to find a Bill, before he can be indicted; and that bill cannot be found, but upon the oaths of two credible witnesses.-That the commons look upon the method of Trials, which the lords would alter, to have been as ancient as the constitution of the government. That it appears, in the Year Books, to have been practised in 1 Henry 4, and to have been well known at that time. Indeed, it cannot be supposed to have been an innovation then; the lords, who had just before deposed Richard 2, were too great to suffer such an innovation, and Henry 4's title was not sufficiently established to attempt it.The reason why no older instances of proceed ings before a lord high steward are to be found, is this; that this very Henry 4, when duke of, Lancaster, was the last high steward who ever had any fixed interest in the office; so that the office being so long since ceased, all the Records | are lost, and the very nature and power of the office, except in this instance of trying of peers, and determining claims at coronations, is lost: but, since that time, the high steward being only pro unica vice, the proceedings are commonly transmitted into other courts, and so come to be found. other; (for it is to be observed, that a restitution of the family follows generally in a short time) or at least the love of security, and care of not engaging too far: for these Trials, (which for the most part happen in unquiet and troublesome times) will keep indifferent men away-But the care for a friend will not fail to bring friends to the trial; the concern to preserve their family from that stain will bring relations; and if there be any accomplices, they must be ready, for their own sakes, to acquit the accused. And probably their num ber must be considerable in these cases; for it is not to be imagined that a lord can enter into those base and detestable actions which may be performed by single persons; such as poisoning or assassinating the prince.—That the Treasons, which it can be imagined that lords may be engaged in, may be such as arise from factions in the state; in which many must be engaged; and, if some accident discover sufficient matter for a Charge against one of the party, the rest, who are concealed still, will have as good a right to try their confederate as any indifferent lord; and no doubt but it is their interest to acquit him: and how far, at some times, this alone may go towards turning the scale of justice, may deserve to be considered; especially in times (which may happen tofore,) when there may be several titles set up to the crown, and great parties formed.That this is a law which is to have a perpetual continuance; and that the same loyalty, wisdom, and zeal, which appears now in their lordships, should be derived down to all their posterity, is a thing rather to be wished than depended upon. That if, therefore, the Clause has a tendency towards letting in an impunity for Treason, the commons look upon themselves as justified in disagreeing to it.-For they think it obvious to every one, of what consequence it will be to the constitution, if such a body as the "The commons observed, That, if there be any objection to that method of trying of peers, it must be founded on a supposition of partiality, and unfairness, in constituting a high stew-hereafter, because they have happened hereard, or in the high steward hi self, and the peers summoned by him; and the commons are unwilling to enter into such kind of supposals. That, as to the partial constituting of a high steward, if that may be supposed, it is an objection to the constitution, which entrusts the crown with the administration of justice. That supposal may as well extend to the constituting of the Judges, and the Sheriffs, and every other part of the administration: And if, upon such a supposal or distrust, the remedy must be, to take that part of the administration out of the crown, (as is done in this case) the same reason must carry the thing so far, that the nature of the government will be altered.-As to the partiality of the lord high steward, and the peers, the commons are unwilling to suppose that it is possible that 12 peers should be ever found, (for that number must agree, or the person accused is safe) who can so far forget their honour, and the noble order they are of, as, for revenge or interest, to sacrifice an innocent person. But if the lords will suppose, that such a number of st peers may be capable of being engaged in so ill and so dishonourable a thing, then the commons think themselves excused, if they suppose, that other passions and motives may also prevail upon the peers; such as pity in friends, partiality in relations, and the consideration of their own safety in the case of accomplices: Most men, especially Englishmen, enter unwillingly into matters of blood.-That the most indifferent peers will be most likely to absent themselves, either from a consideration of dissatisfying the crown, on the one hand, or drawing on themselves the mischief of a breach with the family of the person accused, on the f ne lor lore thin is ne lords, were, o have already such high privisorts, should have impunity for 1; and what that must naturally the commons agreed with the od correspondence between the necessity for the safety, honour, of the nation; and can never to be interrupted by their rewhich may endanger the coning them, the commons will roving the true interest of the persuade themselves, that the pinion, that, to introduce any to an impunity for Treason, interest of the crown, the mons.-That the Managers spoke at this Conference, Bolton, the marquis of Ha 'embroke, Mulgrave, Stam Rochester, and Monmouth. "The of what was said by the Managers ords, was, That the lords were sorry to be of any opinion different rom the commons, especially in a Clause of so great : : importance, which did concern not only their the duke of Buckingham was taken off in this well-being, but their very being: that they had manner by cardinal Wolsey; that Anna Boleyn not differed from us in any thing propounded was condemned by her own father; and afterfor our security, and hoped we would have the wards, a party was chosen to condemn the same consideration for theirs; that nothing was duke of Somerset, and the duke of Northumnso proper for a parliament as to provide de- berland: that the Case of the earl of Huntingfences for innocence, in ill times. Necessity, don, 1 Hen. 4, is no good case, nor truly rein good prudence, puts us upon it. And ported; for the Parliament-Rolls, 2 Henry 4, though there were good times, in respect of mention his being beheaded by the rabble in the present government, they may say, they | Essex. That this does not alter the constituare unquiet, and unsafe; and what but a good tion any more than as, in some sense, every prince will ever pass such laws as these are? new law may be said to alter the constitution; This is the most proper time to provide for the and the commons say it is altered, because subject; for a good king would be not only formerly it was by a set number, and now all willing to protect them while he lives, but to must appear: and that does not seem to alter provide for their security after his death.-That the constitution; for the High Steward now this concerned not only themselves, and there- may summon them all: the Lord High Steward fore they would speak the more freely it is formerly summoned the court; he summons it too narrow a consideration for a parliament to still; the nature of the court is not altered by seek only our present ends: our ancestors had the majus or minus, any more than the King'sfarther thoughts and they did not doubt but Bench ceases to be the same court, when there we should have so too. This Clause is not for are three or four Judges in it.-Though this the lords sake alone; there can no good be Clause did not (as was said) pursue the ends of done in times of trouble, and invasion of rights, the Bill, yet either house has a power of adding but by agreement of both houses: there must what they think may make it better; and, be a concurrence of the greatest part of the though this is not of a different nature, there lords, and of the greatest part of the com- have been instances of additions of different mons, to maintain the government of Eng- natures; but this is so far from it, that it agrees land. There may come a prince, when we are entirely with it, and is as suitable and necessary dead and gone, that may endeavour to invade as any part of it. That the commons were not. the liberties of the people; and then the com- well satisfied, when the Commissions of the mons would be glad to have the concurrence Judges ran durante bene placito; and could it of the lords; and desired we would consider, be thought reasonable that the lords, who are in such a case, whether it would not be a great the supreme judicature, should hold their lives discouragement for the lords to act, unless they quamdiu se bene gesserint? And though the could be as secure, at least, as the commons:king does now appoint the sheriffs, it was not and if there may be such princes, is it fitting that any part of the government, which is so necessary in their concurrence, should be under such terms for their lives, that they dare not oppose them with vigour, nor act, because they lie under shackles ?-That the lords would do what was just, though this Clause should not pass; but they would be loth that those lords, that are eminent for their public service, should be eminent for their sufferings for it. That, in the case of Impeachments, which are the groans of the people, and for the highest crimes, and carry with them a greater supposition of guilt than any other accusation, there all the lords must judge; but when there comes a private prosecution, which may proceed from the influence of particular men, then a lord lies under the hardship of being tried by a few peers, chosen to try him, whilst all the people may sigh and wish for him; but such a Clause would do him more good. That, suppose an ill minister should apprehend an Impeachment in parliament, what manner of way could that man hope better to come off by, than by being tried before a parliament sits, where his Judges may be chosen so partially, as he shall come off; and it shall be said, No man can legally undergo two trials for the same offence? That this way of Trial was not ancienter than Hen. 8.; that it was brought in then to take off those that he did not like; that, in his time always so; and, since the crown has made them, the commons have this for their security, that they may challenge 35 of the pannel, peremptorily, and all the rest for cause. But the Judges and Sheriffs are made before the crime committed; so that it is impossible for the judges or sheriffs to have a prejudice against any man; but the lord high steward is appointed after they know the prisoner, and he shall be tried according to the humour of the times they are in. There may be lords inclined one way and the other; but in this case, there is a strong thing joined with this passion, which is, their making their own fortunes by serving the present times. That, since the Trial of Peers, in the time of parliament, must be by the whole house, where is the inconvenience, that at all times they should be tried as in parliament? It is a little favour that the lords ask in this Clause, considering the privilege of parliament, for three years last past, has been always subsisting, and is like to continue so during the war: so that the objection is taken away, as to the present government; for they will have the advantage of a parliamentary trial; and possibly, in times to come, there may be an inquisition for what is done now; and it will be well to have the fairest way of proceeding in that matter. That, in the case of lord Delamere, there were several lords then in town, and there were a great many of those before: however, it is but a circumstance lords not chosen; and it is a great question, whether that noble lord had come off as he did, if he had not received such notice from the grand jury, and every thing had not been made out so plain. That the argument used by your managers, That they could not allow any thing that tends to an impunity,' is a very large assertion, and may be an argument against the Bill; because it may happen, that by giving a copy of the indictment, and witnesses being upon their oaths, a guilty man may escape, and then he has an impunity. This is not intended. All that can be done in these cases is, to put in such reasonable caution, and so far, as a Bill can provide.-That this Clause could not extend to the Bishops; for it relates only to Trials out of parliament; and they are only peers in parliament, where they take their privilege to hear, and then go out again, and do not vote in blood: and by the word Peers,' it must be understood of such peers only as are peers in respect of their blood.—That the lords were of opinion, that fewer peers were sufficient to condemn a peer; but this makes no alteration in the argument; for there is not much more difficulty in getting twelve than seven. Indeed there might be greater diffe-in, That every commoner should be tried by rence where a crown, or government, was not concerned. That the excellency of a Jury is, that they are taken er vicineto; what is the reason of this? Why, in case of false witnesses, it is his neighbour that is to save the man. But what security have the lords, when lords are picked out to try them, who are not of their acquaintance, and the lords that know the whole course of their lives to be contrary to what is sworn against them, shall not be chosen ?-That it is implied in the commission of the lord high steward, that all the peers should be summoned; for, by his commission, all the peers of the realm are commanded to attend upon him, and be obedient to him; so that the king does not only give liberty, but seems to command it." That the Managers for the Commons, by way of Reply, said; "That this Clause would alter the constitution of this court, and thereby a very considerable part of the constitution of the government; and that for the worse: that it is not to be granted, that any new law does alter the constitution: that a new law may be made to strengthen or restore the constitution against abuses, it may be declaratory, it may ascertain things that before were left to reasonable discretion; which are but circumstances and accidents; and, notwithstanding such new laws, the substance of the constitution remains the same: So, by this Bill, the person indicted is to have a copy of his Indictment ten days before he shall plead: whereas now, by the common law, he is to have the indictment read to him as oft as he needs and desires; and to have copies of so much of it as he has occasion to use; and reasonable time to plead: by this Bill, he is to have his witnesses sworn; which, in some learned men's opinions, was the law all the freeholders of the county that would appear, or such of them as they should depute; it could not well be denied, that this were a change in the constitution of the government. It may as well be said, That it is not any altering of the constitution to divest the crown of the power of making Judges in courts of law and equity, and other courts, or making justices of peace, and other officers.-It was granted, in parliament, by 28 Edw. 1. That the people of any county should chuse the sheriffs: but thereupon ensued such factious confusions and mischiefs in the country, that, by the desire of the people, in parliament, 9 Edw. 2, the power of making Sheriffs was settled in the crown.That, though the high steward be said to be the Court; yet the peers tryers are so necessary a part of the court, that the conviction, or acquittal, depends entirely on them: and therefore, not only the number of tryers, but the nature of the court, may properly be affirmed to be altered by this clause. That the commons were surprised, when they heard it alleged, That this court, and course of trial, was first introduced, in Henry 8th's time, by cardinal Wolsey, in the case of the duke of Bucks, and that all trials of peers before were in parliament: The statute made 15 Edw. S, manifestly proves the contrary. It ordained, That peers should be tried by the peers in parliament; but provides, That if any peer would chuse to be tried elsewhere than in parliament, he might.-Indeed, the statute was repealed 17 Edw. 3, because it was so injurious to the prerogative. But yet it shews there was then such a count and course of trials as this, out of parliament: for they could not, in Edw. 3d's time, divine, that there would be such a new court See Cobbett's State Trials, vol. 1. p. 287. : and manner of trial erected in Henry 8th's or other cause of partiality, may be supposed time. That the Trial of the earl of Hunting among them. The lords have no challenges: don, 1 H. 4 reported in the Year-Books, is no but all peers are esteemed unexceptionable, more to be questioned than any other case because nothing so mean and dishonourable is there and it is cited, as authentic, by Stam- to be presumed among them. Their lordships ford, in his learned Treatise of the Pleas of the ancestors chose to distinguish themselves from Crown and his opinion also is, That this way their inferiors; and always claimed and enjoyed of trial was meant in the Judicium Parium, | a privilege to be intrusted otherwise than the mentioned in Magna Charta and Stamford is commons are; viz. They are upon honour, of great authority in this behalf; for that he not oath; are not challengeable; give their was cotemporary to the reign of Henry 8; and Verdict seriatim; may have more than 12 on a could not have been unacquainted with this in- | trial; and have claimed a liberty to eat or drink novation, if such there had been made in that before their Verdict: and they used to value time. And the very Clause of their lordships themselves upon these things, as dignities and now in question, doth affirm the legality of this privileges.-Now the commons, that are forbid way of trial: for it distinguishes Treasons which to speak otherwise of the present peers, than corrupt the blood, from others; and leaves all of their ancestors, are to be excused, if they other treasons, and all felonies, to be tried by think no otherwise of them.-That the Compeers summoned by the high steward, as it is mons observed, what their lordships had alnow used: which shews too, that there is no leged, concerning the inconveniences or abuses great danger apprehended to the peers by this that had been or might be in this way of trial, kind of trial.-That the commons do not ad- was grounded upon undue suppositions conmit, that a peer can be convicted by seven cerning the peers, or upon mistakes, and not peers there must be twelve, at least, to con- warranted by experience.-That they thought cur in the verdict: It is not only said by my it a strange and foreign supposition, That a lord Coke, but the law is, That no man shall great and guilty minister, finding himself liable suffer capitally at the king's suit, unless his of- to an Impeachment next session of parliament, fence be found by 24 at least, that is, 12 to should, by his power, procure himself to be tried find the Indictment, and 12 to give the Ver- and acquitted by an inquest of peers, on purdict:-And that there must be 12 peers pose, by a plea of Autrefoits acquit, to prevent agree in the Verdict, was resolved in the a second and true examination of his crimes; lord Dacres' Case, 26 Henry 8. Which for he must be first indicted of the treason; and is remembered in Moore's Reports.*--And then run a hazard, whether his power will be the case of every peer that has been conand continue sufficient to oblige so many peers victed, is a proof of this: for it cannot be to acquit him by an untrue verdict :-That shewn, that ever any peer was convicted by there is no example of this kind: and, if such fewer than twelve.--The Duodecemvirale Judi- au unheard-of proceeding should ever happen, cium, some time in use in foreign countries, it is left to consideration, Whether a parliament was always approved, and established by the would not vindicate the kingdom against so law of England; and understood to be that au- gross and fraudulent a contrivance: besides thority, to which the determination of contested that, the Court, as it is to be ordered by this facts is intrusted: and therefore, in all other Clause, would be no less liable to such abuse. commissions and precepts, as well as those of Their lordships did not assign any sufficient the high steward, wherein the command is in instances of injustice in this court: and perhaps general words: viz. to return or summon tot et this court hath continued the most unblemishtales, such and so many persons, by whom the ed, in point of justice, of any court whatsoever. truth of the matter may be tried; it is to be answered and performed by the bringing of 12 persons, who are to agree in the determining of the matter inquired of.—And as to that Clause that requires all peers to be attending; it is but a clause of the same form and nature, as is in commissions of Oyer and Terminer, and other commissions; and imports no more, than that all persons should attend, who are required to do so by law, and it can no more be inferred, from those words, That the high steward is to summon all the peers; than, from the like words in other commissions, all the freeholders are to be summoned.-It is the common notion of our law, That no man shall be convicted of a crime, but by the unanimous judgment of 12 unexceptionable persons summoned by the king's officer. The commons have liberty of challenging; because that fear, or corruption, * See Cobbett's State Trials, vol. 1. p. 407. That, in the few Trials which have been there for Treason, there have been two acquittals; viz. of the lord Dacres, and the duke of Somerset, besides that of the lord Delamere.That the duke of Northumberland's crime was notorious, he having been in open rebellion against queen Mary. That, if the earl of Wiltshire had been forced to sit on the Trial of his daughter Anna Boleyn; it seems to show a greater fairness: and, if the court had been constituted according to this Clause, he must have been summoned; and, if the Trial had been in parliament, he, as well as other peers, had been obliged to come: but the tradition about that matter is rectified, by the discovery made by a reverend prelate, in his History of the Reformation (a book approved by their lordships); where it is made appear, that that earl did not sit upon the Trial of the queen, * See Cobbett's State Trials v. 1. p. 417. But, if all power must be abolished, which is possible to be abused, there must be no power left to the king, or lords, or commons: and perhaps there are not harder cases to be found, than those wherein all three have concurred: of which the attainting Cromwell earl of Essex, without suffering him to come from the Tower to be heard, is an instance *.-That, if any inquisition may be made into what is now doing, it were better to lay aside the Clause, that nobody may have any dependence, but upon the safety of the present government. That the high steward is made pro hac vice, or after the crime, is no singular thing. The Justices of Oyer and Terminer, and of Gaol-Delivery, are generally made so twice a year, or oftener; and sheriffs are appointed in every year, or of tener; and all hold their places during the king's pleasure. And, notwithstanding this Clause, the high steward is still to be appointed by the king, in the same manner as before: and in all treasons, but those mentioned, and in all felonies, he continues to have the same power of trying a peer by an inquest of peers, summoned by his precept, as is now used: by which alone the lives and fortunes of peers will remain exposed to as much danger, as they were, if any there were, before this Bill-That the commons acknowlege they have known, that when a peer hath stood indicted, sitting a parliament, the indictment has been, by the king's writ of Certiorari, removed into the house of peers, there to be tried by all the peers: but they do not know, that of necessity that must be done, or that such peer may not be then tried in the ordinary court; and it would be highly inconvenient, in case of long adjournments, if it might not so be. But it is no concluding argument, that, because there is this extraordinary way of trial by all the peers, therefore the ordinary by a number of peers should be taken away; no more, than that, because there is such an ordinary, therefore the extraordinary should be taken away.-That there is also another way of trial, which, in other capital offences, concerns the peers too; that is, by a jury of freeholders, which their lordships in this debate did commend because those freeholders were of the vicinage, and the prisoner might challenge 35 without cause, and any of the rest of the panel for cause: and by this the peers, as well as commons, are to be tried, in an Appeal of murder, rape, or other felony: but it is supposed their lordships will not allow it to be a good argument, that therefore they should be ordered to be tried so in treason, and indictments of felony: but they hold it a privilege to be tried, in such ease, by their peers, in the manner now used. But the method of Trial, appointed by this Clause, is worse than any of those now in being: and it has nothing of the nature or virtue of a trial in parliament: for the lords house hath power to send for, and cause all peers to come, as they did upon the Trial of the late * See Cobbett's State Trials, vol. 1. p. 434. lord Stafford but, to this intended court, none are to come, but such as voluntarily will: nor is it required, that there should be 12, or any certain number: if but two or three appear, it is enough: and probably none will come, but the accomplices and abettors, and favourers, and friends and relations of the party nor is it possible to bring together all the peers there, as in parliament: for, in parliament, the house of peers may appoint or adjourn the proceeding at or to any time or times, and as often as they think fit, till the house be full: but the proceedings in this court before the high steward is the work but of one day.-That, in the last place, the Commons replied, That they did not find Reason to pass this Clause, from what was so much pressed by their lordships; viz. That the Clause did provide such defence for the peers, as would encourage them to adventure to join boldly with the commons in asserting the publick liberties: for the commons do not find, that, by the present constitution, the lives and fortunes of innocent peers are, as their lordships intimated, exposed to the will of a great and malicious minister: and if they were, they do not see, that they would be protected by this provision, since it extends but to some treasons, and to no felonies: and they might say, it does not deserve the name of adventure, for their lordships do act only upon terins of perfect safety.--And, on the other hand, the commons apprehend it would afford too great a prospect of safety to guilty peers; and might embolden them to attempt against the crown, or the public liberties.-That the Commons acknowledge, That these are good times; and, if they are unquiet or unsafe, it is in relation to the crown, and not to the peers: the peerage is in no danger; the peers have power enough; and the crown hath not too much, nor ought to be rendered less safe.-That therefore the Commons would insist upon the old ways; keep the balance of the government, as they found it; and not change the laws of England, which have been hitherto used and approved.” Debate on the said Report.] Mr. Waller. I know not, whether it be proper to speak now, or no; but, I conceive, you may amend or restrain any part of the lords Clause. I am as watchful as any man, that the lords should have no increase of power. I think, if the word, Temporal,' were put, it would put an end to any thing of the Bishops appearing at trials. If the house think fit, I will offer something. Put it to twenty-three,' and the majority will be twelve. Mr. Clarke. I think you are not ready to conclude. You have had a very faithful Report. This latter Conference I shall speak to. It was made part of that Conference: If the commons agree to the Amendments, pass the Bill; but it seems not parliamentary for the lords to tell you what to do. Sir Wm. Whitlock. I think, at the last Conference, the lords did, with all the decency imaginable, offer Amendments. The lords |