Chapter XI: Section 4: , of the same statute provides,

"That in every Parliament, at the third day of every Parliament, the
king shall take in his hands the offices of all the ministers
aforesaid," (that is, "the chancellor, treasurer, barons, and
chancellor of the exchequer, the justices of the one bench and of the
other, justices assigned in the country, steward and chamberlain of
the king's house, keeper of the privy seal, treasurer of the
wardrobe, controllers, and they that be chief deputed to abide nigh
the king's son, Duke of Cornwall,") "and so they shall abide four or
five days; except the offices of justices of the one place or the
other, justices assigned, barons of exchequer; so always that they
and all other ministers be put to answer to every complaint; and if
default be found in any of the said ministers, by complaint or other
manner, and of that attainted in Parliament, he shall be punished by
judgment of the peers, and put out of his office, and another
convenient put in his place. And upon the same our said sovereign
lord the king shall do (cause) to be pronounced and made execution
without delay, _according to the judgment_ (_sentence_) of the said
peers in the Parliament."

Here is an admission that the peers were to fix the sentence, or judgment, and the king promises to make execution "_according to_" that sentence.

And this appears to be the law, under which peers of the realm and the great officers of the crown were tried and sentenced, for four hundred years after its passage, and, for aught I know, until this day.

The first case given in Hargrave's collection of English State Trials, is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert Tresilian_, Lord Chief Justice of England, with several others, convicted of treason, before "the Lords of Parliament," in 1388. The sentences in these cases were adjudged by the "Lords of Parliament," in the following terms, as they are reported.

"Wherefore the said _Lords of Parliament_, there present, as judges
in Parliament, in this case, _by assent of the king, pronounced their
sentence_, and did adjudge the said archbishop, duke, and earl, with
Robert Tresilian, so appealed, as aforesaid, to be guilty, and
convicted of treason, and to be drawn and hanged, as traitors and
enemies to the king and kingdom; and that their heirs should be
disinherited forever, and their lands and tenements, goods and
chattels, forfeited to the king, and that the temporalities of the
Archbishop of York should be taken into the king's hands."

Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir
_John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, "_were by the
lords temporal, by the assent of the king_, adjudged to be drawn and
hanged, as traitors, their heirs disinherited, and their lands and
tenements, goods and chattels, to be forfeited to the king."

Also, in the same case, _John Blake_, "of council for the king," and
_Thomas Uske_, under sheriff of Middlesex, having been convicted of
treason,

"_The lords awarded, by assent of the king_, that they should both be
hanged and drawn as traitors, as open enemies to the king and
kingdom, and their heirs disinherited forever, and their lands and
tenements, goods and chattels, forfeited to the king."

Also, "_Simon Burleigh_, the king's chamberlain," being convicted of
treason, "_by joint consent of the king and the lords_, sentence was
pronounced against the said Simon Burleigh, that he should be drawn
from the town to Tyburn, and there be hanged till he be dead, and
then have his head struck from his body."

Also, "_John Beauchamp_, steward of the household to the king, _James
Beroverse_, and _John Salisbury_, knights, gentlemen of the privy
chamber, _were in like manner condemned_."--_1 Hargrave's State
Trials_, first case.

Here the sentences were all fixed by the peers, _with the assent of the king_. But that the king should be consulted, and his assent obtained to the sentence pronounced by the peers, does not imply any deficiency of power on their part to fix the sentence independently of the king. There are obvious reasons why they might choose to consult the king, and obtain his approbation of the sentence they were about to impose, without supposing any legal necessity for their so doing.

So far as we can gather from the reports of state trials, peers of the realm were usually sentenced by those who tried them, _with the assent of the king_. But in some instances no mention is made of the assent of the king, as in the case of "Lionel, Earl of Middlesex, Lord High Treasurer of England," in 1624, (four hundred years after Magna Carta,) where the sentence was as follows:

"This High Court of Parliament doth adjudge, that Lionel, Earl of
Middlesex, now Lord Treasurer of England, shall lose all his offices
which he holds in this kingdom, and shall, hereafter, be made
incapable of any office, place, or employment in the state and
commonwealth. That he shall be imprisoned in the tower of London,
during the king's pleasure. That he shall pay unto our sovereign lord
the king a fine of 50,000 pounds. That he shall never sit in
Parliament any more, and that he shall never come within the verge of
the court."--_2 Howell's State Trials_, 1250.

Here was a peer of the realm, and a minister of the king, of the highest grade; and if it were ever _necessary_ to obtain the assent of the king to sentences pronounced by the peers, it would unquestionably have been obtained in this instance, and his assent would have appeared in the sentence.

_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention being made of the assent of the king_. The sentence is in these words:

"And, therefore, this High Court doth adjudge, That the Lord Viscount
St. Albans, Lord Chancellor of England, shall undergo fine and ransom
of 40,000 pounds. That he shall be imprisoned in the tower during the
king's pleasure. That he shall forever be incapable of any office,
place, or employment in the state or commonwealth. That he shall
never sit in Parliament, nor come within the verge of the court."

And when it was demanded of him, before sentence, whether it were his hand that was subscribed to his confession, and whether he would stand to it; he made the following answer, which implies that the lords were the ones to determine his sentence.

"My lords, it is my act, my hand, my heart. _I beseech your lordships
to be merciful to a broken reed._"--_1 Hargrave's State Trials_,
386-7.

The sentence against Charles the First, (1648,) after reciting the grounds of his condemnation, concludes in this form:

"For all which treasons and crimes, _this court doth adjudge_, that
he, the said Charles Stuart, as a tyrant, traitor, murderer, and
public enemy to the good people of this nation, shall be put to death
by the severing his head from his body."

The report then adds:

"This sentence being read, the president (of the court) spake as
followeth: 'This sentence now read and published, is the act,
sentence, judgment and resolution of the whole court.'"--_1
Hargrave's State Trials_, 1037.

Unless it had been the received "_law of the land_" that those who tried a man should fix his sentence, it would have required an act of Parliament to fix the sentence of Charles, and his sentence would have been declared to be "_the sentence of the law_," instead of "_the act, sentence, judgment, and resolution of the court_."

But the report of the proceedings in "the trial of Thomas, Earl of Macclesfield, Lord High Chancellor of Great Britain, before the House of Lords, for high crimes and misdemeanors in the execution of his office," in 1725, is so full on this point, and shows so clearly that it rested wholly with the lords to fix the sentence, and that the assent of the king was wholly unnecessary, that I give the report somewhat at length.

_After being found guilty_, the earl addressed the _lords_, for a _mitigation of sentence_, as follows:

"'I am now to expect your lordships' judgment; and I hope that you
will be pleased to consider that I have suffered no small matter
already in the trial, in the expense I have been at, the fatigue, and
what I have suffered otherways. * * I have paid back 10,800 pounds of
the money already; I have lost my office; I have undergone the
censure of both houses of Parliament, which is in itself a severe
punishment,'" &c., &c.

On being interrupted, he proceeded:

"'My lords, I submit whether this be not proper in _mitigation of
your lordships' sentence_; but whether it be or not, I leave myself
to your lordships' justice and mercy; I am sure neither of them will
be wanting, and I entirely submit.' * *

"Then the said earl, as also the managers, were directed to withdraw;
and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be
committed to the custody of the gentleman usher of the black rod; and
then proceeded to the consideration of what _judgment_," (that is,
_sentence_, for he had already been found _guilty_,) "to give upon
the impeachment against the said earl." * *

"The next day, the Commons, with their speaker, being present at the
bar of the House (of Lords), * * the speaker of the House of Commons
said as follows:

"'My Lords, the knights, citizens, and burgesses in Parliament
assembled, in the name of themselves, and of all the commons of Great
Britain, did at this bar impeach Thomas, Earl of Macclesfield, of
high crimes and misdemeanors, and did exhibit articles of impeachment
against him, and have made good their charge. I do, therefore, in the
name of the knights, citizens, and burgesses, in Parliament
assembled, and of all the commons of Great Britain, demand _judgment_
(_sentence_) of your lordships against Thomas, Earl of Macclesfield,
for the said high crimes and misdemeanors.'

"Then the Lord Chief Justice King, Speaker of the House of Lords,
said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in
the case by you mentioned.

"'Thomas, Earl of Macclesfield, the Lords have unanimously found you
guilty of high crimes and misdemeanors, charged on you by the
impeachment of the House of Commons, and do now, according to law,
proceed to _judgment_ against you, which I am ordered to pronounce.
Their lordships' _judgment_ is, and this high court doth adjudge,
that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty
thousand pounds unto our sovereign lord the king; and that you shall
be imprisoned in the tower of London, and there kept in safe custody,
until you shall pay the said fine.'"--_6 Hargrave's State Trials_,
762-3-4.

This case shows that the principle of Magna Carta, that a man should be _sentenced only_ by his peers, was in force, and acted upon as law, in England, so lately as 1725, (five hundred years after Magna Carta,) so far as it applied to a _peer of the realm_.

But the same principle, on this point, that applies to a peer of the realm, applies to every freeman. The only difference between the two is, that the peers of the realm have had influence enough to preserve their constitutional rights; while the constitutional rights of the people have been trampled upon and rendered obsolete by the usurpation and corruption of the government and the courts.