And a similar resolution was agreed to on the impeach

ment of Lord Lovat, in 1746.1

When judgment is to be given, the lords send a mes- The judgment. sage to acquaint the commons that their lordships are ready to proceed further upon the impeachment; the managers attend; and the accused, being called to the bar, is then permitted to offer matters in arrest of judgment.2 Judgment is afterwards demanded by the speaker, in the name of the commons, and pronounced by the lord high steward, the lord chancellor, or speaker of the House of Lords.3

The necessity of demanding judgment gives to the commons the power of pardoning the accused, after he has been found guilty by the lords; and in this manner an attempt was made, in 1725, to save the Earl of Macclesfield from the consequences of an impeachment, after he had been found guilty by the unanimous judgment of the House of Lords.4

not concluded

by prorogation

or dissolution.

So important is an impeachment by the commons, that Proceedings not only does it continue from session to session, in spite of prorogations, by which all other parliamentary proceedings are determined; but it survives even a dissolution, by which the very existence of a Parliament is concluded. But as the preliminary proceedings of the House of Commons would require to be revived in another session, Acts were passed in 1786 and in 1805, to provide that the proceedings depending in the House of Commons upon the articles of charge against Warren Hastings and Lord Melville, should not be discontinued by any prorogation or dissolution of Parliament.6

In the case of the Earl of Danby, in 1679, the com- Pardon not pleadable.

125 Com. J. 320.

3 22 Lords' J. 560.

22 Lords' J. 556. 27 Ib. 78.

22 Lords' J. 554, 555. 20 Com. J. 541 (27 May 1725). 6 Howell's

St. Tr. 762.

5 39 Lords' J. 191, and see Report of Precedents, ib. 125. 46 Com. J. 136. 626 Geo. 3, c. 96. 45 Geo. 3, c. 125.

But may be given afterwards.

Crimes for which peers are tried by their peers.

mons protested against a royal pardon being pleaded in bar of an impeachment, by which an offender could be screened from the inquiry and justice of Parliament by the intervention of prerogative. Directly after the Revolution, the commons asserted the same principle, and within a few years it was declared by the Act of Settlement,1 "That no pardon under the great seal of England shall be pleadable to an impeachment by the commons in Parliament."

But, although the royal prerogative of pardon is not suffered to obstruct the course of justice, and to interfere with the exercise of parliamentary judicature; yet the prerogative itself is unimpaired in regard to all convictions whatever; and therefore, after the judgment of the lords has been pronounced, the Crown may reprieve or pardon the offender. This right was exercised in the case of three of the Scottish lords, who had been concerned in the rebellion of 1715, and who were reprieved by the Crown, and at length received the royal pardon.

Concerning the trial of peers, very few words will be

necessary.

At common law, the only crimes for which a peer is to be tried by his peers, are treason, felony, misprision of treason, and misprision of felony; and the statutes which give such trial have reference to the same offences, either at common law or created by statute. For misdemeanors, and in cases of præmunire, it has been held that peers are to be tried in the same way as commoners, by a jury."

During the sitting of Parliament, they are tried by the House of Peers; or, more properly, before the court of our lady the Queen in Parliament, presided over by the lord high steward appointed by commission under the great seal; but at other times, they may be tried before the court of the lord high steward."

112 & 13 Will. 3, c. 2.

2 Rex v. Lord Vaux, 1 Bulstr. 197.
3 Foster's Crown Law, 141.
See published Trial of the Earl of Cardigan.

S See 4 Bl. Comm. 260.

to be in full

On the 14th January 1689, it was resolved by the lords, Trial of peers "That it is the ancient right of the peers of England to Parliament. be tryed only in full Parliament for any capital offences:"1 but on the 17th, it was declared that this order should not Declaration "be understood or construed to extend to any appeal of appeals of concerning murther or other felonye, to be brought against any peer murther, &c. or peers."2

4

summoned.

By the Act 7 Will. 3, c. 3, it is declared, "That upon All peers to be the trial of any peer or peeress for high treason or misprision, all the peers who have a right to sit and vote in Parliament, shall be duly summoned 20 days at least before every such trial; and that every peer so summoned and appearing shall vote in the trial." The words of this enactment would appear to exclude the bishops from the right of being summoned; for though they were anciently called peers, it is affirmed, by a standing order of the lords, "That bishops are only lords of Parliament, but not peers, for they are not of tryal by nobility;"3 and by the canons of the church they would be restrained from voting in cases of blood, as required by the Act. But by the Constitutions of Clarendon, it was declared, "That bishops, like other peers (or barons), ought to take part in trials in the king's court or council with the peers, until it comes to a question of the loss of life or limb;" and in the impeachment of the Earl of Danby, it was expressly laid down by the lords, "That the lords spiritual have a right to stay and sit in court in capital cases, till the court proceed to the vote of guilty or not guilty.' " And, although the Act of Will. 3 expressly excepts impeachments and other proceedings in Parliament from its provisions, in practice the bishops have always been summoned, and

'Lords' S. O. No. 52.

5

* Gibson, Codex, 124, 125. These canons, however, would scarcely appear to be binding, if they were not constantly observed.

11 Hen. 2, A. D. 1164. 1 Wilkins, Concilia, 435. 613 Lords' J. 571.

Spiritual lords withdraw.

Blils of attain

der and of pains

have attended such trials in Parliament; but are never summoned to the court of the lord high steward.1

The bishops, therefore, are present during the trial of peers in Parliament, but ask leave to be absent from the judgment; which being agreed to, they withdraw, in compliance with the canons of the Church, but enter a protestation, "saving to themselves and their successors all such rights in judicature as they have by law, and by right ought to have."

The proceedings of Parliament in passing bills of attainand penalties. der, and of pains and penalties, do not vary from those adopted in regard to other bills. They may be introduced into either house; they pass through the same stages; and when agreed to by both houses, they receive the royal assent in the usual form. But the parties who are subjected to these proceedings are admitted to defend themselves by counsel and witnesses before both houses; and the solemnity of the proceedings would cause measures to be taken to enforce the attendance of members upon their service in Parliament.3

In evil times, this summary power of Parliament to punish criminals by statute has been perverted and abused; and in the best of times it should be regarded with jealousy; but whenever a fitting occasion arises for its exercise, it is, undoubtedly, the highest form of parliamentary judicature. In impeachments the commons are but accusers, and advocates; while the lords alone are judges of the crime. On the other hand, in passing bills, the commons commit themselves by no accusation, nor are their powers directed against the offender; but they are judges of equal jurisdiction and with the same responsibility as the lords; and the accused can only be condemned by the unanimous judgment of the Crown, the lords, and the commons.

'Foster's Crown Law, 247. 73 Lords' J. 16.

2

27 Lords' J. 76. 73 Lords' J. 43.

3 See 53 Lords' J. 356. 364.

BOOK III.

THE MANNER OF PASSING PRIVATE BILLS.

CHAPTER XXIV.

DISTINCTIVE CHARACTER OF PRIVATE BILLS: PRELIMINARY

VIEW OF THE PROCEEDINGS OF PARLIAMENT IN PASSING
THEM.

EVERY bill for the particular interest or benefit of any Definition of person or persons, is treated, in Parliament, as a private private bills. bill. Whether it be for the interest of an individual, a public company or corporation, a parish, a city, a county, or other locality; it is equally distinguished from a measure of national import, in which the whole community are interested. This distinction is the better defined by the solicitation of the parties themselves for bills in which their interests are concerned; as, by the standing orders of both houses, all private bills are required to be brought in upon petition; and the payment of fees is an indispensable condition to their progress.

vate bills.

In treating of petitions, the origin of private bills has Origin of pribeen already glanced at;3 but it may be referred to again, in illustration of the distinctive character of such bills, and of the proceedings of Parliament in passing them. The separation of legislative and judicial functions is a refinement in the principles of political government and jurisprudence, which can only be the result of civilization. In

1 See infra, p. 408, and 2 Hats. 281-288. A bill for the benefit of three counties has been held to be a private bill.

2 But see exceptions, infra, p. 462.

3 Supra, p. 302.