Saturday, 16 July 2011

Blackstone on Parliament

From Blackstone's Commentaries:

"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. 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....

[The lords spiritual] consist of two arch-bishops, and twenty four bishops.... 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 lord spiritual should vote against it... 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....

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.... 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 fifteen 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....

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....

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....

The power and jurisdiction of parliament, says sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.... It hath 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: the being the place where that absolute depotice 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 course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of king Henry VIII and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call 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 probity, their fortitude, and their knowlege....

So long therefore as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control."