149 CHAP. XVII. IMPEACHMENT.-BILLS OF PAINS AND PENALTIES. The Parliament have also power to punish any who judge for man and not for the Lord; who respect persons or take gifts, or any way misdemean themselves in their offices. WHITELOCKE, Notes on the King's Writ. Ir is absolutely necessary to the preservation of an established form of government, that there should exist a legal method of bringing to punishment those who endeavour to subvert it. For this reason the executive magistrate is always entrusted with the means of proceeding to a trial against persons who conspire against his or their lawful authority. Nor is it of any avail to the rebel, to say that, if he had succeeded, he should then have been possessed of the autho rity of the state: it is very true that he would; it may be true that he would have exercised it better; but until the government is dissolved, it must, to prevent anarchy, inflict severe punishments on those who stand out in open insurrection against it. In the same way, and for the same reasons, there must exist in a free state a method of accusing those persons who have abused the authority confided to them for the purpose of usurping undue power, or corrupting the citizens, or obtaining ends adverse to the general interest of the community. In this case the discretionary power of proceeding to trial cannot rest with the executive magistrate; for he is generally the party complained of: it must reside in the popular branch of the state. It is therefore wisely provided in our government, that the House of Commons should have the right of impeachment. This extraordinary power, thus confided to the representatives of the people, enables them to denounce, as guilty of high treason, all who shall violate the law upon this subject. It enables them to denounce, as guilty of high crimes and misde meanors, all ministers of state whose conduct is injurious to the interest of the nation. Some very narrow-minded men, I know, have maintained that an impeachment can only lie against an indictable offence; but this doctrine is in plain contradiction to three out of four of the impeachments which have been brought forward. To take one instance only: In the case of the ministers who signed the Treaty of Partition at Utrecht, the House of Commons resolved on April 1. 1701, "That William earl of Portland, by negociating and concluding the Treaty of Partition, (which was destructive to the trade of this kingdom, and dangerous to the peace of Europe,) is guilty and shall be impeached of high crimes and misdemeanours."Now what petty jury could take upon them to say that a treaty was destructive to the trade of England; or to bring in a verdict of guilty, on a charge of endangering the peace of Europe? The same thing may be said of the impeachments against Oxford and Bolingbroke for signing the Treaty of Utrecht. Those who argue that impeachments can only be brought for an indictable offence, say, "it is true a jury could not try these offences; but that is only. an objection to the jurisdiction; every misconduct in office is a misdemeanour at common law." This answer, it is evident, is a mere evasion; it is only saying that every wrong is a misdemeanour, but that a great part of these misdemeanours can only be tried in Parliament. It is impossible for the King to stop the progress of an impeachment. His pardon under the great seal cannot be pleaded in bar of trial. His prerogative of prorogation, and even of dissolution may suspend, but does not put an end to the proceedings. These two securities for justice were contended for during the trial of the Earl of Danby, in the reign of Charles II.; the first was established, at the Revolution, and the second confirmed during the impeachment of Mr. Hastings. It is much more difficult, in a free state, to find impartial judges than to find courageous accusers. There can hardly be any body of men who are at once qualified to form an opinion on political questions, and who are not disqualified by having formed one before they are called upon to judge. This latter fault, it must be owned, is found in our House of Lords. It is difficult, if not impossible, to bring a principal minister before them, on whose conduct they have not already pronounced judgment in their own minds. For this reason we find, that when the Lords are in favour of the accused, Lords and Commons generally conspire to produce a quarrel between the Houses, and thus avoid giving judgment. So it happened in the cases of Lord Danby, Lord Somers, and many others. The experience of later times has not made impeachments more easy in the trial, or more impartial in judgThe impeachment of Hastings was a long punishment; and in the last case of impeachment the Lords were found to vote more from a sense of gratitude, or a sense of friendship, than a sense of justice; and some came to the decision without having heard a word of the evidence. ment. Bills of attainder and bills of pains and penalties, are of a very different nature from impeachments. They have been generally, if not always, used on occasions of great moment and urgency. Two circumstances seem to be requisite to all bills of this kind. First, That it is impossible |