It was formerly doubted, whether, in the case of an impeachment for treason, and in the case of an indictment against a peer for any capital crime, removed into Parliament by Certiorari, whether in these cases the court can proceed to trial and judgment without an High Steward appointed by special commission from the Crown. This doubt seemeth to have arisen from the not distinguishing between a proceeding in the Court of the High Steward and that before the King in Parliament. The name, style, and title of office is the same in both cases: but the office, the powers and preëminences annexed to it, differ very widely; and so doth the constitution of the courts where the offices are executed. The identity of the name may have confounded our ideas, as equivocal words often do, if the nature of things is not attended to; but the nature of the offices, properly stated, will, I hope, remove every doubt on these points.
In the Court of the High Steward, he alone is judge in all points of law and practice; the peers triers are merely judges of fact, and are summoned by virtue of a precept from the High Steward to appear before him on the day appointed by him for the trial, ut rei veritas melius sciri poterit. The High Steward's commission, after reciting that an indictment hath been found against the peer by the grand jury of the proper county, impowereth him to send for the indictment, to convene the prisoner before him at such day and place as he shall appoint, then and there to hear and determine the matter of such indictment; to cause the peers triers, tot et tales, per quos rei veritas melius sciri poterit, at the same day and place to appear before him; veritateque inde compertâ, to proceed to judgment according to the law and custom of England, and thereupon to award execution.[82] By this it is plain that the sole right of judicature is in cases of this kind vested in the High Steward; that it resideth solely in his person; and consequently, without this commission, which is but in nature of a commission of Oyer and Terminer, no one step can be taken in order to a trial; and that when his commission is dissolved, which he declareth by breaking his staff, the court no longer existeth.
But in a trial of a peer in full Parliament, or, to speak with legal precision, before the King in Parliament, for a capital offence, whether upon impeachment or indictment, the case is quite otherwise. Every peer present at the trial (and every temporal peer hath a right to be present in every part of the proceeding) voteth upon every question of law and fact, and the question is carried by the major vote: the High Steward himself voting merely as a peer and member of that court, in common with the rest of the peers, and in no other right.
It hath, indeed, been usual, and very expedient it is, in point of order and regularity, and for the solemnity of the proceeding, to appoint an officer for presiding during the time of the trial, and until judgment, and to give him the style and title of Steward of England: but this maketh no sort of alteration in the constitution of the court; it is the same court, founded in immemorial usage, in the law and custom of Parliament, whether such appointment be made or not. It acteth in its judicial capacity in every order made touching the time and place of the trial, the postponing the trial from time to time upon petition, according to the nature and circumstances of the case, the allowance or non-allowance of council to the prisoner, and other matters relative to the trial;[83] and all this before an High Steward hath been appointed. And so little was it apprehended, in some cases which I shall mention presently, that the existence of the court depended on the appointment of an High Steward, that the court itself directed in what manner and by what form of words he should be appointed. It hath likewise received and recorded the prisoner's confession, which amounteth to a conviction, before the appointment of an High Steward; and hath allowed to prisoners the benefit of acts of general pardon, where they appeared entitled to it, as well without the appointment of an High Steward as after his commission dissolved. And when, in the case of impeachments, the Commons have sometimes, at conferences between the Houses, attempted to interpose in matters preparatory to the trial, the general answer hath been, "This is a point of judicature upon which the Lords will not confer; they impose silence upon themselves,"—or to that effect. I need not here cite instances; every man who hath consulted the Journals of either House hath met with many of them.
I will now cite a few cases, applicable, in my opinion, to the present question. And I shall confine myself to such as have happened since the Restoration; because, in questions of this kind, modern cases, settled with deliberation, and upon a view of former precedents, give more light and satisfaction than the deepest search into antiquity can afford; and also because the prerogatives of the Crown, the privileges of Parliament, and the rights of the subject in general appear to me to have been more studied and better understood at and for some years before that period than in former ages.
In the case of the Earl of Danby and the Popish lords then under impeachments, the Lords,[84] on the 6th of May, 1679, appointed time and place for hearing the Earl of Danby, by his council, upon the validity of his plea of pardon, and for the trials of the other lords, and voted an address to his Majesty, praying that he would be pleased to appoint an High Steward for those purposes. These votes were, on the next day, communicated to the Commons by message in the usual manner. On the 8th, at a conference between the Houses upon the subject-matter of that message, the Commons expressed themselves to the following effect:—"They cannot apprehend what should induce your Lordships to address his Majesty for an High Steward, for determining the validity of the pardon which hath been pleaded by the Earl of Danby, as also for the trial of the other five lords, because they conceive the constituting an High Steward is not necessary, but that judgment may be given in Parliament upon impeachment without an High Steward"; and concluded with a proposition, that, for avoiding any interruption or delay, a committee of both Houses might be nominated, to consider of the most proper ways and methods of proceeding. This proposition the House of Peers, after a long debate, rejected: Dissentientibus, Finch,[85] Chancellor, and many other lords. However, on the 11th, the Commons' proposition of the 8th was upon a second debate agreed to; and the Lord Chancellor, Lord President, and ten other lords, were named of the committee, to meet and confer with a committee of the Commons. The next day the Lord President reported, that the committees of both Houses met that morning, and made an entrance into the business referred to them: that the Commons desired to see the commissions that are prepared for an High Steward at these trials, and also the commissions in the Lord Pembroke's and the Lord Morley's cases: that to this the Lords' committees said,—"The High Steward is but Speaker pro tempore, and giveth his vote as well as the other lords; this changeth not the nature of the court; and the Lords declared, they have power enough to proceed to trial, though the King should not name an High Steward:[86] that this seemed to be a satisfaction to the Commons, provided it was entered in the Lords' Journals, which are records." Accordingly, on the same day, "It is declared and ordered by the Lords Spiritual and Temporal in Parliament assembled, that the office of an High Steward, upon trials of peers upon impeachments, is not necessary to the House of Peers; but that the Lords may proceed in such trials, if an High Steward be not appointed according to their humble desire."[87] On the 13th the Lord President reported, that the committees of both Houses had met that morning, and discoursed, in the first place, on the matter of a Lord High Steward, and had perused former commissions for the office of High Steward; and then, putting the House in mind of the order and resolution of the preceding day, proposed from the committees that a new commission might issue, so as the words in the commission may be thus changed: viz., Instead of, Ac pro eo quod officium Seneschalli Angliæ, (cujus præsentia in hac parte requiritur,) ut accepimus, jam vacat, may be inserted, Ac pro eo quod proceres et magnates in Parliamento nostro assemblati nobis humiliter supplicaverunt ut Seneschallum Angliæ pro hac vice constituere dignaremur: to which the House agreed.[88]
It must be admitted that precedents drawn from times of ferment and jealousy, as these were, lose much of their weight, since passion and party prejudice generally mingle in the contest; yet let it be remembered, that these are resolutions in which both Houses concurred, and in which the rights of both were thought to be very nearly concerned,—the Commons' right of impeaching with effect, and the whole judicature of the Lords in capital cases. For, if the appointment of an High Steward was admitted to be of absolute necessity, (however necessary it may be for the regularity and solemnity of the proceeding during the trial and until judgment, which I do not dispute,) every impeachment may, for a reason too obvious to be mentioned, be rendered ineffectual, and the judicature of the Lords in all capital cases nugatory.
It was from a jealousy of this kind, not at that juncture altogether groundless, and to guard against everything from whence the necessity of an High Steward in the case of an impeachment might be inferred, that the Commons proposed and the Lords readily agreed to the amendment in the Steward's commission which I have already stated. And it hath, I confess, great weight with me, that this amendment, which was at the same time directed in the cases of the five Popish lords, when commissions should pass for their trials, hath taken place in every commission upon impeachments for treason since that time.[89] And I cannot help remarking, that in the case of Lord Lovat, when neither the heat of the times nor the jealousy of parties had any share in the proceeding, the House ordered, "That the commission for appointing a Lord High Steward shall be in the like form as that for the trial of the Lord Viscount Stafford, as entered in the Journal of this House on the 30th of November, 1680: except that the same shall be in the English language."[90]