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other, the fuperior correcting and reforming the errors of the inferior, I thought it beft to begin with the lowest, and so afcend gradually to the courts of appeal, or those of the most extenfive powers. But as it is contrary to the genius and spirit of the law of England, to fuffer any man to be tried twice for the fame offence in a criminal way, especially if acquitted upon the first trial; therefore these criminal courts may be faid to be all independent of each other: at least fo 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 fame 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 fupreme 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. 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 re nata, and by no means an execution of fuch as are already in being. But an impeachment before the lords by the commons of Great Britain, in parliament, is a profecution of the already known and established law, and has been frequently put in practice; being a prefentment to the most high and fupreme court of criminal jurifdiction by the most folemn grand inqueft of the whole kingdom. A commoner cannot however be impeached before the lords for any capital offence,
a1 Hal. P. C. *150.
but only for high misdemesnors: a peer may be impeached for any crime. And they ufually (in cafe 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 commiffioned by the king; but it hath of late years been strenuously maintained, that the appointment of an high steward in such cases is not indifpenfably neceffary, 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 misdemefnors confidered 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 antient Germans; who in their great councils fometimes tried capital accufatons relating to the public: "licet apud concilium accufare quo
que, et difcrimen capitis intendere." And it has a peculiar pro
priety in the English constitution; which has much improved upon the antient model imported hither from the continent.
b When, in 4 Edw. III. the king de manded the earls, barons, and peers, to give judgment against Simon de Bereford, who had been a notorious accomplice in the treafons of Roger earl of Mortimer, they came before the king in parliament, and faid all with one voice, that the faid 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 fame parliament, they were prevailed upon, in refpect of the notoriety and heinoufnefs of his crimes, to receive the charge and to give judgment against him, the following proteft and provifo was entered on the parliamentroll."And it is affented and accorded by "our lord the king, and all the great men, "in full parliament, that albeit the peers, "as judges of the parliament, have taken "upon them in the prefence of our lord the VOL. IV.
"king to make and render the said judg"ment; 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 difcharged and acquitted: and "that the aforefaid judgment now rendered "be not drawn to example or confequence "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 cafe happen, which "God forbid." (Rot. Parl. 4 Edw. III. n. 2 & 6. 2 Brad. Hift. 190. Selden. judic. in parl. ch. 1.)
I Hal. P. C. 350.
For, though in general the union of the legislative and judicial powers ought to be moft carefully avoided, yet it may happen that a subject, intrufted with the administration of public affairs, may infringe the rights of the people, and be guilty of fuch crimes, as the ordinary magiftrate either dares not or cannot punish. Of these the reprefentatives of the people, or house of commons, cannot properly judge; because their conftituents are the parties injured: and can therefore only impeach. But before what court fhall this impeachment be tried? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an accufer. Reason therefore will fuggeft, that this branch of the legislature, which represents the people, muft bring it's charge before the other branch, which confists of the nobility, who have neither the fame interests, nor the same paffions as popular affemblies. This is a vaft fuperiority, which the conftitution of this ifland enjoys, over thofe of the Grecian or Roman republics; where the people were at the fame time both judges and accufers. It is proper that the nobility should judge, to insure justice to the accused; as it is proper that the people fhould accufe, to insure justice to the commonwealth. And therefore, among other extraordinary circumftances attending the authority of this court, there is one of a very fingular nature, which was infifted on by the house of commons in the cafe of the earl of Danby in the reign of Charles II; and is now enacted by ftatute 12 & 13 W. III. c. 2. that no pardon under the great feal shall be pleadable to an impeachment by the commons of Great Britain in parliament'.
2. THE Court of the lord high steward of Great Britain is a court instituted for the trial of peers, indicted for treafon or felony, or for misprifion of either'. The office of this great magistrate is very antient; and was formerly hereditary, or at
f See Vol. I. pag. 269. Montefq. Sp. L. xi. 6.
h Com. Journ. 5 May 1679.
i See chap. 31.
4 Inft. 58. 2 Hawk. P. C. 5.421.
leaft held for life, or dum bene fe gefferit: but now it is ufually, and hath been for many centuries paft", granted pro hac vice only; and it hath been the conftant practice (and therefore seems now to have become neceffary) to grant it to a lord of parliament, else he is incapable to try fuch delinquent peer ". When fuch an indictment is therefore found by a grand jury of freeholders in the king's bench, or at the affifes before the juftices of oyer and terminer, it is to be removed by a writ of certiorari into the court of the lord high fteward, 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 purpofe of receiving fuch 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 confequence of fuch plea, it is poffible that judgment of death might be awarded against him. The king therefore, in cafe a peer be indicted of treason, felony, or mifprifion, creates a ford high steward pro hac vice by commiffion under the great feal; which recites the indictment fo found, and gives his grace power to receive and try it fecundum legem et confuetudinem 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 fteward directs a precept to a ferjeant at arms, to fummon the lords to attend and try the indicted peer. This precept was formerly iffued to fummon only eighteen or twenty, felected from the body of the peers: then the number 'came to be indefinite; and the custom was, for the lord high fteward to fummon as many as he thought proper, (but of late years not less than twenty three °) and that thofe lords only fhould fit upon the trial: which threw a monftrous weight of
power into the hands of the crown, and this it's great officer, of felecting only fuch peers as the then predominant party fhould most approve of. And accordingly, when the 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 W. III. c. 3. upon all trials of peers for treafon or misprifion, all the peers who have a right to fit 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 fuch peer, first taking the oaths of allegiance and fupremacy, and fubfcribing the declaration against popery.
DURING the feffion 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 therein the judges both of law and fact, and the high steward has a vote with the reft, 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 fole judge in 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, fo 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, that in cafe the day appointed in the judgment for execution should lapfe before execution done, a new time of execution may be appointed by either the high court of parliament, during it's
Carte's life of Ormonde. Vol. 2.
State Trials, Vol. IV. 214. 232, 3. • Foft. 139.