, but by the judgment of his peers, or by the law of
the land. And by a variety of antient statutes[q] it is enacted, that
no man's lands or goods shall be seised into the king's hands, against
the great charter, and the law of the land; and that no man shall be
disinherited, nor put out of his franchises or freehold, unless he be
duly brought to answer, and be forejudged by course of law; and if any
thing be done to the contrary, it shall be redressed, and holden for
none.
[Footnote p: c. 29.]
[Footnote q: 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. 28 Edw. III.
c. 3.]
SO great moreover is the regard of the law for private property, that
it will not authorize the least violation of it; no, not even for the
general good of the whole community. If a new road, for instance, were
to be made through the grounds of a private person, it might perhaps
be extensively beneficial to the public; but the law permits no man,
or set of men, to do this without consent of the owner of the land. In
vain may it be urged, that the good of the individual ought to yield
to that of the community; for it would be dangerous to allow any
private man, or even any public tribunal, to be the judge of this
common good, and to decide whether it be expedient or no. Besides, the
public good is in nothing more essentially interested, than in the
protection of every individual's private rights, as modelled by the
municipal law. In this, and similar cases the legislature alone can,
and indeed frequently does, interpose, and compel the individual to
acquiesce. But how does it interpose and compel? Not by absolutely
stripping the subject of his property in an arbitrary manner; but by
giving him a full indemnification and equivalent for the injury
thereby sustained. The public is now considered as an individual,
treating with an individual for an exchange. All that the legislature
does is to oblige the owner to alienate his possessions for a
reasonable price; and even this is an exertion of power, which the
legislature indulges with caution, and which nothing but the
legislature can perform.
NOR is this the only instance in which the law of the land has
postponed even public necessity to the sacred and inviolable rights of
private property. For no subject of England can be constrained to pay
any aids or taxes, even for the defence of the realm or the support of
government, but such as are imposed by his own consent, or that of his
representatives in parliament. By the statute 25 Edw. I. c. 5 and 6.
it is provided, that the king shall not take any aids or tasks, but
by the common assent of the realm. And what that common assent is, is
more fully explained by 34 Edw. I. st. 4. cap. 1. which enacts, that
no talliage or aid shall be taken without assent of the arch-bishops,
bishops, earls, barons, knights, burgesses, and other freemen of the
land[r]: and again by 14 Edw. III. st. 2. c. 1. the prelates, earls,
barons, and commons, citizens, burgesses, and merchants shall not be
charged to make any aid, if it be not by the common assent of the
great men and commons in parliament. And as this fundamental law had
been shamefully evaded under many succeeding princes, by compulsive
loans, and benevolences extorted without a real and voluntary consent,
it was made an article in the petition of right 3 Car. I, that no man
shall be compelled to yield any gift, loan, or benevolence, tax, or
such like charge, without common consent by act of parliament. And,
lastly, by the statute 1 W. & M. st. 2. c. 2. it is declared, that
levying money for or to the use of the crown, by pretence of
prerogative, without grant of parliament; or for longer time, or in
other manner, than the same is or shall be granted, is illegal.
[Footnote r: See the historical introduction to the great charter, &c,
_sub anno_ 1297; wherein it is shewn that this statute _de talliagio
non concedendo_, supposed to have been made in 34 Edw. I, is in
reality nothing more than a sort of translation into Latin of the
_confirmatio cartarum_, 25 Edw. I, which was originally published in
the Norman language.]
IN the three preceding articles we have taken a short view of the
principal absolute rights which appertain to every Englishman. But in
vain would these rights be declared, ascertained, and protected by the
dead letter of the laws, if the constitution had provided no other
method to secure their actual enjoyment. It has therefore established
certain other auxiliary subordinate rights of the subject, which serve
principally as barriers to protect and maintain inviolate the three
great and primary rights, of personal security, personal liberty, and
private property. These are,
1. THE constitution, powers, and privileges of parliament, of which I
shall treat at large in the ensuing chapter.
2. THE limitation of the king's prerogative, by bounds so certain and
notorious, that it is impossible he should exceed them without the
consent of the people. Of this also I shall treat in it's proper
place. The former of these keeps the legislative power in due health
and vigour, so as to make it improbable that laws should be enacted
destructive of general liberty: the latter is a guard upon the
executive power, by restraining it from acting either beyond or in
contradiction to the laws, that are framed and established by the
other.
3. A THIRD subordinate right of every Englishman is that of applying
to the courts of justice for redress of injuries. Since the law is in
England the supreme arbiter of every man's life, liberty, and
property, courts of justice must at all times be open to the subject,
and the law be duly administred therein. The emphatical words of
_magna carta_[s], spoken in the person of the king, who in judgment of
law (says sir Edward Coke[t]) is ever present and repeating them in
all his courts, are these; "_nulli vendemus, nulli negabimus, aut
differemus rectum vel justitiam_: and therefore every subject,"
continues the same learned author, "for injury done to him _in bonis,
in terris, vel persona_, by any other subject, be he ecclesiastical or
temporal without any exception, may take his remedy by the course of
the law, and have justice and right for the injury done to him, freely
without sale, fully without any denial, and speedily without delay."
It were endless to enumerate all the _affirmative_ acts of parliament
wherein justice is directed to be done according to the law of the
land: and what that law is, every subject knows; or may know if he
pleases: for it depends not upon the arbitrary will of any judge; but
is permanent, fixed, and unchangeable, unless by authority of
parliament. I shall however just mention a few _negative_ statutes,
whereby abuses, perversions, or delays of justice, especially by the
prerogative, are restrained. It is ordained by _magna carta_[u], that
no freeman shall be outlawed, that is, put out of the protection and
benefit of the laws, but according to the law of the land. By 2 Edw.
III. c. 8. and 11 Ric. II. c. 10. it is enacted, that no commands or
letters shall be sent under the great seal, or the little seal, the
signet, or privy seal, in disturbance of the law; or to disturb or
delay common right: and, though such commandments should come, the
judges shall not cease to do right. And by 1 W. & M. st. 2. c. 2. it
is declared, that the pretended power of suspending, or dispensing
with laws, or the execution of laws, by regal authority without
consent of parliament, is illegal.
[Footnote s: c. 29.]
[Footnote t: 2 Inst. 55.]
[Footnote u: c. 29.]
NOT only the substantial part, or judicial decisions, of the law, but
also the formal part, or method of proceeding, cannot be altered but
by parliament: for if once those outworks were demolished, there would
be no inlet to all manner of innovation in the body of the law itself.
The king, it is true, may erect new courts of justice; but then they
must proceed according to the old established forms of the common law.
For which reason it is declared in the statute 16 Car. I. c. 10. upon
the dissolution of the court of starchamber, that neither his majesty,
nor his privy council, have any jurisdiction, power, or authority by
English bill, petition, articles, libel (which were the course of
proceeding in the starchamber, borrowed from the civil law) or by any
other arbitrary way whatsoever, to examine, or draw into question,
determine or dispose of the lands or goods of any subjects of this
kingdom; but that the same ought to be tried and determined in the
ordinary courts of justice, and by _course of law_.
4. IF there should happen any uncommon injury, or infringement of the
rights beforementioned, which the ordinary course of law is too
defective to reach, there still remains a fourth subordinate right
appertaining to every individual, namely, the right of petitioning the
king, or either house of parliament, for the redress of grievances.
In Russia we are told[w] that the czar Peter established a law, that
no subject might petition the throne, till he had first petitioned two
different ministers of state. In case he obtained justice from
neither, he might then present a third petition to the prince; but
upon pain of death, if found to be in the wrong. The consequence of
which was, that no one dared to offer such third petition; and
grievances seldom falling under the notice of the sovereign, he had
little opportunity to redress them. The restrictions, for some there
are, which are laid upon petitioning in England, are of a nature
extremely different; and while they promote the spirit of peace, they
are no check upon that of liberty. Care only must be taken, lest,
under the pretence of petitioning, the subject be guilty of any riot
or tumult; as happened in the opening of the memorable parliament in
1640: and, to prevent this, it is provided by the statute 13 Car. II.
st. 1. c. 5. that no petition to the king, or either house of
parliament, for any alterations in church or state, shall be signed by
above twenty persons, unless the matter thereof be approved by three
justices of the peace or the major part of the grand jury, in the
country; and in London by the lord mayor, aldermen, and common
council; nor shall any petition be presented by more than two persons
at a time. But under these regulations, it is declared by the statute
1 W. & M. st. 2. c. 2. that the subject hath a right to petition; and
that all commitments and prosecutions for such petitioning are
illegal.
[Footnote w: Montesq. Sp. L. 12. 26.]
5. THE fifth and last auxiliary right of the subject, that I shall at
present mention, is that of having arms for their defence, suitable to
their condition and degree, and such as are allowed by law. Which is
also declared by the same statute 1 W. & M. st. 2. c. 2. and is indeed
a public allowance, under due restrictions, of the natural right of
resistance and self-preservation, when the sanctions of society and
laws are found insufficient to restrain the violence of oppression.
IN these several articles consist the rights, or, as they are
frequently termed, the liberties of Englishmen: liberties more
generally talked of, than thoroughly understood; and yet highly
necessary to be perfectly known and considered by every man of rank or
property, lest his ignorance of the points whereon it is founded
should hurry him into faction and licentiousness on the one hand, or a
pusillanimous indifference and criminal submission on the other. And
we have seen that these rights consist, primarily, in the free
enjoyment of personal security, of personal liberty, and of private
property. So long as these remain inviolate, the subject is perfectly
free; for every species of compulsive tyranny and oppression must act
in opposition to one or other of these rights, having no other object
upon which it can possibly be employed. To preserve these from
violation, it is necessary that the constitution of parliaments be
supported in it's full vigor; and limits certainly known, be set to
the royal prerogative. And, lastly, to vindicate these rights, when
actually violated or attacked, the subjects of England are entitled,
in the first place, to the regular administration and free course of
justice in the courts of law; next to the right of petitioning the
king and parliament for redress of grievances; and lastly to the right
of having and using arms for self-preservation and defence. And all
these rights and liberties it is our birthright to enjoy entire;
unless where the laws of our country have laid them under necessary
restraints. Restraints in themselves so gentle and moderate, as will
appear upon farther enquiry, that no man of sense or probity would
wish to see them slackened. For all of us have it in our choice to do
every thing that a good man would desire to do; and are restrained
from nothing, but what would be pernicious either to ourselves or our
fellow citizens. So that this review of our situation may fully
justify the observation of a learned French author, who indeed
generally both thought and wrote in the spirit of genuine freedom[x];
and who hath not scrupled to profess, even in the very bosom of his
native country, that the English is the only nation in the world,
where political or civil liberty is the direct end of it's
constitution. Recommending therefore to the student in our laws a
farther and more accurate search into this extensive and important
title, I shall close my remarks upon it with the expiring wish of the
famous father Paul to his country, "ESTO PERPETUA!"
[Footnote x: Montesq. Sp. L. 11. 5.]
CHAPTER THE SECOND.
OF THE PARLIAMENT.
WE are next to treat of the rights and duties of persons, as they are
members of society, and stand in various relations to each other.
These relations are either public or private: and we will first
consider those that are public.
THE most universal public relation, by which men are connected
together, is that of government; namely, as governors and governed,
or, in other words, as magistrates and people. Of magistrates also
some are _supreme_, in whom the sovereign power of the state resides;
others are _subordinate_, deriving all their authority from the
supreme magistrate, accountable to him for their conduct, and acting
in an inferior secondary sphere.
IN all tyrannical governments the supreme magistracy, or the right
both of _making_ and of _enforcing_ the laws, is vested in one and the
same man, or one and the same body of men; and wherever these two
powers are united together, there can be no public liberty. The
magistrate may enact tyrannical laws, and execute them in a tyrannical
manner, since he is possessed, in quality of dispenser of justice,
with all the power which he as legislator thinks proper to give
himself. But, where the legislative and executive authority are in
distinct hands, the former will take care not to entrust the latter
with so large a power, as may tend to the subversion of it's own
independence, and therewith of the liberty of the subject. With us
therefore in England this supreme power is divided into two branches;
the one legislative, to wit, the parliament, consisting of king,
lords, and commons; the other executive, consisting of the king alone.
It will be the business of this chapter to consider the British
parliament; in which the legislative power, and (of course) the
supreme and absolute authority of the state, is vested by our
constitution.
THE original or first institution of parliaments is one of those
matters that lie so far hidden in the dark ages of antiquity, that the
tracing of it out is a thing equally difficult and uncertain. The
word, _parliament_, itself (or _colloquium_, as some of our historians
translate it) is comparatively of modern date, derived from the
French, and signifying the place where they met and conferred
together. It was first applied to general assemblies of the states
under Louis VII in France, about the middle of the twelfth century[a].
But it is certain that, long before the introduction of the Norman
language into England, all matters of importance were debated and
settled in the great councils of the realm. A practice, which seems to
have been universal among the northern nations, particularly the
Germans[b]; and carried by them into all the countries of Europe,
which they overran at the dissolution of the Roman empire. Relics of
which constitution, under various modifications and changes, are still
to be met with in the diets of Poland, Germany, and Sweden, and the
assembly of the estates in France; for what is there now called the
parliament is only the supreme court of justice, composed of judges
and advocates; which neither is in practice, nor is supposed to be in
theory, a general council of the realm.
[Footnote a: Mod. Un. Hist. xxiii. 307.]
[Footnote b: _De minoribus rebus principes consultant, de majoribus
omnes._ Tac. _de mor. Germ._ _c._ 11.]
WITH us in England this general council hath been held immemorially,
under the several names of _michel-synoth_, or great council,
_michel-gemote_ or great meeting, and more frequently _wittena-gemote_
or the meeting of wise men. It was also stiled in Latin, _commune
concilium regni_, _magnum concilium regis_, _curia magna_, _conventus
magnatum vel procerum_, _assisa generalis_, and sometimes _communitas
regni Angliae_[c]. We have instances of it's meeting to order the
affairs of the kingdom, to make new laws, and to amend the old, or, as
Fleta[d] expresses it, "_novis injuriis emersis nova constituere
remedia_," so early as the reign of Ina king of the west Saxons, Offa
king of the Mercians, and Ethelbert king of Kent, in the several
realms of the heptarchy. And, after their union, the mirrour[e]
informs us, that 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 God's people; how they should keep
themselves from sin, should live in quiet, and should receive right.
Our succeeding Saxon and Danish monarchs held frequent councils of
this sort, as appears from their respective codes of laws; the titles
whereof usually speak them to be enacted, either by the king with the
advice of his wittena-gemote, or wise men, as, "_haec sunt instituta,
quae Edgarus rex consilio sapientum suorum instituit_;" or to be
enacted by those sages with the advice of the king, as, "_haec sunt
judicia, quae sapientes consilio regis Ethelstani instituerunt_;" or
lastly, to be enacted by them both together, as; "_hae sunt
institutiones, quas rex Edmundus et episcopi sui cum sapientibus suis
instituerunt_."
[Footnote c: Glanvil. _l._ 13 _c._ 32. _l._ 9. _c._ 10.--Pref. 9
Rep.--2 Inst. 526.]
[Footnote d: _l._ 2. _c._ 2.]
[Footnote e: c. 1. §. 3.]
THERE is also no doubt but these great councils were held regularly
under the first princes of the Norman line. Glanvil, who wrote in the
reign of Henry the second, speaking of the particular amount of an
amercement in the sheriff's court, says, it had never yet been
ascertained by the general assise, or assembly, but was left to the
custom of particular counties[f]. Here the general assise is spoken of
as a meeting well known, and it's statutes or decisions are put in a
manifest contradistinction to customs, or the common law. And in
Edward the third's time an act of parliament, made in the reign of
William the conqueror, was pleaded in the case of the abbey of St
Edmund's-bury, and judicially allowed by the court[g].
[Footnote f: _Quanta esse debeat per nullam assisam generalem
determinatum est, sed pro consuetudine singulorum comitatuum debetur._
_l._ 9. _c._ 10.]
[Footnote g: Year book, 21 Edw. III. 60.]
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. |
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