« PreviousContinue »
these words; Et eft affenfu & accord. &c.
shall do contrary to the laws of the land, if the like case happen, which God forbid. 4 Edward III. num. 6. This proviso and agreement was made by the lords and commons, and it had these respects: First, to fatisfy the commons, that the lords by these judgınents intended not to alter the course of the common-law, and therefore they difclaimed, that they had power to do this, and confess it was contrary to the law of the land.
“ Secondly, To preserve their own right in judging on to judge none but the peers in case of life death of their and death. For then the king's steward is to high steward fit in the chancellor's place, and the lords are chancellor and
peers, the lord
the peers are to be tryers and judges ; and so by judging both tryers and judges. 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 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 i R. II. in the case of
Alice Peirce. Here ariseth a question : The fpiritual “ Whether the spiritual lords de jure, are lords triable by their peers in
triable by their peers, or no ? parliament.
« 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 oppreslive 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 are, 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.
Their incor. ruptibility in judging
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 manifested a spirit of equity no wise inferior to that, which they have shewn in their legiflative capacity. They have, in the discharge of that function (which of all others is so 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 Nander.
“ 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, of a peer really guilty of
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 Security againft
the insolence the legislature, I beg leave to submit to my and oppreffions
of the nobility, readers one obvious reflection upon cellent constitution 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 intrinsic security to the people against incroachments, insolence, 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; some honourable appellations and distinctions of their immediate children in rank and preceden