[suetudinem Angliæ. 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 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 (s): 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 (t). 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 (u).] The decision in this court, is by the majority; but a majority cannot convict, unless it consists of twelve or more (x). [During the session of parliament, the trial of an in (s) Kelynge, 56. (t) Carte's Life of Ormonde, vol. ii. (u) Mr. Christian, in his edition of Blackstone, remarks that in as much 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. (x) Christian's Blackstone, vol. iv. p. 262, note. [dicted peer, is not in the court of the Lord High Steward,] but (as already mentioned) before the peers in the high court of parliament (y). [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, 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 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 (z). 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 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 Court of Queen's Bench, the record being removed into that court (a). And 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 (b), " 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 (y) Vide sup. p. 379; Fost. 141. (z) St. Tr. vol. iv. 214, 232, 233. See Lord Campbell's Lives of the VOL. IV. Chancellors, vol. iii. p. 557, n. C C [no instance of their sitting on trials for capital offences, even upon impeachments and 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 the parliament of the eleventh year of Henry the second, they are expressly excused, rather than excluded, from sitting and voting on trials, when they come to concern life or limb: "episcopi, sicut cæteri barones, debent interesse judiciis cum baronibus, quousque perveniatur ad diminutionem membrorum, vel ad mortem :" and 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, which compelled the bishops to attend at all. And the determination of the house of lords in the Earl of Danby's case (c), which has ever since been adhered to, is consonant to these constitutions: "that the lords spiri"tual have a right to stay and sit in court in capital cases, "till the court proceeds to the vote of guilty, or not guilty (d)." 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 new-model or alter its constitution: and consequently does not give the lords spiritual any right in cases of blood, which they had not before (e). 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 (f); and therefore, surely, ought not to be judges (c) Lords' Journ. 15 May, 1679. (d) This applies, it will be observed, only to judicial proceedings. Where the proceeding is a legislative one, as in the case of a bill of attainder, the bishops are excluded at no stage of it, though it affect (f) Bro. Ab. tit. Trial, 142. [there. For the privilege of being thus tried depends upon nobility, rather than a seat in the house; as appears from the trial of popish lords, while incapable of a seat there; of lords under age;] and, (since the union with Scotland,) [of the Scots nobility, though not in the number of the sixteen representative peers: and from the trial of females; such as the queen consort or dowager, and of all peeresses by birth; and of peeresses by marriage also, unless they have, when dowagers, disparaged themselves by taking a commoner to their second husband. 3. The Court of Queen's Bench, concerning the nature of which we partly inquired in the preceding Book, was, we may remember, divided into a Crown side, and a plea side (g). And on the Crown side, or Crown office, it takes cognizance of all criminal causes-from treason, down to the most trivial misdemeanor or breach of the peace (h). Into this court all indictments from all inferior courts may be removed by writ of certiorari:] but (under the provisions of a recent statute) the removal can only take place where the indictment is against a body corporate not authorized to appear by attorney in the court below, or else where it is made to appear to the Court of Queen's Bench, or a judge thereof, by the party applying for the writ, that a fair and impartial trial cannot be had in the court below; or that a question of law of more than usual difficulty and importance is likely to arise upon the trial; or that a view of premises, or a special jury, may be required for the satisfactory trial of the case (i). The manner of trial in the Queen's Bench is in felony or treason, at bar (j); and in misdemeanors, either at bar (in cases of sufficient consequence) or at nisi prius (k). [The (g) Vide sup. vol. 111. p. 408. (h) By 23 & 24 Vict. c. 54, the office of assistant-master of the crown office is abolished; and the officers on the crown side of the court, are to be the queen's coroner and attorney, and one master. (i) 16 & 17 Vict. c. 30, s. 4. As to the leave and recognizance required before the writ is allowed, see also post, p. 470. (j) Woolrych's Crim. Law, p. 162. (k) Where the record is in the Queen's Bench, either prosecutor or [judges of the court are the supreme coroners of the kingdom. And the court itself is the principal court of criminal jurisdiction, (though the two former, we have mentioned, are of greater dignity,) known to the laws of England. For which reason, by the coming of the Court of Queen's Bench into any county, (as it was removed to Oxford on account of the sickness in 1665,) all former commissions of oyer and terminer, and general gaol delivery, are at once absorbed and determined ipso facto (1): in the same manner as by the old Gothic and Saxon constitutions, "obtinuit quievisse omnia inferiora judicia, dicente jus rege” (m). Into this Court of Queen's Bench hath reverted all that was good and salutary of the jurisdiction of the court of Star-chamber, camera stellata (n); which was a court of defendant may apply for a special jury. This, however, is only in cases of misdemeanor, and not of treason or felony (6 Geo. 4, c. 50, s. 30). It may be remarked that, in certain cases, the trial is neither at bar nor at nisi prius, but at the Central Criminal Court, under the provisions of 19 & 20 Vict. c. 16 (vide post, p. 472). As to trials at bar and nisi prius in civil cases, vide sup. vol. 111. pp. 431, 582, 614. (1) But by the 25 Geo. 3, c. 18, it is enacted, that the session of oyer and terminer, and gaol delivery of the gaol of Newgate, for the county of Middlesex, shall not be discontinued on account of the commencement of the Term, and the sitting of the Court of Queen's Bench, at Westminster; but may be continued till the business is concluded. And the 32 Geo. 3, c. 48, was passed to continue in like manner the sessions of the peace, and of oyer and terminer, held before the justices of the peace for the county of Middlesex. And see 9 Geo. 4, c. 9, enabling the justices of the peace for the city of Westminster, also, to hold their sessions during Term and the sitting of the Court of Queen's Bench. (m) Stiernh. 1. 1, c. 2. (n) This is said (Lamb. Arch. 154) to have been so called, either from the Saxon word reoɲan, to steer or govern; or from its punishing the crimen stellionatus, or cozenage; or because the room wherein it sat, the old council chamber of the palace of Westminster (Lamb. 148), was full of windows; or (to which Sir Edward Coke, Inst. 66, accedes) because haply the roof thereof was at first garnished with gilded stars. As all these, (says Blackstone, vol. iv. p. 266, in notis,) are merely conjectures (for no stars are now in the roof, nor are any said to have remained there so late as the reign of Elizabeth), it may be allowable to propose another conjectural etymology, as plausible perhaps as any of them. It is well known that, before the banishment of the Jews under Edward the first, their contracts and obligations were |