created by ordinary methods of creating the dignity of peerage, by writ and by patent, must be added the extraordinary method of Peers creation by the king in parliament:1 to such creations the the king in assent of parliament is frequently stated. As to the dignity parliament. of banneret, the better opinion seems to be that it was a Bannerets. mere order of knighthood and not a rank of peerage.2 The peers of the realm, although distinguished from each other by titles expressive of different degrees of dignity, were otherwise equal both in privilege and authority.3 councils of man and During the two centuries which intervene between the Legislative Conquest and the formation of the estate system in the reign powers of and judicial of Edward I., the national assembly survives in the form of the great the feudal court or council, whose constitution has in general the Norterms been already defined. Although this council, gener- early Angevin kings. ally known as the magnum concilium, may have embraced on extraordinary occasions the whole body of the tenants-inchief, it was no doubt composed, on all ordinary occasions, only of the greater tenants, among whom were, of course, embraced the holders of all the great offices in church and state. To the great council thus constituted passed, in legal theory at least, the sum of political, fiscal, legislative, and judicial powers which had been possessed by the ancient witenagemot. The dominant force in the feudal court or council was the new kingship to which the Conquest gave birth, a kingship which refused to be limited by the constitutional action of the witan on the one hand, or to be weakened by the disruptive tendencies of feudalism on the other. That the Norman and Angevin kings were practically absolute there can be no doubt; and yet it is equally clear that they retained throughout both the theory and form of a national council, by whose counsel and consent they performed all important acts of judicature and legislation.5 Even Dr. Gneist, who denies the survival of the witan in the form of a feudal council, and who holds that the royal power in Norman times was virtually absolute, admits that the form of counsel and consent in legislation was never entirely abolished, that "in the first centuries of the Norman period is Survival of met with, occasionally, the consensu baronum meorum, which "counsel and con sent." Judicial powers of of lords. the continual to the great council. crops up whenever fundamental changes in the hereditary 'common law' are in question."1 Although the legislative functions of the great council may in Norman times have been more nominal than real, the immemorial form of counsel and consent which descends from the earliest Teutonic legislation never entirely disappeared. That the great council of peers was a supreme judicial court, in the same general sense in which the witan had been, cannot be successfully questioned. 4. The standing committee of the great council, — curia the house regis, after giving birth to the four great courts of king's bench, common pleas, exchequer, and chancery, still retained a vast and indefinite reserve of administrative, legislative, and Relation of judicial functions. In order to indicate, even in general terms, the domain of these far-reaching powers, it is necessary to outline the relation which existed between the great council and the smaller body which, in the language of Lord Hale, stood to the former as a concilium in concilio. Το the great council, as heretofore pointed out, passed, in theory at least, the sum of political, fiscal, legislative, and judicial powers which had been possessed by the ancient witenagemot. To facilitate the work of administration, the ordinary exercise of these powers was committed to an inner or continual council, whose relation to the greater body, owing to the scantiness of documentary evidence touching the Norman period, is vague and shadowy in the extreme. From the existing evidence, the conclusion has been reached that the lesser or continual council was what would be called in modern language a standing committee of the great council.3 nary causes ual council, courts born As such standing committee, the continual council seems to reproduce the relation which existed between the primary Teutonic assembly and the permanent council composed of the magistrates (principes) who decided all ordinary questions, reserving only the graver ones for the consideration of the greater body. Such was the relation finally established, All ordiso far as judicial business is concerned, between the continual decided by council and the four great courts developed out of it, on the the contin one hand, and the great council, finally known as the house or by the of lords, on the other. All ordinary questions of judicature of it. pass in the first instance to one or the other of the great law courts; a more exceptional class, to the court of the chancellor; while another and more difficult class still is reserved to the king in his ordinary council.2 Only causes of an ex- Only extraordinary character remain for the judgment of the great causes recouncil of the kingdom. In the exercise of this extraordi- main for the judgnary jurisdiction the house of lords, as the highest judicial ment of the body in the realm, appears in three aspects: (1) as a court of peers for the trial of its own members; (2) as a high criminal court of state for the trial of both peers and commoners who are impeached by the commons; (3) as a supreme court of error and appeal in civil causes. traordinary peers. of lords as the trial of members. As a court of peers for the trial of its own members, the The house house of lords was the only tribunal in which the peerage a court of could enjoy the benefits of that principle of Teutonic law peers for which granted the judicium parium to the members of every its own class or order. As heretofore explained, the famous clause in Magna Carta touching the "legale judicium parium suorum" refers rather to the general right of each estate or class to be tried by its own members than to the special right of trial by jury as afterwards understood. From the very nature of the right itself, the right of a peer to be tried by members of his own order could not have antedated the organization of the peerage as a distinct estate. Although the right had been claimed at an earlier date, it was first definitely established in 1341 by the statute of 15 Edward III., Statute of which provides "that no peer of the realm, officer, or other, on account of his office, can be brought before the court, 1 See above, p. 108: 2 See above, p. 302. 8 See above, p. 389, note 1. 15 Edward be tried moner for a misde meanor. condemned to the loss of his worldly possessions, put in arrest or prison, rendered responsible, or judged otherwise than through award of the said peers in parliament." Two years later this statute was repealed, but in the repealing statute the general principle embodied in the first was distinctly recognized. The right as ultimately defined in the law of the land was restricted, however, to a narrower basis than that upon which the statute of 1341 had placed it. In that act the right of a peer to be tried by his peers was made to extend to all offences whatsoever; in the law as finally established, the right was limited to cases of treason and felony A peer may only. A peer may be tried like a commoner for the commission like a com- of a misdemeanor.2 By statute of 20 Henry VI. the right of a peer to be tried by his peers in cases of treason and felony was extended to peeresses. When an accusation is to be made against a peer, it is made by indictment in any competent court having cognizance of the offence, and if the offence charged be treason or felony the case is removed for trial by certiorari to the house of lords. If parliament is sitting, the trial proceeds in the house of lords as such, which is usually, though not necessarily, presided over on such an occasion by a lord high steward 5 appointed for that purpose. Under these circumstances the lord high steward is simply the president of a court in which the peers are the judges. If, however, the parliament is not sitting, the indictment is tried in the court of the lord high steward, which was originally simply a select committee composed only of such peers as the steward might see fit to summon. In this tribunal the steward sits as the only judge, while the peers summoned by him -the "lords triers" - act as a jury. Owing to an abuse which arose out of the power of the steward to limit his court to such peers only as he saw fit to summon, an act was passed (7 and 8 Will. III. c. 3) which provides that, upon the trial of any peer or peeress for treason or misprision, all the The lord high stew ard and his court. 1 Ret. Parl., ii. p. 132. 2 3d Inst., 30; Hawkins, C. P., bk. 2, ch. 44, §§ 13, 14; Stephen, Hist. of the Criminal Law, vol. i. p. 164. 3 Rot. Parl., v. p. 56. 4 Stephen, Hist. of the Crim. Law, vol. i. p. 165. As to the origin of the office, Coke, 4th Inst., 58. 6 See Sir T. Erskine May, Parl. Prac., p. 737-741; Campbell, Lives of the Chancellors, vol. iii. pp. 538 n., 557 n. 7 See trial of Lord Delamere, II Howell, St. Tr. 539; Macaulay, Hist. of England, vol. ii. pp. 313-316. peers shall be summoned, and that every peer so summoned and appearing shall have a vote at the trial. of lords as court for the trial of impeached A second and higher judicial aspect still, in which the house The house of lords appears, is that in which it stands out as a high a high criminal court of state for the trial of all persons who are impeached or accused by the commons, sitting as a grand all persons jury of the whole nation, of the commission of high crimes by the comand misdemeanors. The right to thus assail the great func- mons. tionaries of the realm was one of the weapons won by the commons during their struggles for political power in the fourteenth and fifteenth centuries. The earlier instances of criminal proceedings which take place in parliament during the period which intervenes between the beginning of the reign of Edward I. and the fiftieth year of Edward III. are both irregular and ambiguous.1 Not until the year last named do we find, in a series of proceedings which take place in the Good Parliament, a clear instance of a parliamentary impeachment in the sense in which that term is now understood. The proceedings against the lords Latimer and Neville, and Proceedings against their agents and accomplices, who were accused of the com- thords mission of all kinds of fraud upon the revenue, are regarded Latimer by the historians as the earliest instance of a trial by the lords upon a definite accusation made by the commons. In the early part of the reign of Richard II. (1377-1383) impeachments were directed for various kinds of misconduct against Gomenys and Weston, against Cressingham and Spykesworth, and against the Bishop of Norwich, Elmham, and others. In 1386 these cases were followed by the famous accusation against Michael de la Pole, the lord chancellor, who was impeached for grave misconduct in his office.5 Thus by frequent repetition and employment the law and practice as to parliamentary impeachments was by the end of the reign of Richard II. established in substantially the same form in which it appears in modern times. During the period in which the practice of impeachment by public accusation of the commons was taking on a definite 1 See Stephen, Hist. of the Crim. Law, vol. i. pp. 145-155. 2 Rot. Parl., ii. pp. 323-326, 328, 329; Rymer, p. 322. Hallam, M. A., vol. iii. p. 56; Stubbs, Const. Hist., vol. ii. p. 431. 4 Rot. Parl., iii. pp. 10-12, 153, 156. and Neville. |