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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 feudal or Norman tenure by barony; which fubjected their eftates to all civil charges and affeffments, from which they were before exempt: and, in right of fucceffion to thofe baronies, which were unalienable from their refpective dignities, the bishops and abbots obtained their feats in the house of lords'. But though these lords spiritual are in the eye of the law a distinct eftate 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 fuch intermixture binds both estates. And from this want of a feparate affembly and feparate negative of the prelates, fome writers have argued very cogently, that the lords fpiritual and temporal are now in reality only one eftate": which is unquestionably true in every effectual fenfe, though the antient distinction between them still nominally continues. For if a bill should pass their house, there is no doubt of it's validity, though every lord fpiritual should vote against it; of which Selden, and fir Edward Coke', gave many inftances: as, on the other hand, I prefume it would be equally good, if the lords temporal prefent were inferior to the bishops in number, and every one of those temporal lords gave his vote to reject the bill; though this fir Edward Coke seems to doubt of". THE
Gilb. Hift. Exch. 55. Spelm.W. I. 291. t Glanv. 7. 1. Co. Litt. 97. Seld. tit. hon. 2. 5. 19.
u Whitelocke on Parliam. c. 72. War out any spiritual lords. This was also ex
burt. Alliance. b. 2. c. 3. w Dyer. 60.
x Baronage. p. 1. c. 6. The act of uniformity, Eliz. c. 2. was pafied with the dif fent of all the bishops; (Gibf. codex. 268.) and therefore the stile of lords spiritual is cmitted throughout the whole.
emplified in fact in the two first parliaments of Charles II; wherein no bishops were fummoned, till after the repeal of the ftatute 16. Car. I. c. 27, by ftatute 13 Car. II. ft. 1. c. 2.
z 4 Inft. 25.
ya Inft. 585, 6, 7. See Keilw. 184; where it is holden by the judges, 7 Hen. VIII, that the king may hold a parliament with
THE lords temporal confift of all the peers of the realm (the bishops not being in ftrictnefs held to be fuch, but merely lords of parliament") by whatever title of nobility distinguished; dukes, marquiffes, earls, viscounts, or barons; of which dignities we shall speak more hereafter. Some of these fit by descent, as do all antient peers; fome by creation, as do all new-made ones; others, fince the union of Scotland, by election, which is the cafe of the fixteen peers, who reprefent the body of the Scots nobility. Their number is indefinite, and may be encreased at will by the power of the crown: and once, in the reign of queen Anne, there was an inftance of creating no less than twelve together; in contemplation of which, in the reign of king George the first, a bill paffed the house of lords, and was countenanced by the then ministry, for limiting the number of the peerage. This was thought by fome to promise a great acquifition to the conftitution, by reftraining the prerogative from gaining the afcendant in that auguft affembly, by pouring in at pleasure an unlimited number of new created lords. But the bill was ill-relished and mifcarried in the houfe of commons, whofe leading members were then defirous to keep the avenues to the other house as open and easy as possible,
THE diftinction of rank and honours is neceffary in every wellgoverned state: in order to reward fuch as are eminent for their Lervices to the public, in a manner the most desirable to individuals, and yet without burthen 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 defpotic fway, will certainly be attended with good effects under a free monarchy; where, without destroying it's existence, it's exceffes may be continually reftrained by that fuperior power, from which all honour is derived. Such a fpirit, when nationally diffused, gives life and vigour to the community: it fets all the wheels of government in motion, which under a
a Staunford. P. C. 153.
wife regulator, may be directed to any beneficial purpofe; and thereby every individual may be made fubfervient to the public good, while he principally means to promote his own particular views. A body of nobility is alfo more peculiarly nerefiary in our mixed and compounded conftitution, in order to fupport the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. It creates and preferves that gradual scale of dignity, which proceeds from the peafant the prince; rifing like a pyramid from a broad foundation, and diminishing to a point as it rifes. It is this afcending and contracting proportion that adds stability to any government; for when the departure is fudden from one extreme to another, we may pronounce that flate to be precarious. The nobility therefore are the pillars, which are reared from among the people, more immediately to fupport the throne; and, if that falls, they must also be buried under i uins. Accordingly, when in the last century the commons had determined to extirpate monarchy,they alfo voted the houfe of lords to be useless and dangerous. And unce titles of nobility are thus expedient in the ftate, it is also expedient that their owners fhould form an independent and feparate branch of the legislature. If they were confounded with the mafs of the people, and like them had only a vote in electing reprefentatives, their privileges would foon be borne down and overwhelmed by the popular torrent, which would effectually level all diftinctions. It is therefore highly neceilary that the body of nobles fhould have a distinct aflembly, diftinct deliberations, and distinct powers from the commons,
THE Commons confift of all fuch men of any property in the kingdom, as have not feats in the houfe of lords; every one of which has a voice in parliament, either perfonally, or by his reprefentatives. In a free ftate, every man, who is fuppofed a free agent, ought to be, in fome meafure, his own governor; and therefore a branch at least of the legislative power fhould refide in the whole body of the people. And this power, when the territories of the itate are fmall and it's citizens easily known, fhould
should be exercised by the people in their aggregate or collective capacity, as was wifely ordained in the petty republics of Greece, and the first rudiments of the Roman ftate. But this will be highly inconvenient, when the public territory is extended to any confiderable degree, and the number of citizens is increased. Thus when, after the focial war, all the burghers of Italy were admitted free citizens of Rome, and each had a vote in the public affemblies, it became impoffible to diftinguifh the spurious from the real voter, and from that time all elections and popular deliberations grew tumultuous and diforderly; which paved the way for Marius and Sylla, Pompey and Caefar, to trample on the liberties of their country, and at last to diffolve the commonwealth. In fo large a ftate as ours it is therefore very wifely contrived, that the people fhould do that by their representatives, which it is impracticable to perform in perfon: reprefertatives, chofen by a number of minute and separate districts, wherein all the voters are, or easily may be, diftinguished. The counties are therefore reprefented by knights, elected by the proprietors of lands; the cities and boroughs are reprefented by citizens and burgeffes, chofen by the mercantile part or fuppofed trading intereft of the nation; much in the fame manner as the burghers in the diet of Sweden are chofen by the corporate towns, Stockholm fending four, as London does with us, other cities two, and fome only one". The number of English reprefentatives is 513, and of Scots 45; in all 558. And every member, though chofen by one particular diftrict, when clected and returned ferves for the whole realm. For the end of his coming thither is not particular, but general; not barely to advantage his conftituents, but the common wealth)" de communi confilio fuper negotiis quibuf "dam arduis et urgentibus, regem, ftatum et defenfionem regni An
gliae et ecclefiae Anglicanae concernentibus." And therefore he is not bound, like a deputy in the united provinces, to confult with, or take the advice, of his conftituents upon any particular point, unless he himself thinks it proper or prudent fo to do.
b Mod. Un. Hift. xxxiii. 18.
c. 4 Inft. 14.
THESE are the conftitucnt parts of parliament; the king, the lords spiritual and temporal, and the commons. Parts, of which each is fo neceffary, that the confent of all three is required to make any new law that fhall bind the subject. Whatever is enacted for law by one, or by two only, of the three is no ftatute; and to it no regard is due, unless in matters relating to their own privileges. For though, in the times of madness and anarchy, the commons once paffed a vote ", " 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 conclu"ded thereby, although the consent and concurrence of the king "or house of peers be not had thereto;" yet, when the conftitution was restored in all it's forms, it was particularly enacted by ftatute 13 Car. II. c. 1. that if any perfon fhall maliciously or advisedly affirm, that both or either of the houfes of parliament have any legislative authority without the king, fuch person fhalk incur all the penalties of a praemunire.
III. WE are next to examine the laws and cuftoms relating to parliament, thus united together and confidered as one aggregate body.
d 4 18.
THE power and jurisdiction of parliament, fays fir Edward Coke, is fo tranfcendent and abfolute, that it cannot be confined, either for caufes or perfons, within any bounds. And of this high court he adds, it may be truly faid "fi antiquitatem fpecles, "eft vetuftiffima; fi dignitatem, eft honoratiffima; fi jurifdictionem,
eft capaciffima." It hath fovereign and uncontrolable authority in making, confirming, enlarging, reftraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all poffible denominations, ecclefiaftical, or temporal, civil, military, maritime, or criminal: this being the place where that abfolute defpotic power, which muft in all governments reside fomewhere, is entrusted by the conftitution of thefe kingdoms.
+ Inft. 36.