CHAPTER XXIII. Rarity of impeachments in modern times. IMPEACHMENT BY THE COMMONS; GROUNDS OF ACCUSA- IMPEACHMENT by the commons, for high crimes and misdemeanors beyond the reach of the law, or which no other authority in the state will prosecute, is a safeguard of public liberty well worthy of a free country, and of so noble an institution as a free Parliament. But, happily, in modern times, this extraordinary judicature is rarely called into activity.' The times in which its exercise was needed were those in which the people were jealous of the Crown; when the Parliament had less control over prerogative; when courts of justice were impure; and when, instead of vindicating the law, the Crown and its officers resisted its execution, and screened political offenders from justice. But the limitations of prerogative-the immediate responsibility of the ministers of the Crown to Parliamentthe vigilance and activity of that body in scrutinizing the actions of public men-the settled administration of the law, and the direct influence of Parliament over courts of justice-which are, at the same time, independent of the Crown-have prevented the consummation of those crimes 1 For the number of impeachments at different times, see supra, p. 39. 2 By the Act 13 Will. 3, c. 2, s. 3, the commissions of judges are made quamdiu se bene gesserint; their salaries are ascertained and established; but it may be lawful to remove them upon the address of both houses of Parliament. which impeachments were designed to punish. The Crown is entrusted by the constitution with the prosecution of all offences; there are few which the law cannot punish; and if the executive officers of the Crown be negligent or corrupt, they are directly amenable to public opinion, and to the censure of Parliament. impeachment. From these causes, impeachments are reserved for extra- Grounds of ordinary crimes and extraordinary offenders; but by the law of Parliament, all persons, whether peers or commoners, may be impeached for any crimes whatever. moners. It was always allowed, that a peer might be impeached Peers and comfor any crime, whether it were cognizable by the ordinary tribunals or not; but it was formerly doubted, upon the authority of the case of Simon de Beresford, in the 4th Edward 3,' whether a commoner could be impeached for any capital offence. harris. On the 26th March 1681, Edward Fitzharris was im- Case of Fitzpeached of high treason; but the House of Lords, on being informed by the attorney-general that he had been instructed to indict Fitzharris at common law, resolved that they would not proceed with the impeachment. The grounds of their decision were not stated; but from the protest entered on their Journals, from the resolution of the commons, and from the debates in both houses, it may be collected that the fact of his being a commoner had been mainly relied on.3 The commons protested against the resolution of the lords, as " a denial of justice, and a violation of the constitution of Parliaments;" and declared it to be their " undoubted right to impeach any peer or commoner for treason or any other crime or misdemeanor:" but the impeachment was at an end, and the trial at common law proceeded. On his prosecution 'See 2 Rot. Parl. 53, 54; 4 Edw. 3, Nos. 2 and 6. 13 Lords' J. 755. 38 Howell St. Tr. 231-239; 2 Burnet's Own Times, 280; 4 Hans. Parl. Hist. 1333. Case of Sir A. Blair, and others. Commencement of proceedings. Articles of impeachment. by indictment, Fitzharris pleaded in abatement that an impeachment was then pending against him for the same offence, but his plea was overruled by the Court of King's Bench.1 The authority of this case, however, is of little value: an impeachment for high treason was depending at the very time against Chief Justice Scroggs, a commoner; and when, on the 26th June 1689, Sir Adam Blair, and four other commoners, were impeached of high treason, the Lords, after receiving a report of precedents, and negativing a motion for requiring the opinion of the judges, resolved that the impeachment should proceed.3 It rests, therefore, with the House of Commons to determine when an impeachment should be instituted. A member, in his place, first charges the accused of high treason, or of certain high crimes and misdemeanors, and after supporting his charge with proofs, moves that he be impeached. If the house deem the grounds of accusation sufficient, and agree to the motion, the member is ordered to go to the lords, "and at their bar, in the name of the House of Commons, and of all the commons of the United Kingdom, to impeach the accused; and to acquaint them that this house will, in due time, exhibit particular articles against him, and make good the same." The member, accompanied by several others, proceeds to the bar of the House of Lords, and impeaches the accused accordingly. In the case of Warren Hastings, articles of impeachment had been prepared before his formal impeachment at the bar of the House of Lords; but the usual course has been to prepare them afterwards. A committee is appointed to draw up the articles, and on their report, the articles are discussed, and, when agreed to, are ingrossed and delivered to the lords, with a saving clause, to provide that the commons shall be at liberty to exhibit further articles from time to time.' The accused sends answers to each article, which, together with all writings delivered in by him, are communicated to the commons by the lords;2 and to these replications are returned if necessary.3 4 If the accused be a peer, he is attached or retained in Accused taken into custody. custody by order of the House of Lords; if a commoner, he is taken into custody by the serjeant-at-arms attending the commons, by whom he is delivered to the gentleman usher of the black rod, in whose custody he remains, unless he be admitted to bail by the House of Lords; or be otherwise disposed of by their order. The lords appoint a day for the trial, and in the mean- Managers time the commons appoint managers to prepare evidence appointed. and conduct the proceedings, and desire the lords to sum- Witnesses summon all witnesses who are required to prove their charges. moned. The accused may have summonses issued for the attendance of witnesses on his behalf, and is entitled to make his full defence by counsel.1o The trial has usually been held in Westminster Hall, The trial. which has been fitted up for that purpose. In the case of peers impeached of high treason, the House of Lords is presided over by the lord high steward, who is appointed by the Crown, on the address of their lordships; but, at other times, by the lord chancellor or lord speaker of the House of Lords. The commons attend the trial, as a committee of the whole house," when the managers make Charges to be their charges, and adduce evidence in support of them but they are bound to confine themselves to charges contained in the articles of impeachment. Mr. Warren Hastings complained, by petition to the House of Commons, that matters of accusation had been added to those 160 Com. J. 482, 483. 61 Ib. 164. 42 Com. J. 793. 861 Com. J. 169. 10 20 Geo. 2, c. 30. 20 Lords' J. 297. 420 Lords' J. 112. 642 Com. J. 796. 9 61 Ib. 224. 45 Lords' J. 439. 18 Com. J. 391. 11 45 Lords' J. 519. confined to the Lords determine if the accused be guilty. Commons demand judg ment. originally laid to his charge, and the house resolved that certain words ought not to have been spoken by Mr. Burke.1 When the case has been completed by the managers, they are answered by the counsel for the accused, by whom witnesses are also examined, if necessary; and, in conclusion, the managers have a right of reply. When the case is thus concluded, the lords proceed to determine whether the accused be guilty of the crimes with which he has been charged. The lord high steward puts to each peer, beginning with the junior baron, the question upon the first article, whether the accused be guilty of the crimes charged therein. The peers in succession rise in their places when the question is put, and standing uncovered, and laying their right hands upon their breasts, answer, "guilty," or "not guilty," as the case may be, "upon my honour." Each article is proceeded with separately in the same manner, the lord high steward giving his own opinion the last. The numbers are then cast up, and being ascertained, are declared by the lord high steward to the lords, and the accused is acquainted with the result.3 If the accused be declared not guilty, the impeachment is dismissed; but if guilty, it is for the commons, in the first place, to demand judgment of the lords against him; without which they would protest against any judgment being pronounced. On the 17th March 1715, the commons resolved, nem. con., in the impeachment of the Earl of Winton, "That the managers for the commons be empowered, in case the House of Lords shall proceed to judgment before the same is demanded by the commons, to insist upon it, that it is not parliamentary for their lordships to give judgment, until the same be first demanded by this house." 144 Com. J. 298. 320. 3 Trial of Lord Melville, p. 413. ? Printed Trial of Lord Melville, p. 402. 418 Com. J. 405. |