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cuser. Reason therefore will suggest, that this branch of the legislature, which represents the people, must bring it's charge before the other branch, which consists of the nobility, who have neither the same interests nor the same passions as popular assemblies . This is a vast superiority, which the constitution of this island enjoys, over those of the Grecian or Roman republics ; where the people were at the same time both judges and accusers. It is proper that the nobility should judge, to insure justice to the accused; as it is proper that the people should accuse, to insure justice to the commonwealth. And therefore, among other extraordinary circumstances attending the authority of this court, there is one of a very singular nature, which was insisted on by the house of commons in the case of the earl of Danby in the reign of Charles II."; and it is now enacted by statute 12 & 13 W.III. c.2. that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in parliament'. (3)

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(3) In the case of the impeachment of Warren Hastings, it was determined that an impeachment did not abate by a dissolution of parliament. The high court of parliament was affirmed to exist at all times, and although from a dissolution or other causes it might not always be sitting to do justice, it was always open for the reception of appeals and writs of error. The peers, who were the judges (it was said), had their authority inherent in their order, and independent of the actual sitting of parliament; and the prosecutors were not merely the members of the house of commons, but all the commons of England, who though they might be deprived of their organ by a dissolution, did not thereby lose their right of acting, and might resume the exercise of that right as soon as they were furnished with a new organ by the assembling of a new parliament. It cannot be denied, on the one hand, that there are some difficulties in coming to this conclusion ; but, on the other, it is certain that the right of impeachment would have lost half its value, if a contrary determination had been come to ; and it seems also certain that, in former times, when the duration of a parliament seldom exceeded a month, impeachments must have been absolutely nugatory, if a dissolution had abated them. The debates on this interesting subject, which were very learned and able, may be seen very well summed up, and the determination itself learnedly advocated, in the Ann. Reg. for 1791. vol. xxxü.

The student will not understand the stat. of W.III. as restraining the prerogative of the crown as to pardoning after judgment on an impeachment.

2. THE court of the lord high steward of Great Britain is a court instituted for the trial of peers, indicted for treason or felony, or for misprision of either!. The office of this great magistrate is very antient; and was formerly hereditary, or at least held for life, or dum bene se gesserit : but now it is usually, and hath been for many centuries past", granted pro hac' vice only; and it hath been the constant practice (and

therefore seems now to have become necessary) to grant it to [ 262 ) a lord of parliament, else he is incapable to try such delin

quent peer". When such an indictment is therefore found by a grand jury of freeholders in the king's bench, or at the assises before the justices of oyer and terminer, it is to be removed by a writ of certiorari into the court of the lord high steward, which only has power to determine it. A peer may plead a pardon before the court of king's bench, and the judges have power to allow it; in order to prevent the trouble of appointing an high steward, merely for the purpose of receiving such plea. But he may not plead, in that inferior court, any other plea; as guilty or not guilty, of the indictment; but only in this court : because, in consequence of such plea, it is possible that judgment of death might be awarded against him. The king therefore, in case a peer be indicted for treason, felony, or misprision, creates a lord high steward pro hac vice by commission under the great seal; which recites the indictment so found, and gives his grace power to receive and try it, secundum legem et consuetudinem Angliae. Then, when the indictment is regularly removed, by writ of certiorari, commanding the inferior court to certify it up to him, the lord high steward directs a precept to a serjeant at arms, to summon the lords to attend and try the indicted peer. This precept was formerly issued to summon only eighteen or twenty, selected from the body of the peers: then the number came to be indefinite; and the custom was, for the lord high steward to summon as many as he thought proper, (but of late years not less than twenty-three°(4), ) and that those lords only should sit upon the trial: which threw a monstrous weight of power into the hands of the crown, and this it's great officer, of selecting only such peers as the then predominant party should most approve of. And accordingly, when the earl of Clarendon fell into disgrace with Charles II., there was a design formed to prorogue the parliament, in [ 263 ] order to try him by a select number of peers; it being doubted whether the whole house could be induced to fall in with the views of the court.” But now by statute 7 W.III. c. 3. upon all trials of peers for treason or misprision, all the peers who have a right to sit and vote in parliament shall be summoned, at least twenty days before such trial, to appear and vote therein; and every lord appearing shall vote in the trial of such peer, first taking the oaths of allegiance and supremacy, and subscribing the declaration against popery.

* 4 Inst. 58. 2 Hawk. P.C. ç. 2, § 1. sage seigneur d'estre le grand seneschal f. 44. & 1. 2 Jon. 54.

d'Angleterre ; qui doit faire un pre11 Bulstr. 198.

cept pur faire venir Ir seigneurs, ou m Pryn. on 4 Inst. 46.

xviä, &c. (Yearb. 19 Hen. VIII. 11.) Quand un seigneur de parlement See Staundf. P. C. 152. 3 Inst, 28. serra arrein de treason ou felony, le roy 4 Inst. 59. 2 Hawk. P. Ç. c.2. $ 1. par ses lettres patents fera un grand et - Barr. 234. 287. 4th Ed. contra, s!

· During the session of parliament the trial of an indicted peer is not properly in the court of the lord high steward, but before the court last mentioned, of our lord the king in parliament. It is true, a lord high steward is always appointed in that case, to regulate and add weight to the proceedings: but he is rather in the nature of a speaker pro tempore, or chairman of the court, than the judge of it; for the collective body of the peers are therein the judges both of law and fact, and the high steward has a vote with the rest, in right of his peerage. But in the court of the lord high steward, which is held in the recess of parliament, he is the sole judge of matters of law, as the lords triors are in matters of fact; and as they may not interfere with him in regulating the proceedings of the court, so he has no right to intermix with them in giving any vote upon the trial. Therefore, upon the conviction and attainder of a peer for murder in full parliament, it hath been holden by the judges', that in case the day appointed in the judgment

• Kelynge. 56.
P Carte's life of Ormonde, Vol. II.
9 Fost. 141.

- State Trials, Vol. IV. 214.232, 3.

Fost, 139.

(4) “ Because that is the least number to be sure of twelve to be of one mind;" and though the verdict is by the majority, yet that majority must consist of twelve at the least. Kelynge. 56.

VOL. iv.

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for execution should lapse before execution done, a new time of execution may be appointed by either the high court of parliament during it's sitting, though no high steward be cxisting; or, in the recess of parliament, by the court of king's bench, the record being removed into that court.

[ 264 ] It has been a point of some controversy, whether the

bishops have now a right to sit in the court of the lord high
steward, to try indictments of treason and misprision. Some
incline to imagine them included under the general words of
the statute of king William, “ all peers, who have a right to
“ sit and vote in parliament:" but the expression had been
much clearer, if it had been, “all lords,” and not, “all peers;"
for though bishops, on account of the baronies annexed to
their bishopricks, are clearly lords of parliament, yet, their
blood not being ennobled, they are not universally allowed to
be peers with the temporal nobility: and perhaps this word
might be inserted purposely with a view to exclude them,
However, there is no instance of their sitting on trials for
capital offences, even upon impeachments or indictments in
full parliament, much less in the court we are now treating
of; for indeed they usually withdraw voluntarily, but enter a
protest declaring their right to stay. It is observable that, in
the eleventh chapter of the constitutions of Clarendon, made in
parliament 11 Hen. II., they are expressly excused, rather than
excluded, from sitting and voting in trials, when they come to
concern life or limb: “ episcopi sicut caeteri barones, debent
66 interesse judiciis cum baronibus, quousque perveniatur ad dimi-
nutionem membrorum, vel ad mortem :" and Becket's quarrel
with the king hereupon was not on account of the exception,
(which was agreeable to the canon law,) but of the general rule,
that compelled the bishops to attend at all. And the determi-
nation of the house of lords in the earl of Danby's case, which
hath ever since been adhered to, is consonant to these constitu-
tions; “ that the lords spiritual have a right to stay and sit in
“ court in capital cases, till the court proceeds to the vote of
“ guilty, or not guilty.” It must be noted, that this resolution
extends only to trials in full parliament : for to the court of the
lord high steward (in which no vote can be given, but merely

Lords' Journ. 15 May 1679.

that of guilty, or not guilty,) no bishop, as such, ever was or could be summoned; and though the statute of king William regulates the proceedings in that court, as well as in the [ 265 ] court of parliament, yet it never intended to new-model or alter it's constitution; and consequently does not give the lords spiritual any right in cases of blood which they had not before". And what makes their exclusion more reasonable is, that they have no right to be tried themselves in the court of the lord high steward", and therefore surely ought not to be judges there. For the privilege of being thus tried depends upon nobility of blood, rather than a seat in the house: as appears from the trials of popish lords, of lords under age, and (since the union) of the Scots nobility, though not in the number of the sixteen ; and from the trials of females, such as the queen consort or dowager, and of all peeresses by birth; and peeresses by marriage also, unless they have, when dowagers, disparaged themselves by taking a commoner to their second husband. (5)

3. The court of king's bench", concerning the nature of which we partly inquired in the preceding book y, was (we may remember) divided into a crown side, and a plea side. And on the crown side, or crown office, it takes cognizance of all criminal causes, from high treason down to the most trivial misdemesnor or breach of the peace. Into this court also indictments from all inferior courts may be removed by writ of certiorari, and tried either at bar, or at nisi prius, by a jury of the county out of which the indictment is brought. (6) The judges of this court are the supreme u Fost. 248.

• 4 Inst. 70. 2 Hal. P.C.2. 2 Hawk. P.C. 6. w Bro. Abr. t. Trial. 142. y See Vol. III. pag.41.

(5) See Vol. I. p. 401.

(6) The court of king's bench possesses the power in all cases where it appears that an impartial trial cannot be had in the county out of which the indictment is brought, to direct the trial to be had in some other county. And by the 38 G.3. c. 52. it is provided, that in all indictments removed into the king's bench by certiorari, and in all informations filed there, if the venue be laid in any city or town corporate, the court, at the instance of the prosecutor or defendant, may, if it think proper, direct the issue to be tried by a jury of the next adjoining county. London, Westminster, Southwark, Bristol, and Chester are entirely exempted from the operation of this act; and Exeter, except in case of indictments removed by certiorari.

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