absence of open schism, between the two houses of parliament. This is, however, still more owing to the happy graduation of ranks, which renders the elder and the younger sons of our nobility two links in the unsevered chain of society; the one trained in the school of popular rights, and accustomed, for a long portion of their lives, to regard the privileges of the house whereof they form a part, full as much as those of their ancestors;[29] the other falling without hereditary distinction into the class of other commoners, and mingling the sentiments natural to their birth and family affection, with those that are more congenial to the whole community. It is owing also to the wealth and dignity of those ancient families, who would be styled noble in any other country, and who give an aristocratical character to the popular part of our legislature, and to the influence which the peers themselves, through the representation of small boroughs, are enabled to exercise over the lower house.

Judicial powers of the lords historically traced.—The original constitution of England was highly aristocratical. The peers of this realm, when summoned to parliament (and on such occasions every peer was entitled to his writ), were the necessary counsellors and coadjutors of the king in all the functions that appertain to a government. In granting money for the public service, in changing by permanent statutes the course of the common law, they could only act in conjunction with the knights, citizens, and burgesses of the lower house of parliament. In redress of grievances, whether of so private a nature as to affect only single persons or extending to a county or hundred, whether proceeding from the injustice of public officers or of powerful individuals, whether demanding punishment as crimes against the state, or merely restitution and damages to the injured party, the Lords assembled in parliament were competent, as we find in our records, to exercise the same high powers, if they were not even more extensive and remedial, as the king's ordinary council, composed of his great officers, his judges, and perhaps some peers, was wont to do in the intervals of parliament. These two, the Lords and the privy council, seem to have formed, in the session, one body or great council, wherein the latter had originally right of suffrage along with the former. In this judicial and executive authority, the Commons had at no time any more pretence to interfere than the council, or the Lords by themselves, had to make ordinances, at least of a general and permanent nature, which should bind the subject to obedience. At the beginning of every parliament numerous petitions were presented to the Lords, or to the king and Lords (since he was frequently there in person, and always presumed to be so), complaining of civil injuries and abuse of power. These were generally indorsed by appointed receivers of petitions, and returned by them to the proper court whence relief was to be sought.[30] For an immediate inquiry and remedy seem to have been rarely granted, except in cases of an extraordinary nature, when the law was defective, or could not easily be enforced by the ordinary tribunals; the shortness of sessions, and multiplicity of affairs, preventing the upper house of parliament from entering so fully into these matters as the king's council had leisure to do.

It might perhaps be well questioned, notwithstanding the considerable opinion of Sir M. Hale, whether the statutes directed against the prosecution of civil and criminal suits before the council are so worded as to exclude the original jurisdiction of the House of Lords, though their principle is very adverse to it. But it is remarkable that, so far as the Lords themselves could allege from the rolls of parliament, one only instance occurs between 4 Hen. IV. (1403) and 43 Eliz. (1602) where their house had entered upon any petition in the nature of an original suit; though in that (1 Ed. IV. 1461) they had certainly taken on them to determine a question cognisable in the common courts of justice. For a distinction seems to have been generally made between cases where relief might be had in the courts below, as to which it is contended by Sir M. Hale that the Lords could not have jurisdiction, and those where the injured party was without remedy, either through defect of the law, or such excessive power of the aggressor as could defy the ordinary process. During the latter part at least of this long interval, the council and court of star-chamber were in all their vigour, to which the intermission of parliamentary judicature may in a great measure be ascribed. It was owing also to the longer intervals between parliaments from the time of Henry VI., extending sometimes to five or six years, which rendered the redress of private wrongs by their means inconvenient and uncertain. In 1621 and 1624, the Lords, grown bold by the general disposition in favour of parliamentary rights, made orders without hesitation on private petitions of an original nature. They continued to exercise this jurisdiction in the first parliaments of Charles I.; and in one instance, that of a riot at Banbury, even assumed the power of punishing a misdemeanour unconnected with privilege. In the long parliament, it may be supposed that they did not abandon this encroachment, as it seems to have been, on the royal authority, extending their orders both to the punishment of misdemeanours and to the awarding of damages.[31]

The ultimate jurisdiction of the House of Lords, either by removing into it causes commenced in the lower courts, or by writ of error complaining of a judgment given therein, seems to have been as ancient, and founded on the same principle of a paramount judicial authority delegated by the Crown, as that which they exercised upon original petitions. It is to be observed that the council or star-chamber did not pretend to any direct jurisdiction of this nature; no record was ever removed thither upon assignment of errors in an inferior court. But after the first part of the fifteenth century, there was a considerable interval, during which this appellant jurisdiction of the Lords seems to have gone into disuse, though probably known to be legal.[32] They began again, about 1580, to receive writs of error from the court of king's bench; though for forty years more the instances were by no means numerous. But the statute passed in 1585, constituting the court of exchequer-chamber as an intermediate tribunal of appeal between the king's bench and the parliament, recognises the jurisdiction of the latter, that is, of the House of Lords, in the strongest terms.[33] To this power, therefore, of determining, in the last resort, upon writs of error from the courts of common law, no objection could possibly be maintained.

Their pretensions about the time of the restoration.—The revolutionary spirit of the long parliament brought forward still higher pretensions, and obscured all the land-marks of constitutional privilege. As the Commons