Tuesday, April 29, 2008

Blackstone, ch 2 p 2

"Section 16. Part 2 of Chapter 2 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 DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 2, Part 2"

II. The constituent parts of a parliament are the next objects
of our enquiry. And these are, the king's majesty, sitting there
in his royal political capacity, and the three estates of the realm;
the lords spiritual, the lords temporal, (who sit, together with,
the king, in one house) and the commons, who sit by themselves
in another[n]. 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[o];
and he also has alone the power of dissolving them.

It is highly necessary for preserving the ballance 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
the first, 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[p]. 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 it's 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 enquiring 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 counsellors.
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 arch-bishops, and twenty four bishops; and, at the dissolution
of monasteries by Henry VIII, consisted likewise of twenty
six mitred abbots, and two priors[q]: a very considerable body,
and in those times equal in number to the temporal nobility[r].
All these hold, or are supposed to hold, certain antient baronies
under the king: for William the conqueror thought proper to
change the spiritual tenure, of frankalmoign or free alms, under
which the bishops held their lands during the Saxon government,
into the feodal or Norman tenure by barony; which subjected
their estates to all civil charges and assessments, from which they
were before exempt[s]: and, in right of succession to those baronies,
the bishops obtained their seat in the house of lords[t]. 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 it's being
effectual, though every lord spiritual should vote against it; of
which Selden[u], and sir Edward Coke[w], 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 Coke seems to doubt of[x].

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[y]) by whatever title of nobility distinguished;
dukes, marquisses, earls, viscounts, or barons; of which dignities
we shall speak more hereafter. Some of these sit by descent,
as do all antient 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 encreased
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
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.

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 burthen to the community; exciting
thereby an ambitious yet laudable ardor, and generous emulation
in others. And emulation, or virtuous ambition, is a spring of
action which, however dangerous or invidious in a mere republic
or under a 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 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 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 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 it's 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 encreased.
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 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 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[z]. The number of English representatives is
513, and of Scots 45; in all 558. 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[a]) "de communi consilio super negotiis quibusdam
arduis et urgentibus, regem, statum et defensionem regni Angliae
et ecclesiae Anglicanae concernentibus
." 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 lords 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[b], "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.

"End of Section 16"