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the peers are both tryers and judges.
The spiritual lords triable by their peers in parliament.
peers, or no?
to be tryers and judges; and so by judging others, than their peers descended below their degrees, for none but peers are so to be tried and judged. It is otherwise in cases of misdemeanors; then the chancellor keeps his place, and the lords are only judges and not tryers; they may command a jury to be impannelled.
« For trial of the facts, if the truth appear not by the parties' answer, the testimonies are exhibited as i R. II. in the case of Alice Peirce. Here ariseth a question :
“ Whether the Spiritual lords de jure, are . triable by their
« Out of parliament they are not to be tried by the peers; but the doubt is, whether in time of parliament, they are to be so tried, or no? To me it seems they may, if the matter be moved against them in time of parliament. For as it is in the parliament at York, 15 Ed. II. in the act for the repeal of the Spencers banishment, they are peers in parliament. Note, that the petition for the repeal faith, that the bishops are peers in parliament. The bishops name themselves peers
of the land ; and the chancellor to the king, nd the act stiles them peers
of the land in parliament. “ There be divers precedents also of the
trial of bishops by their peers in parliament, as well for capital offences as misdemeanors, whereof they have been accused in parliament.”
I cannot better finish this subject of the The justice and peers, than by citing the honourable testi- house of peers. mony made of their justice and equity, by a very judicious modern writer. * “ If we turn our views towards the house of lords, we shall find, that they have also constantly taken care, that their peculiar privileges should not prove impediments to the common juftice, which is due to the rest of the people. They have constantly agreed to every just proposal, that has been made to them on that subject by the commons; and indeed if we consider the numerous and oppressive privileges claimed by the nobles in most other countries, and the vehement spirit, with which they are commonly asserted, we shall think it no small praise to the body of the nobility in England (and also to the nature of that government, of which they make a part) that it has been by their free consent, that their privileges have been confined to what they now ares that is to say, to no more in general, than what is necessary to the accom
De Lolme on the Conf. of England, p. 373.
plishment of the end, and constitutional de. sign of that house.
« In the exercise of their judicial authority with regard to civil matters, the lords have manifelted a spirit of equity no wise inferior to that, which they have shewn in their legislative capacity. They have, in the discharge of that function (which of all others is fo liable to create temptations) shewn an uncorruptness really superior to what any judicial assembly in any other nation can boast. Nor do I think, that I run any risk of being contradicted, when I say that the conduct of the house of lords, in their civil judicial capacity, has constantly been such as has kept them above the reach of even suspicion or flander.
“ Even that privilege, which they enjoy, of exclusively trying their own members in case of any accusation, that may affect their life (a privilege which we might at first sight think repugnant to the idea of a regular government, and even alarning to the rest of the people) has constantly been made use of by the lords to do justice to their fellow subjects; and if we cast our eyes either on the collection of the state trials, or on the history of England, we shall find very few examples, if any,
the offence laid to his charge, that has de rived any advantage from his not being tried by a jury of commoners.'
Before I enter upon the third branch of Security against the legislature, I beg leave to submit to my and oppreffions
of the nobility. readers one obvious reflection upon the excellent conftitution of the aristocratical power or estate in our government, which besides all the active and passive checks, which it commands upon the two other branches of the legislature, provides also a natural and ins trinsic fecurity to the people against in. croachments, infolence, and oppressions, but too frequently the fatal effects of superiority and preeminence of rank in other countries. By whatever privileges or prerogatives the peers are still distinguished from or elevated above the people or commoners in this country, they are enjoyed solely and personally by the peers themselves, but do not, unless in some very night instances, affect any part of their families *, who, though commonly called noble, yet in reality remain commoners, and are represented in parliament by the third estate of the kingdom. So the
* Such are the right of peeresses to be tried by the peers; fome honourable appellations and distinctions of their immediate children in rank and preceden
lords spiritual, whose dignities are not hereditary, can have no temptation nor inducement to oppress, vilify, or injure that estate, of which their own family is and must for ever remain a part.
The temporal lords, who in the ordinary course of nature have generally spent the most active, spirited, and ambitious part of their lives as commoners, and most frequently as members of the house of commons, and who at most times have more than one of their family in the house of commons, whilst they enjoy their hereditary seats in the house of peers, are for these, as well as the more generous and elevated motives of patriotism, so congenial with their noble breasts, emphatically withholden from attempting any encroachments or oppressions, or even feeling a sense of contempt, and much less of oppressive insolence, towards the third and most numerous estate of the community.