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For, though in general the union of the legislative and judicial powers ought to be moft carefully avoided, yet it may happen that a fubject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes, as the ordinary magiftrate either dares not or cannot punish. Of these 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 fo 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 confifts of the nobility, who have neither the fame interests, nor the same paffions as popular affemblies. This is a vast fuperiority, which the conftitution of this ifland enjoys, over those of the Grecian or Roman republics; where the people were at the same time both judges and accufers. It is proper that the nobility fhould 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 fingular nature, which was infifted on by the house of commons in the case of the earl of Danby in the reign of Charles II; and is now enacted by statute 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 treason or felony, or for mifprifion 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.
■Com. Journ. 5 May 1679.
¡ See chap. 31.
4 Inft. 58. 2 Hawk. P. C. 5.421. 1 Bulftr. 198.
least 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, elfe 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 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 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 misprifion, creates a lord high steward pro hac vice by commiffion under the great seal; 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 steward 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 steward 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 monstrous weight of
power into the hands of the crown, and this it's great officer, of selecting only fuch peers as the then predominant party should most approve of. And accordingly, when the earl of Clarendon fell into disgrace with Charles II, there was a defign formed to prorogue the parliament, in order to try him by a felect number of peers; it being doubted whether the whole house could be induced to fall in with the views of the court". 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 fuch 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 supremacy, and subscribing 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 parliamenta. 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 reft, in right of his peerage. But in the court of the lord high fteward, which is held in the recefs 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 State Trials, Vol. IV. 214. 232, 3. • Foft. 139.
Carte's life of Ormonde. Vol. 2. • Foft. 141.
fitting, though no high steward be exifting; 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 fome controversy, whether the bishops have now a right to fit in the court of the lord high steward, to try indictments of treason and misprifion. Some incline to imagine them included under the general words of the statute of king William," all "all peers, who have a right to fit and vote in parliament:" but the expreffion 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 par→ liament, yet, their blood not being ennobled, they are not univerfally allowed to be peers with the temporal nobility: and perhaps this word might be inferted purposely with a view to exclude them. However, there is no instance of their fitting 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 ufually voluntarily withdraw, but enter a proteft declaring their right to stay. It is certain that, in the eleventh chapter of the conftitutions of Clarendon, made in parliament 11 Hen. II. they are expreffly excluded from fitting and voting in trials of life or limb: " epifcopi, ficut caeteri baro"nes, debent intereffe judiciis cum baronibus, quoufque 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 cafe, which hath ever fince been adhered to, is confonant to these constitutions; "that the lords fpiritual have a right to stay and "fit in court in capital cafes, till the court proceeds to the vote "of guilty, or not guilty." It must be noted, that this refolution extends only to trials in full parliament: for to the court of the lord high steward (in which no vote can be given, but mere* Lords Journ. 15 May 1679.
ly that of guilty or not guilty) no bishop, as such, ever was or could be fummoned; and though the ftatute of king William regulates the proceedings in that court, as well as in the court of parliament, yet it never intended to new-model or alter it's constitution; and confequently does not give the lords spiritual any right in cafes of blood which they had not before ". what makes their exclufion more reasonable, is, that they have no right to be tried themselves in the court of the lord high steward", and therefore furely ought not to be judges there. For the privilege of being thus tried depends upon nobility of blood, rather than a feat in the houfe; as appears from the trials of popish lords, of lords under age, and (fince the union) of the Scots nobility, though not in the number of the fixteen; and from the trials of females, fuch as the queen confort or dowager, and of all peereffes by birth; and peeresses by marriage alfo, unless they have, when dowagers, difparaged themfelves by taking a commoner to their fecond husband.
3. THE Court of king's bench, concerning the nature of which we partly enquired in the preceding book', was (we may remember) divided into a crown fide, and a plea fide. And on the crown fide, or crown office, it takes cognizance of all criminal causes, from high treason down to the most trivial misdemesnor 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 nifi prius, 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 jurifdiction (though the two former are of greater dignity) known to the laws of England. For which reafon 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 commiffions of oyer and ter
w Bro. Abr. t. Trial. 142.
* 4 Inft. 70. 2 Hal. P. C. 2. 2 Hawk. P. C. 6.
y See Vol. III. pag. 41.