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[relating to the public: “ licet apud consilium accusare quoque, et discrimen capitis intendere” (g). And it has a peculiar propriety in the English constitution, which has much improved upon the antient model, imported hither from the continent. For, though, in general, the union of the legislative and judicial powers ought to be most carefully avoided : 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 the representatives of the people, or house of commons, cannot properly judge ; because their constituents are the parties injured: and therefore can 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 (h). 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 accusers and judges. It is proper that the nobility should judge, to ensure justice to the accused; as it is proper that the people should accuse, to ensure 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 upon by the house of commons in the case of the Earl of Danby, in the reign of Charles the second (i); and which is now established by the Act of Settlement (R).] This is, that no pardon under the
(9) Tacit. de Mor. Germ. 12.
(k) 12 & 13 Will. 3, c. 2; 4 BI. Com. p. 261.
Great Seal shall be pleadable to an impeachment by the commons of Great Britain in parliament, so as to prevent its further prosecution (m); though such a pardon would be pleadable in bar, (as we shall see hereafter,) in the case of an ordinary indictment.
Before the House of Peers, also, is tried any peer or peeress against whom an indictment for treason or felony, or for misprision of either, is found, during a session of parliament, by a grand jury of freeholders in the Queen's Bench (or at the assizes before a judge of oyer and terminer,)-such indictment being removed hither by writ of certiorari(n).
2. [The Court of the Lord High Steward of Great Britain, is a court instituted for the trial, during the recess of parliament, of peers or peeresses indicted for treason or felony (0); or for misprision of either (p). The office of this great magistrate is very antient; 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 (9), granted pro hâc vice only; and it hath been the constant practice, (and therefore seems now to have become necessary,) to grant it to a lord of parliament, else he is incapable to try such delinquent peer (r).]
When, therefore, an indictment has been
(m) See The Queen v. Boyes, 1 B. (p) R. v. Lord Vaux, 1 Bulst. & Smith, per cur. 382.
198. (n) 4 Bl. Com. p. 262; Bac. Ab. (2) Pryn. on 4 Inst. 46. Courts (G); Com, Dig. Parliament
Quand un seigneur de (L. 13). The last occasion of such parlement serra arrein de treason a trial was in the year 1841, when ou felony, le roy par ses lettres the Earl of Cardigan was tried be- patents fera un grand et sage fore the House of Lords for felony, seigneur d'estre le grand seneschal in shooting at Captain Tuckett. An d'Angleterre : qui doit faire un account of the proceedings will be precept, pur faire renir xa seigfound in the 83rd volume of the neurs, ou xviii," &c. (Yearb, 13 Annual Register.
Hen. 8, 11.) (See Saundf. P. C. 152; (0) 4 Inst. 58; Hawk. P. C. b, 2, 3 Inst. 28; 4 Inst. 59; Hawk. P. C. c. 2, s. 44; 2 Jon, 54,
b. 2, c. 2; Barr. 234.
found (during such recess) in the Queen's Bench or at the assizes against one having the privilege of peerage, 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(s). But this is only in case the offence be of the description before mentioned, viz. treason, felony, or misprision of treason or felony; for if it be of any other kind, the privilege does not exist, and the peer must be tried by jury in the court in which the indictment is found (t). [A peer may plead a pardon before the Queen’s Bench: and the judges thereof 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, therein, any other plea; as guilty or not guilty, of the indictment; but only in the court of the Lord High Steward. Because in consequence of such plea, it is possible that judgment of death might be awarded against him. The sovereign, therefore, in case a peer be indicted for treason, felony, or misprision, creates a Lord High Steward, pro hâc 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 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
(8) Lord Coke says, (3 Inst. 30,) tral Criminal Court; but, by the " that this privilege cannot be twenty-ninth section of the Act, it “ waived by the peer indicted;” but is not to apply to any indictment Hawkins (P. C. b. 2, c. 44, s. 19) or inquisition charging any peer or holds that it is waived if he puts peeress (or other person claiming himself upon his country; that is, the privilege of peerage) with any pleads not guilty, and refers the offence not now lawfully triable at issue to a trial by jury. By 19 & any court of oyer and terminer or 20 Vict. c. 16, the Court of Queen's gaol delivery. Bench is empowered to order certain (t) 2 Inst. 49; 3 Inst. 28, 30; R. indictments to be tried in the Cen- r. Lord Vaux, 1 Bulst. 197.
[the indicted peer. This precept was formerly issued to summon only eighteen or twenty, selected from the body of the peers. Afterwards the number came to be indefinite ; and the custom then was, for the Lord High Steward to summon as many as he thought proper, (but latterly not less than twenty-three ;) and that those lords only should sit upon the trial (u): which threw a monstrous weight 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 Earl of Clarendon fell into disgrace with Charles the second, 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 (x).
But now by statute 7 Will. III. c. 3, upon all trials of peers or peeresses 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, and taking the proper oaths, shall vote in the trial of such peer (y). The decision in this court is by the majority; but a majority cannot convict, unless it consists of twelve or more (z).
During the session of parliament, the trial of an indicted peer, is not in the court of the Lord High Steward, but (as already mentioned) before the peers in the high court of parliament (a). [It is true, a Lord High Steward is always appointed in that case, to regulate and add
(u) Kelynge, 56.
(a) Carte's Life of Ormonde, vol, ii.
(y) Mr. Christian, in his edition of Blackstone, remarks that inasmuch as a peer cannot have the benefit of a challenge like a commoner, (1 Harg. St. Tr. 198, 388,)
it is somewhat surprising that this manifest improvement of the law and constitution, was not extended to trials of peers for all felonies in the court of the lord high steward.
(z) Christian's Blackstone, vol. iv. p. 262, note.
(a) Vide sup. p. 302; Fost. 141.
[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, 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 his own court the Lord High Steward is the sole judge of matters of law, as the lords triers 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 (6). And upon the conviction and attainder of a peer 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 for it may be appointed by the high court of parliament (during its sitting) though no High Steward be existing: or, (in the recess of parliament,) by the Queen's Bench,—the record being, for such purpose, removed into that court(c).
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 (d), “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 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
(c) Fost. C. L. 139.
(6) St. Tr, vol. iv. 214, 232, 233. See Lord Campbell's Lives of the Chancellors, vol. iii. p. 557, n.