which was insisted on by the house of commons in the case of the earl of Danby in the reign of Charles II. (h); and it is now enacted by statute 12 & 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) (5). 2. The court of the lord high steward of Great Britain (k) is a court instituted for the trial of peers, indicted for treason or felony, or for misprision of either (1). The office of this great magistrate is very ancient; and was formerly hereditary, 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 [*262] parliament, else he is incapable to try 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 assises 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 receive and try it, secundum legem et consuetudinem Angliae. 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 proper (but of late years not less that twentythree) (0), and that those lords only should sit upon the trial (6): 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 predominate party should most approve of. And accordingly, when the earl of Clarendon fell into disgrace with Charles II., *there was a design [*263] 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 in duced 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. 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 (q). 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 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 (†). 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 execution 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. [*264] *It has been a point of some controversy, whether the bishops have now a right to sit in the court of the lord high steward, to try indictments of treason and misprision. Some 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 bishopricks, 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 observ. able 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 caeteri barones, debent interesse judiciis cum baronibus, quousque perveniatur ad diminutionem membrorum, vel ad mortem ;" and Becket's quarrel with the king hereupon was not on account of the exception (which was agreeable to the canon 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 hath 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 (p) Carte's Life of Ormonde, Vol. II (g) Fost. 141. (r) State Trials, Vol. IV. 214. 232, 3. (s) Fost. 139. (2) Lords' Journ. 15 May, 1679. 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; and though the statute of king William regulates the proceedings [*265] in that court, as well as in the court 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 exclusion 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, 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 (7). 3. The court of king's bench (x), concerning the nature of which we partly inquired in the preceding book (y), was (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 misdemeanor or breach of the peace (8), (9). Into this court also indictments from all inferior courts may be removed by writ of certiorari, and tried either at bar, or at nisi prius, by a jury of the county out of which the indictment is brought (10). supreme coroners of the kingdom. (u) Fost. 248. (wo) Bro. Abr. t. Trial, 142. (7) 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. See the editor's conjecture how the notion was originally introduced that bishops were not entitled to a trial by the peers in parliament. Book I. p. 401. note. Since that note was written, the editor has been happy in finding what he suggested only as a conjecture drawn from general principles, confirmed by the more extensive learning of the late Vinerian professor Mr. Wooddeson, who not only has adopted the same opinion, but has adduced in confirmation of it several instances of bishops, who, being arraigned before a jury, demanded the privileges of the church, and disclaimed the authority of all secular jurisdictions. 2 Woodd. 585. (8) This power in New-York is vested in the court of oyer and terminer. (2 R. S. 205, 29.) See note (1) p. 258 ante. (9) Without some statute for that purpose, offences committed out of England are not cognizable by this court.† 1 Esp. Rep. 62. 1 Sess. Cas. 246. If, however, any part of an offence be completed in Middlesex, though the rest were committed abroad, an indictment The judges of this court are the And the court itself is the principal (x) 4 Inst. 70. 2 Hal. P. C. 2. 2 Hawk. P. C. 6. (y) See Book III. page 41. lies in this court, or, in case of misdemeanor, an information, if the offence were committed in any other county. 1 Esp. Rep. 63. 2 New Rep. 91. And this though the defendant himself was out of the kingdom at the time, if he caused the offence to be committed here; as where the defendant sent over a libel from Ireland to be published at Westminster. 6 East, 589, 590. Persons in his majesty's service abroad committing offences there, may be prosecuted in the king's bench by indictment, or information, laying the venue in Middlesex. 42 Geo. III. c. 85. s. 1. 8 East, 31. So offences committed in the East Indies are subject to this jurisdiction. 24 Geo. III. sess. 2. c. 25. s. 64. 78. 81. 5 T. R. 607. So if high treason be committed out of the kingdom, it can only be tried in the court of king's bench, or under a special commission. 32 Hen. VIII. c. 23. 1 Leach, 157. 1 Hale, 1. And this court has jurisdiction by information over offences committed in Berwick. 2 Burr. 860. (10) All informations filed in the court of king's bench, and all indictments removed there by certiorari, if not tried at the bar of the court, which rarely happens, must be tried by writ of nisi prius. + In New-York, stealing in another state in the same way as if the theft were commitand bringing the property here, is punishable ted here. 2 R. S. 698, § 4, 5. court of criminal jurisdiction (though the two former are of greater dignity known to the laws of England. For which reason by the coming of the court of king's bench into any county (as it was removed to Oxford on account of the sickness in 1665), all former commissioners of oyer and termi ner, and general gaol delivery, are at once absorbed and deter[*266] mined ipso facto: "in the same manner as by the old Gothic and Saxon constitutions, "jure vetusto obtinuit, quievisse omnia inferiora judicia, dicente jus rege (2) (11).” Into this court of king's bench hath reverted all that was good and salutary of the jurisdiction of the court of star-chamber, camera stellata (a); which was a court of very ancient original (b), but new-modelled by statutes 3 Hen. VII. c. 1. and 21 Hen. VIII. c. 20. consisting of divers lords spiritual and temporal being privy counsellors, together with two judges of the courts of common law, without the intervention of any jury. Their jurisdiction extended legally over riots, perjury, misbehaviour [*267] of sheriffs, and other notorious misdemeanors, contrary to the laws of the land. Yet, this was afterwards (as lord Clarendon informs us) (c) stretched "to the asserting of all proclamations, and orders of state to the vindicating of illegal commissions, and grants of monopolies; holding for honourable that which pleased, and for just that which profited, and becoming both a court of law to determine civil rights, and a court of revenue to enrich the treasury; the council table by proclamations enjoining to the people that which was not enjoined by the laws, and prohibiting that which was not prohibited; and the star-chamber, which con (z) Stiernhook, l. 1, c. 2. (a) This is said (Lamb. Arch. 154.) to have been so called, either from the Saxon word rteoɲan to steer or govern ;-or from its punishing the crimen stellionatus, or cosenage ;-or because the room wherein it sat, the old council-chamber of the palace of Westminster, (Lamb. 148.) which is now converted into the lottery office, and forms the eastern side of New Palace-yard, was full of windows;or (to which sir Edward Coke, 4 Inst. 66. accedes) because haply the roof thereof was at the first garnished with gilded stars. As all these are merely conjectures (for no stars are now in the roof, nor are any said to have remained there so late as the reign of queen Elizabeth), it may be allowable to propose another conjectural etymology, as plausible perhaps as any of them. It is well known that before the banishment of the Jews under Edward I. their contracts and obligations were denominated in our ancient records starra or starrs, from a corruption of the Hebrew word shetar, a covenant. (Tovey's Angl. judaic. 32. Selden, tit. of hon. ii. 34. Uzor braic. 1. 14.) These starrs, by an ordinance of Richard the First, preserved by Hoveden, were commanded to be enrolled and deposited in chests under three keys in certain places; one, and the (11) But by the 25 Geo. III. c. 18, it is enacted, that the session of byer and terminer, and gaol delivery of the gaol of Newgate for the county of Middlesex, shall not be discontinued on account of the commencement of the term, and the sitting of the court of king's bench at Westminster, but may be continued till the business is concluded. And the 32 Geo. III. c. 48, was passed to continue in like manner the sessions of the peace, and of oyer and terminer, held before the justices of the peace for the county of Middlesex. (12) In one of the statutes of the university of Cambridge, the antiquity of which is most considerable, of which was in the king's ex- not known, the word starrum is twice used for a schedule or inventory. The statute is entitled De computatione procuratorum, and it directs that in fine computi fiat starrum per modum dividendae, in quo ponentur omnia remanentia in communi cista tam pignora quam pecunia, ac etiam arreragia et debita, ita quod omnibus constare poterit evidenter, in quo statu tunc universitas fuerit quoad bona, &c. Stat. Acad. Cant. p. 32. Such inventories would be made at the king's exchequer, and the room where they were deposited would probably be called the Star-chamber. sisted of the same persons in different rooms, censuring the breach and disobedience to those proclamations by very great fines, imprisonments, and corporal severities: so that any disrespect to any acts of state, or to the persons of statesmen, was in no time more penal, and the foundations of right never more in danger to be destroyed." For which reason it was finally abolished by statute 16 Car. I. c. 10. to the general joy of the whole nation (d). 4. The court of chivalry (e), of which we also formerly spoke (f) as a military court, or court of honour, when held before the earl marshal only, is also a criminal court, when held before the lord high constable of England jointly with the earl marshal. And then it has jurisdiction over pleas of life and member, arising in matters of arms and deeds of war, as well out of the realm as within it. But the criminal, as well [268] as civil part of its authority, is fallen into entire disuse there having been no permanent high constable of England (but only pro hac vice at coronations and the like) since the attainder and execution of Stafford duke of Buckingham, in the thirteenth year of Henry VIII; the authority and charge, both in war and peace, being deemed too ample for a subject: so ample, that when the chief justice Fineux was asked by king Henry the Eighth, how far they extended, he declined answering; and said, the decision of that question belonged to the law of arms, and not to the law of England (g). 5. The high court of admiralty (h), held before the lord high admiral of England, or his deputy, stiled the judge of the admiralty, is not only a court of civil but also of criminal jurisdiction. This court hath cognizance of all crimes and offences committed either upon the sea, or on the coasts, out of the body or extent of any English county; and by statute 15 Ric. II. c. 3. of death and mayhem happening in great ships being and hovering in the main stream of great rivers, below the bridges of the same rivers, which are then a sort of ports or havens; such as are the ports of London and Gloucester, though they lie at a great distance from the sea. But, as this court proceeded without jury, in a method much conformed to the civil law, the exercise of a criminal jursidiction there was contrary to the genius of the law of England: inasmuch as a man might be there deprived of his life by the opinion of a single judge, without the judgment of his peers. And besides, as innocent persons might thus fall a sacrifice to the caprice of a single man, so very gross offenders might, and did frequently, escape punishment for the rule of the civil law is, how reasonably I shall not at present inquire, that no judgment of death can be given against offenders, without proof by two witnesses, or a confession of the fact by themselves. This was always a great offence to this English nation: and therefore in the eighth year of Henry VI. it was endeavoured to apply *a [*269] (d) The just odium into which this tribunal had fallen before its dissolution, has been the occasion that few memorials have reached us of its nature, jurisdiction, and practice; except such as, on account of their enormous oppression are recorded in the histories of the times. There are however to be met with some reports of its proceedings in Dyer, Croke, Coke, and other reporters of that age, and some in manuscript, of which the author hath two; one from 40 Eliz. to 13 Jac. I. the other for the first three years of king Charles: and there is in the British Museum (Harl. MSS. Vol. I. N° 1226.) a (e) 4 Inst. 123. 2 Hawk. P. C. 9 (13) Hudson's Treatise of the Court of Star-chamber is now published at the beginning of the 2d vol. of Collectanea Juridica. |