Result of argument. Alienage. Bankruptcy. new constituencies and withholding writs from others. Just as it was proposed that Queen Victoria should remodel the House of Lords, so William IV might have redistributed seats and remodelled the House of Commons, on the same principle, though necessarily on a larger scale. On the whole the balance of legal argument was strongly against the claim of the Crown. With the merits of the plan as a source of strength to the House of Lords I am not here concerned. The rule of law seems clear. The Crown can confer such dignities and with such limitations as it may please, but a Lord of Parliament must be an hereditary peer, except in the special cases of the bishops and the lords of appeal in ordinary, and once an hereditary peer is summoned the right to a summons descends to his heirs, except in the special case of the representative peers of Ireland 1. 5. Alienage is a disqualification for summons. The Act of Settlement provides that no person born out of the kingdom, unless born of English parents, even though naturalised, can be a member of either House of Parliament; and the Naturalisation Act of 18703, while it abolishes the proprietary disabilities of aliens, provides in the second section that this shall not qualify them for any parliamentary or municipal franchise, or entitle an alien to any right or privilege as a British subject except such rights and privileges in respect of property as are hereby expressly given to him. It must be taken therefore that the Crown's right of summons is limited by the rule that none but a British subject may receive a writ of summons to the House of Lords. 6. Bankruptcy. A further limitation on the powers of the Crown must be noted in the case of bankrupt peers. The Bankruptcy Act of 1883 disqualifies them from sitting and voting, but an unrepealed clause of the Bankruptcy Disqualification Act 5, 1871, provides that a writ of summons 1 The representative Peers of Scotland are not individually summoned. 2 12 & 13 Will. III, c. 2. 46 & 47 Vict. c. 52. 3 33 & 34 Vict. c. 14. 5 34 & 35 Vict. c. 50. shall not be issued to any peer for the time disqualified from sitting or voting in the House of Lords.' § 5. Disqualifications for Sitting and Voting. There are some disqualifications which do not affect the royal right to issue the writ of summons, but which rest upon the individual peer. There would appear to be nothing to prevent the Crown from summoning such peers to attend, but a rule of law or resolution or standing order of the House would forbid them to sit and vote therein. 1. Infancy is such a disqualification, if not by the common Infancy. law of Parliament, at any rate by a standing order of the 22nd of May, 1685, to the effect that no lord under the age of one and twenty years shall be permitted to sit in this House.' 2. Felony is now a disqualification similar in its character Felony. and effects to the like disqualification in the case of members of the House of Commons. For by 33 & 34 Vict. c. 23, the old rule as to corruption of blood is abolished, and, except in the case of outlawry, the forfeiture which ensued upon corruption of blood. A conviction of treason or felony therefore no longer is held to affect the nobility of blood of the convicted person; but it incapacitates him, if the conviction is followed by a sentence of a certain severity 1, from sitting or voting as a member of either House of Parliament until he has either suffered his term of punishment or received a pardon under the great seal or sign manual. of House. 3. Sentence of the House. It is presumed that the House of Sentence Lords could not, any more than the House of Commons, by mere resolution exclude a member of its own body permanently from taking a part in its proceedings. But it can disqualify by sentence, sitting as a Court of justice, either 1 The punishments which must follow conviction in order to produce this effect are penal servitude, or imprisonment with hard labour for any term, or without hard labour for a term of twelve months. The right to sit and vote: upon an impeachment by the House of Commons or, presumably, upon trial of one of its own members in the full House if Parliament is sitting, if not, in the Court of the Lord High Steward. And this sentence passed by resolution of the House is an actual disqualification, and not, as in the case of the expulsion of a member by the House of Commons, a punishment which may or may not be temporary, as the person expelled does or does not obtain re-election. Thus the sentence upon the Earl of Middlesex, Lord High Treasurer of England, impeached by the House of Commons for bribery, extortion, and other high crimes and misdemeanours, was settled by resolution of the House, before the Commons had demanded that sentence should be passed. Lord Middlesex was to be incapable of holding office, to pay a fine to the king, and then came :— 'The sixth question, "Whether the Lord Treasurer shall ever sit in Parliament hereafter, or no?" "Agreed" that he shall never sit hereafter 1."" Sentence to this effect was passed on sentence being demanded by the Commons. But the Crown can exercise the prerogative of pardon and so remove the disqualification and restore the right to sit and vote. 4. The Oath. The obligation of the Parliamentary oath was not imposed upon the Lords till more than a hundred years after it had been required of the Commons. But since 30 Car. II, c. 1, the law respecting the oath has been the same for the Lords as for the Commons, and it now depends on the Parliamentary Oaths Act 1866, modified, so as to admit of affirmation in place of an oath, by 51 & 52 Vict. c. 46. § 6. Modes of acquiring right to sit and vote. I have now dealt with the limitations which exist on the right of the Crown in respect of the creation of peers; the further limitations which restrict the right of the Crown to 1 iii. Lords' Journals, 382. summon those on whom it has conferred the dignity of the peerage; and the disqualifications which, apart from any restrictions on the Crown's right of creation or summons, may be a bar to a peer's right to sit and vote. It remains to consider the process by which the right to sit and vote is acquired, before discussing the privileges of the Lords, and their mode of transacting legislative and judicial business. i. Peers of the United Kingdom. Kingdom A peer of the United Kingdom is now invariably created how acby letters patent, and these are accompanied with a writ of peer of the quired by summons to the House. On his introduction to the House he United presents his patent of peerage to the Chancellor, and this having been read is, together with his writ of summons, entered upon the Journals of the House. At each successive Parliament he receives a separate writ of summons in the form set forth in an earlier chapter. A peer who succeeds to his peerage during infancy is entitled to his summons when of full age, and makes application to the Chancellor for a writ. Unless the case is one of doubt the writ is issued at once, and he takes his seat without the formalities required in the case of a new peer. If the case should be doubtful, the Chancellor may decline to order the issue of the writ. The claimant must then petition the Queen, who refers the decision to the Lords, not as a matter of right but by custom, for the Crown might, if it chose, determine the question upon any advice that it was pleased to ask. Upon such reference the Committee for privileges deals with the claim, and after hearing evidence reports to the House, and the Crown grants or withholds the summons accordingly. ii. Representative peers of Scotland. representa The Act of Union with Scotland makes no provision for by Scotch any addition to the Scotch peerage, so it is not necessary to tive peers. go behind the process by which the Representative peers obtain their right to sit and vote. Proclama tion. Election. It is provided by 6 Anne, c. 78, that whenever a new Parliament is summoned, a proclamation should be made under the Great Seal, commanding the peers of Scotland to meet in Edinburgh, or at such other place and at such time as is named in the proclamation. This proclamation has to be published at the Market Cross at Edinburgh, and in all the county towns of Scotland ten days at least before the day of election 1. The election by custom takes place at Holyrood, and is marked by some curious features. The Peers sit at a long table, and the roll of peerages is called over by the Lord Clerk Register: each answers to the peerage in right of which he is present. The roll is a roll not of peers but of peerages, so that the same peer may be called two or three times if he happens to represent more peerages than one: nor is there any mode of disputing, at the time, the right to be present of any one who answers to a peerage called. The roll is then called a second time, and each peer rises and reads out his list of those for whom he desires to vote. No peer may vote more than once, though he may represent more than one peerage. At the conclusion. of this part of the proceedings, proxies are handed in, the Lord Clerk Register then reads out the list of sixteen elected peers, and makes a return, which he signs and seals in the presence of the assembled peers. The Return is then sent to the Clerk of the Crown in Chancery, and by him transmitted to the Clerk of the House of Lords. The elected Scotch peer does not therefore receive a special summons, but presents himself to take the oath, which is preliminary to taking his seat, in right of his election as evidenced by the list supplied to the Clerk of the House: he then enjoys his right to sit and vote during the continuance of that Parliament. The rules 1 It seems strange that in 1874 the officials concerned in the conduct of the election of Scotch peers did not appear to be aware that the time had been shortened from the period of twenty-five days required by the Act of Anne; 14 & 15 Vict. c. 87. (Report of Committee of House of Lords on the Repre sentative Peerage of Scotland and Ireland, p. 21.) |