[38 Judge Blackstone's word, reality, it seemed to correspond better with our leading view, to speak of the King, the Lords Spiritual and Temporal, and the House of Commons, as the three estates of parliament, (these possessing all the essentials,) than by describing that order, the Lords Spiritual, as a third estate, which has nothing that is essential to it, to consider it, as it must in that view be, distinct from the temporal: for, as Montesquieu somewhere observes, "when the customs of a nation change, the laws also should change ;" so, when customs, and manners, and laws, and a constitution itself, are changed, language also should follow, and change too.

To the above incidental remarks on the House of Lords, we may, perhaps, be allowed to introduce two or three observations relating to the Commons, as not being irrelative to this subject. These concern the duration and extent of parliament.

This question might be examined in three points of view; one appealing to precedent and ancient custom, the other to the principles of justice and right reason; the last, to present policy and expediency.

In proof that parliaments were formerly annual, we refer to the 4th year of Edward III. ch. 14. A.D. 1331, and 36th❜ of the same king; and "this rule was followed to the end of the reign of King Edward III. and through the greater part of that of Richard II. as may be seen in Mr. Granville Sharp's Tract, "A Declaration of the. People's Natural Right to a Share in the Legislature," page 159, 160,161, &c.: and let it be observed, that parliaments were frequent, and generally annual, summoned by special writs from the king; that is, at the time that parliaments were first summoned, though I shall not, for the present, examine minutely this much disputed subject. Such was the practice a little after the Conquest.

To this may be added the testimony of the Mirroir des Justices, to that before the Conquest. Lord Coke says, that the greater part. of this book (the Mirror of Justices) was written before that period; and that report goes (ut ferunt) that many things in it were put forth by Andrew Horne, in Edw. I.'s reign, though the author himself mentions Edw. II. But without insisting on any particular period (which, it seems, rests only on report), certain it is,

1 Ensement est accorde que parlement soit tenu chacun an un foits, ou plus, si mestier soit.

2 Item, pour maintenance des ditz Articles et Estatutz, et redresser diverse mischiefs et grevances, qui viegnent de jour en autre, soit parlénient tenu chacun an, sicomme autre fois estoit ordeigne par Estatut. See notes to three Tracts published at Amsterdam in the years 1691 and 1692, under the name of Letters of General Ludlow, page 133. Republished 1812, by Mr.

Baron Maseres.

that this is a book of great antiquity, and Blackstone often appeals to it as of much authority. It states that the counties were assembled by King Alfred twice a-year, or oftener, if necessary. So that calling parliaments once, or oftener, in the year, appears to have been at least a very ancient practice. In William and Mary's reign they were made triennial, and in King George I.'s septennial. The extent of these parliaments in ancient times is not so clear. Whatever may be understood by the Comitees,' in Alfred's time, whether so as to include the Commons, or as to confine it to Thanes, and Counts (Comites, Earls) who had jurisdiction over the counties, does not properly belong to this place; for the present House of Commons seems to have sprung out of the latter feudal system, introduced by William the Norman. At first the greater barons, those who held immediately under him in perpetuity (to the amount, as before observed, of about 700), and who, in that right, were of the king's great council, may be said to have formed a virtual representation; and when these were allowed to alienate their possessions, so that others held under them, by the same military service, they possessed the same right, viz. of sitting in the king's great council. These, called by some the lesser barons, growing at length too numerous to appear in person, were obliged to appear by representatives: out of these arose what were afterwards, and still are, called, Knights of the Shire. But this too was only a virtual representation; and those who did not hold by knight's service, and therefore were not free, that is, those who held by soccage, villenage, or prædial tenures, that great mass of people, were not represented by them; consequently the representation was, then at least, far from being universal.

At length, as zeal for arms and chivalry somewhat abated, as commerce and manufactures increased, as trading-towns and cities grew wealthy and considerable, it was thought necessary and reasonable, that they should send representatives, de totâ communitate comitatûs: but whatever in its progress it became, no one will say that this representation is now very pure, or quite complete; and therefore here and elsewhere, I have chosen to call the present a virtual, rather than a real, representation.

On this subject we must not be surprised at the different assertions and frequent contradictions among political writers, though speaking of the same periods; nor to find royalty and disaffection both

1 Ch. 1. Sect. 3. Les Premiers Constitutions ordaines per les viels Roys, Del Roy Alfred. "Pur le Estate del Royalme fist l' Roy Alfred assembler les Comitees, et ordeigne pur usage perpetuelle que a deux foits per l'an ou plus sovent, pur mestier en temps de Peace se assembleront à Londres pur parliamenter sur le guidement del peuple d' Dieu," &c. La Somme appelle Mirroir des Justices. Edit. 1642.

2 Anno 22 Edw. I.

running themselves out of breath, contradicting one another, and often contradicting themselves: for the truth seems to be, there is much ambiguity in the language, as well as inconstancy in the parliamentary proceedings, during the times just alluded to.

3

1

2

Thus, barons sat by right in the King's Council; and the distinction of Lesser Barons some deny. All the freeholders in the same court baron are sometimes called barons; and baron (Baro) sometimes means simply a man, or including the idea of bravery. Peers were of two kinds; those who held their feuds, fees, or tenures, on the same law or condition, and those who had equal powers in the same court. So again, archbishops and bishops, being mentioned together with barons and peers in the same writ, were sometimes called peers, yet in strictness of meaning they are not so; sometimes they were even omitted in the summons, and when called, their votes were sometimes set aside; with respect to the commons, they were usually convened by the king's writ, issued to the sheriff, but not invariably. There is no memorial of the particular persons summoned by Edw. I. till the 22d year of his reign, though during that time several parliaments were called. For these and other reasons, the times now alluded to have been sometimes called, not unaptly, the irregular seasons of the constitution.

At present freeholders, and they only, are represented, or rather freehold; for it is property which is represented, rather than persons. Copyhold, as it is called, is not represented at all. This rule for representation has continued from the time of Hen. VI. when a law was made, that none should have a vote for knights of the shire, but those possessed of freehold to the amount of forty shillings a-year. The subject of boroughs, according to the system of these times, would lead to a field of inquiry too ample to be entered upon here. But if to what has already been shewn, it is added, that some of our great manufacturing towns send no

Mr. Madox's Baronia Anglica, p. 134.

"These freeholders in a court baron were anciently called barons, and that court called Curia Baronum I. S. in respect of them, and not Curia Baroni I. S. as now, in respect of the lord of the manor." Elsynge, p. 9.

3 See on this subject Spelman's Gloss. sub voce Pares, but more at large, Du Cange's Glossarium ad Scriptores Mediæ et Infimæ Latinitatis.

4 Archbishop Wake's State of the Clergy and Church of England, Ch. 1.

S. 3.

5 Dugdale's Preface to his Perfect Copy of the Summons of the Nobility to the Great Council and Parliaments of this Realme.

6 That of 5 Edward I. seems to have been not a Commune Consilium, but only partial. See Dugdale, p. 5.

Value now about 201.-See Digest of the Laws respecting County Elections, vol. i, ch. 2. by Mr. Serjeant Heywood.

representatives to parliament, enough will have been offered to show how far our representative system is from universal.

So much for precedent and custom. The principles of justice and political expediency, in reference to this subject, are of distinct consideration, and belong not to this place, which has only to do with facts, and that historically, considered more as points of antiqui ty than of liberty though we must not forget, even as matter of antiquity, that though the House of Commons, considered in its present form, as a house of representatives, rose out of the feudal system; that even under William (as we have frequent occasion to hint) provision was made for the government of the kingdom by the old Saxon laws; and that those liberties, which are called the liberties of the subject, have been since more clearly defined, and more indisputably settled;-and so to return to our High Court of Parlia

ment.

The power of this High Court of Parliament is said to be omnipotent, a term meant to express its vast extent of authority;-and Blackstone says, "it can change and create anew the Constitution ;" and that we may not suppose he speaks figuratively, and means by that term a mere fiction in law, he adds, " it can do every thing that is not naturally impossible." But here, too, we should not believe too largely. We should at least distinguish between what is accidental and fundamental. The parliament can make and repeal laws; by new statutes it can annul the old ones; it may change, perhaps, the present forms or offices of the executive power : if it ought to interfere with religion at all, it may, perhaps, alter the established religion of a country; it may even, on great emergencies, as a convention-parliament, give a new course to the succession; so far, perhaps, it may be correct to say, the parliament may change the Constitution.

But its powers have limits: it could not perpetuate itself. And, if Blackstone allowed that we have a constitution, fundamental laws, founded on the natural rights of mankind, which, whether they were originally laid down by the people, or insensibly introduced by custom, and interwoven in the laws, are received by us as the directory to the legislative body; (and it would be very hazardous to say we have no such principles; nor did Blackstone believe so, but the contrary) if this be the fact, it would be incorrect and unsafe to say The legislature can alter this part of the constitution. For as in a free state all the powers of the legislative body are but a trust, so are there some rights which can never be delegated away; and should even a parliament pillage the people of them, they should be demanded back, as their sacred, unalienable property.

And, has not the British legislature itself thus understood the matter? Laws have been repealed, as not being constitutional; and others allowed to stand as original and fundamental: as in Henry

VIIth's reign, a law passed contrary to the free customs of the realm, in the promoting of which, Empsom and Dudley were principally concerned; but, as William Penn expresses it, they were hanged for their pains, and the illegal statute was repealed. The corollary is plain, as Penn continues admirably to observe, "fundamentals give rule to acts of parliament; else, why was the statute of the 8th of Edward IV. to stand as original, and this of the 11th of Henry VII. repealed as illegal? For therefore is any thing unlawful, because it transgesseth a law; but what law can an act of parliament transgress but that which is fundamental? Therefore, trials by juries, or lawful judgment of equals, is, by act of parliament, confessed to be a fundamental part of our government." And I am much mistaken in my opinion of the people of England, if a bill lately passed, called the Sedition Bill, is not set aside at some future period, on the same ground.

I shall here add the following summary of what is good in the English notions of liberty:-" The following, then, are received as the fundamental maxims of English law, which it may not be amiss to repeat here:-The people have a right to a free enjoyment of life, liberty, and property; a right to make those laws by which they are governed; and a right to share in that power which puts the laws in execution. To these I may be allowed to add the excellent maxim of good King Edward, which hath ever been deemed a fundamental in our law: That if any law or custom be contrary to the law of God, of nature, or of reason, it ought to be looked upon as null and void.' And though, in order to guard against the frowardness of private reason, our law is called legal reason (quod est summa ratio), because by many ages it has been fined and refined by an infinite number of great and learned men, as Sir Edward Coke speaks; yet these fundamentals are always supposed to make part of this legal reason: so that we may apply to these fundamentals what the translator of the Mirrour of Justices says of the common law; That when the laws of God and reason came into England, then came we.'

"These principles might be ascertained and established by an historical investigation; whence it would appear, that the Constitution of England is very different from what some would have us believe; that a king of England is one that rules by law ;-and that the laws of England are directed to the public interest, encouraged and secured by these fundamentals.”

In a few of the last preceding pages has been exhibited the peculiar character of the English Constitution, derived from the spirit

Extracted from an Inquiry into the Nature of Subscription to the 39 Articles; Part III. 2d edition, printed for Johnson in 1792.