For the putting a construction upon an act relative to the
conduct of the court and the right of the subject at the trial, and in
the proceedings preparatory to it, and this in a case entirely new, and
upon a point, to say no more in this place, not extremely clear, was
undoubtedly an exercise of authority proper only for a court having full
cognizance of the cause.
I will not minutely enumerate the several orders made preparatory to the
trial of Lord Lovat, and in the several cases I shall have occasion to
mention, touching the time and place of the trial, the allowance or
non-allowance of council, and other matters of the like kind, all
plainly judicial; because the like orders occur in all the cases where a
journal of the preparatory steps hath been published by order of the
Peers. With regard to Lord Lovat's case, I think the order directing the
form of the High Steward's commission, which I have already taken notice
of, is not very consistent with the idea of a court whose powers can be
supposed to depend, at any point of time, upon the existence or
dissolution of that commission.
In the case of the Earl of Derwentwater and the other lords impeached at
the same time, the House received and recorded the confessions of those
of them who pleaded guilty, long before the _teste_ of the High
Steward's commission, which issued merely for the solemnity of giving
judgment against them upon their conviction.
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