t, upon charges of high public crimes, seems to
be the exercise of a right inherent in the great council of the nation,
some traces of which appear even before the Conquest (Chron. Sax. p.
164, 169), independent of and superseding that of trial by peers, which,
if the 29th section of Magna Charta be strictly construed, is only
required upon indictments at the king's suit. And this consideration is
of great weight in the question, still unsettled, whether a commoner can
be tried by the lords upon an impeachment for treason.

The treatise of Stillingfleet was written on occasion of the objection
raised by the commons to the bishops voting on the question of Lord
Danby's pardon, which he pleaded in bar of his impeachment. Burnet seems
to suppose that their right to final judgment had never been defended,
and confounds judgment with sentence. Mr. Hargrave, strange to say, has
made a much greater blunder, and imagined that the question related to
their right of voting on a bill of attainder, which no one, I believe,
ever disputed. (Notes on Co. Litt. 134 b.)

NOTE II. Page 9.

The constitution of parliament in this period, antecedent to the Great
Charter, has been minutely and scrupulously investigated by the Lords'
Committee on the Dignity of a Peer in 1819. Two questions may be raised
as to the lay portion of the great council of the nation from the
Conquest to the reign of John:--first, Did it comprise any members,
whether from the counties or boroughs, not holding themselves, nor
deputed by others holding in chief of the crown by knight-service or
grand serjeanty? secondly, Were all such tenants _in capite_ personally,
or in contemplation of law, assisting, by advice and suffrage, in
councils held for the purpose of laying on burthens, or for permanent
and important legislation?

The former of these questions they readily determine. The committee have
discovered no proof, nor any likelihood from analogy, that the great
council, in these Norman reigns, was composed of any who did not hold in
chief of the crown by a military tenure, or one in grand serjeanty; and
they exclude, not only tenants in petty serjeanty and socage, but such
as held of an escheated barony, or, as it was called, _de honore_.

They found more difficulty in the second question. It has generally been
concluded, and I may have taken it for granted in my text, that all
military tenants _in capite_ were summoned, or ought to have been
summoned, to