was an instance of creating no less than twelve together (7); 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 (8).

THE distinction of rank and honours 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 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 despotic sway, will certainly be attended with good effects under a free monarchy; where, without destroying it's existence, it's excesses may be continually 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 regu- [ 158 ] lator, may be directed to any beneficial purpose; and thereby every individual may be made subservient to the public good,

(7) A.D. 1711. See 6 Burnet, p. 87., and the note by Lord Dartmouth. (8) The bill was twice tried in the lords in 1718 and 1719. On the first occasion it was made a part of the measure that Scotland should have 25 hereditary instead of 16 elective peers, the number of 25, on failure of heirs male, to be supplied from the other members of the Scotch peerage. It excited considerable ferment, and though supported by the ministers and the irregular proceeding of a direct message from the king, it was found expedient to withdraw it. On the second occasion it passed the lords, and was thrown out in the commons by a majority against the administration of 269 to 177. See 19 Tindal, 263. 323. 3 Belsham, 144. 2 Smollett, 385. 391. Sir Robert (then Mr.) Walpole opposed it very ably, and anecdotes respecting it will be found in his life, by Coxe. See the Old Whig, by Addison, for, and the Plebeian, by Steele, against the measure.

while he principally means to promote his own particular views. A body of nobility is also more peculiarly necessary in our mixed and compounded constitution, in order to support the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. 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 any government; for when the departure is sudden 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 support 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 also voted the house of lords to be useless and dangerous. And since titles of nobility are thus 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 had only a 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 therefore highly necessary that the body of nobles should have a distinct assembly, distinct deliberations, and distinct powers from the commons.

THE Commons consist of all such men of property in the kingdom, as have not seats in the house of lords; every one of whom has a voice in parliament, either personally or by his representatives. In a free state every man, who is supposed a free agent, ought to be in some measure his own governor; and therefore 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 it's citizens easily known, should be exercised by the people in [159] 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,

13

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 large 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 minute and separate districts, wherein all the voters are, or easily may be distinguished. The counties are therefore represented by knights, elected by the proprietors of lands; the cities and boroughs are represented by citizens and burgesses, chosen by the mercantile part, or supposed trading interest of the nation; much in the same manner as the burghers in the diet of Sweden are chosen by the corporate towns, Stockholm sending four, as London does with us, other cities two, and some only one". The number of English representatives is 513, and of Scots 45; in all 558. (9) And every member, though chosen by one particular district, when elected and returned, serves for the whole realm. For the end of his coming thither is not particular, but general: not barely to advantage his constituents, but the common wealth; to advise his majesty (as appears from the writ of summons)" de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum, "et defensionem regni Angliae et ecclesiae Anglicanae concernen"tibus." And therefore he is not bound, like a deputy in the United Provinces, to consult with, or take the advice of, his constituents upon any particular point, unless he himself thinks it proper or prudent so to do. (10)

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THESE are the constituent parts of a parliament; the king, [ 160 ] the lords spiritual and temporal, and the commons.

b Mod. Un. Hist. xxxiii. 18.

(9) To which must now be added 100 for Ireland.

c 4 Inst. 14.

Parts,

(10) See this point beautifully put, in the close of Burke's speech to the electors of Bristol, 1774.

of which each is so necessary, that the consent 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 statute; 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 passed a voted, 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 concluded thereby, although the consent and concurrence of the king or house "of peers be not had thereto;" yet, when the constitution was restored in all it's forms, it was particularly enacted by statute 13 Car. II. c. 1. that if any person shall maliciously or advisedly affirm, that both or either of the houses of parliament have any legislative authority without the king, such person shall incur all the penalties of a praemunire.

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III. WE are next to examine the laws and customs relating to parliament, thus united together and considered as one aggregate body.

THE power and jurisdiction of parliament, says sir Edward Coke, is so transcendant and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high court, he adds, it may be truly said, "si "antiquitatem spectes, est vetustissima; si dignitatem, est hono❝ratissima; si jurisdictionem est capacissima." It hath sovereign and uncontroulable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms. All mis[161] chiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new-model the succession 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 instances, in the reigns of king Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled 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 essential to the liberties of this kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, and their knowledge; for it was a known apophthegm of the great lord treasurer Burleigh, "that England could "never be ruined but by a parliament;" and as sir Matthew Hale observes, this being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy. To the same purpose the president Montesquieu, though I trust too hastily, presages, that as Rome, Sparta, and Carthage have lost their liberty and perished, so the constitution of England will in time lose it's liberty, will perish: it will perish whenever the legislative power shall become more corrupt than the executive.

It must be owned that Mr. Lockeh, and other theoretical writers, have held, that "there remains still inherent in the people a supreme power to remove or alter the legislative, "when they find the legislative act contrary to the trust re"posed in them: for when such trust is abused, it is thereby. "forfeited, and devolves to those who gave it." But however just this conclusion may be in theory, we cannot practically adopt it, nor take any legal steps for carrying it into [162] execution, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people; reduces all the members to their original state of equality; and, by annihilating On Gov, p.2. § 149. 227.

Of parliaments, 49.

h