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mans : who, in their great councils, sometimes tried capital accusations relating to the public: “ licet apud consilium accusare quoque, et discrimen capitis intendere (e) (3).” And it has a peculiar propriety in the English constitution; which has much improved upon the ancient model imported hither from the continent. For, though in general the union of the legislative and judicial powers ought to be most carefully avoided (f), yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either *dares not or cannot punish. Of these the representatives of the people, or house of Commons, cannot properly judge ; because their constituents are the parties injured: and can therefore only impeach. But before what court shall this impeachment be tried ? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an accuser. Reason therefore will suggest, that this branch of the legislature, which represents the people, must bring its charge before the other branch, which consists of the nobility, who have neither the same interests, nor the same passions, as popular assemblies (9). 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 ensure justice to the accused; as it is proper that the people should accuse, to ensure 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 Danby in the reign of Charles II. (h); and it is now enacted by statute 12 and 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 (i) (4).
(e) Tacit de mor. Germ. 12.
(h) Com. Journ. 5 May, 1679. (i) See ch. 31.
(3) It is lawful, also, to accuse a man before the council, and to try capi. tal charges there.
(4) But after the proceedings are finished, the prerogative of the king does not appear to be further limited.
peers of parlia.
right to sit and
2. The court of the lord high steward of Great Britain (K) 2. The lord high is a court instituted for the trial of peers, indicted for treason in which all or felony, or for misprision of either (1). The office of this ment have a great magistrate is very ancient; and was formerly hereditary, vote ; or at least held for life, or dum bene se gesserit ; but now it is usually, and hath been for many centuries past (m), granted pro hac vice only; and it hath been the constant practice (and therefore seems now to have become necessary) to grant *it to a lord of parliament, else he is incapable to try [*262] such delinquent peer (n). When such an indictment is therefore found by a grand jury of freeholders in the King's Bench, or at the assizes 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 recite and try it secundum legem et consuetudinem Angliæ. 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
(k) 4 Inst. 58; 2 Hawk. P. C. 5, &c. (Yearb. 13 Hen. VIII. 11.) See 421 ; 2 Jon. 54.
Staundf. P.C. 152; 3 Inst. 28; 4 Inst. (1) 1 Bulstr. 198.
59; 2 Hawk. P. C. 5; Barr. 234.(m) Pryn. on 4 Inst. 46.
" Where a peer of parliament shall be (n) Quand un seigneur de parlement arraigned of treason or felony, the king, serra arrein de treason ou felony, le roy by his letters patent, shall create some par ses lettres patents fera un grand et noble and sage peer to be the grand sage seigneur d'estre le grand seneschal seneschal of England; who must issue d'Antleterre ; qui, doit faire un precept, his precept, to cause to assemble twenty pur faire venir xx seigneurs, ou xvii, peers, or eighteen," &c.
proper, (but of late years not less than twenty-three (0), and that those lords only should sit upon the trial (5): which threw a monstrous weight of power into the hands of the crown, and this its 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 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 (p). 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. (6).
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 (9). 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 (0) Kelynge, 56.
(9) Fost. 141. (p) Carte's Life of Ormonde, vol. ii.
(5) The decision is by a majority, but a majority cannot convict, unless it consists of twelve or more.-CH.
(6) As a peer cannot have the benefit of a challenge like a commoner, (1 Harg. St. Tr. 198, 388,) it is some what surprising that this manifest improvement of the law and constitution was not extended to trials of peers for all felonies, in the court of the lord high steward. Lord Mountmorris informs us that there are but two instances of the trials of peers in Ireland, viz. of Viscount Netterville in 1743, and of
Lord Santry about the same time. The first was tried in the high court of parliament, the latter in the court of the high steward. They were both indicted for murder. Lord Netterville was acquitted, Lord Santry was convicted, but pardoned as to his life. Upon Lord Santry's trial all the peers were summoned, though the regulation of 7 W. III. was not introduced into Ireland till the year 1773; Lord Mountm. 2 vol. 197. Murder is high treason by the law of Ireland. - Ch.
but not bishops,
right to be tried
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 (r). Therefore, upon the conviction and attainder of a peer for murder in full parliament, it hath been holden by the judges (s), that in case the day appointed in the judgment for exection should lapse before execution done, a new time of execution may be appointed by either the high court of parliament, during its sitting, though no high steward be existing; or in the recess of parliament, by the court of King's Bench, the record being removed into that court.
*It has been a point of some controversy, whether the [*264) bishops have now a right to sit in the court of the lord high who have no steward, to try indictments of treason and misprision. Some time 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 bishoprics, 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 cæteri barones, debent interesse judiciis cum baronibus, quousque perveniatur ad diminutionem membrorum, vel ad mortem" (7): and Becket's quarrel with the king hereupon was not on
(r) State Trials, vol. iv. 214, 232-3. (8) Fost. 139.
(7) Bishops, like other peers, ought to be present at trials with the peers,
until they come to concern loss of life or of limb.
account of the exception, (which was agreeable to the canoni law,) but of the general rule, that compelled the bishops to attend at all. And the determination of the house of lords in the earl of Danby's case (t) which has ever since been adhered to, is consonant to these constitutions : "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 that of guilty or not
guilty) no bishop, as such, ever was or could be summoned ; [*265] and though the statute of king William *regulates the pro
ceedings in that court, as well as in the courts of parliament, yet it never intended to new model or alter its constitution ; and consequently does not give the lords spiritual any right in cases of blood which they had not before (u). And what makes their seclusion more reasonable, is, that they have no right to be tried themselves in the court of the lord high steward (w), 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 trial 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 (8). 2. The court of 3. The court of King's Bench (w), concerning the nature the principal of which we partly inquired in the preceding book (y), was, nal jurisdiction, 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
(8) But peeresses by marriage cannot be said to be ennobled by blood; for, after the death of their husbands,
they have even a less estate in their nobility than bishops, it being only durante: viduitate.Ch.