1649-1685. Another important question relative to impeachment was CHARLES II. also determined, in the case of Fitzharris, viz., that it was the right of the House of Commons to impeach before the House of Lords, any peer or commoner, for treason, or any other crime or misdemeanour 18. Privilege of the commons to im peach before the House of Lords, any peer or But the House of Lords made a standing order, that no commoner. peer should answer any accusation before the commons, in person, or by counsel, or by letter, under the penalty of being committed to the custody of the black-rod, or to the Tower, during the pleasure of the House13. 13. Appropriation of Supplies. The commons, availing themselves of the increasing unpopularity of the king, and the embarrassments which the war with Holland had occasioned, claimed a right, and which was recognised, to appropriate the supplies to specified and limited purposes', and for which precedents existed in the reigns of Richard II., Henry IV., and James I., and this system has been since invariably pursued, and caused the necessity of estimates being regularly submitted to the legislature. The commons investigating the mode in which claim a right of public moneys pended. The commons having become possessed of such privileges, claimed as an incident thereto, that of investigating the mode in which their moneys had been expended, and from the corrupt, criminal, and lascivious disposition of the public funds have been exby the court, and its satellites, insisted upon such a right being conceded, and accordingly a statute was passed', investing commissioners therein named with very extensive and extraordinary powers, both as to auditing public accounts, and investigating the extensive frauds that had taken place in the expenditure of money, and employment of stores; and the result occasioned the expulsion of the treasurer of the navy from the House, for issuing money without legal warrant, and destroyed all confidence in the integrity of the government, as the commissioners reported unaccounted balances of 1,509,1617. besides much that was questionable in the payments". 12 Com. Journ. March 26, 1681. 4 Hatsell's Precedents, 54, and App. 347. 8 State Trials, 236. 12 Ibid. 1218. 13 12 Lords' Journ. 606, 608, 612. 7 Lingard, 568. 1 Stat. 17' Charles II. c. 1. Com. Journ. Nov. 25, 1665. 4 Parl. Hist. 305. Vide ante, 132, 353. 2 Pepys' Diary, Sept. 23, Oct. 8, Dec. 12, 1666. 3 Stat. 19 & 20 Charles II. c. 1. 4 Burnet, 374; sed vide Ralph, 177. CHARLES II. 1649-1685. ELECTION WRITS TO BE ISSUED BY THE SPEAKER DURING THE PRO- The commons were likewise enabled to obtain another important privilege. During the prorogation, the chancellor, according to ancient precedents, issued writs to supply tho se seats which had become vacant in the House of Commons, the earliest trace of writs originating with the speaker, having occurred in 1640. The commons, however, insisted upon the speaker's right, and a resolution was passed, that the elections under the chancellor's writ were void, and that the speaker should alone issue the new writs". Corruption of the judicial bench, and the ministers of justice. Grand jury of moned before the Court of King's ing a bill against the orders of the Bench, for find judge of assize. 14. The Administration of Justice. The administration of justice during this reign, when any political object was to be acquired, was disgraceful to the government and to the judicial bench', and the ministers of justice left no expedient untried in order to corrupt and intimidate those who were summoned upon grand and petit juries; to such an extent was this practice carried, that parliament was obliged to interfere3. The panels were wilfully intended to be composed of those who were most to be relied upon for subserviency to the despotic measures of the court; and when juries presumed to act conscientiously, judges presided who were so base as to fine them for their verdicts: thus, as previously stated, the recorder of London, in 1670, imposed a fine of forty marks on each of the jury because they had acquitted Penn and Mead'. So likewise the grand jury of Somerset, having found a bill for manslaughter instead of murder against the advice of Chief Justice Keeling, were summoned before the Court of King's Bench, to answer for a misdemeanour for finding upon a bill of murder, “billa vera quoad manslaughter," against the directions of the judge. Upon their appearance, they were told by the court, being full, that it was a misdemeanour in them, for they were not to distinguish betwixt murder and manslaughter; for it is only the circumstance of malice which makes the difference, and that might be implied by the law, without any fact at all, and so it lies not in the judgment 5 Com. Journ. Feb. 6, 1673. 4 Parl. Hist. 507-512. Parker, 262-265. 7 Lingard, 544. 1 7 State Trials, passim. 3 Com. Journ. Oct. 16, 1667. 29 Ibid. 932. 1649-1685. of a jury, but of the judge; that the intention of their CHARLES II. finding indictments is, that there might be no malicious prosecution; and, therefore, if the matter of the indictment be not framed of malice, but is verisimilis, though it be not vera, yet it answers their oaths to present it. Mr. Justice Twisden said he had known petty juries punished in Lord Chief Justice Hyde's time, for disobeying of the judge's directions in point of law. But because it was a mistake in their (the grand jury) judgments rather than any obstinacy, the court discharged them without any fine or other attendance3. Charles II. so far differed from his father, that he did not pursue similar measures of illegal taxation, or issue proclamations subversive of liberty,-except one, which was recalled, for shutting up of coffee-houses: but the first might have proceeded from a dread of punishment, the latter in consequence of the non-existence of the Star Chamber and High Commission Courts. The press was a constant source of annoyance, and every exertion was made to restrain its freedom of discussion: thus, it was held by the judges, who had assembled by the king's command, that all books scandalous to the government, or to private persons, might be seized, and the authors, or those exposing them, punished; and that all writers of false news, though not scandalous or seditious, were indictable on that account: and in another case, the judges ordered that a certain book should no longer be printed or published by any person whatsoever'. Illegal taxation not adopted by Charles II. Attempts to re strain the free dom of the press, General warrants were likewise issued to seize seditious General warrants libels, and apprehend their authors: in fact, no absolute check issued. was put to general warrants until the decision of the Court of Common Pleas in 1764, although their illegality could not have been questioned 1o. 5 Pasch. 19 Charles II. Keeling, C. J.; Twisden, Wyndham, Merton, Justices. Hargrave MSS. 339. Sed vide etiam Com. Journ. Oct. 16, 1667. 5 State Trials, 999. 6 Ibid. 1013. Kennet, 337. Ralph, 297. North's Examen, 139. 7 Kennet's Register, 176. Stat. 14 Charles II. c. 33. CHARLES II. 1649-1685. Judges assumed discretionary power in grant ing the writ of habeas corpus. 15. Habeas Corpus Act. Although the common law had provided the writ of habeas corpus, and the Petition of Right had renewed and extended the provisions of Magna Charta against arbitrary imprisonment, yet their benefits had been curtailed to gratify the lusts of ambition. The judges had assumed the power of granting or refusing the writ at discretion; the sheriffs and keepers invented pretexts to elude obedience; and the privy council hesitated not to send an obnoxious individual into some of the king's foreign dominions, and consequently beyond the jurisdiction of the courts'. These evils were so apparent, that parliament were obliged to restore the ancient law for the protection of liberty, and which was productive of Stat. 31 Charles II. c. 2, commonly called the "Habeas Corpus Act." It makes the granting of The judges bound the writ upon a sight of the copy of the warrant of commitment, or an affidavit that a copy is denied, and the acceptance of bail for offences bailable by law, imperative on the chancellor and the judges, even during the time of vacation; except for persons convicted, or in execution, upon legal process, or where treason and felony are clearly expressed in the warrant of commitment. to receive bail, in all bailable offences. Production of gaoler. Under this writ, the gaoler must produce in court the body prisoners by the of the prisoner, and certify the cause of his detainer and imprisonment; if the gaol lie within twenty miles of the judge, the writ must be obeyed in three days, and so proportionably for greater distances, but in no case exceeding twenty days. Refusal of the mitment by the gaoler. A gaoler refusing his prisoner a copy of the warrant of warrant of com- commitment, or not obeying the writ, is subjected to a penalty of 100l. to the aggrieved; and for the second offence 2007, and incapacitated from holding office; and even the judge illegally denying the writ, is liable to the penalty of 500%. at the suit of the party injured. Indictment of the prisoner. Every prisoner must be indicted the first term after his commitment, and brought to trial in the subsequent term; and no person, after being enlarged by order of the court, can be re-committed for the same offence. 16 State Trials, 1189. 4 Parl. Hist. 661, 1148. 3 Hallam's Const. Hist 14. 8 Lingard, 119, 8 Hume, 107. 1 Black. Com. 128, 135. Ibid. iii. 135, 354. 1649-1685, Practice of sendof the country ing persons out before trial, abolished. Stat. 56 George III. c. 100, ex tended the authority of the Stat. 31 Charles The statute likewise abolished the practice of sending CHARLES II. persons out of the country, and consequently out of the jurisdiction of the courts, by making such expatriation an offence subject to the most rigorous penalties, and rendering the offender incapable of receiving pardon from the sovereign. The 56 George III. c. 100, has not only extended the power of issuing the writ during the vacation, in cases not within Stat. 31 Charles II. c. 2, to all the judges, but enables the judge, before whom the writ is returned, to inquire into the truth of facts alleged therein; and in case they shall seem to him doubtful, to release the party in custody, on giving surety to appear in the court to which such judge shall belong, on some day in the ensuing term, when the court may examine by affidavit into the truth of the facts alleged in the return, and either remand or discharge the party according to its discretion. judges under II. c. 2. discretion of any man, is the law It is impossible to question the wisdom of these enactments, The arbitrary for where the liberty of the subject is concerned, the landmarks, by which the discretion of the committing magistrate of tyrants. is to be regulated, should be accurately defined, and positive in their nature; for the arbitrary discretion of any man is the law of tyrants, it is always unknown, it is different in different men, it is casual, and depends upon constitution, temper, and passion in the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable. 16. Quo Warranto Informations. The power which principally opposed the court, was that which resided in corporate cities, and as long as it existed, the papistical and tyrannical doctrines of the House of Stuart could never succeed; consequently, every exertion was re- Every exertion sorted to by the king in order to acquire an uncontrolled ascendancy over them'. to influence the inhabitants of corporate cities, &c. "select bodies." The policy of Elizabeth was pursued, by the creation of Creation of "select bodies" in the corporations, that is, by illegally wresting from the inhabitant householders their constitutional municipal elective rights, and vesting such franchises with the power of admitting non-residents in a few individuals, whose qualifications exclusively consisted in an utter subserviency to 1 Echard, 1043, 1045. Bulstrode, 388, North, 624-627. |