CHAP. XVIII.

Ir only remains to be enquired whether the Statute Law of England be good or not. And, as to that, it does not flow solely from the mere will of one man, as the laws do in those countries, which are governed in a despotic manner; where sometimes the nature of the Constitution so much regards the single convenience of the Legislator, whereby there accrues a great disadvantage and disparagement to the subject. Sometimes also, through the inadvertency of the Prince, his inactivity and love of ease, such laws are unadvisedly made as may better deserve to be called corruptions, than laws. But, the Statutes of England are produced in quite another manner: Not enacted by the sole will of the Prince, but, with the concurrent consent of the whole kingdom, by their Representatives in Parliament. So that it is morally impossible but that they are and must be calculated for the good of the people: and they must needs be full of wisdom and prudenee, since they are the result, not of one man's wisdom only, or an hundred, but such an assembly as the Roman Senate was of old, more than three hundred select persons*;

a At a period, when tenure constituted the only right to a seat among the Barons, the number, whether of the greater or lesser nobility, depended upon principles, which were peculiar to the times. After the adoption of write, but when a summons to Parliament did not confer an hereditary right, or even a right for the life of the individual to attend its meetings, the House of Peers, must have experienced consi

derable

as those who are conversant in the forms and method of summoning them to Parliament, can more distinctly inform you. And, if any bills passed into a law, enacted with so much solemnity and foresight, should happen not to answer the intention of the legislators: they can immediately be amended and repealed, in the whole, or in part, that is, with the same consent and in the same manner as they were at first enacted into a law. I have thus laid before you, my Prince, every species

derable fluctuations in the number of its members: accordingly we find, that, in the reign of Edw. I, the number of summonses generally amounted to eighty, whereas in the latter period of his successor's reign, they sometimes were under forty, and never were as many as fifty. In later times, the Peerage has not remained stationary, and we read in the history of Queen Anne, that it received an addition of twelve members in one day, who were created for the purpose of supporting the measures of a particular administration. So the numbers of the House of Commons, must have greatly varied in early times, from the discretion which was formerly reposed in Sheriffs, as to the issuing of their precepts to boroughs; from the excuses, by which particular towns exonerated themselves from the charge of appointing Representatives; from the power invested in the Crown, of giving birth to the elective franchise, and which was exercised at least from the reign of Edw. IV, to that of Car. II. Historians do not appear to have attended sufficiently to the considerations which these circumstances suggest; for the character of the two assemblies, both in respect of their relative situation to each other, and their collective capacity, must have been very different, at different times; and whilst the names of Parliament, Lords and Commons, have continued the same, the ideas they have been intended to represent, have undergone a variety of transmutations. The attention of the nation was drawn to this subject, in the reign of George I, on the occasion of the Bill, which was introduced for the purpose of limiting the number of the Peerage. (Selden's Titles of Honour. Madox's Baronia Anglica. Dugdale's Summonses to Parliament. Collins's Claims. Hale's Jurisdiction of the Lords. Report of Lords' Committees respecting the Peerage. Elsynge on Parliaments. Whitelocke's Parliamentary Writ. Brady on Boroughs. Madox's Firma Burgi. Glanville's Reports. Merewether on Boroughs. Coxe's Life of Walpole, and Pamphlets respecting the Peerage Bill, there referred to. Somers's Tracts, George I.)

of the Laws of England, you will of yourself easily apprehend their nature, whether they be good or not, by comparing them with other laws: and, when you will find none to stand in competition with them, you must acknowledge them to be, not only good laws, but such, in all respects, as you yourself could not wish them to be better".

The leading features of the Constitution of Parliament, are described in this Chapter, in a manner very much the same as that, in which an author of the present day would represent them. The gradual formation, and settling of that assembly, according to the sketch here given of it, is a subject of very curious and difficult enquiry. Much learning and talent has been applied, to determine the question of the participation of the Commons, in the national councils, during the Saxon and Anglo-Norman period. Sir M. Hale, who was peculiarly qualified for developing this obscure subject, confesses that he is unable to do more than guess what was the ancient right, and form of Government, anterior to the time of Henry III. The nature of the political assemblies in the reign of that king, derives considerable illustration from an abundance of public records, and from the contemporary writings of two great authorities for History and Law, Matthew Paris and Bracton. After tracing the history of the branches of the Legislature, to the period of their first existence in a political capacity, much learned research has been pursued, with a view of ascertaining, by what authority, and according to what form. of appointment, the individual members of either House have occupied their seats. An enquiry, which embraces in the House of Lords, the distinctions between the greater and lesser Barons, Barons of the old and new feoffment, Barons by tenure, investiture, writ, patent, and by Act of Parliament, Bannerets, Peers, together with the parliamentary rights of Bishops. And in the house of Commons, involves the consideration of the ancient Constitution of the County Courts; the early History of Towns, Leets, and Corporations; the manner in which the various classes of the community have been represented at different periods, especially the tenants in ancient demesne, and the tenants of Peers; and the principle upon which Burgesses were originally summoned to Parliament. After this examination of the Constitution of the Houses of Parliament respectively, a further object of investigation, has been the relative situation, in which the two branches of the Legislature, have stood to each other at different periods: which leads to the questions, respecting the division of the houses;

the

the ancient manner of voting by the Knights; the right of judicature in the Lords; the Constitution of the Three Estates; and the nature of the several ancient councils of the King. It would be foreign to the purpose of this note, to dwell longer upon the topics, which have been briefly adverted to; but it may not be thought irrelevant, to institute a short enquiry, respecting the period, at which Parliament appears by authentic records, to have been settled according to the form and Constitution, which it had assumed, when Fortescue describes it: especially as it was in the reign in which Fortescue wrote, that the representation of the Commons, had become an object of so great national importance, as to have occasioned the famous Statute, by which the election of Knights of the Shire is regulated in the present day; and a seat in Parliament, as it appears, both from the public history, and the private memorials of those times, often gave rise to an animated scene of contention. By a Statute of Edward II, a declaration is made, that every legislative measure, not sanctioned by the consent of the Kings, Lords, and Commons, should be void. The Peerage Committee of the Lords observe, that this is the first solemn Act they have discovered, by which the Constitution of the legislative assembly of the Realm, is distinctly described, subsequently to the Charter of John, which in their opinion, did not extend to require the common consent to all legislative measures, but only to the imposition of Scutage: it is, however, material to observe, that the Statute of Edward II, states the provisions declared in it, to be according to custom. The same Committee refer to the reign of Edward III, for the first declaration in Parliament, that the Knights of Shires should be elected by all the freeholders of the County, Suitors of the County Court, though no definitive law seems to have been made upon the subject until the 7th of Henry IV: they advert to the proceedings relative to the deposing of Richard the Second, as indicating the time, from which Peers were considered to be separated, in their Parliamentary capacity, from the rest of the laity; whilst the other tenants in chief of the Crown, who according to the Charter of John, were in some measure confounded with the nobility, as also the tenants of the Peers were intermixed with the mass of the laity, and were treated as a distinct estate, represented in Parliament, by the elected Knights, Citizens, and Burgesses. Mr. Hallam has noticed a precedent in the 9th of Edward IV, as affording the earliest authority for two important points of Parliamentary Law, that the Commons possess an exclusive right to originate money-bills, and that the King ought not to take notice of what is passing in Parliament.- It is from these records, that the period may be collected, at which the Constitution of the Legislature of the Realm became completely settled.

It is often difficult to ascertain what has been enacted by the common consent of the Realm in ancient times. Sir E. Coke has shewn this by many examples in his 4 Inst. and it is confirmed by Prynne's Animadversions upon that Work: The liberties of the subject, were, at one period of our history, believed materially to depend upon the authenticity of a disputed Statute, the Statute "de tallagio non concedendo," and, not to enumerate more instances to the same effect, at the impeachment of Lord Macclesfield, the validity of an Act of Parliament, which was not to be found in any Statute book, but was contained in the Parliament rolls, gave rise to a discussion, from its importance in sustaining the accusation against that illustrious offender. The Committee for the inspection of the public records, have given a particular detail of the various sources, from which the evidence respecting the authenticity of Statutes is derived: Sir M. Hale, in his History of the Common Law, has imparted many valuable directions, for forming a correct judgment in enquiries of this nature, which depend not more upon the inspection of records, than upon general and received tradition: and much valuable information upon this subject, may be collected from the discussions which have arisen, respecting the form of Statutes at particular periods; upon the presumption which may be made of the assent, of one or more branches of the legislature, when it is not expressed; and upon the meanings, which are to be attributed to the term "Ordinance." (Hargr. Co. Lit. 159 b. n. 2. and References to Prynne, ibid. Ruffhead's Preface to the Statutes. Elsynge on Parliaments. Whitelocke's Parliamentary Writ. Co. Litt. 29 a. 2 Inst. 525. 644. 4 Inst. 25. Prince's Case. 8 Rep. Reeves's History of the Law, Edw. III. Southampton Case, Douglas on Elections. Heywood's Vindication of Fox's History, p. 92.) It is worthy of observation, that in the reign of Henry VI. the practice became established of making up complete Statutes in the first instance, under the name of Bills, instead of the old petitions which were frequently very much altered after they had passed the Houses: this change may be considered an important circumstance in the History of the Constitution.A royal Proclamation was at one time supposed to possess a sort of legislative efficacy; although there does not appear to be any ground, for the statement of Hume, that the right of issuing proclamations, with the effect of laws, was acknowledged by lawyers, with a distinction restrictive of the authority of proclamations to the life of the Sovereign, who emitted them: and that historian's imputations against the Tudors, for their tyrannical exercise of this power, have been canvassed by Mr. Brodie, in his recent Work on the British Empire. It appears from a treatise of Hale's, that proclamations were frequently issued with penalties, merely in terrorem. (Hale de Portibus Maris,

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