UNIVERSITY OF CALIFORNIA
AT LOS ANGELES
SERIES OF LETTERS
TO THE
Right Hon. Edmund Burke.
[Price is. 6</. ]
A
SERIES OF LETTERS
TO THE
Right Hon. Edmund Burke
IN WHICH ARE CONTAINED
ENQUIRIES
INTO THE
CONSTITUTIONAL EXISTENCE
O F
AN IMPEACHMENT
AGAINST
MR. HAS r ING S.
By G. .H A R D I N G E, Efq. M. P.
LONDON:
PRINTED FOR T. CADELL, IN THE STRAND.
M DCC XCI.
33S
413.5-
J . rip H
JL
LETTER THE FIRST.
Vereor committere, ut non bene provifa et diligenter ex-
plorata PRINCIPIA ponantur.
Clc. deLcg.
S I R,
OUGH I have not the honor of your
perfonal acquaintance, and am not of
confequence enough to intereft your attention,
I take the liberty of addreffing you in print,
upon a confthutional fubject, which has of late
occupied, in ferious argument, thofe who have
the will and the power to reafon upon it with-
out prejudice.
To this mode of laying my thoughts before fo
enlightened an age, I am not prompted by the
arrogant and wild conception, that I could be
read, any more than I could be heard, as your
antagonift ; but I have recourfe to it, becaufe
the habits of guard over exprefiion that may
offend, (a guard almoft infeparable from fuch a
form of addrefs,) will reilrain any fudden impulfe
of the writer to that polemical ,zeal> againft which
men of fober minds are prejudiced in fuch a de-
gree, as to refufe even truth, if it fhould pafc
through fo difturbed a channel : But fuffer me
B to
( * )
to add, that, being a zealous admirer of your
eminent fame and worth, I fhall, with more dif-
fidence upon that account, offer my opinions
to the public, where I feel them to be difcredit-
ed, as being the reverfe of thofe which you have
entertained.
I, Sir, am one of the few, who thought it
would not have degraded, or weakened, any in-
quifitorial rights which the elected reprefent-
atives of the people are authorifed by the con-
flitution to enforce, if the committee had enquired
into the law, as it flood upon record in the jour-
nals * of parliament, before they affirmed,
" That an impeachment, after evidence has been
" beard upon it in one parliament, may be con-
" tinued in the next, from the point at which it
<( flood when the former parliament was clojed
" by a diffolution ' which, as you explained it,
is the view and fpirit of their vote upon the 23d
of December 1790.
But as the debate on this critical fubjedt was
continued for three days, and produced a very
able difcuffion of all the various grounds upon
which that vote could be fupported, I fhall con-
* The houfe of lords have inftituted a committee for the
examination of precedents, though informed by the com-
mons, not of their judicial vote, but of their perfect readinefs
to carry on the impeachment ; which readinefs indicates their
fenfe of the law to be, that an impeachment is depending.
fider
( 3 )
fider it, as if the examination of precedents had
been directed, and had brought forward, in a
parliamentary form, the materials to which the
argument has referred.
It is not in a technical, or contracted view of
the fubject, that I lament this refolution, but as
tending to confequences that ftrike at the root
of juftice, and freedom.
If it could end with Mr. Haftings, I fhould
fay, <f Felices errore Juo /" For I am flill of
opinion, that political honor, which is always
political wifdom, demands the further trial of
that culprit.
Nor would I perhaps lament this refolution
as a mere precedent of the particular doctrine
(though queftionable at leaft, upon topics of con-
venience and of juftice), if I had not feen it ac-
companied, and fupported by topics of reafoning,
which appear to me rather calculated, in their na-
ture (though not in the view of thofe who made
ufe of them) to be the engines of defpotifm, than
of liberty, well underflood.
I allude, Sir, to thofe general principles
\vhich have been either directly aflerted, or in-
fmuated, and fatally afifumed.
If they are eftablifhed, there is an end of that
balance between the rights of the Sovereign and
B 2 thofe
( 4 )
thofe of the people, which is the vital fpirit of
this Conftitution ; for, by thefe principles, all the
rights of the Executive Power, as well as thofe
of the other Eflates, may acquire an indefeafible
character j State Necejjity, the tyrant's plea, may
again be made the artful pretence for every op-
preffion by either of thefe rival powers, but with
an advantage-ground of Parliamentary law.
I have reflected ferioufly upon thefe principles,
and though fome of them are popular in their
found, they carry no weight, in my eftimation,
but of danger to the government in which I was
born, and whofe conftitutional powers I have re-
vered, becaufe I believed them to be thofe of a
check, formed by jealous claims, not only be-
tween thofe who govern and thofe who are go-
verned, but, in the fame degree, between the
feveral orders of that government, with a refer-
ence to each other, as their antagonift, and com-
petitor.
I. " That what is nece/ary to the uncontrouled
" and univerfal efett of a Conftitutional Right ^
* f is therefore a fart of it,"
Here no line is drawn, or attempted ; and, if
there is none, it leads to endlefs confufion.
For example, who fhall tell me, that if the
Right of Impeachment is abfoiute, and carries
with
( s )
with it all that is neceflary to its unlimited per-
fection, the accufer is, or can be, excluded from
the Court who are to fit upon his culprit, while
they are debating, and even determining, the va-
rious points of law that arife ? Who fhall tell
me, that he can have no power to effectuate the
continued and perfevering attendance of that
Court ? That he has no right of imprisonment*,
or of bail j or of enfuring their continuance, when
directed by the Lords ? That he may demand
Judgment, but has no legal power to demand the
execution of it ?
But let us purfue this captivating fentiment
into other conftitutional rights.
It is the right of the Commons to enjoy
unlimited freedom in debate; but is it a part of
that right, that no man fhall be turned out of an
office held at the King's pleafure, for his vote in
Parliament j or, that no placeman can have a
feat?
I give no opinion of my own upon the famous
queftion, Whether incapacity of return to Par-
liament arofe from expulfion, and gave to the
candidate a feat in the Houfe, whom three, out
* The Lords would not commit Lord Clarendon in 1667,
nor this Earl of Danby, at the firft requifition of the Commons,
becaufe the offence was not high treafon, though called by
that name.
Of
( 6 )
of three thoufand, electors might have nominat-
ed ? But this, at leaft, will be remembered that
it was a point of difficulty ; that fome of the beft
V/kigs in England (and yourfelf in particular)
infifted upon the right of obtruding the candidate
on thofe who had refnfed, and ejected him ; that
a Refolution, affirming the minority of the votes
to give the feat, is expunged from the Journals,
which (as I agree with a very eloquent and able
Statefman) does not affirm the law to be other-
wife, but certainly intimates an opinion that it is,
and an opinion of as enlightened a Houfe of
Commons as ever fat : Yet if the Houfe could
expel, was it not eflential to the uncontrouled
and abfolute right of expulfion, that it fhould
bar the door againft that fame individual, in his
new fhape of a candidate returned immediately
after this mark had been fet upon him ? Was
it not efiential to the right, as attracting to it all
its neceflary advantages, that no peevifh, and
captious warfare fhould proceed between the
Electors and the Houfe of Commons, by the
repeated re-election and refufal of the obnoxious
candidate ; but that any competitor who had a
{ingle vote, fhould be received, upon the efla-
blifhed principle, that a candidate ineligible is
as no candidate ? And what a monfter of abfurdity
it is, that a Member of Parliament, expelled for
the worft offences that can difgrace a man, may
be
( 7 )
be eligible, may fit by force, upon the re-
turn of that writ which declares the vacancy arif-
ing from his expulfion ! But how were thofe
topics of reafoning met, and anfwered by the elo-
quent, and conftitutional arguments * which
you, and your friends, adopted with fuccefs ? I
will not impair them by attempting to do them
jufticej but I will only infift, that, if they were
found, they refute that principle which I am
now endeavouring to convict of error, and of
danger to the government.
In all thefe, and a thoufand other exigencies,
of a fimilar nature, the conftitution of this
mixed government looks on both fides, and
would rather want a part of its object, or of
the means by which it can be obtained, than
give to another party in the conteft a right
which is not eftablifhed by ufage, or principles of
law. Is it not ejfsntial to the uncontrouled effeR
of the king's prerogative in declaring war, but
is it a 'part of this prerogative, that he fhould
find in his public revenue, or obtain by levies
* The queflion is admirably put, in a mere ftatement of the
faSl, by the writer of Thoughts upon the caufes of the prefeni
difcontents. " The electors of Middlefex chofe a perfon whom
the houfe of commons had voted incapable, and the houfe
of commons had taken in a member whom the electors of
Middlefex had not chofen." They declared, " that the
true legal fenfe of the county was contained in the mino-
rity, and might, on a refinance to a vote of incapacity, be
contained in any minority."
J B 4 upon
( 8 )
upon the people, an adequate eftabliftiment of
naval, and military force? Can he touch one
(hilling of the nation's purfe, if the commons
tell him he-fhall have no fupplies ? Many other
admitted prerogatives are made nugatory by the
oppofition of conftitutional difficulties, indifpen-
fible to that vigilant fufpicion which is enter-
tained againft the abufe of right *.
II. " Tbaf no right of the Jovereign can by its
" abufe impair the effett of a right which the
< c commons enjoy."
This principle cannot be illuftrated with more
advantage than iri the cafe before us, to which
it has been applied with fuch captivating talents,
and powerful impreffion, by the mod eloquent of
men. 7i\\zfubftance of the argument is upon a
level to homelier capacities j and may be de-
fcribed even by me.
It has been faid" That impeachment is a
ft public accufation by all the commons of
<c England againft a delinquent of ftate ; whom
" the law, in its regular courfe of juftice, can-
" not reach with effect ; that moft of all, it is
" pointed againft men of high authority, rank,
* Mr. Paine, in bis " Rehearfal" (of a new conftitution
for Great Britain) has " elevated, and furprized" us with a
difcovery, " that in mixed governments no refponfibility
" can exift." The charm that binds tins agreeable paradox,
is a very fimple one ; he affumes univei-fal corruption as the
fecret mover of the whole machine. Righis of Man, p. 1 5 3 .
2 " and
( 9 )
" and power; that in this view it is, and means
" to be, a check upon the abuie of Royal favor
" and confidence by wicked Ministers j that it
tc gives energy to that wholefome fiction of the
" Law which exempts the King from blame,
" for the purpofe of difabling him to Ihift the
<l entire odium upon himfelf, and weaken the
" terror of it againft his advifers. If they are,
" in truth, flaves to him, the Constitution
" forces them to be refponfible for that fervility,
Cf by calling it advice, in order to punifh the
" guilt, and avert the mifchief. But if the
<c King diflblve the Parliament by his prero-
fc gative, to fave a juftly execrated Minifter
" from Impeachment, it is no longer a terror
fc to the King, or his co-adjutors in the govern-
<f ments and as there. is no other appeal, but an
" appeal to the fword, they have perfect impu-
< c nity, or the nation is thrown into a civil war :
So thought, felt, and acted our ancestors in
<e the Earl of Danfy's memorable cafe, when
" they rejected the King's pardon as an objection,
<f in liminc, to their Impeachment. The cafe in
' ( the terms of it was new ; the right of pardon,
" taken in the abftract, was unlimited ; but this
" limitation of it, their public fpirit challenged
" and fecured. Upon the fame principles,
" though in a different fliape of them, but no
" lefs important, the public fpirit of thefe times
C is
ef is called upon to afiert, that no diffolution
" of Parliament lhall fave a culprit under an
" Impeachment from the continuance of his
" trial ; becaufe vain, and impotent would be
" the benefit of difabling his plea, e that he was
" pardoned,' if the King (hould intercept the
" courfe of juftice, by terminaring that of trial,
" either at the moment before its regular end
" by Judgment, or at any other period of the
" evidence, when he Ihould think his favorite
" moil endangered."
This argument, (and I have done it all the
juftice I couldy) if it be a little clofely examined,,
will prove the danger of leaving thofe bounda-
ries which the Conftitution has formed againft
every encroachment.
If the reafoning is correct, and found, it can-
not flop at the continuance of an Impeachment
after a diffolution of the Legiflature, but muft
reach and cut off the King's right of pardoning
the fentence ; a right which is, it feems, at this
hour, " denied him by all the Whigs, and given
" to him by all the Tories-" according to a
whimfical note in De Lolme^ very ingenious
Eflay upon our Conftitution * : Yet I don't
recollect that it was controverted by you, or any
* It is controverted by Williams, as counfel for fitz&arris,
but upon drained analogies between Impeachment and
Afpeal.
S o*
( II )
-of your able frpporters, upon the fubjedl of this
Impeachment j but I do recoiled that it was
acted upon, in the cafe of the Impeached Rebel
Peers, by King George the Firfi , and that it is
reprefented by Mr. Jujlice Blackftone> a new fa-
vorite of the Whigs, to be a point clear of doubt.
The Right of making Peers for the very pur-
pofe of fecuring the culprit who is impeached,
may, upon principles equally cogent, be denied ;
and a cafe may be imagined, which heightens the
general mifchief refulting from that new Peer-
age ; let us imagine the King, with fuch a pur-
pofe, to make thofe very Commoners, who had
fet their face againft the Impeachment, Peers of
Great Britain, the day before trial ; a mifchief
that is not quite vifionary, for it has been felt ;
and the Commons actually voted in 1640, That
Peers, taken from the Houfe of Commons,
could not vote upon the Impeachment, becaufe
they were ftill accufers, and bound as parties :
But will any fober man juftify that vote, or give
it the term of privilege a term fo familiar of
late, and fo mifunderftood ?
It was obferved by an acute, and powerful
difputant, " That it was not fair to argue in
" fupport of a dangerous power, as being legal,
* from the admitted legality of other powers,
" which, if abufed, might alfo be dangerous."
C 2 But
But furely it is fair and found reafbning, againft
an argument, which, from the danger of a power
in its effect upon rights confeffed, infers, that it has
no legal exiftence, to fhew, that other powers,
rending in the fame part of the government, ad-
mitted on all hands to exift, may yet, by their
abufe, injure the very fame rights.
In anfwer to a fuppofed hiftory of the fact,
that the King's right of pardon was refufed by
the Commons, where it was attempted in op-
pofition to the very outfet of the Impeachment,
I would firft afk, if it is necefiary, that becaufe
our anceftors made a new, and a very wholefome
law, but in a mod irregular fhape, through the
channel of powers ufurped in a party- conflict,
and which at laft required the guarantee of the
Legiflature, we are therefore to aflert, as a rule
binding us, and binding the Houfe of Peers,
another propofition, which has no principle, or
colour for it in the Law of Parliament ?
But the faff refpecting this pardon has
been mifconceived ; and, as every point of it
may illuftrate the immediate fubjecl before us,
I fhall take the liberty of requeuing a particular
attention to it * here, though it (hould rather
form
* Before it was pleaded, the Chancellor (afterwards Lord
Nottingham] had thrown it upon the King, as a perfonal ad
of
( '3 )
form a part of another and future difcuf-
fion.
The pardon was pleaded in the court which
can alone receive, and alone determine, every
fuch plea, that is, in the houfe of lords.
Either it was the right, and the duty of the lords
to give judgment upon that plea, or there is no
point of law judicially before them, upon which
they are to determine for themfelves. Yet
mark, I entreat you, .the conduct of thofe whom
you have reprefented as models worthy of our
imitation : Having underftood, that, upon receiv-
ing this plea, the lords had committed the offence
of appointing a day upon which it was to be
argued, they affirm judicially, by a vote of their
own, the pardon to be illegal, and " therefore
" demand judgment accordingly :" In other
words, they dictate what the judgment fhall be:
But they do more ; for they vote (9th May
1679), that whoever fhall prefume to maintain
the validity of this pardon before the lords,
without their leave, fhall be accounted a betrayer
of the liberties of the houie of commons :
< c Itaque perpaucis adverfantibus omnia qua ne
(C per populitm, fmefeditione y Je ajfequi pojjie arbi-
of his own ; with a time-ferving fpirit, and a double trea-
chery, which, in other times, would have juftly irritated the
commons againft him ; but his evidence was convenient.
J C 3 " trabantur.
( '4 )
" trabantttr, per fenatum confecuti funt*"-~
They had, with a judicial tone, affirmed the il-
legality of the pardon, in a vote the 5th May
.1 679-1-; and had dated the fame judgment, in
the resolution for an addrefs to the king, 24th
March 1678. At a conference, after all thefe
meafures had been adopted, they tell the lords,
what the pardon is, which is then before them ;
defcribe it, as being a calumny upon the king,
illegal, and an obftruction to juftice : Yet,
in this very conference, they " admit (re-
" luctant evidence is always the beft), that any
" change of judicature in parliament is of per-
? f nicious confequence to the king, and the
people."
The pardon was never judicially declared by
the lords to be illegal ; a difpute arofe concern-
ing the right of the bifhops to give judgment
upon that plea, and the parliament was dif-
fplved.
* Cicero, Epift. ad Fam.
f Two things are not a little memorable in their enquiries
preliminary to this vote, enquiries inftituted upon the 28th
of April 1679; the firft is, that a committee examine pre->
cedents; and the fecond, that, relying upon the negative
ufage, they report fmgly the fadl of no fuch pardon having
been ever ififued and this, forms the bafts of their fubfequent
vote, ,
From,
( '5 )
From this, which is an accurate ftatement of
the fact as it was left at the diflblution of that
Parliament, what can be more evident, than firft,
that in affirming the pardon to be illegal, " and
" therefore demanding Judgment accordingly"
before the culprit?*yas beard by the Court, thefc
public inquifitors and accufers ufurped a judicial
character became Judges in their own caufe *
and reduced the Houfe of Peers into the mere in-
llniments of their will ? Next, that in difabling
any " Commoner" (friend, or advocate) without
their leave, to argue in fupport of this plea, they
were guilty of a moft cruel oppreflion ? But is it
lefs clear, that whatever Jenfe, and -policy, may be
found in difabling fuch a pardon, there was not
a colour of Law for the difability j and that no
precedents could help them beyond the negative
fropofition^ that no fuch pardon had in fact iffued ?
which negative ttfage, you, Sir, and your fup-
porters, rejected the other day with fcorn, as no
advantage at all to the point made by thofe
who reprefented the impeachment of Mr. Haf-
tings to be at an end. It was lately urged by a
moft able, though young debater, who is of our
profeffion, " that what happened in this cafe of
" the pardon, was a decided precedent of that
" common fenfe, and public fpirit which muft
" forever challenge the complete effetl of an
" Impeachment, as well as the name of it." He
added, <c that what the Commons voted at this
* f period, was recognized as Law by an Act of
<c Parliament at the Revolution"
C 4 In
( '6 )
In the firft place, nothing is more clear than that
the Act in queftion patted many years after the
Revolution (in the i2th of William IIL); and
is, of itfelf, a complete evidence againft the fup-
pofed legality of the doctrine affirmed by that
vote : For it is a new Law, and it is not a de-
claratory one. But there is a very material fac~b,
which never has been once noticed in the de-
bate i and it is, that at the Revolution, when a
laudable anxiety was exerted for the declaration
of all eflential and legal claims, affecting the
King's prerogative, and liberties of the fubjed, a
Committee who prepared heads for the Declara-
tion of Rights, had made this, one of them :
" No far don to be pleadable to an Impeach-
<f mentf ;" but, "for divers, and weighty rea-
" Jons, they omitted it in the Declaration * it-
" felf:" Nor is it either in the Bill of Rights,
or in the Bill of Indemnity. Indeed, if the
words had flood, they would have pointed rather
at a new, than a declaratory Law ; efpecially as
the Report had feparated this article into a differ-
ent clafs from that of powers which it affirms to be
illegal. The Commons took the hint from their
Committee, and would not rifk, in the Declara-
tion of Rights, their own judicial oracle againftthe
legality of a pardon, as pleadable to an Impeach-
ment; which oracle they muft therefore have
confidered as z.jiblwn, though falutary, and conve-
f zd Feb. 1688. The article is adopted by the Houfe,
for under it is written " Agreed."
* As they inform the Houfe, themfelves, in a fecond Re-
port, jth February 1688.
nient.
nient. The commons, though for a time
averfe to the only expedient that remained, that
of a new law, had recourfe to it in the end,
and thus admitted, that grounds of policy inju-*
rious to the eftablifhed right of the fovereign,
could not be received by the good fenfe of the
conftitution as grounds of taw, till the legifla-
ture had enacted them.
Sometimes, however, the queftion was a lit-
tle fhifted the other day j for it was put thus
(but it was a diftinction without a difference)
" Let the king (till have a right of diffolution
" uncontrouledy but let the right of impeach-
" ment be equally uncontrouled. The diffolu-
" tionof parliament does not, ofnecefilty, mark
" the termination of an impeachment, and the
<f two rights would not clafh in the lead, unlefs
" this extravagant effect were given to the
" king's prerogative by a fide- wind, an effect
" not effential to it, and which is never to be
" fuppofed a part of its view." This begs the
whole queftion upon the end of an impeach-
ment, as refulting from the end of a parliament*.
The
* But why ftop at the continuance of an impeachment, in
the teeth of a diffolution ? Why not refufe the right of dijjb-
lution, or even of prorogation, pending an impeachment ?
Will any man tell me, that both of them are not injurious tq
t D the
( "8 )
The next and third principle gives a death's
wound, in my opinion, to that ftability of
rule which is the fafe-guard of us all againft any
abufe of power, but moft of all in criminal
proceedings.
III. " 'That a more liberal mode of reasoning is
" necejfary upon CONSTITUTIONAL principles
" of LAW, with a political view to their im-
" portance, and particularly againft offenders
" of fiat e"
The perfection of rule is, that it looks more
at the uniformity of juftice, than at the policy
and fpur of redrefs to a particular mifchief.-
No court in this mild government thinks it
humiliating or dangerous, to give the loweft or
the higheft culprit an equal Ihare of its prefump-
the right of the commons, as public accufers ? One of them
fhifts the accufer, and may convert him into a partifan for
the culprit ; the other may difarm the evidence by delay, or
tire out the accufer : It is true the king muft have a parlia-
ment again in three years ; but three years form an interval
much too long for the fafety of an impeachment. Indeed, I
confefs, it has always appeared a very inadequate provifion for
the liberties of the fubjeft, that, as the law was framed in king
William's reign, the king is now able to fufpend a parlia-
ment for any time (hort of three years ; nor does it ftrike me
as a law that has enadled the Bill of Rights, in that part of it
which had ftipulated, that parliaments were to be held/r*-
quently.
tions
( '9 )
tions in favor of innocence; of its jealoufy
againft evidence of guilt j of its guard over
all the eflential forms, and barriers of juftice,
in the mode of reaching his fortune, his cha-
racter, his freedom, or his life.
I know it has been often contended, that
when the legiflature afTumes a judicial charac-
ter for the fafety of the public, it may difpenfe
with judicial rules, and (as it was profefled in
the Earl of Stafford'?, attainder) " that he,
" who, deferving to die, fuffers by an a6t of the
tf whole government in its parliamentary form,
" has a juft fate, though rules and principles
" of eftablifhed law, either in the evidence or
" defcription of his guilt, may have been
" violated."
But, at lead where both houfes aci in their
divided and feveral functions of accufer and
judge againft any individual, we are no longer
free, if the rule can be relaxed, or {trained, or
invented, or denied, as the importance of -the
political object may fuggefl.
The fword of this calamity hangs over us*
D 2 IV.
( 20 )
IV. CONSTITUTIONAL RIGHTS have lefs of rule
in tbem y than rights of a lefs interefiing nature,
and may acquire more or lefs weight from the
exigencies of political convenience, to which
they are applied.
If Ccnjlitutional Rights could be thus mea-
fured, all diftinctions between future policy and
exifting rule would be loft, and the good faith
of public fecurity would be fliaken to the root ;
every link of that chain which unites the various
and rival powers of government would be endan-
gered, and we (hould expofe this beautiful fyftem,
either to the defultory hand of caprice (which
is perhaps of all tyrannies the worft), or to the
cafual impulfe of party-violence.
There is nothing more delicate, than how to
adjuft, and limit this argument of convenience;
when it is prefled in aid, as an evidence of
right. Where there is a reafonable doubt, which
of two oppofite rights can prevail in point of
law, the topic of convenience may determine it ;
but when there is mutual inconvenience, and the
right is clear upon one fide, but very difputable
on the other, it never can, without infinite peril,
be weakened in its effect by the difcuffion of
more or lefs inconvenience, as between the
right which is clear, and that which is difputable.
The
The inexpediency, ancient, as well as modern,
for it muft be fo argued, of ending an impeach-
ment by the difiblution of parliament, has been
ftated as being univerfal and clear of doubt.
If this were true, it would not (hake the legal
confequences of an eftablilhed right. But if
that view of the fubject is purfued, it will ap-
pear, that many reafons of convenience, and of
juftice t may be adduced in fupport of a legal
doctrine, which appears to be fo indifputable,
that no evidence of impolicy refulting from it
would move the rock' upon which it ftands. I
have faid, that in treating the fubjecl: of this ex-
pediency, we muft in part carry it back to an-
cient periods, and efpecially to thofe in which the
right was firft aflumed. For in conftruing an
ancient right, or principle of law, the policy of
them, when they were ancient, is a good and
found argument in their favor, as binding rules,
till the legiflature takes off the fetter ; though,
by fubfequent laws, that policy may be weaken-
ed or deftroyed.
Let us then firft imagine the interval of three
or four years : I am here going back to early
periods, becaufe I am aware, that, by an acT: of
king William, a parliament is now to be called
within
within three years ; but I have a right, upon
fuch an enquiry, to look back at the interval
of more thznfeven years between the parliament
that "was diffolved in 1515, and the next; of
more than five and a half, between the parlia-
ment that was diflblved i8th March 1580, and
the new one ; of more than four and a half,
between that which had a fimilar fate upon the
20th March 1588, and the fucceeding onej
of more than five and a half, in king James's
reign, between the parliament that ended ift
June 1614, and the next; but above all, of
twelve years in king Charles's reign, before the
civil war *.
Let us imagine all the witnefies dead whom
the culprit was to have called in his further de-
fence i let us put the cafe of a dijjolution at the
point of crofs- examining an important witnefs
for the accufer his evidence has made its im-
preffion the court is at an end, for a time at
lead the interval is long and the witnefs dies.
* In S treated s cafe, 5 Car. II. 1653, a judge exprefles
himfelf thus : " If an order in parliament fhall be in
" force after the diflblutionof a parliament, and there bean
" order for the commitment of one or mere, I pray which
" way can the fubjeft be relieved but this way in cafe we
" mould live to fee a parliament but once in an age, as in
" the latter end of king James, or as in the reign of the
" late king :" State Trials, vol. II.
Let
Let us imagine the culprit a popular fa-
vorite ; the king his oppreflbr, by a corrupt
houfe of commons; and the imprifonment,
by a judicious number of thefe dijfolutions t
an imprifonment of ten years, or indefinite (as
of courfe it is), at the mercy of his royal per-
fecutor ; I would afk, if demonftration would
not be required, before fuch a tyranny could
be admitted, as the effecT: of his legal power in
diffblving the parliament ?
Whatever tends to aggravate the mifchief, not
only of delay t but of any other, and peculiar fe ve-
rities impofed upon the culprit under an impeach-
ment, for the fake of public juftice, ought certain-
ly to be avoided, unlefs they are effential to' the
nature and foul of that proceeding. I hope this
principle is correct ; I am fure it is juft, and hu-
mane " bonum facile crederes" Let it be ap-
plied : It is a very peculiar circumftance of ad-
vantage given to this accufer, that, as the public
trial is watched by him, he may not only, at a
convenient minute, recal a charge which he is not
able to fubftantiate, but may accufe again, and
again, upon points abfolutely new: Upon every
adjournment^ and prorogation^ as a witnefs drops,
or comes forward, this right may be exercifed ;
but if the king diffohes a parliament, and for-
bears
bears to call one (fay for two years and a
the impeachment ftill defending^ and liable to be
refumed f , how does this advantage accumulate
againft the devoted head ! No public intereft
(which, in fome few cafes, it may accomplifh)
can atone for fuch a deep wound in thofe gene-
ral principles of mercy and benevolence, which
elevate our criminal juftice above that of all na-
tions upon earth. If it be faid that between one
parliament and another, the interval is now be-
come extremely Ihort, not only in point of habit,
but from various political neceffities; which
make it, in effect, almoft impoffible for the
king to difpenfe with a parliament beyond the
ufual period between the new writs and the
return : Yet can I fairly be told, that even
fuch an interval may not, by influence upon the
new and general election, upon the new and
elected fixteen peers of Scotland, or upon a
new batch of Englifh peers created within the in-
terval, turn the fate of the culprit ?
There is another powerful objection in point of
juftice (which I hope is convenience too, and the
* Charles the fecond laid afide parliament for upwards of
three years before his death.
f To imprifon " till delivered by the houfe of lords," if
it extends to the next houfe of lords, is to imprifon " during
" the king's pleafure;" which isdireftly againft the " peti-
<' tion of right:" as the EarlofDanby well argued.
only
( 25 )
only convenience that will be named in criminal
proceedings) to the continuance of impeachment
after a new parliament. The discretion of the
commons whether to continue, or abandon the
impeachment, if they at all exercife it by a due
examination of the evidence which has been
heard, is to depend upon written evidence at
beft; whereas, the original accufers heard the
evidence, and marked its imprefiion upon their
own, as well as the public mind. The judges,
who are new (the peers of Scotland, for example,
recently elected), will determine upon written
evidence alone, the guilt, or innocence, (and
as it may be in fome cafes,) the life, or death, of
the culprit.
It may be faid, that adjournments and pro-
rogations, indifpenfible to the power of the
lords, and the power of the king, may alfo be
of the fame prejudice. But they are efiential
parts of the conftitution, and eflential defects
of impeachment, co-seval, as far as we can trace
them, to the origin of that proceeding. Shall
we, therefore, fuperadd, upon refined, and ftrain-
ed analogy, the accumulated prejudice of all thofe
cruel differences againfl the perfonal freedom of
the fubject, which a new parliament may
produce ?
We are told, with an ingenious fallacy, that
viva voce evidence is not univerfal, or eflential,
E in
in other courts ; that judges aggravate, or mi-
tigate punifhment, upon written evidence, de-
livered in the form of an affidavit ; that every
judge who makes a note of that which he bears,
depends ultimately upon the note.
Here t\vo things are blended into one. Where
the court has a difcretion in the meafure of pu-
niftiment, the legal evidence of mitigating, or of
aggravating circumftances, prefents itielf in the
form of an affidavit. But the fecond propofi-
tion, which has not the leaft analogy to the firft,
is a perfect miftake.
For, upon every indictment, before the fact of
guilt can be eftablifhed, though he takes a note
of the evidence, he has a memory of his own to
accompany that note j and he never depends, in
ftating facts, from which a verdict of guilt, or
of innocence, may be inferred, upon the memory
of 'others, who heard what he, neither actually
heard, nor could have heard, himfelf.
But if it were otherwife, it would not apply
to this cafe, in which the peers are alfo juries
upon the important queftion ofthe/##i afiift-
ed by notes of their clerks, or agents, but necef-
farily enlightened, if their department is well ex-
ecuted, by that, which no written evidence can
record j by their perfonal comment upon the
demeanour of the witneffes, by the impreffion
13 firft
firft made upon underftandings prefent at the
fcene, when the fads are brought out, and com-
pared.
If the note of thofe who heard, were fufficient,
as a guide of others, who neither heard, nor Jaw
the witnefles, why not receive univerfally upon
impeachments, written evidence, taken by dele-
gates, or committees, in Weftminfter Hall, and
brought into the houfe of lords upon the faith
of their accuracy ? Why attend thefe trials ? To
thofe who don't bear the evidence, it is, merely
written evidence, or it is the loofe memory of
others j which is even worfe.
Extreme cafes are liberal and fair illuftrations
of a doubtful rule ; which is prefied, upon the
topic of convenience : And the queftion is not
lefs fair, than it was ingenious, which one of the
diffentient lawyers addrefied, if you remember,
to the chairman of the committee > " How
<c could he, if fpeaker, inftead of chairman,
" and if not in the laft parliament, give a caft-
" ing vote upon the delicate queftion of pro-
" ceeding in the impeachment, or dropping
" it?" The difcretion of this public accufer, is
a very important branch of his right, and parti-
cipates, in that extent, the judicial character :
but where can the materials of fuch a difcretion
be found, by thofe who are ftrangers to the evi-
E 2 dence,
dence, and the arguments, in a caufe which they
never heard, and in a court which they never
attended ?
But, without any fuch illuftrations as thefe,
the leading features, and principles of our con-
ftitution, prompt us to give our anceftors credit
for policy in that fyftem of check which they
have impofed upon all the rights of govern-
ment, and which rights are feldom abfolute, or
indefeafible, in power, though in theory they
admit of no limitation ; becaufe they are met,
and counteracted, by the effect of rights, and
competitors, equally independent. Let me afk
of you, who know the conftitution fo well, if
there is any one feature of it more prominent,
than a mutual jealoufy of all the cftates that
form the government, and a mutual check,
univerfally operating between them, in the ori-
ginal frame of their inherent powers ?
I have the honour to be,
S I R,
With perfect efteem,
Yours, &c.
LETTER THE SECOND.
'* A reprefentative (hould never facrifice his unbiajjed opi-
" nion ; his mature Judgment ; his enlightened confidence,
" to his eleflors; to any man ; or to znyfet of men living."
Mr. BuRKE'j^mv?> to the Electors
of Briibl, 3^ Nov. 1 774.
S I R,
IF the general principles which I have taken
the liberty of examining, are mifconceived,
and fome of them (particularly the laft, which
confounds political expediency with conftitu-
tional right) queftionable, at lead, in their appli-
cation, upon what other grounds can it be alert-
ed, that the impeachment againft Mr. Haftings
proceeds where it left off?
We (hall, at lead, find thefe other grounds, in
fad, as technical^ as thofe which are fet up againft
them are defcribed by the laymen to be : But I
fhall hope to convince the reader, that not only
they are techinal, but falfe analogies ; and that
folid principles, rooted in the genius of the con-
(litution, deprecate the continuance of this, or
of any impeachment, after the evidence has in
fart been heard.
It was infifted " That parliament is never
f extinguished, and that it never dies - t that it
Jleeps,
( 30 )
c< Jleeps, after a diffolution, till the king's prero-
" gative fhall awaken it ; that peers have ftill
<e the inherent right of demanding to fit injudg-
<f ment *, as well as to exercife their legiflative
" character, when the next parliament (hall
" come into action ; that it is the people who
" impeach by their legal organ, the reprefent-
" ative ; and that it is the people who refume
" by a new reprefentative, their function as
cc public accufers." It was compared to the
attorney general, and the king's indiftment, pre-
ferred by him. The idea of confidering the
popular elector as loft, upon conftitutional
principles, in his elected reprefentative, was
treated with fuccefsful ridicule by one of the
moft eloquent fpeeches that perhaps was ever
delivered in parliament. As I had the misfor-
tune to be the object of that ridicule, I have
re-examined what I faid, not only without pre-
judice in favour of it, but with an apprehenfion
that I had been in the wrong when I laid
" that I would refufe the character of agent, or
<f attorney, for the people of England ; that I
" knew of no commons but thofe who fat as a
* In the fecond volume of State trials, p. 210, upon a
habeas corpus in Streater's cafe, Lord Chief Jujiice Rolle faid
exprefsly, " That a Parliament was a new court, appearing,
" and fummoned by Mtu writs ;" which is alfo a direl an-
fwer to an affertion made in the debate " That a conrt of
" parliament would befelf-refumed, when the parliament fhould
" meet again." And where (unlefsin Ireland) is the inherent
right of peers at the time of the dijfilutian> \yho are created
after it ?
houfe
( 3' )
" houfe of commons * j that I confidered
<c them as having a very aweful truft repofed in
them j as reprefenting the popular fcale of the
<f government, but as being independent of any
" popular controul over them, and as being
" equally independent of their predeceflbrs in a
" former parliament." In other words, " that I
<c confidered them as the commons, or people
" of England, appearing, deliberating, and
" acting, for the popular intereft, in the moft
<f practicable form which the wifdom of our
" anceftors, and the genius of the conftitution,
" had been able to model." On the other
hand, in this view of them, no tyranny is to
be feared j the right of petitioning j the po-
pular fentiment abroad, upon meafures of alarm ;
the fear of its effect upon a general election,
(that political and very aweful teft,) are wife,
and provident checks upon this power of the
commons ; but their conftitutional independence
of the eleffsr (in a local, or general fenfe of the
* Mr, Burke has touched this delicate fubjeft with a maf-
terly hand, in his " Thoughts on the caufes, Sec." " A po-
" pular origin cannot be the characleriflical diftindlion of a
" popular reprefentative. This belongs equally to all parts
" of the government. Tbz king is the reprefentative ef the peo-
*t pl e , So are the lords ; and fo are the judges. They are
all truftees for the people. The forms of our government,
" and the perions svho compofeit, originate from the people.
" The virtue, ej/'ence, zn&fpirit, of a houfe of commons, confift
" inks being the exprefs image of the feelings of the nation."
term)
( 3* )
term) is perfect. Mr. Burke, indeed, in the
pamphlet juft quoted, recommends, " a detailed,
" and ftritt attention to the reprefentative, in
< e counties, and corporations, who are to form a
" 'political flandard of judgment, byjyjlem, upon
C{ his conduct, which conduct is to be known,
" in part, by an accurate lift of the votes *."
This, if it had not been written by an approv-
ed, and zealous advocate for political decorum,
would have ftruck me as a wild, and, at leaft, as
a very unconditional, reftraint upon the inde-
pendence of the commons in parliament.
As to the opinion delivered by me in the debate,
I religiouQy perfevere in it, and cannot repent of
it, or think it worthy of ridicule, if a little more
attention is given to it, than is due, perfonally,
to me.
But it has been faid, Cf the commons impeach
" in the name of themjeliies, and of all the com-
" mons of the realm." This proper, andempha-
* One peculiar benefit, and according to Montefquieu, one
efficient caufe, of the reprejentati'vec.licira.&.er, is, that it guards
the conftitution againft this very idea of a political Jlandard
upon the meafures of government, attempted by the people
at large ; who cannot form it with accuracy, and judgment,
or make the attempt without anarchy, and mifchief. The
habit of political difaiflion is not for them, and they have put
it into better hands ; though it is, upon great emergencies,
their exclufive privilege, to decide \ by their feelings, more
than by their opinions*
tical
( 33 )
tical defcription of the reprefentative char
which they hold, adds not a fingle feather to the
power of the conftituent, who is bound in every
one act, by the independent energies of that min4
which he has entrufted. The tommons in par-
liament are, as Mr. Burke exprefles it, in the
note juft quoted, by " exprefs image" the com-
mons of the realm.
I agree, that we are the legal organs of their
will j but of their will* as communicated, and
implied, in our own. When I faid, " that we had
" no fuch character as that of their attornies y or
" agents" I meant, and explained myfelf to
mean, that after we took our feat, we could
not be at all bound by their commands, or in-
fluenced by their wifhes, againft our own judg-
ment*; that we could not be difowned, or
abandoned by them ; and (which is the moft
important circumftance) that we could not be
touched by what our predeceflbrs, in the re-
prefentative character which they had exercifed,
had faid, or done, if it had not been fealed by
the legiflature. The cafe put, of the attorney
general, is decifive to mark, not the analogy, but
the diftinction : " If be dies, the fuit proceeds.,
" or may proceed where it left off:" True;
* An opinion countenanced by Mr. Burke, and fupported
with his accuftomed abilities, in a perfonal fituation of his
own, recorded by himfelf in the paffage which 1 have bor-
rowed, and placed at the head of this letter,
F but
( 34 )
but is the attorney general independent, either of
the king's pleafure,or of his predecefibr in office ?
The king may difplace him at a moment ; and
he is bound by the acts of the former attorney
general. Why ? becaufe the king is bound by
them, as acts of his own, through bis own Jer-
vant) which he never can recall. But I con-
ceive it an eflential part of our character, that we
have no fuch fetters upon us-, that we are con-
ftitutionally perfeff ftrangers * to the commons
who fat in a parliament that is no more j and
that we are not evenfuffered by the conftitution
to give them credit for any one of their proceed-
ings, let it have been ever fo wife, deliberate, fa-
lutary, or acceptable to ourfelves.
It was in this view, that I marked the various
inftances, in which, though it might be ex-
tremely inconvenient, the new houfe of commons
were difabled by the ancient, and modern prin-
ciples of parliamentary law, to carry on the chain
of proceeding from the link at which it was left,
when the former parliament clofed : Nor was it
only, as a part of the legiflature, in framing bills,
or in the appointment of committees \ for any other
purpofes j
* In S treated s cafe, the words of Chief Jujlice Rolle are
thefe : " An order in parliament is not binding in fucceffion.
How (hall the next parliament know of a former parlia-
" ment's order?"
f In the cafe laft quoted, the Chief "Juftice argues from the
analogy of committees againft the continuance of an order to
imprifon
( 35 )
purpofes ; but as a houfe of commons tenacious
of all its feparate privileges, that it fuffered, by
force, that inconvenience. What becomes of the
legal organ, when the commitment for a fingle
day will atone for the mod atrocious at of dif-
obedience, or of infult, if the day is clofed by a
difiblution of parliament ? What becomes of
it, when a day having been appointed for the at-
tendance of a culprit, if the day never comes in
that parliament, he, the culprit, is free as air * ?
What becomes of the legal organ when a bill
of attainder has patted the houfe of commons,
after as tedious an enquiry as even preceded this
impeachment ? Could it be fent up, in that
ftate, by the next houfe of commons ? Yet, in bills
of attainder, the very nature of the expedient
points at a culprit of more iniquity, and af-
fumes a demand of more prefliire upon the juf-
tice of the kingdom, than where impeachment
is preferred. Put the cafe, that fuch a bill had
been lent up to the lords, and had pafTed their
aflembly too; but that before the king had given
aflent, the parliament had been clofed Could
imprifcn by parliament, as a court ; and pronounces judicially
that both are at an end when the parliament has been diflblved.
" We do not reverfe" (are his words) " the order of parlia-
" ment, it is reverfed by the parliament's diflblution."
* 17 Cha. U. 1665. The king againft Pricbard. i Le-
vinz, 165. It was held by the court of king's-bench, that
even prorogation had this effect upon a commitment by the
lords for a contempt ; and it was diftinguifhed in that refpeft
from writs of error.
JF2 the
( 36 )
the bill be offered by the two houfes united, in
the next parliament, for the royal affent ?
I am perfectly aware, that in every cafe of
bills, there is a rule which treats them as being
imperfect acts of the entire legiflature, and there-
fore difables the continuance of them, unlefs by
the fame parliament ; but why fliould the dif-
ability of their continuance refult from their
legal imperfection, if the new houfe of commons
may acquire pofleffion of the evidence, or may
agree to the wifdom of the original proceeding ?
Why fliould not they tell the lords" We
" think it fafe, to offer the bill as it ftood in the
" laft parliament > many of us formed that bill j
<f the reft of us are mailers of it by confutation,
" and report."^" No," the conftitution anfwers
them, " you fliall fee, in all your functions,
'* with eyes of your own, before you act in pro-
" ceedings that are intended ultimately for a
<c law." In attainder y the mifchief refylting
from a dijfolution, is precifely the fame in its na-
ture, but heavier in its degree. There too, the
commons are more than accufers upon probable
evidence (which is ground enough to juftify an
impeachment); they are judges, though in a le-
giflative drefs, and pronounce the culprit guilty
of a capital offence, as a delinquent of ftate, when
they pafs the bill. If it lhall have paffed the
lords, that fame affembly, who upon the im-
peachment are judges, and without appeal are
judges
( 37 )
judges again, though in a different fhape, and ju-
dicial afleflbrs to the commons : If they agree, it
is the united, and judicial authority of both af-
femblies. In a bill of attainder it has been found
expedient, (and, though it is a delicate power, I
hope it will never be abandoned,) that a legifla-
tive controul, of more latitude, fhould reach an
offender whom the rules of judicial policy would
exempt from punilhment.
Here, then, is a cafe that cries aloud againft
the power of a dijfohition to fuperfede the whole
(rial, and challenges to the public fecurity, that
no fuch expedient fhould intercept the juftice
of the kingdom ; but who (hall tell me, that
Lord Stafford's bill of attainder could have pro-
ceeded, if the king had clofed the parliament
before that bill had obtained the royal afient ?
I have now difcufied every topic of reafon-
ing which I can recollect, upon the various
points of the debate, independent of that ujage
which is, in other words, the courfe of parliament.
Here it was pronounced a fatal defect in
thofe who rcprefented ujage to make an im-
peachment, and the parliament that gave it birth,
die together, that no clear tenor of ujage could
be found in fupport of their hypothefis.
But
( 38 )
Butfurely, the onus probandi has been fhifted
in this objection, and clear ufage has been re-
quired from our fide of the debate ; though it is
neceffary to require it from yours, which is to
fupport, at lead, a departure from the original
principles of a new reprefentative, unfettered in
every other imperfect proceeding, by the act of
his predeceflbrs who had begun it, when they had
a character equally independent ; and the argu-
ment for continuing this impeachment, be-
gins with no advantage-ground, if it can . be
laid with truth, in oppofition to its advocates,
" You have no clear ufage for continuing an
" impeachment, after evidence, and in ftatu
" quo j that is, where the evidence broke off in
cc a former parliament."
It is an admitted fact:, that impeachments are
as old as the loth of Richard thejecond at leaft.
But from that period, not ONE of them till 1678,
has been continued in the next parliament; and
even to this hour, no ONE impeachment has
ever been taken up in the next parliament, where
afingle witnefs had been examined in the former.
Is negative ufage of this kind, mfignificant, where
the general principle of difcontinuing what the
former houfe left imperfect, is collected from fo
many pofitive inftancesj in oppofition to the
fame topic of Jalus populi, or Jtate-neceJJity ?
Upon
( 39 )
Upon the argument of that captivating plea
which has been ufed againft the king's protection
of his favorite miniiler, I have taken pains to
difpolTefs myfelf of all prejudice j and, like the
conftitution, to look on both fides, particularly
in that view of the fubjel which points at the
dfffolutioiiy as enabling in effect the very fame
-pardon to exift, though in a different fhape, which
the law has di fabled when it can fhow its face
upon the record. But 1 am not fure, that k
would, upon the whole, be wife for the public
fecurity, and for our liberties, if an ad were to
pafs that fhould in future difable tbis effect of a
dilution > unlefs with many guards againft the
abufe of that new arrangement : Of this I am
perfectly fure -, that it may be converted into an
engine of oppreffion, by delays, and changes in
the judge, or the accufer, that would be deeply
injurious to the culprit.
Befides, the whole argument afiumes, that of
courfe the king will make a bad ufe of his -prero-
gative ; and that no houfe of commons will ever
make a bad ufe of their "privilege -," to ufe the
fufhionable word. I am as firm an advocate for
the popular fcale of the government as any wbig
in his majefty's dominions ; but I defire to be no
better whig than Serjeant Maynard, and Lord
Somers, who tempered the Revolution, by thofe
reciprocal guards between the monarch, the
ariftocracy,
( 40 )
ariftocracy, and the commons >, upon ' which
alone, that liberty, which is the animating prin-
ciple of our conflitution *, will for ever depend.
The independent character of each eftate, in
all its branches of power, is the vital principle of
our conftitution. The commons have the admit-
ted power to accujey and recall the accufation at
pleafure ; the lords are to judge, and, like other
courts of legal jurifdiction, by rules of their own j
the king has the exclufive right of pardoning
the fentence.
It is agreed, that as the fame commons may
at any time clofe their impeachment by their dif-
cretion, it muft of courfe drop in the next par-
liament, unlefs revived by the difcretion of their
fucceffors j and that a new election may
return to parliament thofe who did not, and
could not, hear the evidence upon the impeach-
ment; thofe who cannot, therefore, make up
their minds to a judgment, well informed, whe-
ther to retire, or proceed.
* But after all, " we have no conftitution'" that is, we
have not a " body of elements, formed by the people before
" the government was conflituted, and enabling article by
" article what the government mould be ; we have there-
" fore a conftitution to make;" that is, \hepeople are to
make it, according to the rights of man, which are to have
the lion's part in this new body of elements, that are to conlti-
tute a new government. Another jeu d'efprit of Mr. Paine,
inviting us to deftroy the government, in order to have a con-
Jtitution !
3 Ic
t 41 )
It is, it muft be, admitted, that in every func-
tion of power, exercifed by other courts of juftice,
a political demife of the entire court fuperfedes
the imperfect proceeding, and requires a new
one, even if the record is preferved. This ori-
ginates in the idea, that it is not (life to give a
right of judgment, when the parties have not
been completely heard by the fame court.
If a caufe in equity is upon the point of a de-
cree, and the chancellor who refigns gives up
his note into the fucceflbr's hand, it muft be
completely re- argued. In criminal proceedings,
I fhall not repeat the effect of a difability upon
judges, or juries pending the fuit.
But the analogy of the king's demife, and
its fatal effect upon all proceedings at law, be-
fore the act of parliament, has never yet .been
anfwered. Upon what principle was a culprit,
who had been tried upon indittment for high
treafon, protected by that fpecies of diffolution,
from the effect of all evidence, heard, and re-
ceived againft him at the former trial, though
he was called upon to anfwer again ? Upon what
principle, but that of confidering the court as
new to the firft proceeding ? But would a peer,
in thofe days, have been tried by a different
principle for the fame offence, before the houfe of
lords, upon the removal of an indictment follow-
ed by the regal demife ? If he would not, I afk,
why in the cafe of an impeachment for the fame
% G offence,
( 42 )
offence, and that impeachment followed by a dif-
Jolutien of the parliament who try him, unlefs
upon topics of political convenience, which cut
both ways, and are at leaft no grounds of a ju-
dicial refolution ?
Of ujage, precedents are material, and folid
proofs j though I by no means agree to what I
heard in the debate, that of courfe the loft refo-
]utk>n was the law. It is not fo in courts of le-
gal juftice for though credit is given to it, yet
the judges are not bound by it, if it is not law.
But, on the other hand, I can as little agree to a
moft extraordinary pofition which the fame de-
bate, rather fertile in paradox, announced, and
with popular effecl; namely, that we are in a
cafe of " privilege,' and muft look at no jour-
nals but our own. What is meant by the word
" privilege," which is never to look before it
leaps, and is to affirm judicially, where it has no
judicial powers, what a court who has them is to
do, or Jay, without confidering what it has done,
orjaid ; is above my unprivileged apprehenfion.
Indeed, I never heard that a right of impeach-
ment, though it certainly is an exclufive ju~
rifdicJion, was " privilege *" a term which
* The term ftriftly, and originally means " a perfonal ad-
" vantage, by a law, which diftinguimes one man from other
<c men" The Roman laws of "privilege," are " leges de
" privis hominibus latae." Cic.de Leg, It extended itfelf,
in a courfe of time, into office, rank, or any other peculiar de-
fcriptions of men, but retained its chara&er of being merely a
benefit, or gratification; which the right of accujing, by im-
peachment, has never been called, as I recdlleft, before this
debate.
I have
( 43 )
I have underftood as applicable rather to the im-
munities, and protections of the Commons againft
the courfe of Law, or to their claims of honor,
than to a right of accufing culprits before the
public juftice of the kingdom*. But this, at
leaft, is clear j that if Privilege addreffes it-
felf to a Court of juftice, and becomes an
accufer, it muft be governed by the rules of
that Court, not only in the courfe of trial,
or in the Judgment of Law, but in adjufting
the extent, or boundaries of the jurifdiftion.
In telling the Lords, what their Judgment fhould
be upon the Earl of Danbfs plea, the Com-
mons ufurped upon the rights of that Court,
without a fhadow of authority. When they in-
terfered with a day appointed for the difcuf-
fion of his plea, and menaced his counfel, or
friends, if they fhould appear for him in Court
upon the argument of his claim, they added in-
fult, and oppreffion, to an illegal encroachment.
But what is the queftion here ? It is the ufage of
Parliament in proceedings upon Impeachment.
If this Houfe had once voted a judicial
* In the eloquent and fpirited Apology to King James thft
Firit, which Mr. Petyt has recorded, (Journ. Parl. 227.) the
rights of the Commons, in point of privilege, are freedom
of election freedom from arreft and freedom of fpeech ;
to which may be added, freedom of accefs to the King.
G 2 propofition
( 44 )
propofition refpedling the duty of the Lords,
and their uniform conduct, acquiefced in by
the Commons, had been the other way j fhall
we open our eyes to the former, and fhut them
agamft the latter * ?
Even in 1678, the Commons (after they
had ftated the pardon as illegal, in an addrefs
to the King upon the firft rumour of it) exa-
mined precedents upon the effect of this plea ;
and reported, that no inftance could be found
of a pardon fo pleaded. Where could that ne-
gative teftimony be found, but in the Journals of
the Lords ?
This novel idea, of refuting to look at the
Journals of the other Houfe, was not explicitly
adopted by the Committee, and the firft autho-
rity in the Houfe reafoned upon a variety of
precedents taken from that Court j I fhall
therefore afiume the right of examining them
here.
I am, SIR, &c.
* There is a very curious proceeding againft Lord Orrery,
upon the 25th Nov. 1669, by which it appears, that the
Commons took up, as Judges, an Impeachment in the name
of two private accufers, for high treafon, without confulting
fhe Lords.
( 45 )
LETTER THE THIRD.
Qui didick patria quid debeat, et quid amicis,
Quid fit Confer 'if it, quid Judids officium, Ule
Reddere perfonae fcit convenientia cuique.
HORACE.
SIR,
WHAT then does your argument upon
thefe precedents, firfl encounter ? A very,
inaufpicious fad, it muft be admitted; for, by
the lateft Judgment of the Lords upon the very
point itfelf, an Impeachment is terminated by a
dijfolution-y and the culprits are fet at liberty.
The refolution by the Houfe of Peers 1685,
is in thefe words :
" Upon confideration of the cafes of the
" Earl of Powysy Lord Arundel of Wardour>
" the Lord Bellajyfe, and the Earl of Danby,
" contained in their Petitions, after fome debate
" this Queflion was propofed Whether the
<< Order of the i9th of March 1678-9 fhall be
" reverfed
( 46 )
reverfed and annulled as to Impeachments;
" the Queftion being put Whether this Quef-
" tion lhall be now put ? It paffed in the af-
" firmative ; then the Queftion was put Whe-
" ther the Order of the I9th of March 1678-9
f( lhall be reverfed and annulled as to Im-
" peachments. It was refolved in the affirm-
" ative." The Order fo reverfed and annul-
led is in thefe words: cc The Houfe taking
" into confideration the Report made from
" the Lords Committees for Privileges That
<c in purfuance of the Order of the iyth inftant,
<f to them directed, for confidering whether
" Petitions of Appeal, which were prefented
" to this Houfe in the laft Parliament, be ftill
" in force to be proceeded on, and for conji-
f dering the ftate of the Impeachments brought
" up from the Houfe of Commons the laft Par*
" liamenty and all the incidents relating thereto ;
" upon which the Lords Committees were of
" opinion, that in * all cafes of Appeals and
" Writs
* Is it not remarkable, that, aflcrting all Writs of Error,
&V. to continue in the fame ftate, they only aflert the 1m-
feacbments brought up in the laft Parliament, fo to continue ?
The queftion upon both, was as to Writs of Error and Im-
peachments which were in the laft Parliament. But the anfwer
is general as to all Writs, and particular as to Impeachments-, for
this obvious reafon : Impeachments which had not been pro-
ceeded
( 47 )
ct writs of error they continue, and are to be
" proceeded on in ftatu quo as they Hood at the
" diflblution of the laft parliament, without be-
cc ginning <afc novo j and that the dijfolution of the
cc laft parliament., doth not alter the ft ate of the
<f impeachments brought up by the commons in that
" parliament. After fome time fpent in con-
" fideration thereof, it is refolved, that this
" houfe agrees with the lords committees in
" that report."
Upon the view of thefe two refolutions, it
is impoffible, I think, to be denied, that as what
they affirm refpecling impeachments cannot be
reconciled, it is the later opinion and judgment
of this high court tc that a diflblution of par-
<c liament does alter the ftate of impeachments
" brought up in that parliament."
It has been faid That a refolution to annul,
and reverfe a former, does not of neceflity af-
firm any other propofition to be law, but
leaves the law to its fate, independent of that
refolution j that, for example, the doctrine con-
ceeded upon, or upon which no witnefles had been examined
fell within the reafon which applied itfelf to all writs of
error. They were all upon record, and there was nothing
more of them.
G 4 tained
( 48 )
tained in the firft refolution, concerning the
Middlefex election, is open, though whatever
authority may have been given to the doctrine
by that refolution alone, is done away, by the
Jccond.
This way of reafoning may, in fome cafes
have its weight, but it has none upon queftions
like thefe, of a judicial nature ; for in thefe, if
the court gives a judgment, and acts upon it
at one period, but reverfes it afterwards, and
acts upon the reverfal, it affirms, in effect,
the judgment which it reverfes, to be erroneous.
Here too fome of the very peers, at whom the
former judgment was levelled, are faved from it
by the court, in this later judgment, as in the
nature of an appellant jurifdiction.
It is true, the petition of thofe peers had
ftated no ground for difcharge, as refulting from
the effect of the diffolutiw, but had fuggefled
other circumftances. The catholic peers, their
innocence, and the convicted perjury of Oates
The Earl of Danby, relying upon the length
of his imprifonment, (before he was bailed the
i2tb of Feb. 1683-4,) and upon the want of
oath or affidavit againft him at the time of his
firft commitment.
5 But
( 49 )
But the Lords, finding this Order of 1678
in the way, took up the confideration of it j and
by rsverfmg it, they, in fubftance, declared the
Law to be thai: by a diffolution of Parliament,
the right of the Commons upon Impeachments,
which that Parliament had begun, was at an end
in the next.
This reverfal having taken away the Controul
of the Impeachment over the Catholic Peers,
they were left upon the Indictment which had
been removed, by Certiorari, into the Houfe of
Peers, as pending the Impeachment, it could
not proceed at law, and the Lords had a con-
troul over itj but a nolle profequi having
been obtained, the bail taken upon thofe In-
dictments was difcharged upon the 2fth May
1685: Upon the frft of June following, the
bail for appearance of all the Peers who had
been impeached, (the Earl of Danby included,)
and thePeers themfelves, were difcharged; fo that
here, at one blow, was ended every idea of con-
troul in the Houfe of Commons over an Im-
peachment, after a diffolution -, it was ended
by a Judgment of the Lords; and by an aft
in confequence of that Judgment, a releafe of
the culprits. Burnet fays, " The Houfe of
" Commons dropt the Impeachment, and tbere-
" fore the Lords were difcharged." If that
H were
*ere true, it would give additional force tcr the
Order of reverfal, as not being neceflary for
thefe Lords, but as being neceffary, in itfelf, to
form & general rule j (at lead a fimilar argument
was ufed in fupport of the Order 1678 j namely,
that it could make no difference to Lord Stafford
or the Earl of Danby, as new Impeachments
would certainly have been framed againft them;)
but I can fee no trace of the fact which Ettrnet
intimates, upon the Journals of Parliament.
In that view, and if no other precedents ap-
peared, it would feem to be, at the beft, very
improvident, that we Ihould affirm a judicial
duty of the Lords, irreconcilable not only to
this lateft Judgment of their CoUrt, but alfo to
the aft which had followed upon it ; though we
fhould give the name of "privilege' to our in-
terference.
It has been preffed againft the Order of 1685,
that it has retained the legal, and reverfed the
conftitutional, part of the Order 1678, by re-
verfing what relates to Impeachments, alone.
But if the effect of other judicial proceedings
can be diftinguilhed from the effect of an I mpeach-
ment, in clear authority, and found reafoning,
the diftinction gives credit even to the difcrimi-
nating
nating part of the Order 1685. That fuch a
diftindtion between them does prevail, will be
marked in the fequel.
Be this however as it may, there are two
grounds, upon which the later judgment would
become the law of the Peers, in their judicial
character, and of the kingdom.
The Jirft is, that for the Order of 1678, as
built upon the fuppofed analogy to that of 1673,
there was no colour of law.
Thefecond, that after 1685, and after the Re-
volution^ credit was given by the Houfe of Peers,
upon difpafiionate examination, and a judicial
review, to the Judgment of 1685,-*- the Com-
mons acquiefcing, and therefore tacitly approv-
ing that credit. This too will appear in the
fequel.
But firft it may be thought material, to con-
fider the hiftorical, or political features of the
age, in which the Order of 1685 ifFued, and
which have been extremely mifunderftood. I
am,
S I fc,
With refpeft, &c.
II 2
BETTER THE FOURTH.
Jiaud ilia viros vigilantia fugit.
JUVENAL.
SIR,
IT has been truly faid that all thefe Peers,
except the Earl of Danby, were Catholic,
and of the King's religion, who had a powerful
influence over both Houfes.
The two difienting Lords, however, in their
Proteft, threw another imputation upon theOrder
of 1685, which is, that extra-judicially, and
without a particular caufe, it endeavours to alter
a judicial rule, made and renewed after long de-
bate, Report of Committees, Precedents, and
former Rejolutions without permitting the Jam?
to be read.
The firft of thefe imputations (which unquef-
tionably is falfe in the fact) accufes the Lords
of "partiality for the Catholic Peers ; and the
fecond, as far as credit may be given to it, ac-
4 cufes
( 53 )
cufes them of -precipitation ; in which offence
the two Orders may fhake hands together.
But (it muft be remembered) the King, ty-
rant, and bigot as he was, had not offended the
Commons at this period, by meafures of par-
ticular alarm to the eftablifhed religion * j and
that the Commons were extremely vigilant in
their general fufpicions. The Duke of Mon-
wouthy indeed, called it a " pack'd Parliament ;"
and Mr. Hume fays, " it was formed of Tories,
<c or High-churchmen :" It certainly had been
thrown very much into the hands of the Court,
by the furrender of the Corporations, in the laft
reign, and by the odium of the Rye-houfe plot,
which had made the Whigs extremely unpopular.
But there is internal evidence that men of pub-
lic fpirit exerted themfelves with laudable jea-
loufy even in this firft year of James the Second's
reign. I mentioned in' the debate, that Ser-
* We know, indeed, from Sir John Dalrymplis Memoirs,
that before he called his firft Parliament, he negotiated fbr
money with Lewis XIV. and marked, in a converfation with
Barillon, his determined zeal for Popery. But it appears in
the fame papers, that, in Auguft 1685, the King told him of
the alarm he felt upon account of the jealoufies againft him
in Parliament. I am aware that fome doubts have been
thrown upon the veracity of this writer ; but I wifh that
every hiftorian Hood upon fuch a rock : He refers to original
manufcripts in a pullic repofitory, to which ethers can obtain
accefs. His work has been long publilhed, and has never
been anfwered.
jeant
( 54 )
jeant Maynard^, who affifled afterwards in form-
ing the Revolution, who was then adverfe to the
Court, and who had been one .of the Ma-
nagers in fuppbrt of the Order in 1678 againft
Lord Stafford) was in that very Houfe of Com-
mons. We have the note of a Ihort fpeech de-
livered by him in this year, 1685, againft a fup-
ply : I will copy the words, to mark in what
fpirit that great lawyer, and flatefman, then acted.
<c There is already a Law, that no man (hall
<c rife againft the King: Lords and Deputy
" Lieutenants have power to difarm the dif-
" affected. If you give thus a Jupply, it is for
*< the army ; and then may not this army be made
" of thofe who will not take the Te/1 .? Which
< aft is not defigned as a punifhment for the
" Papifts, but as protection for ourfelves and
" giving this money is for an army. I am
<f againft it" Burnet fays, that Serjeant May-
nardy about the fame time, was the chief
opponent of an act, which made words High
Treafon j and fpoke with much impreffion, as
well as gravity, againft this favorite meafure of
the Court : it is inconceivable, that with all thofe
f This extraordinary and fuperior man told King Wil-
liam, at the Revolution, that he ftiould have furvived, if
it had not been forbimtke'Lanu iffe/f; and then, being
towards ninety years of age, had the great Seal put into his
hand, as the firft Commiflioner. His capacity and learning
were of the firft rank, and would have done honour to any age.
jealoufies
jealoufies of the King's partiality for the Catholic
intercft, with his memory, too, of this Order in
1678, and of the advantage it gave to bim againft
a Catholic victim, he fhould have feen the Lords
reverfe the Ofder in favor of Catholic Peers,
without one complaint, unlefs he had conceived
the Order to be illegal, even againft thofe who
were the immediate, and, at leaft, nominally, the
fole objects of it.
But I muft beg to infift, that in thofe times,
and in this very Parliament, were fome good,
and found Proteftants. The refolution they
had formed, was to admit of no alteration that
would enable a Catholic to enjoy place, or pre-
ferment, of any kind, under the Government.
The King had avowed himfelf a Catholic, had
gone openly to mafs, and had put Catholics into
his army in Ireland. We fhall fee what an op-
pofition it produced. Oates, however, had been
convicted of perjury, and his conviction ((landing
upon evidence unimpeached) had the effect of
difcrediting the rumour as to the Popifh Plot,
upon which Lord Stafford had loft his life, the
victim of that perjured mifcreant. This Peer's
execution is more a part of the Order in 1678,
than has been generally underflood, as I fhall
prove hereafter ; but even after that conviction
of perjury, fo averfe were the JVbigs to the dif-
credit of a popular, and (as they conceived) a fa-
lutaxy
lutary fiction, that fome of the Lords proteftecl
againft the reverfal of Stafford's attainder, and
the Commons would not pafs the Bill ; infifting,
that it was a legal, andjujl attainder. This I men-
tion as another trait of their jealoufy againft the
Catholic prejudices of their King *.
Yet his find addrefs to the Parliament, of-
fered, in very folemn terms, to guarantee their
property, and religion. The necefiity of that
fraud indicates that he was in fome fear of this
very Parliament, for elfe he would have fpoke out*
But a circumftance arofe, which is decifive to
fhow a jealoufy of the King, and a public fpirit
in many of the Commons. A full Committee
of religion fat, and pafled a vote, nemine contra-
dicentey upon the 27 th May 1685, for the de-
fence of the reformed religion of the Church of
England ; and for an addrefs to have the Laws
put in execution againft ALL Difienters WHAT-
SOEVER. The argument in the Houfe againft
this refolution was plaufible enough, and pre-
vailed; but the addrefs, voted afterwards, was
not fervile, for though it exprefied a reliance
* Dalrymple, in his Memoirs, gives the matter-key to this
dilemma in politics. " Reparation could not be made with-
out throwing difgrace upon four fucceeding Parliaments
" upon the whole party of the Whigs and upon many of
" the Tories; nor could popifh vi&ories, with fafety, be al-
" lowed in a popifh reign.'* .
upon
upon the King's word, it marked the eftablijhed
religion, as dearer to them than their lives
words (as Burnet, and Hume fay of them) very
unacceptable to the King.
The next event was Mcnmoutb's Rebellion,
in which the Parliament were not more loyal,
than it became good fubjefts to be.
Jeffreys indeed, at this time, became a per-
fonal favorite of James, and gave difguft by his
licentious conduct, as well as cruelty in judi-
cature.
In the month of Nov. 1685, the Commons
put an affront upon the King, almoft unex-
ampled, by adjourning the confideration of his
Speech from the 9th to the i3th. In that Speech
he had offered an apology for the Catholic
officers ; and had folicited a perpetual aid.
When the day arrived, the Commons voted a
fupply for frejent occafwns -, but would neither
fpecify the amount, nor the ufe to which it was def-
tined. Upon this, a long debate had arifen,
and the numbers were 250 againft 125 in favor
of the Whigs. The very fame day they divided
upon the moft conftitutional of all Queftions
whether to poflpone the/#p^>/y, or grievances , -
and it was carried (though by a fingle vote) that
I they
( 5* )
they fhould firft confider the popijb officer f in the
finny. It was then voted" That this reception
lc of popifh officers into the army was againft
c Law to addrefs* the King for their inftant
" removal, and a Bill for their indemnity, as to
" the time paft." Upon the Queftion refpec"l-
ing the amount of fupply, Nov. 16, 1685, the
Court was out- voted, and j- 700,000 /. fubftituted
for 1 200,000 /.
Upon the debate reflecting the concurrence
of the Lords to the addrefs againft the popifh
officers, the Court prevailed the King was,
however, piqued^ ufed peevifh language, but
ftill dwelt upon his promifes. At a later period
the Commons unanimoufly voted an addrefs
to him the Lords took up the fame topic of
the popifh officers the King was prefent, and
very much hurt at their freedom.
Fox, then paymafter of the army (and the
lineal anceftor of your friend, who will make
that name immortal), was turned out of his
employment, for his vote againft the Court ; and
the Bijhcp of London was removed from the
* The Addrefs is decent and fmooth ; but more was
meant "by the words than what ftriftly they exprefled.
f This was loft by his continued prorogations, before it
had been fettled.
Council
( 59 )
Council Board : (We have beard of fuch mea-
fures in later times.) In the debate againft the
repeal of the Teft, upon which the Bifhop had
given offence, 'Jeffreys the Chancellor, who had
infilled, that general compliments in the addrefs
had precluded oppofition to the meafures of Go-
vernment, was overborne by the Peers, and
proved himfelf a coward*. (Cruelty, and cow-
ardice always go together.) Upon this debate,
the Earl of Revon/hire had faid, with a very
high-fpirited farcafm " That he was for giving
" thanks, becaufe the King had fpoke out fo
c plainly, and warned them of what they might
look for f."
A little after this time, Lord Delamsre was
acquitted by the Lords, partial as they were, (for
it was even a partial fummons,) without one dif-
fenting voice though Jeffreys, a perfonal enemy
of the culprit, was the High Steward though
it was a favorite profecution of the King and
though Finch, the King's confidential advocate,
(confirmed in it by Jeffreys) aflerted, that one
* It was a new fpeftacle, to fee Bifhops oppofing the
King's will, and Jeffreys making apologies. Dalrymple.
\ He had been very keen againft the Earl of Danby, in
the Houfe of Commons, but he never complains of the Order
1685 : 'he was prefent when it palled, without a divifion ;
An$l was not one of the diffenting Peers, who protefted.
J % winners.
witnefs, with preemptions, would convidl of
High Treafon*.
I have thrown thefe paflages together, in
order to mark, that whatever general defcription
may have been given of this period, it was by
no means without energy, and public virtue.
It was in a part of this period it was after
the popifh officers were put into the army that
the Order of reverfal (1685) took place, which
took away the " Palladium'' (as it is now called)
of the Englifh Conflitution. And I again afk,
what lethargy pofTeffed thofe who were alive to
other jealoufies, that, aware as they muft have
been of the effect which the Order of 1678 pro-
duced, in cherifhing that popular fable of the
Popifh Plot (which they refufe to difcredit by
reverfing Stafford's attainder) aware of the im-
mediate benefit refulting from this Order of re-
verfal to the Catholic intereft in the perfon of
thofe Peers they utter no complaint againft the
Houfe of Lords for this aft, and, by their fi-
lence, brand the Order of 1678 themfelves ?
Nor can I top often imprefs upon the public
* We have the King's remark upon this, in one of his
private Letters " He had good luck, and juft Judges."
JJut Lord Dclamere was made his bittereft enemy by this tria^.
Clar. Diary.
attention
attention fo curious a fact, as the attendance, and
popular exertions of that very Serjeant Maynard,
and in this very Houfe of Commons, who had
faid againft Lord Stafford " That what has
" been once upon Record in Parliament, may
<c afterwards be proceeded upon ; and that if
" there was no precedent, he hoped the Lords
'" would make one."
I am,
S IR,
With great refpecl, &c.
LETTER THE FIFTH.
Atque fatas, alio vidi hunc traducere, mefTes.
VIRGIL.
S I R,
TH E Order of 1678 has been ftated thus -
'* It was founded upon a juft, and liberal
ct affinity of principle between Writs of Error,
tc and Impeachments between Prorogations,
" and the DifTolution of a Parliament. The
" particular cafe had not arifen till 1678, but
" the Law of the Peers and Commons then
<e united, was declaratory of antient principles
" marked in the refolution of 16735 and flood
<e upon the obvious line of difference between
t{ every legiflative, and every judicial proceeding,
" It matured the feeds of a powerful, but con-
" cealed analogy in the Order of 167.3*. It
" gave to appeals and impeachments a firm con-
" neftion, by calling them judicial; and prompt-
" ed this younger plant, the impeachment, (with
" all its indiflbluble energies,) to form as deep,
* ** Que? max ccelo properandaferinn
Maturere datur"
" and
( 63 )
<c and as tenacious a root as the other. The
" union of both houfes too, .gives more weight,
" and fanction to the order, becaufe, at this very
" time, they were differing upon many other
" conftitutional topics. The refolution was en-
" forced againfl the Earl of Danby, who was
<f in the tower five years, and folicited, in vain,
" the courts of law j till Jeffreys came, who had
" the courage to bail him. It was enforced by
" the folemn trial of a peer, and his execution.
" Thefe were times of popular jealoufy, and fer-
<c mentj but from the violence of this party -
" rage, upon very honourable, though miftaken
" jealoufies, we can trace the liberty that we now
" enjoy. Mr. Juftice Blackftone has marked
" the year 1679 for the beft in the annals of the
" conftitution. An abufe of this power, in the
" cafe of Lord Stafford, is no proof againft the
" legal, and conftitutional validity of the power,
" itfelf. The Earl of Danby had no connection
" with Staffer d y or the other popifh lords. The
cf king juftified him, adding terms of the mofl
" offenfive infult, and illegally pardoned him.
* c The lords attempted a compromife the
" commons were firm -, they rejected the par-
" don they turned with fcorn from the com-
" promife they perfevered againft the culprit,
" and carried their point, by making the lords
" firft give an order for his impeachment, and
" then pafs a bill for his attainder, if he ftiould
14 " not
( 64 )
" not appear upon a certain day." To every
part of this ingenious, and popular ftatement I
fhall give an anfwer.
Thefirft, and main ftrength of it, is that/>r;-
cipltt as it is called, which the refolution, or
judgment of the lords in 1673 had pointed out;
and which, though pointed fpecifically at writs
of error and appeals, (continuing from one fef-
fion to the next,) extended itfelf to the doctrine
of continuing impeachments, in whatever ftagc
of the evidence they were left *, and continuing
after a diffolution*
When the unexampled, and irrefiftible elo-
quence, to which I have more than once alluded,
was difplayed upon the general policy of conti-
nuing the impeachment, I was loft in admiration
of fuch talents, and public fpirit \ but when I
faw that fame eloquence condefcending to pick
up the order of 1673, as an auxiliary fupport
of the right which he aflerted, I thought the
materials unworthy of the ufe to which they were
applied; and very inferior to the artificer. The me-
taphor of t\\ejeed> which he took from the bigheft
* The refolution of 1678, aflerted, nothing of impeach-
ments in general: It aflerted in fubftance only this : " the
(f impeachments of the loft parliament, upon which no evidence
f( have been taken, itand upon the fame footing as all writs
" of error y which require no evidence to fupport them, but ex-
f* ciufively depend upon the record.'*
authority
njttbe'rity in the Houfe, and from the moil re-
fpectable of men, reminded me of that miracle
which I have placed at the head of this Letter;
and which, to do hirrrjuftice, the Poet reprefents
to have been a work of enchantment.
In the firft place, it was truly, and power-
fully obferved, that amongfl the obfoiete pre-
cedents, to which that refolution has referred, not
one impeachment is to be found, though num-
berlefs impeachments were then upon the Jour-
nals of Parliament ; and though fome of them,
at lead, had not proceeded in faft y as I had
the honour of proving to the Committee by two
precedents, to which no anfwer was given j one
of them in 1624, the other in 1660. The
effect of them I fliall not again defcribe in this
branch of the argument if at all.
But what is profeffed by the Peers in the en-
quiry which they inftituted 1673 ? A defire to
know upon a view of precedents, " whether after
" an intervening prorogation, Writs of error
" and appeals could proceed/' The words are
thefe : " nth March 1672-3 Ordered,
" That it be referred, &c. to confider whether
<c an appeal unto this Houfe, either by writ of
" error, or by petition, from the proceedings of
'* any other Court being depending, arid not
" determined in one feflion of Parliament, con-
K " tinue
C 66 J
" tinue inflate quo unto the next feflion of Par-
liament, without renewing the writ of error, or
" petition j and report their opinion unto the
Houfe."
The anfwer given to this clear and fimple
queftion, begins (to apologize, I imagine, for
the various precedents to which it refers, and
which have no application to writs of error,
and appeals) by mifreprefenting, and widening
the queftion referred j which the Lords Com-
mittees defcribe as having extended itfelf, in
tuords, to " any other bufinefs wherein their Lord-
" fhips act as a Court of Judicature " and they
fubjoin to the words " without renewing the
" writ of error and petition" the words follow-
ing " or beginning all anew, 11 as if they had
flood part of the origi nal queftion.
Then, after dating the various precedents, they
report thus : " Upon the confideration of thofe
" precedents," and of feveral others mentioned
" at the Committee (but which never appearing,
are as if they never exifted), they declare it as
their opinion, " that bttfine/es" (here they drop
the words as a Court of Judicature) " depend-
" ing in one Parliament, have been continued to
" the next Seffion of the SAME PARLIAMENT j"
(words of no trivial emphafis!)j " and that
proceedings thereupon have remained in the
'' fame
( 67 )
vc fame ftate in which they were left." I have
examined, carefully, all thefe precedents, to
which the order of 1673 has referred ; and when
I reflect upon the ufe that has been made of
them, as proving that impeachments after a dif-
folution of parliament, even where evidence has
in part been heard, can be taken up, from the
point, at which they left off, in the next parlia-
ment, I have no power of language to exprefs
my aftonifhment !
There is one general remark, which pervade*
the whole firing of them, and it is, that in all of
them the continuance is by order, Jpedally direft-
ingit; which not only does not prove continuance,
to be of courfe but proves the dired reverfe.
It feems to have been the regular habit, in
writs of error, upon the firft complaint, that a
jrire facias * iffued, returnable the next parlia-
ment f. This is properly no adjournment -, it is
rather
* What is this but faying " We fliall take it up, the next
Kt parliament?" for they could not iflue the fdre facias.
*rhe party mufl go to the proper court for that v, rit ; and he
could not take it out till the day of meeting at the next par-
liament was fixed) for it muft have a return certain. Is it
not then faying, " bring the defendant in error to us the
'* next parliament, by due procefs, and we fhall begin what
*' he defires of us, then?''*
f It is almoft a diftinftion without a difference, between
the " next parliament," in very ancient periods, or the " next
'* f e Jfi CK >" f a modern parliament, in point of delay ; par-
liaments were then very fhort, and very often held. But,
on the other hand (fays Lord Hale), " the fejfions were then
*' fo fliort, and fo uncertain, that a new feffion might end
" before the day affigned for the return of the writ."
t K 2 Thefe
( 68 )
rather a notice when proceedings will be com-
menced. But in fome few of the cafes, it is
true, that an adjournment is ordered. For ex-
ample, i R. i. N 28. day was given to both
parties till next parliament , with all advantages,
and the matter to ft and as now it doth. In one
of thefe precedents \.\\tjcire facias being returned
by a tarde venit, another Jclre facias iffued re-
turnable the next parliament; fb that 3>fcire fa-
cias, or the firft act of procefs, always gave this
interval, to the next parliament. Many other
precedents, quoted by Lord Hale, mark the fame
idea j indeed, he adds, that a Jcire facias in thole
cafes did not, in fact, ifiue till the next parliament.
Of precedents, applicable directly to writs of
error, there are only eight between the firft of Ri-
chard II. and the third of Henry 7. j of thefe
eight, there is only one, in which proceedings have
been bad upon the return to ajicire facias, and aday
then given to both parties till thz next parliament.
It further appears, that upon the 21 ft of
James, in a writ of error againft a judgment
from Ireland, a. fcire facias iffued, returnable the
of parliaments and upon the fame day
Thefe differences afford a very natural reafon, why the lords
committees in 1673 (though moft of their precedents apply,
as far as they go, to a new parliament) confine the report em-
phatically to a " new feffion of the fame parliament." " In
" the reign of Charles I. (according to Lord Hale) the return
" begun to be changed; and was uniformly "in prtefens
" parliamentum."
in
in which that order ifiued, Lord Bridgwater (it
leems) reported from the committee for peti-
tions (thofe of appealj I take it for granted), that
they fhould be retained in jlatu quo, until the
ncxtjeffion of parliament.
Eight other precedents relate entirely to an
original judicature in the houfe of peers 3 and
one of them, fo late as the year 1671, is a com-
plaint by a wife againft her bujband who is no
peer -for ill ujage ; when the further debate is
adjourned to the firfl Tnefday of the nextjeffion.
Five of thcfe eight are as far back as the time of
Edward I. In one of them, the king of Scotland
perceiving judgment likely to go againft him,
defired refpite till the next parliament.
All the remaining precedents are two> and
they alone are precedents of criminal accujaticn ;
but neither of them, impeachments, or any thing
like them. They were both in the time of Ed-
ward the Third: One, the cafe of an arch-
bifliop, who was arraigned at his own defire, be-
fore the peers j upon which arraignment, certain
peers were to hear his anfwer, and the effect of it
was to be debated in the next parliament.
In the other, a culprit having been accufed
in the former parliament (but it is not flated, by
whom,) of extortion a commiffion is given to
one peer, and the chief juftice, to examine the
bufmefs, and they report that by eight inquefts
he had been found guiltlefs.
t K j All
( 70 )
All thefe precedents are introduced by a refer-
ence to a writer vvhofe name is Crompton, for the
form of &Jcire facias returnable the next -parlia-
ment; fo that evidently they are intended as pre-
cedents applicable to writs of error> and appeals,
alone.
" But, in the ar.fwer of 1673, it is evident,
" that by the words <s other bufinej]fes" the
tc lords' committees mean to determine, the
" continuance of impeachments from feffion to
" feffion, and that, in parity of reafoning, they
* c mud proceed after a diffolution, in the next
< parliament"
I beg leave to deny, and fhall endeavour to
refute, this "parity of reafoning-" but if it fhould
even be juft, what could be more furreptitious,
and irregular, than the conduct of the lords' com-
mittees in 1670 ? (and which is, at leaft, evidence
in fome degree, of their fufpicion that they had
no ground for the report of their judgment, as
built upon that of 1673.) They report in one
day* they never .produce the order of 1673
(which they call a "judgment"), or any one pre-
cedent contained in it ; and would yet imprefs
upon the lords, by the nature of their general re-
ference to it, that it was an adjudication of the
very pcinf at iiTue ; namely, in other words, that
it adjudged cc writs of error, and appeals, to con-
" tinue in ftatu quo, after a diffolution"
* The reference of i ith March 1678, points only at ap-
peals, and is a reference to opinion ; i~th March > a new refer-
ence is made as to the mere iiate of the impeachments tyought
up iu the Jail parliament, which is a reference tofatf.
If the opinion which they communicate offi*-
cioufly as to the Law of impeachments, though
it is not referred exprefsly, even by them, to that
Judgment in 1673, muft be taken to have been
comprized within the effect of it*, furely it
became them to lay the Judgment itfelf be-
fore the Houfe, in order to have that point a
little better underftood.
In truth, nothing is more certain, than, frft,
that by the Judgment in 1673 a new Law was
made refpecting writs of error, and appeals,
after a. general prorogation. Secondly, that after
* " Their Lordfhips, upon perufal f the Judgment of
* this Houfe of the zpth March 1673, are of opinion, That
* in all cafes of appeal and writs of error they continue,
" and are to be proceeded on in Jl&tu quo, as they flood at
" the diflblution of the laft Parliament, without beginning
*' de KOVO. The Judgment and proceedings being large,
" are omitted to be repeated, the Journal of this Houfe
** being ready wherein that Judgment is entered.
" And upon confideration had of the matter, concerning
" the ftate of the impeachments brought up from the Houfe
'* of Commons the laft Parliament, and all the incidents
" relating thereto, their Lordfhips find, that the five Lords
" who are in the Tower, are upon general impeachment ;
" and the other Lord is impeached with fpecial matter
" affigned.
" And their Lordfliips arc of opinion, That the diflblution,
" of the laft Parliament, doth not alter the ftate of the Im-
ff peachments brought up ly the Commons in that 'Parliament. ' '
zdif-
a diJTolution, they were ft ill confidered as deter-
mined, and abated, without an idea that, by
this Judgment of 1673, the Lords had affected
that queftion.
For this I take the word of Lord Hale *, in
two Manufcript works evidently written before
1678 and after 1673. They are works of me-
thod, and fyftem, intended for pofterity, and
written by the mod enlightened fcholar in his
profefllon. A more difcriminating head in the
arrangement, and application, of fcience never
bleft the world.
:'*
He could have no bias in what he wrote,
and it is written without reference to the analo-
gy between Writs of Error, and Impeach men ts,
which analogy had never ftruck him as refulting
from the Judgment of 1673.
* In i Ventris, 31 Eafter-Term 1669, it was held, That
a Writ of'Error returnable the next Parliament, was not good ;
and that no fuperfedeas even to a certain day, if remote, could
ever tie up the Courts below. It is curious, and very inter-
efting, to fee the uniformity of this great man's opinion
upon the fubject before us. Anonym. I Ventris , 267. He
(ays, in his judicial character " It has been taken, that a
" prorogation determined a caufe in Parliament;" but the
Lords have lately determined otherwifs. The date of this
Report is 1674.
13 His
( 73 )
His propofitions are in fubftance thefe: "that
<c before 1673, writs of error, unlefs continued
* c by^mW prorogation of thole writs, abated at
" common law, in the enfuing/$?<7#;" and he
denies the legality of a fuperfedea s upon a writ of
error when there is no parliament, or of afuper-
fedeas directed by the lords, pending a writ of
error " //// the next parliament, becaufe (he
" fays) there is no certain time when parliament
* e fhall be fummoned, pojfibly not in Jeven years;
" and the/uperfedeaSj if indefinite, would be an
" intolerable delay to juftice : that he had
" known it fo determined by the lords in his
(( prefence, when Eridgman was keeper " which
muft have been between 31 Aug. 1667, and
the i7th of Nov. 1671: that lately it had
been refolved by .the lords, upon the view of pre-
cedents, (alluding evidently to the order 1673,
when he was chief juftice,) " to confider the writ
" of error, after a general prorogation, as in
" force." Many of thofe precedents he quotes
himfelf, though for other purpofes; and he adds
others of a fimilar import] " that after a diflb-
tf lution of parliament, writs of error, and appeals,
" completely abate * j that no remittitur of the
* This was lanu before 1673, as well as after it. In Detbie
and Bra<iburn Sir T. Raym. p. 5. Hilary term 1660, it
was the very point adjudged. As a general propofiti . is
Jaken for granted.
J L <f record
( 74 )
" record is neceffary, but the fuggeftion is
<f enough in the court below i that he has
". known it often fo ruled."
I rely more upoq this dire ft affertion of fo able,
fo correct, and fo honeft a judge, for the law,
and the/## which he affirms, than upon all the
numerous reporters to the fame effect j efpeci-
ally as they are in general confufed, and as the
hiftorical parts of them, upon this topic, are too
often either inaccurate or mifunderftood.
There is not ONE inftance the other way.
What pretence, therefore, could exift in law,
to act upon the writ of error and appeal, (at
any one moment before* the order of 1678,)
after a dijfolutlon of parliament ?
But it may be faid " how can prorogation.
" be diftinguilhed from diffolution, in its effect
" upon writs of error, and appeals ?"
* The two long arguments which are given to the Ear! of
Danby, are fo full of error in fatt, that it is impoflible he
could have delivered, or publifhed them, as we find them.
He fays, for example, " that Lord Hale refilled the order
" of 1678, upon the bench ;" and even tells us what he faid
in defiance of it; though Lord Hale had been dead more
than two years, when the order was made. He died upon
the 25th of December 1676.
The
( 75 )
The anfwer may be .defcribed as technical,
but it has its root in the conftitution. It is,
that when the lords and commons are diffohed,
the court of judicature exercifed by the lords,
is terminated, and the revival of parliament
forms a new court of the lords in parliament;
nor can any one reafon of principle be afiigned
for difabling the lords to continue their pro-
ceedings on a bill, which does not apply to them
in judicature. It is true, that as to the com-
mons, they may be different men by the new
return, but the lords are the fame, except the
fixteen elected peers j and except as to new
peers, who may at any time be called up to the
houfe. It is no lefs true, that in prorogations,
the fuit may be equally retarded ; but the delay
of prorogation is never indefinite upon the face
Df it, as it names a day for the next meeting.
Lndeed, I take it, the indefinite period of this
interval, between one parliament and the next,
vas a forcible ingredient in the policy of that
aw, which abated every thing judicial by a dif-
r olution. Lord Hate's reafoning is always forcible
jpon this topic, and he gives many illuftrations
:>f it * : When the houfe of lords iilue a writ
* It is ruled by Lord Hale, in his judgment 1673, Cojlen
nd Sedgewicke-~ That if the writ is tefted at the laft proro-
;ation, returnable at a day certain, and a term does not inter-
ene, it fuperfedes execution ; but econtra, if a term in-
ervencs.
( 76 )
of execution upon the original judgment, they
do not make it returnable in the next parlia-
ment, but returnable in chancery, or in the court
from which the appeal or the writ of error iflued,
for prevention of delay. It is now eftablifhed law
(with a view to the fame policy of preventing
delay), that if, between the tefte and the return,
of a writ of error, a term intervenes, execution
proceeds.
In fhort, this guard againft the delay, is one
great feature, (and furely it. is a liberal one,)
that protects even a party in a civil action, who,
by the judgment of an inferior court> has ob-
tained a right.
But another analogy has been aflumed, which
is between errors, or appeals, and impeachments ;
and here more is meant than meets the ear in the
words of the judgment 1673: For we are now
told " ^hat judgment was formed in part, upon
" a variety of precedents refpecting criminal
cc accufations in parliament againft culprits of
" ftate. The anfwer, therefore, is a little wider
" than the queftion ; and adds, " other bujinefs
" in judicature," which takes in impeachment
<f as another judicial proceeding. The main dif-
" ference being this That in judicature, the
" lords are the fame court, but in legiflature,
<f the commons may be different 5 a diftindlion
" taken
( 77 )
fc taken by Lord Hale himfelf. It is true, that
<c Special orders do appear to have continued
<f fome of thofe proceedings, but that was only
" for precaution j and if the power to continue
" an impeachment be once admitted, the want
" of fpecial order will not weaken the right of
(C demanding its continuance."
Upon my word, Sir, the refinement of thefe
analogies, out-refines all the " quibbles of the
" lawj"-r-but a few words of plain fenfe will
mark the difference. In writs of error, the
mere law is upon the record j and there is no
evidence begun, which is to be continued. In
appeals, there is, or may be, matter of evidence;
but there, from the very nature of the ap-
pellant court, viva voce evidence could never
in that fhape have been delivered to them.
But upon impeachment, the lords have taken
evidence viva voce ; and can it be faid that
proceedings upon that evidence, well, or ill re-
corded, or not recorded at all, but in their me-
mories, after an interval of ten years, can be at
all refembled to any part of their appellant ju-
rifdiction, except in the general inconvenience of
delay ; and which, I apprehend, was a main
ingredient of the common law, that abated an
appeal even after prorogation.
13 But
( 73 )
But another anfwer is, which has in part been
anticipated The accujer is no more. Every one
of thofe who impeached may be out of the next
parliament ; and in that view the analogy from
legiflative proceedings appears to me irrcfift-
ible. A judgment upon evidence is to be exer-
cifed by thofe who may be abfolutely new to it ;
and cannot, therefore, give their predeceflbrs
credit, for their floating memories of any one
fact, or impreffion, even if thofe memories could
be reached.
( 79 )
LETTER THE SIXTH.
Horum Jimplicitas miferalilis ; his furor ipfe
Dat veniam; fed pejores, qui talia verbis
Hereulis invadunt, et de virtute loquuntur,
Sed quando uberior vitiorum copia ? quando
Major avaritise patuit iinus ?
JUVENAL.
SIR,
IF ftrefs can for a moment be laid upon the
" Jalutary conferences of the order > in what
" befel the Earl of Danby himfelf," who, as it
has been argued, was the main objeft of this
public fpirit, in the commons, let us examine
the faffs upon record , Jirji^ as if no attempt had
been made by his perfecutors to implicate him
with any part of the infernal clamour againft the
popifh plot j and then, with a view to their ufe
of that plot, as criminating him.
I can venture to aflert, upon a deliberate view
of the fubjecl, that almoft every meafure adopt-
ed againft him by the commons in parliament,
before
C so }
before and after the refolution of 167? (levelled
alfo at him, as well as the catholic peers), was
an outrage even upon the forms and the decen-
cies of juftice ; in a houfe of commons too, as
thoroughly packed by the Duke of Monmoiith, as.
the firft parliament of 1685 could have been by
king James.
For example they accufe him of treafon, as
refulting from a charge, which, if true, does not
conftitute that offence. This, indeed, had pre-
cedent for, it in the perfecution of a better man
(Lord Clarendon) , but that precedent was ini-
quitous.
In one of the conferences, to juftify a bill of
attainder againft him, if he fhould not appear
upon a given day, Wmnington has thefe words :
" This is no flight of innocent Mofes from the
<e Egyptians, but of guilty Cain." * Sacheverel
fays, " It is but a bill of fummons, to keep him
erfefling his treafons abroad."
* By the way, this eminent patriot, between Dec. 1678
and Dec. 1679, received for his good fervices to Louis XI f.
juft 300 guineas ; and apart of that fervice exprefsly (which,
It feems, Montagu was to manage) was, " to ruin Lord Dan-
*.' ly." In the lift which Barillon fends to his king, having
mentioned Harbord, he adds, " Qui a beaucoup contribue a
'* la mine du, Comtt de Danbi, 500 guinees." Dalrymple's
Appendix.
They
( 81 )
They prejudge the juftice of the Court (be^
fore which they accufe him), upon the legality
of his defence ; affirming to that Court (by way
of tf privilege" I fuppofe, yet in round, and ju-
dicial terms) that his plea " cannot be received."
But nothing, in the whole tenor of their per-
fecution, is more an infuk upon the feelings of
men, than what happened as to his plea of the
pardon, compared (ad homines) to their own
conduct in vindicating the impeachment ;
<f We can take every article of it for granted
cc (fay the Lords), but it amounts to no treajon"
<c Hear us, however, to that point (fay the
" Commons) before you determine it."
Yet when the pardon is pleaded (as to which
they had been themfelves cautious enough to
examine precedents, and could only difcover,
that in faft the King had never made this ufe
of his right), they are in a rage againfl the
Lords, for appointing an early day upon which
that plea fhould be heard ; they demand an im-
mediate Judgment upon it, which is dictated by
them; and threaten with all their fulminated
vengeance, the advocate or friend of the Earl,
that ftiall dare to fupport his plea at the bar of
the Court, who are his only Judges, and who
have ordered that \\ejhall be heard.
* M When
( 82 )
When the Earl complains of this to the
Lords, they afk the Commons if fuch a vote
had pafied , and receive no anfwer !
The difunion of the two Houfes upon other
topics, and their union upon this legal continu-
ance of the impeachment after a difiblution,
have been flated with an air of triumph in the
debate ; as if, in the firft place, it were a fatt
clear of any doubt j and as if, in the next, it
proved the force of truth, which could fo unite
thefe competitors, when fuch an effential point
of the Conftitution was at ftake. But there is
no fuch faff, and there could be no fuch /-
ference from it.
The Lords begun with fpirit, but they were
intimidated in the end by the popular flame, and
their concefTions, before they legiflated this Or-
der> as well as after it, were evidently obtained
by durefs upon their will. Of their pufillani-
mity, the Journals have recorded feveral glaring
proofs.
For example, they attempt a compromife,
when the Commons are goading them to the
impeachment, and refufing to let them bear
the defence in bar : They recommend his ba-
nifhment, and fend them a bill for that pur-
pofe, to which the Commons reply in a Bill of
attainder,
( 83 )
attainder, if he fhould not appear upon a given
day : The Lords are terrified ; they pafs the
Bill j and it obtains the Royal aflent.
In one of their conferences, 1 2th April 1679,
they meanly congratulate the Commons upon the
point they had carried in this very doctrine of
continuing the Impeachment, as if they had
helped them to it j which unqueftionably was
true. The Commons anfwer with more fpirit,
than veracity (but fpirit is often better in po-
litics), " That it was a Right for which they did
<c not thank them, founded upon the courje and
" ufage cf Parliament \"Jplendide mendaces.
In this conference Lord Shaftejbury (the
wickedeft, and the ableft of incendiaries) takes an
active part; he contradicts the Lord Privy
Seal-, takes the popular fide (with his tool the
Duke of Monmoutb * at his elbow) in favor of
the Commons, but with fome degree of ma-
nagement, as he was then tampering at Court,
where he and his party, then mod inveterate
enemies to the Earl of Danly y upon the 2ift of
that very month, were admitted with open arms
into the King's new Council. What hopes for
the Earl ofDanby then ? But indeed what juf-
* They often remind one of the Cardinal de Retz, and
<he Due de Beaufort.
* M 2 tice
( 84 )
tice was ever done to him for an imprifonment
five years in the Tower, without profecution,
by thofe who turned a deaf ear to his demand of
it, and punifhed him in part without hearing
him, by the imprifonment itfelf.
But is it unfair to mark, with how much dif-
ingenuity they delivered him up to the rage of
the times, (little fhort of a national delirium,)
againfb the Popijb defign, that political fable (of
Lord SbafteJ&ury's contrivance, as it is generally
believed), which began, continued, and ended
in a fyftem of the mod complicated perjury that
forms of juftice ever fanclified, and of murder
the moft atrocious that ever had the mafk of
judicial folemnities ?
But let us take the impeachment itfelf, and
read the fourth article of it, which imputes to
him * e That he is Popijhly affefted, and hath
" traiteroujly concealed the late horrid plot ;
< c that he hath fupprefled the King's evidence,
<{ and hath difcountenanced the witnefTes."
In the very firft reafon againft even hearing
him upon his pardon, the Commons tell the
Lords " That his ufe of it, and the long pro-
" teftation by which he introduces it, are an
< c afpeifion upon the King, as if his Majefty
5 C had commanded or countenanced his crimes,
" particularly
( 85 )
fc particularly that of fupprefilng and of dif-
C( couraging the difcovery of this plot."
If it be faid, (and it may in part be faid with
truth,) that all this was thrown in as an " auxi-
< f Hary, but the main offence was the fale of
< c his matter's honor, and regal truft, proved
" againft him by his own Letters j" what a foul
character does it give to this profecution, that
it (hould have been fo tainted by thofe invidious
topics, and prejudices, for the purpofe of height-
ening the popular odium to which he was then
devoted !
In truth, all the other articles (except that
refpecting the fale of the Peace) are fo loofe, and
fiimfy, that not only the Lords did right in re-
fufing to commit him *, upon charges, which, if
true, were no trealbn ; but as to thefe other arti-
cles, might have refufed to act upon them, as
having no folid ground of any kind, even for the
charge of mifdemeanours.
It is curious to obferve, that in Mr. Poule's f
accufing fpeech to the Commons, he charges
him
* Yet the fame Lords pafTed a Bill of attainder, to make
him appear, though at fir they would not commit him.
f This gentleman has the honor to be much diflinguifhed in
the correfpondciice between Barillon and Louis XIV, as being
high in the lift of thofe who, through the EmbafTador, were in
a fecret
( 86 )
him with feven crimes $ but this " concealment of
the Popijb defign" is not one of them. Nor
Ihould it be omitted, that upon reading two Let-
ters of this Earl, revealed by Montagu (whoafted
in part* from pique to him for his preference of
Sir Wm. Temple \ J, and Letters which convicted
him of tampering with French money (payable
afecret confpiracy with France at this very period ; and " the
" ruin ofDanby" one exprefs arrangement. For his a&ivity,
and addrefs in that work, he received, between the 22d of
Dec. 1678, and the 24th of Dec. 1679, 500 guineas. Dal-
tymple. Plato, in his Republic, has punifhed thofe with
death who took prefents, though to execute a duty. There
was no fuch law for the Whigs, and Patriots of 1678.
* It ap'pears, upon unqueftioned proofs, that Montagu was
bribed by Louis XIV, for this profecution, and received
money to corrupt the Houfe of Commons, or the leaders of
it, in order to animate their fupport of it : Barillen ftates the
whole defign, in a Letter of Oft. 241)1, 1678. " If he
* f (Montagu] ruins Danty, in fix months, he is to have either
" 100,000 crowns in hand, or 40,000 crowns annually,
' upon \hzHotel deVillt,m a penfion of 50,000 crowns for his
" life." " The deed is done," faid Montagu, in a Letter
to the King's minifter at Ferfailles, dated Oft. 26th, 1679.
** Pay me for it ! " No ticket-porter could have made a more
cool demand for the delivery of a hare. " It has been done
" eight months ago, and has coft me 60,000 crowns." I
give the fubftance of his Letter.
f This Aldiel amongft the evil fpirits of 1678, having
been told, that " feeming to believe this plot, would be ufeful,
*.' found it was a fcene in which be could not be an aftor."
however
however to the king, and one of them having at
the bottom of it, cc this by my order y C. R.") for
the Peace of Nimeguen, the Houfe at once deter-
mine to impeach him upon that evidence alone,
This, upon the igth of December 1678; yet upon
the 2 1 ft of that lame December, in the very arti-
cles themfelves, drawn up with Montagu's help,
we find the Popijh plot, and his concealment of it,
made a diftinct offence of high treafon againft
him; not a Jhadow of apparent evidence, or
explanation, having preceded this article.
The Earl dwells the moft upon this part of
the impeachment, with his accuftomed addrefs*
(for he certainly was a man of talents, though
neither an able, nor a faithful minifter,) in the
Houfe of Peers ; becaufe he knew it was the
moft calculated for prejudice againft him, and
felt his ground ftrong under him.
He mentions a very curious anecdote, which
is, that his own fon, then in the other Houfe,
voted for this 4th article, in order to mark the
kind of zeal which animated the Commons
againft him. In fact, it was he, the Earl of
Danby, who had juft laid Oates's narrative be-
fore the Houfe, againft the King's exprefs com-
mand: and Sir William Temple fays that he
3 had
( 88 )
had fallen into the King's difpleafure upon that
very account *.
In the very next Parliament, upon a rule
taken from another Court of fummary jurifdic-
tioniCafttgatque, auditque dolos y Titus Oafes,
the moft infamous of men, is received, and
openly encouraged as an informer againft:
him, " for difcouraging the difcovery of the
<c Popifli plot." This inflames the popular
clamour.
We mark again their finefle in fattening
this Popilh defign upon him, when in one of the
conferences, upon the favorite point of refifting
the pardon, they exprefs a fear that a fimilar
pardon will be obtained for the Popifo Lords.
In 1681, Fitzharris, upon his trial, having
accufed the Earl of being privy to Godfrey's
* The King did not believe one fyllable of this defign ; and
yet in the end encouraged an open profecution of it, as tend-
ing to refute the imputation of his favor to Popery. Temple.
Upon the iyth of Nov. 1678, the Duke of York tells
Barillon, that he, the Earl, adopted the fentiments of Par-
liament again/I popery, to make bimfelf popular : yet he fo
contrived as to be hated by the Commons ; and when Earillon
afterwards, Feb. i6th, 1679, gives Lord Sunderland a warning
againft \hzfe popular flights, the anfwer which that intriguing
Peer gave to him is very Significant " Vous voyez comment le
" Comte dt Danbi, s*en ejl bien trou<ve."
murder
murder * (a thing of ftage-effeR f, in Lord Sbaf-
tejbury's hands) ; and though his evidence,
(which he confeflfed, a little before his death, to
have been perjury fuborned,) befides many exter-
nal fufpicions, was grofs in itfelf, a bill of indifl-
ment was found againft the earl for that murder,
upon the very day that he was to appear in the
king's -bench, for the purpofe of demanding bail
upon his impeachment.
According to Rapin, the main view of this
profecution againft the Earl of Danby, was to
make him give up the king, and the Duke of
Tork, whom it was their perfevering defign to
accufe, and convict in form, as accomplices in
the Popijh plot; an offence which had been
previoufly not inferred againft them (by men
of common fenfe) but re$refented as inferred,
from the obftinate attachment of the duke to
that mercilefs religion, and the king's pecuniary
dependence upon Louis XIV. He adds, that
a belief in the catholic plot was confirmed by
thefe letters, which proved the king a corrupt
agent of the court of Verjailles j and that a fear
of Lord Dan&y's " difcoveries," was given
out as the fole motive to the pardon.
* Dalrymplt has a curious extraft from the MSS. of Lord
Keeper North, refpedUng this murder : " A popular ficlion
" was bufily circulated, that Godfrey had been feen laft at
" Arundel Houfe; or, as others whifpered, at the cockpit;
" in order that the Duke of Norfolk and Lord Danby might"
(in his emphatical words) " tcfs the fire from one to the other"
Bedice, who was twin-brother of Oates in perjuries, " had
<f feen the body at Sotnerjet Houfe," one of the palaces in which '
the Queen refided.
f The body was, in truth, expofed, as Antony expofed
that of Caj'c.i-, to the populace.
| N Indeed,
( 90 )
Indeed, the commons embark the miniftcr
and the king in the fame peril ; and upon the
22d March, when his majefty had appropriated
the guilt of thefe letters to himfelf, declaring,
c< that he would pardon him (the Earl of Danby)
<c ten times over, ifitfhould be required;" they
put a very unexampled, but a very juft, affront
upon him, by taking not the leaft notice of it *,
and proceeding directly to their demand of
judgment.
Burnet\> who gives the faireft, and the mod
rational, account of thefe crooked politics, that
is to be found in the hiftorian's page, truly dif-
tinguifties between the real import of Danfy's
letters, and that wild fuppofition of the <f Popijb
" pkt" as lurking at the bottom of them ;
a bottom " deeper than e'er plummet founded"
if the Popijh defign could be found in it. He
reprefents them to have been letters that fhould
have ftimulated the commons, the peers and the
public fpirit of all parties in the kingdom, united
as one man, into new laws againft popery ; in-
ftead of driving them into wicked, and prepofte-
rous accufations of innocent men.
Coleman's letters formed a direct evidence of
the general defign to favor popery : They were,
* Unexampled infult on the part of the king, in the tone of
defiance which accompanied this protection, juliified any re-
fentment of the commons againft him, which their legal "pow-
ers could enable them to enforce.
j- If any man after Burnet's account of Gates can believe
one fyllable that he faid or fwore, he muft believe that .Sara.-/
himfelf is the woril of men : there is no other alternative.
by
by a forced conftruction, received as proofs
of a fyftem in which the Earl of Danby took
a part ; and bis letters gave more alarm
when compared by falfe analogies to thofe of
Coleman: But this iniquity had a further extent.
The correfpondence of" both, viewed as parts of a
deliberate plan, was, by a more cruel outrage,
tortured into evidence of the <c bellijh plot"
(as it was called,) not only againft themlelves, but
againft every catholic, whom the intrigue of the
leaders in oppofuion would felect. The perjured
Oates was always at hand, and in the ready fiction
of his brain, would accufe any catholic at a
minute's warning, of an intention to murder the
king, &c. which intention had been long known
to him, the accufer, though hitherto withheld
from the public ear. Indeed, it was enough to
accufe in the lump, credulity often fparing his
prolific invention the tafk of a detailed *, and cir-
cumftantial falfehood.
Accufator erat, qui verbum dixerat, " Lie eft!"
The fallacy, or delufion of the parties, in this
cruel, and fanguinary fiction, was to confound
the teftimonies which appeared in proof againft
the king, and the catholics, (who were in collu-
fion, though upon different views, for the eftab-
lifhment of popery,) with another defign of the
moft atrocious nature that human depravity
could either admit, or invent. It was in proof
* Oates's difcoveries confifted of fo many particulars, that,
upon that very account, thougn two thirds of them were falfi-
fied, it was thought " above invention" to have invented the
'whole. Burnet.
J N 2 upon
upon the view of Dan&y's letters, that Charles
tbe fecond was enflaved, in general, by his cor-
rupt avarice, to a catholic prince, and a bigoted
catholic, who hated proteftants, and proteftants
of this kingdom the mod. It was in proof,
upon the view of Coleman* * letters, that a ge-
neral defign had been fet on foot by the catho-
lics, to favor their own religion to ettablifh it
if they could.
Oafes, in his written paper, delivered, after the
revolution, to the houfe of peers, reprefents
"the Earl of Danfy's letters;" to have con-
firmed the general credit of his evidence.
I forbear to fay any thing further of the popilh
plot, either taken by itfelf as a mark upon the
times in which the order of 1678 was iffued, or
as being clofely referable, through the catholic
peers, to the view, and motives of that order;
nor will I touch, in this place, upon the inhu-
man ufe that was made of it in the cafe of Lord
Stafford, " whofe noble blood t having been fhed
" in fupport of it, has given a force to that
" precedent, which no later authorities could
" have fhaken."
This trope of eloquence (but which I heard
from a very able man) admitting really no fe-
rious anfwer, and in one's clofet rather tempting
* This unfortunate man, who was executed, efceur/e, de-
nied in his lateft breath every tittle of the evidence, by
which he fuffereJ. Oa es, and Bedloe, had been the witnefles
againft him; as they aUo were againft many others, who were
executed a^ter appealing to heaven in a manner equally folemn,
againft thefe perjuries.
one's
( 93 )
one's ridicule, is put here as one proof, " that
fs all which gliftens (in thaf aflcmbly) is not
By the fide of it I would place the congenial
eloquence, and reckoning, of equal abilities, which
affifted in " fhedding that noble blood" as a fa-
crifice to the order of 1678 : " Under favor,
" what is once upon record in parliament, may
" at any time afterwards be proceeded upon: It
" is a fudden objection, but I conceive it hath
" been often done.
" However, in a cafe of this nature, when
" the life of the king when our own lives and
" our nation and our religion, lies at flake,
" I hope you would make a precedent *."
But after all, are fuch times, and fuch pro-
ceedings, and fuch modes of argument, as thefe,
no flain upon the order itfelf ? Are they un-
connected with it ? Are they only abufes of a
lega I power ? Or is the whole fyftem, an abufe,
including this 'pretended judgment as a part
of it ? Has it not been proved an afiumption of
illegal power ? And was it not the view of that
alTumption, to ufe political intrigue in the moft
odious form it ever had worn that of a fan-
guinary perfecution, fed, and cheriihed by a po-
pular clamour f ?
* Serjeant Maynard, as one of the managers ; a revered,
and a very honourable name ! but his accuitomed ability, as
well as temper, deferted him ontiiis trial.
f Upon feveral of the convi&ions a Ihout of joy rung
through the court.
( 94 )
If it be faidj as I have heard, that, in 1685,
the times were equally infamous, and more cruel,
fuffer me to controvert that fuppofition.
The Campaign, as it has been called, is an ex-
ecrable parp of James the fecon^^ inglorious, and
wicked, reign ; but it is more to the perfonal
odium of Jeffreys, and the king, than a reproach
upon the general fpirit of the times. What are
the favage, and brutal incidents of the weftern
commifilon, to the murder of innocent catho-
lics, prejudged by the parliament, and the peo-
ple out of doors *, in a delirium of cruelty j
the infernal Scroggs-\ at their head, who, in his
judicial feat, bullied the witnefles reprefented
the guilt, as requiring no proof aflferted that
catholics, who were upon the fide of catholics,
had not the fame credit with proteftants, who
were againft them and gave them, when con-
victed, joy " of the majjes that were to be Jung
<c for them !"
Severity againft the rebels was juft. The
caufe had no iniquity j though in multiplying,
* " Thofe who are fubjefted by multitudes to wrong, are
" deprived of all confolaticn : they feem deferred by man-
*' kind, and overpowered by a confpiracy of their whole fpe-
" cies." Mr. Bur lie's Re/iefiions en the Revolution in France.
But what are multitudes alone, to multitudes trained in cold
mifchic:", by political incendiaries, armed with ariftocratical,
znAjuatcial powers familiar to the ufe of perjuries, and im-
preffed with an idea that even \sfoed innocent (if it VJM catholic}
bleed, was only to repay in kind, that general intention of the
catholics, to murder every good proteftant, which, though
never proved, it was noij'afe to difpute ?
f Wicked, ignorant, and poor, are the epithets, by which
Buruet has comprefled his character.
or
( 95 )
or in felecting executions, and in the mode of
convicting prifoners, extreme injuftice, and cru-
elty were difplayed.
" But in. the popular ferments of 1678 and
fr 1679 originate our liberties: and was it not
" this period that gave to us the habeas corpus
" att?"
I agree, that a nobler fecurity for perfonal
freedom cannot be found, than in the acquifi-
tion of that law to the efficacy, and fpirit of the
writ, which had been fo often eluded. Nor am
I cold in admiring the bill of exclufion, which
paffed the lower houfe in 1769; nor do I at
all deny that ujurpers make very good laws.
Richard for example, and Crcmwell. But in a
comparifon between the times we are now com-
paring, what praife can be given, or I fhould
rather lay, what praife can be refufed by this hap-
pieft of all periods for liberty, the age of 1791,
to the bifhops (an order of men fo often calum-
niated), for the patriotic ftand made by them
againft the diffenfing power * j which they, and
the public fpirit of the kingdom, crufhed under
their feet ? Upon the rock of that refiftance
was built the revolution. It was one of thofe
* In fhejicojvl' Lord Clarendon* s diary, we have a curious
trait of "Jeffreys; and charatteriftic of all fuch brutal tyrants,
who, in the hour of peril, and in the aft of duplicity, or of
time-ierving revolt, often give themfelves an air of public
fpirit, which they keep in countenance by the fame unpoliih-
ed manners that accompanied their better fortune.
When lie faw that King James was ruined, he called Wright,
the chief juilice, " a beaft-" the other judges, " knaves and
"fools. Ke was averfe to this trial he was an boncfl man
" the judges were, moft of them, rogues. 1 * cuijufficeretfa-vus
ilk vu/tus, ac rubor, quo ft contra fudorem mimiebut.
exalted
exalted precedents, in which (as in the cafe of
general warrants), practice, with a colour of
ufage refulting from its age, and uniformity,
but againft the efiential principles of law, was
refilled by the energies of the conftitution by
the common fenfe, and feelings of men.
As to Mr. Juftice Blackftones panegyric upon
1678 and 1679, ^ e u ^ e ma de of it in our de-
bate, convinces me, that Whigs are more ge-
nerous, now, than I have known them, in that
aflembly, heretofore; and will accept of any
help which their adverfaries in political theory
may offer to them. But if " Black/tone's Com-
" mentaries" in a political view of them, (take
forexample his account of the Revolution) confti-
tute part of that library which your friends the
ariftocracy of the Wbigs are to confult, I would
fay, as fully faid to Pom fey " Optimatibus
(t tuis nihil confido." The time was, that in
a debate upon fuch great queftions as thefe, a
writer fo prejudiced upon conftitution al topics
(to fay no worfe of it) would not have met with
any quarter from the perfon who quoted him
as an auxiliary to his argument.
But it is not the opinion of an elementary,
though ingenious, and ufeful writer upon law
that can overcome the obvious inference from
hiftorical fact, and record ; even if the paffage
warranted the purpofe, for which it was quoted.
Mr. Juflice Elackjlone gives to the period of
1679, the character of an %% pwfettting as good
a theoretical conftitution, as we ever enjoyed ;
formed, however, of thegood old materials, which
i in
( 97 )
in general the madnefs of the times had fpared -,
for except the habeas corpus aft, I am not aware
of a fingle buttrefs added by them to the tenement
left them by their anceftors*.
Having faid this of theoretical perfection, he
admits an infinite number of practical oppref-
fions in the period that followed 1679: He
calls indeed the whole reign, fanguinary, turbu-
lent, and wicked: nor of his theoretical perfec-
tion, as it flood in 1679, does he reprefent the
order 0^1678 as a part.
As to his theoretical perfection, accomplifhed in
1679, I cannot agree with him ; and I appeal,
Sir, to you, whether an abfolute right of laying
afide parliaments was not a theoretical imper-
fecJion with a vengeance. It was praclical op-
prejfion too ; for the laft three years of that reign.
I would alfo beg to afk of you, if the want of a
fufficient guard againft the incurfions of a difpenj-
ing power, habitually exercifed from the earlieft
ages of the government, was not another imper*
feEfion.
As to his practical opprej/ion, the whole pro-
ceeding againft the Earl of Danby, at whom the
order of 1678 was levelled, and the order itfelf,
conftituted glaring parts of it,
I am aware, however, of a merit which they certainly
xad, in removing fome of the old appendages to the caflle ;
which had been kept up for ftate, and were become dangerous
o the tenement. [See the aft for the abolition of military
pnures, of purveyance, and pre-emption.]
O But
( 93 )
But afcer all, there is extreme fallacy in the
argument, that credit is due to a particular
meafure, which is queftionable in itfelf, to fay no
worfe of it, in times of the moft violent faff ion,
to fay no worfe of them, becaufe in thofe times a
good law was made.
The writer of Hiftoric Doubts upon the fa-
bulous, and theatrical, monfter that has been
made of Richard the third, had better arguments
for the check which his ingenuity gave to this
exaggerated picture, than arife from the good
laws which that ufurper made.
But, on the other hand, if a law is made,
which is declaratory upon the face of it, and the
legiflators are the only witneffes in its favor, let
it be fuppofed, that I difcover them to be cor-
rupt, and fanguinary perfecutors of the indivi-
dual, at whom that law is pointed. Can I put
faith in it * ? If in the motive, and ufe of the
meafure, I difcover nothing but felfilh oppref-
fion, I fufpect the meafure itfelf if I perceive
trick in the mode of bringing it forward, and preci-
pitation in the time given to colourable enquiries;
but above all, if I difcover an abfolute falfebood in
the recital, and can prove, that in the fmgle ground
alleged for it, there is not a colour of analogy ;
* " Inter armayf/// leges," applies itfelf to a civil war,
in the field : but the political difcord, which is upon the
verge of a civil war, is guiltier dill. Amongft thofe arms,
the law is not " filent" but, which is a heavier calamity
bought and fold.
more
( 99 )
more ftill if I fee it refuted by irrefifuble
logies, and principles of Law, I turn from it
with fcorn, and refufe my allegiance to it.
I have here fuppofed the Order of 1678,
made in truth by the Houfe of Commons, that
is, by their influence upon the Houfe of Peers;
a conclufion which I would refift, if I could. But
" Socrates," and " Plato," the Commoner, and
Peer of that age, muft forgive me, if " Truth"
outweighs both of them in my efteem.
Indeed, as to the Peers, it feems a mea-
furing caft between the option, which I may, in
candor, indulge to them, of this fajfive obedience
to the Commons, in framing the Judgment^
or of its original fin j as it ftands upon ground,
which is mcft infidioufly alleged, and whicfy
(hey muft have known to be falfe.
I have the honor to be,
S IR,
With great refpecl, &c.
O 2
LETTER THE SEVENTH.
- fubla^o jure nocendi.
HORACE.
SIR,
<f f I \ H E influence of this Order and Judg-
" JL ment upon Courts of Law," has been
adduced as a powerful argument for the legal
authority of it, or, at lead, before the Order of
1785 had iflfued. In particular, the Earl of
Danb/s long imprifonment has been quoted
as proof, that it was an Order built upon
found principles of Law, or that it was made
impregnable againft every law, but that of
Parliament, by ramparts of the Conftitution j as
it met with fuch refpect from the Judges in Weft-
minfter-ball upon that Earl's repeated applica-
tions to them for bail.
Above all, and with more plaufibility, the Re-
port, in CartbeiVy of Lord Salt/bury* s fruitlefs pe-
tition for dilcharge, or bail, to the Court of King's
Bench, after the Parliament, in which he had
been
been impeached, was at an end after tie Order
of 1685 had iffued and after the Revolution,
has been prefled as a decifive teftimony in favor
of the doc~lrine, " That impeachment is never
<{ terminated by the diffblution, or the natural,
" and regular end of the Parliament, in which
" it was begun."
This Letter will contain my anfwer to fuch
parts of the objection as confine themfelves to
the period between 1678 and 1685: the next
will take up, and clqfe, the difcuffion of Car-
thew's report.
Before I addrefs myfelf to the application for
bail in this earlier period, I beg leave to remind
you of a memorable facJ, and -precedent, which
intervened between the date of the Order in
1678, and the Earl of Danby's fir ft application
to the Court of King's Bench for bailj though
after Lord Stafford^ vain petition for it in the
fame Court after his trial and after his ex-
ecution.
This faft, and precedent, will evince, that
Courts of Law held the Order of 1678, as hav-
ing no legal weight, or credit j and, at leaft, as
forming no general authority, which could bind
the regular juftice of the kingdom.
lal-
I allude, Sir, to Fitzbarris's trial in the Court
of King's Bench, upon the 2yth of April 1681 ;
to the arguments upon the difcufiion of his
plea-, to the point which be afiumed, and the
Attorney-General admitted ; each, in a different
mode, completely diicrediting the Order of
1678.
It is well known, that he was impeached by
the Commons, in order to be faved from an in-
dictment, and referved ultimately as another
Titus Oafes, with a view to the further attack
that was in train againft the Duke of Tork ;
that his impeachment was rejected by the
Lords ; that complaint was made by the Com-
mons againft that meafure, as " an obftruction
" to the juftice of the kingdom ;" that all were
menaced, who fhould proceed againft him at law ;
that he was indicted, however, after the diflb-
lution of that Parliament; that he was ar-
raigned upon this indictment, in the Court of
King's Bench, and pleaded in vain a " defend-
<f ing impeachment-" that he was convicted^
and executed.
Burnet fays, that his plea failed him, becaufe
his impeachment had been rejected by the
Lords. But the hiftorian is deceived ; and it
was, in fact, refufed upon the fingle ground, that
his allegation of the depending impeachment,
upon
( 103 )
upon which he relied, in bar to the indictment,
was formally incomplete ; the Judges gravely
infifting, that as to the faft itfelf, or, in other
words, the Jubflance of this plea, they had no-
thing to do with it. A paradox, grounded upon
the moft abje<5t fear !
But upon the validity of this plea, either in
form, or fubftance,! (hall hazard no opinion; and
have recourfe to it for a very different purpofe;
that purpofe will foon unfold itfelf, and, if I am
not much deceived, will ftrike the reader as an
object of his peculiar attention.
It is, amongft other topics, thus argued by
Williams, the leading counfel for the culprit.
" It appears plainly upon the record, that
<c this Impeachment was depending before^ and
" it does not appear but that now the Parlia-
" ment is in being. 1 take the fubftance of
" our plea to be this: Here is a perfon im-
" peached in Parliament, by the Commons, for
" High Treafon, before the Lords; and, for
" aught that appears upon the record, that
" Parliament is in being ftill"
The Attorney Gen'eral makes this anfwer : -
They objecl, we have admitted here, that
** there is an impeachment ; that we have ad-
< mitted
( 104 )
" mitted it an impeachment for the fame mat-
<c tr . a nd that we have admitted the Parlia-
" went in being.
" Indeed, if we have admitted the Parliament
" in beingy it would go hard with us ; and., if
" not Jo admitted, Mr. Williams' s argument falls
" to the ground. But no fadt is admitted,
" which is not well pleaded, &:c."
He then makes the point, " that a diflblu-
tion of Parliament requires no proof j and
c< that every Court of Law takes notice of it,
' without averment, as of a notorious fadV'
The whole fcope of his argument conveys
the idea, that " if an impeachment ever exifted
for the fame offence againft the culprit,"
(a fadl which be thinks ill-pleaded) " it is no
" longer depending, after a diflblution of the
e Parliament."
Jeffreys, who follows him, has thefe remark-
able words : " Whether the impeachment did
" not fall by the diflfolution; /'/ is not ad-
<f mitted that it did not, but it is waved, as not
" being pertinent."
Another very important circumftance occurs
upon this trial important in itfelf important
ad bominem, with a reference to the actor in it
5 a mark
( 185 )
a mark of the infamy due to the whole tranfac-
tion a decided proof, that when the objeft was
attained, in my Z ord Stafford's death, and the
Earl cf Danby's ruin, this order of 1678 was
confidered as a judgment funffum cjficioy and
laid upon the Pnelf,
The fecond counfel for Mr. Fitzkarris mult
fiot be overlooked tir Francis Wilmington. He
was the mod furious partifan for the commons,
againft: the Earl cfD'anfy, and the Popifh lords*
He attended rr.oft of the conferences upon
Eanby's impeachment, and was the boldeft in-
cendiary of his time. Having been folicitor-
general during a part of this fermerit, he was
removed from his office, and fell into the Duks
of MonmcutVs corps. In that fituation, he was
a manager of Lord Stafford's impeachment, and
exerted peculiar activity in the opprcffion of this
infulted, as well as injured peer j who could not
even be beard againft the order of 1678, though
in truth it was a judgment of death upon bim t
and a part of the judicial proceedings againft
him, behind his back ; though it never had
been acted upon, fo as to put any culprit upon
his trial, but himfelf; though it had not been
upon the journals two years ; and though, if he
could have been heard upon it by his counfel, not-
one of his grey hairs could have been touched*
P The
The managers, as if to goad him by the ridicule
of their conduct (and moft of them, to their
ihame, were lawyers), either affirmed what they
knew to be falfe concerning it, or difiembled an
ignorance of it, and furprife at the objection ; or
with-held it as an arcanum imperii, never to be
developed by vulgar eyes ; or made no fcruple
to aver the neceflity of a new $recedent y com-
mencing at the execution of this culprit. Win-
mngton, however, who knew the order well,
affirms that, " it was deliberately made, upon a
" fearch of all precedents in all ages." The
moil atrocious falfehood that a court of juftice
ever heard, but which this court heard without
reproof, though every judge prefent muft have
known its falfehood, in one part of it; and
every judge who had been a lord committee,
muft have known, that nothing was more falfe
than the reft.
Yet this identical Sir Francis Winnington> ar-
guing upon Fitzbarris's trial for the continuance
of an impeachment after a diffblution of parlia-
ment, reafons upon loofe, and weak analogies,
lut without a bint at the order of i6y&: <f I
" contend (faid he) that whether the parliament
<c is in being, or is at an end, the impeachment
" is depending, with all its energies." And
how does he maintain it? By the order of
J 167$?
1678? No, it is not once named; though to
name it , would have determined Fitzbarris's
plea to be good in fubftance; and though to
name it with refpeft, would have done honor to
that Parliament, which his political bias would
have prompted him to honor. Did he maintain
it by fome one of thofe precedents c< in all ages"
which had been fearched three little years before,
when he was keen in the purfuit ? By not a
fingle precedent, of any kind, except the folitary
one of "Berkeley's Cafe, not in the report of 1 673
not an impeachment, but a very unaccountable
proceeding, by which that culprit was tried in
Parliament before ajury was acquitted by them
and then bailed for his appearance at the next
Parliament, ad a udiendum judmum> &c.
We recolle6t, that he was manager in Lord
Stafford's trial, THREE MONTHS before this in-
didtment; yet of that cafe too not a word !
though he was in the a6t of attempting to fuftain
the very point for which the "noble blood" of
this Peer had been fhed: Is is unfair to fay,
that he was alhamed of that proceeding too, and
before Lord Stafford was cold in his grave ?
The refult of this tranfaftion is, that after the
lion was dead (or had begun his nap, according
to the modern doclrine), the parties and their
cotmfel, by common aflent, chofe to forget this
P 2 Order
Order of 1678, or laid it afide, as if all its
powers fell, when that corrupt, and factious Par-
liament was no more. They feem to laugh in
one another's face,- as the Roman augurs did,
when they met, and were not in office.
The leading advocate for a culprit, who was
the favorite of the Commons that were " only
11 a/leep" has nothing to fay for the continu-
ance of an impeachment which they had pre-
ferred, but this : " It continues, becaufe the
" Parliament is in being ftill, upon record; as
" the Attorney General has not counter-pleaded
cc the diflblution of that Parliament, which all
<( of us know to be the fact." But why did
not he argue thus (a doctrine more to the point,
and more judicious for his client): " The
" impeachment is depending, becaufe it has
" been carried up to the Lords ; and, after a
c diflblution of Parliament, all impeachments
* f are depending, by the law of the Peers, made
in 1678?"
Perhaps the beft clue to this very fingular
fact, would be that fuppofition which I have
already intimated, viz. that by this Order of
^678, the Lords pointed only at thofe individual
impeachments, and left the general queftion, or
the fate of any other impeachment under new
circumftances, aflqat,
I have
10 9
I have called it as it now appears, not only
a faff, b\it precedent -, and though \nftriRnefs it
cannot reach the latter defcription, infexfe it can;
for that, may in Jenje be called " precedent"
againft the weight, or credit of any judgment,
which proves, that in recenli facto the judgment
itfelf, and where it might have turned the balance,
is neither quoted in the public trial of an indict-
ment by him who had the interefl of his life at
flake in it, nor fuggefted in his favour by the
Court who tried him.
The inference muft, upon the whole, be this :
Either the Order of 1678 was given up on all
hands, as the political, and fleeting expedient of
a day, for a party-object, or as pointed fingly at
tbqfe impeachments, to which it exprefsly refer-
red, and at their peculiar condition.
This laft alternative might alfo account for
the continued imprifonment of Danfy, after
Fitzbarris's trial (for the Order might ftill have
its force againft him, as falling directly within
the reference of it) ; if other ways of accounting
for that imprifonment could not readily occur,
without prejudice to the general doctrine " that
" impeachments, after a difiblution of Parliament,
do at this day, legally ', and conftitwionally abate."
" But
<c But if the Order was not imperative upon
c< the Conftable of the Tower, why continue
" his imprifonment one day, when the Peers no
<f longer exift as a Court ? why refufe to
" bail him at the inflant, bat under the idea of
" a coercive authority over him, refulting from
" the impeachment, which a future <c organ of
' the people* will, or may refume ?"
The argument conveyed in this queftion, is
more fpecious, than folid.
Firft, the refufal of bail to the Earl ofDanbfs
frequent, and goading importunities, appears to
have been the effect either of cowardice, of fer-
vility, of corruption, or of prejudice againft him,
with a reference to the Popifh plot; from which
prejudice, none were exempt, or would have
owned it if they were. I have dated the ef-
fect that Fitzbarris's perjuries, after his con-
viction, threw upon the original credit of Dan~
ly*s concern in Godfrey's murder. In the mean
time, the Order of 1678, pointed, and clear
with a reference to the Earl of Dan by* s impeach-
ment, hung over the Courts of Law ; fo that it
became extremely difficult for them, in fuch an
age, and fuch men as they were, to accept his
propofition of bail, though in a cafe, which,
upoq
( III )
upon the founded principles of their difcretion,
fairly, and irrefiftibly called for it.
Jeffreys, however, took upon him the rifque
of bailing him ; and it is an act, which, in my
opinion, does him infinite honor; let that
monfter of cruelty and of injuftice be vindicated,
and even commended, where he deferves it.
Will any man contend, that a commitment
by the lords for high treafon is not bailable
with ftrict propriety, if the charge upon which
the commitment is founded, contains no fuch
offence, though it gives that name to fomething
elfe ? or, can it be faid, that if the charge bad
contained high treafon, there was not ground for
bail in the duration of Lord Danby's imprifon-
ment, and the tacit waiver of his profecution ?
In the cafe of Lord Stafford, applying for bail,
the court of kings-bench obferved, " that he
" was committed for high treafon, by the lords;
that commitments for high treafon upon
<c impeachment, were not within the habeas
" corpus aft, and confequently not bailable de
" jure, for want of profecution ; that it be-
" came therefore a mere point of difcreticn, and
" that upon their difcretion, they did not think
* f Ft proper to bail him."
t P 4 " But
(C But why not within the habeas corpus a$t
" if the impeachment was not ftill in force ?
" for could not he have argued thus'? <f The
* e impeachment being at an end, I could have
<c been indicted j I have not been indicted, or
<c tried, as the act prefcribes -, I am, therefore,
" de jure bailable/' The anfwer is, that he
could not have been indicted or tried at law
upon this charge, and at the fuit of this proje-
cutor.
They could, in Stafford's cafe, have faid : *
" Our difcretion prompts us to bail him."
If they could, let me afk, if the difcretion of
courts, either to bail, or to remand, is not, of
itfelf, decifive to fhevv, that it is not the im-
peachment, but the opinion of thefe courts
alone, that between parliament and parliament
either detains, or bails, or liberates the culprit.
If that be conceded, as I think it muft, I
would then obferve, that our conftitution is not
apt to do things by halves ; and the idea that
a court of law may defeat an impeachment for
high treafon, by fetting the culprit free.,, if the
parliament is barely adjourned (which is a right
at law, clear of doubt) proves a fortiori, that no
houfe of peers can have the leait controul over
an impeachment, after " the new court" (accord-
ing to Chief Jujlice Rolte,) by which alone
they
( "3 )
they fit has been diflblved ; that is, when the
parliament itfelf has met with a fimilar fate.
Here, at leaft, is a dilemma that requires a
very ferious, and a very accurate foiution.
Either the right of bailing in the court of
king's-bench, after a duTolution of parliament,
a culprit impeached by the commons, and im-
prifoned by the peers, affords evidence, and
proof, that after a parliament is at an end, there
is no depending impeachment ; or admits that
there is.
If the firft be the refult, there is an end of
that queftion.
If the latter be a more correct inference, what
can be a more glaring precedent (if I may ufe
the phrafe) of that jealoufy, which in my firft
letter I defcribed as the ruling fpirit of our con-
ftitution ? for here, then, will be another admit-
ted check upon the indefeajible right of the
commons to impeach with effett: a right,
which is more dangerous, in my view of it,
than a right of diflblving an impeachment, by
the diffolution of a parliament, which is denied;
or the right of bailing the party impeached in
the courts of law, which is admitted. Both of
thefe rights are formed upon fimilar analogies,
and are both of them liable to extreme abufe ;
with
( "4 )
ivith a material difference, however, in point of
refponfibility between them ; for the diffolution
of parliament is an aft which can be met, and
refented, if it was an abufe of the regal truft, by
the next houfe of commons j but, " robes and
*' furred cloaks bide all" The court of law
would have only to fay " It was for our pure
(t difcretion to bail, or to remand him ; and our
" difcretion prompted our judgment, our con-
" fcience to bail him." What houfe of com-
mons can touch them for it ?
Here, too, is another, and ftriking proof, that
.Mr. Burke is more afraid of lawyers, and the
law, than our conftitution is, which refigns to
them, even during a petty adjournment of the
legiflature, a power of releaflng their fuitor
from that ftate-prifon which alone enfures his
appearance, which alone compels him to abide
ajuft profecution as a delinquent of ftate, ac-
cufed by the whole commons of the realm, be-
fore the peers of the realm, in their judicial court,
for, perhaps, the word of all political offences j
though not of a kind which the regular habits^
pr powers of law woqld reach with effect.
I have the honor to be^
S I R,
ursj &c,
( s )
LETTER THE EIGHTH.
Non modo eventus rerum, fed ratio, caufeque nofcantur.
TACITV.
S I R,
" \>I7 HAT ftia11 be faid ( weareafked )
" VV of the applications for bail, and fruit-
" lefs applications too, in the court of king's-
" bench, when the order of 1685 had been put
<c upon the journals ? Why did the two catholic
" peers, Lord Peterborough, and Lord Salijbury,
" continue to be imprifoned one day * in the
" tower, when the commons, who had im-
" Reached them, and the peers, who had com"
" mined them, were no more ? 'Why did Lord
* This queftion has not the merit of originality ; for the
dilemma which it endeavours to impofe upon the argument,
was alfo attempted, but without effeft, in Sfreater's cafe,
more than a century ago, by the attorney general : " If the
" order die (faid he) by the diflblution of parliament, the
" jailor mould then have fet open the door :" And he re-
commends an aclion againft him. Yet the party, who had
continued / vinculis under that order, was liberated by the
court, upon the fingle idea that no order exifted, or could be
refumed. This too is the more ftriking, becaufe the court of
the parliament then refided in the commons alone, who had
alfo in themfelves the legijlati<ve power. But an " order of
" parliament," and an " aft of parliament," were diitin-
guifhed by the court ; nor was the effect of a diflblution upon
either of them at all varied in the opinion of that court, by
the accident of ufurpers in the legiflative or judicial power.
The old analogy remained, and was affirmed with fpirit by a
court of law.
02 " Sail/bury
( "6 >
" Salijlury afk for bail, in the court of king's-
" bench, and afk for it in vain; that high
* f court not even condefcending to name the
" order of reverfal in 1685 ? And why did
" Lord Chief Juftice Half, in a later cafe, de-
<c clare, that impeachments continued between
" one parliament and the next ?"
I fhall give a diftinet anfwer to every one/ of
thefe queftipns.
Firft, If it were true that impeachment/0 /#;*
c depended," after the end of a parliament, as
to continue the imprifonment of the culprit upon
that ground alone, fubjec"b only to the difcretion
of bail j it would not follow, that it would there-
fore " depend" for another, and a very different
purpofe that of proceeding upon the fame im-
peachment againft him, and putting him upon
his trial in the next parliament j unlefs the ujage
were equally eftablifhed in both of thefe acts, or
the analogy y irrefiflible between them.
The next obfervation is, and, as it flrikes me,
a complete anfwer to this corollary, which has
been drawn from the continuance of prtfon to
that of impeachment for all its other purpofes ;
jhat 4n order to imprifon, made by a power legal
at the time, upon a legal charge, binds the
cuftody of that culprit, when the power that firft
committed him has no further controul over
him, till he can be legally difcharged by fome
courfe
( "7 )
courfe of trial, or can demand bail dejure within
the Habeas Corpus aft> or can obtain it from the
difcretion of thofe to whom the law refers him.
That celebrated aft (which, by the way, is very
ill drawn tantamnerem, tarn negligenter agere ! )
gives no fpecial power to the courts of law over
a warrant that has treafon or felony in it, * c plain
" and fpecial," unlefs where a term fhall have
intervened, without indiftment, and without jufl
apology for the delay j or where another term,
has alfo intervened, without indictment or trial.
The aft, therefore, does not reach imprifon-
ment by the lords for high treafon, plain and
fpecial upon the commitment, if the party fo
committed has been impeached; becaufe he is
no objeft of trial by indiftment upon thatjuit-,
as I have before obferved.
Thus, when Lord Stafford, who was clearly
within a direft, and exprefs view of the order
1678, applied for bail, after an imprifonment of
two years, to the court of king's- bench; they
refufe to bail him, upon their difcretion (ex-
plained as I have already intimated), and, as
they exprefs it themfelves, fc 'without any re-
" liance upon the order of 1678."
Therefore, as being imprifoned, all thefe peers,
with, or without reference to either of the orders,
Before 1685, or after it, were liable to that im-
prifonment,
prifbnment, as being legally charged, and legally
committed ; unlefs they could fatisfy the court,
that bail ought, in juftice, to have been accepted.
But we are then told, " In Cartbew's Report,
" of Lord Salifburfs application, the order of
(t 1685 is not once named; and bail is refujed,
ff under circumftances which prompted every
" idea of a rational difcredon to receive it ; un-
" lefs the court had thought it competent for
<c the houfe of peers, then adjourned for two
" months, to refume this very impeachment,
" by their difcretion. For if the impeachment
<f was at an end, and therefore (ould not be re-
* e fumed, what fpecies of difcretion was it in the
* c judges of this court, that kept this peer in
f jail, for the fake of keeping him there!"
As this objection is very ingenious, and colour-
able as thefe too were times in which the liberty
of the fubje<5t held up its head, begun to re-
new its rights, to feel them, and act upon them,
it becomes neceflfary to vindicate the conduct of
the judges in that court, and account for itj
though in flrictnefs it would be enough to fay,
that if their difcretion was abufed, it would be no
evidence that an impeachment was " depending'*
againft the Earl of Salt/bury then i or is depend-
ing now againft Mr. Hajlings.
It appears from Cartbew, page 131, that
Lord Salijlury was impeached by the commons
for
( "9 )
for high treafon; that he was committed
upon that impeachment by the houfe of peers,
to the tower; that he continued there, till
that parliament was diflblved, and a new one
had been called ; which after a long feffion was
adjourned for two months, at the very time of
this application for bail or difcharge to the court
of king's- bench.
It was made upon two grounds : .
He infilled frft, that he ought immediately
to be difchargedj as having been pardoned by
the ad which had patted in the laft feffion of
parliament,
But as there was no proceeding in court,
upon which this plea could be founded, the
judges, who could not judicially take notice
of the act, unlefs pleaded with neceflary aver-
ments, refufed the difcharge, as claimed upon
that fingle ground of the pardon.
Then it was moved that bail fhould be
accepted for him ; upon a reference to the Earl
of Dan fy' s cafe, who was bailed though com-
mitted for high treafon, upon impeachment:
The court refufe to bail him :
(l Becaufe there was a fhort adjournment of
(t the exifting parliament, and becaufe he Ihould
< f apply to the peers, for his bail."
The
( "O )
" The Earl of Danby (they tell him) was
" bailed, becaufe the parliament of thofe days
" was proroguedy the time left uncertain for its
" meeting again, and he had no profpcct of an
" application there."
The cafe of Lord Stafford was alfo mentioned
by the court, as proving, " that commitments
" by the peers in parliament, are not made
" void by the diflblution of it.'*
It is alfo intimated, " that when the Earl of
" Danby was bailed, the recognizance bound
" him to appear at the next feffion of parlia-
" ment; which condition affirmed the commit-
" ment, and proved the opinion of the court,
<c that it was not avoided or difcharged."
This is the full efred of Lord Salt/bury* * cafe,
in Cartbew, and ftated with punctual accuracy
in all the eiFential points of it.
The confequences of it have been argued
thus:
" At this time, the court of king's -bench
<{ looked upon the reverfing order of 1685, as
* f of no effect in law j for, elfe, they muft have
* c liberated the Earl upon the fingle ground
" that his impeachment was at an end.
The
cc The notice taken by the court, of Lord
ff Stafford's cafe, and the anxiety which they .
" (hew to point out, that even in the act of
" bailing T)anby his commitment was affirm-
(f ed, ftrongly indicate one or other of thefe
ct proportions : a perfect ignorance of the
" order in 1685 ; or an opinion, that upon
" that order they could not act in their judicial
ct character. Either of thefe alternatives throws
" a fhade of legal difcredit upon the order of
" 1685, in that enlightened period, which
" makes it impoffible for a lawyer in this age
" to utter one fyllable more in its favor."
It muft be confefied, that in the report, no
mention is once made of the order in 1685;
but it fhould alfo be confeffed by the partifans
for the order of 1678 (which alone they fet
up againft that of 1685), that a fimilar fatality
had buried that order too in legal oblivion,
if the filence of this Reporter upon either of
them is fatal. The court (according to him),
even the act of ftating the applications for bail
made by the Earl of Danby, at whom the order
was levelled, clearly difown the effect of it upon
them, as keeping Lord Salifbury's impeachment
alive j but confider the cafe juft as if no fuch
order had ever ifTued : leaving it entirely afloat,
whether a new parliament, or a new feflion,
R could
could or could not proceed againft their fuitor,
the Earl of Saliji>ury.
I cannot forbear, however, to conjecture,
that even if the order 1685 bad been mentioned
by this Earl, and had been exprefsly made one
of his grounds for the difcbarge which he folicited,
the court, attending to all the circumftances,
would have doubted, whether a found, and a ju-
dicial difcretion would have authorized them to
comply with his requeft.
I am alfo of opinion, that a refufal to comply
with it, could not even in that period have been
fairly interpreted as a difavowal of the order of
1685 in its general effect ; if mentioned, and
prefied by the Earl himfelf.
Much lefs could it be fo confidered at this
time of day, by thofe who are milling to remem-
ber, and weigh difpaffionately, all that has hap-
pened fmce that period.
It is true, that when the court argued upon
the cafe of Stafford^ andof.Dtf4>'* tne order of
1685 might have been fet up, as counteracting,
and as annihilating the general effect of thofe pre-
cedents : but would not they have been juftified
by
( "3 )
by the conduct of Lord Salifoury himfelf, in
a doubt whether the order of 1685 had thq effect
which he would then have chall-.-nged, but/0
late in the day, I mean for him ?
They tell him " the houfe of lords was
" the beft place for his application" Of that,
and of the other houfe there had been " a very
" long fejficn -," a fact which is particularly
noticed in the report. If the earl bad applied
in that feffion, would not the court have natural-
ly inferred, as he remained in vinculis, that bail
had been refufed him by the peers ? and if
bail bad been refufed him in that place -, would
it not have fhaken the authority of the order
j685? If he had not applied, would not the
continuance of his imprifonment and his own for-
bearance to apply in parliament, when the peers
were fitting, call upon the judges in the court
of king's- bench, to bejitate, before they deter-
mined that an order, apparently fo little refyeft-
edby thofe who made it, and fo little trufted
by thofe for whom it was made, had really de-
ftroyed the effect of thofe two precedents in
Weft minfter -ball, which they had quoted as
affirming the right of a continued imprifonment,
or at lead, of bail for the fecurity of appear-
ance to a charge, that might be rejumed?
% R 2 Befides,
Befides, if the Earl had forborn to attempt
his own relief, by afking the opinion of his own
peers in their judicial character, during a long
Jeffion, would it not have been a very fafe difcre-
tion, if the court, in anfwer to his precedent of
1685, had faid <c it is a very fhort adjourn-
" ment ; afk the lords what effect they afcribe
" to this judgment of their own ! You, and
<e they, together, have made the validity of it
<e> ambiguous to us, and have made it peculiarly
" fit that you fhould yourfelves together fettle
" the doubt."
But the main queftion is, what the lords
finally did in the cafe of Lord Salijbury himfelf,
upon the chapter of this very imprifonment.
If in that very cafe they afted judicially, upon
a marked principle, which afiumes the termina-
tion of an impeachment by an end of the power
that impeached, and the termination of an im-
prifonment by an end of the power that impri-
foned, they, who are the bed, and fupreme au-.
thoriry, have cleared up, in the very fame caufe,
any doubt which might, have been entertained
upon the Earl, of Salijbury's recent application
to the king's- bench. They have configned all
that was done at law in thofe cafes of Danby,
(who indeed had been alfo difcharged in 1685,
2 by
( "5 ) ---
by a judicial a<5t) and of Lord Stafford himfelf,
to legal oblivion.
That, in facl, the houfe of peers finally dif-
charged both of" thefe catholic peers j averting,
in a judicial form, or at lead with a judicial aft
and effett, the difiblution of Lord Salijbury\ im-
peachment, the following letter I think will
prove. If it fhould, let the authority of parlia-
ment, in Lord Salijlury\ cafe, as well as in
other precedents, that accompanied or followed
it (and which at prefent I will not anticipate), be
oppofed againft the authority of the king's-benck
in that cafe.
The court of law, in thofe days, (fafti-
dioufly, as the houfe of commons may look
at a journal of the lords in this triumphant
hour of privilege,} meant in Lord Salifbury^
cafe, to be ultimately governed by the judicial
opinion of the lords ; and if it can be made
out that by that judicial opinion the impeach-
ment was annulled, can it be doubted, that
at any future period, the court itfelf muft have
held the authority of their own doubts, upon
which they refufed the Earl of Sali/lury's bail,
completely done away, and refcinded, by the
higher
higher aft of that fupreme, and judicial power
to which they exprejsly referred him ?
It may be further cbferved, that when they
point at Lord Stafford's cafe as the authority
upon which they, refufe bail, they point at a
cafe in which it appears, that upon that unfor-
tunate perfon's trial, Sir William Jones, one of
the managers, affirms, the law which kept his
impeachment alive, to have been fo declared by
the houfe of peers (alluding to the order of
1678) ; " and that being Jo" two very empha-
tical words ! <c it was become (as be infifted) the
" law of the kingdom :" By which he could
only have meant, that it was become the law of
the kingdom, lecaufe the peers had refolved it
as the law of their tribunal. This too appears
more evident, when he gives to the high court,
then affembled, his ground of " hope" (as he
calls it,) that the commons were authorifed by
good reafon, to act upon the impeachment ; -
which ground he defcribes to be," that the
" lords had thus declared the law of their
<e houfe to the commons." If the lords
then, at a later period, have declared the law
of their boufe y and (according to Sir William
Jones) the law of the kingdom, to be the direct
reverfe, could the court of king's- bench, after
the
( "7 )
the reverfal of the order in 16785 after the
lords, by a&ing upon the order of that reverfal,
in the difcharge of perfons impeached, had ju-
dicially notified it as the law of their houfe ;
could the court of king's-bench, duly apprized of
that circumftance, have referred themfelves to the
cafe of Lord Stafford, as juftifying a refufal to
bail, upon the order of 1678 alone? Could they
have done this, when that very order was no
longer a law of the peers, and was, therefore,
no longer a law of the kingdom ?
Upon Lord Stafford's trial, indeed, Sir Francis
Winnington urged, with miferably inferior
talents, what has been impreflfed with fuch
energy upon the debate of thefe queftions;
." that an impeachment was, in truth, an aft
" of the commons out of parliament, and was,
" therefore, kept alive by them, in every
" change of their elected reprefentatives."
Whether I have refuted, or fhaken, in a for-
mer branch of this imperfect effay, that hypo-
thefis j or left it as firm as eloquence could have
made \tfeem to be, the reader will determine
for himfelf, I am all humility before him ;
and as to you. Sir, I am fo afraid of your wit
(the only form in which I can be fignificant
snough to be honoured with your difpleafure),
that
( 128 )
that if I can 'efcape even that modeft pre-emi-
nence of being " the caufe that wit is in other
c< men," I fhall feel comfort in the obfcurity
which enables me to exclaim " effugere eft
" trittmptta."
I am,
S I R,
Yours, &c.
P. S. I had forgot the diSlum afcribed (by
thofe who affect a contempt for the lawyers)
to Lord Chief Jujlice Holt. Is it worth anfwer-
ing ? The anfwer is in a word ; but the evi-
dence of it, in a dull, and confufed report.
The tenor ofreafoning there, (if it merits the
name,) is in direct oppofition to the idea of a
continuing impeachment ; and the report is
abfolute nonfenfe, if Lord Holt, in that part of
it, affirmed the doctrine : for it would make him
coarfely, and abruptly, confute himfelf.
If he had faid the direct reverfe, a femblance
of more uniformity at leaft, if not of more ac-
curacy, would be given to this report.
The queftion was f{ if a writ of error to
" the next/$?0#ofa parliament fuperfeded exe-
" cution ;" Lord Holt is made, in the firft breath,
to
( "9 )
to fay, that impeachments may continue be-
tween parliament and parliament, which. he
could not bavejaid with truth, after the order of
1685, and the confequent aft of the peers, had
faid the reverfe, and which he could not have had
occafion to fay, if it was truej becaufe, that very
order had continued writs of error to the next
parliament. In the next breath, as if to help
that firft propofition, he cites a cafe which
proves a writ of error no fuperfedeas, if a par-
liament is -prorogued, and of courfe to a day cer-
tain, but a term intervenes.
The final refult of an argument fcarce intel-
ligible, but evidently tending to make the writ
of error no fuperfedeas, in other words, to con-
fider it as abated, in that view, tells the parties,
with all due folemnity, cc that it leaves them
" to do what they can at law ;" which, though
not very comfortable words in the found of
them, rather import the idea of a right in
the original plaintiff to act upon his judgment
at law as if die writ of error had not flood in,
his way.
LETTER THE NINTH.
tuus jam regnat Apollo.
S I R,
I A M come to a period, which, in the gene-
ral date of it, will be fure to command
your attention, reverence, and love. The air is
pure, and we tread upon confecrated ground.
Was the conftitution ever fo accurately under-
ftood, fo religioufly felt, and with fuch a calm
dignity of fpirit enforced, as in 1689-1690!
The charter of Runnymede, had flcetched a very
animated outline of our liberties. The * Jecond
charter of them in the bill of rights, brought
them home to us, and made them as practica-
ble, without injury to the executive power, as it
made them jealous in their checks upon the abufe
of it The vigilance of two great parties (loft at
an ill-fated hour in the factions that convulfed the
early periods of this prefent reign!) was tempered
by a common zeal for the public intereft, with
(hades of difference in the mode of accomplifhing
it. Not a fmgle meafure was carelefs, or corrupt,
* The petition of right, and the habeas corpus aSl, were, a*
far as they extended, of ineftimable value ; but, compara-
tively to the bill of rights, they were fhort, and imperfeft.
as
as heretofore ; but every thing was canvafled, and
the jealoufy between the two Eftates, though it
became dignified, had not loft either its acute -
nefs, or fpirit.
Under thefe powerful aufpices, in defiance of
the moft exquifite ridicule that ever enchanted
the houfe of commons, who at any time (if
it is not a libel upon them to fay it) prefer a
good joke to a good argument, I muft bring
forward Sir Adam Blair, and fee if truth will not
once prove that ridicule is not the teft of it.
Sir Adam Blair (or Gordon, if you prefer the
name for the fake of the ballad) with certain
others who had been impeached by the com-
mons for high treafon, was upon the 4th of
July 1689, by an order of the peers, impri-
foned. Their treafon was that of publishing in
the month of June, a declaration by King James
dated i-n May, by which he half invited, and half
bullied the fubjecis of King William into arm?
againft him.
Whether fuch an offence at this day, COH-
ftitutes high treafon, has been doubted in mo-
dern times * j but it was at leaft a high crime,
* Mr. Jujlice Fofter inclines to the opinion, that it wou!4
not be high treafon, unlefs " with a reference to fome treafonablt
" aft then on foot, or intended" Thefe are loofe words, and
the whole paflage is very obfcure.
S a and
( 132 )
and mifdemeanor, of the moft alarming effect,
at fo critical a period.
Upon the 25th of October in the fame year
1689, the commons firft impeached the Earls
of Salt/bury and Peterborough, (then pri-
foners in the tower,) for high treafon.
'Their treafon had no doubt upon it: and as it
was the offence of fhifting their allegiance to the
Pope, it was not likely at fuch a period as that
of July 1689, to be touched with a feeble
hand.
The imprifonment of Sir Adam Blair, &c.
remained as long as the parliament. Further
proceedings were had upon it, but no day was
appointed for his trial.
The parliament was, upon the 6th of February
in the fame year 1689, diflblved.
Upon the 4oth of March 1689, the parlia-
ment is again affembled; and upon the ift of
April 1690, the boufe refolved " to bail Sir
Adam Blair."
The very next refolution upon the journals
is in thefe words :
" Ordered That on Wednefday next this
cf houfe will take into confideration, whether
< c impeachments continue from parliament to
* { parliament."
Jt
( '33 )
It was then ordered as follows :
" That on Monday next, Sir Adam Rlair
" fhall put in bail."
Here, then, let us paufe, and obferve, that
with a reference to the cafe of Blair at the com-
mencement of that parliament, before the impri-
foned peers had made any application, the
lords determined critically to examine this liti-
gated queftion, of a' tc depending impeachment,"
but were either, upon the firft blufh of it, fatif-
fied concerning it, fo far as to bail that culprit,
though committed for high treafon, or muft
have ordered his bail upon fome 'political dif-
cretion of their own (and after they had them-
felves imprifoned him), without offence to the
commons.
Upon the Tuefday following, this order is
made : tf That on Thurfday next, the houfe
" will take into confideration, whether impeach-
" ments continue in Jlatu quo from parliament
"to parliament; and alfo, whether the courts
" in Weftminfter-hall may proceed in the in-
" tervals of parliament, after appeals or writs
<{ of error are depending in this houfe."
Upon Thurfday they order, " That, onTuef-
" day next, this houfe will take into confider-
f* ation, the flate of impeachments, whether
" they
( '34 )
they continue in ftatu quo from parliament to
" parliament ; and alfo the report from the
" lords committees, appointed to examine and
" confider, whether the courts below may pro-
'* ceed in the intervals of parliament, after ap-
" peals or writs of error are depending in this
houfe."
The very queftion here put, which could not
efcape the knowledge of thofe in the other houfc
\vho were the beft friends to the rights of the
people that ever fat there, announced a fufpicion
at leaft, that the order of 1 67 8 was at an end,
or contained bad law. But it gave no alarm,
nor was " privilege" offended by it, any more
than it was by the releafe of the culprit upon
bail.
No further fteps were taken, and the parlia-
ment was prorogued to theyth of July 1690. It
met again for bufmefs, upon the 2d of October
in the fame year.
It muft here be admitted, that, from April to
July, the imprifoned lords delivered no petition,
even after the queftion refpecling the continuance
of impeachments had been appointed for dif-
cufllon upon a day in the month of April, and
though Blair had been actually bailed. How
to account for this, or for the reafons which
induced
induced the houfe to go no further as to the in-
quiry then, it is impoffible for me to conjecture,
nor is it very material ; for, upon the firft
day of the parliament, October the 2d, 1690, a
petition was prefented by Lord Peterborougb y in
which, having ftated the diffolution, and the
act of pardon, he folicited that he might be dif-
charged. Lord Sail/bury alfo petitioned j and,
without dating the diiTolution of parliament, re-
lied, as it Ihould feem, upon the pardon alone.
Upon the 6th of October the lords met
again ; and the judges were aiked, whether the
offences of thefe Earls were comprifed in the
act of general pardon.
They anfwer " yes," if their crimes were com-
mitted before the ijth of February 1688, and
not in Ireland, nor beyond the feas.
Upon this hypothetical opinion, an immediate
queftion was put, whether they fhould be dif-
charged ; and the lords refolved in the negative,
but refolved to bail them.
'The Jame day lords committees were ap-
pointed by the houfe, " to infpect and confider
tf precedents, whether impeachments continue
(f in flatu quo from parliament to parliament,
" and having confidered thereof, to report their
" opinion to the houfe."
Upon
( '36 )
Upon the 9th of October, " It is ordered,
" that the lords committees, appointed by
c the houfe to confider precedents, whether
c impeachments continue in ftatu quo from
" parliament to parliament, have hereby power
<c given them, to fend for the records of the
" feveral proceedings in the court of king's-
" bench, relating to the lords lately in the
<f tower upon impeachments, upon their mo-
" tions for their Habeas Corpus."
Upon the icth, " Ordered, that the lords
cc committees, &c. do meet to-morrow, and thac
" Mr. Petyt attend at the fame time."
This gentleman was a famous antiquarian,
particularly tenacious of the rights and " privi-
" leges" of the commons.
No report was made till the 3Oth of October;
which is not unworthy of remark, becaufe in
proves with how much deliberation the lords
had proceeded.
Upon -this day (October 3Oth) Lord Mul-
grave, having ftated feveral precedents brought
from the tower, has thefe words :
" Then
" Then the committee examined the jour,-
" nals of the houfe, which reach from the 1 2th
" Hen. VII. ; and all precedents of impeach-
Cf ments fince that time, are in a lift now in
" the clerk's hands j among all which, none are
" to be found to continue from one parliament
" to another, except * the lords' who were lately
" fo long in the Tower."
Then followed this pafiagc -.
" After the confiderarion of which precedents,
cc and reading the orders made the i9th of
* e March 1678-9, and the 22d of May 1685,
" concerning impeachments ; and after a long
* c debate thereupon, and feveral things moved,"
(which means, I fuppofe, mooted or debated;
for if they were motions in a parliamentary
form, they would appear) " this queftion was
<e propofed, whether the two Earls lhall be now
* e difcharged from their bail?"
" The previous queftion was negatived ; the
" main queftion put, and refolded in the af-
" firmative."
Is it refinement here, or is it plain, and ob-
vious inference, to conclude from all thefe paf-
fages taken together, that a legal termination of
* There is one flight inaccuracy tn this exception I IhaJl
touch upon it in the fequel.
T the
( '38 )
the impeachment, fuppofed by the lords to
have refulted from a difiblution of parliament,
was the real ground of the difcharge ?
If it was the pardon, how could it operate fo
fo long even as ground for bail, and be made
afterwards ground for difcharge, without any
reafon affigned, or without evidence of the facts,
which alone could make the pardon fave thofe
peers ?
But, at leaft, will it be denied, that here the
lords, in the face of the public, adopt (though
not in exprefs words) the evident opinion of
their own committee, that the impeachment was
gt an end ?
If the pardon was their ground, they Ihould
have apprized the commons of that circum-
ftance.
The entire difcharge, under all the circum-
ftances, could only be juftified upon the idea of
their judicial opinion, that over the impeach-
ment itfelf they had no jurifdiction ; a point,
which they, like other courts, were exclufively
to determine for themfelves.
But what makes the real ground of this dif-
charge too clear for an argument is, that upon
|he 2d of December, Sir Adam Blair was com-
pletely
( '39 )
pletely difcharged, upon the mere allegation,
that he had been ready to appear " when or-
dered." What can this difcharge have been
grounded upon, but the impoffibility of fuftain-
ing an order for his appearance when the im-
peachment was no more r Here too was a
cafe of alarm to the commons j for either Blair
was difcharged pending an impeachment for
high treafon, without any reafon upon earth ;
or it muft have been upon the idea, that his
cafe fell within that of the two lords, which it
could only do in refpect of the diflblution, for
there was no pardon that could apply to Sir
Adam Blair.
As the catholic peers were firft bailed, ac-
cording to the cafe, and precedent of Sir Adam
Blair > upon a general view, and memory of the
orders in 1678, and 1685, Sir Adam Blair was,
by a fimilar train of reafoning, liberated even
from the gentle cuftody of his bail, when the ca-
tholic peers had obtained their liberty.
In the houfe of commons was your favorite
SomerSy then folicitor- general. Would he have
endured even a fufpicion y that an impeachment
fhould clofe upon a diflblution, if he thought it
found, and eftablifhed ufage of parliament, that
it fhould not ?
J T 2 A very
A very curious thing appears in the dififenting
proteft, which in its very firft reafon does not
feem to difpute the doctrine, but rather points
at the idea that others were to be helped by the
introduction of it into the debate j not the two
peers.
Here is another tacit, but ftrong, though
negative proof, that it was unexceptionable doc-
trine.
The reafon is unintelligible, if it refers to the
pardon j but if it refers to the doctrine as to
impeachments, nothing is more clear.
The whole queftion, as to impeachments,
was refumed, according to Burnet, with a view
to Lord Carmarthen, who then became a favo-
rite of king William, but was extremely ob-
noxious in the houfe of commons. They
even threatened the vote of an addrefs, to re-
move him from the king's council, upon ac-
count of his former impeachment ; a circum-
llance, which makes it even more unaccount-
able, that the commons, upon a fimilar fufpi-
cion to that which the diflfenting lords entertain-
ed, fhould not have taken fire at the mode in
which the vote of difcharge was expreffed, leav-
ing it equivocal at leaft whether it was not upon
the
the doctrine that impeachments were at an end
with a parliament in which they had been in-
completely acted upon.
The unqueftioned excellent of thefe times
is a powerful argument in fupport of any doc-
trines affecting the conftitution, exprefled or
implied by the lords or commons who then
fat.
Here too, " tie want of profecufton" by the
commons is not afferted, nor is the impeach-
ment (as in 1701) difmijfedi but the vote con-
fiders it as gone.
I have the honor to be,
SIR,
Yours, &c.
( '42 )
LETTER THE TENTH.
Jlle finiftrorsum, hie dextrorsum abit; unus utrique
Error; fed variis illudit pardbus.
HORACE.
SIR,
TO difcufs, with impartiality, the Duke * of
Leeds'* cafe in 1701, and that of Lord
Oxford in 1717, (which are to be the only fub-
jects of this Letter) I fhall endeavour to avoid
the extreme points, and what may be called,
even as againft laymen, the apices juris, in both
of the oppofite arguments j becaufe though in-
genuity may refine upon them, it muft either be
* It was archly faid in the houfe of commons, that he
was Lorn to make precedents ; and it is whimiical, that he is
always a witnefs for " depending impeachments" Before
1685 > he is perfecuted by a depending impeachment, and
a law to that effect is made for him ; natural enough in
thofe times : But that after that very law fhould have been
reverfed, he fhould come forward again with a new title of
honor, upon a new impeachment, and be made a witnefi
again for the departed order of 1678, not by a new perfeca-
tion, but in the very aft of being liberated from that new
impeachment, It a moft whimfical jump of the atoms !
wilful
( 143 )
wilful, and perverfe, or, at the beft, very inao
curate reaibning that can give them credit.
But reafoning from both of thefe authorities
comparing them together and comparing both
of them to the earlier precedents I fhall hope
to fatisfy the reader, that whatever imprefilon
he may have received from the orders of 1685
and 1690, has derived no prejudice from the
order of 1701 j and has derived advantage from
]Lord Oxford's cafe in 1717.
It is tbefaft, that in 1701, an impeachment
againft the Duke of Leeds appears to have been
difmifled, and for this one reafon " becaufe it
< f was not profecuted ;" though a diffblution of
parliament had intervened.
That order, by a young, but ingenious advo-
cate, was confidered in the debate as an adju-
dication " that notwithftanding a diffolution
< f of parliament, impeachments are legally re-
" fumed, and proceed." He told us, " that
<c it was the laft judgment of the peers upon
" this litigated queflion \ reftoring the order of
f ( 1678 by the rcverfal of that in 1685, and
f ( itfelf unreverfed." It feemed in general
Agreed, that he had miftaken thefe analogies,
jhough he Supported them, with ability; and
with
( 144 ).
with an impreflion upon all who heard him,
that his errors were thofe of an acute under-
ftanding.
It is a familiar principle of law, though ra-
ther implied, and adled upon, than affirmed, that
if two points of argument, or fad, are alleged,
by either of the parties in a fuit, or by a cul-
prit in his defence, or by a petitioner in his com-
plaint, as reafons for a judgment of the court,
and the court giving judgment in his favor,
exprefsly adopt only one of them, it is at
leaft no adjudication againft the legal weight of
the other.
Thus in Fifzbarris's plea two points arofe ;
one of them was the form the other was theyW-
fiance of that plea. When the court avoided
the queftion upon the fecond ground (which it
was in their power to do) by the nature of their
opinion upon the firft, and ruled the form to
vitiate this plea, they did not adjudge the fub-
ftance of it, upon which they faid nothing, to be
good.
Many reafons may be affigned, why a court
with peculiar difcretion may refufe to adopt one
of two reafons for their judgment, alleged at the
bar, even if they agree to it, and may obferve a
dead fiknce upon it. 1
But
( '45 )
But even lefs can the idea of fuch an implied
adjudication be afcribed, either by lawyers or
laymen, to a cafe in which, out of two points in
his favor, the party himfelf cbufes to allege one,
and prevails in it ; or throws himfelf in general
upon the court, and they give one reafon, which
is a fufEcient authority for them to comply with
his requeft; uttering not a fyllable upon other
topics, which might have led them to the fame
adt
Nay, even if they refufe to adopt one of
two reafons alleged, and give it as their direct
opinion, that if it flood upon that reafon alone,
the party would not fucceed, but then do for him
what he defires of them, with a reference to the
other ground; that firft opinion is confidered
as extrajudicial, and the fubject of it is juft as
open to legal difcufiion as ever.
Nor is it, as it was reprefented, neceflarily a
binding adjudication, or precedent, becaufe it is
the laft. It has weight, upon that account, and
fo it has at law ; upon this idea, that judges
in general pay a deference to the fuppofed accu-
racy of their predeceflbrs in a folemn decifion ;
but the deference is by no means implicit, or
blind, unkfs where the decifion is of remote
antiquity, and the cuftom of the law in adopt-
U ing
ing it ever fince, has given to it another weight,
though at fuch a diftance of time they are not
able to account for it, or even fhould have
no fcruple to refcind it if it had been re-
cent. In all other cafes, it is not the compa-
rative date of the judgment, that affirms it, but
the law contained in it, in the opinion of the
court who are ultimately to rule it. Of this
I can give you a memorable inftance, familiar
to the lawyers, and of no other confequence at
prefent except as a point of legal curiofity.
Before the at of parliament which made le-
gatees and creditors admifiible witneffes to a
devife of land, it was held by Lord Chief Juft ice
Lee, and the court of King's- bench, that fuch
\vitnefles were abfolutely incompetent.
After the aft of parliament, a cafe arofe in
the fame court of King's-bench upon a devife
before the act, and upon the very fame point
which has been ruled againft the competency of
the witnefs. Lord Mansfield, and his brethren,
determined that he was competent.
After this reverjlng decificn^ Lord Camden, and
the court of Common-pleas, replaced the earlier
judgment of the two by a judgment of their own,
conforming to it.
I am
( '47 J
I am aware, that by this mode of reafoning,
I may feem to depreciate the reverfing order of
1685; but I have faid nothing in favor of ir,
that militates againft thefe principles. For cate-
ris paribus* the later decifion is the beft ; but
I have gone further j and proved, as I hope,
the good law contained in it, as well as the
countenance it has received from later judg-
ments, or judicial atJs. I am proceeding to fhew,
that no judgment, or judicial acJ, or even extra-
judicial opinion of the fame court has ever fhaken
it; but that in Lord Oxford's cafe it was re-
cognized, and affirmed: not in a judicial form,
I admit, or with a mathematical certainty of the
fact ; but with a natural, and plain imprefiion
of it, which every man's common fenfe, in my
opinion, will entertain, when the circumftances
are laid before him.
As to the order of 1701, I can by no means
think it a circumftance of light, or trivial weight,
as others have done, with whom I have in ge-
neral agreed ; and I am ready even to admit,
that I fhould lay infinite ftrefs upon it, if it flood
alone ; as an authority (though I would not call
it a judicial one) againft the point which I am
endeavouring to fupport.
U , It
It muft, in general, be conceded, that either
the lords did not approve the two laft precedents
of 1685 and 1690; or that for fome political
reafon, with two firings to their bow, in the
Duke of Leeds\ favor, they chofe to ufe one
of them alone> which they found effential to the
cafe of the other peers; and which, being a new
claim in the terms of it, (though within a ge-
neral equity of their judicial powers,) they were
anxious to announce in multiplied inftances of
it, though in one of them it was not wanted for
the particular cafe. A third alternative is, that
having plain ground before them, which united
all the cafes under one principle, " the want of
"projection," they overlooked (I mean literally)
the diftinclion as to the Duke of Leeds.
Let us examine thefe alternatives; but let it
be admitted firft, in return for my concefllons,
that if this order can at all wound the authority
of thofe in 1685, and 1690, or of the aRs that
accompanied them, it muft wound them by an
intention to depreciate their credit, either appa-
rent, or naturally inferred.
I would therefore afk, in this view, if it is
conceivable that, in 1701, the peers meant, by
the reafon which they afligned for liberating the
Duke of Leeds > to replace by a fide- wind the
1 1 order
( '49 )
order of 1678, not before them, and, at One
ftroke, to overfet the judicial inference drawn in
1690, from a fearch of precedents, at leaft ela-
borate, and apparently impartial * ? Or, is not
either of the two other alternatives more pro-
bable?
It would have been a high difrefpeft for the
order of 1690, if the peers hadfaid in the order
of 1701, " being of opinion, that he has no
tf claim to be difcharged, upon account of the
" intervening difTolution." Would not many
of the peers who had iflued that order of 1690,
have ftarted up, and have claimed an audience
in fupport of their judgm ent? And could it have
been decently reverfed, without a debate upon
it?
* I was a little furprifed at the condefcenfion of a raoft
ingenuous, and liberal mind, in {looping to the remark,
" That Scroggs's cafe is omitted (evidently by accident) in
" the lift of precedents reported 1690, though conforming
* to that of Danby, and the catholic peers.." Nothing was
done upon it, and therefore it might flip from the attention
of that committee ; but more efpecially, becaufe it was before
the reverfing order of 1685, and pofterior to 1678 : So that
it was only the effeft of the order 1678 unreverfeel, and was
not in the view of the remark which the committee made,
by which they pointed at precedents, either earlier than 1678,
or later than 1685 ; meaning to convey the fame idea
which is more accurately expreffed by the diflsnting lords
in 1717.
Between
Between thefe two periods of 1690 and 1701,
there was no political diftinction, as there was
between 1685 and 1678. The peers in 1701,
acted with as much patriotifm as both houfes
of parliament could have difplayed in 1690;
and, as their main conduct had fb much honor
in it, one fhould lefs impute this kind of trick
to them 3 for no conceivable purpofe.
You obferve, that it was not the point made
by the Duke of Leeds : But even let it be af-
fumed that it was ; could any thing be more
natural, than for the peers to cbiife, that without
prejudice to his other ground, though alleged,
he fhould be releafed upon this, when they were
felicitous for the eftablifhment of it, with a view
to their own general powers ?
It is very obvious to me, that fomething of a
fimilar kind was done as to the two catholic
peers in 1690. The lords could have examin-
ed the effect of the general pardon upon that
cafe, by comparing it with facts, which the
authenticated evidence could have adduced,
and without which, upon the hypothetical report
of the judges, this act of general pardon became
wafte paper, as to thofe who claimed the benefit
of it. But they cbofe to defert this obvious, and
ihort inquiry, for the direct purpofe (whether
political,
political, or conftitutional) to liberate the peers,
upon the Jingle ground (as they moft clearly did)
of the terminated impeachment. If they did this,
in part, with a view to Lord Carmarthen , (who
had the talent of being always execrated by the
commons, under every title, and in every change
of his politics,) I fee no harm in it > as the fame
reafon which made him apprehenfive that a fingle
precedent, in fuch a period as that of 1685,
might not avail him in fuch a new <era of
things and men, as in 1690, might induce
the peers to examine difpafiionately, and fettle
this point; in order to redeem it, by aStlng upon
it, if it was right in itfelf, or to renounce it, if
it was wrong, by reforting to the other topic, of
the pardon alone.
It may be afked, however, upon what ground
it was, that in 1701, the law being thus
clear, and fettled, the Duke of Leeds deigned to
rid himfelf of the impeachment againft him
which could not hurt him ? I cannot anfwer for
the .Duke of Leeds in 1701; but it feems no
violent fuppofition, to apprehend that he might
think an aftual difcharge more convenient al-
together than a legal one, and the difmiffion of
bis impeachment a better fecurity for him than
an order of that court upon other impeachments,
liable to be reverfed, as be well knew, becaufe
he
he knew the order againft himfelf in 1678 had
been actually reverfed in 1685.
But what is to be faid of the whole proceed-
ing in 1717 ?
Here again triumphant ridicule (and the knot
is worthy of the god) has been taken for the
teft of truthy againft the moft obvious impref-
fions of as plain a fact, as ever came under the
difcuffion of unbiafied men.
I again alk of any individual, and let him
have your talents, or let him have none, if he
has but the ufeful character tfzjenfible man ; of
bim I would afk, or, with equal confidence, of
the acuteft logician alive, two queftions : Are
you thoroughly poflefTed of the facts upon re-
cord, and of the hiftorical ones, obvioufly ap-
plicable to L^ord Oxford's cafe in 1717? If
you are, have you any doubt in your mind,
though upon the evidence of analogy alone, that
by the peers, affenting to that vote, or dif-
fenting from it, " the end of an impeachment,
* f as rejulting from the end of a parliament"
was taken for clear ?
If you are not apprized of the facts, here they
are: Examine them fairly, and then determine
for yourfelf.
Upon
( 153 )
Upon the loth of July 1715, this Earl was
find impeached at the bar of the lords.
The tory-peerS) who were numerous, and
were his brothers in affliction, moved immedi-
ately two plaufible queftions enough : one for
an adjournment only of two days, the other for
a queftion to the judges cc whether the charge
u contained, or did not contain, high treafon.'*
Both propofitions were negatived by the whigi
(for the term in thofe times was more than a
found), though, as to the fecond of them, ic
feems unexceptionable, and a very dignified
caution againft imprifonment upon grounds
too haftily affumed upon the ipfe dixit of the
Upon the fame nth of July, this Earl was
committed, in the firft inflance, to the gentle
cuilody of the black rod.
But upon the i2th, an order of the peers*
find more fpecial than cuftomary, fent him to
the tower. The recital of it was that he was
impeached for high treafon, and that -particular
affs of high treafon were fpecifad by the im-
peachment.
X Upon
( 154 )
Upon the yth of September, his anlwer was de-
livered. Upon the ipth of that month, a repli-
cation was put in by the commons j and the
lords, upon the 21 ft, gave notice to the com-
mons, that his Majefty would give the
orders for fca Molding, &c. in Hfeftminfter-baH.
I mention thefe dates and particulars (little in
themfelves) to mark the zeal of his adverfaries,
who were in full power, againfl him. Of this I
fliall make ufe hereafter.
Parliament was then adjourned to October the
6th i upon which day the king announces the
rebellion in Scotland.
Then a fortnight's adjournment carried both
houfes to the 2Oth; from whence, through fe-
veral diftinfb intervals of new adjournments, they
arrived in the end up to the 9th of January
1715-165 when the king made another ipeech
alluding to the rebellion.
In their anfwer to that fpeech, the commons
marked " the mal-adminiftration of Lord Oxford,
" as one great fource of the rebellion;" thi*
peer then lying under the weight of their im-
peachment. In that which intervened, and was
more accelerated againft the rebel peers, a hint
was given, that Lord Oxford encouraged them.
Well
Well might James the Second exclaim, " all
" commons are the fame" No man admires
their public fpirit, and their political energy in
this government of ours, more than myfelf j
no man exults more in the general advantage of
their power to accufe a minifter, in, or out of
place 5 I think even the terror of it is of ufe,
and the juft exerciie of it, one of the moft
eligible advantages in the government. Buc
when 1 look at what I may call the tyranny of
their virtue, in fome of thofe judicial proceed-
ings which they have in faff inflituted, I am
fuch a tory y that I cannot reprefs the horror
which I feel in reflecting upon it : Here,
" Tros, Tyrtufve," is nothing to the fatal pre-
cedent of fuch intemperate conduct. If popular
zeal is ever to inflame a court of judicature, I
can fcarce imagine two better victims of it than
either of thefe Earls; but indeed, Sir, I am per-
fuaded that your goodnefs of heart will make
you revolt at thefe inhuman prejudications of
any culprit upon earth ; and I mud here do you
the juftice, to applaud your abftinence from any
fuch modes of irritating 'he popular mind againfl
Mr. Haftings. He is the worft enemy to im-
peachments, who can thus calumniate the noble
tnd which they have in view, by the mode of
profefiing to attain, or follow it.
X 2 We
We left the Earl of Oxford in 1715-16, and
early in that year we find him again, upon the
22d of May 1717, a fuppliant at the bar of his
peers, in a very modefl petition, reprefenting,
" that he had been imprifoned ever fmce the
" 1 2th of July 1715;" ftating, " that one
"prorogation had intervened j" and requell-
ing, not a difcharge, nor even bail, but in ge-
neral terms, " that his imprifonment might not
" be indefinite."
An immediate order is made, " that all the
" lords this day prefent be a committee, to
c< fearch, and report fuch precedents, as may
" the better enable the houfe to judge, what
" may be proper to be done on occafion of the
" faid petition, and the cafe of the faid earl, as
fc it now flands before this houfe. That the
" earl's petition be referred to the faid com-
" mittee, who are, in the firft place, to fearch
<f for, and report fuch precedents, as relate to
" the condnuancce of impeachments fromjeflion
" Mfeffion" Here one fhould have thought
they would have (lopped, for this inquiry would
have given the fole grbund which they took for
the vote they iflued ; but no thefe words
are added " or from parliament to parlia-
" went"
This
( '57 )
This claufe not being direftly to the point,
muft have been added for the fake of analogy
alone.
That analogy, as we know, could not, under
all the circumftances, if the whigs had common
fenfe, have been prefifed by them ; becaufe the
authorities upon dijfolution were againft them :
But for the tories to fet it up, was natural ;
becaufe, if they could prevail in it, all the force
of the orders in 1685, and 1690, would cover
them, and their favorite.
It was the obvious policy of the whigs, no
judicial precedent having reached the cafe of
prorogation, either in terminis, or (as they per-
haps concluded) upon found analogies, to dif-
tinguijh the nature of this interval, from that of
a dijfolution. It was the obvious policy of the
tories, to unite, and confound them. Lord
Trevor, a tory, and friend of Lord Oxford, was
at the head of this committee.
Upon the 25th of May 1717, they reported.
They cite in this report many cafes refpefling
dijfolution ; indeed all of them that were to be
found ; and I need not again (late the effect of
them.
Refpefting
Refpecting prorogation, they cite very few,
not, as I recollect, more than two; that of
Lord Fifcount Mordant, 1666; and of Sir Wil-
liam Penn, 1668; which amount only to this
conclufion, tf that after prorogation, the com-
" mons did not in faft proceed :" Which,
however, was not a circumflance unfavourable
to Lord Oxford, though it could not be of much
ufe to him.
But they feem to lay ftrefs upon the judg-
ments in 1685, and 1690; they do not over-
look the Duke of Leeds, in 17013 and they call
into the lift (for no very intelligible purpofe) the
indiftments of feveral peers, unaccompanied with
any account of the effect produced upon them
by either of the intervals, and, I believe, unac-
companied by the faff.
The queftion is then put, with ftrict pro-
priety, <e whether prorogation terminates im-
" peachment ?"
It is refolved in the negative j and the dif-
fenting lords, or fome of them, proteft.
i. " Becaufe tberefeems to le no diftinffion be-
cf tween a prorogation and a diflblution of par-
" liament, which, in conftant practice, have had
" the fame effect as to determination of judicial
" and
( S9 )
e and legislative proceedings ; and, confsqucntly
" this vote may tend to weaken the refolution of
fc May 2, 1 68 5, which was founded upon the law
<e and practice of parliament, without one prece-
" dent'to the contrary, except in the cafes which
Cf happened after the order made the i9th of
c< March 1678, which was reverfed and annulled
<e in 1685; and> in purfuance thereof t the Earl of
<f Salt/bury was bailed in 1690."
Whatever artifice, or fallacy of argument may
be contained in thefe records of diflent (and
I fee traits of both in this proteft), they are of
ineftimable value in one view, as keys to the point
of tbe debate.
There was no pretence for determining this
impeachment, unlefs prorogation fell within a
perfect, or, at leaft, a liberal analogy of diffolution.
The enquiry therefore, as to the effect of
diJTolution, was intruded upon the houfe, (by the
medium of the committee,) on the part of Lord
Oxford; the whigs not afraid of it, and there-
fore not refilling it.
That analogy, therefore, muft have been
prefTed in the debate ; and the written diflent
is generally a reinforcement of the topics that
J X 4 had
had been ufed by the peers who oppofed the
vote with a little more Jting, as the refult,
in part, of irritation at their defeat. What faid
the whigs in this debate, by way of anfwer to
the fortes in their attempted analogy ? Either
nothing^ which, in a debate fuftained by inge-
nious men, is not probable, or that the two
cafes were different, or that being the fame,
they were both of them, in parliamentary law,
cafes of continuance not of abatement.
If they had made the laft afiertion, what
could be more weak than for the tories to have
protefted as they did ? And Lord Nottingham
(one of thofe diflenting peers) was not a weak
man: Would they not, inftead of touching
with a general commendation upon the orders
of 1685, and 1690, have reafoned at length
upon them, and vindicated their propriety ?
Would they not have anfwered in their -prat eft,
as they muft alfa have done in the debate, thofe
grounds upon which thefe orders had been de-
preciated by their adverfaries ?
On the other hand, if the whigs denied the
analogy, they muft either have denied, or ad-
mitted the law that was affirmed by the tories
refpecting diffolution to be correct. If they
denied the law to be good, this proteft would be
5 abfurd -,
abfurd -, if they admitted the law, it would he
natural, and properly exprefled.
The tffett of their proteft is to fay : " There
" is no doubt as to dijfoluiion ; and prorogation
ff is the fame thing with a reference to this
<c point of determining an impeachment. We
<f are afraid of a new precedent ; which profeffing
<( in terms only to reach the interval of proro-
<c gation, may, in its confequences, derogate
" from the authority of that order in 1685,
cc refpecting dijfolution, upon which you have,
! yourfelves, judicially acted in 1690."
By the way, it is material to obferve, how
directly the aft of the peers in difcharging Lord
Salt/bury, is referred by thefe protelting lords
to the judgment of 1685. That reference they
muft have afferted in the debate; and it unuil
have been admitted, or they would have made
fome efforts to eftablifh it, inftead of barely af-
firming it upon the written argument. I there-
fore call every peer in this debate, as a wit-
nefs to the faft, that in Lord Sali/bur/s cafe
the houfe of peers did not act upon thep^r^flw,
did aft upon the order of 1685.
What a mockery upon good fenfe, good
manners, and parliamentary decorum (in a houfe
that claims the monopoly of it), if this proteft
had been written after a debate, in which the
Y order
( 162 )
order of 1685, and the effeft of it in 1690, had
been queftioned !
What could have been the ufe of fuch a fal-
lacy ? The wbigSy triumphant in reafoning as
well as in power, would have anfwered thus :
" tend to weaken the order of 1685 ! How
" can it weaken that which has no ftrength ? If
* c it has, we mean to weaken it, we mean to de-
<c ftroy it j we told you Jo in the debate. You
" ftate as an admitted point, that a difiblution
" ends an impeachment, as if conceded by us.
<e You cannot pretend ignorance that we made
" you no fuch concefiion."
It is an anecdote, but of fome importance,
that Lord Nottingham was prefent (and it may be
fuppofed not inactive) in the debates of 1685, and
of 1690. It would have therefore been peculiarly
difgraceful in that peer, to have fet up the vali-
dity of this order in 1685, by a general aver-
ment, if he had not felt his ground ftrong under
him, upon the fubfequent confirmation given
to it in 1690 j and upon the agreed opinion of
that fame court in this very debate of 1717,
I muft here imprefs upon the reader what
appears to me, a juft, and liberal diftinction.
Knowing of how little ufe would be the doctrine
of retaining the impeachment for the purpofe of a
new trial upon it, after the unexampled prolix-
ity of this, I have not expatiated upon the dif-
Terence, wide as it is in general reafoning, be-
tween that fpecies of continuance, and what
is now demanded by the commons, namely,
the right of going on with an impeach-
ment upon which evidence has been beard.
But in point ofufage, I take the difcrimination
to be this : That if all the various precedents
of parliament itfelf, applicable to the point of
continuing, or ending an impeachment, are laid
upon the fhelf ; in other words, if the decifion
is to be governed by analogies to other courts of
criminal juftice, and the leading principles of
it, in our law, the record being ftill in the houfe
of peers, that court would, or might aft upon
it, from the point of the record itfelf j calling
upon the culprit again to anfwer. 'The continu-
ation of the evidence would not be endured.
But if precedents in parliament itfelf are to
regulate, and controul this analogy, a diffblution
Y 2 of
C '64 )
of parliament, in that view, leaves no record,
upon which the court can act at ally or for any
furpoje in the new parliament.
I have the honor to be,
SIR,
Yours, &c.
LETTER THE ELEVENTH.
Aliud eft maledicere, aliud accufare. Accufatio crimen defide-
rat, rem ut definiat, hominem ut notet, argumento probet,
tefte confirmet. Maledidio nihil habet propofiti, praster
contumeliam ; quae, ii petulantius ja&atur, convicium, fi
facetius, urbanitas dicitur,
CICERO.
SI R,
1 HASTEN to releafe you (or, I fhould rather
fay the reader, who may have thought me
worth his attention) from the political, hiftori-
cal, and legal evidence, which an interefting
purfuit, at leaft in my view of it, has tempted
me to lay before you. Perhaps, in what I have
written, may appear that very zeal ofapartifan,
which I have deprecated, not only as an infult
upon the public, but as being of ferious pre-
judice to my own argument: Yet, I can with
truth affirm, that I have not been confcious of
this polemical fpirit, for a fmgle moment. If
the indifcretion of a nature, which does not
pique itfelf upon the oppofite virtue, or of a
pen, which never had the courage before, to
encounter general criticifm upon a field of fuch
extent,
( 166 )
extent, has betrayed me into words that are too
flrong, I recall them, and wifh the reader may
in candour put them to the account of that
" incuria," which evenjyoa, Sir, (though in you,
genius always accompanies it) cannot univer-
fally efcape.
It becomes me, who am one of the leafl of a
minority ridiculous in point of numbers, but
in many parts of it made refpectable by the
weight of* legal abilities, and perfonal character,
to be diffident in my own thoughts, or in thofe
which I may have borrowed from others who
formed a part of that minority, againft the poli-
tical, and favourite opinion of the day 3 at leaft
in parliament.
I am comforted however by this reflection-
that every liberal fupporter of the " viftrix cauja"
has admitted, in exprefs words, the importance
of the difcufiion; and has proved, that in his
own mind a doubt hangs over it, by thofe vehe-
ment efforts which his eloquence, or wit, or
talent of reafoning, or weight of party-con-
* I remember a minority of Jive in the houfe of lords ;
two of them were Lord Northington, and Lord Camden. By
accident Lord Mansfield was not in the houfe, or would have
madey?*, having given his opinion againft the vote that
prevailed.
nectionsj
nedions, or popularity of character, has called
forth into the debate.
Nor is it in one view unaccompanied with
fome flattery to the lawyers in this minority,
that perfonal ridicule upon one of them, and a
general banter upon their whole profeflion, as
a part of the fenate,has been thought a rhetorical,
or political expedient, of no defpicable value, by
fuch powerful reafoners as Mr. Burke and Mr.
Fox.
But, firft, I am to deprecate, as a conftitu-
tional member of parliament, all diftinflion of
rich and poor, of high or fubordinate rank, of
commerce or of land, of noble or plebeian
origin, of military or naval profeflion, of poli-
ticians or lawyers, of this or that ground for
independence, for ambition, for perfonal views,
or party engagements; in thofe, who, fuch as
they are, conftitute the reprefentatives of the
people: They are all of them treated by the
conftitution (without Marc -Antony's ridicule,)
as " honourable men" Thefe, are principles
which I have learnt ever fince I begun to
reflect upon the nature of a parliament, in the
popular fcale of it; and they are principles,
which I have learnt in part from your captivat-
ing eloquence.
Let
( '68 )
Let me afk in the next place, what is the
offence of thefe lawyers, which has drawn from
you fuch a contemptuous anathema againft their
whole profeflion (except thofe who voted, and
{poke upon your fide) j as if in future, the houfe
of commons could place no confidence in them ?
It is, that upon a fubject affecting deeply the eflen-
tial rights of the conftitution, and thofe of perfonal
freedom in particular, they could not furrender
their faith to the minifter of the day, to his, or
your eloquence, to the weight of your party,
and the minifterial one united ; or to a third fet
of their opponents, the culprit's admirers, and
friends; but have delivered their fentiments
like men of honour, without violence, but with-
out fear.
Shall it be forgot^ that mofl of them fee
in the minifter whom they oppofed in this de-
bate, an object of their general approbation, and
political attachment ? or, that on the other hand,
a very popular advocate, whofe want of po-
litical zeal for your fide of the houfe has
never been queftioned, came forward, and
threw the gauntlet, with his accuftomed fpirit,
in fupport of principles which he thought in-
alienable blefiings of the conftitution ? Let it
then be recorded, as at leaft one merit of thefe
diflfentient
t '69 )
diffentient lawyers, that party of no kind has at
all fwayed their conduct. As to their perfonal
character for integrity, (of all virtues in a fenator
the beft,) even the fc urbanitas" defcribed in the
motto, which diftinguiihed your elegant, though
keen fatire upon them, from the " convicium '*
that followed it, will hang like the fhaft in Virgil,
(( fummo dypei necquicquam umbone"
But, " they look to the konfe of lords.'*
Where, fir, muft that Revolution have been found*
which you fo correctly underftand, and with fuch
dignity have refcued from infidious friends -, if,
before the golden period arrived, Somers (a
name which no other, of any age, or of any fcene,
has yet furpafied, in liberality of fentiments, in the
delicacy of political difcernment, or in the moft
elevated fpirit of public virtue) had been called,
with popular effect, by fuch eloquence, and wit,
as yours, cc a bird of paflage," " not at home in
tc thehoufe of commons," but, " perching there
C in his way to the lords," with " his eye fixed
tf upon thofe flowers and fruits that were glow-
et ing, and ripening for him there, in that
" refting-place of delight ?" If in thofe days his
profeflion, which had always confiderable weight
in the houfe of commons, had been depreciated^
where fhould we have traced the " jttft" and the
Z {C tenacious
( 170 )
" tenacious of 'his purpoje" in Holt's character ?
or the experience, and Calm wifdom of May-
nard? If in earlier times the fame ridicule
had been fafhionable, we fhould have loft the
patriot firmnefs of Selden, accompanied with a
mafs of learning that in points of the deepeft
confequence to the liberty of the fubject, weigh-
ed his adverfaries down j the liberal, expanded,
and luminous mind of Lord Hale j I may add,
with all his blemifhes, the Earl of Clarendon ?
Were thefe, men of cramped ideas, or of that
grofs incapacity for conftitutional knowledge,
and political fpirit, which you afcribe to the in-
herent character, and radical infirmities of our
profeflion ? May I not afk too, if you have
difcovered in the hiftorian's page, that lawyers
have been even accujed of the " ejprit du corps, in
<c * parliament " or of any views to power and
rank, that were not rather challenged, than
folicited by the weight of their character ?
I fhall take up one more topic, which illuf-
trates, by a recent example, the public fpirit, and
the political independence of lawyers^ in the
boufe of commons.
Some of thofe who form a part of the mino-
rity upon your victorious 2jd of December 1790,
gave proofs of an attachment which no interefted
motive could fhake, either to their Jovereign,
(whom
(whom you, Sir but I check myfelf ) or to that
minifter, whom a certain awful event was threaten-
ing to reduce into the common ranks of life.
The chances were then a million, perhaps, to the
minuted value in the oppofite fcale, that a novus
rerum ordo, a new reign, in effecl, would fet a
mark upon their opinions, to the ruin of their
political hopes.
On the other hand, very fagacious politicians,
\vho were not lawyers, embraced a different
line of conduct, and begun to difcover merits
upon your fids of the houfe when it was going to
be the other fide of it, which till that critical,
that illuminating hour, had eluded their dif-
cernment.
Pofterity will determine (if it (hould be inte-
refted by fuch enquiries at all) whether here
the politician who was no lawyer, or the lawyer
who was no politician, afted with moft honor to
the public, and bed underftood the conftitution.
But he, whofe new opinion led him to emolu-
ment, and who became a " whig," juft at the
time, of all others, in which men of that name
(for it is. no more, " vox, et praterea nihil) were
to fill offices of profit, mull own to me, that by
accident, his public virtue appeared in a more
*' queftionable Jhape" than a certain obftinacy of
Z 2 opinion.
opinion, which paid its court rather to a felf-ap-
proving confcience, than to power and " tbe
fun."
Having, however, obferved, that before the
impeachment of Mr. Hafrings, you had not
formed this contemptuous opinion of the lawyers
upon other topics equally important, in \\hich
they took a part, I muft really hope, for
their fake, that your late ridicule of them arofe
from a diflike which you feem to have ingenu-
cufly conceived againft thofe land- marks of cri-
minal juftice, which their habits and reflections
have taught them to revere; from a with
to reach this Indian culprit with more facility
than mere law can admit, with a more ele-
vated hand, and upon more unfettered princi-
ples of reafon. I have obferved, that even the
rules, or principles (for fo ive call them) of legal
evidence are not admitted into yoi^r creed, as
any check .upon thofe who accufe by impeach-
ment. In vain you have been told, that fuch
rules as thefe had nothing technical in them,
but were inferences of found reafon, of the
moft liberal juftice, of that mercy which the
law of England loves, and of general conveni-
ence in guarding the " cuftodes i$fos," when
crimes are before them. But we muft unlearn
in your academy thefe quaint precepts, and admit
( '73 )
in a court of parliament, that even rules of tefti-
mony, like every thing elfe, if the legal organs of
the people accufe, are to fhift as well as they can,
according to the exigency of the day, or of the
minute; and fo model themfelves as to attain
the political object, or vindicate the national ho-
nor, in convicting, and punilhing a delinquent
of ftate.
MontefquieUj I remember, in his very inge-
nious chapter upon our conftitution, has given
to the judges upon impeachment a power which
the conftitution has net given to them; but it
is a power of mercy, in tempering the rigor of
the law which has been violated. The idea of
enabling the accufer to difpenfe with rules of
law, againft the culprit, in order to facilitate his
conviction, had not been imparted by his Englifh
friends to the docility of that enlightened biftorian,
nor had the wifdom of it ftruck him as a philo-
Jopbical reajcner upon the policy of government.
As to Mr. Ha/lings, whom - you have repre-
fented the lawyers to befriend, I take pride in
declaring, again and again, my uniform opinion,
that you have moft ably felected him as the ob-
ject of your impeachment j and that no adequate
juftice could ever have tried him for the offence
which you have charged againft him, (upon fuffi-
cient ex-part e evidence,) if this ultimate refource,
and
( 174 )
and folemn expedient of the national honor had
been overlooked, or entrufted into any hand but
your own.
The power of impeachment, if dignified and
chafte in the ufe of it, gives to our view the moft
elevated fcene that human juftice can admit:
not becaufe it has rules of its own, at a mo-
ment's warning, for any of its purpofes, adverfe
to the culprit ; not becaufe it may reflect upon
every judgment of the court, which is of ufe to
bim y and may inftitute even a perfonal conflict
with judges who form a part of that court* ;
not
* Lord Bacon fays ; " Let not the counfel at the bar chop
" with the judge, nor wind himfelf into the handling of the
" caufe anew, after he hath declared the fentence."
It is a diftin&ion of the managers for an impeachment,
that no counfel at the bar appear for them. The commons
execute no part of their accufing funclion by attornies ; they
demand imprifonment, or baiJ, or trial, or judgment, in their
wnperfons ; they are, in the eye of the confHtution at leaft,
tbeir own counfel ; and this, which has been lamented as a
difadvantage, is only too beneficial to them, unlefs tempa.-
rately managed, with a difcipline of felf-government, which
has been recommended even to an epic poet's difcretionj
" parcentis uiribus, atquc
ft Extenuantis eas, confuho!"
It may be, in the firfl place, an apology at once for a deport-
ment which no counfel would attempt ; becaufe be would know,
that it would give immediate offence to the court ; and for
propofitions, which no laivyer who valued his charades,
would rifque in a court of juftice.
la
( '75 )
Hot becaufe it may endeavor to intimidate the
advocates for the accufed by the political rank
of the accufers ; not becaufe it may harrafs the
party with fuperfiuous delay, and expence ;
not becaufe it may ramble into accufations,
which are not alledged, and cannot, therefore,
be authenticated: But upon very different ideas
of an elevated character. Becaufe it refcues a
national concern from courts that would be un-
equal to it, and fcorns to alk a jury of London
In the next place, it enables them to imprefs, by the
afcendant of their eloquence, topics of odium againft the
culprit, which admit of no proof. They can reafon thus
(and it is an argument from their f-Meaknefs, to their
Jlrengib):" We are no lawyers ; if you bind us by the rule
" of inferior courts, a rule that we cannot underftand, you
" tell us at once, that we are no longer to accufe : Let us
" proceed, my lords, by rules of our own, rules that we do
" underftand; fuch as the rule of policy of flate conve-
" nience natural juftice, interpreted by ourfelves, and
" without a fmgle fetter upon it principles of fentiment,
*' and feelings of public fpirit." In other words (but in
their fleeve) they can tell them-" Let us tempt you to
" convift this man, by eloquence, rank, and power !"
Jane pater," dare, dare cum dixit, " Apollo"
Labra movet, metuens audiri, " da tnibi, pulchre
" Fallen."
In the laft place, it elevates the advocate for the accufer,
who is indeed the accufer himfelf, into a figure of political
importance, with whofe pride of ftation, the only attainable
advocate for the culprit is not upon even ground.
or
( 176 )
or MiddlefeXy if treaties have been violated, na-
tions exterminated, or princes oppreffed, and en-
flaved*; becaufe the accufer by impeachment
is the people, in the moft awful fhape of their
power ; and if tribunals were to judge, who were
alfo taken from that clafs, they would be (as
Montefqtiieit, writing upon the very point, well
cxpreffes it, by a term that admits of no tranfla-
tion) entraines by the weight of fo powerful an
accufer j becaufe (to follow that writer) <c it k
" necefiary, in order to fuftain at once the dignity
" of the people, and the fecurity of the individual,
<c to make the popular branch of the legiflature
< c accufe before the other branch of it, confift-
tc ing of the peers, who have neither the pajfions
tf nor the intereft of the accufer;" becaufe it
holds a leffbn to rhinifters, great men of all
defcriptions, and even the fovereign himfelf,
that a feeling and a national fpirit, by its " ex-
ce frejs image" the houfe of commons, can reach
any delinquent of ftate, and guard the dignified
characler of Great-Britain againft the difhonour
of public wrongs j becaufe it marks to the pub-
* A more exquifite piece of fatire was never heard than
your's upon Sfrafton's fine, in the king's-bench : " The
" legal price cf a rebellion is looo/." But there was deep
fenfe in this wit ; for the courts of law have not arms long
enough to reach the extent of fuch crimes, or political energy
enough to puniih them as theyyc*/</ be punifhed.
3 lie*
( '77 )
lie, that although national feelings and politi-
cal objects elevate this proceeding in dignity
and ufe above a common indictment, the
accufer glories in fubmitting to that, which
is paramount even of his character*, to a law
that protects the " gisnt" as well as " the
ce poor Jharded beetle" the oppreflbr, and
the oppreffed, againd the worft of all tyrannies,
judicial defpotifm to a law of rules > and prin-
ciples, the accumulated wifdom of ages, and
calculated for no fhifting exigencies of the day,
but for univerfal judgment: becaufe he who
accufes by impeachment is, in a better view
of that phrafe, the people , feels as they feel,
and refpects, without fhame, as they alfo re-
fpect, thofe prefumptions for the accufed, which
every man's heart approves; thofe ramparts
of legal evidence, and of equal juftice, which
every man is born to fupport : becaufe the
impeaching fenator does not find his under-
ftanding too proud, or his enthufiafm too vehe-
ment, for thofe rules of competency^ and credit^
which govern the higheft courts of law in their
fyftems of proof j and are neither technical, nor
obfcure, but as liberal as they are clear, and as
* The anfwer of the judges to Henry the Vllltb deferves
to be writ in letters of gold : " An Inferior court could not,
" in law, or in j i<ft ice, doit; and we are of opinion, that
** \hz higher the court is, the more j aft they ought to be."
A a deep
deep in their policy as they are fmooth upon the
fur face.
But if to the uncommon advantages of
this accufer, can be added the indefinite conti-
nuance of his impeachment ; if the death
of the accufer in his popular office (which
alone enabled him to accufe) is to have no effect
in terminating the rifque of the culprit, but may
expofe him to a new accufer, more bitter, per-
haps, and lefs informed, or liberal, than the
firft ; if the king's power of diffolution may
baffle the riper judgment of the commons when
it inclines them to abandon their fuit, if it may
enable him, after accufing by influence through a
corrupt houfe of commons, to harrafs by delay,
to opprefs by imprilbnment, and convict by in-
trigue; a popular culprit, impeachments will be-
come unpopular, and great offenders will triumph
in their impunity. It is remarkable, that with
all the advantages of this proceeding in theory,
few impeachments, ever fince the line of Tudor
failed, have been either juft in themfelves, or
well conducted. Lord Bacon, and Lord Middle-
fex were proper objects of impeachment, and
fitly puniihed; but the mode of proceeding
againft them was abrupt, and irregular. The
impeachment of the rebel Scotch peers was moft
awfully, and ably conduced in both of the two
laft
( 79 )
faft reigns. The impeachment of Lord Macclef-
feldj though it fprung from political motives,
and was perhaps too fevere, was ufeful in the
example, and very dignified in its conducT:.
The impeachment of Sacheverell was entirely
political, violent, and injudicious ; though it
brought forward fome of the ableft arguments
againft " paj/ive obedience" that were ever
thrown away upon fuch defpicable adverfaries.
One of thofe arguments, and which is of unex-
ampled ability in the annals of Englifh, and per-
haps of Roman eloquence, brilliant as they are,
is the work of a lawyer; of that ill-fated, but
accomplifhed peer whom I have laft mentioned,
and who owed the feals to the exertion which
he then made.
The reverfe of the piclure it gives me pain
to contemplate. The impeachment of Lord
Danby was in itfelf perfectly juft, and, if guard-
ed in its defcription, pure in its motives, or even
decent in its conduct, would have done the houfe
of commons or the peers no difhonour ; but,
as it is, no meafure ever difgraced either of thofe
two afTemblies more. Nothing but oblivion,
or contempt, faves the earlier impeachment of
Lord Clarendon, from that brand of odium upon
it, which elfe would be it's fate. The impeach-
A a 2 ment
.( i8o )
ment of Lord Stafford was* madnefs in cold
blood : And the memory of Lord Nottingham^
great as he was in his own court, will be for
ever polluted by his addrefs to that peer, when
he apprifed him of his fate. Burnet calls it the
moft eloquent fpeech that he, the chancellor,
ever made j but cenfures the very folemn and
judicial declaration, that, <f a defign to murder
" the king, &c. had been on foot." Of the
eloquence, 1 fee no proof ; but of the humanity ,
and good Jenfe, let the reader judge by the fol-
* Impeachment has been compared moll abfurdly to the
fuit of a party in what is called the appeal, and which demands
punifliment for the injury fuftered, more than for the offence
to the public. It was firft pecuniary, and was changed into
capital, but ftill partakes the idea of civil, and pecuniary atone-
ment; inafmuch as the death of a convicted appellee, may be
expiated by a fine, that is, the appellant may releafe the ap-
peal for a fum paid as the condition of that releafe But the
ancient ufage was, that all the relations of the party murder-
ed, had the comfort or " pritalegt" of dragging the appellee
to his place of execution. This kind of/avage recompence, is,
after all, in a more enlightened age, encouraged as a part
of our law; for the appeal at this day is, in its legal principle,
nothing elfe ; and it feemed as if the managers againft the
Vifcount Stafford felt that principle of the analogy ; with only
one made of difference, that in fhedding his blood they re-
fented the injury of others, or punifhed his religion by the
murder of a harmlefs, and weak individual, becaufe they could
not punifh it in the Duke of York, by excluding him from
the Englifa throne. Thefe, I call, again, the tyrannies of
public vh tue.
3 lowing
lowing extrafts; which, if they were not fol-
lies .that ended in fhedding innocent blood,
would ftimulate one's ridicule more than one's
horror.
< f Who would have thought that a perfon of
* f your quality, &c. fhould have entered into fo
" infernal a confpiracy as to contrive the murder
" of the king, the ruin of the ftate, the fubver-
" fion of religion, and, as much as in you lay,
" the deftru&ion of ALL the BODIES and SOULS
({ in THREE CHRISTIAN NATIONS ?
. . . . tc That there hath been a general, and a
" defperate confpiracy of the papifts, and that the
(( death of the king hath been all along one chief
" part of the confpirators' defign, is now afpa-
*' rent beyond all probability of doubt ."
Mark his proofs ! fc What was the meaning
" of all thofe treatifes which were publifhed
<c about two years fince againft the oath of
" allegiance, at a time when no man ever dreamt
<f of fuch a controverfy ? What was the mean-
" ing of Father Conyers's fermon upon the fame
" fubjeft j but only, there was a demonftration
" of zeal, as they called it, intended againft the
" perfon of the king, which the fcruples arifing
^ from that oath did fomewhat hinder ?
" To
f To what purpofe were all the correfponden-
c * cies with foreign nitions ? The collection of
<f money among the fathers, abroad, and home ?
" What was the meaning of their governing
Cf themfelves here by fuch advices as came fre-
c < quently from Paris or St. Omer's ? And how
<f fhall we expound that letter which came from
tf Ireland, to aflure the fathers here, that all
* e things were in readinefs there too, as foon as
<c the blow fhould be given ?
" Does any man -now begin to doubt how
" London came to be burnt \ or by what ways,
<c and means poor Juftice Godfrey fell? And
" is it not apparent by tbefe inftances, that fuch
<{ is the frantic zeal of fome bigoted papifts,
"'that they refolve no means to advance the
" catholic caufe fhall be left unattempted,
" though it be by fire and JwordT*
The impeachment of Lord Somers> &c. in
1701, and that of Lord Oxford, &c. in 1717,
came to nothing ; they were political meafures
of party- intrigue.
A fingle word upon the conduft of the impeach-
went againft Mr. Haftings. I admire moft
unequivocally, the eloquence employed in it, for
the nobleft of all purpofes, I think too, that
as
as long as our commiffion, if I may ufe that
phrafe, is unrecalled, we cannot blame the ma-
nagers, with delicacy, or prudence. I difapprov-
ed the check which you received in the houfe
of Commons, upon the fubject of Nuncomar^
and I did not vote for it. I lament, without
blaming, the time wbicb has been occupied in this
impeachment, for one plain reafon Mr. Haft-
ings is either innocent or guilty: If the former,
his acquittal is bare fecurity ; it is not honour,
as it Jhould be ; for it will be afcribed by the
common obferver, to the mere impulfe of
compaflion upon his judges for the anticipated
punifhment which he has already undergone:
If he is guilty, conviction, and punifhmenc
will be lefs exemplary; becaufe, they will be
counteracted, and weakened by the fame com-
paflion operating upon the good-nature of th
public. I am, however, much pleafed with your
laft propofal, to fhorten the remainder of your
articles : It was humane to the culprit, juft ia
its principle, correct in its form, and very ju-
dicious in the refpect it marked for the public
opinion.
I have the honour to be,
, SIR,
Yours, &c.
C 184 )
LETTER THE TWELFTH.
Nunc, quamobrem has partes didiceiim, paucis dabo.
TERENCB.
SIR,
HERE is not one of the many aftonifh-
JL ing talents, that nature, in her moft par-
tial mood, has given to Mr. Fox, which I have
fo often wifhed in vain to borrow of him, as the
talent of abbreviating, with new force, the fub-
fiance of an argument previoufly delivered by
himfelf; but with fo little hint of a regular
method, and with fuch variety of detail, that
you would little fufpefb the arrangement, by
which the parts of it are divided, or united, as
links of a chain.
In general, attempts at an epitome, either,
according to Horace's comment upon them,
(t ftrain at brevity, and become olfcure j" or
they are tirefome repetitions of thefenfe, in paf-
fages of detail, if not of the words ; or, without
being
being fhort, omit the pafifages which moft re-
quire to be imprefled.
I fhall hope to avoid thofe defefts ; though
I defpair to catch the fainteil ray of that envied
'power which in Mr, Fox appears to me unex-
ampled, and above all competition.
My firft attempt has been, to refute general
principles which I thought new to the conftitu-
tion, dangerous to its freedom, and ready apo-
logies, in worfe times, for the law of tyrants in
the houfe of liberty ; for a dijcretion, which is
an abufe of the term, becaufe it is blind and un-
limited; for difcord between the accufer and
the judge j for endlefs confufion between rules
and principles, between expediency and right,
between legal and conftitutional -, for convert-
ing public accufers, and an open trial, into a
fcene of infult, and of torture, which the pureft
virtue could not efcape.
Combating thefe principles, with an impartial
zeal for triuh, but with a diffident fpirit, I have
feparated the reafons from the eloquence that
clothed them in a robe of magic, which not only
adorned, but confecrated them. Ingenuoufly wilh-
ing to deprive the argument of no weight that
was due to it, I have caught, perhaps, the mere
J B b points
( '36 )
points of it, their Jubftance, arrangement, and con-
neffion, though in a very few lines.
Protefling ^gainft the competency of an in-
ference to whaf is juft, from what is expedient,
(though we are told that convenience is jttfti
prope mater,) I have yet anfwered this popular
challenge, putting feveral cafes, (none of them
I hope, extravagant,) in which the continu-
ance of trial by impeachmmt, after a diffolu-
tion of parliament, would ftrike with infinite pre-
judice at the liberty of the fubject, and with a
death's-blow at the accufer's difcretion, which is
an eflcntial part of his right, and of his truft j
-would enable the king to guard his minifter with
lefs indecorum, and would give him a more
ample field of power, in the perfecution of a
meritorious culprit.
I have then grappled, as well as I could, with
all the other topics, in fupport of this vote, arif-
ing from the nature of parliament, and from the
nature of impeachments. I have met, and re-
fifted, the new doctrine of a parliament ajleep,
and wakened by the king; the inherent right
of a peer (equally new) to demand, without ce-
remony, his judicial character, as being infeparable
from his robs, in the houfe of peers ; the legal
organ of the people, in their function (or " privi-
C 187 )
n kg f "} f accu ^ er > which is alive, it feems,
and has a pulfe (like fwallows in the winter) be-
tween one parliament and the next, be the in-
terval ever fo long ; the comparifon of this legal
organ to an attorney-general - t and the right of
impeachment, confidered as privilege. Here
too I have fuftained, as I hope (not againft ri-
dicule, but againft any juft imputation), a doc-
trine, which I avow to be a rooted part of my
political faith and creed ; " that by the conftitu-
<f tion of this government, the commons of Eng-
<f land, in parliament aflembled, have an inde-
" pendent mind, inftead of being agents, in any
ct fenfe of the term, either to their local elector,
tc to the conftituent at large, to the people out
" of doors, or to another houfe of commons ;
< that it is the duty of their feat, and reprefent-
" ative character, to act for the general and real
ce intereft of that popular claim upon the go-
" vernment, which they perfonate j but with a
" fenfe of honor purely their own i with a dif-
<c cretion of their own-, with a political fenti-
<f ment of men, or meafures, equally unfettered ';
<f and with fuch ideas of conftitutional freedom,
cf as their own refearches, habits, or feelings,
<c may have prompted them, bond fide, to en-
" tertain, in direct oppofition (if their con-
" fcience makes it neceflary) to the wifhes, and
B b 2 " pofitive
( 188 )
* pofitivc injunction of the electors, or to the
" teftamentary admonition of departed repre-
" fentatives."
And I hold this doctrine to be that of as true
a whig, as any in the houfe of Cavendijh, Ruffell,
or Eentick. I have called upon Mr. Burke for
bis countenance to this faith, by the maniieft in-
dependence of conduct that his public life has
ever marked j when, addrefilng his electors, he
communicated, in better language, the fame
ideas which, in mine, expofed me to ingenious,
but ill-founded ridicule, and, moft unfortunately
for me, in the moft eloquent fpeech that has
been heard.
I have combated the mifapprehenfion (as I
took the liberty of fuppofing it) which gave to
the commons of England, or of the realm, a con-
tronl over the commons in parliament, as public
accufers, becaufe every impeachment is in the
fiame of them both ; an illuftration, as I con-
ceived, of my own principle j inafmuch as all
the authority which is imparted by the name of
thofe prouder commons, who are emphatically
defcribed, " of the realm," is given to their
Jubalterns, the commons of Great Britain in parlia-
ment ajfembled, with an abfolute power to make
ufe of that name, as their own. You, Sir, ufmg
the
the <c ardentia verba" that imprefii your fend-*
ments with fuch force upon us, have told us, that
we> the commons, have in ourfelves, by fome-
thing livelier than reprefentation, by " exprefs
" image," the " feelings of the nation" Thac
we have, by the conititution, a general credit
for thofe feelings, I admit ; but that a fympathy
of thofe feelings animates all our meafures, or
opinions, and principles of government, is not
even our theoretical boaft : It happens, for
example, that your profecution of Mr. Haftings,
in which the fenfitive delicacy of honor, that
ihould be national^ as well as perfonal, was deeply
at flake, found the public at large completely
indifferent ; I was generally anfwered, " we
tc don't care about him :" The diftance of the
Jcene was, in part, the occafion of that indif-
ference j but another, and more powerful caufe
of it was, that pretence for idlenefs which moft
of us too readily embrace ; this, called itlelf
" the difficulty of the fubjeft ;" which, to thofe
who were not initiated, was tc chacs and old
cc night:" What effect your brilliant perfpi-
cuity in developing Indian politics, complicated
as they were, may have produced upon the na-
tional feelings, better inftrufled, it becomes not
me to fay.
I have marked this independence of character
in the commons, with peculiar anxiety, where
it
it authorized, and obliged them to difclaim the
influence of their predecefibrs, to refufe their
moft confummate afts, either pafied without the
afifent of the other eftates, or with it, if to any
conceivable extent fhort of the legiflative power.
I have traced the fame character as extending
hfelf to orders of any kind ; even to orders
for the fupport of their privilege, a point, in
which their conftituents, and the next houfe of
commons have an equal intereft : orders, de-
liberately formed, and exerted with fpirit, buc
either left incomplete, though in the minuted
part of them, or incompletely executed. I have
reminded the public, of that jealous conftitu-
tion, that will not Juffer the next houfe of com-
mons, to difgrace their calling, by a confidence
in thefe meafures, taken up at the 'point of their
interruption ; or if they were in $<nam> fuffer
the object of them to be touched*.
* The idea of a feptennial change in the reprefentatives,
does not originate in the fuppofition of a national judgment,
that will influence the old and the new alike; but in the direft
reverfe in the policy of changing the men, by way of guard
againfl their abufe of power. Minorities and majorities are
often tranfpofed by this general appeal to the eledor, and
the legatary intereft of an impeachment againft Mr. Pitt, if
tfierc had been fuch a meafure, it would have been perfeft
ridicule to name, with a reference to this irgan of the people^
&c. at the opening of the hit parliament.
I have
I have diftinguifhed the commons in parlia-
ment from an agent of any kind, from an attor-
ney general in particular, who may be difplaced
by a fudden breath of caprice, or of party, at
leaft ; and who is bound by the ads of his prede-
ceflbr, becaufe they are both of them treated as
mere agents of the king, who has bound bimjelf
by the words, or the afts of his agent, for the
time.
I have ftated what appears to my underftand-
ing, the foundeft argument that can be offered
upon the general principle, as refulting from the
f ourfe of parliament ; a variety of inftances,
amounting, in their number, and value, to a
general principle-," that no chain of pro-
" ceeding can be taken up, and continued, by
ct either houfe of the legislature, in a parliament
cc that is new, though in points of the moft criti-
" cal importance to the welfare, and fafety of
* f the kingdom."
I have traced the admitted rule as to bills
which had pafied botb houfes of parliament;
and I have traced it, not as an exception, or as a
technical rule, ftrifti juris, and with an obfcure
origin j but as a marked illuftration of the gene-
ral principle, which is raifed upon many other
jnftances of a fimilar nature -, indeed, ujfon all,
this
( 19* )
this of impeachment alone cxcepted if it is an
exception.
I have argued as forcibly as I could, becaufe
it was in fupportofan honeft opinion, from a
bill of attainder, where the culprit of ftate
is, in a peculiar degree, an object of natural
punifhment, where the commons unite a.judi-
cial to a legiflative character, where the recourfe
to billy proves it the only way to reach the
culprit, for offences which may touch the vital
fecurity of the government. I aflced, and 1 afk
again, if Mr. Haftings had been a favourite
minifter of another fovereign, of Charles the fe-
cond, for example ; and if the legiflative trial
had lafled, as it might have done, for three years,
what an eafy tafk would the admitted conftitu-
tion have put into the hand of that fovereign,
juft after the lords had pafied the bill, to end
the parliament, and clofe that proceeding for
ever ?
Having thus cleared my way, firft, of the
general principles, either as introductory guides
to the debate, or, as bearing directly upon the
conftitutional fenfe of a depending impeach--
ment, I have next followed you into the
ujage of parliament, which is an admitted, and
eflential part of its law.
I have
( '93 J
I have adj ufted here, the onus prolatiefi -, in-
filing, that as the continuance of impeachment
after evidence bedtd by a former court of the
peers, has never happened in faff j and as any
continuance of it muft be a perfect anomaly,
with a reference to the general principle, it was
for them who affirmed that continuance, to fill
up this blank, by evidence of, at leafl, indirect,
and collateral ufage, whofe analogy would reach
the cafe before us.
I have touched upon the political argument
of difabling a minifter to elude an impeach-
ment -, and have reverfed the hypothecs, by
Chat of a king adverfe to a popular culprit, a dif-
carded minifter for example, and at the head
of a powerful oppofition, in a corrupt hotife of
commons ; the accuier tired, or frightened, by'
the popular clamour the evidence clofed on
both fides the diflblution of parliament by an
obvious fineffe enfuring his punifhment at a fu-
ture, and more commodious period, " with all
<c appliances y and means to boot"
I have protefted againft the unequal, and par-
tial juftice, which is, in other words, no juftice
at all, of imputing to the commons an exemp-
tion from the human accidents of defpotifm,
.intrigue, and corruption; but, giving the mo-
J C c nopoly
( '94 )
nopoly of thofe infirmities either to the fove-
reign, or his minifter. Here, as in many other
parts of the work, I have taken pride in the
idea of a tempered authority, in which a mu-
tual, and jealous vigilance againft the abufe, or
afiumption of right, guards all the power of
government, and is the beft of all fecurities for
the governed*.
I have barely touched upon the analogies of
law, in other, and, as they are called, inferior
courts j becaufe I knew, how fliy the layman
is (unlefs when he has political occafion for
them) of thefe analogies, and becaufe I really
did not feel that I wanted them, unlefs where
the moft obvious good- fenfe annexed, and united
them to the law of parliament, fo as to make
them in principle one and the fame.
>
I have marked the neceffity of confulting fre-
cedentSy and of confulting them deeply -, refufing
the paradox which called itfelf by the name of
<c privilege*" and confined the infpection of
journals to the houfe of commons, in which no
judicial precedent could be found.
* " Pour qu'on ne puiffe abufer du pouvoir il faut que
" dans la difpofition des chofes k pouvoir arrete kjouvoir."
MONTESQUIEU.
I have
( 195 )
I have compared the two precedents of 1678
and 1685, fummarily at firft, but extended the
enquiry as to both, into the character of the age
in which thofe orders refpectively iffued. I have
examined hiftorically, the actual view, and ufe
of the order 1678, followed, and preceded by
various acts of cruel injuftice, levelled at the
Earl of Danby in parliament. In fhort, I have
proved, as I think at leaft, the whole fyftem of
thofe tranfactions political, and corrupt, or at
the beft, as having paffed in times that could
almoft be defcribed, " flagrante bello"
I have met the new argument, new I mean,
as facing the light, which has built the order
of 1678 upon a fuppofed analogy to that of
1673. The reader will judge for himfelf, upon
this refined analogy, after the diffection of it
which I have taken the liberty of preferring to
his view.
I have difcrimmated the effect of impeach-
ment upon the difcretion of bail in " the courts
*< below" (as we, members of parliament, call
them,) an effect, which has been argued as
proving " the continuance of impeachment,
" even in the eye of law, when parliament is no
* c more." I have explained in what refpect this
right of bailing is neutral, and in what other
1 C c 2 view$
views it rather injures than aids the fuppofition
of a " defending impeachment."
I have flated the cafe of Blair, and the ca-
tholic peers in 1690, with all the candour, and
particularity/ that could bed enable the reader
to form his own conclufion.
I have admitted the force of the argument, as
far as it goes, refulting from the order 0/1701,
\vith a view to the Duke of Leeds j but I have
limited the extent of it, by the natural effect of
the judicial affs preceding it ; and I have, at
leaft, as I hope, replaced the authority of thofe
judicial atts> by Lord Oxford's caje> upon the
footing of its reference, and analogies.
I have made a fhort, but, I hope, fuperfluous
apology, for that liberal, and ufeful profefiion,
which I confider, (though few have gratified in-
genuous ambition lefs in it than myfelf ) as the
moft honourable part of my exiftence ; and
which, as a relation of Lord Somers told you,
with as much truth as manlinefs gave to us tbe
Revolution.
I have next offered, and perhaps obtruded,
an independent, as well as cordial teftimony, to
ycur public fpirit that of the minifter of the
parliament
( '97 )
parliament and of the age in this profecmion
of Mr. Haftings. I have commended impeach-
ments in general, with a zeal which I felt ; but
1 have taken the liberty of adding, what *l co.n-
fider as the demand of an impeachment upoa
the accufer and the judge, in their mode of con-
duping it, with a view to the national boner, and
even to the political wifdom, at flake in it.
Forgive, Sir, this attempt at a general re-
view of my own argument, contained in thefe
letters to you ; an attempt which I have made
for the purpofe of convincing, in a few words,
thofe who are familiar to the debate, that I have
taken up moft of the topics, if not all of them,
which had been prefled into the argument there;
and, at the fame time, in order to delineate
what appears to me a correct method of treating
the fubject:, in point of arrangement.
Your character, Sir, is really fo eminent in
fame of more kinds than one, that it would be a
degree of impertinence for me to commend it.
13 On
( '98 )
On the other hand, there is nothing more difin-
genuous than violent, or unqualified praife:
Though to expatiate on the faults of a celebrated
perfon, is at once invidious, and mean. I hope
it will be admitted, that I have treated your pub-
lic name widi refpect j the obligations of the
public to many of your c.ffbrts, with gratitude ;
and the purity of your intentions, in which I
have always confided, with efteem : but without
prejudice to that ingenuous freedom, which en-
ables even me to oppofe many of your fenti-
raents, whether exemplified in your words, or in
your conduct.
From the reader (\djhouldbtread) I am
the moft anxious to obtain this comment upon
my work ; <f that I have written as I thought,
" and felt; that I have Hated the adverfe ar-
<c guments to my own, with candour ; that I
** have not been flippant againft any of thofe
" with whom I have differed j or ill- tempered ;
or too confident in the refult of my own en-
quiries." If he Ihould then tell me, <f that
<f I have been fortunate enough to refcue the
* c minority of December 23, 1790, from a cur-
c rent opinion of their diftrefs for the want of
" liberal, or conftitutional fupport ; and that I
u have opened the fubject fairly to a difpaf-
" fionat
( '99 )
<c fionate review " I fhall be overpaid for the
time thefc enquiries have occupied, and for the
painful folicitude of the mind engaged in them.
I have the honor to be,
S I R,
With infinite refpect and efteem,
Your moft obedient fervant,
GEORGE HARDINGE.
BEDFORD-SQJJARE,
4th April t 1791.
UNIVERSITY OF CALIFORNIA AT LOS ANGELES
THE UNIVERSITY LIBRARY
This book is DUE on the last date stamped below
JAN 1 3 1959
DEC 2 2 1958
.... .
QEC192003
473.5 Hardinge -
A series o;
letters to
Edmund Burke *
\PR
DS
473.5
H21s