448 CHAPTER II. THE PEERS, AND THE HOUSE OF LORDS. Spiritual Lords.-Temporal Peers.-Descent of Titles.-Younger Children.--Privileges of Peers.-House of Lords.-Lord-Chancellor and Officers of the House.-Standing Orders.—Functions of the House of Lords.-Constitutional Provisions for removing Conflict with the Commons.-Proxies and Protests.-Court of Judicial Authority.-Impeachment. Trials of Peers.-Appeals.--House of Lords considered in relation to the Constitution. THE peers are next in rank to the sovereign, and they form the aristocratic branch of the constitution. There are two orders, the lords spiritual and temporal; who together constitute the house of Lords, or the upper house of parlia ment. The spiritual lords consist of the Archbishops of Canterbury and York, of the Bishops of London, Durham, and Winchester, and twenty-one other bishops of the Church of England,' and of one archbishop and four bishops of the Church of Ireland. The latter were added to the house as lords of parliament, by the Act of Union of Great Britain and Ireland, by which the Churches of England and Ireland were united into one protestant episcopal church, called the united Church of England and Ireland. They sit in rota When an addition was made to the bishops by the creation of Manchester into a see, it was provided by statute that the number of lords spiritual should not be thereby increased, but (with the exception of the sees of Canterbury, York, Durham, and Winchester, whose archbishops and bishops should always sit in the house of lords) the remaining bishops should sit according to seniority. (10 & 11 Vict., cap. 108.) 239 & 40 Geo. III., cap. 67. CH. II.] SPIRITUAL AND TEMPORAL PEERS. 449 tion with the other archbishops and bishops of Ireland. The spiritual lords of parliament constitute the first estate of the realm. The temporal peers consist of all the peers of England, and of sixteen of the peers of Scotland, elected by the body of the Scotch peerage to represent them in the house of lords. The latter were added to the house by the terms of the union with Scotland; and by the union with Ireland, twenty-eight peers of Ireland were added, elected by the whole body of Irish peers to represent them in the house. The representative peers of Scotland sit during the continuance of the parliament for which they were elected; those of Ireland are elected for life. At the union of Scotland with England, the peers of England ceased to be peers of the realm of England, and they, as well as the peers of Scotland, became peers of the kingdom of Great Britain; and at the union with Ireland, they became peers of the United Kingdom of Great Britain and Ireland. But the union with Ireland did not change the designation of the Irish peers; they remained "peers of Ireland," although it is expressly declared, in the Act of Union, "that all the lords of parliament, spiritual and temporal, sitting in the house of lords, shall have the same rights and privileges as the peers of Great Britain." The king is prohibited from creating a Scotch peer, but he is empowered by the Act of Union to create one peer of Ireland as often as three of the peerages existing at the time of the union shall become extinct; or when they are reduced to a hundred, one peer for every peerage that becomes extinct. The peers of Ireland not elected to the house of lords, may be members of the house of commons; but whilst they continue in the house of commons, they are not entitled to any of the privileges of peerage. The Scotch non-representative peers do not possess that privilege. The whole body of the temporal peerage of England, Scotland, and Ireland, form the second estate of the realm. The peers of parliament, according to a roll published in February, 1857, consist of 459 peers, (including the Prince of Wales at their head,) under the several ranks of duke, marquis, earl, viscount, and baron. They are by birth hereditary councillors of the crown; every peer having the right to demand an audience of the king, and to lay before him, with decency and respect, such matters as he shall deem important to the public good. They are addressed by the king, in his writs, as his cousins and councillors. The titles of the temporal peers descend to their eldest sons, in tail male, females not inheriting, except in a few special cases. They are not now, as they originally were, incident to the tenure of the land; but have become generally, if not universally personal dignities, created by letterspatent, which define the course of descent, now almost universally restricted to the male line. These dignities are granted by the crown at its sole will and pleasure; but when granted, they cannot be surrendered at the will and pleasure of the persons possessing them; nor can they be deprived of them but by attainder or act of parliament.' The younger sons and daughters of peers have nominal titles or distinctions, or titles by courtesy; but in the eye of the law they are all commoners. In the second genera tion, the nominal titles cease; the grandchildren of even dukes, through their younger sons and daughters, being without any titular distinction. They all merge into the mass of the people. The chief privilege of peerage is an hereditary seat in the house of lords. The personal privileges of peers are exemp tion from serving on juries and inquests. In cases of trea son, felony, misprision of treason, and misprision of felony, they are entitled to be tried by the peers in the house of lords, and not by the ordinary courts. But for misdemeanours, and in cases of præmunire, peers are to be tried in the same way as commoners, by a jury;2 and by a recent act, every every lord of parliament, or peer of the realm having 1 Peers' Report, vol. i. p. 125: Rex v. Knowles, 12 Mod. 56. 2 Rex v. Lord Vaux: 1 Balst. 197. 34 & 5 Vict., cap. 22. CH. II.] SUMMONS TO PARLIAMENT. 451 place or voice in parliament, against whom any indictment may be found, shall plead to such indictment, and shall upon conviction be liable to the same punishment as any other of her majesty's subjects. In common with members of the house of commons, they are free from arrest at the suit of a subject. In all other respects they are subject to the same laws, and to the same taxation, as commoners. As the English peers have never, like the old noblesse of France, been separated from the people by odious privileges, so they have often united with them in promoting the common good. Several important instances of their leading and co-operating with the people for the acknowledgment or recovery of general rights, have been given in the first part of this work ;-in modern days we know that a large portion of the nobility are supporters of popular principles; and devote their talents and their fortunes to the improvement of the laws, and of the moral and social condition of the people. It may be some drawback from their hereditary honours, that peers are deprived of privileges which are possessed by the commons. They have no voice, in their legislative capacity, in imposing taxation, or in dealing with the revenue. They can only refuse to agree to the commons' grants; but although they cannot impose taxation, they must bear their proportionate part of its burdens. They are personally prohibited by a resolution of the house of commons from in any manner interfering in the elections of the members of the lower house. When a parliament is called, every lord, spiritual and temporal, is entitled to a writ of summons. This writ issues out of chancery, and is under the great seal. It is in accordance with the provision of Magna Charta that the king should cause the bishops and great barons to be summoned, "singly by his letters, forty days at least before their meeting, and to a certain place." The time, by a recent statute, has been reduced to not less than thirty-five days.1 115 Vict., cap. 23. The peers, at the commencement of every parliament, and before taking their seats, take the oath prescribed by law. The house of lords is duly constituted for business if only three members are present. The lord-chancellor is, ex officio, Speaker of the house, and has precedence there over all temporal peers, except the king's sons, nephews, and grandsons. He has the same privileges and precedence, although not raised to the peerage; but in modern days the lord-chancellor is always a peer, and the corresponding office of lord keeper is disused. He has not, like the Speaker of the house of commons, authority over the members of the house, to preserve order in debate ;-he is not even addressed in debate, nor does he name the peer who is to speak. But he is not, like the commons' Speaker, excluded from the debate; nor, like him, has he a casting vote; for by a rule of the house, where the number of votes is equal, the question passes in the negative. The crown may by commission name others to preside in the absence of the chancellor; and the lords, of their own authority, if no Speaker appointed by the crown be present, may choose one of themselves to act as Speaker, which they often do in hearing appeals; but any such Speaker is immediately superseded when the chancellor enters the house.2 The chief officers of the house of lords are the Clerk of the Parliaments, the first and second Clerk's Assistant, the Gentleman and Yeoman Usher of the Black Rod, and the Serjeant-at-Arms. The house is also assisted by the Judges of the three courts of law, the Master of the Rolls, the Attorney-General, the Solicitor-General, and the King's Serjeants, who are summoned at the beginning of each parlia ment, by writs under the great seal, to be "personally present in parliament with us and others of our council, to treat and give advice." But these take no part in the de 1 See the Oath, ante, p. 444. Lords' Journals, June 25, 1661. Lord Campbell's Lives of the Chancellors, vol. i. |