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, [*181] their meeting would not have been regular; but, as it was empty, such meeting became absolutely necessary. And accordingly it is declared by statute 1 Wm. & 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 sovereign, only, can convoke a parliament.

And this by certain ancient statutes of the realm(x) he was bound to do every year, or oftener, "if need be." Not that he was obliged by these statutes to call a new parliament every year; he was obliged only to permit a parliament to sit annually for the redress of grievances, and dispatch of business, or oftener, "if need be." These last words are so loose and vague, that such of our monarchs as were inclined to govern without parliaments, neglected the convoking them sometimes for a very considerable period, under pretence that there was no need of them. The preamble, however, of the statute 16 Car. 1, c. 1, affirmed that "by the laws and statutes of this realm parliaments ought to be holden at least once every year for the redress of grievances;" and although this act was repealed by the statute 16 Car. 2, c. 1, it was therein enacted, that the sitting and holding of parliaments shall not be intermitted above three years at the most. And by the statute 1 Wm. & 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 "frequently" is again reduced to a certainty, by statute 6 Wm. & 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 after the determination of the former. By reason moreover of the supplies being voted only for one year at a time, and the Marine Forces and Mutiny Acts being likewise passed for one year only, the necessity for an annual session of parliament is now established, and parliament is never prorogued to a period beyond a year from the operative commencement of these acts.(66)

parts of parliament.

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II. The constituent parts of a parliament are the next objects of our inquiry. And these are, the king or queen, sitting there in a royal political capacity, II. Constituent and the three estates of the realm; the lords spiritual(y), the lords temporal (who sit, together with the king, in one house), and the commons, who sit by themselves in another. And the king and these three estates, together, form the great corporation or body politic of the kingdom(2), of which the sovereign is said to be caput, principium, et finis. For upon their coming together the sovereign meets them, either in person or by

(x) 4 Edw. 3, c. 14; 36 Edw. 3, c. 10. (y) Post, p. 184.

(z) 4 Inst. 1, 2; 1 Eliz. c. 3; Hale, Parl. 1.

(66) By article 1, section 4 of the constitution of the United States, congress is required to assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. By the same constitution (art. 2, § 3) the president is authorized to convene congress on extraordinary occasions.

representation; without which there can be no beginning of a parliament(a): and he alone has the power of dissolving them.

It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislative. The total union of these powers, we have seen (b), would be productive of tyranny; the total disjunction of them would in the end produce the same effect, by causing that union against which it seems to provide. The legislative would soon become tyrannical, by making continual encroachments upon, 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 [*183] the reins of administration; and the republican form of government was speedily transformed into a protectorate or dictatorship, opposed alike in name and spirit to our constitution. 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 a power of rejecting rather than of 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(c). The crown cannot of itself initiate 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 its own consent; since the law must perpetually stand as it now does, unless all the powers will agree to alter it. And herein consists one special excellence of the English government, that the parts of it mutually check one another. 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 or amending what the other has resolved: whilst the sovereign is a check upon both, and may preserve the executive power from encroachments. But this executive power is again checked and kept within due bounds by the two houses, through the privilege they have of inquiring into, impeaching, and punishing the conduct (not indeed of the sovereign(d)), which would destroy his constitutional independence; but, (which is more *beneficial to the public) of his evil and pernicious [*184] counsellors. Thus every branch of our civil polity supports and is supported by, 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, 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 forms a part of the legislative machine, and is the sole executive magistrate. Acting like three distinct powers in mechanics, they jointly impel the government in a

(a) 4 Inst. 6.

(b) Ante, p. 173.

(c) Sulla-tribunis plebis suâ lege injuriæ

facienda potestatem ademit, auxilii ferendi reliquit. De Leg. 3, 9.

(d) Stat. 12 Car. 2, c. 30; post, chap. 7.

direction different from what either, acting by itself, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes, as nearly as may be, the true line of liberty and political well-being of the community.

The sovereign.

Let us now consider these constituent parts of the sovereign power, or parliament, each separately. The sovereign, his title, duties, prerogatives, and revenue will form the subject-matter of the next and some subsequent chapters, to which we must at present merely refer. The next in order are the spiritual lords. These consist of two archbishops, and twenty-four bishops for England (e). To the lords spiritual were added. four bishops on the part of Ireland upon the union of that country with Great Britain, and of these spiritual peers, who sit by rotation of sessions, an archbishop of the church in Ireland is always one(f).

The spiritual lords.

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The right by which the spiritual lords have since the conquest held their seats in parliament is uncertain. During Saxon times it seems agreed that they sat there in virtue of their ecclesiastical office(g), but some learned writers have affirmed that they sit there as holding certain ancient baronies under the crown: for it is said that William the Conqueror thought proper to change the spiritual tenure of frank-almoign 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 civil charges and assessments, from which they were before exempt(h): and that 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(i). Let this be as it may, the archbishops and bishops sitting in the upper house solely in that capacity, although "lords of parliament," are not in strictness "peers "(k).

Though the 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 a majority of votes so intermixed decides the specific question before the house. From this want of a separate *assembly and separate negative of the prelates, some writers have [ *186] argued (1) very cogently, that the lords spiritual and temporal are now in reality only one estate(m): which is unquestionably true in every effectual sense, though the ancient distinction between them still nominally continues.

(e) The Bishop of Sodor and Man has no seat in parliament. Also, by the statute 10 &11 Vict. c. 108, it is enacted that the number of lords spiritual shall not be increased by the creation of the bishopric of Manchester, and whenever there shall be a vacancy by the avoidance of any one of the sees of Canterbury, York, London, Durham, or Winchester, or of any other see filled by the translation of a bishop already sitting, such vacancy shall be supplied by the issue of a writ of summons to the bishop elected to the same see; but if the vacancy be caused by the avoidance of any other see, such vacancy shall be supplied by the issue of a writ of summons to that bishop who shall not have previously become entitled to such writ; and no bishop elected to any see, not being VOL. I. - 17

one of the five sees above named, shall be entitled to a writ of summons unless in the order and according to the conditions above prescribed.

(f) See 39 & 40 Geo. 3, c. 67, art. 4; 40 Geo. 3, c. 29; 3 & 4 Will. 4, c. 37, ss. 51, 52. (g) May, Parl. Pract. 5th ed. 7.

(h) Gilb. Hist. Exch. 55; Spelm. Parl. 63. (i) Glanv. 7, 1; Co. Litt. 97; Seld. tit. Hon. 2, 5, 19. Mr. Hallam says (Const. Hist. vol. 1, pp. 96, 99), that the mitred abbots and priors, before the act for abolishing monasteries (30 Hen. 8, c. 13), " composed more than a third part of the House of Lords." (k) May, Parl. Pract. 5th ed. 26.

() Whitelocke on Parl. c. 72; Warburt. Alliance, b. 2, c. 3. (m) Deyer, 60.

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 Selden(n), and sir Edward Coke(0) give 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(p).

The temporal lords.

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 (q)) 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 ancient peers; some by creation, as do all new made ones; others by election, as do the sixteen peers, who represent the body of the Scottish nobility, and are elected for one parliament only, and the twenty-eight representative Irish peers, who are elected for life. The number of the peers of the United Kingdom is indefinite, may be increased at will by the power of the *crown, and is by new creations gradually [*187] increasing. In the reign of queen Anne, there was an instance of creating no less than twelve peers 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.

So far as regards the Irish peerage the prerogative of the crown was by the 4th article of the Act of Union restrained, for that article allows the creation of one Irish peerage only in lieu of every three of such peerages which become extinct (r). Should however the number of Irish peers, exclusive of such as are peers of the United Kingdom, be reduced to one hundred, then one new Irish peerage may be created by the crown whensoever one of such hundred peerages becomes extinct or whensoever an Irish peer becomes entitled to an hereditary seat in parliament(s).

The distinction of rank and honour 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 burden to the community(); exciting thereby ambition and emulation in others. Emulation 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

[ *188]

(9) Staunford, P. C. 153; Bishop of St. Davids v. Lucy, Salk. 135.

(r) The Fermoy Peerage, 5 H. L. Cas. 716. (8) May, Parl. Pract. 5th ed., p. 4.

(t) It is on this ground especially to be lamented that the prerogative does not extend to the creation of peerages for life, conferring the right to sit and vote in parliament. See the Debates on the Wensleydale Peerage, Hansard. cxl. 1121.

effects under a free monarchy; where its excesses may be 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, whilst principally meaning to promote his own ends, may be made subservient to the public good. A body of nobility is, in our mixed and compounded constitution, efficacious to support the rights of both the crown and the people, by forming a barrier to withstand the encroachments of either. 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 a government; for when the departure is sudden from one extreme to another, we may pronounce that condition of society 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 be buried under its ruins. Accordingly, when in the seventeenth century the commons had determined to extirpate monarchy, they also voted the house of lords to be useless and dangerous. Since, therefore, titles of nobility are 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 could only 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 highly necessary that the body of nobles should form a distinct assembly, hold distinct *deliberations, and exercise distinct powers from the commons(u).

The commons.

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The commonalty in this country are divisible into two classes, those who have and those who have not the elective franchise. In a free state every man, who is supposed a free agent, ought to be in some measure his own governor; and therefore, theoretically, 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 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 populous 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 separate districts, wherein all the voters are, or may be, distinguished. The counties, therefore, have been represented by knights, elected principally by the proprietors of land and by tenants considerably interested in it: the cities and boroughs have been () Much valuable information on the is collected in the four Reports on the dig original constitution of the British peerage nity of a peer of the realm, A.D. 1826.