at least in part, is regulated by statute;1 and that its powers have been transferred to it by statute from the whole Privy Council. In essence, the powers of this court are simply what is left of the original general judicial power of the Crown. The modifications imposed upon it by statutes, having the free approval of the Crown, ought hardly to be considered as destroying entirely its constitutional character. It must be conceded, however, that, in its present status, it lies upon the border line between constitutional and statutory institutions. I shall treat it briefly, however, as a constitutional court.

I. The Judicial Committee of the Privy Council.

1. The members of this court, as privy councilors, are appointed by the Crown. They are subject to dismissal by the Crown, and may also, of course, be impeached by the Parliament. Except in case of their death, resignation, dismissal, or impeachment, at an earlier date, they hold for the life of the royal person appointing them, and for six months subsequent to his or her decease.3

The statutes 3 & 4 William IV, c. 41, and 34 & 35 Victoria, c. 91, require that the committee shall be composed of those privy councilors, who are, for the time being, Lord President of the Council and Lord Chancellor, those who fill or have filled high judicial offices, and of two other councilors specially designated by the Crown; also that from those councilors who have filled high judicial offices in India or the Colonies, two shall have seats in the committee. These last four receive compensation. These are certainly quite important statutory limitations upon the pleasure of the Crown in the appointment of the members of this court. The purpose and result of them are, as we shall see, the identification of this committee, as regards its personnel, with

1 Statutes, 3 & 4 William IV, c. 41; Ibid. 6 & 7 Victoria, c. 38; Ibid. 7 & 8 Victoria, c. 69. 2 Ibid. 3 & 4 William IV, c. 42. 3 Bowyer, Constitutional Law of England, p. 125 ff.; Statutes, 6 Anne, c. 7.

those members of the House of Lords who exercise the appellate judicial powers of the House of Lords.

It should be added that, under certain circumstances, the composition of the committee is modified by other statutes. When the proceedings before the court are under the Church Discipline act, the bishops and archbishops, who are privy councilors, are made members of this court, and when the proceedings are under the Public Worship act, these persons attend as assessors.2

2. The jurisdiction of this court is chiefly appellate. Appeals are taken to it from the Court of Arches at Canterbury, from vice-admiralty courts abroad, from the Isle of Man, the Channel Islands, India, and the colonies generally. This appellate jurisdiction is almost wholly regulated by statute, and the proceedings are in the form of a petition to the Crown in Council.3

In a few cases, however, this court has original jurisdiction. Applications for the extension of patents, controversies between two provinces concerning the extent of their charters, claims of a feudal grant to a province or an island from the Crown, are subject to the original jurisdiction of this court.*

Finally, it must be concluded, from the general principles of the English political system, that all questions of a judicial nature, for the consideration of which by the courts of independent jurisdiction or by the House of Lords no provision is made, either by custom or statute, are subject to the origi nal jurisdiction of the judicial committee of the Privy Council. This is the residuary governmental power of the Crown in the domain of the administration of justice.

II. The House of Lords as a Judicial Body.

1. The jurisdiction of the House of Lords as a court separates itself into three general branches, vis; as high

1 Statutes, 3 & 4 Victoria, c. 86.

2 Ibid. 39 & 40 Victoria, c. 59. 8 Bowyer, Constitutional Law of England, p. 126 ff.

4 Ibid. p. 127.

criminal court for the trial of peers, as general court of impeachment, and as highest appellate court in the United Kingdom.

As criminal court for the trial of peers the body is composed of all the Lords of Parliament.1 As court of impeachment it is likewise composed of all the Lords of Parliament.2 As highest appellate court, however, while the body is still composed of all the Lords of Parliament, it is requisite that not less than three persons of the following description shall be present at the hearing and determination of any appeal, viz; the Lord Chancellor of Great Britain for the time being, the Lords of Appeal in Ordinary, and such Lords of Parliament as hold or have held high judicial offices.3 The persons of this description are termed the Lords of Appeal. The Lords of Appeal in Ordinary are two, eventually four, persons appointed by the Crown to hold during good behavior, without regard to the demise of the Crown. They must be taken by the Crown from among persons who shall have held, for at least two years, high judicial office or shall have been, for fifteen years, practising barristers in England or Ireland, or practising advocates in Scotland. If they are not already Lords of Parliament, which they may be, they become such by virtue of this appointment. Their dignity and office thus created do not descend to their heirs. They are paid salaries of 6000 pounds sterling per annum. They are the statutory exceptions to that custom of the constitution. which makes all peerages created by the Crown hereditary, and to that custom also which denies compensation out of the royal treasury to Lords of Parliament. The purpose of this statutory creation is to strengthen the judicial capacity of the House of Lords; and, as a matter of fact, the appellate judicial power of the House of Lords is now exercised by the

1 Bowyer, Constitutional Law of England, p. 323.

2 Anson, Law and Custom of the Constitution, Part I, p. 306.

8 Statutes, 39 & 40 Victoria, c. 59.

4 Ibid.

Lord Chancellor, the Lords of Appeal in Ordinary, and such other Lords of Parliament as hold or have held high judicial office. Moreover, these Lords of Appeal in Ordinary, if they be members of the Privy Council, as they are almost sure to be, are constituted members of the judicial committee of the Privy Council. This same statute furthermore provides that, whenever two of the four paid judges in the judicial committee of the Privy Council shall have died or resigned, the Crown may appoint a third Lord of Appeal in Ordinary; and that, when the other two shall have died or resigned, the Crown may appoint a fourth Lord of Appeal in Ordinary; and that these two new Lords shall have the same tenures, salaries, pensions, and positions as the other two first created.2

By referring now to the composition of the judicial committee of the Privy Council it will be seen that, when the four Lords of Appeal are all in office, that committee will be composed substantially of those members of the House of Lords who exercise the appellate jurisdiction of that body. Upon both benches we shall find the Lord Chancellor, the judges of the High Courts, and the Lords of Appeal in Ordinary. The complete unification of the highest appellate instance for the whole Empire will then have been accomplished.

2. When the House of Lords sits as high criminal court for the trial of peers, it is not the Lord Chancellor who presides over it, but a Lord High Steward, appointed pro hac vice. The respective functions of this official and of the Lords are not those of judge and jury: the Lord High Steward is merely a pro tempore chairman, and the Lords are the judges both of the law and the fact. The judges of the high courts attend the trial, and assist the Lords with their counsel upon points of law. The Lord High Steward also advises the Lords upon points of law, and sums up the evidence. When the vote is taken upon the question of guilty 2 Ibid. c. 59, § 14.

1 Statutes, 39 & 40 Victoria, c. 59.

or not guilty, the spiritual Lords must withdraw. The temporal Lords alone may vote upon this question. (The spiritual Lords are Lords of Parliament, but not peers. They cannot be tried before this court, and they do not participate in the rendering of its judgments.) The Lords answer, separately, upon their honor, the question of guilty or not guilty, put to them by the Lord High Steward. To convict, the vote must be that of a majority, and must be concurred in by at least twelve Lords.1

The jurisdiction of this court extends only to the high crimes of treason, felony, and misprision of treason and of felony committed by peers and peeresses. Its jurisdiction

over these crimes is not exclusive. When the Parliament is not in session, peers and peeresses charged with any of these crimes may be tried before the court of the Lord High Steward. In this court the Lord High Steward is judge, and decides the questions of law. The jury, however, must be composed of Lords of Parliament, and when the accusation is of treason or misprision of treason, the entire House, excepting only the spiritual Lords, forms the jury. In such a case the court of the Lord High Steward is virtually the House of Lords.

The prosecution of peers and peeresses before this court proceeds upon an indictment, found by a grand jury of freeholders in the Queen's Bench or at the Assizes before the justices of Oyer and Terminer, and removed to the House of Lords by a writ of certiorari issued by this house.5

3. When the House of Lords acts as a court of impeach、 ment, it is presided over by the Lord High Steward, in case the person tried be a peer or peeress, and by the Lord Chancellor or Speaker of the House of Lords, in case the

1 Blackstone, Commentaries upon the Laws of England, Bk. IV, p. 261 ff. Sharswood's Edition; Bowyer, Constitutional Law of England, p. 323 ff.

2 Ibid.

3 Ibid.

4 Statutes, 7 William III, c. 3.

5 Bowyer, Constitutional Law of England, p. 321, note 3.