VOTES. On the trial every peer votes on questions of law as well as of fact, though they often refer queftions of evidence, or other technical defcription to the judges; but this only for their opinion, not their determination; in voting, the majority decides, and when the numbers are even, the propofition is taken to be paffed in the negative. No proxies are allowed; members of the house of commons who had voted on the queftion of impeachment, but were fince called up to the peers, are excufed from giving judgment, but not prohibited. With refpect to bishops, doubts are entertained whether they should vote in judicature in cafes of blood; they have generally declined attending, but entered a protest, referving to themselves all their legal rights. They are frequently prefent during the trial, and have voted on all questions arifing in the course of it, but not on the final queftion" Guilty or not guilty."

THE COURT AND TRIAL. To give a notion of the manner in which the court is held for the trial of a perfon impeached, when the house of commons attend as a committee, it will not be improper to transcribe the narrative of the opening of the laft great tribunal of the kind, that which was held for the trial of Mr. Haftings, and which lafted from 1788 to 1795.

On the day appointed, at eleven o'clock, the houfe of commons, preceded by the managers of the impeachment, came from their own houfe into the hall. The managers were dreffed, the rest of the members in their ufual undrefs. Half an hour afterward, the lords moved from their own chamber of parlia ment; the clerks of parliament first, the mafters in chancery following them; next the ferjeants, then the judges; after them a herald, and then the eldeft fons of peers and peers minor; then, after the ufhers, the barons, bishops, viscounts, earls, marquiffes, dukes, the archbishops, and the lord chancellor, The proceffion closed with the royal family, the fon of the duke of Gloucester walking firft, and the prince of Wales lait. In paffing to their places, they took off their hats and bowed to the throne. Having taken their feats, the ferjeant at arms made proclamation, commanding filence, and called upon Warren Haftings, efquire, to come into court. Mr. Haftings accordingly appeared, accompanied by Mr. Sullivan and Mr. Sumner, his bail, and kneeling at the bar in the box affigned to him, he was ordered to rife, which he, accordingly did. The ferjeant at arms then made proclamation: " Oyez, oyez, oyez ! Whereas "charges of high crimes and mifdemeanors have been exhibit"ed by the honourable the house of commons, in the name of "themselves and of all the commons of Great Britain, against "Warren Haftings, efquire; all perfons concerned are to take "notice, that he now ftands upon his trial, and they may come "forth

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"forth in order to make good the faid charges." The lord chancellor then addreffed the prifoner as follows:

"Warren Haftings; You ftand at the bar of this court, "charged with high crimes and misdemeanors, a copy of which "has been delivered to you; you have been allowed counsel, "and a long time has been given to you for your defence; but "this is not to be confidered as a particular indulgence to you, 66 as it arose from the neceflity of the cafe, the crimes with "which you are charged being stated to have been committed "in a diftant place. Thefe charges contain the most weighty "allegations, and they come from the highest authority: this "circumftance, however, though it carries with it the most "ferious importance, is not to prevent you from making your "defence in a firm and collected manner, in the confidence "that, as a British fubject, you are entitled to, and will re"ceive, full juftice from a British court."

To which Mr. Haftings made answer;

My lords; I am come to this high tribunal equally im"preffed with a confidence in my own integrity, and in the "justice of the court before which I ftand."

The clerks of the court then proceeded to read the charges and the answers, till the lord chancellor moved, that the lords should adjourn to their own chamber of parliament, and they accordingly withdrew in the order in which they came.

This account difplays most of the forms obferved on fuch occafions: the guards attended on Sacheverel's trial, in confequence of an addrefs to the queen, reciting that it had been ufual on fuch occafions. The commons, attending as a committee, are not covered; the peers are. When the defendant was a peer, and tried in the lords, only for high crimes and mifdemeanors, the houfe ordered, that the lower barons' bench fhould be moved, and a stool fet near the bar, where he was to fit uncovered as a peer, and not in the capacity of a judge. The commons remonftrated against this arrangement, but the peers very properly replied, "that judging it a right inherent in

every court, to order and direct fuch circumftances and mat"ters of form as can have no influence to the prejudice of juf"tice, in fuch way as they fhall judge fit, where the fame are "not fettled otherwife by any pofitive rule, their lordships had "confirmed the order already made as just and equal."

When the pleadings and depofitions have been read, the managers open the cafe for the commons; they are at liberty to felect fuch articles, and in fuch order as they think fit, each manager chufing which he will enforce, and they call evidence in fupport of them. In fome inftances they have proceeded article by article, requiring the prifoner to defend himself on each

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feparately; and this course the managers against Mr. Haftings wished to have adopted, but the counsel for that gentleman infifting that fuch arrangement was never made but with confent of the prifoner, and refifting it on behalf of their client, the queftion was referred to the decifion of the lords, who defired the managers to produce all their evidence in fupport of their impeachment before the defendant fhould be called upon to anfwer any part.

After the managers have closed their evidence, one of them is heard at large in fumming it up. The prifoner then makes his defence by counfel, and calls evidence if fo inclined; one of his counsel fums up in his behalf, and the defendant himself may also, if he will, at this period address the court. The managers have then a right to reply, but the defendant cannot be allowed to speak after them. The managers have a right to reply, even if the prifoner calls no evidence, or makes no defence.

The managers in their addrefs to the lords ufe that freedom of fpeech, which diftinguishes the proceedings in their house; but when the counfel for the prifoner animadverted in fevere terms on some of their expreffions, it was treated as an offence against the dignity of the house of commons. In some cases, however, exceptions have been taken against expressions used by managers: in the profecution of Dr. Sacheverel, one of them was obliged, by the chancellor, to explain his words; and in that of Mr. Haftings, the house of commons, on the report of a committee, voted that fome words fpoken by one of the managers ought not to have been uttered.

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If any doubts arise in the course of proceeding, the lords do not discuss them in Westminster-Hall, but adjourn to their own house. This is a tedious and fatiguing duty, but confiftent with precedent, and favourable to free debate; it fometimes occafions an adjournment beyond the day, but at others questions have been decided without the managers leaving the bar. In thefe cafes, especially on points of evidence, the lords fometimes confult the judges, but this proceeding is not indifpenfably neceffary, and in the cafe of Dr. Sacheverel, the houfe decided in exprefs contradiction to the effect of the unanimous opinion of the judges. This cafe deferves particular notice; it was not one of evidence but of form; the question referred to them was, "Whether, by the law of England, and conftant practice "in all profecutions, by indictment or information, for crimes or "misdemeanors, in writing or fpeaking, the particular words "fuppofed to be criminal must not be exprefsly specified in such "indictment or information?" to which the judges all anfwered in the affirmative. The lords refolved, That they will proceed

to the determination of the impeachment, according to the law of the land, and " the law and ufage of parliament ;" and directed the clerks, and appointed a committee to fearch precedents on this subject; which being reported, they refolved, "That by the "law and ufage of parliament, in profecutions by impeachment "for high crimes and mifdemeanors, by writing or speaking, "the particular words fuppofed to be criminal are not necessary "to be exprefsly fpecified in fuch impeachment." This decifion was treated by a great law lord, during the trial of Mr. Haftings, as an inftance of injustice which it was to be hoped might never occur again. The lords, it was faid, had determined a point of law, contrary to the unanimous opinion of the judges. On this subject it may be observed, that the point, as laid down by thofe judges, has been much controverted since their days, and that their opinion did not extend to impeachments, but only to cafes of indictment and information. But even if the opinion of the judges had been diametrically oppofite to the determination adopted by the lords, it would not, even then, be easy to fhew that fo great a tribunal, empowered by the constitution to revife the proceedings of thofe very judges in their own courts, when brought into the house by writ of error, fhould, in a cafe where they afk for an opinion, be bound to prefer that opinion to the dictates of their own judgment and experience.

VERDICT. The arguments and evidence on each fide being clofed, a day is fixed for pronouncing the decifion of the court, and the lords who have been prefent during the trial, have notice to attend. On fome occafions there has been a previous vote, "that the commons have made good their charge;" and in fuch cafe, after a debate, it was refolved, that the question of guilty or not guilty should be put on each article of impeachment fimply, and not, as was firft propofed, with this introduction, "The Commons having made good their charge," is the prisoner guilty or not guilty?" On the day appointed for this decifion the court meets as ufual, the managers and the commons in their places; the defendant, with his bail, is introduced, and directed to withdraw; the verdict of each lord, commencing from the junior baron, is then taken feriatim by the high steward, and he publicly declares the refult. In the cafe of Mr. Haftings, it was the acquittal of the prifoner; in confequence, the lord chancellor, who was high steward, faid, " It appears that there " is a great majority for the acquittal of the prisoner on each "of the articles; I am, therefore, pursuant to your lordships' "directions, to declare, that Warren Haftings, efquire, is ac"quitted of all the charges of impeachment brought against "him by the commons, and of all the matters contained therein."

Mr.

Mr. Haftings being then called into court, came into his box, and knelt in the ufual way; the chancellor defired him to rife, and addreffed him in these words:

"Warren Haftings, you are acquitted of all the charges of "impeachment brought against you by the commons, and of all "the matters contained therein; you and your bail, therefore, "are difcharged."

When the decifion of the court is adverse to the prisoner, a like declaration is made to the lords; the defendant is, in like manner, informed of the event, and notice is fent to the commons that their lordships are ready to give judgment, if they, with the speaker, will come and demand the fame.

JUDGMENT. This notice to the commons to demand judgment, is not mere matter of form; it is an ancient custom, invariably observed, even when the defendant pleads guilty, and the commons are so tenacious of this privilege, that in two cafes, when there was reafon to apprehend that the peers would proceed to judgment without waiting for the performance of this part of their duty, they voted an inftruction to their committee "to infift that it is not parliamentary for "their lordships to give judgment until the fame had been first "demanded by the commons." The order made has been that, on a day mentioned, "this house will, with Mr. Speaker "and the mace, go up to the bar of the lords' houfe, and, in "the name of the knights, citizens, and burgeffes in parlia❝ment assembled, and of all the commons of Great Britain, "demand judgment against the defendant." The committee is alfo directed to draw up a form of words for making the demand, which varies according to the circumstances of the cafe. The commons by this regulation gain a fort of power to pardon the perfons they have profecuted, or at least to ref pite them during pleafure; but to the party himself, such a tenure of his immunity is very infecure, fince, after long intervals, even a new parliament has come to the house of lords and demanded a judgment.

ARREST OF JUDGMENT. When the defendant is brought up on the demand of the house of commons, he may move in arreft of judgment; the managers for the commons argue against him, and the lords retire into their own house to decide the point.

SENTENCE. The fentence in cafe of high treafon is death, inflicted by decollation or hanging, according to the rank of the offender.

Those upon high crimes and mifdemeanors vary according to the nature of the cafe and circumstances of the parties. In cafe of pecuniary fine, it seems most regular to adopt an inquiry

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