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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.” * 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 inatter 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 Anglice pro hac vice constituere dignaremur: to which the House agreed.t

* This resolution my Lord Chief-Baron referred to and cited in his argument upon the second question proposed to the Judges, which is before stated.

† This amendment arose from an exception taken to the commission by the committee for the Commons, which, as it then stood, did in their opinion imply that the constituting a Lord High Steward was necessary. Whereupon it was agreed by the whole committee of Lords and Commons, that the commission should be recalled, and a new commission, according to the said amendment, issue, to bear date after the order and resolution of the 12th. - Commons' Journal of the 15th of May.

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.* And I cannot help remarking, that in the case of Lord Lovat, when neither the heat

* See, in the State Trials, the commissions in the cases of the Earl of Oxford, Earl of Derwentwater, and others, - Lord Wintoun and Lord Lovat.

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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.

I will make a short observation on this matter. The order, on the 13th of May, 1679, for varying the form of the commission, was, as appeareth by the Journal, plainly made in consequence of the resolution of the 12th, and was founded on it; and consequently the constant, unvarying practice with regard to the new form goeth, in my opinion, a great way towards showing, that, in the sense of all succeeding times, that resolution was not the result of faction or a blamable jealousy, but was founded in sound reason and true policy. It may be objected, that the resolution of the 12th of May, 1679, goeth no further than to a proceeding upon impeachment. The letter of the resolution, it is admitted, goeth no further. But this is easily accounted for: a proceeding by impeachment was the subject matter of the conference, and the Commons had no pretence to interpose in any other. But what say the Lords?

The High Steward is but as a Speaker or Chairman pro tempore, for the more orderly proceeding at the trials; the appointment of him doth not alter the nature of the court, which still remaineth the Court of the Peers in Parliament. From these premises they draw the conclusion I have mentioned. Are not these prem

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See the proceedings printed by order of the House of Lords, 4th February, 1746.


ises equally true in the case of a proceeding upon indictment? They undoubtedly are.

It must likewise be admitted, that in the proceeding upon indictment the High Steward's commission hath never varied from the ancient form in such

The words objected to by the Commons, Ac pro eo quod officium Seneschalli Angliæ, (cujus præsentia in hac parte requiritur,) ut accepimus, jam vacat, are still retained; but this proveth no more than that the Great Seal, having no authority to vary in point of form, hath from time to time very prudently followed ancient precedents.

I have already stated the substance of the commission in a proceeding in the Court of the High Steward. I will now state the substance of that in a proceeding in the Court of the Peers in Parliament; and shall make use of that in the case of the Earl of Kilmarnock and others, as being the latest, and in point of form agreeing with the former precedents. The commission, after reciting that William, Earl of Kilmarnock, &c., stand indicted before commissioners of gaol-delivery in the County of Surrey, for high treason, in levying war against the King, and that the King intendeth that the said William, Earl of Kilmarnock, &c., shall be heard, examined, sentenced, and adjudged before himself, in this present Parliament, touching the said treason, and for that the office of Steward of Great Britain (whose presence. is required upon this occasion) is now vacant, as we are informed, appointeth the then Lord Chancellor Steward of Great Britain, to bear, execute, and exercise (for this time) the said office, with all things due and belonging to the same office, in that behalf.

What, therefore, are the things due and belonging to the office in a case of this kind ? Not, as in the Court of the High Steward, a right of judicature; for the commission itself supposeth that right to reside in a court then subsisting before the King in Parliament. The parties are to be there heard, sentenced, and adjudged. What share in the proceeding doth the High Steward, then, take? By the practice and usage of the Court of the Peers in Parliament, he giveth his vote as a member thereof, with the rest of the peers; but, for the sake of regularity and order, he presideth during the trial and until judgment, as Chairman or Speaker pro tempore. In that respect, therefore, it may be properly enough said, that his presence is required during the trial 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

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