(t) For the form he (t) pray it in time; and that if he have neglected to pray it of such a prayer, before the return of a common venire, he can neither except to such venire, nor pray a tales or other process de medietate lingua. S. P. C. 259. Plowden, 2. 2 Hale, 272. 3 Bac. Abr. 263. Rast. Ent. 7. 158, 159. 264, 265. Dyer, 144. Sect. 41. It was (x) holden, even before the union of the two. kingdoms under king James the First, that no Scot was an alien. within the meaning of this statute, not only because the Scotch. language is the same with the English, but also (y) because the Scots were never reckoned aliens, but rather subjects. case, 7 Coke. See 1 State Triais, 572, 573. 4 St. Tr. 652, &c. Sect. 42. Note, That (z) some of the precedents for the award of a venire of a jury of half denizens and half aliens, in pursuance of 28 Edw. 3. mention, that the aliens shall be of the same country whereof the party alleges himself; and others direct (a) generally, that one half of the jury shall be aliens, without specifying any country in particular. And this form seems most agreeable to the statute, which speaks of aliens in general; and it seems to be confirmed both by late (b) practice, and the greater number of (c) authorities. Sect. 43. If on a venire of half denizens and half aliens, the sheriff return twelve as aliens, and among them some who in truth are not such, it seems (d) that the party shall not be concluded by such return, but may, notwithstanding, challenge the array for want of a sufficient number of aliens. Sect. 44. It seems (e) agreed, that the return of a venire of half denizens and half aliens, ought to specify which of the jurors are denizens and which aliens, and that a full number of each must appear to be sworn. statute of jeofails. Sect. 45. If one or more be wanting to make up the full number of six denizens or aliens, the justices of nisi prius, by a reasonable (ƒ) construction of the statutes which give a tales de circumstantibus, may award such a tales for so many denizens or aliens as shall be wanting. CHAP. XLIV. OF TRIAL BY PEERS. As to the Trial by Peers, having shewn already, ch. 39. s. 1. I shall now endeavour to shew, 1. The particular form and solemnity to be observed in such a trial. 2. Who are to be triers. 3. Who are to be so tried. 4. As to what crimes. 5. Upon what suits and pleas. 6. Whether a peer can waive a trial by his peers. 7. In what manner the peers may require the opinion of the lord steward or of the judges. 8. Whether the court may be adjourned. As to the FIRST POINT, viz. The particular form and solemnity to be observed in such trial. Sect. 1. When an indictment is found against a peer for a (a) S. P. C. crime for which he ought to be tried by his peers, the king by his 152. Year-book, commission under the great seal, reciting the indictment, con- 13 H. 8. 11. stitutes some (a) peer high (b) steward of the kingdom pro hac 4 Inst. 59. vice, and by the same commission gives him power to receive and proceed on such indictment, and requires the peers to be attendant on him, and the lieutenant of the Tower to bring the prisoner before him. Barr. 234. 13 H. 8. 11. S. P. C. 152. The necessity of making a high steward for the trial of an impeachment for high treason was denied by the house of commons in the Earl of Danby's case, 2 State Trials, 198. Sect. 2. Also (c) a certiorari, which may either have the same (c) 3 Inst. 128. date with the steward's commission, or a subsequent one, goes out of chancery to certify the indictment before the steward indilate; and the steward by his precept, under his seal, directed to those before whom the indictment was found, appoints a certain day and place at which it shall be certified. And another writ goes out of chancery to the lieutenant of the Tower, &c. to bring the prisoner before the steward at such a day and place as he shall appoint; and thereupon the steward by his precept under his seal directed to the lieutenant, &c. appoints the day and place. Sect. 3. Also the steward makes (d) another precept under his seal to the serjeant-at-arms, appointed to serve him during the time of his commission, to summon the (e) peers before him at such a place, day and hour, &c. (d) This is to be intended when not sitting, the parliament is but is either dissolved or pro rogued. 3 State Tr. 659 to 665. 3 Inst. 28. S. P. C. 152. 13 H. 8. 11. (e) It is said, 13 H. 8. 11. S. P. C. 157. that the steward shall make such precept to cause twenty or eighteen peers to come before him; but Sir Edward Coke, 3 Inst. 28. says, that the precept doth not mention any certain number; and now by 7 Will. 3. all the peers are to be summoned. Kelynge, 56. 2 Jones, 94. 13 H. 8. 11. Sect. 4. At the time appointed the steward, attended (ƒ) with (f) 3 Inst. 28. six or (g) seven serjeants-at-arms, carrying maces before him, (g) Rushw. 96. and by the king-at-arms, and the usher of the black rod, enters (h) 5 Inst. 28. the place of trial uncovered, and ascends a chair of state, which S. P. C. 152. always is (h) provided for that purpose, and then the (i) clerk of 1 H. 4. 1. the crown, or a (k) master in chancery, delivers to him his com- (i) 3 Inst. 21. mission, and he delivers it again to the clerk (1) of the crown, (k) 1 Rushw. 96. and then a serjeant-at-arms makes three (m) oyes, and a procla- (3 Inst. 28. mation for silence in the name of the steward, and then the lord (m) 1 H. 4. 1. steward 3 Inst. 28. 1 Rushw. 96. 955. 4 State Trials, $50. (0) 3 Inst. 28. 1 Rushw. 96. (p) 3 Inst. 28. (9) 3 St. Tr. 955. steward and all the other lords (n) standing up uncovered, the (n) 3 State Tr. commission is read, and then the (o) usher on his knees delivers to the steward a white rod, who delivers it to him or to a serjeant-at-arms, who holds it by him during the trial; then an (p) oyes is made, and a command given in the name of the steward to all justices and commissioners, to certify all indictments, &c. which being delivered into court, the clerk of the crown reads the return. Another oyes is made that the lieutenant of the Tower, &c. return his writ and precept, and bring the prisoner to the bar, and then the prisoner is brought to the bar, the (q) gentleman-gaoler of the Tower carrying the axe before him, which being (r) done the clerk reads the return. themselves; but 1 H. 4. 1. and 13 H. 8. 11. and S. P. C. 152. 4 State Trials, 353 to 355. and 2 Jones, 55. are contrary. 4 State Trials, 355. (r) By 3 Inst. 28, all this is to precede the call of the peers and their seating 3 St. Tr. 955, 966. (s) 3 Inst. 29. S. P. C. 152. 2 Jones, 55. and the other books cited to the precedent section. (t) Raym. 408. 1 State Trials, 966. Sect. 5. All things being thus prepared, the high steward (s) acquaints the prisoner with the nature of the crime, and such like matters proper for such an occasion, and then the clerk of the crown arraigns him, (t) but is not to insist on his holding up his hand. 3 State Trials, 658. 957. 2 State Trials, 702, 703. Sect. 6. After the prisoner hath pleaded, and put himself upon God and his peers, the king's counsel go through with their evidence; and after the prisoner hath made his defence, and the king's counsel have been fully heard, the prisoner is withdrawn from the bar, and the lords go together to consider of their evidence; and when a majority of them are agreed, they return to the place of trial, and the lord steward demands of them one by one, beginning with the puisne, whether the person arraigned be (u) 3 Inst. 30. guilty or not guilty, and they (u) all answer one by one, not upon their oaths, but on their (x) honours and ligeances. And the lord steward gives judgment according to the determination of the (y) majority, being more than twelve, but gives no vote himself on a trial by (2) commission, but only on a trial by the house of peers, while the parliament is sitting. 2 Inst. 49. F. Corone, 34. 1 H. 4. 1. S. P. C. 152. 13 H. 8. 12. 2 Jones, 55, 56. 10 Ed. 4. 61. (x) See the books Moor, 622. (a) 2 Inst. 48. Co. Litt. 150. (b) Ab. F. Cor. 34. cited S. P. C. 153. Brook, in a note of the same case, Corone, 153. says, that they shall make (3) 2 State Trials, 702. 3 State Trials, 657. 679. As to the SECOND POINT, viz. Who are to be triers. Sect. 7. It is agreed, (a) that none but lords who have a vote in parliament can pass on such a trial; and before 7 Will. 3. c. 3. when the trial was by commission, it seems to have been the practice for the lord steward to cause as many temporal lords to be summoned as he thought fit; and for the lords so summoned alone to pass on the trial. But this is remedied by that statute, set forth more at large in the next section. Sect. 8. It is agreed, that at a trial before the house of peers, every temporal lord who has a right to vote in that house has a right to pass on such trial. But it is said in the Year Book of 10 Ed. 4. 6. (b) pl. 17. that upon the trial of a peer in parliament, the bishops shall make a procurator, because they cannot con proxies. Sir Edward Coke, 3 Inst. 31. says, that they must withdraw and make their proxies. sent sent to the death of a man: but this is (c) said to be wholly (c) See Bishop grounded on a canon not in force at this day. Neither do I find Stillingfleet, Of the Bishop's Juany precedent wherein they have been excluded against their risdiction in Criconsent, or have withdrawn themselves without a protestation of minal Cases, c.2, their right, or making a proxy; (d) and the judgment against the 3. and Hunt's Argument, c. 9, Spencers was expressly reversed for this reason among others, 10,11. because the bishops were not present; and in the precedents (d) Fost. 248. chiefly insisted on of the other side, it is not expressly said that they were not present, and it doth not clearly appear but that they might be included under the word "peers." a the Bishops Ju pital Cases, c. 1. s. 3. and c. 2. (f) 2 State Tr. However, it hath been always (e) admitted that they have (e) See Hunt's Argumentfor the right to vote in a bill of attainder: also in the Earl of Danby's Right of Bishops case, they were adjudged (f) by the house of lords to have a &c. c. 12. and right to vote in questions previous to the trial of a peer, though Stillingfleet, Of this was strongly opposed by the house of commons. And risdiction in Catheir right to vote at the trial itself, if they think fit, seems fully implied in 7 Will. 3. c. 3. which enacts, "That upon the trial "of any peer or peeress for treason or misprision, all the peers "who have a right to sit and vote in parliament shall be sum"moned twenty days at least before every such trial, to appear "at every such trial, and that every peer so summoned and appearing, shall vote at the trial; every such peer first taking "the oaths of allegiance and supremacy, and subscribing and "repeating the declaration against popery." 66 As to the THIRD POINT, viz. What persons are to be thus tried. 42. (g) 2 Inst. 48. 3 Inst. 30. Co. Litt. 156. Sect. 9. It is (g) agreed, that no lord of any (h) other country, or even of (i) Scotland, before the union under Queen Anne, or of (k) Ireland, (1) nor the son and heir (1) apparent of any peer, (h) Vide F. or any other man whatsoever who is not at the time a lord of Brief, 473. parliament, hath any right to such a trial in this kingdom; but 20 Ed. 4. 6. that every lord of parliament hath a right to such a trial (m) by Dignity, 49. virtue of that clause in Magna Charta, ch. 29. "Nec super eum (i)9 Coke, 117. ibimus, nec super eum mittemus, nisi per legale judicium parium Vide 32 Edw. 3. suorum vel per legem terra." B. Nosme de 35. B. Nosme de (k) Vide sup. c. 25. s. 50. (1) B. Treason, 2. (n) Such trial is said to be very ancient. 2 Înst. 45. 50. Sect. 10. It is recited by 20 Hen. 6. c. 9. to have been a doubt in the law of England how ladies of great estate in respect of their husbands, peers of the land, married or sole, that is to say, duchesses, countesses, or baronesses, shall be put to answer and judged upon indictments of treasons and felonies, because they are not mentioned in the said statute of Magna Charta, ch. 29.; and thereupon, to put out such doubts, (o) it is declared, "That (0) 2 Inst. 45. "such ladies so indicted of any treason or felony, whether they 50. and see the "be married or sole, shall thereof be brought to answer, and Kingston's case, "judged before such judges and peers of the realm, as peers of 11 State Trials. "the realm should be, if they were indicted or impeached of such "treasons or felonies." Duchess of Sect. 11. It seems agreed, (p) that a queen, the king's con- (p) 2 Inst. 50. Crompton, sort, Juris. 33. (1) That is before the Union with Ireland, but now, by the Act of Union, the representative peers of Ireland have a right to vote. (9) See the cita- (r) 2 Inst. 50. (s) S. P. C. 152. (t) 3 Inst. 30. But in F. Cor. 161. it seems admitted that a bishop shall be tried by the peers, in cases proper for such trial; and B. Trial, 142. cites sort, and also a queen dowager, whether she continue sole after the king's death, or take a second husband, be he a peer or a commoner; and also all peeresses by birth, whether they be sole or (q) married to peers or commoners; and also all marchionesses and viscountesses are intitled to a trial by the peers, though none of them be expressly mentioned in this act, or in Magna Charta. But it is (7) agreed, that a peeress by marriage loses her dignity by marrying a commoner. Sect. 12. It is said by (s) Staundforde and (i) Coke, that those who are lords of parliament not in respect of their nobility, but of their baronies which they hold of the crown, as bishops now do, and some abbots and priors (u) did formerly, are not within the intent of Magna Charta to be tried by the peers. And (x) Selden seems clear, that this is the only privilege which bishops have not in common with other peers. And those who seem (y) most for the contrary opinion admit that the law hath been generally so taken. Neither do they produce any precedent where a bishop or abbot has been tried by the peers upon a commission; but on the contrary admit that there are (2) two precedents of their being tried by the country. And it is said by (a) others, that there are divers precedents of this kind; yet Selden, with his utmost diligence, seems able to produce but two which this is mistaken, clearly and fully come up to his point, viz. those of Archbishop Cranmer and Bishop Fisher. However it seems to be (b) agreed, that while the parliament is sitting a bishop shall be tried a note from F. Chall, 115. wherein he says it was holden that bishops shall be tried by the peers; but for there is no such opinion by the peers. tory, b.6. f. 292. (x) Selden of Baronage, 152. Titles of Honour, 1st edit. p. 347. (y) Hunt's Argument for the Bishops' Right in Capital Cases, ch. 18. Gibs. Codex, 154. Stillingfleet, Of the Bishops' Jurisdiction in Capital Cases, c. 4. (z) B. Tr. 142. See Hunt's Argument, c. 18. and Stillingflect, Of the Bishops' Jurisdiction in Capital Cases. (a) S. P. C. 153. Seld. Baron. 142 to 155. Vide 3 Inst. 30. (b) See Hunt's Argument, c. 18. Trials per Pais, c. 2. par. 8. 1 State Trials, 374. Stillingfleet, Of the Bishops' Jurisdiction in Capital Cases. B. Abr. Trial, 142. contrary. (c) 3 Inst. 30. 2 Inst. 40. S. P. C. 153. 1 Bulst. 198. (d) S. P. C. 158. 1 Bulst. 198. (e) See the books above cited. 2 State Tr. 3. F. Corone, 161. As to the FOURTH POINT, viz. As to what crimes a peer is to be tried by his peers. Sect. 13. I take it to be (c) agreed, that he has a right to be so tried upon an indictment of treason or felony, (d) whether such treason or felony be made such by the common law or by statute; and also upon an indictment for a misprision of treason or felony; but it (e) seems, that regularly he is to be tried by the country for all other crimes out of parliament, as (f) præmunire, (g) riot, (h) seducing a young lady from her parents in order to debauch her, &c. (f) 1 Bulst. 198, 199. 3 Inst. 30. 12 Coke, 93. (g) 3 State Trials, 79. (h) 3 State Trials, 52. 12 Coke. 93. (i) 10 Ed. 4. 6. F. Corone, 34. As to the FIFTH POINT, viz. Upon what suits and pleas a peer is to be tried by his peers. Sect. 14. It hath been (i) adjudged, that he shall not be so tried upon an appeal of felony, but only upon an indictment; B. Corone, 153. and the reason given for it is, that those words in Magna Charta, ch. 29. nec super eum ibimus, &c. are to be intended only of the suit of the king, and not of the suit of the subject. S. P. C. 152. 2 Inst. 49. 3 Inst. 30. Rastal, 50. Sect. |