case 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, but it hath of late years been strenuously maintainedd that the appointment of a 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 afterward 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 concilium accusare quoque, et discrimen capitis intendere." 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 [261] magistrate either dares not or can not punish. Of these the representatives of the people, or House of Commons, can not 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. 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; c 1 Hal., P. C., 350. d Lords' Journ., 12th May, 1679; Com. Journ., 15th May, 1679; Fost., 142, &c. Tacit., De Mor. Germ., 12. f See vol. i., page 269. Montesq., Sp. L., xi., 6. impeachment by the court for the trial of impeachments. The Constitution of the 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 reign of Charles II. ;h and it is now enacted by statute 12 & 13 Will. III., c. 2, that no pardon under the great seal shall be pleadable to an impeachment by the Commons of Great Britain in Parliament.ia lord high 2. The court of the lord high steward of Great Britaink is 2. Court of a court instituted for the trial of peers indicted for treason or steward of felony, or for misprision of either. The office of this great England. 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, [262] seems now to have become necessary) to grant it to a lord of Parliament, else he is incapable to try such delinquent peer." 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 a 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. Then, when the indictment is regularly re (2) In the impeachment of Warren only contrary to all precedent and auHastings, Esq., it was confidently ad- thority, but repugnant to the first and vanced that the lords are not bound to great principles both of the English law observe the same rules of evidence in and Constitution, in a pamphlet entitled an impeachment as are admitted in crim- "A Dissertation, showing that the House inal trials in the inferior courts. The of Lords in Cases of Judicature are bound high reputation of those who strenuously by precisely the same Rules of Evidence maintained this doctrine induced the ed- as are observed by all other Courts." itor to endeavor to prove that it was not [CHRISTIAN.] See, further, post, 399, moved by writ of certiorari, commanding the inferior court to certify it up to him, the lord high steward directs a precept to a sergeant 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 than twenty-three), 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 predominant party should most approve of. And, accordingly, when the [263] 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 Will. 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 declarations 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.¶ 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 for murder in full Parliament, it hath been holden by the judges 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 dur peer State Trials, vol. iv., 214, 232, 3. (4) See ante, p. 60. ing 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 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 [264] 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 offenses, 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;" 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, 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 regulates the proceedings in that court, as well as in the court of Parliament, yet it never intended to newmodel or alter its constitution; and, consequently, does not give the lords spiritual any right in cases of blood which they had not before." 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 [265] not to be judges there. For the privilege of being thus tried t Lord's Journ., 15th May, 1679. "Fost., 248. w Bro. Abr., t. Trial, 142. (5) For misdemeanors, as libels, riots, ner as commoners, by a jury. 1 Bulstr., &c., peers are to be tried in like man- 197. 3. Court of King's depends upon nobility of blood, rather than a seat in the house; as appears from the trials 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 3. The Court of King's Bench,x' concerning the nature of which we partly inquired in the preceding book," was (we may remember) divided into the 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 the bar or at nisi prius, by a jury of the county out of which the indictment is brought."* * 4 Inst., 70; 2 Hal., P. C., 2; 2 Hawk., P. C., 6. y See vol. iii., p. 41. however, any part of an offense be completed in Middlesex, though the rest were committed abroad, an indictment lies in this court, or, in case of misdemeanor, an information, if the offense were committed in any other county. (6) But peeresses by marriage can 1 Esp. Rep., 62; 1 Sess. Cas., 246. If, not 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, vol. i., p. 401. 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.-[CHRISTIAN.] (7) As to the criminal jurisdiction of this court in general, see 2 Hale, 1 to 7, 12, 13, 154; Hawk., b. 2, c. 3; Bac. Ab., Court of King's Bench, A.; Com. Dig., Courts, B. 1; 9 Co., 118, a, b; Chit., Crim. L., 156 to 158.-[CHITTY.] (8) Without some statute for that purpose, offenses committed out of England are not cognizable by this court. 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 offense 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 offenses there, may be prosecuted in the King's Bench by indictment, or informa tion, laying the venue in Middlesex. 42 Geo. III., c. 85, s. 1; 8 East, 31. So, offenses 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 the King's Bench, or under a special commission. 33 Hen. VIII., c. 23; 1 Leach, 157; 1 Hale, 1. And this court has jurisdiction by information over offenses committed in Berwick. 2 Burr., 860.-[CHITTY.] (9) All informations filed in the Court of King's Bench, and all indictments re The Supreme Court in New York occupies the place of the King's Bench in England; and, in respect to the subject-matter of the text, exercises the same powers and jurisdiction. In New York, however, the proceeding by information in criminal matters is abolished, see post, p. 309, n. *; and presentments or indictments by grand juries are preferred only in the courts of Oyer and Terminer and General Sessions of the peace.-(2 R. S., 205, § 29; 2 Id., 208, § 5.) So that |