Constitutional History of England, Henry VII to George II. Volume 2 of 3

by Henry Hallam

Questions arising on the impeachment—Danby's commitment to the Tower.—The impeachment of Lord Danby brought forward several material discussions on that part of our constitutional law, which should not be passed over in this place. 1. As soon as the charges presented by the Commons at the bar of the upper house had been read, a motion was made that the earl should withdraw; and another afterwards, that he should be committed to the Tower: both of which were negatived by considerable majorities.[721] This refusal to commit on a charge of treason had created a dispute between the two houses in the instance of Lord Clarendon.[722] In that case, however, one of the articles of impeachment did actually contain an unquestionable treason. But it was contended with much force on the present occasion that, if the Commons, by merely using the word traitorously, could alter the character of offences which, on their own showing, amounted only to misdemeanours, the boasted certainty of the law in matters of treason would be at an end; and unless it were meant that the Lords should pass sentence in such a case against the received rules of law, there could be no pretext for their refusing to admit the accused to bail. Even in Strafford's case, which was a condemned precedent, they had a general charge of high treason upon which he was committed; while the offences alleged against Danby were stated with particularity, and upon the face of the articles could not be brought within any reasonable interpretation of the statutes relating to treason. The House of Commons faintly urged a remarkable clause in the act of Edward III., which provides that, in case of any doubt arising as to the nature of an offence charged to amount to treason, the judges should refer it to the sentence of parliament; and maintained that this invested the two houses with a declaratory power to extend the penalties of the law to new offences which had not been clearly provided for in its enactments. But, though something like this might possibly have been in contemplation with the framers of that statute, and precedents were not absolutely wanting to support the construction, it was so repugnant to the more equitable principles of criminal law which had begun to gain ground, that even the heat of faction did not induce the Commons to insist upon it. They may be considered however as having carried their point; for, though the prorogation and subsequent dissolution of the present parliament ensued so quickly that nothing more was done in the matter, yet when the next House of Commons revived the impeachment, the Lords voted to take Danby into custody without any further objection.[723] It ought not to be inferred from hence, that they were wrong in refusing to commit; nor do I conceive, notwithstanding the latter precedent of Lord Oxford, that any rule to the contrary is established. In any future case it ought to be open to debate, whether articles of impeachment pretending to contain a charge of high treason do substantially set forth overt acts of such a crime; and, if the House of Lords shall be of opinion, either by consulting the judges or otherwise, that no treason is specially alleged, they should, notwithstanding any technical words, treat the offence as a misdemeanour, and admit the accused to bail.[724]

2. Pardon pleaded in bar.—A still more important question sprung up as to the king's right of pardon upon a parliamentary impeachment. Danby, who had absconded on the unexpected revival of these proceedings in the new parliament, finding that an act of attainder was likely to pass against him in consequence of his flight from justice, surrendered himself to the usher of the black rod; and, on being required to give in his written answer to the charges of the Commons, pleaded a pardon, secretly obtained from the king, in bar of the prosecution.[725] The Commons resolved that the pardon was illegal and void, and ought not to be pleaded in bar of the impeachment of the Commons of England. They demanded judgment at the Lords' bar against Danby, as having put in a void plea. They resolved, with that culpable violence which distinguished this and the succeeding House of Commons, in order to deprive the accused of the assistance of counsel, that no commoner whatsoever should presume to maintain the validity of the pardon pleaded by the Earl of Danby without their consent, on pain of being accounted a betrayer of the liberties of the Commons of England.[726] They denied the right of the bishops to vote on the validity of this pardon. They demanded the appointment of a committee from both houses to regulate the form and manner of proceeding on this impeachment, as well as on that of the five lords accused of participation in the popish plot. The upper house gave some signs of a vacillating and temporising spirit, not by any means unaccountable. They acceded, after a first refusal, to the proposition of a committee, though manifestly designed to encroach on their own exclusive claim of judicature.[727] But they came to a resolution that the spiritual Lords had a right to sit and vote in parliament in capital cases, until judgment of death shall be pronounced.[728] The Commons of course protested against this vote;[729] but a prorogation soon dropped the curtain over their differences; and Danby's impeachment was not acted upon in the next parliament.

Votes of bishops.—There seems to be no kind of pretence for objecting to the votes of the bishops on such preliminary questions as may arise in an impeachment of treason. It is true that ancient custom has so far ingrafted the provisions of the ecclesiastical law on our constitution, that they are bound to withdraw when judgment of life or death is pronounced; though even in this they always do it with a protestation of their right to remain. This, once claimed as a privilege of the church, and reluctantly admitted by the state, became, in the lapse of ages, an exclusion and badge of inferiority. In the constitutions of Clarendon, under Henry II., it is enacted, that the bishops and others holding spiritual benefices "in capite" should give their attendance at trials in parliament, till it come to sentence of life or member. This, although perhaps too ancient to have authority as statute law, was a sufficient evidence of the constitutional usage, where nothing so material could be alleged on the other side. And, as the original privilege was built upon nothing better than the narrow superstitions of the canon law, there was no reasonable pretext for carrying the exclusion of the spiritual lords farther than certain and constant precedents required. Though it was true, as the enemies of Lord Danby urged, that by voting for the validity of his pardon, they would in effect determine the whole question in his favour, yet there seemed no serious reasons, considering it abstractedly from party views, why they should not thus indirectly be restored for once to a privilege, from which the prejudices of former ages alone had shut them out.

The main point in controversy, whether a general or special pardon from the king could be pleaded in answer to an impeachment of the Commons so as to prevent any further proceedings in it, never came to a regular decision. It was evident that a minister who had influence enough to obtain such an indemnity, might set both houses of parliament at defiance; the pretended responsibility of the Crown's advisers, accounted the palladium of our constitution, would be an idle mockery, if not only punishment could be averted, but enquiry frustrated. Even if the king could remit the penalties of a guilty minister's sentence upon impeachment, it would be much, that public indignation should have been excited against him, that suspicion should have been turned into proof, that shame and reproach, irremissible by the great seal, should avenge the wrongs of his country. It was always to be presumed that a sovereign, undeceived by such a judicial inquiry, or sensible to the general voice it roused, would voluntarily, or at least prudently, abandon an unworthy favourite. Though it might be admitted that long usage had established the royal prerogative of granting pardons under the great seal, even before trial, and that such pardons might be pleaded in bar (a prerogative indeed which ancient statutes, not repealed, though gone into disuse, or rather in no time acted upon, had attempted to restrain), yet we could not infer that it extended to cases of impeachment. In ordinary criminal proceedings by indictment the king was before the court as prosecutor, the suit was in his name; he might stay the process at his pleasure, by entering a "noli prosequi;" to pardon, before or after judgment, was a branch of the same prerogative; it was a great constitutional trust, to be exercised at his discretion. But in an appeal or accusation of felony, brought by the injured party, or his next of blood, a proceeding wherein the king's name did not appear, it was undoubted that he could not remit the capital sentence. The same principle seemed applicable to an impeachment at the suit of the Commons of England, demanding justice from the supreme tribunal of the other house of parliament. It could not be denied that James had remitted the whole sentence upon Lord Bacon. But impeachments were so unusual at that time, and the privileges of parliament so little out of dispute, that no great stress could be laid on this precedent.

Such must have been the course of arguing, strong on political, and specious on legal grounds, which induced the Commons to resist the plea put in by Lord Danby. Though this question remained in suspense on the present occasion, it was finally decided by the legislature in the act of settlement; which provides that no pardon under the great seal of England be pleadable to an impeachment of the Commons in parliament.[730] These expressions seem tacitly to concede the Crown's right of granting a pardon after sentence; which, though perhaps it could not well be distinguished in point of law from a pardon pleadable in bar, stands on a very different footing, as has been observed above, with respect to constitutional policy. Accordingly, upon the impeachment of the six peers who had been concerned in the rebellion of 1715, the House of Lords after sentence passed, having come to a resolution on debate that the king had a right to reprieve in cases of impeachment, addressed him to exercise that prerogative as to such of them as should deserve his mercy; and three of the number were in consequence pardoned.[731]

3. Abatement of impeachments by dissolution.—The impeachment of Danby first brought forward another question of hardly less magnitude, and remarkable as one of the few great points in constitutional law, which have been discussed and finally settled within the memory of the present generation: I mean the continuance of an impeachment by the Commons from one parliament to another. Though this has been put at rest by a determination altogether consonant to maxims of expediency, it seems proper in this place to show briefly the grounds upon which the argument on both sides rested.

In the earlier period of our parliamentary records, the business of both houses, whether of a legislative or judicial nature, though often very multifarious, was despatched, with the rapidity natural to comparatively rude times, by men impatient of delay, unused to doubt, and not cautious in the proof of facts or attentive to the subtleties of reasoning. The session, generally speaking, was not to terminate till the petitions in parliament for redress had been disposed of, whether decisively or by reference to some more permanent tribunal. Petitions for alteration of the law, presented by the Commons, and assented to by the Lords, were drawn up into statutes by the king's council just before the prorogation or dissolution. They fell naturally to the ground, if the session closed before they could be submitted to the king's pleasure. The great change that took place in the reign of Henry VI., by passing bills complete in their form through the two houses instead of petitions, while it rendered manifest to every eye that distinction between legislative and judicial proceedings which the simplicity of older times had half concealed, did not affect this constitutional principle. At the close of a session, every bill then in progress through parliament became a nullity, and must pass again through all its stages before it could be tendered for the royal assent. No sort of difference existed in the effect of a prorogation and a dissolution; it was even maintained that a session made a parliament.

During the fifteenth and sixteenth centuries, writs of error from inferior courts to the House of Lords became far less usual than in the preceding age; and when they occurred, as error could only be assigned on a point of law appearing on the record, they were quickly decided with the assistance of the judges. But, when they grew more frequent, and especially when appeals from the chancellor, requiring often a tedious examination of depositions, were brought before the Lords, it was found that a sudden prorogation might often interrupt a decision; and the question arose, whether writs of error, and other proceedings of a similar nature, did not, according to precedent or analogy, cease, or in technical language abate, at the close of a session. An order was accordingly made by the house on March 11, 1673, that "the Lords committees for privileges should inquire whether an appeal to this house either by writ of error or petition, from the proceedings of any other court being depending, and not determined in one session of parliament, continue in statu quo unto the next session of parliament, without renewing the writ of error or petition, or beginning all anew." The committee reported on the 29th of March, after mis-reciting the order of reference to them in a very remarkable manner, by omitting some words and interpolating others, so as to make it far more extensive than it really was,[732] that upon the consideration of precedents, which they specify, they came to a resolution that "businesses depending in one parliament or session of parliament have been continued to the next session of the same parliament, and the proceedings thereupon have remained in the same state in which they were left when last in agitation." The house approved of this resolution, and ordered it accordingly.[733]

This resolution was decisive as to the continuance of ordinary judicial business beyond the termination of a session. It was still open to dispute whether it might not abate by a dissolution. And the peculiar case of impeachment, to which, after the dissolution of the long parliament in 1678, every one's attention was turned, seemed to stand on different grounds. It was referred therefore to the committee of privileges, on the 11th of March 1679, to consider whether petitions of appeal which were presented to this house in the last parliament be still in force to be proceeded on. Next day it is referred to the same committee, on a report of the matter of fact as to the impeachments of the Earl of Danby and the five popish lords in the late parliament, to consider of the state of the said impeachments and all the incidents relating thereto, and to report to the house. On the 18th of March Lord Essex reported from the committee, that, "upon perusal of the judgment of this house of the 29th of March 1673, they are of opinion, that in all cases of appeals and writs of error they continue, and are to be proceeded on, in statu quo, as they stood at the dissolution of the last parliament, without beginning de novo.... And, upon consideration had of the matter referred to their lordships concerning the state of the impeachments brought up from the House of Commons the last parliament, etc.... they are of opinion that the dissolution of the last parliament doth not alter the state of the impeachments brought up by the Commons in that parliament." This report was taken into consideration next day by the house; and after a debate, which appears from the journals to have lasted some time, and the previous question moved and lost, it was resolved to agree with the committee.[734]