special jurisdiction, and confined to some particular parts of the kingdom. 1. Courts of general jurisdiction. In our inquiries into the criminal courts of public and general jurisdiction, I must, in one respect, pursue a different order from that in which I considered the civil tribunals. For there, as the several courts had a gradual subordination to each other, the superior correcting and reforming the errors of the inferior, I thought it best to begin with the lowest, and so ascend gradually to the courts of appeal or those of [*259] *the most extensive powers. But as it is contrary to the genius and spirit of the law of England to suffer any man to be tried twice for the same offence in a criminal way, especially if acquitted upon the first trial; therefore these criminal courts may be said to be all independent of each other; at least, so far as that the sentence of the lowest of them can never be controlled or reversed by the highest jurisdiction in the kingdom, unless for error in matter of law, apparent upon the face of the record; though sometimes causes may be removed from one to the other before trial. And therefore as in these courts of criminal cognizance, there is not the same chain and dependence as in the others, I shall rank them according to their dignity, and begin with the highest of all, viz.: 1. The high court of parliament; which is the supreme court in the kingdom, not only for the making, but also for the execution, of laws: by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachment.1 As for acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties, beyond or contrary to the common law, to serve a special purpose, I speak not of them; being to all intents and purposes new laws, made pro ne nata (for present emergency), and by no means an execution of such as are already in being. But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom. (a) A commoner cannot, however, be impeached before the lords for any capital offence, but only for high misdemeanors: (b) a peer may (a) 1 Hal. P. C. 150. (b) When in 4 Edw. III the king demanded the earls, barons, and peers to give judgment against Simon de Bereford, who had been a notorious accomplice in the treasons of Roger, Earl of Mortimer, they came before the king in parliament, and said all with one voice that the said Simon was not their peer; and, therefore, they were not bound to judge him as a peer of the land. And when afterwards, in the same parliament, they were prevailed upon, in respect to the notoriety and heinousness of his crimes, to receive the charge, and give judgment against him, the following protest and proviso was entered in the parliament-roll: "And it is assented and accorded by our lord the king, In the United States, as well as in the several states of the Union, the senate tries impeachments, while the lower house prefers the charges. The whole law of impeachment was very fully considered on the trial of President Johnson, to the report of which the reader is referred. See also 6 Am. Law Reg., N. S., 257 and 641. forbids the passage of bills of attainder, by either the national or state governments. Const. U. S., art. 1, §§ 9 and 10. This precludes special acts imposing punishments on particular persons or classes of persons by legislative authority. For a full discussion of these provisions, see Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; Drehman v. Stifle, 8 Wall, 595. The constitution of the United States be impeached for any *crime. And they usually (in case [*260] of an impeachment of a peer for treason) address the crown to appoint a lord high steward for the greater dignity and regularity of their proceedings; which high steward was formerly elected by the peers themselves, though he was generally commissioned by the king; (c) but it hath of late years been strenuously maintained (d) that the appointment of an high steward in such cases is not indispensably necessary, but that the house may proceed without one. The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords; who are, in cases of misdemeanors, considered not only as their own peers, but as the peers of the whole nation. This is a custom derived to us from the constitution of the ancient Germans: who, in their great councils, sometimes tried capital accusations relating to the public: "licet apud consilium accusare quoque, et discrimen capitis intendere" (it is allowed to bring accusations before the council, and to commence capital prosecutions). (e) 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 more carefully avoided, (7) 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 [*261] 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. (g) 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 insure justice to the accused; as it is proper that the people should accuse, to insure 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 of Danby, in the and all the great men, in full parliament, that albeit the peers, as judges of the parliament, have taken upon them in the presence of our lord the king, to make and render the said judgment, yet the peers who now are, or shall be in time to come, be not bound or charged to render judgment upon others than peers; nor that the peers of the land have power to do this, but thereof ought ever to be discharged and acquitted; and that the aforesaid judgment now rendered be not drawn to example or consequence in time to come, whereby the said peers may be charged hereafter, to judge others than their peers, contrary to the laws of the land, if the like case happen, which God forbid." (Rot. Parl. 4 Ed. III, n. 2 and 6. 2 Bred. Hist. 190. Selden, Judic. in Parl. c. 1.) (c) 1 Hal. P. C. 350. (d) Lords Journ. 12 May, 1679. Com. Journ. 15 May, 1679. Fost. 142, &c. (e) Tacit. de mor. Germ. 12. (g) Montesq. Sp. L. xi, 6. (f) See book I, page 269. 1On charges of misdemeanor, how by jury. R. v. Lord Faux, 1 Bulstr. ever, peers are tried, like commoners, 197. reign of Charles II; (h) and it is now enacted by statute 12 and 13 Wm. III, c. 2, that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britian in parliament. (i) 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. (7) 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 (for the special case) only; and it hath been the constant practice (and therefore seems now to have become necessary) to grant *it to a lord of par[*262] liament, 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 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 receive and try it secundum legem et consuetudinem Anglia (according to the law and custom of England). Then, when the indictment is regularly removed by writ of certiorari (to have notice given him), 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 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 than twenty-three,) (0) and that those lords only should sit upon the trial: 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 in 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 [*263] doubted whether the whole house could be induced to fall in with (2) See c. 31. (D) 1 Bulstr. 198. (h) Com. Journ. 5 May, 1679. (k) 4 Inst. 58. 2 Hawk. P. C. 5, 421. 2 Jon. 54. (m) Pryn. on 4 Inst. 46. (n) Quand un seigneur de parlement serra arreign de treason ou felony, le roy par ses lettres patents fera un grand et sage seigneur d'estre le grand seneschal d'Angleterre: qui - doit faire un precept -pur faire venir xx seigneurs, ou xviii, &c. (When a lord of parliament is arraigned on a charge of treason or felony, the king by his letters patent shall create some wise and noble peer Lord High Steward of England, who shall issue out a precept to summon eighteen or twenty lords, &c.) (Yearb. 13 Hen. VIII, 11.) See Standf. P. C. 152. 3 Inst. 28. 4 Inst. 59. 2 Hawk. P. C. 5. Barr. 234. (0) Kelynge, 56. the views of the court. (p) But now by statute 7 Wm. 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.1 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 (for the time), 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 the 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 parlia ment, it hath been holden by the judges, (s) that in case the day appointed in the judgment for execution should lapse before execu tion 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. Right of bishop to sit.-*It has been a point of some [*264] 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 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 con (p) Carte's Life of Ormonde, Vol. II. (r) State Trials, vol. iv. 214, 232, 233. (q) Fost. 141. (s) Fost. 139. In the United States all the members of the house which is to try the impeachment are summoned. The right of challenge was somewhat discussed on the trial of President Johnson, but was not conceded. cern life or limb: "episcopi, sicut cæteri barones, debent interesse judiciis cum baronibus, quosque preveniatur ad diminutionem membrorum, vel ad mortem" (the bishops ought to be present at trials, as well as the other barons, unless they involve the loss of life or limb); 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 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 *reg[*265] ulates the proceedings 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 trials of popish lords, or 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.1 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. 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 (unless before), by a jury of the county out of which the indictment is brought. The judges of this court are the supreme coroners of the kingdom. And the court itself is the principal 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 commissions of oyer and terminer (t) Lords' Journ. 15 May, 1679. 1By 4 and 5 Vic., c. 22, "Every lord of parliament or peer of this realm, having place or voice in parliament, against whom any indictment for felony may be found, shall plead to (w) Bro. Abr. t. Trial, 142. (y) See book III, page 41. such indictment, and shall, upon conviction, be liable to the same punishment as any other of her majesty's subjects are or may be liable upon conviction for such felony." |