 Part 2 of Chapter 1 of the Commentaries on the Laws of England, Book 1. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org, recording by Anna Simon. Commentaries on the Laws of England by William Blackston, Book 1. Chapter 1 of the Absolute Rights of Individuals, Part 2. Next to Personal Security, the Law of England regards, asserts and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due cause of law. In which we may make the same observations as upon the preceding article, that it is a right strictly natural, that the Laws of England have never abridged it without sufficient cause, and that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the Laws. Here again the language of the Great Charter is that no free man shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land. And many subsequent old statutes expressly direct that no man shall be taken or imprisoned by suggestion or petition to the king or his counsel, unless it be by legal indictment or the process of the common law. By the petition of right, 3 Charles I, it is enacted that no free man shall be imprisoned or detained without cause soon, to which he may make answer according to law. By 16 Charles I, Chapter 10, if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the counsel board, or of any of the privy counsel, he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king's bench or common please, who shall determine whether the cause of his commitment be just, and thereupon due as to justice shall appertain. And by 31 Charles II, Chapter 2, commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced that so long as this statute remains unimpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. And lest this act should be evaded by demanding unreasonable bail or sureties for the king's appearance, it is declared by 1 William and Mary, Statute 2, Chapter 2, that excessive bail ought not to be required. Of great importance to the public is the preservation of this personal liberty, for if once it were left in the power of any, the highest magistrate to imprison arbitrarily whomever he or his officers thought proper, as in France it is daily practised by the crown, there would soon be an end of all other rites and immunities. Some have thought that unjust attacks even upon life or property at the arbitrary will of the magistrate are less dangerous to the commonwealth than such as are made upon the personal liberty of the subject. To bereave a man of life or by violence to confiscate his estate without accusation or trial would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking and therefore a more dangerous engine of arbitrary government, and yet sometimes when the state is in real danger even this may be a necessary measure. But the happiness of our constitution is that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient. For the parliament only or legislative power whenever it sees proper can authorize the crown by suspending the habeas corpus act for a short unlimited time to imprison suspected persons without giving any reason for so doing, as the senate of Rome was wanted to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any human endanger. The decree of the senate which usually preceded the nomination of this magistrate, Dend operem consulis, necrit respublica detrimenti capiat, was called the senatus consultum ultime necessitatis. In like manner this experiment ought only to be tried in cases of extreme emergency, and in these the nation parts with its liberty for a while in order to preserve it forever. The confinement of the person in any wise is an imprisonment, so that the keeping a man against his will in a private house, putting him in stocks, arresting or forcibly detaining him in the street, is an imprisonment. And the law so much discourages unlawful confinement that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like, he may allege this duress and avoid the extorted bond. And if a man be lawfully imprisoned and either to procure his discharge or on any other fair account seals a bond or a deed, this is not by duress of imprisonment and he is not at liberty to avoid it. To make imprisonment lawful it must either be by process from the courts of jidicature, or by warrant from some legal officer, having authority to commit to prison, which warrant must be in writing under the hand and seal of the magistrate, and express the causes of the commitment in order to be examined into, if necessary, upon a habeas corpus. If there be no cause expressed, the goer is not bound to detain the prisoner. For the law judges in this respect, said Sir Edward Koch, like Festus the Roman governor, that it is unreasonable to send the prisoner and not to signify with all the crimes alleged against him. A natural and regular consequence of this personal liberty is that every Englishman may claim a right to abide in his own country so long as he pleases, and not to be driven from it unless by the sentence of the law. The king, indeed, by his royal prerogative, may issue out his writ n'exe at rechnum, and prohibit any of his subjects from going into foreign parts without licence. This may be necessary for the public service and safeguard of the Commonwealth. But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will. No, not even a criminal. For exile or transportation is a punishment unknown to the common law, and wherever it is now inflicted it is either by the choice of the criminal himself to escape a capital punishment or else by the express direction of some modern act of parliament. To this purpose the great charter declares that no free man shall be banished unless by the judgment of his peers or by the law of the land. And by the habeas corpus act, 31 Charles II, chapter 2, that second magna carta and stable bulwark of our liberties, it is enacted that no subject of this realm, who is an inhabitant of England, Wales or Bourg, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey or places beyond the seas, where they cannot have the benefit and protection of the common law, but that all such imprisonments shall be illegal, that the person who shall dare to commit another country to this law shall be disabled from bearing any office, shall incur the penalty of a premonure, and be incapable of receiving the king's pardon, and the party's suffering shall also have his private action against the person committing, and all his aiders, advisers and abetters, and shall recover travel costs, besides his damages, which no jury shall assess at less than five hundred pounds. The law is in this respect so benignly and liberally construed for the benefit of the subject that, though within the realm the king may command the attendants and service of all his leachmen, yet he cannot send any men out of the realm, even upon the public service. He cannot even constitute a man, a lord debauchy, or lieutenant of Ireland against his will, nor make him a foreign ambassador. For this might in reality be no more than an honourable exile. The third absolute right inherent in every Englishman is that of property, which consists in the free use, enjoyment and disposal of all his acquisitions without any control or diminution save only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries, but certainly the modifications under which we at present find it, the method conserving it in the present owner, and of translating it from man to man, are entirely derived from society, and are some of those civil advantages in exchange for which every individual has resigned a part of his natural liberty. The laws of England are therefore in point of honour and justice extremely watchful in a certaining and protecting this right. Upon this principle the great charter has declared that no free man shall be deceased or divested of his free hold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land, and by a variety of ancient statutes it is enacted that no man's lands or goods shall be seized into the king's hands against the great charter and the law of the land, and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by cause of law, and if anything be done to the country it shall be redressed and holden for none. So great, moreover, is the regard of the law for private property, that it will not authorize the least violation of it, no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person it might perhaps be extensively beneficial to the public, but the law permits no man, or set of man, to do this without consent of the owner of the land. In vain may it be urged that the good of the individual ought to yield to that of the community, for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested than the protection of every individual's private rights, as modelled by the municipal law. In this and similar cases, the legislator alone can, and indeed frequently does, interpose and compel the individual to acquiesce, but how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full inundification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislator does is to oblige the owner to alienate his possessions for a reasonable price, and even this is an exertion of power which the legislator indulges with caution, and which nothing but the legislator can perform. Nor is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property, for no subject of England can be constrained to pay any aides or taxes even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament. By the Statute 25 Edward I, Chapter 5 and 6, it is provided that the king shall not take any aides or tasks but by the common ascent of the realm, and what that common ascent is, is more fully explained by 34 Edward I, Statute 4, Chapter 1, which enacts that no tallyts or aid shall be taken without ascent of the archbishops, bishops, earls, barons, knights, burgesses and other freemen of the land. See the historical introduction to the Great Charter, etc. Subano 1297, wherein it is shown that this Statute, the tallyagio non-considendo, supposed to have been made in 34 Edward I, is in reality nothing more than a sort of translation into Latin of the conformatio cartarem, 25 Edward I, which was originally published in the Norman language, and footnote. And again by 14 Edward III, Statute 2, Chapter 1, the preletes, earls, barons and commons, citizens, burgesses and merchants shall not be charged to make any aid if it be not by the common ascent of the great man and commons in parliament. And as this fundamental law had been shamefully evaded under many succeeding princes by compulsive loans and benevolences extorted without a real and voluntary consent, it was made an article in the Petition of Right, 3 Charles I, that no man shall be compelled to yield any gift, loan or benevolence, tax or such-like charge without common consent by act of parliament. And lastly by the Statute, 1 William & Mary, Statute 2, Chapter 2, it is declared that levying money for or to the use of the crown by pretence of prerogative without grant of parliament, or for longer time or in other manner than the same is or shall be granted, is illegal. In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared a certain and protected by the dead letter of the laws if the Constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain in violet the three great and primary rights of personal security, personal liberty and private property. These are, one, the Constitution, powers and privileges of parliament of which I shall treat at large in the ensuing chapter. Two, the limitation of the king's prerogative by bounds so certain and notorious that it is impossible he should exceed them without the consent of the people. Of this also I shall treat in its proper place. The former of these keeps the legislative power in due health and vigour so as to make it improbable that laws should be enacted destructive of general liberty. The latter is a guard upon the executive power by restraining it from acting either beyond or in contradiction to the laws that are framed and established by the other. Three, a third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty and property, courts of justice must at all times be open to the subject and the law be duly administered therein. The emphetical words of Magna Carta, spoken in the person of the king, who in judgment of the law says Sir Edward Koch, is ever present and repeating them in all his courts are these. Nulli vendemus, nulli negabemus, aut differeemus rectum vel justitiam. And therefore every subject continues the same learned author, quote, for injury done to him in bonus, in teres, vel persona, by any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by the cause 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. End quote. It were endless to enumerate all the affirmative acts of parliament where injustice is directed to be done according to the law of the land, and what that law is every subject knows or may know if he pleases, for it depends not upon the arbitrary will of any judge, but is permanent, fixed and unchangeable, unless by authority of parliament. I shall however just mention a few negative statutes, whereby abuses, perversions or delays of justice, especially by the prerogative, are restrained. It is ordained by Magna Carta that no free man shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. By two Edward III, chapter 8, and eleven Richard II, chapter 10, it is enacted that no commands or letters shall be sent under the great seal or the little seal, the signet or privy seal, in disturbance of the law, or to disturb or delay common right, and those such commandments should come the judges shall not see to do right. And by one William & Mary, statue 2, chapter 2, it is declared that the pretended power of suspending or dispensing with laws, or the execution of laws, by regal authority without consent of parliament is illegal. 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 no 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, for which reason it is declared in the statute 16 trials I, chapter 10, upon the dissolution of the court of star chamber, that neither his majesty nor his privy council have any jurisdiction, power or authority by English bill, petition, articles, libel, which were the course of proceeding in the star chamber borrowed from the civil law, or by any other arbitrary way whatsoever, to examine or draw into question, determine or dispose of the lands or goods of any subject of this kingdom, but that the same ought to be tried and determined in the ordinary courts of justice and by cause of law. For, if there should happen any uncommon injury or infringement of the rights before mentioned, which the ordinary courts of law is too defective to reach, there still remains a fourth subordinate right up attaining to every individual, namely the right of petitioning the King or either house of parliament for the redress of grievances. In Russia we are told that the Tsar Peter established a law that no subject might petition this throne till he had first petitioned two different ministers of state. In case he obtained justice from neither, he might then present a third petition to the Prince, but upon pain of death it found to be in the wrong. The consequence of which was that no one dared to offer such third petition, and grievances seldom falling under their notice of the sovereign, he had little opportunity to redress them. The restrictions, for some there are, which are laid upon petitioning in England, are of a nature extremely different, and while they promote the spirit of peace, there are no checkup on that of liberty. Care only must be taken, lest, under the pretence of petitioning, the subject be guilty of any riot or tumult, as happened in the opening of the memorable parliament in 1640. And to prevent this, it is provided by the statute 13, Charles II, Statute 1, Chapter 5, that no petition to the King, or either House of Parliament, for any alterations in church or state shall be signed by above twenty persons, unless the matter thereof be approved by three Justices of the Peace, or the major part of the grand jury in the country, and in London by the Lord Mayor, Elderman, and Common Council, nor shall any petition be presented by more than two persons at a time. But under these regulations, it is declared by the statute 1, William & Mary, Statute 2, Chapter 2, that the subject hath a right to petition, and that all commitments and persecutions 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 the defence, suitable to their condition and degree, and such as are allowed by law, which is also declared by the same statute 1, William & Mary, Statute 2, Chapter 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. In these several articles consist the rights, or as they are frequently termed, the liberties of Englishmen, liberties more generally talked of than thoroughly understood, and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon it is founded, should hurry him into faction or licentiousness, on the one hand, or a personanimous indifference and criminal submission on the other. And we have seen that these rights consist primarily in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free, for every species of compulsive tyranny and oppression must act in a position to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliaments be supported in its full vigor, and limits certainly known be set to the royal prerogative. 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 cause of justice in the courts of law, next to the right of petitioning the king and parliament for a redress of grievances, and lastly to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birth right to enjoy entire, unless whether laws of our country have laid them under necessary restraints. Restraints in themselves, so gentle and moderate, as will appear upon father inquiry, that no man of sense or property would wish to see them slackened. For all of us have it in our choice to do everything that a good man would desire to do, and are restrained from nothing but what would be pernicious either to ourselves or our fellow citizens. So that this review of our situation may fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom, and who had not scrupled to profess, even in the very bosom of his native country, that the English is the only nation in the world where political or civil liberty is the direct end of its constitution. Recommending therefore to the student in our laws a father and more accurate search into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul to his country, Estope Petua. Commentaries on the Laws of England by William Blackston Book 1 Chapter 2 Part 1 Chapter 2 of the Parliament We are next to treat of the rights and duties of persons as their 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. The most universal public relation by which men are connected together is that of government, namely as governors and governed or in other words as magistrates and people. Of magistrates also some 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 rights both of making and of enforcing the laws is vested in one and the same man or one and the same body of man. And wherever those two powers are united together there can be no public liberty. The magistrates 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 indistinct hands the former will take care not to entrust the latter with so larger power as may tend to the subversion of its own independence and their width 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 original or first institution of parliament is one of those matters that lie so far hidden in the dark ages of antiquity that the tracing of it out is a thing equally difficult and uncertain. The word parliament itself or colloquium as some of our historians translated is comparatively of modern date derived from the French and signifying the place where they meet and conferred together. It was first applied to general assemblies of the states under Louis VII in France about the middle of the 12th century. But it is certain that long before the introduction of the Norman language into England all matters of importance were debated and settled in the great councils of the realm, a practice which seems to have been universal among the northern nations, particularly the Germans, and carried by them into all the countries of Europe which they overran at the dissolution of the Roman Empire. Relics of which constitution under various modifications and changes are still to be met with in the diets of Poland, Germany, and Sweden and the assembly of the states in France for what is there now called the parliament is only the Supreme Court of Justice composed of judges and advocates which neither is in practice nor is supposed to be in theory a general council of the realm. With us in England this general council has been held immemorially under the several names of Michel Sinus or Great Council, Michel Gemot or Great Meeting, and more frequently with Tena Gemot or The Meeting of Wise Men. It was also styled in Latin, Comune Concilium Regni, Magdom Concilium Regis, Coria Magna, Conventus Magnatum, Vel Procerum, Assisa Generalis, and sometimes Comunitas Regni Angliae. We have instances of its meeting to order the affairs of the kingdom, to make new laws and to amend the old, or as Lita expresses it, quote, novice in juries, emersis nova constituere remedia, end quote, so early as the reign of Inna, King of the West Saxons, Alpha, King of the Merchants, and Ethelbert, King of Kent, and the several realms of the Heptarchy. And, after their union, the mirror informs us that King Alfred ordained for a perpetual usage that these councils should meet twice in the year, or oftener, if need be, to treat of the government of God's people, how they should keep themselves from sin, should live in quiet, and should receive right. Our succeeding Saxon and Danish monarchs held frequent councils of this sort, as appears from the respective codes of laws. The titles were of, usually, speak them to be enacted, either by the King, with the advice of his withinagimoto, or Wiseman, as, quote, Haik sunt instituta, coe Edgarus reix concilio sapientum suorum instituit, end quote, or to be enacted by those sages, with the advice of the King, as, quote, Haik sunt judesia, coe sapientes concilio regis et elstani instituerunt, end quote, or lastly, to be enacted by them both together, as, quote, Haik sunt instituciones, coe reix et mundus et episcopi suicum sapientibus suis instituerunt, end quote. There is also no doubt, but these great councils were held regularly under the first princes of the Norman line. Glanville, who wrote in the reign of Henry II, speaking of the particular amount of an immersement in the sheriff's court, says, it had never yet been ascertained by the general ascise, or assembly, but was left to the custom of particular counties. Here, the general ascise is spoken of as a meeting well known, and its statues or decisions are put in a manifest contradistinction to customs, or the common law. And in Edward III's time, an act of parliament made in the reign of William the Conqueror was pleaded in the case of the Abbey of St. Edmundsbury, and judicially allowed by the court. Hence, it indisputably appears that parliaments, or general councils, are co-evil with the kingdom itself. How those parliaments were constituted and composed is another question, which has been a matter of great dispute among our learned antiquarians, 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 hope it's sufficient that it is generally agreed that in the main, the constitution of parliament, as it now stands, was marked out so long ago as the 17th 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 aides and scrutages when necessary. And this constitution has subsisted, in fact, at least from the year 1266, 49 Henry III, there being still extant rites 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 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. 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 chainsery by advice of the private 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. And this prerogative is founded upon very good reason. For, supposing, it had a right to meet spontaneously, without being called together, it is impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting. And if half of the members met, and half absent in themselves, who shall determine which is really the legislative body, the part assembled, or that which stays away. It is therefore necessary that the parliament should be called together at a determinant time and place, and highly becoming its dignity and independence, that it should be called together by none but one of its own constituent parts. And, of the three constituent parts, this office can only pertain to the king, as he is a single person, whose will may be uniform and steady, the first person in the nation being superior to both houses' indignity, and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being. Nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and is to sit again for six months, unless dissolved by the successor. For this revived parliament must have been originally summoned by the crown. It is true that by a statute, 16 Charles I, chapter 1, it was enacted that if the king neglected to call a parliament for three years, the peers might assemble and issue outrits for the choosing one, and, in case of neglect of the peers, the constituents might meet and elect one themselves. But this, if ever put in practice, would have been liable to all the inconveniences I have just now stated, and the act itself was distinct so highly detrimental and injurious to the royal prerogative that it was repealed by statute 16 Charles II, chapter 1. From thence, therefore, no precedent can be drawn. It is also true that the convention parliament, which restored King Charles II, met above a month before his return, the lords by their own authority, and the commons in pursuance of rits issued in the name of the keepers of the liberty of England by authority of parliament, and that the said parliament sat till the 29th of December, full seven months after the restoration, and enacted many laws, several of which are still in force. But this was for the necessity of the thing, which supersedes all law, for if they had not so met, it was morally impossible that the kingdom should have been settled in peace. And the first thing done after the king's return was to pass an act declaring this to be a good parliament, notwithstanding the defect of the king's rits, so that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to waive the objection, this cannot be drawn into an example in prejudice of the rites of the crown. Besides, we should also remember that it was at that time a great doubt among the lawyers, whether even this healing act made it a good parliament, and held by very many in the negative, though it seems to have been too nice a scruple. It is likewise true that at the time of the revolution, AD 1688, the lords and commons by their own authority, and upon the summons of the Prince of Orange, afterwards King William, met in a convention, and therein disposed of the crown and kingdom. But it must be remembered that this assembling was upon a like principle of necessity, as at the restoration. That is, upon an apprehension that King James II had abdicated the government, and that the throne was thereby vacant, which apprehension of theirs was confirmed by their concurrent resolution, when they actually came together. And in such a case as the palpable vacancy of a throne, it follows ex necessitate rei, that the form of the royal rites must be laid aside, otherwise no parliament can ever meet again. For let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail, and become extinct, which would indisputably vacate the throne. In this situation, it seems reasonable to presume that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government. Otherwise, there must be no government at all. And upon this, and no other principle, did the convention in 1688 assemble. The vacancy of the throne was precedent to their meeting, without any royal summons, not a consequence of it. They did not assemble without writ, and then make the throne vacant, but the throne being previously vacant by the King's abdication, they assembled without writ, as they must do if they assembled at all. Had the throne been full, their meeting would not have been regular. But as it was really empty, such meeting became absolutely necessary. And accordingly, it is declared by Statute 1, William & Mary, Statute 1, Chapter 1, that this convention was really the two houses of parliament, notwithstanding the want of rits, or other defects of form. So that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, and each of which, by the way, induced a revolution in the government, the role laid down is in general certain, that the King only can convoke a parliament. And this, by the ancient statutes of the realm, he is bound to do every year, or oftener if need be, not that he is, or ever was, obliged by these statutes to call a new parliament every year, but only to permit a parliament to sit annually for the redress of grievances and dispatch of business, if need be. These last words are so loose and vague, that such of our monarchs, as were inclined to govern without parliament, neglected the convoking of them, sometimes for a very considerable period, under pretense that there was no need of them. But, to remedy this, by the Statute 16, Charles II, Chapter 1, it is enacted that the sitting and holding of parliament shall not be intermitted above three years at the most. And by the Statute 1, William and Mary, Statute 2, Chapter 2, it is declared to be one of the rites of the people, that for redress of all grievances, and for the amending, strengthening, and preserving the laws, parliament's out to be held frequently. And this indefinite frequency is again reduced to a certainty, by Statute 6, William and Mary, Chapter 2, which enacts, as the Statute of Charles II had done before, that a new parliament shall be called within three years, after the determination of the former. And of Section 15 Chapter 2 of the Parliament 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 Lord's spiritual, the Lord's 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 Legislature. The total union of them, we have seen, 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 Legislature would soon become tyrannical by making continual encroachments and gradually assuming to itself the rights of the executive power. Thus the long Parliament of Charles I, while it acted in a constitutional manner with the royal concurrence, redressed many heavy grievances and established many salutary laws. But when the two houses assumed the power of legislation in exclusion of the royal authority, they soon after assumed likewise the reins of administration and, in consequence of these united powers, overturned both church and state, and established a worse oppression than any they pretended to remedy. 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. For we may apply to the royal negative in this instance what Cicero observes of the negative of the Roman tribunes, that the Crown has not any power of doing wrong, but merely of preventing wrong from being done. The Crown cannot begin of itself any alterations in the present established law, but it may approve or disapprove of the alterations suggested and consented to by the two houses. The legislative, therefore, cannot abridge the executive power of any rights which it now has by law without its own consent, since the law must perpetually stand as it now does, unless all the powers will agree to alter it. 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 councillors. Thus every branch of our civil polity supports and is supported, regulates, and is regulated by the rest. For the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits, while the whole is prevented from separation and artificially connected together by the mixed nature of the crown, which is a part of the legislative and the sole executive magistrate. Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either acting by themselves would have done, but at the same time in a direction partaking of each and formed out of all, a direction which constitutes the true line of the liberty and happiness of the community. 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 next in order are the spiritual lords. These consist of two archbishops and twenty-four bishops, and at the dissolution of monasteries by Henry VIII consisted likewise of twenty-six mitred abbots and two priors, a very considerable body and in those times equal in number to the temporal nobility. All these hold or are supposed to hold certain ancient baronies under the king. For William the Conqueror thought proper to change the spiritual tenure of Frankelmoyne or free arms under which the bishops held their lands during the Saxon government into the feudal or Norman tenure by barony, which subjected their estates to all civil charges and assessments from which they were before exempt, and in right of succession to those baronies the bishops obtained their seat in the house of lords. But though these lords spiritual are in the eye of the law a distinct estate from the lords temporal and are so distinguished in all 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. For if a bill should pass their house there is no doubt of its being effectual though every lords spiritual should vote against it, of which Seldon and Sir Edward Cook give many instances. As on the other hand I presume it would be equally good if the lords temporal present were inferior to the bishops in number, and every one of those temporal lords gave his vote to reject the bill, though this Sir Edward Cook seems to doubt of. The lords temporal consist of all the peers of the realm, the bishops not being in strictness held to be such but merely lords of parliament, by whatever title of nobility distinguished, dukes, marquises, earls, vicants, or barons, of which dignities we shall speak more hereafter. Some of these sit by descent as do all ancient peers, some by creation as do all new-made ones, others since the union with Scotland by election, which is the case of the sixteen peers who represent the body of the Scots nobility. Their number is indefinite, and may be increased at will by the power of the crown, and once in the reign of Queen Anne there was an instance of creating no less than twelve together, in contemplation of which, in the reign of King George I, 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. 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 birthing to the community, exciting thereby an ambitious yet laudable ardour and generous emulation in others. An 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 its existence, its excesses may be continually restrained by that superior power from which all honour is derived. Such a spirit, when nationally diffused, gives life and vigor to the community. It sets all the wheels of government in motion, which under a wise regulator may be directed to any beneficial purpose, and thereby every individual may be made subservient to the public good, 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 its ruins. Accordingly, if 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 effectively 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 any property in the kingdom as have not seats in the House of Lords, every one of which 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 its citizens easily known, should be exercised by the people in 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, and the number of citizens is increased. Thus when, after the social war, all the burgers 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 Silla, Pompey and Caesar 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 burgers in the diet of Sweden are chosen by the corporate towns, stock home sending four, as London does with us, other cities two, and some only one. The number of English representatives is five hundred and thirteen and of Scots forty-five in all five hundred and fifty-eight, 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 concilio supernegotiis quibus dam arduis et agentibus, regem statum et defensionem regni anglii et ecclesii anglicani concernintibus, 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. These are the constituent parts of a parliament, the king, the Lord's spiritual and temporal and the commons, parts 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 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 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 its forms, it was particularly enacted by statute 13 Charles II, chapter 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 pre-muniary. End of Section 16, Recording by Graham Redman Chapter 2, Part 3 Section 3 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, said Sir Edward Cook, is so transcendent 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, Ends, it had sovereign and uncontrollable authority in 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 entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies that transcend the ordinary cores 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 parliament themselves, as was done by the active union, and the several statutes for triennial and septennial elections. It can in short do everything that is not naturally impossible, and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament. True it is, that what they do, 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 property, their fortitude, and their knowledge. For it was a known apathem of the great Lord Treasurer Burleigh, quote, that England could never be ruined but by a parliament, end quote, and that 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 anyway 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 its liberty, will perish. It will perish whenever the legislative power shall become more corrupt than the executive. It must be owned that Mr. Locke and other theoretical writers have held that, quote, there remain still inherent in the people a supreme power to remove or alter the legislative, when defined the legislative act contrary to the trust reposed in them. For when such trust is abused, it is thereby forfeited and devolves to those who gave it, end quote. But however just this conclusion may be in theory, we cannot adopt it nor argue from it 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 the sovereign power repeals all positive laws whatsoever before enacted. No human laws will therefore suppose a case 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 much splendor all legal provisions ineffectual. So long therefore as the English constitution lasts we may venture to affirm that the power of parliament is absolute and without control. In order to prevent the mischiefs that might arise by placing this extensive authority in the hands that are either incapable or else improper to manage it, it is provided that no one shall sit or vote in their house of parliament unless he be twenty-one years of age. This is expressly declared by statute seven and eight, William III, Chapter 25, with regard to the House of Commons, though a minor was incapacitated before from sitting in either house by the law and custom of parliament. To prevent crude innovations in religion and government it is enacted by statute thirty, Charles II, statute two, and one, George I, Chapter 13, that no member shall vote or sit in either house till he has in the presence of the house taking the oaths of allegiance, supremacy and abjuration, and subscribed and repeated the declaration against transubstantiation, an invocation of saints, and the sacrifice of the mass. To prevent dangers that may arise to the kingdom from foreign attachments, connections, or dependencies, it is enacted by the 12th and 13th, William III, Chapter 2, that no alien born out of the dominions of the crown of Great Britain, even though he be naturalized, shall be capable of being a member of either house of parliament. Further, as every court of justice has laws and customs for its direction, some the civil and canon, some the common law, others their own peculiar laws and customs, so the High Court of Parliament has also its own peculiar law, called the Lex et consuetudo paliementi, a law which Sir Edward Cook observes is, quote, It will not, therefore, be expected that we should enter into the examination of this law, with any degree of minuteness, since, as the same learned author assures us, it is much better to be learned out of the roles of parliament and other records, and by precedence, and continual experience, than can be expressed by any one man. It will be sufficient to observe that the whole of the law and custom of parliament has its original from this one maxim, quote, that whatever matter arises concerning either house of parliament ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere, end quote. Hence, for instance, the lords will not suffer the commons to interfere in settling a claim of peerage. The commons will not allow the lords to judge the election of a Burgess, nor will either house permit the courts of law to examine the merits of either case. But the maxims upon which they proceed, together with their method of proceeding, rest entirely in the breast of the parliament itself, and are not defined and ascertained by any particular stated laws. The privileges of parliament are likewise very large and indefinite, which has occasioned an observation that the principal privilege of parliament consisted in this, that its privileges were not certainly known to any but the parliament itself. And therefore, when in thirty-one Henry VI the house of lords propounded a question to the judges touching the privilege of parliament, the chief justice, in the name of his brethren, declared, quote, that the ought not to make answer to that question, for it has not been used a foretime that the justices should in any wise determine the privileges of the high court of parliament, for it is so high and mighty in his nature, that it may make law, and that which is law, it may make no law. And the determination and knowledge of that privilege belongs to the lords of parliament, and not to the justices. End quote. Privilege of parliament was principally established in order to protect its members not only from being molested by their fellow subjects, but also more especially from being oppressed by the power of the crown. If therefore all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege and under pretence thereof, to harass any refractory member and violate the freedom of parliament. The dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges indefinite. Some, however, of the more notorious privileges of the members of either house are privilege of speech, of person, of their domestics, and of their lands and goods. As to the first privilege of speech, it is declared by the statute one, William and Mary, statute two, chapter two, as one of the liberties of the people, that the freedom of speech and debates and proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament. And this freedom of speech is particularly demanded of the king in person by the speaker of the House of Commons at the opening of every new parliament. So likewise are the other privileges of person, servant, lands, and goods, which are immunities as ancient as Edward the Confessor, in whose laws we find this precept, quote, at synodus venientivus, sieve sumoniti sint, sieve persequid agendum aburierient, sit summa pax, end quote, and so too in the old gothic constitutions, quote, extenditur haik pax et securitas at quatortesim dies convocato regni senatu, end quote. This includes not only privilege from illegal violence, but also from legal arrests and seizures by process from the court of law. To assault by violence a member of either house or his menial servants is a high contempt of parliament, and they're punished with the utmost severity. It has likewise peculiar penalties annexed to it in the court of law, but the statutes five Henry the Fourth, Chapter Six, and eleven Henry the Sixth, Chapter Eleven. Neither can any member of either house be arrested and taken into custody, nor served with any process of the court of law, nor can his menial servants be arrested, nor can any entry be made on his lands, nor can his goods be distrained or seized without a breach of the privilege of parliament. These privileges, however, which derogate from the common law, being only indulged to prevent the members being diverted from the public business, endure no longer than the session of parliament, save only as to the freedom of his person, which in a peer is forever sacred and inviolable, and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting, which is now in effect as long as the parliament subsists. It seldom being prorogued for more than four score days at a time. But this privilege of person does not hold in crimes of such public malignity as treason, felony, or breach of the peace, or rather perhaps in such crimes for which surety of the peace may be required. As to all other privileges which obstruct the ordinary course of justice, they cease by the Statutes Twelve, William III, Chapter Three, and eleven George II, Chapter Twenty-four, immediately after the dissolution or prorogation of the parliament, or adjournment of the houses for above a fortnight, and during these recesses a peer or member of the House of Commons may be sued like an ordinary subject, and in consequence of such suits may be dispossessed of his lands and goods. In these cases a king has also his prorogative. He may sue for his debts, though not arrest the person of a member, during the sitting of parliament. And by Statutes Two and Three, and Chapter Eighteen, a member may be sued during the sitting of parliament for any misdemeanor, or breach of trust in a public office. Likewise, for the benefit of commerce, it is provided by Statute Four, George III, Chapter Thirty-three, that any trader, having privilege of parliament, may be served with legal process for any just debt to the amount of a hundred pounds, and unless he makes satisfaction within two months, it shall be deemed an act of bankruptcy, and that commissions of bankruptcy may be issued against such privileged traders in like manner as against any other. These are the general heads of the laws and customs relating to parliament, considered as one aggregate body. We will next proceed to Section Four, the laws and customs relating to the House of Lords in particular. These, if we exclude their judicial capacity, which will be more properly treated of in the third and fourth books of these commentaries, will take up but little of our time. One very ancient privilege is that declared by the Charter of the Forest, confirmed in Parliament, Nine, Henry III, vis that every Lord's spiritual or temple, someone to Parliament, and passing through the King's forests, may, both in going and returning, kill one or two of the King's deer without warrant, in view of the Forester, if he be present, or unblowing a horn if he be absent, that he may not seem to take the King's venison by stealth. In the next place they have a right to be attended, and constantly are, but the judges of the court of the King's bench, and commonplace, and such of the barons of the exchequer, as are of the degree of the coiff, or have been made surgeons at law, as likewise by the masters of the court of Chancery, for their advice in point of law, and for the greater dignity of their proceedings. The secretaries of State, the Attorney, and Solicitor General, and the rest of the King's learned counsel, being surgeons, were also used to attend the House of Peers, and have to this day their regular wits of summons issued out at the beginning of every Parliament, but as many of them have of late years being members of the House of Commons, their attendance is fallen into disuse. Another privilege is that every peer, by license obtained from the King, may make another Lord of Parliament his proxy to vote for him in his absence, a privilege which a member of the other House can by no means have, as he is himself but a proxy for a multitude of other people. Each peer has also a right, by leave of the House, when a vote passes contrary to his sentiments, to enter his dissent on the journals of the House, with the reasons for such dissent, which is usually styled his protest. All bills likewise, that may in their consequences any way affect the rights of the peerage, are by the custom of Parliament to have their first rise and beginning in the House of Peers, and to suffer no changes or amendments in the House of Commons. There is also one statute peculiarly relative to the House of Lords, 6 and Chapter 23, which regulates the election of the sixteen representative peers of North Britain, in consequence of the twenty-second articles of the Union, and for that purpose prescribes the oaths, etc., to be taken by the electors, directs the mode of belittling, prohibits the peer-electing from being attended in a unusual manner, and expressly provides that no other matter shall be treated of, in that assembly, save only the election, un-pain of incurring a primunire. End of Section 17 Book 1, Chapter 2, Part 4 The peculiar laws and customs of the House of Commons relate principally to the raising of taxes and the elections of members to serve in Parliament. First, with regard to taxes, it is the ancient indisputable privilege and right of the House of Commons that all grants of subsidies or parliamentary aides to begin in their house, and are first bestowed by them, although their grants are not effectual to all intents and purposes until they have the assent of the other two branches of the legislature. The general reason given for this exclusive privilege of the House of Commons is that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. This reason would be unanswerable if the Commons taxed none but themselves, but it is notorious that a very large share of property is in the possession of the House of Lords, that this property is equally taxable and taxed as the property of the Commons, and therefore the Commons not being the sole persons taxed, this cannot be the reason of their having the sole right of raising and modelling the supply. The true reason arising from the spirit of our constitution seems to be this. The Lords, being a permanent hereditary body, created at pleasure by the King, are supposed more liable to be influenced by the Crown, and when once influenced to continue so, than the Commons, who are a temporary elective body freely nominated by the people. It would therefore be extremely dangerous to give them any power of framing new taxes for the subject. It is sufficient that they have a power of rejecting if they think the Commons too lavish or improvident in their grants. But so reasonably jealous are the Commons of this valuable privilege that herein they will not suffer the other House to exert any power but that of rejecting. They will not permit the least alteration or amendment to be made by the Lords to the mode of taxing the people by a money-bill, under which appellation are included all bills by which money is directed to be raised upon the subject for any purpose or in any shape whatsoever, either for the exigencies of government and collected from the Kingdom in general as the land tax or for private benefit and collected in any particular district, as by turnpikes, parish rates and the like. Yet Sir Matthew Hale mentions one case founded on the practice of Parliament in the reign of Henry VI, wherein he thinks the Lords may alter a money-bill, and that is, if the Commons grant a tax, as that of tonnage and poundage, for four years, and the Lords alter it to a less time as for two years, here he says the bill need not be sent back to the Commons for their concurrence, but may receive the royal assent without further ceremony, for the alteration of the Lords is consistent with the grant of the Commons, but such an experiment will hardly be repeated by the Lords under the present improved idea of the privilege of the House of Commons, and in any case where a money-bill is remanded to the Commons, all amendments in the mode of taxation are sure to be rejected. Next, with regard to the elections of knights, citizens and burgesses, we may observe that herein consists the exercise of the democratical part of our constitution, for in a democracy there can be no exercise of sovereignty but by suffrage, which is the declaration of the people's will. In all democracies, therefore, it is of the utmost importance to regulate by whom, and in what manner, the suffrages are to be given, and the Athenians were so justly jealous of this prerogative, that a stranger who interfered in the assemblies of the people was punished by their laws with death, because such a man was esteemed guilty of high treason by usurping those rites of sovereignty to which he had no title. In England, where the people do not debate in a collective body but by representation, the exercise of this sovereignty consists in the choice of representatives. The laws have therefore very strictly guarded against usurpation or abuse of this power by many salutary provisions, which may be reduced to these three points. One, the qualifications of the electors. Two, the qualifications of the elected. Three, the proceedings at elections. One, as to the qualifications of the electors. The true reason of requiring any qualification with regard to property in voters is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful or a wealthy man a larger share in elections than is consistent with general liberty. If it were probable that every man would give his vote freely and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates to whose charge is committed the disposal of his property, his liberty and his life. But since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby some who are suspected to have no will of their own are excluded from voting in order to set other individuals whose wills may be supposed independent more thoroughly upon a level with each other. And this constitution of suffrages is framed upon a wiser principle than either of the methods of voting, by centuries or by tribes, among the Romans. In the method by centuries, instituted by Servius Tullius, it was principally property and not numbers that turned the scale. In the method by tribes, gradually introduced by the tribunes of the people, numbers only were regarded, and property entirely overlooked. Hence the laws passed by the former method had usually too great a tendency to aggrandize the patricians or rich nobles, and those by the latter had too much of a levelling principle. Our constitution steers between the two extremes. Only such as are entirely excluded as can have no will of their own. There is hardly a free agent to be found, but what is entitled to a vote in some place or other in the kingdom. Nor is comparative wealth or property entirely disregarded in elections. For though the richest man has only one vote at one place, yet if his property be at all diffused, he has probably a right to vote at more places than one, and therefore has many representatives. This is the spirit of our constitution. Not that I assert it is in fact quite so perfect as I have here endeavour to describe it, for if any alteration might be wished or suggested in the present frame of parliaments, it should be in favour of a more complete representation of the people. But to return to our qualifications, and first those of electors for Knights of the Shire, 1 by Statute 8 Henry VI, Chapter 7, and 10 Henry VI, Chapter 2. The Knights of the Shires shall be chosen of people dwelling in the same counties, whereof every man shall have free hold to the value of forty shillings by the year within the county, which by subsequent statutes is to be clear of all charges and deductions, except parliamentary and parochial taxes. The Knights of Shires are the representatives of the landholders or landed interest of the kingdom. Their electors must therefore have estates in lands or tenements within the county represented. These estates must be freehold, that is, for term of life at least, because beneficial leases for long terms of years were not in use at the making of these statutes, and copyholders were then little better than villains, absolutely dependent upon their lord. This freehold must be of forty shillings annual value, because that sum would then, with proper industry, furnish all the necessaries of life, and render the freeholder, if he pleased, an independent man. For Bishop Fleetwood in his Tronican Preciosum, written about sixty years since, has fully proved forty shillings in the reign of Henry VI to have been equal to twelve pounds per annum in the reign of Queen Anne. And as the value of money is very considerably lowered since the bishop wrote, I think we may fairly conclude from this and other circumstances that what was equivalent to twelve pounds in his days is equivalent to twenty at present. The other less important qualifications of the electors for counties in England and Wales may be collected from the statutes cited in the margin which direct to, that no person under twenty one years of age shall be capable of voting for any member. This extends to all sorts of members, as well for boroughs as counties, as does also the next, namely three, that no person convicted of perjury or subordination of perjury shall be capable of voting in any election. Four, that no person shall vote in right of any freehold granted to him fraudulently to qualify him to vote. Fraudulent grants are such as contain an agreement to reconvey or to defeat the estate granted, which agreements are made void, and the estate is absolutely vested in the person to whom it is so granted. And to guard the better against such frauds, it is father provided five, that every voter shall have been in the actual possession or receipt of the profits of his freehold to his own use for twelve calendar months before, except it came to him by dissent, marriage, marriage settlement, will or promotion to a benefits or office. Six, that no person shall vote in respect of an annuity or rent charge unless registered with the clerk of the piece twelve calendar months before. Seven, that in mortgaged or trust estates, the person in possession under the above mentioned restrictions shall have the vote. Eight, that only one person shall be admitted to vote for any one house or tenement to prevent the splitting of freeholds. Nine, that no estate shall qualify a voter unless the estate has been assessed to some land tax aid at least twelve months before the election. Ten, that no tenant by copy of court role shall be permitted to vote as a freeholder. Thus much for the electors in counties. As for the electors of citizens and burgesses, these are supposed to be the mercantile part or trading interest of this kingdom. But as trade is of a fluctuating nature and seldom long fixed in a place, it was formally left to the crown to summon, pro-renator, the most flourishing towns to send representatives to parliament. So that as towns increased in trade and grew populace, they were admitted to a share in the legislature. But the misfortune is that the deserted boroughs continued to be summoned, as well as those to whom their trade and inhabitants were transferred, except a few which petitioned to be eased of the expense, then usual, of maintaining their members, four shillings a day being allowed for a night of the shire, and two shillings for a citizen or burgess, which was the rate of wages established in the reign of Edward III. Hence the members for boroughs now bear above a quadruple proportion to those for counties, and the number of parliament men is increased since Fortescue's time in the reign of Henry VI, from three hundred to upwards of five hundred exclusive of those for Scotland. The universities were in general not empowered to send burgesses to parliament, though once in the twenty-eighth year of Edward I, when a parliament was summoned to consider of the King's right to Scotland, there were issued rits which required the University of Oxford to send up four or five, and that of Cambridge two or three, of their most discreet and learned lawyers for that purpose. But it was King James I who indulged them with the permanent privilege to send constantly two of their own body to serve for those students who, though useful members of the community, were neither concerned in the landed nor the trading interest, and to protect in the legislature the rights of the Republic of Letters. The right of election in boroughs is various, depending entirely on the several charters, customs and constitutions of the respective places, which has occasioned infinite disputes, though now by Statute II, George II, Chapter 24, the right of voting for the future shall be allowed according to the last determination of the House of Commons concerning it, and by Statute III, George III, Chapter 15, no freeman of any city or borough other than such as claimed by birth, marriage or servitude shall be entitled to vote therein, unless he hath been admitted to his freedom twelve calendar months before. II. Our second point is the qualification of persons to be elected members of the House of Commons. This depends upon the law and custom of parliaments and the statutes referred to in the margin, and from these it appears, one, that they must not be aliens born or minors, two, that they must not be any of the twelve judges, because they sit in the Lord's house, nor of the clergy, for they sit in the convocation, nor persons attainted of trees and or felony, for they are unfit to sit anywhere, three, that sheriffs of counties and mares and bailiffs of boroughs are not eligible in their respective jurisdictions as being returning officers, but the sheriffs of one county are eligible to be knights of another, four, that in strictness all members ought to be inhabitants of the places for which they are chosen, but this is entirely disregarded, five, that no persons concerned in the management of any duties or taxes created since 1692 except the commissioners of the treasury, nor any of the officers following, namely commissioners of prizes, transports, sick and wounded, wine licenses, navy, and vitalling, secretaries or receivers of prizes, controllers of the army accounts, agents for regiments, governors of plantations and their deputies, officers of menorca or Gibraltar, officers of the excise and customs, clerks or deputies in the several offices of the treasury, exchequer, navy, vitalling, admiralty, pay of the army or navy, secretaries of state, salt, stamps, appeals, wine licenses, hackney coaches, hawkers and peddlers, nor any persons that hold any new office under the crown created since 1705 are capable of being elected members, six, that no person having a pension under the crown during pleasure or for any term of years is capable of being elected, seven, that if any member accepts an office under the crown except an officer in the army or navy accepting a new commission his seat is void, but such member is capable of being re-elected, eight, that all knights of the shire shall be actual knights or such notable esquires and gentlemen as have estates sufficient to be knights and by no means of the degree of yeoman, this is reduced to a still greater certainty by ordaining nine, that every knight of a shire shall have a clear estate of freehold or copyhold to the value of six hundred pounds per annum and every citizen and burgess to the value of three hundred pounds except the eldest sons of peers and of persons qualified to be knights of shires and accept the members for the two universities which somewhat balances the ascendant which the boroughs have gained over the counties by obliging the trading interest to make choice of landed men and of this qualification the member must make oath and give in the particulars in writing at the time of his taking his seat but subject to these restrictions and disqualifications every subject of the realm is eligible of common right it was therefore an unconstitutional prohibition which was inserted in the king's writs for the parliament holden at Coventry in the sixth year of Henry IV that no apprentice or other man of the law should be elected a knight of the shire therein in return for which our law books and historians have branded this parliament with the name of parliamentum in doctrine or the lack learning parliament and sir edward cook observes with some spleen that there was never a good law made thereat three the third point regarding elections is the method of proceeding therein this is also regulated by the law of parliament and the several statutes referred to in the margin all of which i shall endeavor to blend together and extract out of them a summary account of the method of proceeding to elections as soon as the parliament is summoned the law chancellor or if a vacancy happens during parliament the speaker by order of the house sends his warrant to the clerk of the crown in chancery who there upon issues out rits to the sheriff of every county for the election of all the members to serve for that county and every city and borrow therein within three days after the receipt of this writ the sheriff is to send his precept under his seal to the proper returning officers of the cities and boroughs commanding them to elect their members and the said returning officers are to proceed to election within eight days from the receipt of the precept giving four days notice of the same and to return the person's chosen together with the precept to the sheriff but elections of nights of the shire must be proceeded to by the sheriffs themselves in person at the next county court that shall happen after the delivery of the writ the county court is a court held every month or oftener by the sheriff intended to try little causes not exceeding the value of 40 shillings in what part of the county he pleases to a point for that purpose but for the election of nights of the shire it must be held at the most usual place if the county court falls upon the day of delivering the writ or within six days after the sheriff may adjourn the court and election to some other convenient time not longer than 16 days nor shorter than 10 but he cannot alter the place without the consent of all the candidates and in all such cases 10 days public notice must be given of the time and place of the election and as it is essential to the very being of parliament that elections should be absolutely free therefore all undue influences upon the electors are illegal and strongly prohibited for mr. lock ranks it among those breaches of trust in the executive magistrate which according to his notions amount to a dissolution of the government if he employs the force treasure and offices of the society to corrupt the representatives or openly to pre-engage the electors and prescribe what manner of person shall be chosen for thus to regulate candidates and electors and new model the ways of election what is it says he but to cut up the government by the roots and poison the very fountain of public security as soon therefore as the time and place of election either encounters or burrows are fixed all soldiers quartered in the place are to remove at least one day before the election to the distance of two miles or more and not return until one day after the poll is ended riots likewise had been frequently determined to make an election void by vote also of the house of commons to whom alone belongs the power of determining contested elections no lord of parliament or lord lieutenant of a county have any right to interfere in the election of commoners and by statute the lord warden of the sink ports shall not recommend any members there if any officer of the excise customs stamps or certain other branches of the revenue presumes to intermedal in elections by persuading any voter or dissuading him he forfeits a hundred pounds and is disabled to hold any office thus are the electors of one branch of the legislature secured from any undue influence from either of the other two and from all external violence and compulsion but the greatest danger is that in which themselves cooperate by the infamous practice of bribery and corruption to prevent to prevent which it is enacted that no candidate shall after the date usually called the testy of the ritz or after the vacancy give any money or entertainment to his electors or promise to give any either to particular persons or to the place in general in order to his being elected on pain of being incapable to serve for that place in parliament and if any money gift office employment or reward be given or promised to be given to any voter at any time in order to influence him to give or withhold his vote both he that takes and he that offers such bribe forfeits five hundred pounds and is forever disabled from voting and holding any office in any corporation unless before conviction he will discover some other offender of the same kind and then he is indemnified for his own offense the first instance that occurs of election bribery was so early as the 13th year of Elizabeth when one Thomas Long being a simple man and of small capacity to serve in parliament acknowledged that he had given the returning officer and others of the borough of Westbury four pounds to be returned member and was for that premium elected but for this offense the borough was immersed the member was removed and the officer fined and imprisoned but as this practice has since taken much deeper and more universal route it has occasioned the making of these wholesome statutes to complete the efficacy of which there is nothing wanting but resolution and integrity to put them in strict execution undue influence being thus i wish the depravity of mankind would permit me to say effectively guarded against the election is to be proceeded to on the day appointed the sheriff or other returning officer first taking an oath against bribery and for the due execution of his office the candidates likewise if required must swear to their qualification and the electors in counties to theirs and the electors both in counties and boroughs are also comparable to take the oath of abjuration and that against bribery and corruption and it might not be a miss if the members elected were bound to take the latter oath as well as the former which in all probability would be much more effectual than administering it only to the electors the election being closed the returning officer in boroughs returns his precept to the sheriff with the persons elected by the majority and the sheriff returns the whole together with the writ for the county and the nights elected there upon to the clerk of the crown in chancery before the day of meeting if it be a new parliament or within fourteen days after the election if it be an occasional vacancy and this under penalty of five hundred pounds if the sheriff does not return such nights only as are duly elected he forfeits by the old statutes of henry the sixth a hundred pounds and the returning officer in boroughs for a like false return forty pounds and they are besides liable to an action in which double damages shall be recovered by the later statutes of king william and any person bribing the returning officer shall also forfeit three hundred pounds but the members returned by him are the sitting members until the house of commons upon petition shall adjudge the return to be false and illegal and this abstract of the proceedings at elections of nights citizens and burgesses concludes our inquiries into the laws and customs more peculiarly relative to the house of commons end of section eighteen recording by graham redmond