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think themselves bound implicitly to submit to this authority, that at length they may come to think themselves to be no better than jurors, and may virtually consent to a partition of that judicature, which the law has left to them whole, supreme, uncontroulied, and final.
This final and independent judicature, because it is final and independent, ought to be very cautious with regard to the rejection of evidence.- If incompetent evidence is received by them, there is nothing to hinder their judging upon it afterwards according to its value. It may have no weight in their judgment; but if, upon advice of others, they previously reject information necessary to their proper judgment, they have no intermediate means of setting themselves right, and they injure the cause of justice without any remedy. Against errours of juries, there is remedy by a new trial; against errours of judges there is remedy, in civil causes, by demurrer and bills of exceptions ; against their final mistake there is remedy by writ of errour, in courts of common law. In chancery there is a remedy by appeal, If they wilfully err in the rejection of evidence, there was formerly the terrour existing of punishment by impeachment of the Commons ;- but with regard to the lords, there is no remedy for errour, no punishment for a
Your committee conceives it not improbable, that this apparently total and unreserved submission of the lords to the dictates of the judges of the inferiour courts (no proper judges in any light, or in any degree, of the law of parliament) may be owing to the very few causes of original jurisdiction, and the great multitude of those of appellate jurisdiction wbich come before them. In cases of appeal or of errour (which is in the nature of an appeal) the court of appeal is obliged to judge, not by its own rules, acting in another capacity, or by those which it shall choose pro re nata to make, but by the rules of the inferiour court from whence the appeal comes, for the fault or the mistake of the inferiour judge is, that he has not proceeded as he ought to do, according to the law which he was to administer; and the correction, if such shall take place, is to compel the 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 murder 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 proceedi ig 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 appear 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.* By 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 indietment, 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.