of Bishop Warburton) as guardians of spiritualities; which indeed is not a phrase applied to them; but, though not now at least peers of the realm, yet, as holding baronies, they are lords of parliament.

This House of Lords, in a distinct house now from that of the commons, constitutes the hereditary branch of the legislature, and is the hereditary council of the king: it possesses also a judicial power, and its utility is said to consist in its being a senate, or council, to balance the two extremes of king and people. Some such assembly has been reckoned necessary even to a republic, and been proclaimed the Corinthian capital of monarchy and aristocracy.

The House of Lords having now a distinct house, as a conse quence, possesses distinct privileges, and distinct powers. A member claims audience of the sovereign: in his judicial capacity, he gives his verdict on his honor, not by oath; and he is tried by his peers, the lords temporal. No law can be passed without its concurrence: it can stop a bill after it has passed three times through the other house: it can also originate bills as well as the commons; and all bills proceed through three stages in this house, no less than in the House of Commons, before they can receive the royal assent.

And so much for the second estate.

The third estate of the high court of parliament are the represen❤ tatives so called, of the people: I say so called; for, as the House of Commons had not, strictly speaking, its rise at first in a spirit of liberty emanating from the people, so has it never been, not even in the purest times of the Saxons, so constructed, as to provide for a general sympathy, on any substantial scientific system of representation. We may indeed admit, that the greater baron possessed some sympathies with his dependants, in the wittenagemot, and might consult their interests: and this we will call a virtual representation: but the warmest panegyrist must proceed no further: nor has there ever been in any house of commons a greater aggregate of perfection than could be crowded into a virtual representation.

When the greater barons were allowed to alienate their lands, those holding of them by knight's-fee, had a right to attend his court, as well as the great assembly of the nation, to which they were sometimes summoned. But they appear to have been usually summoned there for the same purpose as the clergy were summoned to convocation, (an institution entirely civil,) to give their money; and this, on account of their numbers, they did by representation; these formed what were afterwards called knights of the shire, who sat two for each county. Knight, or cnight means, according to its ancient sense, servant, and supposes a superior to whom service is rendered :

"Ful worthy was he in his Lordes warre."
CHAUCER.

In the 23d year of Edward I. boroughs and cities were directed to send deputies to the great assembly of the nation, in like manner, and for the same purpose, viz. two from each place, and for the purpose of taxation. Taxation appears to have been the first claim, and taxation naturally generated legislation.

Bishop Hurd, in the person of Old Sir John Maynard, well observes: "This then being the peculiar prerogative of the feudal police, I think we may say with great truth, not that the House of Commons violated the constitution; but, on the contrary, that the constitution itself demanded, or rather generated, the House of Commons.

"So that I cannot by any means commend the zeal, which some have shown in seeking the origin of this House in the British of even Saxon aunals. Their aim was, to serve the cause of liberty; but it must be owned at the expense of truth, and, as we now perceive, without the least necessity."

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The royal boroughs were called by Henry VII. to serve the pose of royal influence, though ostensibly, as favorable to commerce and civil liberty.

Thus, as in the natural world, unforeseen contingencies form unexpected assemblages, by bringing into union things which might seem at variance before; so is it in the moral and political world: so was it here. This assembly, the House of Commons, was originally formed by accidental circumstances, and directed by a spirit of self-interest, not of philosophy, nor of liberty. To deliberate or legislate was not its original designation, nor its regular preconcerted plan. It was the necessary result of local advantage, of civil connection, and natural capabilities.

But however these matters are, this we avow, that as our British ancestors had their councils, so had our Saxon their wittenagemots, and that we now possess a House of Commons, our third estate, a grand provision, or public reservoir, in the event, and avowedly, since

And redress of grievances: Hobbes's statement of this subject seems correct. Behemoth, part 2d, p. 530, in vol. ii, of Baron Maseres' Historical Tracts. The Baron, as Hobbes's editor and commentator, adds, " It appears from the most accurate inquiries into the subject, that the knights, citizens and burgesses of the House of Commons, were not constantly and regularly summoned to parliament, till the 23d year of the reign of King Edward the First, in the year of Christ 1295." This therefore is a memorable epoch, on its own account, but more as leading to something more significant and important. In the first writ of summons on record, 49 Henry III., the commons, however, were certainly cited. In the 23d of Edward III., cum aliis incolis regm means the commons; and at that time the King obtained a great subsidy. See Elsynge on the Manner of Holding Parliaments in England, c. 6. And Dugdale's Perfect Copy of the Summons of the Nobility to the Great Councils, &c. p. 1, 2, 3.

? Political Dialogues, Dial. 5.

brought into use, for the liberties of the people'; subsequent, indeed, in its existence, to Magna Charta, but appealing now to principles antecedent to the fundamental principles of English liberty; and, as Judge Blackstone speaks, "it indispensably appears, that parliaments, or general councils, are coeval with the kingdom itself." Of these principles the utmost strength was tried and called forth throughout a most inquisitive, struggling period, that I mean, to which the great work, Rushworth's Historical Collections, relates. They have received the clearest illustration, and the most highly sanctioned authority, from the Petition of Rights under Charles I., from the Bill of Rights under Charles II., and Declaration of Rights at the Revolution, &c.

"Sic fortis Etruria crevit ; Scilicet et rerum facta est pulcherrima Roma."

VIRG. Georg.

The House of Commons, then, being now a distinct house, possesses, like the two other branches of the legislature, distinct powers and privileges. It exercises, in common with them, an entire negative. It can originate bills, which pass through three stages in the House of Commons, as well as in the House of Lords, before they can advance for the royal consent, and become laws. It claims, the common right, indeed, of every Englishman,freedom of speech; the privilege of self-protection from interruption and contempt; and, for a limited time, in civil suits, exemption from arrests and imprisonment. By the celebrated statute of Edw. III, De Tallagio non concedendo, and others, more particularly a clause in the Petition of Rights, the king is debarred taking any talliage, benevolence, loan or tax, without consent of parliament. Here the commons are paramount, claiming and exercising the sole power of proposing and proportioning the taxes; for as all money bills originate in the Commons-House, so they cannot be altered nor amended in the House of Lords. While, therefore, the legislative function of the House of Commons is reckoned its great strength, we may proclaim this peculiar transcendant exercise of the function, its balance (so it is accounted) against the weight of the other two parts of the constitution. And thus much for the three estates, as they are at present seen, of the high court of the British parliament, concerning which be it observed, that the two houses, considered as two persons, are not, as Hobbes expresses it, the king's subjects, but the three estates are joint sharers in the same legislature, composing, as it were, one firm in a great house; and therefore the reader will please to consider me as speaking of the constitution that now is; and to attend to this important distinction, that the English Constitution is not the creature of a period, an infant just VOL. XII. Pam. NO. XXIII.

M

come from the womb, but the body of a man, shaped and strengthening through a growth of years. And while preserving clearly this distinction, if he differs from some notions already alluded to on one hand, he may, perhaps, not take too implicitly what has been advanced on the other.

For it is proper to observe, that in speaking of the King, Lords, and Commons, as the three estates, I have differed a little from many writers; those, too, of great authority on constitutional questions; and, indeed, from the express language used in many of our statutes, where the Lords Spiritual and Temporal, and House of Commons, are spoken of distinctly as the three estates. But observe; Judge Blackstone himself admits, as he must, "that the spiritual lords intermix in their votes with the temporal, and consequently, that they are deprived now of the reality of a third estate." If, therefore, it is necessary, that we should still speak of the three estates, we must admit the king as one; and he has all the réquisites; distinct powers and privileges, an entire negative, and without his consent no law can pass, any more than without that of either of the two houses: nor is Judge Blackstone's own declaration, in one place, reconcileable to any other doctrine, nor, indeed, to his own language, in another.

"These," (King, Lords, and Commons,) he says, " are the constituent parts of a parliament; the King, the Lords Temporal and Spiritual, 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." What then does he mean when he says, cautiously indeed, "the power of the king consists in rejecting, rather than resolving ?" Is not consenting resolving ? Indeed, we must be permitted to add on this subject, that the same has taken place in this part of our constitution as in other parts, which have been formed not on any instantaneous expression of the public will, but by the silent progress of time, the insensible change of local manners, and accidental circumstances,-though forms continue when the substance is gone,-and the courtesy of parliament allows language to remain when there are no archetypes, or existing facts, to which it corresponds-when, in short, it has no foundation in truth; as where the bishops may be called peers, which in the modern sense, they are not; and where the king is called our Lord, the parliament, the king's parliament,—the laws, the king's law, all obsolete, feudal, barbarous language, suffered to exist, as Milton has well noticed, in his Defence of the People of England, by the mere courtesy, or in plain English, the absurd complaisance of parliament: " for forms and names," as Warburton well expresses it, "in acts of parliament, may continue when a constitution has undergone a change, not by violence, but by slow and insensible degrees."

As to the bishops, if they ever composed a third estate, in the more modern sense of the word, it was then when the archbishops, bishops, abbots, and conventual priors, the universæ personæ regni, not merely a score of bishops, attended parliament by virtue of their baronies, together with the other barons, that is, all such as held their baronies in capite, whose names and fees, or feuds, may be seen in Dooms-day Book; and the form and reason of whose first summons under William the Conqueror, (for it was he who changed the character of the clergy's property from frank-almoigne to ba-" ronial tenures,) may be read in Selden's Titles of Honour. But even at that period, as Archbishop Wake has shewn in his State of the Clergy and Church of England, "the exercise of their negative, otherwise than in ecclesiastical matters, is not so clearly handed down to us They were not, indeed, always summoned to attend; and where individuals of them happened not to hold in capite, instances may be found, (they may be seen in the same learned John Selden's Titles of Honour,) of their petitioning against attending the great council, and of the king's assent to their petition. With respect to civil matters, their consent was often not asked, their dissent was sometimes over-ruled; and, even in ecclesiastical concerns, their authority was superseded, when the king and temporal barons found their opinions or their wishes clashing with the public interests, or state policy. If, therefore, when the spiritual barons formed a greater body, and were of superior account, it does not appear that they properly possessed a negative, it must have been by mere courtesy of parliament that they have been considered one of the estates.

If by the word estate was meant merely a distinct order in society, the phrase might have been received as constitutional: but as it means more,-a branch, a part, even one-third of a legislature, with distinct powers and privileges, with a negative on parliamentary proceedings, it seems now incorrect. For the spiritual lords do not sit in the upper house as bishops, nor in any sense of the word, as representatives of the clergy. It does not appear, indeed, after all Bishop Warburton has said, that they are even peers of the realm; for there still remains a standing order of the house against the peerage of the bishops: so that the opinion of some able lawyers seems to be the truth,-that the bishops sit now, according to the progress of our constitution, by mere custom and courtesy. As to their being now a third estate of parliament, even Warburton, a writer by no means forward to make hasty concessions against his own order, is obliged to give up that.

Now, as the object of these Essays is not courtesy, but, to take