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Chapter
XXIV.

So important is the impeachment by the Commons, Proceedthat not only does it continue from session to session, ings not in spite of prorogations, by which other parliamentary by prorogaproceedings are determined, but it survives even a dis- solution. solution, by which the very existence of a Parliament is concluded.1

tion or dis

In the case of the Earl of Danby, in 1679, the Commons Pardon not pleadable. protested against a royal pardon being pleaded in bar of an impeachment; 2 and it was declared by the Act of Settlement, "That no pardon under the great seal of England shall be pleadable to an impeachment by the Commons in Parliament."

But, although the royal prerogative of pardon is not But may be given aftersuffered to interfere with the exercise of parliamentary wards. judicature, yet the prerogative itself is unimpaired in regard to all convictions whatever; and, after the judgment of the Lords has been pronounced, the Crown may reprieve or pardon the offender. This right was exercised in the case of three of the Scottish lords who had been concerned in the rebellion of 1715, and who were reprieved by the Crown, and at length received the royal pardon.

Concerning the trial of peers, very few words will be Crimes for which peers necessary. At common law, the only crimes for which a are tried by peer is to be tried by his peers, are treason, felony, mis- their peers. prision of treason, and misprision of felony; and the statutes which give such trial have reference to the same offences, either at common law or created by statute. For misdemeanours, and in cases of præmunire, it has been held that peers are to be tried in the same way as commoners, by a jury.s

ment, or by

court of

During the sitting of Parliament, they are tried by the In ParliaHouse of Peers; or, more properly, before the court of our lord the King in Parliament, presided over by the lord high steward appointed by commission under the great

139 L. J. 191; Report, ib. 125; 46 C. J. 136; 2 May, Const. Hist. (7th ed.), 93; see, however, the Acts passed in the case of Warren Hastings and Lord Melville, 26 & 45

Geo. III. c. 96. 125.

* See 4 Hatsell, 197, n. 208. 400.
405; 3 Lord Macaulay, Hist. 407.
3 Rex v. Lord Vaux, 1 Bulstr. 197.
Foster, Crown Law, 141.

lord high steward.

Indictments

against peers.

Accused

peers at the bar.

Trial of

in full Par

liament.

XXIV.

seal: but at other times, they may be tried before the court Chapter
of the lord high steward,2 to which, under 7 Will. III. c. 3,
all the peers must be summoned.

By the 4 & 5 Vict. c. 22, it is enacted, that every
lord of Parliament, or peer of this realm, having place and
voice in Parliament, against whom any indictment may be
found, shall plead to such indictment, and shall, upon con-
viction, be liable to the same punishment as any other of
his Majesty's subjects.

Indictments are found, in the usual manner, against peers charged with treason or felony: but are certified into the House of Lords by writs of certiorari, when the proceedings are immediately taken up by that house. It is usual, in such cases, to appoint a committee to inspect the journals upon former trials of peers, and to consider the proper methods of proceeding; and if the accused peer be not already in custody, an order is forthwith made for the gentleman usher of the Black Rod to attach him, and bring him to the bar of the house.3

Peers on trial before the Lords for misdemeanours are allowed a seat within the bar: but if tried for treason or felony, they are placed outside the bar.1

By standing order No. 72, it was resolved by the Lords, peers to be That it is the ancient right of the peers of England to be tried only in full Parliament for any capital offences: but this order shall not be understood or construed to extend to any appeal of murder or other felony, to be brought against any peer or peers."

Declara

tion concerning appeals of murder, &c.

Lord high steward.

When a peer is tried in full Parliament, the lord high steward votes with the other peers; but when the trial is before the court of the lord high steward, he is only the judge to give direction in point of law; and the verdict is given by the lords-triers.5

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Chapter
XXIV.

In the trial of peers, the position of the bishops is at once Spiritual anomalous and ill defined. Not being themselves ennobled lords. in blood, they are "not of trial by nobility," but would be tried for a capital offence by a jury, like other commoners.1 Though not entitled to a trial by the peers, they claim, and to a certain extent exercise, the right of sitting, as judges, upon the trial of peers in full Parliament. When a peer is to be tried in full Parliament, the bishops, as lords of Parliament, are entitled to take part in the proceedings of the House of Lords, of which they are members, and they are always summoned to attend with the other peers.2 Here, however, they are restrained from the full exercise of their judicial functions, by their ecclesiastical obligations. By the canons of the Church, they are prohibited from voting in cases of blood; and by the Constitutions of Clarendon, it was declared, " That bishops, like other peers (or barons), ought to take part in trials in the king's court, or council, with the peers, until it comes to a question of the loss of life or limb."

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lords with

It was declared by the Lords, on the impeachment of the Spiritual Earl of Danby, "That the lords spiritual have a right to draw. stay and sit in court in capital cases, till the court proceed to the vote of guilty or not guilty." And in accordance with this rule, the bishops are present during the trial of peers in Parliament, but ask leave to be absent from the judgment; which being agreed to, they withdraw, in compliance with the canons of the Church, but enter a protestation, "saving to themselves and their successors, all such rights in judicature as they have by law, and by right ought to have.” 4

In passing bills of attainder, the bishops are not subjected Bishops

1 Lords' S. O. No. 73; 1st Inst. 31; 3rd Inst. 30; Gibson, Codex, 133; Gilbert, Exch. 40; 1 Burn, Eccl. Law, 221, et seq.; Trials of Bishop Fisher and Archbishop Cranmer, 1 Howell, St. Tr. 399. 771.

2 73 L. J. 16; Foster's Crown Law, 247. Spiritual lords are not summoned to attend the court of

the lord high steward.

3 Gibson, Codex, 124. 125; and see 2 Burnet, Own Times, 216; and 3 Stillingfleet, Works, 820.

11 Henry II. A.D. 1164; 1 Wilkins' Concilia, 435; 13 L. J. 571; 27 ib. 76; 73 ib. 43; 133 ib. 290.

vote in bills of attainder.

Represen

of Scotland,

XXIV.

to the same restraints as upon an impeachment. The pro- Chapter
ceedings, though judicial, are legislative in form; and as
they consist of numerous stages, no particular vote involves
a conclusive judgment upon the accused. In the attainder
of Sir John Fenwick, in 1696, the bishops voted in all the
proceedings, and even upon the final question for the
passing of the bill.1

By the 23rd article of the Act of Union with Scotland, it tative peers is declared that the sixteen representative peers shall have the right of sitting upon the trials of peers; "and in case of the trial of any peer in time of adjournment or prorogation of Parliament, they shall be summoned in the same manner, and have the same powers and privileges at such trial, as any other peers of Great Britain;" and in case there shall be any trials of peers when there is no Parliament in being, the sixteen peers who sat in the last Parliament shall be summoned in the same manner. All peers of Scotland enjoy the privilege of being tried as peers of Great Britain.

and Ireland.

Bills of attainder and of pains

ties.

By the 4th article of the Act of Union with Ireland, it was enacted that "the (representative) lords spiritual and temporal respectively, on the part of Ireland, shall have the same rights in respect of their sitting and voting upon the trial of peers, as the lords spiritual and temporal respectively on the part of Great Britain; " and that all the peers of Ireland shall be sued and tried as peers, but shall not have the right of sitting on the trial of peers.

The proceedings of Parliament, in passing bills of attainder and of pains and penalties, do not vary from and penal- those adopted in regard to other bills; 2 though the parties who are subjected to these proceedings are admitted to defend themselves by counsel and witnesses, before both houses.

The highest

Whenever a fitting occasion arises for its exercise, a form of bill of attainder is, undoubtedly, the highest form of

parliament

ary judicature.

116 L. J. 44. 48; 13 Howell, St. Tr. 750, et seq.

2 Bills of attainder generally commence in the House of Lords. In

1722, the bill of pains and penalties
against Dr. Atterbury, Bishop of
Rochester, was brought into the
Commons, 20 C. J. 165.

XXIV.

Chapter parliamentary judicature. In impeachments, the Commons are but accusers and advocates; while the Lords alone are judges of the crime. On the other hand, in passing bills of attainder, the Commons commit themselves by no accusation, nor are their powers directed against the offender : but they are judges of equal jurisdiction, and with the same responsibility, as the Lords; and the accused can only be condemned by the united judgment of the Crown, the Lords, and the Commons.

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