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the burghs, on every male of full age not legally incapacitated, who pays a rent of £10, and has qualified by paying the assessed taxes, on or before the 20th of August of this year, and of July in every succeeding year.
Without claiming originality, my desire has been to give the greatest mass of information in the smallest possible compass : And as the Reform Bills have now become law, I devoutly hope, that the empire may be as prosperous under their operation, as it was under our old“ time-honoured” constitution.
Blackstone says, that the original or first institution of parliament is one of those matters which lie so far hidden in the obscure ages of antiquity, that to trace it out is equally difficult and uncertain. The word parliament itself is comparatively of modern date, derived from the French, signifying merely an assembly that met and conferred together. It was first applied to general assemblies of the estates of France, under Lewis VII. about the middle of the twelfth century.
It is certain, that, long previous to the introduction of the Norman language into England, all matters of public importance were debated and settled in great councils of the realm. And this general council has been established under several different names from time immemorial ; such as mychil synoth, or great council, mychil gemote, or great meeting, but more generally witena gemote, or the meeting of wise men, so that it would appear parliaments, or great national councils, were coeval with the kingdom itself. How these parliaments were summoned is matter of dispute, and particularly, if the commons were summoned at all : it is generally agreed that the main constitution of parliament which now exists, was not marked out before the year 1215, being the year in which King John granted to England the Great Charter, and in which provision is first made for admitting the commons of England to a share of the legislation. In Magna Charta, king John promises, for himself and his heirs and succes. sors, to summon all archbishops, bishops, abbots, earls, and greater barons, personally : and all other tenants in chief under the crown by the sheriffs and bailiffs : to meet at a certain place, with forty days' notice, to assess aids and scutages, when necessary. There was no such thing in existence as a house of Commons, till the year 1266, being the 49th of Henry III., when writs, which are still extant, were, for the first time, issued by the crown to summon knights, citizens, and burgesses, to attend and give their advice to the king in parliament.
Parliament is summoned by the king's writ, regularly issued out of chancery, by advice of the privy council, at least forty days before it commences its sittings. It belongs exclusively to the royal prerogative to summon parliaments : no parliament can be convened by its own authority, or by any other authority than that of the king alone, for the
crown (under God) is the source and fountain of all power within the realm. If the same persons who compose the parliament, should meet as a parliament without the king's writ, they would be guilty of high treason, and all their enactments as a parliament would not only be null and void, but treasonable by the law. In all cases of conquest or successful rebellion, as in the rival houses of York and Lancaster, the law submitted to the powerful; and whichever of these houses won the field, never missed a parliament to confirm their title : even Cromwell found a parliament to support his usurpation. In all the concessions of the crown to parliament, it has ever preserved to itself this prerogative, and for very good reasons. In the first place, For its own preservation, because parliament derives its whole authority from the crown, and the law of England has absolutely barred all coercion on the crown, as whoever had the power of coercion would be superior to the crown, which would destroy the very foundation of the government ; and the power that is derived from the crown cannot be on a level, far less superior, to it. Both houses of parliament call the king their sovereign lord, and style themselves his most dutiful and obedient subjects and servants, and swear allegiance to him ; And, secondly, Because, supposing parliament had a right to meet without being called by the king, it is impossible to imagine that all the members, and each of the houses would unanimously agree upon the proper time and place of meeting ; and, if one half of the members should meet and the other half absent themselves, who shall determine which is really the parliament, the part that assembles, or that which stays away? But the crown, by preserving to itself the prerogative of calling parliaments together, prevents confusions and revolutions, which would set every private person on the throne, and introduce an anarchy, which would admit of neither order nor remedy.
But although the parliament cannot meet without the king's writ, yet, at the Revolution in 1688, a convention of the preceding parliament assembled in London, which was afterwards, by the authority of the crown, turned into a parliament. The throne had become vacant, before the convention met without any royal summons. They did not assemble without writ, and make the throne vacant, but the throne being previously vacant by King James II.'s abdication, they assembled without any writ, as they must have done, if they assembled at all. Had the throne been full, their meeting would not merely have been irregular, it would have been high treason ; but, as the king had abdicated, such meeting became absolutely necessary. In this convention, the three estates of the realm declared the throne to be vacant, and recognised the succession to be in Mary, the eldest daughter of the late king, who succeeded to the throne, according to the order of the descent of the crown of England, with whom the Prince of Orange, her husband, was associated in the government. There was thus
no change in the constitution, the throne being filled by hereditary succession; in proof of this, it may be remarked, that the entail of the crown went to the heirs of Queen Mary, and not to those of the Prince of Orange, which shows that his administering the government, was no infraction on the hereditary descent of the crown. The first statute of William and Mary explains the grounds of that revolution, and of the settlement then made,—“And whereas the late King James the Second, having abdicated the government, and the throne being thereby vacant,” &c. This statute also settles the point of the three estates of which parliament is composed, which, meaning the late convention which met without any authority of the king or queen, says, “Whereas the lords spiritual and temporal, and commons, assembled at Westminster, representing all the estates of the people of this realm,” &c. therefore, the king is not an estate of parliament, for here were three estates without him.
The Revolution parliament repealed several former laws, but they left untouched, and in their full force, such statutes as declared the supremacy of the crown, and condemned any coercion upon it. Such as 16th Rich. II. which declares, " That the crown of England hath been so free at all times, that it hath been in no earthly subjection, but immediately subject to God, in all things touching the regality of the same crown, and to none
The 24th Henry VIII, which recognises the king as the “ one supreme head and king, unto whom a body politic, compact of all sorts and degrees of people, divided in terms, and by names of spirituality and temporality, been bounden and owen to bear, next to God, a natural and humble obedience. He being also instituted and furnished, by the goodness and sufferance of Almighty God, with plenary whole and entire power, pre-eminence, authority, prerogative, and jurisdiction, to render and yield justice and final determination to all manner of folks, resiants, or subjects, within this his realm, in all causes, matters, debates, and contentions,” &c. The 12th Car. II. wherein it is declared :-" That by the undoubted and fundamental laws of this kingdom, neither the peers of this realm, nor the commons, nor both together, in parliament or out of parliament, nor the people, collectively or representatively, nor any other persons whatsoever, ever had, have, or ought to have, any coercive power over the persons of the kings of this realm.” The 13th Car. II. which makes it a præmunire, either by “ writing, printing, preaching, or other speaking, to declare or affirm, that both houses of parliament, or either house of parliament, have or hath a legislative power without the king ;" and it also declares the power of the sword to be wholly in the king; " and that both or either of the houses of parliament cannot, nor ought to pretend to the same, nor can, nor lawfully may raise or levy any war, offensive or defensive, against his majesty, his heirs, or lawful successors ; and yet the contrary thereof hath of late years been practised, almost to
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 crecutive 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.