Spiritual lords of parliament.

duties and powers of a modern peer, and member of the houfe of commons, and confequently concentered the feparate privileges of each in the fame individual. For like peers they reprefented themselves, and like commoners they reprefented all those of the divifion or district, the command, lordship, or property of which gave them their feat in the council. Thus may we obferve how our admirable conftitution has at all times been attentive to prune the luxuriances, and prevent the decay of each of its branches.

The aristocratical part or branch of our legiflature confifts at prefent of the fpiritual and temporal lords. The spiritual lords *"confift of two archbishops and twentyfour bishops; and, at the diffolution of monafteries by Henry VIII. confifted likewise of twenty-fix mitred abbots, and two priors; a very confiderable body, and in those times equal in number to the temporal nobility. All these hold, or are fuppofed to hold, certain ancient baronies under the king; for William the Conqueror thought proper to change the fpiritual tenure of frankalmoign, or free alms, under which the bishops held their lands during the Saxon government, into the feodal or Norman tenure by barony,

Lords fpiritual and temporal

which fubjected their eftates to all civil charges and affeffments, from which they were before exempt; and, in right of fucceffion to thofe baronies, which were unalien. able from their refpective dignities, the bifhops and abbots obtained their feats in the house of lords. But though thefe lords fpiritual are in the eye of the law a diftinct one estate, eftate from the lords temporal, and are fo distinguished in most of our acts of parlia ment, yet in practice they are ufually blended together under the one name of the lords; they intermix in their votes, and the majority of fuch intermixture binds both eftates. And from this want of a separate affembly and separate negative of the prelates, fome writers have argued very cogently, that the lords fpiritual and temporal are now in reality only one eftate; which is unquestionably true in every effectual fenfe, though the ancient distinction between them still nominally continues. For if a bill fhould pass their houfe, there is no doubt of its validity, though every lord fpiritual should vote against it; of which Selden and Sir Edward Coke give many inftances; as, on the other hand, I prefume it would be equally good, if the lords temporal present were inferior to the bifhops in number,

Bb 2

Of the bifhops

right to vote in capital cafes.

number, and every one of those temporal lords gave his vote to reject the bill, though this Sir Edward Coke feems.to doubt of."

It was in the last century very warmly debated, whether the bishops could retain their feats, and judge and vote in capital cafes and questions. Without however going into the different arguments and reasons for or against the point, I fhall hope that the very forms of fuch capital acts of parliament will fufficiently prove, that the conftitution supposes the bifhops prefent, and as active in paffing these or any other bills. I need not say, that the right, by which the bifhops fit in parliament, is purely a civil not a fpiritual right; and if they have at one time been so attentive to their spiritual facerdotal character, as to hold themselves bound by the canons of the church not to affift at or judge any criminal caufe, we find them at another equally activewith the temporal lords in maintaining in their civil capacity, as lords of parliament, their right or rather duty to judge caufes of the highest criminal nature poffible; for it is equally a matter of blood, whether a man's life be taken away by attainder or by impeachment. And by the canon law, and by an ordinance made at the

council

council at Westminster, in 21 Hen. II. * all clergymen were forbidden agitare judicium fanguinis: now there cannot be a more convincing argument, that the canon law, and other ecclefiaftical ordinances acquire a coercive or binding force, only in as much as they are countenanced or adopted by the civil legislature, than the two following protestations, which I fhall quote from the rolls of parliament. "The first was made by t the spiritual lords, (11 Ric. II. A. D. 1387) when they refused to affist at the trial of divers' lords and others being appealed of high treafon and other mifdemeanors, faving their right (as peers of Parliament) nevertheless to be prefent in parliament. The other was (in the 28th of Hen. VI. A. D, 1449.) when William de la Pool, Earl Marshall, and Duke of Suffolk, was impeached by the commons of high treason, and he required of the king, that he might be especially accufed, and be heard to anfwer, and fo fubmitted himself to the king's pleasure; whereupon the king had undertaken to pass judg ment upon the matter contained in the bill

Selden's Judicature in Parliament, p. 151.

Vid. alfo the Rights of the Bishops to judge in papital cafes, printed in 1680.

The bishops claim their

fent in all par

liaments, and on all occafions,

for high treafon out of parliament folely and by himself in an extra-judicial manner.

*In the name of God, amen; Whereas right to be pre- by the law and cuftom of the kingdom of England, it doth belong to the archbishop of Canterbury for the time being, and the other his fuffragans, brethren, and fellow bifhops, abbots, and priors, and all their other prelates whatsoever, who hold by barony of our lord the king, to be perfonally prefent in all parliaments whatfoever, as peers of the kingdom, and there to confult, treat of, ordain, conftitute, and determine of the af fairs of the kingdom, and other things there ufually treated of, together with the reft of the peers of the faid kingdom, and others having intereft there, and to do all things, which there may happen to be done. In all and every of which, we William archbishop of Canterbury, primate of England, and legate of the apoftolic fee, do protest for ourselves, our fuffragans, and fellow bishops, and all the abbots, priors, and prelates aforefaid, and every one of them doth protest by themselves, or by his proxy, if fo he was prefent, both publicly and exprefsly, that we

*Rot. Parl. 11 Ric. 2.

intend,