certainly have been instances, in which perfons have been fummoned by writ to parliament, whofe heirs were not thereby enobled *. However fince there have been two regular and distinct houfes of parliament, it appears clear, that every writ of fummons actually enobles the perfon, to whom it is iffued, at leaft if he ever take his feat in confequence of the fummons. But nobility is now generally conferred by letters patent of creation, concerning which there can be no doubt nor uncertainty.

As the landed property of the nation be came more equally divided, fo the democratical part of the community acquired a proportionate confequence in the state, and it became neceffary to, abridge and weaken the prerogatives and powers of the ariftocratical part of it. The prefent privileges of peerage bear no proportion to the prerogatives, rights, and powers of the old Eng

lish barons; but befides allowing for the difference of the customs, practices, and prejudices of former times, it must be admitted, that the ancient Witas or members of the great national convention involved both the

* Such were the cafes of Mothermer and Camois. Vid. Gurdon, vol. i. p. 188, against Ld. Coke's autho rity, (1 Inf. 9. 16.)

Spiritual lords of parliament.

duties and powers of a modern peer, and member of the house of commons, and confequently concentered the separate privileges of each in the fame individual. For like peers they reprefented themselves, and like commoners they reprefented all thofe of the divifion or district, the command, lordship, or property of which gave them their seat in the council. Thus may we observe how our admirable conftitution has at all times been attentive to prune the luxuriances, and prevent the decay of each of its branches.

.

The ariftocratical part or branch of our legiflature confifts at present of the Spiritual and temporal lords. The fpiritual lords * "confift of two archbishops and twentyfour bishops; and, at the diffolution of monafteries by Henry VIII. confifted likewife of twenty-fix mitred abbots, and two priors; a very confiderable body, and in those times. equal in number to the temporal nobility. All these hold, or are supposed to hold, certain ancient baronies under the king; for William the Conqueror thought proper to change the fpiritual 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,

* Black. Com. b. i. c. ii. fec. 2.

which fubjected their eftates to all civil charges and affeffments, from which they were before exempt; and, in right of fuc-. ceffion to those baronies, which were unalienable from their respective dignities, the bifhops and abbots obtained their feats in the house of lords. But though these lords fpiritual are in the eye of the law a diftinct eftate from the lords temporal, and are fo distinguished in most of our acts of parliament, yet in practice they are ufually blended together under the one name of the lords; they intermix in their votes, and the majority of fuch intermixture binds both estates. And from this want of a feparate affembly and feparate negative of the prelates, fome writers have argued very cogently, that the lords fpiritual and temporal are now in reality only one eftate; which is unquestionably true in every effectual sense, though the ancient distinction between them ftill nominally continues. For if a bill fhould pass their house, there is no doubt of its validity, though every lord spiritual should vote against it; of which Selden and Sir Edward Coke give many instances; as, on the other hand, I prefume it would be equally good, if the lords temporal prefent were inferior to the bishops in number,

B b 2

Lords Spiritual and temporal one estate.

right to vote in capital cafes.

number, and every one of those temporal lords gave his vote to reject the bills though this Sir Edward Coke feems to doubt of."

It was in the last century very warmly debated, whether the bishops could retain their feats, and judge and vote in capital cafes and questions. Without however going into the different arguments and reasons for or against the point, I fhall hope that the very forms of fuch capital acts of parliament will fufficiently prove, that the conftitution fuppofes the bifhops prefent, and as Of the bishops' active in paffing these as any other bills. I need not fay, that the right, by which the bishops fit in parliament, is purely a civil not a fpiritual right; and if they have at one time been fo attentive to their spiritual facerdotal character, as to hold themselves bound by the canons of the church not to affift at or judge any criminal caufe, we find them at another equally active with the temporal lords in maintaining in their civil capacity, as lords. of parliament, their right or rather duty to judge causes of the highest criminal nature poffible; for it is equally a matter of blood, whether a man's life be taken away by attainder or by impeachment. And by the canon law, and by an ordinance made at the

council

"

council at Westminster, in 21 Hen. II. * all clergymen were forbidden agitare judicium fanguinis: now there cannot be a more convincing argument, that the canon law, and other ecclefiaftical ordinances acquire a coercive or binding force, only in as much as they are countenanced or adopted by the civil legiflature, than the two following protestations, which I fhall quote from the rolls of parliament. "The firft was made by † the fpiritual lords, (11 Ric. II. A. D. 1387) when they refused to affist at the trial of divers lords and others being appealed of high treafon and other misdemeanors, faving their right (as peers of parliament) nevertheless to be present in parliament. The other was (in the 28th of Hen. VI. A. D. 1449.) when William de la Pool, Earl Marshall, and Duke of Suffolk, was impeached by the commons of high treason, and he required of the king, that he might be especially accufed, and be heard to answer, and fo fubmitted himself to the king's pleafure; whereupon the king had undertaken to pafs judgment upon the matter contained in the bill

* Selden's Judicature in Parliament, p. 151. + Vid. also the Rights of the Bishops to judge in all capital cafes, printed in 1630.