the peers are both tryers and judges.

The fpiritual lords triable by their peers in parliament.

to be tryers and judges; and fo by judging others, than their peers defcended below their degrees, for none but peers are so to be tried and judged. It is otherwise in cafes of mifdemeanors; 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 1 R. II. in the case of Alice Peirce. Here arifeth a question:

"Whether the spiritual lords de jure, are triable by their peers, or no?

"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 fo tried, or no? To me it feems 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 bifhops are peers in parliament. The bishops name themfelves peers of the land; and the chancellor to the king, nd the act ftiles them peers of the land in parliament.

"There be divers precedents alfo of the

trial of bishops by their peers in parliament, as well for capital offences as misdemeanors, whereof they have been accufed in parlia

ment."

I cannot better finish this fubject of the

peers, than by citing the honourable teftimony 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 alfo conftantly 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 conftantly agreed to every just proposal, that has been made to them on that fubject by the commons; and indeed if we confider the numerous and oppressive privileges claimed by the nobles in most other countries, and the vehement fpirit, with which they are commonly afferted, we shall think it no fmall praise to the body of the nobility in England (and alfo to the nature of that government, of which they make a part) that it has been by their free confent, that their privileges have been confined to what they now are, that is to fay, to no more in general, than what is neceffary to the accom

* De Lolme on the Conf. of England, p. 373.

plishment

The justice and houfe of peers.

equity of the

Their incorruptibility in judging.

plishment of the end, and conftitutional defign of that house.

"In the exercise of their judicial authority with regard to civil matters, the lords have manifefted a spirit of equity no wife inferior to that, which they have fhewn in their legiflative capacity. They have, in the discharge of that function (which of all others is fo liable to create temptations) fhewn an uncorruptness really fuperior to what any judicial affembly in any other nation can boast. Nor do I think, that I run any risk of being contradicted, when I fay that the conduct of the house of lords, in their civil judicial capacity, has conftantly been fuch as has kept them above the reach of even fufpicion or flander.

"Even that privilege, which they enjoy, of exclufively trying their own members in case of any accufation, that may affect their life (a privilege which we might at first fight think repugnant to the idea of a regular government, and even alarning to the reft of the people) has conftantly been made use of by the lords to do justice to their fellow subjects; and if we caft our eyes either on the collection of the ftate trials, or on the history of England, we fhall find very few examples, if any, of a peer really guilty of

the

the offence laid to his charge, that has derived any advantage from his not being tried by a jury of commoners."

Before I enter upon the third branch of the legislature, I beg leave to fubmit to my readers one obvious reflection upon the excellent conftitution of the aristocratical power or eftate in our government, which besides all the active and paffive checks, which it com→ mands upon the two other branches of the legiflature, provides alfo a natural and intrinfic fecurity to the people against incroachments, infolence, and oppreffions, but too frequently the fatal effects of fuperiority and preeminence of rank in other countries. By whatever privileges or prerogatives the peers are still diftinguished from or elevated above the people or commoners in this country, they are enjoyed folely and perfonally by the peers themselves, but do not, unless in fome very flight inftances, affect any part of their families*, who, though commonly called noble, yet in reality remain commoners, and are reprefented in parliament by the third estate of the kingdom. So the

* Such are the right of peereffes to be tried by the peers; fome honourable appellations and diftinctions of their immediate children in rank and precedency &c.

lords

!

Security againft and oppreffions

the infolence

of the nobility.

lords Spiritual, whofe 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 courfe of nature have generally spent the most active, spirited, and ambitious part of their lives as commoners, and moft frequently as members of the house of commons, and who at moft times have more than one of their family in the house of commons, whilft they enjoy their hereditary feats in the houfe of peers, are for thefe, as well as the more generous and elevated motives of patriotifm, fo congenial with their noble breasts, emphatically withholden from attempting any encroachments or oppreffions, or even feeling a fense of contempt, and much lefs of oppreffive infolence, towards the third and moft numerous eftate of the community.

CHAP.