court shall this impeachment be tried? Not before the ordinary tribunals, which might possibly' 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 may for this purpose be assumed to' 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; 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.; and is now enacted by the Act of Settlement, that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in Parliament.

d

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 misprision of either. The office of this great 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 has been for many centuries past, granted pro hac vice only; and it has 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. When such an indictment is therefore found by a grand jury of freeholders in the Queen's Bench 'division,' 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 Queen's Bench division,' and the judges have power to allow it; in

d Com. Jour. 5 May, 1679.

The last occasion on which a Lord High Steward was appointed, was in 1841; when the late Lord Denman presided on the trial of the late Earl of Cardigan for murder.'

Quand un seigneur de parlement VOL. IV.

serra arrein de treason ou felony, le roy par ses lettres patents fera un grand et sage seigneur d'estre le grand seneschal d'Angleterre: qui-doit faire un precept pur faire venir xx seigneurs, ou xviii., &c. Y.-B. 3 Hen. VIII. 11.

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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 sovereign 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 legum et consuetudinem Angliæ. Then, when the indictment is regularly removed, by 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 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 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 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. 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, first taking the proper oaths,' shall vote in the trial of such peer.

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

* Carte's Life of Ormonde, vol. ii.

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 a peer for murder in full parliament, 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 during its sitting, though no high steward be existing; or, in the recess of parliament, by the Queen's Bench 'division of the High Court,' 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 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 offences, 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 in"teresse judiciis cum baronibus, quousque perveniatur ad diminu“tionem membrorum, vel ad mortem:" and à-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

State Trials, vol. iv. 214, 232, 233.

the house of lords in the Earl of Danby's case,' which has 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."i 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, and therefore surely ought not to be judges there. For the privilege of being thus tried 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 with Scotland,' 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.

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3. 'The Court of Appeal, created by the Judicature Act, 1873, and to which has been transferred all the jurisdiction and powers of the court of Exchequer Chamber, has no original jurisdiction over crimes or offences, but only upon writs of error, to rectify any injustice or mistake of the law,' committed by'

i Lords' Jour. 15 May, 1679.

J'This was the course adopted in 1841, on the trial of the late Earl of Cardigan for murder.'

* But peeresses by marriage cannot 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. The reason given in the books why bishops should not be tried in parliament like temporal lords, because their honour is not inheritable, is unsatisfactory and even trifling. The true

reason was, that bishops could not have demanded a trial in parliament, without admitting themselves subjects to a temporal jurisdiction.-[CHRISTIAN.] Mr. Wooddeson has not only adopted this 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.

11 Geo. IV. and 1 Will. IV. c. 70, s. 8; Reg. v. Wright, 1 A. & E. 434; Mansell v. Regina, 8 El. & Bl. 54.

4. The Queen's Bench division of the High Court of Justice, to which has been transferred all the jurisdiction previously vested in or exercised by the court of Queen's Bench.' 'The court of Queen's Bench,' we may remember, was divided into a Crown side, and a Plea side. And on the crown side, or crown office, it took cognizance of all criminal causes, from high treason down to the most trivial misdemeanor or breach of the peace. And into it also indictments from all inferior courts might be removed by writ of certiorari, and tried either at bar, or at nisi prius, by a jury of the county out of which the indictment was brought; 'or, by order of the court, in the case of certain offenders, at the Central Criminal Court; and, the judges 'thereof were' the supreme coroners of the kingdom.

'The Queen's Bench division has therefore become, in its place,' the principal court of criminal jurisdiction known to the laws of England. For which reason, by the coming thereof' into any county, as when the Queen's Bench was' removed to Oxford on account of the sickness in 1665, all commissions of oyer and terminer, and general gaol delivery, 'would be' at once absorbed and determined ipso facto, were it not that the courts held under such commissions are now branches of the High Court of Justice itself.'

Into this Queen's Bench division, as representing the Queen's Bench, has come' all that was good and salutary of the jurisdiction of the court of Star-chamber; which was a court of very ancient origin," but new-modelled by statutes 3 Hen. VII. c. 1, and 21 Hen. VIII. c. 20, consisting of divers lords spiritual and temporal, being privy counsellors, together with two judges of the courts of common law, without the intervention of any jury. Their jurisdiction extended legally over riots, perjury, misbehaviour of sheriffs, and other notorious misdemeanors, contrary to the laws of the land. Yet, this was afterwards, as Lord Clarendon informs us," stretched "to the "asserting of all proclamations, and orders of state: to the vindicating of illegal commissions, and grants of monopolies; "holding for honourable that which pleased, and for just that "which profitted, and becoming both a court of law to determine "civil rights, and a court of revenue to enrich the treasury; the

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