and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community. (5) 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 archbishops and twenty-four bishops, (6) and, at the dissolution of monasteries by Henry VIII, consisted likewise of twenty-six mitred abbots, and two priors: (s) a very considerable body, and in those times equal in number to the temporal nobility. (t) (7) All these hold, or are supposed to hold, *certain ancient baronies under the king; for William the Conqueror thought proper to change [*156] the spiritual tenure of frankalmoign, or free alms, under which the bishops held their lands during the Saxon government, into the feudal or Norman tenure by barony, which subjected their estates to all civil charges and assessments, from which they were before exempt: (u) 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. (x) (8) 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 (u) Gilb. Hist. Exch. 55. Spelm. W. I. 291. (8) Seld. tit. hon. 2. 5. 27. (t) Co. Litt. 97. (5) The gradual changes which have been taking place in the constitution of Great Britain since these commentaries were written, but which have been particularly noticeable only on occasions of great excitement, like those of the passage of the reform bill in 1832, and the Irish Church Disestablishment bill in 1869, have had the effect to destroy in great degree the equilibrium of power in the British government, and to make the house of commons at length the controlling authority in that realm, The control over the executive department is established by the recognition of the principle that on all important measures the advisers of the crown must be in harmony with the majority of the commons, and that whenever it appears that this harmony does not exist, the ministry must either resign, or dissolve the parliament and appeal to the people in a new election, in the hope of obtaining a majority with different sentiments. The superiority over the house of lords exists in the right to originate all money bills, and at last in the establishment, practically, of the principle that the lords shall not reject an important measure that is clearly demanded by the people, and has been passed by the commons. The gradual extension of the power of the commons will be traced with interest in May's Constitutional History of England. The power of the crown to reject or veto a measure, adopted in parliament, is obsolete, as of course it must become when the principle is recognized that the ministry must be harmonious in sentiment with the majority of the commons, and that the crown only acts through the ministry. The power of impeachment would be exercised unhesitatingly if this principle should be disregarded. The balance of power is better arranged and better preserved in America. The president has a qualified veto upon all congressional legislation, which can only be overcome by a concurrent vote of two-thirds of each house. Const. art. 1, § 7. And this, together with his right to communicate and recommend measures by message, Art. 2, § 3, makes him an important branch of the legislative department. There is no constitutional principle in our government which renders it obligatory that the president's advisers should be in harmony with congress, or with either house of it. Nor does either house hesitate at any time to reject any measure adopted by the other, if the judgment of its members recommends that course. (6) On the union with Ireland an addition of four representative peers (one archbishop and three bishops) was made for that kingdom, but by the disestablishment of the Irish Church these bishoprics will cease to exist. (7) [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 4th Institute, he says their number, when he is then writing, is 106, and the number of the commons 493.] (8) [The right by which these spiritual lords sit, whether derived under their alleged baronies, or from usage, is discussed, Hargr. Co. Litt. 135. b. n. 1. Mr. H. inclines to adopt Lord Hale's position, namely, that they sit by usage. Mr. Hallam has also adverted to the question, Midd. Ages, c. viii, and rendered it accessible to the general reader; but the student, if he have a turn for conjectural investigation, may consult Lord Hale's MS. Jura Coronæ, and Bishop Warburton's Alliance between Church and State, 4th edit. p. 149.] the prelates, some writers have argued (y) very cogently, that the lords spiritual and temporal are now, in reality, only one estate, (2) 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 Seldon, (a) and Sir Edward Coke, (b) 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 (c) whether this would not be an ordinance, rather than an act, of parliament. *The lords temporal consist of all the peers of the realm (9) (the [*157] bishops not being in strictness held to be such, but merely lords of parliament) (d) by whatever title of nobility distinguished, dukes, marquises, 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. (10) Their number is indefinite, and may be increased at will by the power of the crown; (11) and once, in the reign of Queen Annie, 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 honours is necessary in evey 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 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 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 [*158] directed to any beneficial purpose; and thereby every individual may be (y) Whitelocke on Parliam. c. 72. Warburt. Alliance, b. 2, c. 3. (2) Dyer, 60. (a) 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. (b) 2 Inst. 585, 6, 7. See Keilw. 184, where it is holden by the judges, 7 Hen. VIII, that the king may hold parliament without any spiritual lords. This was also exemplified in fact, in the two first parliaments of Charles II, 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. (c) 4 Inst. 25. (d) Staundford, P. C. 153. (9) By stat. 39 and 40 Geo. III, c. 67, art. 4, twenty-eight lords temporal of Ireland, elected for life by the peers of Ireland, shall sit and vote, on the part of Ireland, in the house of lords. The same article prescribes the mode of election, and refers the decision of any question arising thereon to the house of lords, where, if the votes be equal, the names of the candidates are to be put into a glass and one drawn out by the clerk of the parliament during the sitting of the house. Until the peerage of Ireland be reduced to one hundred, the prerogative is limited to create one peer upon three extinctions; and, on the peerage being reduced to one hundred, the prerogative is limited to keeping up that number.] (10) [The Scots nobility sit one parliament only: the Irish for life.] (11 The reader will remember the carrying of the reform bill of 1832, by the threat of creating a sufficient number of peers to overcome the adverse majority in that body. See May's Const. Hist. c. 6. This, however, was an extreme measure, and was regarded at the time as extra-constitutional, and only to be resorted to in order to avert the imminent danger of civil commotions. 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 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 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 [*159] 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 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 elections 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 citizens 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. (e) The number of English representatives is 513, and of Scots 45; in all 558. (12) 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) (f) "de communi consilio super negotiis quibusdam arduis (12) By stat. 39 and 40 Geo. III, c. 67, one hundred representatives of Ireland must be added to these. By stat. 2 William IV, cc. 45, 65 and 88, the number of English representatives was reduced to 500; the Scotch representation increased to 53, and the Irish to 105, making the total number 658. et urgentibus, regem, statum, et defensionem regni Angliæ et ecclesiæ Anglicana 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 particulat point, unless he himself thinks it proper or prudent so to do. (13) [*180: *These are the constituent parts of a parliament; the king, the lords spiritual and temporal, and the commons. (14) Parts, of which each is so necessary, that the consent of all three is required to make any new law that shall bind the subject. Whatever is enacted for law by one, or by two only, of the three, is no statute; and to it no regard is due, unless in matters relating to their own privileges. For though, in times of madness and anarchy, the commons once passed a vote, (g) "that whatever is enacted or declared for law by the commons in parliament assembled, hath the force of law; and all the people of this nation are concluded thereby, although the consent and concurrence of the king or house of peers be not had thereto;" yet, when the constitution was restored in all its forms, it was particularly enacted by statute 13 Car. II, c. 1, that if any person shall maliciously or advisedly affirm that both or either of the houses of parliament have any legislative authority without the king, such person shall incur all the penalties of a præmunire. III. We are next to examine the laws and customs relating to parliament, thus united together, and considered as one aggregate body. The power and jurisdiction of parliament, says Sir Edward Coke, (h) is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high court, he adds, it may be truly said, "si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima." It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms. All mischiefs and *grievances, operations and remedies, that transcend the [*161] ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of King Henry VIII and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament. (15) True it is, that what the parliament doth, no authority upon earth can undo; so that it is a matter most essential to the liberties of this kingdom that such members be delegated to this important trust as are most eminent for their probity, their fortitude, and their knowledge; for (13) [See this point beautifully put in the close of Burke's speech to the electors of Bristol.] (14) By the constitution of the United States the senate is composed of two senators from each state, chosen by the legislatures thereof for six years: art. 1, § 3; and the house of representatives of members chosen every second year by the people of the several states; art. 1, § 2. Representatives are apportioned among the several states according to their respective numbers, excluding Indians not taxed, and by a ratio previously fixed by congress, but not to exceed one for every thirty thousand. Each state is to have at least one representative. Ib. (15) [De Lolme has improved upon this, and has, I think, unwarrantably asserted, that "it is a fundamental principle with the English lawyers, that parliament can do every thing but make a woman a man, and a man a woman." p. 134. The omnipotence of parliament signifies nothing more than the supreme sovereign power of the state, or a power of action uncontrolled by any superior. In this sense, the king, in the exercise of his prerogatives, and the house of lords, in the interpretation of laws, are also omnipotent; that is, free from the control of any superior pro vided by the constitution.] it was a known apothegm of the great lord treasurer Burleigh, " that England could never be ruined but by a parliament;" and, as Sir Matthew Hale observes, (i)" this being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it the subjects of this kingdom are left without all manner of remedy." To the same purpose the president Montesquieu, though I trust too hastily, presages (k) that, as Rome, Sparta, and Carthage, have lost their liberty, and perished, so the constitution of England will in time lose its liberty, will perish: it will perish, whenever the legislative power shall become more corrupt than the executive. It must be owned that Mr. Locke, (1)and other theoretical writers, have held, that "there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust *reposed in them; for, when such trust is abused, it is thereby forfeited, and devolves to those who gave it." But however just this conclusion [*162] may be in theory, we cannot practically adopt it, nor take any legal steps for carrying it into execution, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people; reduces all the members to their original state of equality; and, by annihilating the sovereign power, repeals all positive laws whatsoever before enacted. No human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. (m) So long therefore as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control. (16) In order to prevent the mischiefs that might arise, by placing this extensive authority in hands that are either incapable, or else improper, to manage it, it is provided by the custom and law of parliament, (n) that no one shall sit or vote in either house, unless he be twenty-one years of age. This is also expressly declared by statute 7 and 8 W. III, c. 25, with regard to the house of commons; doubts having arisen from some contradictory adjudications, whether or no a minor was incapacitated from sitting in that house. (0) It is also enacted by statute 7 Jac. I, c. 6, that no member be permitted to enter into the house of commons, till he hath taken the oath of allegiance before the lord steward or his deputy; and, by 30 Car. II, St. 2, and 1 Geo. I, c. 13, that no member shall vote or sit in either house, till he hath in the presence of the house taken the oath of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation, (17)and invocation of saints, and the sacrifice of the mass. Aliens, unless naturalized, were likewise by the law of parliament incapable to serve therein: (p) and now it is enacted, by statute 12 and 13 W. III, c. 2, that no alien, *even though he be naturalized, shall be capable of being a member of either house of parliament. And there [ *163] are not only these standing incapacities; but if any person is made a peer by (k) Sp. L. 11. 6. (i) of parliaments, 49. 66 (m) See page 244. (16) [Locke himself qualifies his position much in the same way as it is qualified in the text. He says, the community may be said in this respect to be always the supreme power, but as considered under any form of government; because this power of the people can never take place till the government is dissolved.] No such absolute and uncontrolled authority exists in the American legislative bodies. See notes, pp. 125 and 146. Also Cooley, Const. Lim. 7. (17) The acts relating to declaration against transubstantiation were repealed by Stat. 10 Geo. IV, c. 7, which prescribes a form of oath to be taken by Roman Catholics instead of the oaths of allegiance, supremacy and abjuration. Until recently Jews could not sit in parliament unless they could take the oath of abjuration, containing the words " upon the faith of a Christian," but this requirement was dispensed with in 1858. The form of oath now required by members of parliament is prescribed by Stat. 31 and 32 Vic. c. 72, § 8. |