ment of the Queen's Bench, by which the prisoners had been remanded. Writs of error for the purpose of appealing from judgments of inferior tribunals are writs of right, to be granted ex debito justitiæ, and not of grace and favour. And so the Lords showed in their address, and so ten of the twelve judges certified to the Queen, upon a reference by her to them for the purpose, February 1704-5 (a).

Two of the counsel in these proceedings who had been committed to prison, with a view to their own liberation, caused the Serjeant of the House of Commons to be served with writs of habeas corpus; the House directed the Serjeant not to yield any obedience to the writ.

The Lords' address to the Queen comments with great severity on these latter proceedings, on the ground that the denial of legal assistance to the burgesses was an injustice to them, and that the votes of the House of Commons imported a direct repeal of the laws made for the protection of liberty by means of writs of habeas corpus. The address concluded by praying the Queen to order the issue of the writs of error. She replied, "I should have granted the writ of error desired in this address, but finding an absolute necessity of putting an immediate end of this session, I am sensible there could have been no further proceeding upon this matter "(b). Immediately afterwards the Queen ended the session in a speech, in which she regretted the dissensions of the two Houses, and then that Parliament was dissolved (c).

Lord Campbell, in his Life of Lord Somers, speaks of the proceedings of the House of Commons in this case as an attempt by an "ultra-Tory House of Commons, by an abuse of Parliamentary privilege, to encroach on the just rights of the subject" (d). It may be added, that the proceedings of the House of Lords were a noble defence of those rights.

(a) 14 State Trials, 862 n.

(b) Ibid. 878.

(c) Burnet, Hist. of his own Time, A.D. 1705.
(d) Campbell's 'Lives of the Chancellors,' vol. iv. p. 181.

The historical instances just cited appear to abundantly justify the position that the power of the House of Lords has tended to maintain the balance of the Constitution in this sense, that the power of the House of Lords has, in many critical cases, been exerted to protect the powers of the executive and legislative government from mutual encroachment. It may be objected that in many of the instances cited, the House of Lords was actuated by a desire to maintain, not the balance of the Constitution, but their own power. This objection, however, only shows that the House of Lords has a never-failing motive for maintaining the balance of the Constitution; and therefore, instead of invalidating the inference just drawn, confirms it.

Of the remaining arguments for the constitution of the House of Lords, the most considerable is thus expressed by De Lolme. He says, that on account of the division of the legislature into three parts, "they will therefore be led to offer to each other only such propositions as will at least be plausible; and all very prejudicial changes will thus be prevented, as it were, before their birth.... Besides, when one of these parts of the legislature is so successful as to engage the others to adopt its proposition, the result is that a law takes place which has in it a great probability of being good; when it happens to be defeated, and sees its proposition rejected, the worst that can result from it is, that a law is not made at that time, and the loss which the state suffers thereby reaches no further than the temporary setting aside some more or less useful speculation "(a).

Mr. Bentham, in his 'Constitutional Code '(b), collects several arguments against the division of the legislature. Of these arguments, those which have not been already considered may be here briefly mentioned. He considers that the chamber not elected by the people would serve to screen the monarch from the just resentment of the people; to which it may be answered, that the modern principle of (a) De Lolme on the Constitution, book ii. ch. 3. (b) Book i. ch. 16.

making the ministers of the Crown responsible to the House of Commons, is more effectual for securing the power of the legislature than the principle of making the Sovereign personally responsible. To his argument that the Upper Chamber, by the splendour of its dignities, would exercise an undue influence on the people, it may be replied that if the Lords were admitted into the House of Commons, as they must be (a) if they had not a separate chamber, they would be far more influential to resist popular measures than at present. Indeed, the influence of the Lords against popular measures has been (especially before the passing of the Reform Acts of 1832) most sensibly exerted by their power as individuals, in returning members to the House of Commons, not by their power in their aggregate capacity as a branch of the legislature.

Among Mr. Bentham's arguments are the following:that the only benefit ascribable to a second house is its acting as a remedy against precipitation; but that if the principal house be chosen of the most apt men, that aptitude is a protection against precipitation. He argues also that if the first house be selected in a manner calculated to procure the best men, the second house must be selected in a manner inferior, or, at the utmost, only equally good.

It may be replied, that the remedy against precipitation is not the only benefit ascribable to a division of the legislature, the balance of power being at least an equal benefit. Next, the remedy against precipitation, even were there but one House, would consist in the selection, not only of the most apt men, but also of so many of them as to secure the exercise of many minds in the debate and revision of every measure adopted. The characteristic principle of legislation by a "Parliament" (as the name implies), as distinguished

(a) In 1649, when the Commons resolved that an Act should be brought in for abolishing the House of Lords, they declared that peers should have the privilege to be elected knights and burgesses, of which concession some of them took the benefit soon after. (Clarendon, Hist. of the Rebellion, vol. iii. 345, Oxford ed., 1816.)

from legislation by absolute lawgivers, is, that the former is the result of debate, and the comparison of diverse opinions. The division of the legislature is but an extension of that principle. However the first chamber be selected, it is clear that the submission of its measures to further debate in a second chamber is an additional remedy against precipitation, even though the legislative capacity of the second chamber be not superior to that of the first chamber.

Moreover, it will be found on examination, that every one of Bentham's arguments against a second chamber applies equally to legislation by assemblies instead of single lawgivers. The advantage of unity of the legislature, the disadvantage of delay, and complication of legislation— which are arguments on which he relies-are arguments for assigning the legislative power to a single lawgiver. Yet a prudent nation will distrust its own power of selecting any one man fit to have so tremendous a power, and will provide against probable errors in its choice of legislators by multiplying their number.

The most obvious objection to the constitution of the House of Lords,—an objection raised elsewhere by Mr. Bentham,—is the hereditary succession of peers. It is said that the accident of birth does not ensure the requisite qualities of a legislator; but the only useful way of considering this question is by reference to observed facts, not to mere speculation. The peerage is constantly recruited from the other classes of society, as has been shown in a previous part of this chapter; the hereditary peers who take frequent part in the debates of the House of Lords are usually men who have previously acquired distinction in the House of Commons or the courts of law; and the annals of Parliament, from the earliest times, are full of illustrious examples of orators and constitutional statesmen who have swayed the counsels of the House of Lords (a).

(a) An important argument in favour of a division of the legislature is derived from its general adoption in constitutional forms of government, ancient and modern. In the ninth year of the Commonwealth, Cromwell

Of course hereditary rank is a purely artificial and indirect test of moral and intellectual qualifications; but so are many other similar tests adopted in our law; for instance, the property qualification of jurors. It is not a sufficient objection to that test that men who are morally or intellectually unfit to be jurors may by accident possess the legal qualification; experience, which is the only safe guide in such matters, shows that the property qualification of jurors does ordinarily answer its intended purpose; and therefore we may infer that the objection to arbitrary nature of the analogous qualification of peers is at least not conclusive.

(3) Assistants.-Besides the temporal and spiritual peers, certain persons have, from very early periods, been summoned to Parliament as "Assistants" to the King and the House of Lords. Anciently, these Assistants were most usually the King's great officers, clerical and secular, who were not lords or barons of the realm. In later times, all the King's Justices, Barons of the Exchequer, Serjeants-at-law, the Master of the Rolls, the Attorney-General and SolicitorGeneral, and some Masters in Chancery, have usually been summoned to advise the King and the Lords in matters of law, and also to carry messages, bills, and orders from the Lords to the Commons, and to return answers to them. The assistants have no vote in the determinations of the House of Lords, and, with the exception of the judges, are not precluded from sitting in the House of Commons. In former times the judges were occasionally consulted by the House of Lords upon bills of a public nature, but in modern times their advice has been taken principally with respect to certain private bills and questions of law arising in appeals to the House of Lords. The judges, as attendants of the House of Lords, carry prerogative bills relating to the Crown and the Royal family to the other House of Parliament; but ordinary messages were entrusted to the masters in Chancery, previously to the abolition of their constituted an Upper House to interpose "between him and the tumultuous and popular spirits in the Commons' House."