adduce evidence. The counsel for the accused person address the Lords, and adduce evidence for the defence, and the Commons have the right of reply (a). The Lord High Steward (or the Speaker of the House of Lords in cases in which a Lord High Steward is not appointed) puts the question to the Lords one by one, whether the person impeached is guilty or not of the several articles of the impeachment, and the question is decided by the majority of voices. If the person accused be found guilty, the Lords proceed to determine what judgment shall be given. It is observable that upon impeachments, as well as upon trials of indicted Peers in Parliament, the Lords combine the functions of judge and jury; and in this respect trials in Parliament resemble the ancient judicium parium, recognized by Magna Charta, far more completely than trial by jury does.

The Lords do not proceed to judgment of persons impeached by the Commons until judgment be first demanded by the Commons (b). We have already stated that an impeachment is not put an end to by the prorogation or dissolution of Parliament, and that a pardon cannot be pleaded in bar of an impeachment (c).

3. Trial of Peers indicted.-If a Peer be indicted of a capital offence or felony (d) when Parliament is sitting, the indictment is removed by certiorari to be tried in the House of Lords. The trial by peers is, as we have seen, recognized by Magna Charta, and is probably even more ancient. The

(a) See, as to the right of the Commons to reply, trial of Dr. Sacheverell (eighth day). (15 State Trials, 364.)

(b) 4 Hatsell, 319. (c) Ante, Book II. Ch. V., last paragraph but one. (d) Blackstone says the indictments removable by certiorari into the Court of the Lord High Steward are-treason, felony, or misprision of either. (4 Comm., 261.)

Hale, Jurisdiction of the Lords, ch. 16, says the only known instance of the trial of a Peer otherwise than by his peers is that of Thomas de Barclay, who, in 4 Edw. III., was tried for his part in the death of Edward II. by a jury of knights and esquires, at the bar of the House of Lords. Hatsell, however, thinks Hale's statement erroneous, and points out that the record designates Thomas de Berkeley Miles. (4 Precedents, 81 n.)

trial of Peers in Parliament is by the whole House. A Lord High Steward is appointed, who acts as Speaker pro tempore, and votes with the rest of the Lords in right of his peerage; but the collective body of Peers are judges both of the law and facts of the case tried (a). The resemblance of this jurisdiction to the ancient judicium parium, on which it is obviously founded, has been already pointed out.

4. The Court of the Lord High Steward.-When a Peer is indicted of treason or felony, or misprision of either, the indictment is removable by certiorari into the Court of the Lord High Steward if Parliament be prorogued (b), or if there be no Parliament. The High Steward's Court is an ancient court of judicature instituted by commission from the Crown, in the nature of a commission of oyer et terminer. In this Court, the Lord High Steward is the sole judge on points of law and practice, and the Peers summoned are triers and judges of fact only (c).

Formerly it was the custom to summon only a limited number of Peers to this court. This practice gave a monstrous power to the officers of the Crown, by enabling them to select such Peers only as the predominant party most approved of. Thus, when the Earl of Clarendon fell into disgrace with Charles II., there was a design to try him by a select number of Peers, it being doubted whether the whole House could be induced to fall in with the views of the Court. Thus also, on the trial of Lord Delamere, in 1 James II., A.D. 1686, many of the triers were devoted to the Court; and their selection was, at the Parliamentary Conferences of 1691, attributed to unfair

(a) Foster's Report of Lord Ferrers's Case; 19 State Trials, 960, where a full account of the nature of trials of Peers is given; 4 Blackstone, 263. (b) Lord Delamere's case. (11 State Trials, 509.)

(c) 4 Blackstone, 263; 4 Hatsell, 299 n.

In the conferences between the two Houses of Parliament, in 1691, respecting trials of treason, it was said that the trial in this court originated in the reign of Henry VIII., when it was instituted to take off those he did not like; and the case of the Duke of Buckingham is instanced. (4 Hatsell, 370.)

motives. But now, by 7 and 8 Will. III. c. 3, upon all trials of Peers for treason or misprision, all Peers who have a right to sit and vote in Parliament shall be summoned to appear and vote therein (a).

4. Appellate Jurisdiction.-The House of Lords is the supreme court of judicature to rectify, upon appeals and proceedings in "error," any injustice or mistake of the law committed in subordinate courts. We have seen (b) that the House of Lords formerly exercised a general jurisdiction, original as well as appellate, and that the original jurisdiction has been relinquished, except in the cases referred to in the preceding part of this chapter. Blackstone explains the existence of the appellate jurisdiction of the House of Lords in the following manner. He says that the Lords succeeded to this jurisdiction on the dissolution of the aula regia(c); "for, as the barons of Parliament were constituent members of that court, and the rest of its jurisdiction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to preside, it followed that the right of receiving appeals, and of superintending all other jurisdictions, still remained in the residue of that noble assembly from which every other great court was derived "(d). This opinion of Blackstone does not accord with that of Sir Matthew Hale, who, from many ancient authorities, infers that the House of Lords never had, independently of the Crown, any inherent jurisdiction in judicial matters. In reference to this subject, it

(a) 4 Blackstone, 263; 4 Hatsell, 299 n., 372; Foster's Report in Ferrers's case, ubi supra. On the trial of the Earl of Cardigan, in 1841, for an attempt to murder (the last instance of the trial of a peer by the Lords), Lord Chief Justice Denman, a Peer of Parliament, was appointed Lord High Steward, (4 Stewart's Blackstone, 341 n.)

In a note to the edition of Hatsell's Precedents published in 1818 (vol. iv. p. 300), it is stated that no court of the Lord High Steward has ever been constituted since the Revolution. But there have been several trials of indicted Peers in Parliament since that time.

(b) Ante, p. 458.

(d) 3 Commentaries, 57.

(c) Ante, p. 302.

will be convenient to premise that at the time when Hale wrote the appellate jurisdiction was exercised principally upon writs of error from the subordinate English courts of law, and appeals from the English Court of Chancery.

The appellate jurisdiction of the House of Lords with respect to the former-common law judgments examined upon writs of error-was formerly delegated by the Crown in each particular case. There were two methods by which a record might be removed into Parliament for error. The more ancient method was by petition to the King, or to the King and his Council, or the King and Parliament, and indorsement thereon, which authorized the procedure in Parliament; the later method was by writ granted on petition to the Crown. The writ, Hale says, was anciently per regem or per warrantum domini regis; but in the Long Parliament, by reason of the King's absence, the writ was indorsed by warrant of the Attorney-General, and that practice was continued after the Restoration (a). The writ was returnable in Parliament, in order (according to the ancient form of the writ) that justice might be done by the Crown by the advice of the Lords Spiritual and Temporal, and the Commons (b).

The second branch of the jurisdiction of the Lords just mentioned that of appeals from the Court of Chancery— was obtained, it is now agreed, by usurpation in the seventeenth century. Previously, the regular appeal from the Court of Chancery was by a petition to the King, praying a rehearing before him, or commissioners appointed by him; or decrees might be set aside by Act of Parliament.

(a) Hale's Jurisdiction, ch. 23, 25.

(b) "Ut, de consilio et advisamento Dominorum spiritualium et temporalium, ac communitatum in Parliamento nostro existentium, ulterius pro errore corrigendo fieri faciamus quod de jure," etc.

In the conferences in the case of Ashby v. White, in 1704, the Commons complained that the form of the writ had been altered, by omitting the reference to the Commons. (3 Hatsell, 366.)

In the reigns of Edw. I., Edw. II., and Edw. III. petitions and writs of error were determined sometimes in pleno Parliamento, but frequently by the Lords only. (Hale's Jurisdiction, ch. 23.)

In the case (a) of a petition to the House of Lords, in 1624, against a decree in Chancery, the Lords prayed the Crown for a commission to certain Lords to determine the cause. The first direct judgments of the Lords upon appeal from Chancery without any authority delegated from the Crown, appear to have been in the Long Parliament begun in 1640(b).

The appellate jurisdiction of the House of Lords was the subject of vehement dispute between the two Houses in the case of Shirley and Fagg, 27 Car. II., A.D. 1675. The Commons at first merely contested the right of prosecuting suits against members of their House; but at a subsequent stage of the dispute resolved, "that whosoever shall solicit, plead, or prosecute any appeal against any commoner of England, from any court of equity, before the House of Lords, shall be deemed and taken a betrayer of the rights and liberties of the commons of England "(c). The dispute between the two Houses was stopped by a long prorogation. When the next session commenced, the Lords heard appeals without any further interruption from the Commons, whose change of conduct is attributed by Mr. Hargraves to a fear lest the wresting the appellant judicature from the hands of the Lords should too much augment the power of the Crown; since the consequence of an abandonment of the Lords' jurisdiction would have been a return to the jurisdiction of commissioners appointed by the Crown (d).

Since that time the jurisdiction of the House of Lords in equity appeals has been uninterrupted. Nearly at the same time the House of Lords rejected the judicature of ecclesiastical causes. In 1678, notwithstanding the opposition of Lord Shaftesbury, who contended that the authority of the House as a Court of Review rested upon a principle of universal superintendency, reaching all courts in the kingdom, -civil, criminal, and ecclesiastical,-the House finally re

(a) Matthews's case, Hale's Jurisdiction, ch. 33. (6) Hale's Jurisdiction, ch. 32. (c) 6 State Trials, 1183. (d) Hargave's Preface to Hale's Jurisdiction of the Lords' House, p. clxiii.