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presumed to be extinct does not act prejudicially upon the interests of the claimant, and he proceeds to prove his pedigree by much the same course as in ordinary cases, requiring evidence of descent. (See Claims to PEERAGES.)


“ Low skulks the hind beneath the rage of power,
And leaves the wealthy traitor to the Tower.”

Johnson, Vanity of Human Wiskas.

To inquire into and deliberate upon the conduct of all officers of state, and, whenever necessary, to accuse and prosecute them, forms one of the functions of the house of Commons, which, in such cases, performs a double part, that of prosecutor and grand jury, while the upper house combine the duties of the bench and the petit jury, being judges of the law and the fact, the practice and the evidence in their court. This commingling of the characters of advocate, judge, and legislator, so opposed to abstract principles of jurisprudence, has been justified, on the ground that a man entrusted with the administration of public affairs may infringe the rights of the people, and be guilty of such great and enormous crimes, that the ordinary magistrates either dare not or cannot punish. It is held, that as the Commons of the united kingdom, that is, the people at large, are the parties injured, so should their representatives (the Commons' house) be the prosecutors, not the judges. But the ordinary tribunals of the country would be naturally swayed by the authority of so powerful an accuser ; the constitution, therefore, provides that the charge must be brought before the hereditary estate of parliament, which has neither the same interests nor the same passions as a popular assembly. It is thought proper that the nobility should judge, in order to insure justice to the accused, and it is fitting that the representatives of the people should prosecute

, in order to insure justice to the commonwealth. The practice is, that articles of impeachment, which are somewhat analogous to the counts in an indictment, should be drawn up and agreed to by the Commons; that managers to act on their behalf should be appointed ; and that a lord high steward, to preside over the peers at the trial, should either be named by the Crown, or if not, that the house should resolve to proceed without the services of such an officer. The place where impeachments are usually tried is Westminster hall, the time is of course that which the court itself may appoint.

Impeachments by the Commons may be, but are not usually, instituted on account of the commission of felonies; for these including treason, murder, &c. the Crown seldom fails to prosecute. The majority of impeachments by the Commons have been on account of malversation in office, or other acts injurious to the public interest, subversive of the liberty of the subject, or inconsistent with the political constitation of the country; but occasionally cases of high treason have been brought before the Lords by way of impeachment.

The following are amongst the principal rules observed in proceedings of this nature. 1st, The articles must be exhibited in writing, and transmitted by message from the lower to the upper house, whereupon the accused is ordered into custody. 2nd, The law of evidence is the same as before other criminal tribunals, and the accused is allowed the assistance of counsel. 3rd, All peers of parliament have a right to sit and vote on the trial ; there is, however, no instance of the bishops concurring in any decision pronounced by this tribunal, the practice of the lords spiritual being to withdraw voluntarily, at the same time entering a protest declaring their right to remain. 4th, The peers severally give the decisions not upon oath, but guilty or not guilty “ upon mine honour.” 5th, The mercy of the Crown has no power to stay proceedings by impeachment. It is only after judgment has been pronounced that the royal pardon can relieve the accused, and therefore it cannot be pleaded in bar of an impeachment. 6th, Unanimity is not requisite, for a majority of the judges are competent to the decision of all questions which arise respecting either the law or the facts of the case. It is to be further observed, that the charge usually imputes" high crimes and misdemeanors,” but the word crime has no technical meaning in the law of England. A man is brought to trial either for a felony or a mis. demeanour : the words “high crimes," therefore, appear to be used in articles of impeachment for the purpose of imparting greater force or solemnity to the accusation.

The Lords may consider a bill of “pains and penalties,” that is to say, may enter on an inquiry as to the expediency of establishing and inflicting spe.

cial punishment for a given crime on a specified individual ; or they may try a peer who is prosecuted by the Crown for any offence : but both proceedings are perfectly distinct from an impeachment by the Commons. Bishops, not being eunobled in blood, though sitting and voting as lords of parliament, are not entitled to claim a trial by the upper house when they happen to be indicted at common law; but peeresses by birth or marriage, Roman Catholic lords (even before 1829), minors, Scottish and Irish peers, are all equally entitled with the English peers, to this species of trial. (See Lord High STEWARD.)

A commoner accused of a capital offence must be tried by a judge and jury in the ordinary way, but for “ high crimes and misdemeanors” he may be impeached before the house of Lords, and if found guilty subjected to fine, imprisonment, or other punishment short of death. The judgment of this court in cases of impeachment is not pronounced unless upon the demand of the Commons.

In fact, the whole machinery of impeachment is contrived for enabling the house of Commons to prosecute any person it may please before an appropriate tribunal, and for investing that assembly with some of the powers of the attorney-general. It has no more connexion with what is called a trial by a man's peers than arises from the fact that all persons, whether peers or commoners, when prosecuted by the lower house, receive by that very prosecution a right to be tried by the house of Lords, as the only judges which are likely to be unaffected by the importance and influence of so formidable an accuser.


“ Was not thy father, Richard, Earl of Cambridge,

For treason executed in our late king's days ;
And by his treason stand’st not thou attainted,
Corrupted and exempt from ancient gentry!
His trespass yet lives guilty in thy blond,
And till thou be restored thou 'rt but a yeoman."

King Henry VI. act ü. se. 4.

When a person is capitally convicted of treason or felony, and judgment is actually pronounced upon him, he is then called “attaint,attinctus, stained or blackened; he has no longer any credit or reputation ; he cannot be a witness in any court; all dig. nities and titles of honour are forfeited or lost; and he is incapable of acting even on behalf of another, for, by an anticipation of his punishment, he is already dead in law; and upon judgment of outlawry or of death, for treason or felony, attainder then is said to ensue.

The effect of attainder, considered in reference to dignities, is not only to destroy them in the person attainted, but to act upon the title itself by damming up and totally obstructing any further inheritance or descent. Not only are claims derived through the attainted (as, for example, those of his issue), wholly unavailing, but when bis direct posterity are extinct, even then the descendants of the person first en. nobled are disqualified from succeeding. Supposing, however, a dignity is vested in a man (subsequently attainted) with remainder to his issue male, and with after remainder to a second person, the latter immediately succeeds when the former is attainted.

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