However it now appears unquestionable, that fince the constitution excludes the bishops from judging and voting in no cafe whatever, it takes no more notice of their voluntary perfonal absence or diffent, than of the dif cretionary feceffion or, protest of any temporal peer; for the vote of the majority binds the diffenters and protefters as fully, as if they had affented to the question of debate, The right of entering a proteft is a special 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, feveral peereffes were fummoned to parliament, as Mary countess of Arundell, and nine others at the fame 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 confent of the nobles and abbeffes, who fubfcribed it; for many abbeffes were formerly summoned to parliament, (Gurdon, vol. i. p. 202.) In thofe ancient times the lords were not obliged to make barons only their proxies in the houfe of lords, as the custom now is, but the bishops and parliamentary abbots ufually gave their letters of proxy to prebendaries, parfons, canonifts, and fuch like, as appear in the Journals of the house of lords; but fince the first year of Henry VIII, there appear in the Journals no proxies, but fuch as were barons of parlia

ment.

The first act of queen Elizabeth, to restore to the crown the ancient jurifdiction over the eftate ecclefiaftical and fpiritual, and for abolish ing 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 Spiritual 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 gun powder treason, yet it is particularly recited to have been paffed at the fpecial 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

The advantage of the house of peers in our conftitution.

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

in

The late judge Blackifton with great propriety fets forth the utility, expediency, and advantage of an hereditary houfe of peers our constitution. *"A body of nobility is also more peculiarly neceffary in our mixed and compounded conftitution, 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 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 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 state to be precarious. The nobility therefore are the pillars, which are reared from

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 laft century the commons had determined to extirpate monarchy, they also voted the house of lords to be useless and dangerous. And fince titles of nobility are thus expedient in the ftate, it is also expedient, that their owners fhould form an independent and separate branch of the legiflature. If they were confounded with the mafs of the people, and like them had only a vote 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 fhould have a diftinct affembly, diftinct deliberations, and distinct 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 use, when there is no parliament in being. Accordingly

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

Reasons why
of the peers ale

the privileges

hereditary.

The ufe, prerogatives, and du

ties of the peers.

The house of

peers the fu

judicature.

Bracton fpeaking of the nobility of his time fays, they might properly be called 'conJules, 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 reasons 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 counfel 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 causes, 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 constituent members of that court, and the rest of its jurisdiction was dealt out to other tribunals, over which the great officers, who accompanied thofe barons were respectively delegated to provide, it followed,