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case is quite otherwise ; every peer present at the trial, and every temporal peer, hath a right to be present in every part of the proceeding; voteth upon every question of law and fact ; and the question is carried by the major vote, the high steward himself voting merely as a peer and member of that court, in common with the rest of the peers, and in no other right.
It hath indeed been usual, and very expedient it is, in point of order and regularity, and for the solemnity of the proceeding, to appoint an officer for presiding during the time of the trial, and until judgment, and to give him the style and title of steward of England ; but this maketh no sort of alteration in the constitution of the court; it is the same court founded in immemorial usage, in the law and custom of parliament, whether such appointment be made or not. It act. eth in its judicial capacity in every order made touching the time and place of the trial, the postponing the trial from time to time upon petition, according to the nature and circumstances of the case, the allowance or non-allowance of council to the prisoner, and other matters relative to the *trial; and all this before an high steward hath been appointed. And so little was it apprehended, in some cases which I shall mention presently, that the existence of the court depended on the appointment of an high steward, that the court itself directed in what manner, and by what form of words, he should be appointed. It hath likewise received and recorded the prisoner's confession, which amounteth to a conviction, before the appointment of an high steward ; and hath allowed to prisoners the benefit of acts of general pardon, where they appeared entitled to it, as well without the appointment of an high steward, as after his commission dissolved. And when, in the case of impeachments, the Commons have sometimes, at conferences between the Houses, attempted to interpose in matters preparatory to the trial, the general answer hath been, “ This is a point of judicature upon which the lords will not confer ;” they impose “ si
* See the orders previous to the trial, in the cases of the Lords Kilmarnock, &c. and Lord Lovat, and many other modern cases.
lence upon themselves,” or to that effect. I need not here cite instances ; every man who hath consulted the journals of either House hath met with many of them.
I will now cite a few cases, applicable, in my opinion, to the present question. And I shall confine myself to such as have happened since the restoration ; because, in questions of this kind, modern cases, settled with deliberation, and upon a view of former precedents, give more light and satisfaction than the deepest search into antiquity can afford. And also because the prerogatives of the crown, the privileges of parliament, and the rights of the subject in general, appear to have been more studied, and better understood, at and for some years before that period, than in former ages.
In the case of the Earl of Danby, and the popish lords then under impeachments, the lords, on the 6th of May 1769, appointed time and place for hearing the Earl of Danby, by his counsel, upon the validity of his plea of pardon, and for the trials of the other lords; and voted an address to his majesty, praying that he would be pleased to appoint an high steward for those purposes. These votes were, on the next day, communicated to the Commons by message in the usual manner. On the 8th, at a conference between the Houses, upon the subject matter of that message, the Commons expressed themselves to the following effect : “ They cannot apprehend what should induce your lordships to address his majesty for an high steward, for determining the validity of the pardon which hath been pleaded by the Earl of Danby, as also for the trial of the other five lords, because they conceive the constituting an high steward is not necessary, but that judgment may be given in parliament upon impeachment without an high steward ;” and concluded with a proposition, that for avoiding any interruption or delay, a committee of both houses might be nominated, to consider of the most proper ways and methods of proceeding. This proposition the House of Peers, after a long debate, rejected. Dissentientibus, Finch,* chancellour, and many other lords. However, on the 11th the Commons'
* Afterwards Earl of Nottingham.
proposition of the 8th was, upon a second debate agreed to; and the lord chancellour, lord president, and ten other lords, were named of the committee, to meet and conser with a committee of the Commons. The next day the lord president reported, That the committees of both Houses met that morning, and made an entrance into the business referred to them ; that the Commons desired to see the commissions that are prepared for an high steward at these trials, and also the coromissions in the Lord Pembroke's and the Lord Morley's cases. That to this the lords' committees said, “ The high steward is but speaker pro tempore, and giveth his vote as well as the other lords ; this changeth not the nature of the court. And the lords declared they have power enough to proceed to trial, though the king should not name an high steward. That this seemed to be a satisfaetion to the Commons, provided it was entered in the lords journals, wbich are records." Accordingly, on the same day, “ It is declared and ordered, by the lords spiritual and temporal in parliament assembled, that the office of an high steward upon trials of peers upon impeachments, is not necessary to the House of Peers; but that the lords may proceed in such trials if an high steward be not appointed according to their humble desire.”+ On the 13th the lord president reported, 'That the committees of both Houses had met that morning, and discoursed, in the first place, on the matter of a lord high steward, and had perused former commissions for the office of high steward ; and then, putting the House in mind of the order and resolution of the preceding day, proposed from the committees that a new commission
* In the Commons' Journal of the 15th of May it standeth thus: Their lordships further declare to the committee, that a lord high steward was made hac vice only. That notwithstanding the making of a lord high steward the court remained the same, and was not thereby altered, but still remained the court of peers in parliament. That the lord high steward was but as a speaker or chairman, for the more orderly proceeding at the trials.
† This resolution my lord chief baron referred to and cited in his argument upon the second question proposed to the judges, which is before stated.
might issue, so as the words in the commission may be thus changed, viz. Instead of Ac pro eo quòd officium Seneschalli Angliæ (cujus præsentia in hac parte requiritur) ut accepimus jam vacat, may be inserted, Ac pro eo quod proceres et magnates in parliamento nostro assemblati, nobis humiliter supplicaverunt ut Seneschallum Angliæ pro hac vice constituere dignaremur ; to which the House agreed. *
It must be admitted that precedents drawn from times of ferment and jealousy, as these were, lose much of their weight, since passion and party prejudice generally mingle in the contest; yet let it be remembered, that these are resolutions in which both Houses concurred, and in which the rights of both were thought to be very nearly concerned ; the Commons' right of impeaching with effect, and the whole judicature of the lords in capital cases. For if the appointment of an high steward was admitted to be of absolute necessity (however necessary it may be for the regularity and solemnity of the proceeding during the trial, and until judgment, which I do not dispute,) every impeachment may, for a reason too obvious to be mentioned, be rendered ineffectual; and the judicature of the lords, in all capital cases, nugatory.
It was from a jealousy of this kind, not at that juncture altogether groundless, and to guard against every thing from whence the necessity of an high steward, in the case of an impeachment might be inferred, that the Commons proposed, and the lords readily agreed to, the amendment in the steward's commission, which I have already stated. And it hath, I confess, great weight with me, that this amendment, which was at the same time directed in the cases of the five popish lords, when commissions should pass for their trials, bath
* This amendment arose from an exception taken to the commission by the committee for the Commons, which as it then stood did in their opinion imply that the constituting a lord high steward was necessary. Whereupon it was agreed by the whole committee of Lords and Commons, that the commission should be recalled, and a new commission, according to the said amendment, issue, to bear date after the order and resolution of the 12th (Commons' Journal of the 15th of May.)
taken place, in every commission upon impeachments for treason, since that time.* And I cannot help remarking, that in the case of Lord Lovat, when neither the heat of the times, nor the jealousy of the parties, had any share in the proceeding, the House ordered, “ That the commission for appointing a lord high steward shall be in the like form as that for the trial of the Lord Viscount Stafford, as entered in the journal of this House, on the 30th of November 1680, except that the same shall be in the English language.”+
I will make a short observation on this matter.
The order, on the 13th of May 1679, for varying the form of the commission, was, as appeareth by the journal, plainly made, in consequence of the resolution of the 12th, and was founded on it ; and consequently the constant unvarying practice with regard to the new form goeth, in my opinion, a great way towards shewing, that in the sense of all succeeding times, that resolution was not the result of faction, or a blameable jealousy, but was founded in sound reason and true policy. It may be objected, that the resolution of the 12th of May 1679, goeth no further than to a proceeding upon impeachment. The letter of the resolution, it is admitted, goeth no further ; but this is easily accounted for : A proceeding by impeachment was the subject matter of the conference, and the Commons had no pretence to interpose in any other. But what say the lords?
The high steward is but as a speaker or chairman, pro tempore, for the more orderly proceeding at the trials; the appointment of him doth not alter the nature of the court, which still remaineth the court of the peers in parliament. From these premises, they draw the conclusion I have mentioned. Are not these premises equally true in the case of a proceeding upon indictment ?—They undoubtedly are.
It must likewise be admitted, that in the proceeding upon
* See in the State Trials, the commissions in the cases of the Earl of Oxford, Earl of Derwentwater, and others--Lord Wintoun and Lord Lovat.
+ See the proceedings printed by order of the House of Lords (4th February 1746.