« PreviousContinue »
court from whence the appeal comes, to act as originally it ought to have acted according to law, as the law ought to have been understood and practiced in that tribunal. The lords, in such cases of necessity, judge on the grounds of the law, and practice of the courts below; and this they can very rarely learn with precision, but from the body of the judges. Of course much deference is, and ought to be had to their opinions. But by this means a confusion may arise (if not well guarded against) between what they do in their appellate jurisdiction, which is frequent, and what they ought to do in their original jurisdiction, which is rare ; and by this the whole original jurisdiction of the peers, and the whole law and usage of parliament, at least in their virtue and spirit, may be considerably impaired.
After having thus submitted to the House the general tenour of the proceedings in this trial, your committee will, with all convenient speed, lay before the house the proceedings on each head of evidence separately, which has been rejected ; and this they hope will put the house more perfectly in possession of the principal causes of the length of this trial, as well as of the injury which parliamentary justice may, in their opinion, suffer from those proceedings.
30th April, 1794.
Appendix, No. 1.
IN THE CASE OF EARL FERRERS.
April 17th, 1760.
The House of Peers unanimously found Earl Ferrers guilty of the felony and inurder whereof he stood indicted ; and the earl being brought to the bar, the high steward acquainted him therewith ; and the House immediately adjourned to the chamber of parliament : and having put the following question to the judges, adjourned to the next day.
“ Supposing a peer, so indicted and convicted, ought by law, to receive judgment as aforesaid, and the day appointed by the judgment for execution should lapse before such execution done, whether a new -time may be appointed for the execution, and by whom?"
On the eighteenth, the House then sitting in the chamber of parliament, the lord chief baron, in the absence of the chief justice of the common pleas, delivered, in writing, the opinion of the judges, which they had agreed on and reduced into form that morning. His lordship added many weighty reasons in support of the opinion; which he urged with great strength and propriety, and delivered with a becoming dignity.
TO THE SECOND QUESTION. “ Supposing the day appointed by the judgment for execution should lapse before such execution done, (which, however, the law will not presume,) we are all of opinion, that a
new time may be appointed for the execution, either by the high court of parliament, before which such peer shall have been attainted, or by the court of king's bench, the parliament not then sitting; the record of the attainder being properly removed into that court.”
The reasons upon which the judges founded their answer to the question relating to the further proceedings of the House after the high steward's commission dissolved, which is usually done upon pronouncing judgment, may possibly require some further discussion. I will, therefore, before I conclude, mention those which weighed with me, and, I believe, with many others of the judges.
REASONS, &c. Every proceeding in the House of Peers acting in its judicial capacity, whether upon writ of errour, impeachment, or indictment, removed thither by certiorari, is in judgment of law a' proceeding before the king in parliament : and therefore the House, in all those cases, may not improperly be styled, the court of our lord the king in parliament. This court is founded upon immemorial usage, upon the law and custom of parliament, and is part of the original system of our constitution. It is open for all the purposes of judicature during the continuance of the parliament: it openeth at the beginning and shutteth at the end of every session; just as the court of king's bench, which is likewise in judgment of law held before the king himself, openeth and shutteth with the term. The authority of this court, or, if I may use the expression, its constant activity for the ends of publick justice, independent of any special powers derived from the crown, is not doubted in the case of writs of errour from those courts of law whence errour lieth in parliament, and of impeachments for misdemeanours.
It was formerly doubted, whether, in the case of an impeachment for treason, and in the case of an indictment against a peer for any capital crime, removed into parliament by certiorari, whether in these cases the court can proceed to trial and judgment, without an high steward, appointed by special commission from the crown. This doubt seemeth
to have arisen from the not. distinguishing between a proceeding in the court of the high steward, and that before the king in parliament. The name, style, and title of office is the same in both cases; but the office, the powers, and pre-eminences annexed to it, differ very widely ; and so doth the constitution of the courts where the offices are executed. The identity of the name may have confounded our ideas, as equivocal words often do, if the nature of things is not attended to; but the nature of the offices, properly stated, will I hope remove every doubt on these points. In the court of the high steward, he alone is judge in all points of law and practice ; the peers triers are merely judges of fact, and are summoned by virtue of a precept from the high steward, to repear before him on the day appointed by him for the trial, Ut Rei Veritas melius sciri poterit. The high steward's commission, after reciting that an indictment hath been found against the peer by the grand jury of the proper county, impowereth him to send for the indictment, to convene the prisoner before him, at such day and place as he shall appoint, then and there to hear and determine the matter of such indictment; to cause the peers triers tot and tales, per quos Rei Veritas melius sciri poterit, at the same day and place to appear before him, Veritateque inde compertâ, to proceed to judgment according to the law and custom of England, and thereupon to award execution.* Ву this it is plain that the sole right of judicature is in cases of this kind vested in the high steward ; that it resideth solely in the person ; and consequently without the commission, which is but in nature of a commission of oyer and terminer, no one step can be taken in order to a trial; and that when his commission is dissolved, which he declareth by breaking his staff, the court no longer existeth.
But in a trial of a peer in full parliament, or, to speak with legal precision, before the king in parliament, for a capital offence, whether upon impeachment or indictment, the
* See Lord Clarendon's commission as high steward, and the writs and precepts preparatory to the trial, in Lord Morley's case. VII, St. Tri.
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 Kil. marnock, &c. and Lord Lovat, and many other modern cases,