The first act of queen Elizabeth, to restore to the crown the ancient jurifdiction over the eftate ecclefiaftical and fpiritual, and for abolishing all foreign powers repugnant to the fame is made at the special request of her faithful and obedient fubjects the lords fpiritual and temporal. The next act, For the uniformity of common prayer and fervice in the church, and adminiftration of the facraments, is enacted by the authority of this prefent parliament, and with the affent of the lords and commons, without once mentioning the lords fpiritual through the whole act. Now although each spiritual lord of parliament had diffented from this act, and protested against it in the most folemn manner, yet their confent to it is as much involved and included in the act, as if they had confented, and had been especially mentioned and defcribed, as they were in the first act. And on the other fide, although no bishop may have been prefent, or had voted for the paffing of the Act* for the attainder of thofe, who were concerned in the gunpowder treafon, yet it is particularly recited to have been paffed at the special request of his majesty's most loyal, faithful, and true hearted fubjects, the lords fpiritual and temporal, and

* Jac. I. c. ii.

The confent of the lords fpiritual included

equally whe

ther mentioned ed in the act.

or not mention

of the houfe of peers in our conftitution.

commons; which clearly fhews, that as the constitution does not require their absence from any parliamentary proceeding, whether capital or other, fo are they always fuppofed,. or rather enjoined, to affift and vote like other peers of parliament, as their confent, even in fuch direct capital acts, is expreffed to be included.

The late judge Blackiston with great propriety fets forth the utility, expediency, and advantage of an hereditary houfe of

peers in The advantage our conftitution. * "A body of nobility is also more peculiarly neceffary in our mixed and compounded constitution, in order to fupport the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. It creates and preferves that gradual fcale of dignity, which proceeds from the peafant to the prince; rifing like a pyramid from a broad foundation, and diminishing to a point as it rifes. It is this afcending and contracting proportion, that adds ftability to any government; for when the departure is fudden from one extreme to another, we may pronounce that ftate to be precarious. The nobility therefore are the pillars, which are reared from

Black, Com. b. i. c. z.

among

among the people more immediately to fup port the throne; and if that falls, they must alfo be buried under its ruins. Accordingly when in the laft century the commons had determined to extirpate monarchy, they alfo voted the houfe of lords to be ufelefs and dangerous. And fince titles of nobility are thus expedient in the state, it is also expedient, that their owners fhould form an independent and separate branch of the legiflature. If they were confounded with the mafs Reafons why the privileges of the people, and like them had only a vote of the peers are in electing reprefentatives, their privileges would foon be borne down, and overwhelmed by the popular torrent, which would effectually level all diftinctions. It is therefore highly neceffary, that the body of nobles should have a diftinct affembly, diftinct deliberations, and diftinct powers from the commons."

«The peers of the realm are by their birth hereditary counsellors of the crown, and may be called together by the king to impart their advice in all matters of importance to the realm, either in time of parliament, or, which hath been their principal ufe, when there is no parliament in being. Accordingly

Black. Com. b. i. c. 5.

hereditary.

The ufe, prerogatives, and du

ties of the peers.

The house of

peers the fu

judicature.

Bracton speaking of the nobility of his time fays, they might properly be called 'confules, a confulendo; reges enim tales fibi affociant ad confulendum.' And in our law books it is laid down, that peers are created for two reafons; 1. Ad confulendum; 2. Ad defendendum regem: for which reafons the law gives them certain great and high privileges; fuch as freedom from arrefts, &c. even when no parliament is fitting; because the law intends, that they are always affifting the king with their counsel for the commonwealth; or keeping the realm in fafety by their prowess and valour."

*The house of peers is the fupreme court preme court of of judicature in the kingdom, having at prefent no original jurisdiction over caufes, but only upon appeals and writs of error, to rectify any injuftice or mistake of the law committed by the courts below. To this authority they fucceeded of course, upon the diffolution of the aula regia. For, as the barons of parliament were conftituent members of that court, and the reft of its jurifdiction was dealt out to other tribunals, over which the great officers, who accompanied those barons were refpectively delegated to provide, it followed,

• Black. Com. b. iii. c. 4.

that

that the right of receiving appeals, and superintending all other jurisdictions, still remained in that noble affembly, from which every other great court was derived. They are therefore in all caufes the last resort, from whofe judgment no farther appeal is permitted; but every fubordinate tribunal must conform to their determinations; the law repofing an entire confidence in the honour and confcience of the noble persons, who compose this important assembly, that they will make themselves mafters of thofe queftions, upon which they undertake to decide; fince upon their decifion all property must finally depend."

This jurifdiction of the house of peers is more clearly reprefented by Mr. Erskine, in his argument upon the rights of juries, in the cafe of the Dean of St. Afaph: "This popular judicature was not confined to particular diftricts, or to inferior fuits and mifdé

meanors, but pervaded the whole legal conftitution; for when the Conqueror, to increase the influence of his crown, erected that

* Page 128, 129. This ingenious and instructive argument will ferve as a correct conftitutional chart for juries to direct their courfe by in determining the fates of their countrymen, against any fuperior awe or collateral bias.