gabimus, 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."

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 an 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.

4. If there should happen any uncommon injury, or infringement of the rights before mentioned, 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. It is declared by the statute 1 W. and M. st. 2, c. 2, that the subject hath the right to petition; and that all commitments and prosecutions for such petitioning are illegal.

5. The fifth and last auxiliary right of the subject that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute, 1 W. and 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.

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 defense.

Chapter II.

OF THE PARLIAMENT.

146-190.

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.

Public Relations.

The most universal public relation, by which men are connected together, is that of government; namely, as governors or governed; or in other words, as magistrate and people. Of magistrates, some also 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 of both 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 intrust the latter with so large a power as may tend to the subversion of its 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 Origin of Parliament.

The original or first institution of parliament is one of those matters which lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain.

In

The author proceeds to seek out the original and first institution of parliament. He finds in the earliest periods a general council, which he states has been in England held immemorially under various names. stances of its meeting are shown in the reigns of Ina, Offa, Ethelbert, and Alfred, succeeding Saxon and Danish monarchs, and the first princes of the Norman line.

36

OF THE PARLIAMENT.

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 antiquaries; 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 conscitution 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 archbishops, 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 inquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of at least five hundred years. And in the prosecution of this inquiry, I shall consider, first, the manner and time of its assembling; secondly, its 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.

How Assembled.

1. 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 its own authority, or by the authority of any, except the king alone.

Its Parts.

II. The constituent parts of a parliament are the next objects. of our inquiry. 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. 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; and he also has alone 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 them 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 legislative would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power. 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 rather than resolving,-this being sufficient to answer the end proposed. 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 inquiring 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.

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 Lords Spiritual.

The next in order are the spiritual lords. These consist of two archbishops and twenty-four bishops. All these hold, or are supposed to hold, certain ancient baronies under the king. 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 binds both estates. And from this want of a separate assembly and separate negative of the prelates, some writers have argued very cogently, that the lords temporal and spiritual are now, in reality, only one estate, which is unquestionably true in every effectual sense, though the ancient distinction between them still nominally continues.