space of ten days; that two days adjournments were made on account of the illness of certain of the managers; and, as far as your committee can judge, two sitting days were prevented by the sudden and unexpected dereliction of the defence of the prisoner at the close of the last session, your managers not having been then ready to produce then evidence in reply, nor to make their observations on the evidence produced by the prisoner's counsel; as they expected the whole to have been gone through before they were called on for their reply. In this session, your committee computes that the trial was delayed about a week or ten days. The lords waited for the recovery of the Marquis Cornwallis, the prisoner wishing to avail himself of the testimony of that noble person. With regard to the IIS days employed in actual sitting, the distribution of the business was in the manner following: There were spent. In reading the articles of Impeachment. and the defendant's answer, and in debate on te mode of proceeding Opening speeches, and mming up by and er al evidence by the the mana Documenta Days questions were stated and were decided; the modes of proceeding; the great uncertainty of the principle upon which evidence in that court s to be admitted or rejected: all these appear to your committee materially to affect the constitution of the house of peers, as a court of judicature, as well as its powers, and the purposes it was intended to answer in the state. The peers have a valuable interest in the conservation of their own lawful privileges: but this interest is not confined to the lords. The commons ought to partake in the advantage of the judicial rights and privileges of that high court. Courts are made for the suitors, and not the suitors for the court. The conservation of all other parts of the law, the whole indeed of the rights and liberties of the subject, ultimately depends upon the preservation of the law of parliament in its original force and autho the potres and coal has gers, the number of the debates upon them Shut upon them any race Jungmat and necessity part of that curt Ther wits of sumances are essentially different; and it dies not appear that they ee any of them have, or of right ought to gave the lords did not even retireuve, a delibertine vics, eller actually at t "of our said lord the king, and of their common "agreement, it was declared, that in so high a "crime as that which is charged in this appeal, "which touches the person of our lord the king, "and the state of the whole kingdom, perpetrated merely consultory responses, in order to furnish such matter (to be submitted to the judgment of the peers) as may be useful in reasoning by analogy, so far as the nature of the rules, in the respective courts of the learned persons consulted, shall appear to the House to be applicable" by persons who are peers of the kingdom, along to the nature and circumstance of the case before them, and no otherwise. "with others, the cause shall not be tried in any "other place but in parliament, nor by any other "law than the law and course of parliament; and "that it belongeth to the lords of parliament, and to their franchise and liberty by the ancient "custom of the parliament, to be judges in such "cases; and in these cases to judge by the assent of the king; and thus it shall be done in this case, by the award of parliament: because the "realm of England has not been heretofore, nor "is it the intention of our said lord the king, "and the lords of parliament, that it ever should "be governed by the law civil: and also, it is "their resolution, not to rule or govern so high a cause as this appeal is, which cannot be tried "any where but in parliament, as hath been said "before, by the course, process, and order used in any courts or place inferiour, in the same king"dom; which courts and places are not more "than the executors of the ancient laws and cus Your committee finds, That in all impeachments of the commons of Great Britain for high crimes" and misdemeanours, before the peers in the high court of parliament, the peers are not triers or jurors only, but by the ancient laws and constitution of this kingdom, known by constant usage, are judges both of law and fact; and we conceive that the lords are bound not to act in such a manner as to give rise to an opinion that they have virtually submitted to a division of their legal powers; or that, putting themselves into the situation of mere triers or jurors, they may suffer the evidence in the cause to be produced or not produced before them, according to the discretion of the judges of the inferior courts. 66 toms of the kingdom, and of the ordinances "and establishments of parliament. It was de"termined by the said lords of parliament, by the "assent of our said lord the king, that this "appeal was made and pleaded well and suf"ficiently, and that the process upon it is good " and effectual, according to the law and course of parliament, and for such they decree and ad"judge it." Your committee finds, that the lords in matter of appeal or impeachment in parliament, are not of right obliged to proceed according to the course" or rules of the Roman civil law, or by those of the law or usage of any of the inferiour courts in And your committee finds, that toward the Westminster hall; but by the law and usage of close of the same parliament, the same right parliament. And your committee finds, that this was again claimed and admitted as the special has been declared in the most clear and explicit privilege of the peers, in the following manner : manner, by the house of lords, in the year of "In this parliament, all the lords Rol. Parl. Vol. our Lord 1387 and 1388, in the 11th year of King" then present, spiritual as well as Ill. p. 244. § 7. Richard the Second. "temporal, claimed as their franchise that the Upon an appeal in parliament then depend-" weighty matters moved in this parliament, and ing, against certain great persons, peers and "which shall be moved in other parliaments in commoners, the said appeal was referred to the "future times, touching the peers of the land, justices and other learned persons of the law;" shall be managed, adjudged, and discussed by Rolls Parl. "At which time" (it is said in the re- "the course of parliament, and in no sort by the Vol. III. p. 236. cord) "that the justices and serjeants," law civil, or by the common law of the land, "and others the learned in the law civil, were used in the other lower courts of the kingdom, "charged, by order of the king our sovereign" which claim, liberty, and franchise, the king "aforesaid, to give their faithful counsel to the "graciously allowed and granted to them in full "lords of the parliament, concerning the due pro- "parliament." "ceedings in the cause of the appeal aforesaid. "The which justices, serjeants, and the learned "in the law of the kingdom, and also the learned "in the law civil, have taken the same into de"liberation; and have answered to the said lords "of parliament, that they had seen and well con"sidered the tenour of the said appeal; and they say, that the same appeal was neither made nor "pleaded according to the order which the one w or the other requires. Upon which the said of parliament have taken the same into and consultation, and by the assent Your committee finds, that the commons, having at that time considered the appeal abovementioned, approved the proceedings in it; and, as far as in them lay, added the sanction of their accusation against the persons who were the objects of the appeal. They also, immediately afterwards, impeached all the judges of the common pleas, the chief baron of the exchequer, and other learned and eminent persons, both peers and commoners; upon the conclusion of which impeachments it was that the second claim was entered. In all the transactions aforesaid, the space of ten days; that two days adjournments were made on account of the illness of certain of the managers; and, as far as your committee can judge, two sitting days were prevented by the sudden and unexpected dereliction of the defence of the prisoner at the close of the last session, your managers not having been then ready to produce their evidence in reply, nor to make their observations on the evidence produced by the prisoner's counsel; as they expected the whole to have been gone through before they were called on for their reply. In this session, your committee computes that the trial was delayed about a week or ten days. The lords waited for the recovery of the Marquis Cornwallis, the prisoner wishing to avail himself of the testimony of that noble person. With regard to the 118 days employed in actual sitting, the distribution of the business was in the manner following:-There were spent, In reading the articles of Impeachment, managers Opening speeches and summing up by the defendant's counsel, and defendant's addresses to the court Documentary and oral evidence on the part of the defendant Days 3 19 51 22 23 118 The other head, namely, that the trial has occupied 118 days, or nearly one-third of a year :This your committee conceives to have arisen from the following immediate causes: first, The nature and extent of the matter to be tried :-secondly, The general nature and quality of the evidence produced; it was principally documentary evidence, contained in papers of great length, the whole of which was often required to be read, when brought to prove a single short fact; or it was oral evidence, in which must be taken into consideration the number and description of the witnesses examined and cross-examined :—thirdly, | and principally, The duration of the trial is to be attributed to objections taken by the prisoner's counsel to the admissibility of several documents and persons, offered as evidence on the part of the prosecution. These objections amounted to sixtytwo they gave rise to several debates, and to twelve references from the court to the judges. --On the part of the managers, the number of objections was small; the debates upon them were short, there was not upon them any reference to the judges; and the lords did not even retire upon any of them to the chamber of parliament. This last cause of the number of sitting days, your committee considers as far more important than all the rest. The questions upon the admissibility of evidence; the manner in which these questions were stated and were decided; the modes of proceeding; the great uncertainty of the principle upon which evidence in that court is to be admitted or rejected: all these appear to your committee materially to affect the constitution of the house of peers, as a court of judicature, as well as its powers, and the purposes it was intended to answer in the state. The peers have a valuable interest in the conservation of their own lawful privileges: but this interest is not confired to the lords. The commons ought to partake in the advantage of the judicial rights and privileges of that high court. Courts are made for the suitors, and not the suitors for the court. The conservation of all other parts of the law, the whole indeed of the rights and liberties of the subject, ultimately depends upon the preservation of the law of parliament in its original force and autho rity. Your committee had reason to entertain appre hensions, that certain proceedings in this trial may possibly limit and weaken the means of carrying on any future impeachment of the commons. As your committee felt these apprehensions strongly they thought it their duty to begin with humbi submitting facts and observations, on the proceed ings concerning evidence, to the consideration of this house, before they proceed to state the other matters which come within the scope of the dire tions which they have received. To enable your committee the better to execute the task imposed upon them, in carrying on the impeachment of this house, and to find s principle on which they were to order and regulate their conduct therein, they found it necessary look attentively to the jurisdiction of the court which they were to act for this house, and into t laws and rules of proceeding, as well as into t rights and powers of the house of commoas a their impeachments. RELATION OF THE JUDGES, &c. TO THE COURT OF PARLIAMENT. Inst. 4. p. 4. Upon examining into the course of proceeding in the house of lords, and into the relation which exists between the pers on the one hand, and their attendants and a ants, the judges of the realm, barons of the exchequer of the coif, the king's learned couns and the civilians masters of the chancery, or th other; it appears to your committee, that the judges, and other persons learned in the comuna and civil laws, are no integrant and necess part of that court. Their writs of summons essentially different; and it does not appear t they or any of them have, or of right ought to have, a deliberative voice, either actually tually, in the judgments given in the court of parliament. Their attendance in La court is solely ministerial; and their answers to questions put to them, are not to be regarded → declaratory of the law of parliament, but ! merely consultory responses, in order to furnish such matter (to be submitted to the judgment of the peers) as may be useful in reasoning by analogy, so far as the nature of the rules, in the respective courts of the learned persons consulted, shall appear to the House to be applicable to the nature and circumstance of the case before them, and no otherwise. JURISDICTION OF THE LORDS. Your committee finds, That in all impeachments of the commons of Great Britain for high crimes and misdemeanours, before the peers in the high court of parliament, the peers are not triers or jurors only, but by the ancient laws and constitution of this kingdom, known by constant usage, are judges both of law and fact; and we conceive that the lords are bound not to act in such a manner as to give rise to an opinion that they have virtually submitted to a division of their legal powers; or that, putting themselves into the situation of mere triers or jurors, they may suffer the evidence in the cause to be produced or not produced before them, according to the discretion of the judges of the inferior courts. LAW OF PARLIAMENT. Your committee finds, that the lords in matter of appeal or impeachment in parliament, are not of right obliged to proceed according to the course or rules of the Roman civil law, or by those of the law or usage of any of the inferiour courts in Westminster hall; but by the law and usage of parliament. And your committee finds, that this has been declared in the most clear and explicit manner, by the house of lords, in the year of our Lord 1387 and 1388, in the 11th year of King Richard the Second. 66 66 "of our said lord the king, and of their common 66 66 66 And your committee finds, that toward the close of the same parliament, the same right was again claimed and admitted as the special privilege of the peers, in the following manner: "In this parliament, all the lords Rol. Parl. Vol. "then present, spiritual as well as Ill. p. 244. § 7. temporal, claimed as their franchise that the Upon an appeal in parliament then depend-" weighty matters moved in this parliament, and ing, against certain great persons, peers and "which shall be moved in other parliaments in commoners, the said appeal was referred to the "future times, touching the peers of the land, justices and other learned persons of the law; "shall be managed, adjudged, and discussed by Rolls Parl. "At which time" (it is said in the re- "the course of parliament, and in no sort by the Vol. III. p. 236. cord) "that the justices and serjeants, "law civil, or by the common law of the land, "and others the learned in the law civil, were "used in the other lower courts of the kingdom, charged, by order of the king our sovereign "which claim, liberty, and franchise, the king "aforesaid, to give their faithful counsel to the graciously allowed and granted to them in full "lords of the parliament, concerning the due pro-"parliament." "ceedings in the cause of the appeal aforesaid. "The which justices, serjeants, and the learned "in the law of the kingdom, and also the learned "in the law civil, have taken the same into de"liberation; and have answered to the said lords "of parliament, that they had seen and well con"sidered the tenour of the said appeal; and they 'say, that the same appeal was neither made nor pleaded according to the order which the one "law or the other requires. Upon which the said lords of parliament have taken the same into deliberation and consultation, and by the assent 66 64 46 66 Your committee finds, that the commons, having at that time considered the appeal abovementioned, approved the proceedings in it; and, as far as in them lay, added the sanction of their accusation against the persons who were the objects of the appeal. They also, immediately afterwards, impeached all the judges of the common pleas, the chief baron of the exchequer, and other learned and eminent persons, both peers and commoners; upon the conclusion of which impeachments it was that the second claim was entered. In all the transactions aforesaid, the commons were acting parties: yet neither then, nor ever since, have they made any objection or protestation that the rule laid down by the lords, in the beginning of the session of 1388, ought not to be applied to the impeachments of commoners as well as peers. In many cases they have claimed the benefit of this rule; and in all cases they have acted, and the peers have determined, upon the same general principles. The peers have always supported the same franchises; nor are there any precedents upon the records of parliament subverting either the general rule or the particular privilege; so far as the same relates either to the course of proceeding or to the rule of law, by which the lords are to judge. Your committee observes also, that in the commissions to the several lords high stewards, who have been appointed on the trials of peers impeached by the commons, the proceedings are directed to be had according to the law and custom of the kingdom, and the custom of parliament: which words are not to be found in the commis sions for trying upon indictments. 66 "As every court of justice" (says 4 Inst. p. 15. Lord Coke)" hath laws and customs "for its direction, some by the common law, some by the civil and canon law, some by peculiar "laws and customs, &c. So the high court of parliament, suis propriis legibus et consuetudi"nibus subsistit. It is by the Lex et Consuetudo "Parliamenti, that all weighty matters in any "parliament moved, concerning the peers of the realm, or commons in parliament assembled, ought to be determined, adjudged, and discussed by the course of the parliament, and not by the "civil law, nor yet by the common laws of this "realm used in more inferiour courts."-And after founding himself on this very precedent of the 11th of Richard II. he adds, "This is the reason "that judges ought not to give any opinion of a "matter of parliament, because it is not to be "decided by the common laws, but secundem legem et consuetudinem parliamenti: and so the "judges in divers parliaments have confessed." RULE OF PLEADING, Your committee do not find, that any rules of pleading, as observed in the inferiour courts, have ever obtained in the proceedings of the high court of parliament, in a cause or matter in which the whole procedure has been within their original jurisdiction. Nor does your committee find, that any demurrer or exception, as of false or erroneous pleading, hath been ever admitted to any impeachment in parliament, as not coming within the form of the pleading; and although a reservation or protest is made by the defendant (matter of form, as we conceive)" to the generality, "uncertainty, and insufficiency of the articles of "impeachment;" yet no objections have in fact been ever made in any part of the record; and when verbally they have been made, (until this trial,) they have constantly been overruled. 16 Ch. L. 1541 The trial of Lord Strafforde is one of the most important æras in the history of parliamentary judicature. In that trial. and in the dispositions made preparatory to it, the process of impeachments was, on great consideration, research, and selection of precedents, brought very nearly to the form which it retains at this day; and great and important parts of parlia mentary law were then laid down. The com mons at that time made new charges, or amended the old, as they saw occasion. Upon an applica tion from the commons to the lords, that the examinations taken by their lordships, at their request, might be delivered to them, for the purpose of a more exact specification of the charge they had made, on delivering the message of the commons, Mr. Pim, amongst other things, sail, as it is entered in the Lords' Journals, Lords' Joan According to the clause of reserva- Vol IV. p "tion in the conclusion of their charge, they (the "commons) will add to the charges, not to the "matter in respect of comprehension, extent, tr 'kind, but only to reduce them to more partics"larities, that the earl of Strafforde might answer "with the more clearness and expedition-t "that they are bound by this way of SPECIAL charge; and therefore they have taken care "in their house, upon protestation, that this shal "be no prejudice to bind them from proceed "in GENERAL in other cases, and that they 66 66 are not to be ruled by proceedings in other "courts, which protestation they have made f "the preservation of the power of parliament: "and they desire that the like care may be had "in your lordships' house." This protestation 6 entered on the Lords' Journals. Thus careful were the commons that no exactness used by them ic: a temporary accommodation, should become an example derogatory to the larger rights of parlia mentary process. 66 At length the question of their Lords Jur being obliged to conform to any of Vol XIX, poðð the rules below, came to a formal judgment. la the trial of Dr. Sacheverell, March 10th, 1799, the Lord Nottingham "desired their lordships opinion, whether he might propose a questi "to the judges here [in Westminster Hall Thereupon the lords being moved to adjours, adjourned to the house of lords, and on debate [as appears by a note] it was agreed that the "question should be proposed in Westminste "Hall." Accordingly, when the lords returned the same day into the Hall, the question was pat by Lord Nottingham, and stated to the judges by the lord chancellor: "Whether by the law of 66 66 England, and constant practice in all prosecu "tions by indictment and information, for crimes "and misdemeanours, by writing or speaking, the particular words supposed to be written t 66 66 spoken must not be expressly specified in the "indictment or information?" On this question the judges, seriatim, and in open court, delivered their opinion: the substance of which was," by the laws of England, and the constant prac "That |