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The constitu. However it now appears unquestionable, tion neither re

snor takes that since the constitution excludes the bishops notice of the abfence of the bi- from judging and voting in no case whatever, shops.

it takes no more notice of their voluntary personal absence or dissent, than of the difcretionary secession or, protest of any temporal peer; for the vote of the majority binds the difsenters and protesters as fully, as if

they had assented to the question of debate. Right of pro

The right of entering a protest is a special testing, and of voting by privilege of the house of lords, as is that of

voting by proxy * ; but it weakens not the voice of the majority in any shape or degree whatever.


• So late even as the 35 Edward III. A. D. 1360, several peeresses were fummoned to parliament, as Mary countess of Arundell, and nine others at the same time; they were called ad colloquium & tractatum, by their proxies, a privilege peculiar to the peerage, to appear and act by proxy. King Edgar's charter to the Abbey : of Crowland, A. D. 961, was with the consent of the nobles and abbesses, who subscribed it; for many abbesses were formerly summoned to parliament, (Gurdon, vol. i. p. 202.) In those ancient times the lords were not obliged to make barons only their proxies in the house of lords, as the custom now is, but the bishops and parliamentary abbots usually gave their letters of proxy to prebendaries, parsons, canonists, and such like, as appear in the Journals of the house of lords ; but since the first year of Henry VIII, there appear in the Journals no proxies, but such as were barons of parlia. ment.


The first act of queen Elizabeth, to restore the consent of to the crown the ancient jurisdiction over the tual included* eftate ecclefaftical and spiritual, and for abolish ender mentioned ing all foreign powers repugnant to the fame is ed in the act. made at the special request of her faithful and obedient subjects the lords fpiritual and temporal. The next act, For the uniformity of common, prayer and service in the church, and administration of the facraments, is enacted by the authority of this present parliament, and with the affent of the lords and commons, without once mentioning the lords fpiritual through the whole act. Now although each fpiritual lord of parliament had diffented from this act, and protested against it in the most folemn manner, yet their consent to it is as much involved and included in the act, as if they had consented, and had been especially mentioned and described, as they were in the first act. And on the other fide, although no bishop may have been present, or had voted for the passing of the Act * for the attainder of those, who were concerned in the gunpowder treason, yet it is particularly recited to have been passed at the special request of his majesty's most loyal, faithful, and true bearted fubjeEts, the Lords Spiritual and temporal, and

* Jac. I. c. ii.


commons ;

The advar of the house of peers in our constitution..

commons; which clearly shews, that as the constitution does not require their absence from any parliamentary proceeding, whether capital or other, so are they always supposed, or rather enjoined, to assist and vote like other peers of parliament, as their consent, even in such direct capital acts, is expressed to be included. : The late judge Blackiston with great propriety sets forth the utility, expediency, and advantage of an hereditary house of peers in our constitution. *“ A body of nobility is also more peculiarly necessary in our mixed and compounded constitution, in order to support the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. It creates and preserves that gradual scale of dignity, which proceeds from the peasant to the prince; rifing like a pyramid from a broad foundation, and diminishing to a point as it rises. It is this ascending and contracting proportion, that adds stability 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


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among the people more immediately to fupport the throne; and if that falls, they must also be buried under its ruins. Accordingly when in the last century, the commons haď determined to extirpate monarchy, they also voted the house of lords to be useless and dangerous. And since titles of nobility are thus expedient in the state, it is also expedient, that their owners should form an inde.. pendent and separate branch of the legislature. If they were confounded with the mass Reasons why of the people, and like them had only, a vote of the peers are in electing representatives, their privileges would soon be borne down, and overwhelmed by the popular torrent, which would effectually level all distinctions. It is therefore highly necessary, that the body of nobles should have a distinct assembly, distinct deliberations, and distinct powers from the commons.”

*“ The peers of the realm are by their The use, prerobirth hereditary counsellors of the crown, and satives, and dumay 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 use, when there is no parliament in being. Accordingly

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Bracton speaking of the nobility of his time says, they might properly be called confules, a consulendo; reges enim tales fibi associant ad consulendum.' And in our law books it is laid down, that peers are created for two reasons; 1. Ad confulendum ; 2. Ad defendendum regem : for which reasons the law gives them certain great and high privileges; such as freedom from arrests, &c. even when no parliament is sitting; because the law intends, that they are always assisting the king with their counsel for the commonwealth; or keeping the realm in safety by their prowess

and valour." The house of * The house of peers is the supreme court preme court of of judicature in the kingdom, having at pre

sent no original jurisdiction over causes, but only upon appeals and writs of error, to rectify any injustice or mistake of the law committed by the courts below. To this authority they succeeded of course, upon the diffolution of the aula regia. For, as the barons of parliament were constituent members of that court, and the rest of its jurisdiction was dealt out to other tribunals, over which the great officers, who accompanied those barons were respectively delegated to provide, it followed,

peers the fu


* Black. Com. b. iii. C. 4.


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