Commons; but with regard to the lords, there is no remedy for error, no punishment for a wilful wrong.

Your committee conceives it not improbable, that this apparently total and unreserved submission of the lords to the dictates of the judges of the inferior courts (no proper judges in any light, or in any degree, of the law of parliament) may be owing to the very few causes of original jurisdiction, and the great multitude of those of appellate jurisdiction which come before them. In cases of appeal or of error (which is in the nature of an appeal) the court of appeal is obliged to judge, not by its own rules, acting in another capacity, or by those which it shall choose pro re nata to make, but by the rules of the inferior court from whence the appeal comes, for the fault or the mistake of the inferior judge is, that he has not proceeded as he ought to do, according to the law which he was to administer; and the correction, if such shall take place, is to compel the court, from whence the appeal comes, to act as originally it ought to have acted according to law, as the law ought to have been understood and practised in that tribunal. The lords, in such cases of necessity, judge on the grounds of the law, and practice of the courts below; and this they can very rarely learn with precision, but from the body of the judges. Of course much deference is, and ought to be, had to their opinions. But by this means a confusion may arise (if not well guarded against) between what they do in their appellate jurisdiction, which is frequent, and what they ought to do in their original jurisdiction, which is rare; and by this the whole original jurisdiction of the peers, and the whole law and usage of parliament, at least in their virtue and spirit, may be considerably impaired.

After having thus submitted to the House the general tenor of the proceedings in this trial, your committee will, with all convenient speed, lay before the House the proceedings on each head of evidence separately, which has been rejected; and this, they hope, will put the House more perfectly in pos

session of the principal causes of the length of this trial, as well as of the injury which parliamentary justice may, in their opinion, suffer from those proceedings.

30th April, 1794.

APPENDIX.

APPENDIX, No. I.

IN THE CASE OF EARL FERRERS.

April 17th, 1760.

THE House of Peers unanimously found Earl Ferrers guilty of the felony and murder whereof he stood indicted; and the earl being brought to the bar, the high steward acquainted him therewith; and the House immediately adjourned to the chamber of parliament; and having put the following question to the judges, adjourned to the next day.

"Supposing a peer, so indicted and convicted, ought by law to receive judgment as aforesaid, and the day appointed by the judgment for execution should lapse before such execution done, whether a new time may be appointed for the execution, and by whom?"

On the eighteenth, the House then sitting in the chamber of parliament, the lord chief baron, in the absence of the chief justice of the common pleas, delivered in writing the opinion of the judges, which they had agreed on and reduced into form that morning. His lordship added many weighty reasons in support of the opinion; which he urged with great strength and propriety, and delivered with a becoming dignity.

TO THE SECOND QUESTION.

"Supposing the day appointed by the judgment for execution should lapse before such execution done, (which, however, the law will not presume,) we are all of opinion, that a new time may be appointed for the execution, either by the high court of parliament, before which such peer shall have been attainted, or by the court of king's bench, the parliament not then sitting; the record of the attainder being properly removed into that court."

The reasons upon which the judges founded their answer to the question relating to the further proceedings of the House after the high steward's commission dissolved, which is usually done upon pronouncing judgment, may possibly require some further discussion. I will, therefore, before I conclude, mention those which weighed with me, and, I believe, with many others of the judges.

REASONS, &c.

Every proceeding in the House of Peers, acting in its judicial capacity, whether upon writ of error, impeachment, or indictment, removed thither by certiorari, is in judgment of law a proceeding before the king in parliament: and therefore the House, in all those cases, may not improperly be styled, the court of our lord the king in parliament. This court is founded upon immemorial usage, upon the law and custom of parliament, and is part of the original system of our constitution. It is open for all the purposes of judicature during the continuance of the parliament; it openeth at the beginning and shutteth at the end of every session; just as the court of king's bench, which is likewise in judgment of law held before the king himself, openeth and shutteth with the term. The authority of this court, or, if I may