208 The Period of Constitution Making
these original bodies still retained the power to deal at
first instance with any case, criminal or civil, which the
king cared to bring before them. They entertained many
cases of a special character, and had, as was natural, a
kind of supervisory jurisdiction over the ordinary courts.
While finally ceasing to be an administrative body, the
House of Lords carried over from its earlier history, and
has always retained, certain judicial functions. When it
was the king's feudal court, the king's vassals were judged
in it by their fellow-vassals, their peers; in it, as in any-
feudal court, was judgment of peers (judicium parium).
In the House of Lords, any English peer has the right to
be judged, in capital crimes, by his fellow peers.r In the
procedure, known as impeachment, which developed late
in the fourteenth century, the House of Lords judges and
the House of Commons prosecutes.2 In the same century
it was established that the Lords constituted the highest
court of appeal for all England,3 a position they have con-
tinued to hold except in a few classes of civil cases which
are appealed to the Council. And to the end of the Lan-
castrian period, and even later, the large number of pri-
vate petitions of legal right received by Parliament con-
stituted the chief routine judicial work of the Lords.4
When the Lords were engaged in this judicial work,
they were known by the technical and curious name of
1 That is, for treason or felony. The House of Lords constitutes the court
and judges both fact and law if Parliament is in session at the time of
trial. If not, the king appoints a Lord High Steward who chooses twenty-
three peers to act with him; he judges the law and they the facts. After
1688 all the peers have had to constitute the Lord High Steward's Court
in cases of treason. A statute of 1422 secured these rights of trial to peeiv
esses. For lesser crimes, misdemeanors, and in civil litigation peers are
judged by the king's justices; and in cases of felony their special rights
have often not been claimed. The last trial of a peer by his fellow peers
was about 1840.
2 See below, p. 424. For a description of the modern, central judicial
system, see Maitland, Justice and Police, chs. y. and vi.
s As a court of appeal the House of Lords is, more technically, said to
have jurisdiction in error. This draws the important distinction between
trying the same facts twice (which was repugnant to the English law) and
correcting errors in law. Through the attaint jury, however (see above,
p. 164, note 2), the same facts were tried twice.
4 See below, pp, 397, 398, and pp. 414, 415.