*

would otherwise be innocent; nor does it affect the exercise of the discretionary powers of the Crown, except so far as the abuse of these powers may amount to a breach of positive law. Impeachment is the right which the House of Commons possesses concurrently with the Crown to institute criminal proceedings against any offender. These proceedings must be brought by the Commons before the House of Lords, and not before any other court; and the Lords, on such a prosecution only, may try commoners for misdemeanours, felonies, and even-although this power has been disputed-for treason. Although any crime may be the subject of impeachment, this mode of procedure is seldom used except in political offences. Examples of its use in all its forms occur at the period of its revival, after long disuse, towards the end of the reign of James I. Sir Giles Mompesson was impeached for an ordinary misdemeanour. Lord Bacon was impeached for misconduct in his judicial capacity. The Earl of Middlesex was impeached in circumstances in which, since the time of Walpole, a vote of censure would have been regarded as appropriate. Even in political cases the inefficiency of impeachment is well established, and may easily be explained. The body that prosecutes and the body that decides were established for quite other purposes. It is an example of confusion of functions. Of two deliberative bodies one assumes administrative, the other judicial, duties. The House of Lords is indeed a judicial tribunal; but the Lords sitting collectively in their criminal jurisdiction are very different from that great court of ultimate appeal in civil cases, which the eminent lawyers known as the "Law Lords" exclusively form. Experience has fully confirmed all that might have been predicted respecting

Hallam's Const. Hist., i. 357.

the discharge by the two Houses of Parliament of such uncongenial duties. Thus, when Warren Hastings was impeached, the proceedings dragged their slow length along for nine weary years and through two successive ParliaWhen Lord Melville was impeached, every good Tory voted a hearty acquittal, while all the Whigs joined in an indignant condemnation. Since that trial, in the commencement of the present century, no instance of an impeachment has occurred. This form of procedure is indeed a thing of the past. The circumstances in which it was useful have long since disappeared. Its original design was to prevent any miscarriage in justice from the reluctance of the Crown to prosecute or to obtain a conviction. It sought to remedy those shortcomings on the part of the prosecutor which the Roman law, under its peculiar mode of private prosecution, punished under the names of "Prevarication" and "Tergiversation." There would have been little chance that Charles the First would have prosecuted Buckingham, or that Charles the Second would have prosecuted Danby. Even if such prosecutions were instituted, the Crown which granted a pardon while an impeachment was pending would not have failed to use the more effectual remedy of a nolle prosequi; or would, at the most, have taken care not to obtain a verdict. Since, therefore, an inefficient prosecutor was better than a dishonest one, the Commons themselves undertook the task of bringing political offenders to justice. They naturally proceeded before that great court in connection with which they themselves were for other purposes sitting-the highest court known to the law and the one in which the Royal influence was least to be dreaded. It was in opposition to the court, by a section of the court party, that impeachments began ; it was in opposition to the court by a similar section that

they were revived.* The period of their most frequent use was the stormy reign of Charles and his two sons; and the period at which they gradually fell into disuse was that in which confidence in the administration of justice was established. Simultaneously, too, with this improved state of our criminal courts, a higher standard of political morality and the better appreciation of the principles and practice of Parliamentary Government have removed at once all cause for such proceedings and all temptation to seek for such

causes.

A remarkable proof of the obsolete character of impeachment is found in its deliberate omission from all the written Constitutions that during the last century have been constructed on the Anglican model. No Colonial Constitution contains any provision respecting impeachment. It was thought, and, so far as our present experience extends, rightly thought, that the existing criminal law and the practice of Parliamentary Government were sufficient security. In America impeachment exists, but it agrees only in name with the English impeachment. The framers of the American Constitution thought it unnecessary to provide any especial procedure for punishing the crimes of public officers. They left such persons, like all other persons, to the jurisdiction of the ordinary courts of justice. But they were obliged to provide some means for removing from office during the term for which they were elected the President and other officers of the Union. This object they proposed to effect by a proceeding originated by the Lower House before the Senate. The inquiry of fitness for office involves political rather than judicial considerations. This authority was therefore rightly vested in the

* See Hallam's Middle Ages, iii. 57; Const. Hist., i. 372; Sanford's Studies of the Great Rebellion, 121.

+ Curtis, Hist. of the Const. of the United States, ii. 260.

Senate, and not, as was originally proposed, in the Supreme Court. But even if the cause of removal should be the actual commission of a crime, the Senate merely displaces the offender, and leaves the law to redress the wrongs of the law.

116

CHAPTER V.

THE DISCRETIONARY POWERS OF THE CROWN.

discretion.

§ 1. We have hitherto considered the Constitution under its purely legal aspect. We have seen both its monarchical character, and the extent and Regulation of Royal the nature of the limitations to which the power of the King is subject. But the precautions which are thus taken that the King shall not violate the laws, although they form a very important part, are far from being the whole, of our Constitutional system. Their result is merely a negative advantage. In every form of government the secret of success must always depend upon the exercise of those powers which are entrusted to the prudence and the honour of its rulers. In the difficult and perplexed art of politics, as in other arts of infinitely less complexity, the best intentions and the most rigid abstinence from every positive fault are insufficient for success. Either from negligence or ignorance or skilful fraud a country may be brought to the verge of ruin; and yet it may be impossible to point out any act of any individual upon which a criminal prosecution can be justly grounded. It is therefore, as Burke* has observed, next in order and equal in importance to the legal limitation of the Royal functions that the discretionary

Works, iii. 132.