Commentaries on the Laws of England Part 12

[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, pet.i.tion, 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 pet.i.tioning 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 pet.i.tion the throne, till he had first pet.i.tioned two different ministers of state. In case he obtained justice from neither, he might then present a third pet.i.tion 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 pet.i.tion; 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 pet.i.tioning 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 pet.i.tioning, 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 pet.i.tion 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 pet.i.tion 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 pet.i.tion; and that all commitments and prosecutions for such pet.i.tioning 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 const.i.tution 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 ent.i.tled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of pet.i.tioning 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 const.i.tution. Recommending therefore to the student in our laws a farther and more accurate search into this extensive and important t.i.tle, 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 const.i.tution.

THE original or first inst.i.tution 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 a.s.semblies 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 const.i.tution, under various modifications and changes, are still to be met with in the diets of Poland, Germany, and Sweden, and the a.s.sembly 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_, _a.s.sisa 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 const.i.tuere 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 G.o.d'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 t.i.tles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wise men, as, "_haec sunt inst.i.tuta, quae Edgarus rex consilio sapientum suorum inst.i.tuit_;" or to be enacted by those sages with the advice of the king, as, "_haec sunt judicia, quae sapientes consilio regis Ethelstani inst.i.tuerunt_;" or lastly, to be enacted by them both together, as; "_hae sunt inst.i.tutiones, quas rex Edmundus et episcopi sui c.u.m sapientibus suis inst.i.tuerunt_."

[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 a.s.sise, or a.s.sembly, but was left to the custom of particular counties[f]. Here the general a.s.sise 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 a.s.sisam 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 const.i.tuted 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 a.s.sembly. 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 const.i.tution 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 a.s.sess aids and scutages when necessary. And this const.i.tution 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 const.i.tution of parliament, as it now stands, and has stood for the s.p.a.ce of five hundred years. And in the prosecution of this enquiry, I shall consider, first, the manner and time of it's a.s.sembling: secondly, it's const.i.tuent 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 a.s.sembling. 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 a.s.sembled, 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 const.i.tuent parts; and, of the three const.i.tuent 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 const.i.tuted a doge in their stead; in whom the executive power of the state at present resides. For which their historians have a.s.signed these, as the princ.i.p.al 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 a.s.semble and issue out writs for the choosing one; and, in case of neglect of the peers, the const.i.tuents 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 pa.s.s 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 a.s.sembling 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 a.s.semble. The vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. They did not a.s.semble without writ, and then make the throne vacant; but the throne being previously vacant by the king's abdication, they a.s.sembled without writ, as they must do if they a.s.sembled 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 a.s.semblies. Mod.

Un. Hist. x.x.xiii. 15.]

II. THE const.i.tuent 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 const.i.tution, 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 a.s.suming to itself the rights of the executive power. Thus the long parliament of Charles the first, while it acted in a const.i.tutional manner, with the royal concurrence, redressed many heavy grievances and established many salutary laws. But when the two houses a.s.sumed the power of legislation, in exclusion of the royal authority, they soon after a.s.sumed 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 const.i.tution 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 n.o.bility, and the n.o.bility 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 punis.h.i.+ng the conduct (not indeed of the king, which would destroy his const.i.tutional 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 const.i.tutes 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 const.i.tuent 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 n.o.bility[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 a.s.sessments, 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 pa.s.s 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 c.o.ke[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 c.o.ke seems to doubt of[x].

[Footnote q: Seld. t.i.t. hon. 2. 5. 27.]