judgments of the Lords was negatived, in a solemn manner, in the reign of Henry IV; a circumstance which forms a prominent feature in subsequent discussions concerning the judicature of Parliament: and there appears to have been no attempt on the part of the Commons, either during that or the two succeeding reigns, to revive their claim. However, in the reign of Edward IV, it was deemed expedient to submit the proceedings against the Duke of Clarence, to the consideration of the House of Commons: and in the time of Richard III, and the following reigns, there are no judgments by the Lords alone. Bills of Attainder were multiplied to an appalling extent in the reign of Henry VIII. That sanguinary monarch was instructed by Cromwell, Earl of Essex, that an attainder would stand good in law, although the accused were never allowed to be heard in vindication of his innocence: a doctrine which proved as fatal to himself, as it was pernicious to his Country. Of the manner of which proceeding Sir E. Coke has said, "Auferat oblivio, si potest, si non, utcunque silentium tegat."

The power of impeachment has been designated by Mr. Lechmere, as a privilege belonging to the Commons, at least as valuable as that of giving money, which belongs solely to them. It has justly been deemed a most important right in the frame of the English Constitution, for the punishment of offences of a nature affecting the public interest, in cases within the jurisdiction of the Courts of Westminster Hall; but where the description of the offence is such as a Jury is incompetent to decide upon, or where the offender is, by his station, raised above the apprehension of danger from a prosecution carried on in the ordinary course of justice. To which some writers have added another ground; where the delinquency is not punishable according to the law, as administered in the inferior Courts. It would, indeed, have been a mockery of a judicial proceeding, to have directed a Jury to decide upon a misdemeanor in office, depending upon the propriety of the Partition Treaty, or that of Utrecht; or to determine what was a libel on the Revolution: and the united accusation of the Commons of England, by their representatives in Parliament, will appear necessary for dragging to justice such powerful favorites of royalty as Buckingham, Strafford, and Danby; or persons of such exalted station as Lord Bacon and Lord Macclesfield. In all which cases, the offences and the offender were within the jurisdiction of the ordinary Courts, yet the trial of them by the common method of a Jury could never be satisfactory to the public. But to determine an offence to be treason, because the party is impeached, which is not a treason declared in the Statute of Edward III; or to pronounce that to be a misdemeanor,

which no Judge sitting in Westminster Hall would allow to be one, is surely incompatible with the security which every individual is entitled to enjoy, so long as he transgresses no established law. Locke, in his Treatise on Government, has appropriated a chapter for the purpose of explaining the limits of that trust, which the people confides to the legislative authority of a Country. He says, that it cannot assume to itself a power to rule by extemporary arbitrary decrees; but is bound to dispense justice, and to decide the rights of the subject, by promulgated standing laws. The national trust has been too frequently abused, by new designations of crime invented by the instigators of those judicial proceedings, in which the two Houses of Parliament have concurred: but if a similar. course were ever again to be pursued, it is to be hoped that ourselves and our posterity will evince, by a temperate but inflexible resistance, the truth of the opinion which the great Lord Bacon formed of the English people, that they continue to have deeply engraven in their hearts the sentiment, "Nolumus leges Angliæ mutari."-In the application of this transcendent remedy for the evils occasioned by flagrant misconduct in the State, it will always be recollected that the hardships which the mode of trial by impeachment imposes on the individual accused, are numerous and severe. Not to dwell upon the advantages which are allowed to the conductors of the prosecution, by the course of proceedings, greater than those which are permitted in ordinary cases; it is no trivial deprivation, if the prisoner be a commoner, to be obliged to relinquish his right of challenge, and to await the issue of a trial in which his Judges are not his Peers. Neither ought it to be forgotten that the proceeding by impeachment was formerly, in some cases, imperatively called for, where the necessity of it, would not, in the present day, be thought so indispensable, from the independent character which Judges have assumed since the alteration of their patents: unless, indeed, the practice of raising Judges to higher stations upon the Bench, be considered as affording to the Crown a means of influencing their minds almost as objectionable as the ancient power of displacing them. The history of impeachments in this Country, and the principles of human nature, may likewise induce an opinion, that in judicial matters, a numerous assembly, of which many of the members are closely connected by domestic or political ties, is a tribunal very incompetent for the formation of an unbiassed and dispassionate judgment.

When the same reasons exist for the interference of Parliament, as would justify the proceeding by impeachment; but the accused flies from justice, and does not surrender himself by a time appointed; or is in actual rebellion, and in direct opposition to all methods of trial, and in defiance of every tribunal of law,

Bills

Bills of Attainder or of Pains and Penalties, have been not unfrequently resorted to. On the first ground, the Bill which passed against Lord Clarendon, and that which was preparing against Lord Danby during his concealment, have been defended. On the latter principle, the attainders of Monmouth and of the Pretender, may be justified. Several cases will be found in Mr. Hatsell's collections, where the extraordinary emergence of the occasion, or other public considerations may be thought to point out the proceeding by Bill, as a preferable course to that of a prosecution by the Commons. But where the remedy by impeachment is available, Bills of Attainder and of Pains and Penalties, will be regarded with jealousy, on account of the dangerous licence which the Houses of Parliament have permitted to themselves, from the mixed and indefinite nature of their legislative and judicial capacities when united. The cases of Lord Strafford and Sir J. Fenwick, deserve particular attention, because these precedents have been defended by arguments replete with constitutional learning and ingenuity of talent: but the impartial reader, after a mature reflection upon them, will probably conclude by expressing his reprobation of the principles on which they proceeded; subversive as they are of all settled notions respecting the nature of offences, and of the evidence by which criminal charges ought to be established. The protest of the Lords, upon the occasion of the Bill for inflicting penalties upon Bishop Atterbury, will be read for the valuable opinions it contains upon this branch of Constitutional Law: a subject of paramount importance, in the opinion of every person who assents to the observation of Sir E. Coke, that it is the first duty of Parliament, to set an example of justice to inferior Courts.

CHAP. XXXIII.

Prince. I AM convinced that the Laws of England eminently excel, beyond the laws of all other countries, in the case you have been now endeavouring to explain; and yet I have heard that some of my ancestors, kings of England, have been so far from being pleased with those laws, that they have been industrious to introduce, and make the Civil Laws a part of the Constitution, in prejudice of the Common Law; this makes me wonder what they could intend by such behavioura.

a

Selden, in his Dissertation upon Fleta, asks, what Kings of England ever desired to introduce the laws of Rome into this Country; and he mentions, as evincing a contrary disposition in our Sovereigns, the edict of Stephen against the laws of Italy, and a protestation in the Parliament of the 11th Richard II, by the King and Lords, that the Imperial Laws had no force in England: Coke, on the other hand, enlarges on the attempts to bring in the Civil Law, in the reign of Henry VI. (3 Inst. 35.) The subject is particularly considered in Hurd's Dialogues upon the Constitution, and in Sullivan's Lectures. These writers mention the protection afforded to the Civil Law by Edward I, who brought over to England the celebrated Accursius, and established him in a school at Oxford. They advert to the open patronage of the Civil Law, and the profession of its principles by Richard II. And they notice the institution of professorships of Civil Law in the Universities, and the observation of it, in the proceedings of those Courts which were immediately under the King's influence, as indicative of the sense, not of this or that King, but of a whole succession of Princes. At a later period, it was one of the articles prepared against Cardinal Wolsey, that he endeavoured to subvert, "Antiquissimas leges hujus regni, universumque hoc regnum legibus Imperialibus subjicere." Laud obtained of Charles I, that the

Masters

Masters of the Requests should be all Doctors of the Civil Law, and also eight Masters of Chancery. (Straff. Lett. and Disp. Vol. I. p. 176. Clarendon's History, lib. iv.) A policy which is explained by the complaints which Strafford used to indulge against the common lawyers, that they monopolized all to be governed by their year books; and that they were in the habit of hanging their noses over the flowers of the Crown, and of blowing and snuffling upon them, till they had taken both scent and beauty off them. (Strafford's Lett. and Disp. Vol. I. p. 130, 201.) The known partiality of King James for the professors of the Civil Law, is supposed to have been the cause of his extraordinary admiration of the play of Ignoramus, composed in ridicule of the practice of the Common Law. (The Case and Argument against Sir Ignoramus, by Callis; and see the References in Hawkins's Ignoramus.)