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1649-1685.

CHARLES II. ties, viz., the statutes of Henry VIII. and Elizabeth, expressly recognise the contrary, and established the constitutional doctrine, that the reigning sovereign, with the consent of parliament, is competent to make any changes in the inheritance of The constitution the crown:-in fact, our constitution is, in the strictest sense, a

is a conditional

the prince and the people.

Case of Skinner.

Interposition of the king.

bargain, a conditional contract, between the prince and the people, as it always hath been, and still is, between the repreentative and collective bodies of the nation: and if ever there was a presumptive heir to the crown that deserved to experience the practical application of that principle, it was the Duke of York, because he was engaged in direct opposition from all the sessential principles of the British constitution; and the events of this period justify the assertion, that, to attain his religious objects, murder and perjury would have been no impediments.

11. Original Jurisdiction in Civil Causes claimed by the House of Lords.

A serious dispute arose, in 1668, between the two Houses on a question of privilege, the lords having claimed and exercised an original jurisdiction as the supreme court of judicature, in a purely civil cause between a trader of the name of Skinner and the East India Company. The lords having adjudged the latter to pay a sum of money as damages, the commons passed resolutions censuring the conduct of the lords as contrary to law, and derogatory from the right of the subject; and, upon their adjournment, declared, that whosoever should put in execution the orders or sentence of the House of Lords, should be deemed a traitor to the liberties of Englishmen, and an infringer of the liberties of the House of Commons.

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The lords were, however, undismayed, and committed the governor of the company, until he should have paid a fine to the king of 500%. The king, however, ultimately interposed, all the proceedings were erased out of the Journals, and the question was not again discussed; but, from that period, original jurisdiction in civil causes has never been claimed by the lords".

16 State Trials, 710-763. 422, 431. 1 Marvell, 107, 109. 2 12 Lords' Journ. 287, 291.

12 Lords' Journ. 420, 427. 4 Parl. Hist. 4 Pepys, 103. 3 Hallam's Const. Hist. 32. Com. Journ. Feb. 22, 1670. 4 Parl. Hist.

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Although the lords did not entertain appeals from equity CHARLES II. before 3 Charles I., yet no question can arise as to their ultimate jurisdiction in cases of appeal from the courts below*, and unless desuetude of a right for a number of years operates as a repeal of such right, the lords possessed an original juris- The lords posdiction; for it appears from the Rolls of Parliament, 1 Ed- sessed an original ward IV., 1461, they decided originally in a case which was cognizable in the courts of common law, without any protest against its illegality.

jurisdiction.

damages

In 1621 and 1624, orders were frequently made on private Misdemeanours petitions of an original nature. This jurisdiction was exer- punished and cised at the commencement of the reign of Charles I., and in awarded. the case of a riot at Banbury, assumed the power of punishing a misdemeanour unconnected with privilege; and in the Long Parliament, they frequently punished misdemeanours, and awarded damages3.

In 1675, another controversy arose between the two Houses, Case of Shirley. under the following circumstances. Dr. Shirley having failed in a lawsuit against Sir John Fagg, a member of the commons, appealed from the decision of the chancellor to the House of Lords. The appeal was received, and Fagg was summoned to appear before that assembly. The commons thereupon maintained, that no member of the House could be summoned before the peers; and that the Upper House could receive no appeals from any court of equity, assertions against law and precedent, and only urged to serve a political object. The result was, that the process was never revived against Fagg. If the commons were sincere in making the objection in the first instance, their subsequent intemperance, as well as that of the lords, proved their inability to have discussed the question as rational beings'.

The commons, in 1679, denied the right of the king to reject their speaker, when presented for approbation; but a compromise ensued, neither the nominee of the king, nor that

431. 6 State Trials, 763-770. 3 Hatsell's Precedents, 336. Hargrave's Preface to Hale's Jurisdiction of the Lords, 101.

3 Hale's Jurisdiction of the Lords, c. 33. Hargrave's Preface, 53. 4 Stat. 27 Elizabeth, c. 8.

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Hargrave, 60. Lords' Journ. passim. 3 Hallam's Const. Hist. 25, 26. Lords' Journ. 679, 680, 691, 694, 700, 706, 710, 713, 716, 718, 720, 723, 725, 727, 729. Com. Journ. May 5, 15, 28; June 1, 4, 5, 8, 9. 1 Marvell, 517. 2 Burnet, 75. 4 Parl. Hist. 721. 6 State Trials, 1121. 7 Lingard, 593.

Privilege of the commons as to their speaker.

the selection of

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CHARLES II. of the commons, being allowed to take the chair: the privilege as to the election of speaker has ever since been vested in the commons, the king having the power of rejection, but not that of nomination".

The articles of impeachment.

The charges against Danby

not comprehended in the Statute

of Edward III.

It is doubtful whether charges not essentially

12. Impeachment of Danby.

The commons were so enraged at the communications of Montagu, by which the national interests were bartered to France, for pecuniary considerations, and justly suspecting the king of having uniformly acted in conjunction with the French king, resolved to punish the Earl of Danby, and voted six articles of impeachment against that minister, and carried them up to the House of Lords.

These articles were, that he had traitorously engrossed to himself regal power, by giving instructions to his majesty's ambassadors, without the participation of the secretaries of state or the Privy Council; that he had traitorously endeavoured to subvert the government, and introduce arbitrary power; and to that end, had levied and continued an army, contrary to act of parliament; that he had traitorously endeavoured to alienate the affections of his majesty's subjects, by negotiating a disadvantageous peace with France, and procuring money for that purpose; that he was popishly affected, and had traitorously concealed, after he had notice, the late horrid and bloody plot contrived by the papists against his majesty's person and government; that he had wasted the king's treasure, and that he had, by indirect means, obtained several exorbitant grants from the crown'.

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The charges against Danby were not comprehended in the Statute of Edward III., and the mere words "treason" and traitorously," could not change the "nature of things, or subject him to the penalties annexed to that crime." And the lords consequently refused to commit Danby; the commons insisted upon their demand, but a prorogation was soon after followed by a dissolution, and when the next House of Commons revived the impeachment, the lords voted the commitment of Danby without objection.

It is, however, a question that is far from being settled, whether charges not essentially, in themselves, amounting to

7 D'Ewes' Journal, 97, 459. Townsend, 35. 8 Lingard, 97.

1 Com. Journ. Dec. 21, 1678.

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high treason, can be recognised as such, by the mere technical CHARLES II. adaptation of language, and whether, under such circumstances, the lords have the power of committal, but are not high treason, can legally bound to treat such a charge as a misdemeanor.

This case has recognised two great constitutional rights;— first, that impeachments made by the commons in one parliament, continued from session to session, and parliament to parliament, notwithstanding prorogations or dissolutions'; secondly, that in cases of impeachments upon special matter shown, if the accused does not voluntarily withdraw, the lords admitted that, of right, they ought to order him to withdraw, and that afterwards he ought to be committed.

Another question arose, whether the king had a right to pardon, in cases of parliamentary impeachment. After the revival of the proceedings in the new parliament, Danby had absconded, but, being apprehensive of an attainder, surrendered himself, and pleaded a pardon from the king in bar of the prosecution3.

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; and demanded judgment at the lords' bar against Danby, as having put in a void plea.

be made so, by the adaptation of language.

King's right to pardon in cases

of impeachment.

The commons command that

no commoner

the validity of

As another proof of that sense of "impartial justice" which popular bodies display, when" seeking justice," the commons resolved, in order to prevent the accused from having counsel, shall maintain that no commoner should presume to maintain the validity of the pardon the pardon pleaded by the earl, without their consent, on pain pleaded by of being accounted a betrayer of the liberties of the commons of England'.

They likewise denied the right of the bishops to vote on the validity of this pardon; and 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 plot3.

The lords reluctantly agreed to appoint a committee, but it was ultimately resolved that the spiritual lords had a right to sit and vote in parliament in capital cases, until

2 Vide Impeachment of Mr. Hastings, in 1791, where this principle is recognised.

* Lords' Journ. April 25. 4 Parl. Hist. 1121. 2 Hallam's Const. Hist. 556, et seq. 5 Ibid. May 10, 11.

Lords' Journ. May 9, 1679.

Danby.

The commons the bishops to vote.

deny the right of

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CHARLES II. judgment of death shall be pronounced'; against which vote the commons protested', but a prorogation ensued, and the next parliament did not proceed with the impeachment.

Parliamentary rights of the bishops.

The crown, in

cases of parliapeachment, has

mentary im

a right to grant a pardon after sentence.

With respect to the bishops' votes, a more unjust request could not have been urged; because, in the Constitutions of Clarendon, it is enacted, that the bishops and others holding spiritual benefices, " in capite," should give their attendance at trials in parliament, till it came to sentence of life or member, and the original privilege of the bishops to withdraw, is nothing more than one of the narrow superstitions of the canon law, and even when they do withdraw, it is under a protestation. In this case, the king commanded that the bishops should be present and vote on the validity of Danby's pardon, observing, his prerogative was at stake, and experience must have taught them that their interest was closely bound up with that of the sovereign: because the debasement of the crown would be quickly followed up by that of the mitre.

The question of the king's right to pardon, in cases of parliamentary impeachment, was left undecided in this case, but it was finally decided in the Act of Settlement", which provides that no pardon under the great seal of England shall be pleadable to an impeachment by the commons in parliament. This language tacitly concedes to the crown the right of granting a pardon after sentence, though not before sentence; the principle of which is, that inquiry should not be frustrated, so that the crimes of a minister can always be exhibited to public execration, and thus rendering him for ever powerless, as it is impossible a guilty and convicted minister can ever recover his moral influence in this country.

The prerogative of mercy was recognised 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".

Lords' Journ. May 13, 15, 17, 27, 1679.

7 Com. Journ. May 26, 1679. 4 Hatsell's Precedents, 374.

8 8 Lingard, 116. Vide ante, 45, 46.

9 Lords' Journ. 575, 577, 580, 584, 586, 587, 590, 594, 1679. Com. Journ. May 15, 26, 1679. 8 Lingard, 117.

10 Stat. 12 & 13 William III. c. 2.

112 Hallam's Const. Hist. 562. 7 Parl. Hist. 283; sed vide etiam, 233.

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