once undoubtedly occupied, as peers of the realm1. On the one hand they claimed exemption, not only from the Court of the Lord High Steward but, from all secular jurisdiction. On the other hand they could not, as ecclesiastics, pass sentence of death 2, and so if they were summoned to serve in the Court of the Lord High Steward they were at one time held entitled to appear by a Proctor 3. The result of this was that they were excluded from trial in the Court of the Lord High Steward without obtaining immunity from other jurisdictions, and that, as the Court consisted, for a long time, of persons specially summoned, the bishops, who could not take part in passing sentence, were left out. Finally, the Lords in 1692, resolved that 'Bishops who are only Lords of Parliament are not Peers, for they are not of trial by nobility 4,' and as a corollary to this it was laid down by Blackstone that as the bishops have no right to be tried in the Court of the Lord High Steward, they' therefore surely ought not to be judges there 5.' The Bishop sits in the House of Lords in virtue of a writ Ante, p. 54. of summons in the form given in an earlier chapter, and subject to the rule that there are no more than twenty-six spiritual peers who are also Lords of Parliament in virtue of their spiritual office; that of these, five are to consist of the Archbishops of Canterbury and York, and the Bishops of London, Durham, and Winchester, and that the other bishops obtain, in order of seniority, their right to a writ of summons. A bishop may resign his see and therewith lose his seat in the House of Lords, though he retains his rank, dignity and privilege.' Pike, Const. History of the House of Lords, p. 157, et sq. 2 Constitutions of Clarendon, § xi. 3 Year Book, 10 Ed. IV, no. 17, p. 6. 4 Standing Orders of the House of Lords, LXXIII. 5 Blackstone, Comm. iv. 265. This matter is fully discussed by Mr. Pike, Const. History of the House of Lords, pp. 212–223. 6 32 & 33 Vict. c. 111, s. 5. v. The Lords of Appeal in Ordinary. I do not propose to enter here upon the judicial functions Lords of Appeal of the House of Lords: it is enough to say that for most purposes it is a final Court of Appeal from the Queen's Courts in England, Scotland and Ireland: that there is nothing but the conventions of the House to prevent any peer of Parliament from taking part in such Appeals, but that an Act of 1876, the Appellate Jurisdiction Act1, has provided that no appeal shall be heard or determined unless there are present at such hearing and determination at least three Lords of Appeal. The Lords of Appeal are of three kinds, (1) the Lord Chancellor for the time being, (2) such Lords of Parliament as have held high judicial office, (3) the Lords of Appeal in ordinary. It is with these last that I am concerned. They form an exception to the general rules which govern the tenure of a right to sit and vote in the House of Lords, and like the bishops they transmit no rank or dignity to their descendants. The Appellate Jurisdiction Act of 1876 gave power to the Crown to appoint two Lords of Appeal in ordinary. Their number might be increased to four as the paid members of See vol. ii. the Judicial Committee died or retired. They must possess p. 469. certain qualifications—that is, they must have held, for two years, high judicial office, or have practised at the English, Scotch or Irish bar for fifteen years; they are entitled to salaries of £6000 a year; and, as judges, they hold office on a like tenure to other judges, during good behaviour, unaffected by the demise of the Crown, but removable on an address of both Houses of Parliament. peers. Besides this, each Lord of Appeal is entitled to the dignity are life of Baron for his life, and to a writ of summons to attend, and to sit and vote in the House of Lords. Until 1887 his right to a summons was dependent on the continuance of his 1 Introduc tion of peers. Rank and precedence of peers. discharge of judicial functions. It is now a right which lasts for the term of his life. The Peers of the United Kingdom are the only members of the House of Lords whose right to sit and vote is descendible. Of the rest, the representative peers of Ireland and the Lords of Appeal enjoy a right necessarily coextensive with the term of their lives. A Scotch representative peer may lose his seat by non-election, or vacate it by the acceptance of a peerage of the United Kingdom; a bishop may resign his see, and with it his right to be summoned to Parliament. The formalities of the introduction of peers rest on the standing orders of the House of Lords. A peer by descent needs no introduction, but may take his seat at any time after attaining the age of twenty-one. Peers who are summoned in virtue of newly created peerages, or in virtue of special limitations in remainder in patents of old peerages, are introduced by two peers, their patents presented to the Chancellor and read by him, and their writs of summons also presented. The patent and writ are both entered on the Journals of the House. This rule does not of course apply to the Scotch representative peers. The taking and subscription of the oath or affirmation of allegiance completes the title to the seat. We may note here the ranks and precedence of the members of the Peerage. The title of Duke was first conferred on a subject by Edward III, who created his son, the Black Prince, Duke of Cornwall. That of Marquis dates from the reign. of Richard II. Earldoms date from Saxon times. The first Viscount was created by Henry VI; and when we come to the origin of the lowest rank of the peerage, that of Baron, we must recur to the antiquarian discussion of a few pages back. The station of the peers and their precedence within the House are regulated by 31 Henry VIII, c. 10, 'for placing of the Lords.' This Act recites that in all great councils and congregations of men having sundry degrees and offices in the Commonwealth, it is very requisite and convenient that order should be had and taken for the placing, and sitting of such persons as are bound to resort to the same,' and then proceeds. to order the placing of the Lords. The royal children alone have place beside the king. First on the right-hand side was to sit the king's vice-gerent, then the two archbishops, the bishops of London, Durham, and Winchester, and the others 'after their ancienties.' On the left-hand side were to sit first the Lord Chancellor, the Lord President, the Lord Privy Seal, above all dukes save such as were of the blood royal. Other great officers were to sit above all peers of a like rank to themselves. Such were the great chamberlain, the constable, marshal, lord admiral, lord steward, and king's chamberlain. The king's secretary if a baron was to sit above all other barons, if a bishop above all other bishops. Then it was provided that all Dukes, Marquesses, Earls, Viscounts and Barons not having any of the offices aforesaid shall sit and be placed after their ancienties as it hath been accustomed.' Such great officers as were not peers were to sit in the middle of the chamber. § 7. Privileges of the House of Lords. The privileges of the House of Lords are sometimes taken to include its various judicial functions and some rules of procedure which are not strictly a part of its privileges as a House of Parliament. of the I will take the privileges of the House in the order in Privileges which I dealt with the privileges of the House of Commons, Lords. and will note such correspondence or difference as may exist. the Lords Firstly, the Lords do not go through the form of asking for Speaker of their privileges. The Speaker of the House is, by prescription, the Lord Chancellor or Lord Keeper of the Great Seal; in his PART I. Q LIBRARY OF THE UNIVERSITY OF CALIFORNIA absence his place is taken by deputy Speakers, of whom there are always several, appointed by commission under the Great Seal, and if they should all be absent the Lords elect a Speaker for the time being. The woolsack on which the Speaker sits is outside the limits of the House, so that the office may be discharged by a commoner, and has been so discharged when a commoner has been Lord Keeper of the Great Seal, or when the Great Seal has been in commission1. Nor has the Speaker of the House of Lords the authority on points of order, nor the dignity in relation to the other members of the House, which is possessed by the Speaker of the House of Commons. The permanent officers of the House are the Clerk of the Parliament, whose duties are to keep the records of the proceedings and judgments of the House; the Gentleman Usher of the Black Rod, whose duties answer to those of the Serjeant-at-Arms in the Commons; and the Serjeant-at-Arms, who is more especially the attendant of the Chancellor. The Speaker then, even on such occasions as he is chosen. by the Act of the House, does not receive any formal approval does not from the Crown, nor are the privileges of the House demanded privileges. by him or by any of its members. These privileges may now be compared with those of the House of Commons. demand Freedom of the person; of speech; Freedom from arrest is claimed by the Lords as well as by the Commons. It is claimed by the Lords when Parliament is sitting or within the usual times of privilege of Parliament, except in cases of treason, felony, or refusing to give security for the peace; and this privilege is held to extend to their servants and followers during session and twenty days before and after. The privilege of declining to serve as a witness is now waived by the Lords as by the Commons, and that of freedom from jury service is confirmed by Statute. Freedom of speech in the House of Lords has not come into question as often or as definitely as the like privilege in the 1 May, Parl. Practice, ed. 10, p. 185. |