494
Constitutional Histort/.
[chap.
Public and
private acts.
Judicature
of the house
of lords.
Appeals of
treason.
Appellate
jurisdiction
of the lords.
nances of the realm of England and none other ; and, as
shortly as may be, put in print, except it be some private
cause or law made for the benefit or prejudice of some private
man, which the Romans were wont to call privilégia. These
be only exemplified under the seal of the parliament and for
the most part not printed. To those which the prince Iiketh
not he answereth “ Le roy ” or “ La royne s’advisera,” and
those be accounted utterly dashed and of none effect.
‘ This is the order and form of the highest and most authen-
tical court of England V
444. The judicial functions of parliament, including in their
widest acceptation the decision of great suits and civil appeals
by the house of lords, the trial of lords and others impeached or
appealed, the practice used in bills of attainder, and the quasi-
judicial action of both houses in the matter of petitions, find
ample illustration in the pages of constitutional history: and
the minuter details of parliamentary practice in these matters
belong to the jurist rather than to the historian. The parlia-
ment, and either house of it, was in fact a tribunal of such
extreme resort that rules for proceeding must almost neces-
sarily have been framed as each particular case required. On
petitions public and private much the same process was used as
we have here attempted to trace in the practice of legislation ;
a bill of attainder went through the same stages as a bill of
settlement or of legal reform. The appeal of treason in parlia-
ment, always an irregular and tumultuous proceeding, was
forbidden by the first parliament of Henry IV 2. The supreme
or appellate jurisdiction of the lords in civil suits is a matter
rarely heard of from the time when the complete and matured
organisation of the courts of Westminster had been supple-
mented by the judicial activity of the council, until it was
revived and reorganised in the sixteenth and seventeenth
centuries3. The practice of trial upon impeachment has thus
l The Commonwealth of England and manner of government thereof;
compiled by the honourable Sir Thomas Smith, knight; London, 1589;
bk. ii. ce. 2, 3. Sir Thomas died in 1577.
2 See above, p. 24.
3 See May, Treatise on Parliament, p. 53, where the judicial powers of
XX.] The King In Parliament. 495
a melancholy prominence in the judicial annals of parliament : Impeach-
and there is no occasion to dwell here on the details which
have been given in our narrative chapters. The presumptuous Claim of
boast of the Merciless Parliament in the case of the appellants to ьёЯаЪо*е
of 1388, that parliament is bound by none of the ordinary rules
of law, civil or common1, has not practically met with accept-
ance even in the extreme cases in which Strafford, Laud, and
Charles I were made to feel that a minute adherence to forms
is a different thing from the observance of constitutional law.
The impeachments as well as the appeals of medieval times are,
as has been already remarked, pregnant with warning rather
than example.
The Bolls of Parliament afford such scanty glimpses of detail Presence of
, , fo j∙ the kings in
in all points except the results of the session, and so seldom parliament,
contain any notice of speeches or debates, that it would not
be safe to argue from their silence that the kings took a very
small share in the deliberative work of the national council.
It is however quite fair to argue from the position usually
occupied by the ministers in the formal transaction of business
that it was only on very rare occasions that the king would
take part in deliberation, either as a speaker or as a hearer,
His presence was deemed necessary at the opening and gene- The king ⅛
rally at the close of the session ; but most frequently his duty the opening
was discharged when he had directed the chancellor to state Uament”
the causes of summons, and to thank the estates for their
attendance. The chancellor was his spokesman in most cases
when he approved the election of the speaker. His decision
on petitions was expressed by an indorsement which the clerk
the house of lords are briefly summed up : They have a judicature in the
trial of peers, and claims of peerage ; a general judicature as a supreme
court of appeal from other courts of justice, inherited from the ancient
‘concilium régis.’ In the seventeenth century they assumed a jurisdiction
which has since been abandoned, an original jurisdiction in civil suits ;
and the like in criminal cases where there was no impeachment by the
commons. The appellate jurisdiction in equity has been exercised since
the reign of Charles I ; and the jurisdiction in cases brought up by writ of
error, originally derived from the crown, was confirmed by Stat. 27 Eliz.
c. 8. Cf. Coke, 4tl1 Inst. p. 20.
1 See above, vol. ii. p. 5O2 ; Rot. Park iii. 236 ; cf. Coke, 4th Inst.
p. 15.