the house of lords as a court of appeal relic of the days when they had been summoned to medieval parliaments as members of the king’s council, this was no mere polite formality. Thus on Friday 14 November 1689, during the first busy Michaelmas term after the Glorious Revolution, when the judges were observed to be absent from the house, having presumably no shortage of business to deal with in the courts sitting before them nearby, “it was ordered, that all the judges be sent for into Westminster Hall presently, and reprimanded for their non-attendance daily in the House. Who being come; the Speaker acquainted them, That the Lords expected their daily attendance.”28 The following Tuesday, when they were again missing, Black Rod, the official messenger of the house, was sent to command their attendance. Some two years later a more reasonable and realistic provision merely entailed “That one judge of each court inWestminster Hall do attend the House during the Term.”29 Yet in 1693 and 1694 formal rebukes to all the judges for their “great Negligence” in attendance were again issued by the lord keeper as speaker of the House.30 The Lords could and often did seek the judges’ opinions on pending legislation as well as on appeals cases; when these last were in question, judicial advice tended to be called for on quite specific points of law. Thus in November 1691, for example, after hearing counsel on both sides of an appeal in the case of Parker v Thornhill, the Lords decided that the “judges shall be heard, to give their Opinions upon this Question, Whether the Words of the Will make an Estate Tail.”31 Numerous similar examples are recorded in the Lords Journals throughout the later seventeenth and eighteenth centuries. Yet there was no requirement, practice or understanding to the effect that such advice must always or usually be called for, let alone followed. For appeals were decided by simple majority vote of those peers present on the day that the vote was taken. In these circumstances no reasoned account of the outcome –no judgment in the 28 Lords Journal, xiv. 342. The peremptory tone may in part reflect resentment at the recent subservience of James II’s judiciary; cf. ibid. 187 and 202. 29 Lords Journal, xv. 307. 30 Lords Journals, xv.363–4, 438. 31 Lords Journals xiv. 665. 188
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