upon

[the same offence in a criminal way, especially if acquitted the first trial,-therefore these criminal courts may be said to be all independent of each other; at least so far as that the sentence of the lowest of them, can never be controlled or reversed by the highest jurisdiction in the kingdom, unless for error in matter of law (c); though sometimes causes may be removed from one to the other, before trial. And, therefore, as in these courts of criminal cognizance, there is not the same chain and dependence as in the others, it is proposed to rank them according to their dignity, and begin with the highest of all, viz.—

1. The High Court of Parliament; which is the supreme court in the kingdom, not only for the making but also for the execution of laws, by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachment. As for Acts of parliament to attaint particular persons of treason or felony,-or to inflict pains and penalties, beyond or contrary to the common law, to serve a special purpose, we speak not of them; such being to all intents and purposes new laws, made pro re natâ, and by no means an execution of such as are already in being. But an impeachment before the lords, by the commons of Great Britain in parliament, is a prosecution of the already known and established law, and has been frequently put into practice,-being a presentment to the most high and supreme court of criminal jurisdiction, by the most solemn grand inquest of the whole kingdom (d). A commoner cannot, however, be impeached before the lords for any capital offence, but only for high misdemeanors (e); a peer may be so impeached, for any crime.

(c) As to arrest or reversal of judgment, vide post, cc. xxiii. xxiv. As to reserving questions of law, arising at assizes or sessions, for the consideration of the judges, see 11 & 12 Vict. c. 78. And as to cases stated by justices of the peace, on the application of any person aggrieved by their determination in

point of law, in the exercise of their summary jurisdiction, see 20 & 21 Vict. c. 43.

(d) 1 Hale, P. C. 150.

(e) When, in the fourth year of Edward the third, the king demanded the earls, barons and peers to give judgment against Simon de Bereford, who had been a notorious accomplice

[And they usually, (in cases of an impeachment of a peer for treason,) address the Crown to appoint a Lord High Steward, for the greater dignity and regularity of the proceedings; which High Steward was formerly elected by the peers themselves, though he was generally commissioned

in the treasons of Roger Earl of Mortimer, they came before the king in parliament and said all with one voice, that the said Simon was not their peer; and therefore they were not bound to judge him as a peer of the land. And when afterwards, in the same parliament, they were prevailed upon, in respect of the notoriety and heinousness of his crimes, to receive the charge and give judgment against him, the following protest and proviso was entered in the parliament roll:-"And it is as"sented and recorded by our lord "the king, and all the great men "in full parliament, that albeit the 66 peers as judges of the parliament, "have taken upon them, in the presence of our lord the king, to make "and render the said judgment; yet "the peers who now are, or shall be "in time to come, be not bound or

charged to render judgment upon "others than peers; nor that the

p. 260,) that according to the last
resolution of the house of lords, a
commoner may be impeached for a
capital offence. And he states, on
the authority of the Journals of
the House of Lords, the following
instance. On the 26th of June,
1689, Sir Adam Blair, and four
other commoners, were impeached
for high treason, in having pub-
lished a proclamation of James the
second. On the 2nd of July a
long report of precedents was pro-
duced, and a question was put to
the judges, whether the record 4
Edw. 3, n. 6, was a statute. They
answered, as it appeared to them by
the copy, they believed it to be a
statute; but if they saw the roll
itself, they could be more positive.
It was then moved to ask the judges
(but the motion was negatived),
whether by this record the lords
were barred from trying a com-
moner for a capital crime upon an
impeachment of the commons. And
the lords immediately resolved to
proceed in this impeachment, not-
withstanding the parties were com-
moners, and charged with high trea-
son. (14 Lords' Journ. p. 260.) Mr.
Christian adds that this impeach-
ment was not prosecuted with ef-
fect, on account of an intervening
dissolution of the parliament. See
also Lives of the Chancellors, by
Lord Campbell, vol. iii. p. 357, n.,
and the observations of Mr. May
on this subject, in his Practice of
Parliament.

[by the sovereign; but it hath] in modern times [been strenuously maintained, that the appointment of a High Steward in such cases is not indispensably necessary, but that the House may proceed without one (e). The articles of impeachment are a kind of bill of indictment, found by the house of commons, and afterwards tried by the house of lords; who are, in cases of misdemeanor, considered not only as their own peers, but as the peers of the whole nation. This is a custom derived to us from the constitution of the antient Germans; who, in their great councils, sometimes tried capital accusations relating to the public: "licet apud consilium accusare quoque, et discrimen capitis intendere" (f). 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 (g). 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

(e) As to the appointment of the High Steward, see 1 Hale, P. C. 350; Lords' Journ. 12th May, 1679; Com. Journ. 15th May, 1679; Fost.

142, &c.

(f) Tacit. De Mor. Germ. 12. (g) Montesq. Sp. L. xi. 6.

[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 (h);] and which is now established by the Act of Settlement (i). This is, [that no pardon under the Great Seal shall be pleadable to an impeachment by the commons of Great Britain in parliament,] so as to prevent its further prosecution (k); though such a pardon would be pleadable, (as we shall see hereafter,) in the ordinary case of an indictment.

Before the House of Peers also, during the session of parliament, is tried any peer or peeress against whom an indictment for treason or felony, or for misprision of either, is found 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 (1).

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 (m); or for misprision of either (n). 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 (o), 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,

(h) Com. Journ. 5th May, 1679.
(i) 12 & 13 Will. 3, c. 2.
(k) As to pardons, vide post, c.

XXV.

(1) 4 Bl. Com. p. 262; Bac. Ab. Courts (G); Com. Dig. Parliament (L. 13). The last occasion of such a trial was in the year 1841, when the Earl of Cardigan was tried be

fore the House of Lords for felony, in shooting at Captain Tuckett. An account of the proceedings, will be found in the 83rd volume of the Annual Register.

(m) 4 Inst. 58; Hawk. P. C. b. 2, c. 2, s. 44; 2 Jon. 54.

(n) R. v. Lord Vaux, 1 Bulst. 198. (0) Pryn. on 4 Inst. 46.

[else he is incapable to try such delinquent peer (p). When, therefore,] an indictment has been 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 (q).] 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 (r). [A peer may plead a pardon before the court of Queen's Bench: and the judges 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, in that inferior court, 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 con

(p) "Quand un seigneur de parlement 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. (Yearb. 13 Hen. 8, 11.) See Staundf. P. C. 152; 3 Inst. 28; Inst. 59; Hawk. P. C. b. 2, c. 2; Barr. 234.

(q) Lord Coke says, (3 Inst. 30,) "that this privilege cannot be "waived by the peer indicted;" but Hawkins (P. C. b. 2, c. 44, s. 19) holds that it is waived if he puts himself upon his country; that is,

pleads not guilty, and refers the issue to a trial by jury. By 19 & 20 Vict. c. 16, the Court of Queen's Bench is empowered to order certain indictments to be tried in the Central Criminal Court; but, by the twenty-ninth section of the Act, it is not to apply to any indictment or inquisition charging any peer or peeress (or other person claiming the privilege of peerage) with any offence not now lawfully triable at any court of oyer and terminer or gaol delivery.

(r) 2 Inst. 49; 3 Inst. 28, 30; R. v. Lord Vaux, I Bulst. 197.