Part 12

Carpz. Pract. Saxon. Crimin. Pars III. Quest. CXIV. No. 13.

Ibid. Quest. CVI. No. 89.

22 Jac. I. 1624.

Morris v. Pugh, Burrow, Vol. III. p. 1243. See also Vol. II. Alder v. Chip; Vol. IV. Dickson v. Fisher; Grey v. Smythyes.--N.B. All from the same judge, and proceeding on the same principles.

Chesterfield v. Janssen, Atkyns's Reports, Vol. II.

State Trials, Vol. III. p. 170.

Bis in originali.

Lords' Journals, 17 Ch. I. Die Sabbati, videlicet, 10º die Aprilis.

Dal. 80. Pl. 18. Anno 14 Eliz. apud Viner, Evid. p. 60.

State Trials, Vol. IV. p. 501.

APPENDIX.

No. 1.

IN THE CASE OF EARL FERRERS.

APRIL 17, 1760.

The House of Peers unanimously found Earl Ferrers guilty of the felony and murder whereof he stood indicted, and the Earl being brought to the bar, the High Steward acquainted him therewith; and the House immediately adjourned to the Chamber of Parliament, and, having put the following question to the Judges, adjourned to the next day.

"Supposing a peer, so indicted and convicted, ought by law to receive such judgment as aforesaid, and the day appointed by the judgment for execution should lapse before such execution done, whether a new time may be appointed for the execution, and by whom?"

On the 18th, the House then sitting in the Chamber of Parliament, the Lord Chief Baron, in the absence of the Chief-Justice of the Common Pleas, delivered in writing the opinion of the Judges, which they had agreed on and reduced into form that morning. His Lordship added many weighty reasons in support of the opinion, which he urged with great strength and propriety, and delivered with a becoming dignity.

To the Second Question.

"Supposing the day appointed by the judgment for execution should lapse before such execution done, (which, however, the law will not presume,) we are all of opinion that a new time may be appointed for the execution, either by the High Court of Parliament, before which such peer shall have been attainted, or by the Court of King's Bench, the Parliament not then sitting: the record of the attainder being properly removed into that court."

The reasons upon which the Judges founded their answer to the question relating to the further proceedings of the House after the High Steward's commission dissolved, which is usually done upon pronouncing judgment, may possibly require some further discussion. I will, therefore, before I conclude, mention those which weighed with me, and, I believe, with many others of the Judges.

Reasons, &c.

Every proceeding in the House of Peers, acting in its judicial capacity, whether upon writ of error, impeachment, or indictment, removed thither by Certiorari, is in judgment of law a proceeding before the King in Parliament; and therefore the House, in all those cases, may not improperly be styled the Court of our Lord the King in Parliament. This court is founded upon immemorial usage, upon the law and custom of Parliament, and is part of the original system of our Constitution. It is open for all the purposes of judicature, during the continuance of the Parliament: it openeth at the beginning and shutteth at the end of every session: just as the Court of King's Bench, which, is likewise in judgment of law held before the King himself, openeth and shutteth with the term. The authority of this court, or, if I may use the expression, its constant activity for the ends of public justice, independent of any special powers derived from the Crown, is not doubted in the case of writs of error from those courts of law whence error lieth in Parliament, and of impeachments for misdemeanors.

It was formerly doubted, whether, in the case of an impeachment for treason, and in the case of an indictment against a peer for any capital crime, removed into Parliament by Certiorari, whether in these cases the court can proceed to trial and judgment without an High Steward appointed by special commission from the Crown. This doubt seemeth to have arisen from the not distinguishing between a proceeding in the Court of the High Steward and that before the King in Parliament. The name, style, and title of office is the same in both cases: but the office, the powers and preeminences annexed to it, differ very widely; and so doth the constitution of the courts where the offices are executed. The identity of the name may have confounded our ideas, as equivocal words often do, if the nature of things is not attended to; but the nature of the offices, properly stated, will, I hope, remove every doubt on these points.

In the Court of the High Steward, he alone is judge in all points of law and practice; the peers triers are merely judges of fact, and are summoned by virtue of a precept from the High Steward to appear before him on the day appointed by him for the trial, ut rei veritas melius sciri poterit. The High Steward's commission, after reciting that an indictment hath been found against the peer by the grand jury of the proper county, impowereth him to send for the indictment, to convene the prisoner before him at such day and place as he shall appoint, then and there to hear and determine the matter of such indictment; to cause the peers triers, tot et tales, per quos rei veritas melius sciri poterit, at the same day and place to appear before him; veritateque inde comperta, to proceed to judgment according to the law and custom of England, and thereupon to award execution. By this it is plain that the sole right of judicature is in cases of this kind vested in the High Steward; that it resideth solely in his person; and consequently, without this commission, which is but in nature of a commission of Oyer and Terminer, no one step can be taken in order to a trial; and that when his commission is dissolved, which he declareth by breaking his staff, the court no longer existeth.

But in a trial of a peer in full Parliament, or, to speak with legal precision, before the King in Parliament, for a capital offence, whether upon impeachment or indictment, the case is quite otherwise. Every peer present at the trial (and every temporal peer hath a right to be present in every part of the proceeding) voteth upon every question of law and fact, and the question is carried by the major vote: the High Steward himself voting merely as a peer and member of that court, in common with the rest of the peers, and in no other right.

It hath, indeed, been usual, and very expedient it is, in point of order and regularity, and for the solemnity of the proceeding, to appoint an officer for presiding during the time of the trial, and until judgment, and to give him the style and title of Steward of England: but this maketh no sort of alteration in the constitution of the court; it is the same court, founded in immemorial usage, in the law and custom of Parliament, whether such appointment be made or not. It acteth in its judicial capacity in every order made touching the time and place of the trial, the postponing the trial from time to time upon petition, according to the nature and circumstances of the case, the allowance or non-allowance of council to the prisoner, and other matters relative to the trial; and all this before an High Steward hath been appointed. And so little was it apprehended, in some cases which I shall mention presently, that the existence of the court depended on the appointment of an High Steward, that the court itself directed in what manner and by what form of words he should be appointed. It hath likewise received and recorded the prisoner's confession, which amounteth to a conviction, before the appointment of an High Steward; and hath allowed to prisoners the benefit of acts of general pardon, where they appeared entitled to it, as well without the appointment of an High Steward as after his commission dissolved. And when, in the case of impeachments, the Commons have sometimes, at conferences between the Houses, attempted to interpose in matters preparatory to the trial, the general answer hath been, "This is a point of judicature upon which the Lords will not confer; they impose silence upon themselves,"--or to that effect. I need not here cite instances; every man who hath consulted the Journals of either House hath met with many of them.

I will now cite a few cases, applicable, in my opinion, to the present question. And I shall confine myself to such as have happened since the Restoration; because, in questions of this kind, modern cases, settled with deliberation, and upon a view of former precedents, give more light and satisfaction than the deepest search into antiquity can afford; and also because the prerogatives of the Crown, the privileges of Parliament, and the rights of the subject in general appear to me to have been more studied and better understood at and for some years before that period than in former ages.

In the case of the Earl of Danby and the Popish lords then under impeachments, the Lords, on the 6th of May, 1679, appointed time and place for hearing the Earl of Danby, by his council, upon the validity of his plea of pardon, and for the trials of the other lords, and voted an address to his Majesty, praying that he would be pleased to appoint an High Steward for those purposes. These votes were, on the next day, communicated to the Commons by message in the usual manner. On the 8th, at a conference between the Houses upon the subject-matter of that message, the Commons expressed themselves to the following effect:--"They cannot apprehend what should induce your Lordships to address his Majesty for an High Steward, for determining the validity of the pardon which hath been pleaded by the Earl of Danby, as also for the trial of the other five lords, because they conceive the constituting an High Steward is not necessary, but that judgment may be given in Parliament upon impeachment without an High Steward"; and concluded with a proposition, that, for avoiding any interruption or delay, a committee of both Houses might be nominated, to consider of the most proper ways and methods of proceeding. This proposition the House of Peers, after a long debate, rejected: Dissentientibus, Finch, Chancellor, and many other lords. However, on the 11th, the Commons' proposition of the 8th was upon a second debate agreed to; and the Lord Chancellor, Lord President, and ten other lords, were named of the committee, to meet and confer with a committee of the Commons. The next day the Lord President reported, that the committees of both Houses met that morning, and made an entrance into the business referred to them: that the Commons desired to see the commissions that are prepared for an High Steward at these trials, and also the commissions in the Lord Pembroke's and the Lord Morley's cases: that to this the Lords' committees said,--"The High Steward is but Speaker pro tempore, and giveth his vote as well as the other lords; this changeth not the nature of the court; and the Lords declared, they have power enough to proceed to trial, though the King should not name an High Steward: that this seemed to be a satisfaction to the Commons, provided it was entered in the Lords' Journals, which are records." Accordingly, on the same day, "It is declared and ordered by the Lords Spiritual and Temporal in Parliament assembled, that the office of an High Steward, upon trials of peers upon impeachments, is not necessary to the House of Peers; but that the Lords may proceed in such trials, if an High Steward be not appointed according to their humble desire." On the 13th the Lord President reported, that the committees of both Houses had met that morning, and discoursed, in the first place, on the matter of a Lord High Steward, and had perused former commissions for the office of High Steward; and then, putting the House in mind of the order and resolution of the preceding day, proposed from the committees that a new commission might issue, so as the words in the commission may be thus changed: viz., Instead of, Ac pro eo quod officium Seneschalli Angliae, (cujus praesentia in hac parte requiritur,) ut accepimus, jam vacat, may be inserted, Ac pro eo quod proceres et magnates in Parliamento nostro assemblati nobis humiliter supplicaverunt ut Seneschallum Angliae pro hac vice constituere dignaremur: to which the House agreed.