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emplified the doctrine of refiftance, when the executive magistrate endeavours to fubvert the constitution; have maintained the superiority of the laws above the king, by pronouncing his difpenfing power to be illegal; have indulged tender confciences with every religious liberty confiftent with the fafety of the state; have established triennial, fince turned into feptennial elections of members to ferve in parliament; have excluded certain officers from the house of commons; have reftrained the king's pardon from obftructing parliamentary impeachments; have imparted to all the lords an equal right of trying their fellow peers; have regulated trials for high treafon; have afforded our pofterity a hope, that corruption of blood may one day be abolished and forgotten; have (by the defire of his present majefty) fet bounds to the civil lift, and placed the administration of that revenue in hands, that are accountable to parliament; and have (by the like defire) made the judges completely independent of the king, his ministers, and his fucceffors. Yet, though these provifions have in appearance and nominally reduced the ftrength of the executive power to a much lower ebb than in the preceding period; if on the other hand we throw into the oppofite scale (what perhaps

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perhaps the immoderate reduction of the antient prerogative may have rendered in fome degree neceffary) the vaft acquifition of force arifing from the riot-act, and the annual expence of a standing army, and the vaft acquifition of perfonal attachment arifing from the magnitude of the national debt, and the manner of levying these yearly millions, that are appropriated to pay the interest, we shall find, that the crown has gradually and imperceptibly gained almost as much influence, as it has apparently loft in prerogative."

СНАР.

CHAP. XIII.

OF THE HOUSE OF PEERS.

F the two branches of the legislature

OF

I fhall first confider the house of lords, of which Mr. Acherly, in his theoretic plan or directions for the Britannic constitution, fpeaks thus: "That the house of lords, befides their part in the legislature, fhould be invested with, and fhould have, as interwoven in their conftitution, these special powers and privileges, viz. that their right of peerage should be deemed a special trust for the whole government; that they fhould have the dernier refort only in all matters of judicature, and the fole judicature of impeachments commenced and profecuted by the commons; and that it fhould be deemed an effential part of that judicature to take cognizances of thofe impeachments, and to hear and determine the matters therein charged; and the reafon he gave for investing them with the dernier refort was, left illegal judgments in inferior judicatures fhould creep in, and by little and little undermine and change

Acherly's Brit. Conf. Sec. xii. p. 45.

the

1

General end the houfe of peers.

and spirit of

All laws at all times made

of the great

men,

the fundamental form and principles of this constitution, of which there might be fome danger, in regard the judges would be neceffarily of the king's fole nomination and appointment.

"But in queftions of property, where the claims on either fide fhall not be mixed with equity, this ultimate judicature fhould (without additions to fupply defects) give the same judgments, as are prescribed by the strict and pofitive laws in being; because these laws fhould be every man's birthright, and should have no controuler, nor be controuled by any judicature (except only by that power, which is to be legislative, in which every man's confent is to be involved;) for if a law and rule of property be made, and a man's cafe shall not be determined by it, the law and the authority of the makers would be vain and nugatory."

In the earliest traces of any legislative acts with the advice paffed in this country, we conftantly find exprefs and unambiguous mention made of the advice and affiftance of the great men (magnates) barons, prelates, archbishops, bishops, vavafours, earls, (comites,) &c. under which names, appellations, and defcriptions fome monarchical and ariftocratical writers have indeed pretended to doubt, whether com

moners

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moners were included; but not even the
strongest republican writers have ever quef-
tioned or denied, that the first orders and
ranks of men, or the nobility and dignified
clergy were regularly fummoned to parlia-
ment. Notwithstanding the prefent rage
against the aristocratic part of our confti-
tution, it is curious to confult the opinion.
of a very determined and ftaunch republican
upon the fubject.
"An army," fays he,
may as well confift of foldiers without of
ficers, or of officers without foldiers, as a
commonwealth (especially such a one as is ca-
pable of greatness) confift of a people without
gentry, or of a gentry without a people.
There is fomething first in the making of a
commonwealth; then in the governing of it;
and last of all in the leading of its armies, which
(though there be great divines, great lawyers,
great men in all profeffions) seems to be pe-
culiar only to the genius of a gentleman."

In explaining and accounting for the ariftocratical part of our conftitution, it may be expected, that I fhould trace not only the fource and origin of this branch of the legislature, but also that I fhould delineate

.

James Harrington, the celebrated author of Oceana. Vid. Tolland's Anglia libera, p. 59.

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