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Bail.

Forms of Proceeding.

Answer of the accused.

the Lords in Lord Danby's case, that such an officer is not absolutely necessary (g).

According to the general rule, that whosoever is judge of the offence may bail the offender, the recognizance of bail is taken upon Impeachments, by order of the House of Peers, at their Lordships' bar; the bail being previously approved by a Committee to whom it is referred to consider of their sufficiency. The condition of the recognizance in such case is, that the criminal shall personally attend before the Lords in Parliament, and appear from day to day, until further order of the House ().

On Trials, as well by Indictment as Impeachment, the House directs all parties appearing to address the Lords in general, and not the Lord High Steward in particular.

In these cases of capital accusations, the Lords spiritual have a right to stay till the court proceeds to the vote of guilty or not guilty, and then they have constantly withdrawn (see ante pp. 64, 65); yet their right to vote on Bills of Attainder has always been admitted (¿).

If the accused appear, and the case be capital, he answers in custody; though not if the accusation be ge. neral. He is not to be committed but on special accusations. If it be for misdemeanor only, he answers, if a Peer, in his place; if a Commoner, at the bar, and not in custody, unless, on the answer, the Lords find cause to commit him until he find bail for his attendance (k). A copy of the articles is given him, and a day fixed for his answer (1). On a misdemeanor he may answer either in person, by writing, or by attorney (m). The general rule on an accusation for a misdemeanor is, that in such a state of liberty or restraint, as the party was when the

(g) 2 Wood. 613; Foster's Crown Law, 144.

(h) Sacheverall's case, 13 Jan. 1709; case of Warren Hastings 21 May, 1787. (i) 2 Wood. 603.

(1) 1 Rush. 268; 1 Clar. Reb. 379.

(k) Sel. Jud. 98, 99.

(m) Sel. Jud. 100.

If

Commons complained of him, in such he is to answer. previously committed by the Commons, he answers as a prisoner. But this may be called in some sort judicium parium suorum (n). In misdemeanors the party has a right to counsel, by the common law; but not in capital cases (o).

The answer need not observe great strictness of form. Form of Answer He may plead guilty, as to a part, and defend as to the residue; or, saving all exceptions, deny the whole; or give a particular answer to each article separately (p). But he cannot plead a pardon under the great seal as a bar to the Impeachment (g).

rejoinder, &c.

There may be a replication, rejoinder, &c. by the Com- Replication, mons, which is likewise exempted from a scrupulous adherence to form (r).

The practice is to swear the witnesses summoned, in Witnesses. open House, and then examine them there; but a Committee may be named, who shall examine them, either with interrogations agreed on by the House, or such as the Committee may, in their discretion, demand (s).

Pierce.

In the case of Alice Pierce, 1 Rich. II. a jury was Case of Alice impannelled for her trial before a Committee. But this was on a complaint, not an Impeachment by the Commons (t). It must also have been for a misdemeanor only, as the Lords spiritual sat in judgment, which they do in misdemeanors, but not in capital cases. The judgment was, a forfeiture of all her lands and goods (v). This, Selden says, is the only jury he finds recorded in Parliament for misdemeanors; but he makes no doubt, if the delinquent doth put himself on the trial of his country,

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(p) 1 Rushw. 274; 2 Rushw. 1374; L J. 13 Nov. 1643; 12 Parl. Hist. 442. (q) 2 Wood. 615; 2 State Trials, 735.

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case.

that a jury ought to be impannelled; and he adds, that it is not so on impeachments by the House of Commons, for they are in loco proprio, and then no jury ought to be impannelled. The Lord Berkeley, 6 Edw. III. was arraignLord Berkeley's ed for murder, on an information on the part of the King, and not on Impeachment by the Commons, for then, says Selden, "they had been patria sua." He waved his privilege of Peerage, and was tried by a jury of Gloucestershire and Warwickshire (w). In 1 Henry VII. the Commons protest that they are not to be considered as parties to any judgment given or hereafter to be given in Parliament (x); they have been generally, and more justly considered as the Grand Jury. For the conceit of Selden no share in the is certainly not accurate, that they are the patria sua of the accused, and that the Lords do only judge, but not try. It is undeniable that they do try. For they examine witnesses as to the fact, and acquit or condemn, according to their own belief of their evidence. And Lord Hale says, "the Peers are Judges of law as well "as of fact" (y). Consequently of fact as well as of law.

Commons have

judgment.

Commons pretent at examinasion.

Judgment considered.

The Commons are to be present at the examination of witnesses (z). Indeed, they are to attend throughout, as a Committee of the Whole.-Except, as is generally the case, they appoint managers to conduct the proofs (a). And judgment is not to be given until they demand it (b). But they are not to be present when the Lords are considering their answer or the proofs, and determining on their judgment. Their presence, however, is necessary when the answer and judgment is given.

The Lords debate the judgment among themselves. Then the vote is first taken on the question of guilty or not guilty; and if they convict, the question, or particular

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sentence, is out of that which seemeth to be most gene

rally agreed on (c).

Judgments in Parliament for death, have been strictly Judgment given. guided per legem terræ, which they cannot alter; and not according to their discretion. They can neither omit any part of the legal sentence, nor add to it; as, if the offence be provided against by statute, the offender must be condemned according to the provisions of that statute. Their judg ment must be secundum, non ultra legem (d), and should be one that is warranted by legal principles or precedents (e). The Chancellor gives judgment in misdemeanors, and the Lord High Steward, when one is appointed, in cases of life and death (ƒ). In misdemeanors the greatest corporal punishment hath been imprisonment (g).

when necessary

The King's assent is necessary in capital judgments, King's Assent, but not in misdemeanors (h). Although no pardon under Pardon under the the great seal is pleadable in an Impeachment, yet the Great Seal not King may afterwards remit the execution of the sentence,

or any part thereof (i).

pleadable.

extinguished by

of Parliament.

A dissolution or prorogation of Parliament intercepts, Impeachment not but does not extinguish an Impeachment; the charge may dissolution, &c. be resumed when the House is again assembled (k); although, this question having formerly been doubtful, special acts have been passed to prevent the effects of a prorogation in such a case (7).

The last instances of Impeachment by the Commons, were those of Warren Hastings, in 1787, managed by Mr. Burke; and of Viscount Melville, in 1805, managed by Mr. Whitbread*.

(c) Sel. Jud. 167.

(e) 6 Sta. Tr. 14; 2 Wood. 611.

(g) Sel. Jud. 184.

(i) 12 & 13 Wm. III. ch. 2, s. 3.

(d) lb. 168-171.

(f) Sel. Jud. 180.

(h) Ib. 136; but see contra, 2 Wood. 614.

(k) C. J. 23 Dec. 1790; L. J. 16 May, 1791; Raym. 383.

() As 45 Geo. III. cc. 117 & 125.

* See further as to Impeachments, &c. the 4th vol. of Hatsell's Precedents, "On Impeachments, "and Fortescue de Laudibus Legum Anglim, by Amos,

Bills of Attainder and of Pains and Penalties.

BILLS OF ATTAINDER, AND OF PAINS AND PENALTIES.

Bills of Attainder, &c., it has been shown (m), must, from their judicial nature, originate in the House of Lords.

They are used when the proceeding by Impeachment would be justifiable, but cannot be enforced in consequence of the accused flying from justice, and refusing to surrender himself; or when he is in actual rebellion, and in direct opposition to all methods of trial, and in defiance of every tribunal of law.

The trial is conducted in such a case by united Committees of Lords and Commons, who examine witnesses and report thereon to their respective Houses. Upon this report the bill of Attainder, or of Pains and Penalties, is brought in, if sufficient facts are adduced to warrant it. When the bill is committed, after its second reading, witnesses are again examined upon its allegations.

Formerly, the consequences of Attainder were corruption and forfeiture of blood, which cannot regularly be taken off but by act of Parliament (n), but now, by the 54th Geo. III. ch. 145. this extends only to cases of high treason, petty treason and murder; or abetting, favouring or counselling the same.

By a Bill of Attainder, or of Pains and Penalties, any one may be attainted of treason or felony, and pains and penalties inflicted beyond, or contrary to, the existing law.

But where the remedy by Impeachment is available, such bills will be regarded with jealousy, on account of the dangerous licence which the Houses of Parliament have permitted themselves, from the mixed and indefinite nature of their legislative and judicial capacities, when

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p. 118, &c.—and the "Report of the Committee on causes of the duration of Mr. "Hastings' trial," where many doubtful points in Impeachments are examined and determined-in Burke's Works (Edit. 1816), vol. 4th, p. 168.

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