Variety of
usages.
Different
sorte of
privilege.
i. Special
functions
of the two
houses.
504 Constitutional History. [chap.
judgment by the lords with assent of the king is not lawful,
but that it should be given by the king as sovereign judge,
‘ and by the lords spiritual and temporal with the assent of the
commons in parliament, and not by the lords temporal only1.’
But however this may have been, judicial work was appor-
tioned to the lords, and financial work was ultimately secured
to the commons. The difference of usage in the two houses,
the difference in the powers of the speaker in each, the different
rule of speaking, in the commons to the speaker, in the lords
to the whole house, the different way of voting, and the other
points in which the custom of the one varied from that of the
other, have a history if we only knew it ; through the general
likeness of procedure minute traces of difference every now and
then appear. In the wide and loose application of the word
‘privilege,’ the privileges or peculiar functions and usages of
the house of lords are distinguished from those of the house
of commons ; the privileges of individual members of the house
of lords may be distinguished from the privileges of individual
members of the house of commons; both again have common
privileges as members of the parliament ; and the lords have
special privileges as peers, distinct from those which they
have as members of a house co-ordinate with the house of
commons.
Of the first of these distinctions no more need be said here
than has already been stated; the house of lords had judicial
functions which the house of commons disavowed, although
those functions could be exercised only during the session of
parliament, that is whilst the commons were assembled ; and
the house of commons developed financial functions which they
took care to keep to themselves, although their acts did not
become law until they received the assent of the lords. The
house of lords had, as the king’s great council, an organisation
over and above its character as a house of parliament, and a
continuity and personal identity which it was impossible for
a representative chamber to secure. But these points are
scarcely points of privilege, and they have been sufficiently
ɪ Rot. Parl. iv. 18.
XX.] Proxies of the Lords. Sq5
illustrated already. The house of commons had, at the close
of the period, neither raised nor attempted to raise a claim to
the right, which afterwards was so fondly cherished, of de-
termining questions of dispute in elections of its own members :
the corresponding jurisdiction in the case of the lords was, so
far as it was a matter of law at all, within the limits of their
existing powers1.
449. Of the matters that fall under the second head the ≈- Special
rights of
following are the most important. Every lord had, from the the ɪoɪds.
earliest times to a very recent date, when the privilege was appota⅞ngf
voluntarily laid aside2, the power of appointing a proxy t0ai'lox∙'∙
give his vote. This was done by royal licence, which was very
seldom refused. The power of appointing a procurator or
proxy was sometimes given and sometimes withheld by the
terms of the writ3. Thus in the summons of the assembly in
which the prince of Wales was knighted in 1306 4, permission
is given ; in the writ for the parliament of March 1332 proxies
are positively forbidden. The usage extended even to the
permission for the proxy or power of attorney to be given to
a person who was not himself a member of the house ; in the
parliament of Carlisle in 130l7 Reginald de Grey, a baron, was
represented by his attorney, Thomas of Wytnesham. Among
the records of the reign of Echvard II are numerous letters of
proxy from bishops and barons to laymen and clerks, which on
some occasions must have reduced the chamber of the lords
to the position of a representative assembly5. In 1316, for
1 See the dispute between the earls of Warwick and Norfolk on pre-
cedence; Lords’ Fifth Heport, p. 198; Rot. Parl. iv. 267 sq. : and that
between the earls of Devon and Arundel in 1449 ; Rot. Parl. v. 148. It
was in the former case that the law was laid down that t creatio ducum
sive comitum ant aliarum dignitatuιn ad solum regem pertinet et non ad
parliamentum and in the latter that the judges declared disputes re-
specting peerage belong for decision to the king and the lords.
2 In 1868 ; May, Treatise on the Parliament, p. 370.
3 A list of the occasions on which the permission to appoint proxies is
withheld is given by Elsynge, Method and Manner, &c. p. ɪ ɪ 7 ; see also
Lords’ Report, iv. 408.
4 Pail. Writs, i. ι66 ; the forms of proxy then used are given in the
same place.
5 Proxies for the parliament of York in 1322 are given in Parl. Writs,
II. i. 248 ; cf. pp. 264 sq., 296-299.