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other hand, the king cannot act without ministers; it is therefore those ministers,-that is, those indispensable instruments,—whom they attack.
If, for example, the public money has been employed in a manner contrary to the declared intention of those who granted it, an impeachment may be brought against those who had the management of it. If
abuse of power is committed, or in general any thing done contrary to the public weal, they prosecute those who have been either the instruments or the advisers of the measure.*
But who shall be the judges to decide in such a cause? What tribunal will flatter itself that it can give an impartial decision, when it shall see, appearing at its bar, the government itself as the accused, and the representatives of the people as the accusers ?
It is before the house of peers that the law has directed the commons to carry their accusation; that is, before judges, whose dignity, on the one hand, renders them independent,
It was upon these principles that the commons, in the beginning of the eighteenth century, impeached the earl of Orford, who had advised the treaty of partition, and the lord chancellor Somers, who had affixed the great seal to it.
and who, on the other, have a great honour to support in that awful function, where they have all the nation for spectators of their conduct.
When the impeachment is brought to the lords, they commonly order the person accused to be imprisoned. On the day appointed, the deputies of the house of commons, with the person impeached, make their appearance : the impeachment is read in his presence; counsel are allowed him, as well as time to prepare for his defence; and, at the expiration of this term, the trial goes on from day to day, with open doors, and every thing is communicated in print to the public.
But whatever advantage the law grants to the person impeached for his justification, it is from the intrinsic merits of his conduct that he must draw his arguments and proofs. It would be of no service to him, in order to justify a criminal conduct, to allege the commands of the sovereign : or pleading guilty with respect to the measures imputed to him, to produce the royal pardon.* It is against the adminis
* This point, in ancient times, was far from being clearly settled. In the year 1678, the commons having impeached the earl of Danby, he pleaded the king's pardon in bar to that impeachment: great altercations
tration itself that the impeachment is carried on; it should therefore by no means interfere: the king can neither stop nor suspend its course, but is forced to behold as an inactive spectator, the discovery of the share which he may himself have had in the illegal proceedings of his servants, and to hear his own sentence in the condemnation of his ministers.
An admirable expedient! which, by removing and punishing corrupt ministers, affords an immediate remedy for the evils of the state, and strongly marks out the bounds within which power ought to be confined: which takes away the scandal of guilt and authority united, and calms the people by a great and awful act of justice : an expedient, in this respect especially, so highly useful, that it is to the want of the like that Machiavel attributes the ruin of his republic.
ensued, which were terminated by the dissolution of that parliament. It was afterwards enacted (Stat. 12 and 13 W. III. c. 2.), “ that no pardon under the great seal “ should be pleaded in bar to an impeachment by the “ house of commons."
I once asked a gentleman, very learned in the laws of this country, if the king could remit the punishment of a man condemned in consequence of an impeachment of the house of commons: he answered me, The tories will tell you the king can, and the whigs, he cannot. But it is not perhaps very material that the question should be decided: the great public ends are attained when a corrupt minister is removed with disgrace, and the whole system of his proceedings unveiled to the public eye.
But all these general precautions to secure the rights of the parliament, that is, those of the nation itself, against the efforts of the executive power, would be vain, if the members themselves remained personally exposed to them. Being unable openly to attack, with any safety to itself, the two legislative bodies, and by a forcible exertion of its prerogatives, to make as it were, a general assault, the executive power might, by subdividing the same prerogatives, gain an entrance, and, sometimes by interest, and at others by fear, guide the general will, by influencing that of individuals.
But the laws which so effectually provide for the safety of the people, provide no less for that of the members, whether of the house of peers, or that of the commons. There are not known in England either commissaries who are always ready to find those guilty whom the wantonness of ambition points out, or those secret imprisonments which are, in other countries, the usual expedients of government. As the forms and maxims of the courts of justice are strictly prescribed, and every individual has an invariable right to be judged according to law, he may obey without fear the dictates of public virtue. Lastly, what crowns all these precautions is, its being a fundamental maxim, " That the freedom of “ speech, and debates and proceedings in
parliament, ought not to be impeached or " questioned in any court or place out of parliament.
The legislators, on the other hand, have not forgotten that interest, as well as fear, may impose silence on duty. To prevent its effects, it has been enacted, that all persons concerned in the management of any taxes created since 1692, commissioners of prize, navy, victualling office, &c. controllers of the army accounts, agents for regiments, the clerks in the different offices of the revenue, persons holding any new office under the crown (created since 1705), or having a pension under the crown during pleasure, or for any term of years, are incapable of being elected members. Besides, if any member accepts an office under the crown, except it be an officer in the army or navy accepting a
it Bill of Rights, Art. 9.