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certainly have been instances, in which persons have been summoned by writ to parliament, whose heirs were not thereby enobled *. However since there have been two regular and distinct houses of parliament, it appears clear, that every writ of fummons actually enobles the person, to whom it is issued, at least if he ever take his feat in consequence of the summons. 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 became more equally divided, so the democratical part of the community acquired a proportionate consequence in the state, and it became necessary to, abridge and weaken the prerogatives and powers of the aristocratical part of it. The present privileges The democra of peerage bear no proportion to the pre- the state in

creased, and the rogatives, rights, and powers of the old Eng- aristocratical lish barons; but besides allowing for the dif-. ference 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

diminished.

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

duties

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

The aristocratical part or branch of our legislature consists at present of the fpiritual and temporal lords. The spiritual lords * « consist of two archbishops and twentyfour bishops; and, at the diffolution of monasteries by Henry VIII. consisted likewise of twenty-six mitred abbots, and two priors; a very considerable 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 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,

Spiritual lords of parliament.

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

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which subjected their estates to all civil
charges and assessments, from which they
were before exempt; and, in right of suce.
cession to those baronies, which were unalien-
able from their respective dignities, the bi-
shops and abbots obtained their seats in the
house of lords. But though these lords fpi- Lords Spiritual
ritual are in the eye of the law a distinct one estate.
estate from the lords temporal, and are so
distinguished in most of our acts of parlia-
ment, yet in practice they are usually blended
together under the one name of the lords;
they intermix in their votes, and the ma-
jority of such intermixture binds both estates.
And from this want of a separate assembly and
separate negative of the prelates, some writers
have argued very cogently, that the lords spi-
ritual and temporal are now in reality only one
estate ; which is unquestionably true in every
effectual sense, though the ancient distinction
between them still nominally continues. For
if a bill should pass their house, there is no
doubt of its validity, though every lord spi-
ritual should vote against it; of which Sel-
den and Sir Edward Coke give many in-
stances; as, on the other hand, I presume it
would be equally good, if the lords tem-
poral present were inferior to the bishops in

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number,

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

It was in the last century very warmly debated, whether the bishops could retain their seats, and judge and vote in capital cafes and questions. Without however going into the different arguments and reasons for or against the point, I shall hope that the very forms of such capital acts of parliament will fufficiently prove, that the con

ftitution fupposes the bishops present, and as of the bishops' active in passing these as any other bills. I right to vote in eapital cases.

need not say, that the right, by which the bishops fit in parliament, is purely a civil not a spiritual 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 affist at or judge any criminal cause, 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 possible; 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 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 ecclesiastical ordinances acquire a coercive or binding force, only in as much as they are countenanced or adopted by the civil legislature, than the two following protestations, which I shall quote from the rolls of parliament. † “ The first was made by the spiritual lords, (11 Ric. II. A. D. 1387) when they refused to assist at the trial of divers lords and others being appealed of high treason and other misdemeanors, saving 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 so fub. mitted himself to the king's pleasure ; whereupon the king had undertaken to pass judgment upon the matter contained in the bill

council

• Selden's Judicature in Parliament, p. 151.

+ Vid. also the Rights of the Bishops to judge in all capital cases, printed in 1630.

for

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