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and until judgment, and in no other. Herein I see no difference between the case of an impeachment, and of an indictment. I say, during the time of the trial, and until judgment, because the court hath, as I observed before, from time to time done various acts, plainly judicial, before the appointment of an high steward, and where no high steward hath ever been appointed, and even after the commission dissolved. I will to this purpose cite a few cases.
I begin with the latest, because they are the latest, and were ruled with great deliberation ; and, for the most part, upon a view of former precedents. In the case of the Earl of Kilmarnock and others, the lords, on the 24th of June 1746, ordered, that a writ or writs of certiorari be issued for removing the indictments before the House ; and on the 26th the writ, which is made returnable before the king in parliament, with the return and indictments, was received and read. On the next day, upon the report of the lords' committees, that they had been attended by the two chief justices, and chief baron, and had heard them, touching the construction of the act of the 7th and 8th of King Wil. liam, “ For regulating trials in cases of high treason and misprision of treason,” the House, upon reading the report, came to several resolutions, founded for the most part on the construction of that act. What that construction was, appeareth from the lord high steward's address to the prisoners, just before their arraignment. Having mentioned that act, as one happy consequence of the revolution, he addeth, “ However injuriously that revolution hath been traduced, whatever attempts have been made to subvert this happy establishment founded on it, your fordships will now have the benefit of that in its full extent."
I need not, after this, mention any other judicial acts done by the House in this case, before the appointment of the high steward-many there are. For, the putting a construction upon an act relative to the conduct of the court, and the right of the subject at the trial, and in the proceedings preparatory to it, and this in a case entirely new, and upon a point, to say no more in this place, not extremely clear, was undoubtedly an exercise of authority proper only for court having full cognizance of the cause.
I will not minutely enumerate the several orders made preparatory to the trial of Lord Lovat, and in the several cases I shall have occasion to mention, touching the time and place of the trial, the allowance or non-allowance of counsel, and other matters of the like kind, all plainly judicial, because the like orders occur in all the cases where a journal of the preparatory steps hath been published by order of the peers. With regard to Lord Lovat's case, I think the order directing the form of the high steward's commission, which I have already taken notice of, is not very consistent with the idea of a court, whose powers can be supposed to depend, at any point of time, upon the existence or dissolution of that commission.
In the case of the Earl of Derwentwater, and the other lords impeached at the same time, the House received and recorded the confessions of those of them who pleaded guilty, long before the teste of the high steward's commission, which issued merely for the solemnity of giving judgment against them upon their conviction. This appeareth by the commission itself: it reciteth, that the Earl of Derwentwater, and others, Coram nobis in præsenti parliamento, had been impeached by the Commons for high treason, and had, Coram nobis in præsenti parliamento, pleaded guilty to that impeachment; and that the king, intending that the said Earl of Derwentwater and others, de et pro proditione unde ipsi ut præfertur impetit', accusit, and convict existunt coram nobis in præsenti parliamento, secundem legem et consuetudinem hujus regni nostri Magnæ Britanniæ, audientur, sententientur, et adjudicentur constituteth the then lord chancellour high steward (hac vice) to do and execute all things which to the office of high steward in that behalf do belong. The receiving and recording the confession of the prisoners, which amounted to a conviction, so that nothing remained but proceeding to judgment, was certainly an exercise of judicial authority, which no assembly, how great soever, not having full cognizance of the cause, could exercise.
In the case of Lord Salisbury, who had been impeached by the Commons for high treason, the lords, upon his petition, allowed him the benefit of the act of general pardon passed in the second year of William and Mary, so far as to discharge him from his imprisonment upon a construction they put upon that act, no high steward ever having been appointed in that case. On the 2d of October, 1690, upon reading the earl's petition, setting forth that he had been a prisoner for a year and nine months in the tower, notwithstanding the late act of free and general pardon, and praying to be discharged, the lords ordered the judges to attend on the Monday following, to give their opinions, whether the said earl be pardoned by the act. On the 6th the judges delivered their opinions, that if his offence was committed before the 13th of February 1688, and not in Ireland, or beyond the seas, he is pardoned. Whereupon it was ordered, that he be admitted to bail, and the next day he and his sureties entered into a recognizance of bail, himself in 10,0001. and two sureties in 5,0001. each ; and on the 30th he and his sureties were, after a long debate, discharged from their recognizance. It will not be material to enquire, whether the house did right in discharging the earl, without giving the Commons an opportunity of being heard ; since, in fact, they claimed and exercised a right of judicature without an high steward—which is the only use I make of this case.
They did the same in the case of the Earl of Carnwarth, the Lords Widdrington and Nairn, long after the high steward's commission dissolved. These lords had judgment passed on them at the same time that judgment was given against the Lords Derwentwater, Nithsdale, and Kenmure; and judgment being given, the high steward immediately broke his staff, and declared the commission dissolved. They continued prisoners in the tower under reprieves, till the passing of the act of general pardon, in the 3d of king George the First. On the 21st of November 1717, the House being informed that these lords had severally entered into recognizances before one of the judges of the court of king's bench, for their appearance in the House in this sessions of parliament; and that the Lords Carnwarth and Widdrington were attended accordingly; and that the Lord
Nairn was ill at Bath, and could not then attend ; the Lords Carnwarth and Widdrington were called ; and severally at the bar, prayed that their appearance might be recorded ; likewise prayed the benefit of the act for his majesty's general and free pardon. Whereupon the House ordered, that their appearance be recorded, and that they attend again to-morrow, in order to plead the pardon. And the recognizance of the Lord Nairn was respited till that day fortnight. On the morrow the Lords Carnwarth and Widdrington, then attending, were called in ; and the lord chancellour acquainted them severally, that it appeared by the records of the House, that they severally stood attainted of high treason ; and asked them severally, what they had to say, why they should not be remanded to the tower of London? Thereupon they severally, upon their knees, prayed the benefit of the act, and that they might have their lives and liberty pursuant thereunto. And the attorney-general, who then attended for that purpose, declaring that he had objection, on his majesty's behalf, to what was prayed, conceiving that those lords, not having made any escape since their conviction, were entitled to the benefit of the act; the House, after reading the clause in the act relating to that matter, agreed that they should be allowed the benefit of the pardon, as to their lives and liberties; and discharged their recognizances, and gave them leave to depart without further day given for their appearance.
On the 6th of December following the like proceedings were had, and the like orders made, in the case of Lord Nairn. · I observe, that the lord chancellour did not ask these lords what they had to say why execution should not be awarded. There was, it is probable, some little delicacy as to that point. But since the allowance of the beğefit of the act, as to life and liberty, which was all that was prayed, was an effectual bar to any future imprisonment on that account, and also to execution, and might have been pleaded as such in any court whatsoever; the whole proceeding must be admitted to have been in a court having complete jurisdiction in the case, notwithstanding the high steward's commission had been long dissolved which is all the use I intended to make of this case,
I will not recapitulate; the cases I have cited, and the conclusions drawn from them, are brought into a very narrow compass. I will only add, it would sound extremely harsh to say, that a court of criminal jurisdiction, founded in immemorial usage, and held in judgment of law before the king himself, can in any event whatever be under an utter incapacity of proceeding to trial and judgment, either of condemnation or acquittal, the ultimate objects of every criminal proceeding, without certain supplemental powers derived from the crown.
These cases, with the observations I have made on them, I hope sufficiently warrant the opinion of the judges upon that part of the second question in the case of the late Earl Ferrers, which I have already mentioned. And also what was advanced by the lord chief baron in his argument on that question, “ that though the office of high steward should happen to determine before execution done according to the judgment, yet the court of the peers in parliament, where that judgment was given, would subsist for all the purposes of justice during the sitting of the parliament." And consequently that in the case supposed by the question, that court might appoint a new day for the execution.
Appendix, No. 2. Questions referred by the Lords to the Judges, in the Im
peachment of Warren Hastings, Esquire; and the AnSWERS of the Judges.-Extracted from the Lords' Journals and Minutes.
First Question.—Whether, when a witness produced and examined in a criminal proceeding by a prosecutor disclaims all knowledge of any matter so interrogated, it be competent for such prosecutor to pursue such examination, by proposing a question containing the particulars of an answer supposed to have been made by such witness before a committee of the House of Commons, or in any other place; and by