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, rathar 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.
[p] Sulla—tribunis plebis sua lege injuriae faciendae potestatem ademit, auxilii ferendi reliquit. de LL. 3. 9.
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[]: 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[], 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].
[q] Seld. tit. hon. 2. 5. 27.
[r] Co. Litt. 97.
[] Gilb. Hist. Exch. 55. Spelm. W.I. 291.
[t] Glanv. 7. 1. Co. Litt. 97. Seld. tit. hon. 2. 5. 19.
[] Baronage. p. 1. c. 6.
[w] 2 Inst. 585, 6, 7.