House of Commons, for the House collectively. This right would seem rather to belong to the magnates as hereditary counsellors of the Crown than to the Lords as a House of Parliament. ing dis qualified The right of the House of Lords to see to the due con- of excludstitution of its own body is analogous to the right which the House of Commons possesses to prevent disqualified persons persons; from taking part in its business and to declare the seats vacant in virtue of which such persons claim to sit. In the exercise of this privilege the House of Lords appears to have an undoubted right to decide on the validity of a new creation 1, as entitling the newly created peer to sit and vote. It exercised this right when, in 1711, it came to the decision, reversed by it in 1782, that the acquisition of an English peerage did not entitle a Scotch peer to a seat, and when, in 1856, it decided against Lord Wensleydale's claim to take his 1 Lord Campbell, in the debate on the Wensleydale peerage, says: 'By our free constitution there is a tribunal appointed for trying the legality of every exercise of the Royal prerogative which may be questioned. With regard to the creation of a Peer, that tribunal is the House of Lords. We have no right to consider the merits or demerits of the party who claims to take his seat here, if he be a British subject free from legal disability; but we have a right to see that he shows a title to sit here ex facie good: and if he claims by patent, the validity of that patent is necessarily submitted to our jurisdiction. We may call in the judges as advisers, but the House decides proprio vigore. Like all other deliberative assemblies, we are necessarily vested with the power of preventing intruders from interfering with our deliberations.' Lord Campbell goes on to insist upon the need of distinguishing two things which he says 'are entirely dissimilar-deciding upon claims to an old peerage, and considering the validity of a new creation. It is quite true that with respect to the former we have no jurisdiction except upon a reference from the Crown, and Lord Holt was quite right in refusing to pay any attention to any adjudication of this House upon a claim to the Banbury peerage without any such reference. The power of deciding on these claims the Crown, from the remotest times, has reserved to itself, with such advice as it may ask. Formerly they were referred to the Earl Marshal and the Hereditary Constable, and, according to modern practice in cases of doubt and difficulty, they have been referred to this House. The Attorney-General has been the chief adviser of the Crown in peerage cases, and upon his sole advice the Crown may still act respecting titles that have been dormant for centuries.... But the claim to sit on a new creation by patent is a very different proceeding. Here the patent must be produced and read to verify the right of the claimant to take his place. If it confers such a dignity as by law gives a right to sit here he must be admitted.' Hansard, cxl. p. 329. of demanding pre seat as a life peer. But the House has no right to decide on claims to an old peerage, unless the decision should be referred to it, as is usually the case, by the Crown. It was in the use of this same right to see that the House sence of its is duly constituted that the Lords petitioned the Crown 'in members; 1626 to send to the Earl of Bristol the writ to which he was entitled, a committee having reported that there was no precedent for the action of the Crown in withholding the writ1. In the same year the King was compelled to release the Earl of Arundel, whom he had kept in custody on no such charge as took his case out of the limits of privilege. The House met the many evasions and postponements of Charles by adjourning all other business to the consideration of their privileges, and thereupon the King set the Earl free from restraint 2. of determining claims. of commitment. Proxies. The House is also empowered by the Act of Union with Ireland to determine all disputed claims to Irish peerages; and in respect of disputed claims to vote at the election of representative peers of Scotland, a decision may be obtained from the Committee of Privileges under the provisions of 10 & 11 Vict. c. 52. No question has been raised, so far as I am aware, concerning the right of the House to regulate and control its own proceedings; and in comparing the privileges of the two Houses it only remains to consider the right of the House to commit for contempt. The House of Lords possesses wider powers in this respect than does the House of Commons3; it can commit for a definite term, and the prisoner is not released by prorogation. If however the commitment is not for a specific term, prorogation does, as it would seem, end the commitment*, although Lord Denman in Stockdale v. Hansard 5 seems to have considered this to be doubtful. A privilege which the House has for the last twenty-four 1 Gardiner, Hist. of England, vi. 94. 2 Elsynge on Parliaments, 224 et sq. 38 Durnf. & East, 314. 59 A. & E. 127. years thought it right to forego is that of voting on divisions by proxy. The origin of the practice was doubtless due to the desire of the king in the early days of Parliaments to secure that the members of the baronage were individually bound by the grants made or the laws agreed to in their House. Those lords,' says Elsynge', 'that could not appear according to their summons made their proxies. But if they neither came nor made proxies, then for their disobedience to the king's writ they were amerced.' There were occasions when the king was not satisfied with an appearance by proxy, and on such occasions the writ contained a clause to the effect that a proxy would not be admitted. The rules which the House adopted for the regulation of voting by proxy are now immaterial, for a standing order was made on March 31, 1868, that 'the practice of calling for proxies on a division shall be discontinued.' The right of a dissentient peer to record a protest on the Protests. Journals of the House is not a privilege except in so far as the control of its own procedure by the House is a privilege. The House of Commons might by standing order confer the same right upon its members. But a minority in the House of Commons is content with the power of speaking in a debate and voting in a division. In the House of Lords a minority, or any part of one, enjoys a further opportunity for the expression of its views, and can enter the grounds of its dissent in the form of a protest upon the Journals of the House. duties. The judicial functions of the House of Lords are fourfold. Judicial As a Court of Appeal it reviews the judgments of the High Court of Justice and Court of Appeal. As a Court of first instance it tries great offenders against the State upon impeachment by the Commons. It has a like jurisdiction over members of its own body in criminal cases, where a peer is charged with treason or felony: and it is a court for the determination of disputed claims of peerage on reference from 1 Manner of holding Parliaments in England, p. 119. the Crown, and of the validity of new peerages intended by the Crown to confer a right to sit and vote in the House. Of these the first is a function which it inherited from the magnum concilium, and cannot be called a privilege of Parliament; the second is a duty which it discharges in conjunction with the Commons as the High Court of Parliament; the third is merely an application of the rule in Magna Charta that a man should be tried by his peers; the last is a privilege analogous to that enjoyed by the Commons of declaring a seat vacant where disqualifications exist, and, until recently, of determining disputed returns. The part played by the House of Lords in the practical working of the Constitution is hardly a matter for this book. Yet one may note the curious historical transformation whereby the estate of the baronage has, by the continuous exercise of the royal prerogative in the creation of peers, developed into a second chamber containing a fair representation of the general interests of the community, and in many respects admirably fitted to maintain a high level of political discussion. The functions of the House of Lords, whether social or political, have been exhaustively dealt with by Mr. Bagehot, and I have little or nothing to add to his chapter on the subject. On one matter of this nature it may be proper for me to dwell, though not here. When I come to deal with the process of legislation in the two Houses, it will be necessary to consider for how long and under what conditions the House of Lords may resist the expressed wishes of the House of Commons and reject measures which the House of Commons has passed. CHAPTER VII. . THE PROCESS OF LEGISLATION. We have now brought our Parliament together, have analysed its constituent parts, and have ascertained how they come into existence, and of what they consist. The next step must be to consider how they act. functions here Par The most prominent if not the most important function of Legislative Parliament is legislation; for serious as are the duties which of ParliaParliament discharges in the selection and criticism of the ment most striking Executive, the Ministers of the Crown, it is in legislation because that the sovereignty of Parliament is displayed. Its control liament is over those who carry on the executive government, though sovereign. effective, is indirect: its control over every rule of conduct which it may choose to take in hand is direct and absolute. I would speak of the absoluteness of legislative sovereignty with the reservations which Mr. Dicey1 has shown to exist in respect of all sovereignty, however absolute; I would make it clear that the omnipotence of Parliament is dependent on a certain correspondence between legislation and public opinion, a correspondence which must be more or less close in proportion to the tractability, the political capacity, the power of organisation of the governed. The law-maker in a despotism must consider first whether his law will cause a revolt; Limitaand next whether he has force at his back to crush it. The its sovelaw-maker, in a state where the bulk of the population elects reignty. those who make the laws, has to consider whether the majority 1 Law of the Constitution, p. 71 sq. tions on |