which, under a 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 also more peculiarly neceffary 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 fcale of dignity, which proceeds from the peasant to 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 state 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 it's ruins. Accordingly, when in the last century the commons had determined to extirpate monarchy, they alfo voted the house of lords to be useless and dangerous. And fince titles of nobility are thus expedient in the state, it is also expedient that their owners fhould form an independent and separate branch of the legislature. If they were confounded with the mass of the people, and like them had only a vote in electing representatives, their privileges would foon be borne down and overwhelmed by the popular torrent, which would effectually level all distinctions. It is therefore highly neceflary that the body of nobles should have a diftinct assembly, distinct deliberations, and diftinct powers from the commons. THE Commons confist of all fuch men of property in the kingdom, as have not feats in the house 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 measure his own governor; and therefore a branch at least of the legifla tive power should refide in the whole body of the people. And this power, when the territories of the state are small and it's citizens cafily known, fhould 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 encreased. 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 distinguish the fpurious 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 Cæfar, to trample on the liberties of their country, and at laft to diffolve the commonwealth. In fo large a state as ours it is therefore very wifely contrived, that the people fhould do that by their reprefentatives, which it is impracticable to perform in perfon; reprefentatives, chofen by a number of minute and feparate diftricts, wherein all the voters are, or eafily may be, diftinguifhed. 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 supposed 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 district, when elected 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; to advise his majesty (as appears from the writ of fummons ) " de com"muni confilio fuper negotiis quibufdam arduis et urgentibus, regem, ftatum, et defenfionem regni Angliae et ecclefiae Anglicanae "concernentibus." And therefore he is not bound, like a de, puty 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. Mod. Un. Hift. xxxiii, 18. € 4 Inft 14. THESE יו THESE are the conftituent parts of a parliament; the king, the lords fpiritual and temporal, and the commons. Parts, of which each is fo neceflary, that the confent of all three is required to make any new law that shall 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 mat ters 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 affembled hath the force of law; "and all the people of this nation are concluded thereby, "although the confent and concurrence of the king or houfe "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 houses of parliament have any legislative authority without the king, such perfon fhall 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. THE power and jurifdiction of parliament, says 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 anti"quitatem fpectes, eft vetuftiffima; fi dignitatem, eft honoratissi"ma; fi jurisdictionem, eft capaciffima." It hath sovereign and uncontrolable authority in the 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 refide fomewhere, is entrusted by the conftitution of thefe kingdoms. All mifchiefs and d 4 Jan. 1648. • 4 Inft. 36. grievances, grievances, operations and remedies, that tranfcend the ordinary course of the laws, are within the reach of this extraor dinary tribunal. It can regulate or new model the fucceffion to the crown; as was done in the reign of Henry VIII and William III. It can alter the established religion of the land; as was done in a variety of inftances, in the reigns of king Henry VIII and his three children. It can change and create afresh even the conftitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and feptennial elections. It can, in fhort, do every thing that is not naturally impoffible; and therefore fome have not fcrupled to call it's power, by a figure rather too bold, the omnipotence of parliament. True it is, that what the parliament doth, no authority upon earth can undo. So that it is a matter most effential to the liberties of this kingdom, that fuch members be delegated to this important truft, as are most eminent for their probity, their fortitude, and their knowlege; for it was a known apothegm of the great lord treasurer Burleigh, " that Eng"land could never be ruined but by a parliament:" and, as fir Matthew Hale obferves, this being the highest and greatest court, over which none other can have jurifdiction in the kingdom, if by any means a mifgovernment should any way fall upon it, the fubjects of this kingdom are left without all manner of remedy. To the fame purpose the prefident Montefquieu, though I truft too haflily, prefages &; that as Rome, Sparta, and Carthage have lost their liberty and perifhed, fo the conftitution of England will in time lofe it's liberty, will perifh: it will perish, whenever the legilative power fhall become more corrupt than the executive. IT must be owned that Mr Locke, and other theoretical writers, have held, that "there remains ftill inherent in the people a fupreme power to remove or alter the legislative, "when they find the legiflative act contrary to the trust re"pofed in them: for, when fuch truft is abused, it is thereby "forfeited, and devolves to thofe who gave it." But however just this conclufion may be in theory, we cannot practi2. §. 149. 227. f of parliaments, 49. Sp. L. 11. 6. VOL. I. h on Gov. P. cally cally adopt it, nor take any legal fteps for carrying it into execution, under any difpenfation of government at present actually exifting. For this devolution of power, to the people at large, includes in it a diffolution of the whole form of government established by that people; reduces all the members to their original state of equality; and, by annihilating the fovereign power, repeals all pofitive laws whatfoever before enacted. No human laws will therefore fuppofe a cafe, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provifions ineffectuali. So long therefore as the English conflitution lafts, we may venture to affirm, that the power of parliament is abfolute and without control. In order to prevent the mifchiefs that might arise, by placing this extenfive authority in hands that are either incapable, or elfe improper, to manage it, it is provided by the cuftom and law of parliament, that no one fhall fit or vote in either house, unless he be twenty-one years of age. This is alfo exprefsly declared by statute 7 & 8 W. III. c. 25. with regard to the houfe of commons; doubts having arifen, from fome contradictory adjudications, whether or no a minor was incapacitated from fitting in that houfe *. It is also enacted by ftatute 7 Jac. I. c. 6. that no member be permitted to enter into the houfe of commons, till he hath taken the oath of allegiance before the lord fteward or his deputy: and by 30 Car. II. ft. 2. and 1 Geo. I. c. 13. that no member fhall vote or fit in either houfe, till he hath in the prefence of the house taken the oath of allegiance, fupremacy, and abjuration, and fubfcribed and repeated the declaration against tranfubftantiation, and invocation of faints, and the facrifice of the mafs. Aliens, unlefs naturalized, were likewife by the law of parliament incapable to ferve therein and now it is enacted, by ftatute 12 & 13 W. III. c. 2. that no alien, even though he be naturalized, fhall be capable of being a member of either houfe of parliament. And there are not : 1 Com. Journ. 10 Mar. 1623. 18 Feb. 1625. only |