It was from a jealousy of this kind, not at that juncture altogether groundless, and to guard against everything from whence the necessity of an High Steward in the case of an impeachment might be inferred, that the Commons proposed and the Lords readily agreed to the amendment in the Steward’s commission which I have already stated.  And it hath, I confess, great weight with me, that this amendment, which was at the same time directed in the cases of the five Popish lords, when commissions should pass for their trials, hath taken place in every commission upon impeachments for treason since that time.[89] And I cannot help remarking, that in the case of Lord Lovat, when neither the heat of the times nor the jealousy of parties had any share in the proceeding, the House ordered, “That the commission for appointing a Lord High Steward shall be in the like form as that for the trial of the Lord Viscount Stafford, as entered in the Journal of this House on the 30th of November, 1680:  except that the same shall be in the English language."[90]

I will make a short observation on this matter.  The order, on the 13th of May, 1679, for varying the form of the commission, was, as appeareth by the Journal, plainly made in consequence of the resolution of the 12th, and was founded on it; and consequently the constant, unvarying practice with regard to the new form goeth, in my opinion, a great way towards showing, that, in the sense of all succeeding times, that resolution was not the result of faction or a blamable jealousy, but was founded in sound reason and true policy.  It may be objected, that the resolution of the 12th of May, 1679, goeth no further than to a proceeding upon impeachment.  The letter of the resolution, it is admitted, goeth no further.  But this is easily accounted for:  a proceeding by impeachment was the subject-matter of the conference, and the Commons had no pretence to interpose in any other.  But what say the Lords? The High Steward is but as a Speaker or Chairman pro tempore, for the more orderly proceeding at the trials; the appointment of him doth not alter the nature of the court, which still remaineth the Court of the Peers in Parliament. From these premises they draw the conclusion I have mentioned.  Are not these premises equally true in the case of a proceeding upon indictment?  They undoubtedly are.

It must likewise be admitted, that in the proceeding upon indictment the High Steward’s commission hath never varied from the ancient form in such cases.  The words objected to by the Commons, Ac pro eo quod officium Seneschalli Angliae, (cujus praesentia in hac parte requiritur,) ut accepimus, jam vacat, are still retained; but this proveth no more than that the Great Seal, having no authority to vary in point of form, hath from time to time very prudently followed ancient precedents.