1649-1685. high treason, can be recognised as such, by the mere technical CHARLES II. adaptation of language, and whether, under such circumstances, the lords have the power of committal, but are not high treason, can legally bound to treat such a charge as a misdemeanor. This case has recognised two great constitutional rights;first, that impeachments made by the commons in one parliament, continued from session to session, and parliament to parliament, notwithstanding prorogations or dissolutions*; secondly, that in cases of impeachments upon special matter shown, if the accused does not voluntarily withdraw, the lords admitted that, of right, they ought to order him to withdraw, and that afterwards he ought to be committed. Another question arose, whether the king had a right to pardon, in cases of parliamentary impeachment. After the revival of the proceedings in the new parliament, Danby had absconded, but, being apprehensive of an attainder, surrendered himself, and pleaded a pardon from the king in bar of the prosecution3. The commons resolved that the pardon was illegal and void, and ought not to be pleaded in bar of the impeachment of the commons of England; and demanded judgment at the lords' bar against Danby, as having put in a void plea. As another proof of that sense of "impartial justice" which popular bodies display, when "seeking justice," the commons resolved, in order to prevent the accused from having counsel, that no commoner should presume to maintain the validity of the pardon pleaded by the earl, without their consent, on pain of being accounted a betrayer of the liberties of the commons of England. a be made so, by the adaptation of language. King's right to pardon in cases of impeachment. The commons command that shall maintain no commoner the validity of the pardon pleaded by Danby. deny the right of the bishops to They likewise denied the right of the bishops to vote on the The commons validity of this pardon; and demanded the appointment of committee from both Houses to regulate the form and manner vote. of proceeding on this impeachment, as well as on that of the five lords accused of participation in the popish plot 3. The lords reluctantly agreed to appoint a committee, but it was ultimately resolved that the spiritual lords had a right to sit and vote in parliament in capital cases, until 2 Vide Impeachment of Mr. Hastings, in 1791, where this principle is recognised. 3 Lords' Journ. April 25. 4 Parl. Hist. 1121. 2 Hallam's Const. Hist. 556, et seq. 5 Ibid. May 10, 11. Lords' Journ. May 9, 1679. CHARLES II. judgment of death shall be pronounced'; against which vote 1649-1685. the commons protested', but a prorogation ensued, and the next parliament did not proceed with the impeachment. Parliamentary rights of the bishops. The crown, in cases of parlia mentary im peachment, has pardon after sen a right to grant a tence. With respect to the bishops' votes, a more unjust request could not have been urged; because, in the Constitutions of Clarendon, it is enacted, that the bishops and others holding spiritual benefices, " in capite," should give their attendance at trials in parliament, till it came to sentence of life or member, and the original privilege of the bishops to withdraw, is nothing more than one of the narrow superstitions of the canon law, and even when they do withdraw, it is under a protestation. In this case, the king commanded that the bishops should be present and vote on the validity of Danby's pardon, observing, his prerogative was at stake, and experience must have taught them that their interest was closely bound up with that of the sovereign: because the debasement of the crown would be quickly followed up by that of the mitre". The question of the king's right to pardon, in cases of parliamentary impeachment, was left undecided in this case, but it was finally decided in the Act of Settlement, which provides that no pardon under the great seal of England shall be pleadable to an impeachment by the commons in parliament. This language tacitly concedes to the crown the right of granting a pardon after sentence, though not before sentence; the principle of which is, that inquiry should not be frustrated, so that the crimes of a minister can always be exhibited to public execration, and thus rendering him for ever powerless, as it is impossible a guilty and convicted minister can ever recover his moral influence in this country. The prerogative of mercy was recognised upon the impeachment of the six peers who had been concerned in the Rebellion of 1715: the House of Lords, after sentence passed, having come to a resolution on debate that the king had a right to reprieve in cases of impeachment, addressed him to exercise that prerogative as to such of them as should deserve his mercy; and three of the number were, in consequence, pardoned". Lords' Journ. May 13, 15, 17, 27, 1679. 7 Com. Journ. May 26, 1679. 4 Hatsell's Precedents, 374. 88 Lingard, 116. Vide ante, 45, 46. May 15, 26, 1679. 8 Lingard, 117. Lords' Journ. 575, 577, 580, 584, 586, 587, 590, 594, 1679. Com. Journ. 10 Stat. 12 & 13 William III. c. 2. 112 Hallam's Const. Hist. 562. 7 Parl. Hist. 283; sed vide etiam, 233. Another important question relative to impeachment was also determined, in the case of Fitzharris, viz., that it was the right of the House of Commons to impeach before the House of Lords, any peer or commoner, for treason, or any other crime or misdemeanour 12. 12 But the House of Lords made a standing order, that no peer should answer any accusation before the commons, in person, or by counsel, or by letter, under the penalty of being committed to the custody of the black-rod, or to the Tower, during the pleasure of the House 13. 13. Appropriation of Supplies. The commons, availing themselves of the increasing unpopularity of the king, and the embarrassments which the war with Holland had occasioned, claimed a right, and which was recognised, to appropriate the supplies to specified and limited purposes', and for which precedents existed in the reigns of Richard II., Henry IV., and James I., and this system has been since invariably pursued, and caused the necessity of estimates being regularly submitted to the legislature. The commons having become possessed of such privileges, claimed as an incident thereto, that of investigating the mode in which their moneys had been expended, and from the corrupt, criminal, and lascivious disposition of the public funds by the court, and its satellites, insisted upon such a right being conceded, and accordingly a statute was passed3, investing commissioners therein named with very extensive and extraordinary powers, both as to auditing public accounts, and investigating the extensive frauds that had taken place in the expenditure of money, and employment of stores; and the result occasioned the expulsion of the treasurer of the navy from the House, for issuing money without legal warrant, and destroyed all confidence in the integrity of the government, as the commissioners reported unaccounted balances of 1,509,1617. besides much that was questionable in the payments*. 12 Com. Journ. March 26, 1681. 4 Hatsell's Precedents, 54, and App. 347. 8 State Trials, 236. 12 Ibid. 1218. 13 12 Lords' Journ. 606, 608, 612. 7 Lingard, 568. 1 Stat. 17 Charles II. c. 1. Com. Journ. Nov. 25, 1665. 4 Parl. Hist. 305. Vide ante, 132, 353. 2 Pepys' Diary, Sept. 23, Oct. 8, Dec. 12, 1666. 3 Stat. 19 & 20 Charles II. c. 1. 4 Burnet, 374; sed vide Ralph, 177. CHARLES II. 1649-1685. Privilege of the commons to im peach before the House of Lords, any peer or commoner. The commons investigating the mode in which claim a right of public moneys have been ex pended. CHARLES II. TO BE ISSUED BY THE SPEAKER The commons were likewise enabled to obtain another im 1649-1685. portant privilege. During the prorogation, the chancellor, ELECTION WRITS according to ancient precedents, issued writs to supply tho se seats which had become vacant in the House of Commons, the earliest trace of writs originating with the speaker, having occurred in 1640. The commons, however, insisted upon the speaker's right, and a resolution was passed, that the elections under the chancellor's writ were void, and that the speaker should alone issue the new writs". Corruption of the judicial bench, of justice. 14. The Administration of Justice. The administration of justice during this reign, when any and the ministers political object was to be acquired, was disgraceful to the government and to the judicial bench', and the ministers of justice left no expedient untried in order to corrupt and intimidate those who were summoned upon grand and petit juries; to such an extent was this practice carried, that parliament was obliged to interfere3. Grand jury of Somerset summoned before the Court of King's ing a bill against the orders of the Bench, for find judge of assize. The panels were wilfully intended to be composed of those who were most to be relied upon for subserviency to the despotic measures of the court; and when juries presumed to act conscientiously, judges presided who were so base as to fine them for their verdicts: thus, as previously stated, the recorder of London, in 1670, imposed a fine of forty marks on each of the jury because they had acquitted Penn and Mead'. So likewise the grand jury of Somerset, having found a bill for manslaughter instead of murder against the advice of Chief Justice Keeling, were summoned before the Court of King's Bench, to answer for a misdemeanour for finding upon a bill of murder, "billa vera quoad manslaughter," against the directions of the judge. Upon their appearance, they were told by the court, being full, that it was a misdemeanour in them, for they were not to distinguish betwixt murder and manslaughter; for it is only the circumstance of malice which makes the difference, and that might be implied by the law, without any fact at all, and so it lies not in the judgment 5 Com. Journ. Feb. 6, 1673. 4 Parl. Hist. 507-512. Parker, 262-265. 7 Lingard, 544. 7 State Trials, passim. 3 Com. Journ. Oct. 16, 1667. 29 Ibid. 932. 1649-1685. of a jury, but of the judge; that the intention of their CHARLES II. finding indictments is, that there might be no malicious prosecution; and, therefore, if the matter of the indictment be not framed of malice, but is verisimilis, though it be not vera, yet it answers their oaths to present it. Mr. Justice Twisden said he had known petty juries punished in Lord Chief Justice Hyde's time, for disobeying of the judge's directions in point of law. But because it was a mistake in their (the grand jury) judgments rather than any obstinacy, the court discharged them without any fine or other attendance". Charles II. so far differed from his father, that he did not pursue similar measures of illegal taxation, or issue proclamations subversive of liberty, except one, which was recalled, for shutting up of coffee-houses: but the first might have proceeded from a dread of punishment, the latter in consequence of the non-existence of the Star Chamber and High Commission Courts. Illegal taxation not adopted by Charles II. dom of the press. The press was a constant source of annoyance, and every Attempts to reexertion was made to restrain its freedom of discussion: thus, strain the freeit was held by the judges, who had assembled by the king's command, that all books scandalous to the government, or to private persons, might be seized, and the authors, or those exposing them, punished; and that all writers of false news, though not scandalous or seditious, were indictable on that account: and in another case, the judges ordered that a certain book should no longer be printed or published by any person whatsoever. General warrants were likewise issued to seize seditious General warrants libels, and apprehend their authors: in fact, no absolute check issued. was put to general warrants until the decision of the Court of Common Pleas in 1764, although their illegality could not have been questioned 10. 5 Pasch. 19 Charles II. Keeling, C. J.; Twisden, Wyndham, Merton, Justices. Hargrave MSS. 339. Sed vide etiam Com. Journ. Oct. 16, 1667. 5 State Trials, 999. 6 Ibid. 1013. • Kennet, 337. Ralph, 297. North's Examen, 139. 7 Kennet's Register, 176. Stat. 14 Charles II. c. 33. 87 State Trials, 929. London Gazette, May 5, 17, 1680. 9 7 State Trials, 1127. 8 Ibid. 184, 197. 10 7 Ibid. 949, 956. 3 Hallam's Const. Hist. 7. |