person tried be a commoner. Neither of them, however, occupies the position of judge over against the Lords as jury. The Lords determine the questions both of law and fact. When the question of guilty or not guilty is put to the Lords, the spiritual Lords must withdraw, if the case be a capital one. The spiritual Lords, however, as all other persons, may be impeached before the House of Lords for any offence. Whether, therefore, they must withdraw when one of their own number is impeached, and why they must withdraw in any case, the commentators do not definitely state. In all cases, impeachment is instituted by a vote of the House of Commons. After the motion has been passed, a committee of the House, appointed for the purpose, draws up and delivers to the House of Lords and to the accused person copies of the accusation. The usual forms of criminal procedure are followed before the House of Lords. The Lords vote separately, upon honor, to the question of guilty or not guilty, propounded to them by the Lord High Steward or the Lord Chancellor or Speaker, as the case may be, and a simple majority of the Lords will convict. I do not find it anywhere distinctly stated, however, whether the majority shall be that of the whole number of Lords entitled to seats in the house, or of the regular quorum only. Upon conviction by vote of the Lords, the accused is brought to the bar of the House of Lords, and if the Speaker of the Commons then demands judgment, it is pronounced by the Lord who presided over the House of Lords at the trial.1 The last impeachment trial was that of Lord Melville in the year 1805-6. The failure of the attempt to impeach Lord Palmerston in the year 1848 shows that the procedure has become nearly obsolete in the English system. 4. When the House of Lords sits as highest Court of Appeal for the United Kingdom, it is regularly presided over by the Lord Chancellor. The Lord Chancellor does not, 1 Anson, Law and Custom of the Constitution, Part I, p. 303 ff. however, sit as judge over against the other Lords as jury. All the Lords sit as judges, and the decision is by majority vote. Although all the Lords may sit in this court, yet in fact, as I have already pointed out, only certain members of the House do sit. Nevertheless the sitting of these members is always regarded in law as the sitting of the House.1 This court may sit during a prorogation of Parliament, if so ordered by the House of Lords during the session of Parliament next preceding the prorogation.2 Also during a dissolution of Parliament, the Lords of Appeal may, under authority from the Crown, exercise the jurisdiction of the House of Lords as highest Court of Appeals. They may sit in the House of Lords for that purpose, and their sittings are regarded in law as continuations of the sittings of the House of Lords.3 Appeals may be taken to this court from any order or judgment of Her Majesty's Court of Appeal in England and from any order or judgment of any court in Scotland or Ireland from which, by custom or statute existing on the 31st day of October, 1876, error ran or appeal lay to the House of Lords. "Every appeal" must "be brought by way of petition to the House of Lords, praying that the matter of the order or judgment appealed against may be reviewed before Her Majesty, the Queen, in her Court of Parliament, in order that the said court may determine what of right, and according to the law and custom of" the "realm, ought to be done in the subject-matter of such appeal." 5 The statute empowers the court to fix the amount in controversy necessary to an appeal, to determine the security for costs and the time within which appeal shall be brought, and to provide for the rules of practice and procedure. The appellate jurisdiction of the House of Lords, as it now 1 Anson, Law and Custom of the Constitution, Part I, p. 308. 2 Statutes, 39 & 40 Victoria, c. 59, § 8. exists, appears to be purely statutory. Moreover, the statute which confers its jurisdiction was not passed by a House of Commons elected upon the issue of the judicatory acts. It would seem, therefore, that the law upon which this court rests is not constitutional but ordinary law. But the test of distinction between these two kinds of law is not simply their source. It is rather the character of the power required to alter or abolish them. No power of the House of Lords, however acquired, can be altered or abolished against the will of that House, except by an act of the state. The custom of the constitution requires the House of Lords to yield against its own will only to a House of Commons elected upon the direct issue. When no such appeal has been made to the electorate, the absolute veto of the House of Lords may be freely employed against the projects of the House of Commons or of the Crown. Viewed from this standpoint, the only standpoint which gives us firm footing in considering this subject, we must class the judicial power of the House of Lords, as highest appellate court of the United Kingdom, among the constitutional functions of that House. CHAPTER III. THE ORGANIZATION AND POWERS OF THE JUDICIARY IN THE GERMAN IMPERIAL CONSTITUTION. THERE is but one court in the German Empire which can be termed constitutional in distinction from statutory, viz; the Bundesrath, the Federal Council. The constitution neither establishes an independent judicial department nor provides for the judicial tenure. It simply vests in the legislature the power to create and regulate the whole judicial organization of the Empire.1 But if the legislature creates and regulates without further constitutional limitations, it can modify and destroy. The regular courts are thus purely statutory, and as such have no place in a treatise devoted exclusively to constitutional law. Upon the Federal Council, however, the constitution confers certain judicial powers. These are: 1. The power to settle conflicts of a political nature between the commonwealths of the Empire upon application from either party to the conflict.2 According to this provision, the Federal Council can assume jurisdiction only upon application from one of the parties to the conflict. It has, therefore, no constitutional power to proceed upon its own initiative. Should its aid be invoked by one of the parties, the constitution permits it to accord. the same only when the controversy is of a political character.4 1 Reichsverfassung, Art. 4, § 13. 2 Ibid. Art. 76, § 1. 3 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 59 ff. Laband, Das Staatsrecht des deutschen Reichs, Band I, S. 248 ff. * Reichsverfassung, Art. 76, § 1. The German jurisprudence distinguishes the Empire and the commonwealths, as political organizations, from these same bodies, as private corporations. For example, all the fiscal rights of the Empire and the commonwealths are rights of these bodies as private corporations, and all controversies in respect to the same are pursued before the ordinary courts. The very article of the constitution, which vests jurisdiction. in the Federal Council over the political conflicts between commonwealths, refers to the jurisdiction of the ordinary courts over private controversies between these same bodies. Lastly, the constitution does not confer upon the Federal Council simply the power to hear and decide these controversies, the term employed in the constitution is of a more general nature. The German word here used is not entscheiden but erledigen. Erledigen means to dispose of, to settle. Now the settlement of a controversy does not necessarily involve a judicial decision. The Federal Council may be able to settle the question either by mediation or by reference to arbitration, and, in case these methods should fail, the Council might still refer the decision to some regular court, since the constitution does not specifically require the decision to be rendered by the Council itself. One of the earliest commentators upon the Imperial constitution holds that it was not intended that the Council should ever render the decision itself. Certainly no body could be less fitted for the rendering of judicial decisions than the Federal Council. Its members are not required to have any judicial qualifications; they must vote according to instructions from their respective principals; and the parties to the controversy may take part in the rendering of the decision.3 Nevertheless I think the Federal Council has the constitutional power to 1 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 59 ff.; Laband, Das Staatsrecht des deutschen Reichs, Bd. I, S. 248 ff. 2 Von Rönne, Das Staatsrecht des deutschen Reichs, Bd. I, S. 218, 219. 3 Schulze, Lehrbuch des deutschen Staatsrecht, Zweites Buch, S. 60. |