I have already stated the substance of the commission in a proceeding in the Court of the High Steward.  I will now state the substance of that in a proceeding in the Court of the Peers in Parliament; and shall make use of that in the case of the Earl of Kilmarnock and others, as being the latest, and in point of form agreeing with the former precedents.  The commission, after reciting that William, Earl of Kilmarnock, &c., stand indicted before commissioners of gaol-delivery in the County of Surrey, for high treason, in levying war against the King, and that the King intendeth that the said William, Earl of Kilmarnock, &c., shall be heard, examined, sentenced, and adjudged before himself, in this present Parliament, touching the said treason, and for that the office of Steward of Great Britain (whose presence is required upon this occasion) is now vacant, as we are informed, appointeth the then Lord Chancellor Steward of Great Britain, to bear, execute, and exercise (for this time) the said office, with all things due and belonging to the same office, in that behalf.

What, therefore, are the things due and belonging to the office in a case of this kind?  Not, as in the Court of the High Steward, a right of judicature; for the commission itself supposeth that right to reside in a court then subsisting before the King in Parliament.  The parties are to be there heard, sentenced, and adjudged.  What share in the proceeding doth the High Steward, then, take?  By the practice and usage of the Court of the Peers in Parliament, he giveth his vote as a member thereof, with the rest of the peers; but, for the sake of regularity and order, he presideth during the trial and until judgment, as Chairman or Speaker pro tempore.  In that respect, therefore, it may be properly enough said, that his presence is required during the trial and until judgment, and in no other.  Herein I see no difference between the case of an impeachment and of an indictment.  I say, during the time of the trial and until judgment; because the court hath, as I observed before, from time to time done various acts, plainly judicial, before the appointment of an High Steward, and where no High Steward hath ever been appointed, and even after the commission dissolved.  I will to this purpose cite a few cases.

I begin with the latest, because they are the latest, and were ruled with great deliberation, and for the most part upon a view of former precedents.  In the case of the Earl of Kilmarnock and others, the Lords, on the 24th of June, 1746, ordered that a writ or writs of Certiorari be issued for removing the indictments before the House; and on the 26th, the writ, which is made returnable before the King in Parliament, with the return and indictments, was received and read.  On the next day, upon the report of the Lords’ committees, that they had been attended by the two Chief-Justices and Chief-Baron, and had heard them touching the construction of the