points, it cannot rationally be upon fuch that are of confiderable importance. Therefore if party fpirit exifts in this country, it cannot be of an alarming nature, and never ought to go to the length of rancor and illiberality.

I confefs that I have read very little of Barruel's history of the jacobins and illuminees; nay, I do not wish to read more of it; I know too well that impartiality and accuracy is feldom to be found in an history written by an exile, in the middle of the conflict of the most violent parties ever heard of.

I have indeed a particular reafon to repofe but a very little confidence in Jefuits, especially as hiftorians. I recollect that in the early part of my life, I did read the history of Charles I, of England, written by another French Jefuit. Had I trusted to his account, I fhould have believed that the covenanters of Scotland were as bad and dangerous men as Barreul could ever represent the illuminees of his imagination. Had I ever denounced parties to a jury, I could not help thinking that I fhould have perverted the ufe of judicial power to a wrong and dangerous end. It is with deep regret that I have now spoke upon the topic of parties; it is not from choice, but from neceffity; not to act, but to counteract.

May this circumftance be the only one in my life wherein E feel myself under the obligation of addreffing a jury, upon fo delicate and perplexing a fubject.

[H.]

Fitzharris's cafe. Vide State Trials, ed. of 1737, vol. 1, p. 404.

Edward Fitzharris, being committed for a treasonable libel, refpecting the king and government, on the 28th of February, 1680; and the parliament meeting at Oxford on the 21ft of March following, the commons impeached Fitzharris, of high treason, in general terms: But the lords finding no reafon for this extraordinary way of proceeding, when he might be tried in the ordinary courts of law, rejected the impeachment: Whereupon the commons refolved, that it was the undoubted right of the commons to impeach any peer or com moner before the lords; and that the lords refufing to proceed on this impeachment of Fitzharris, was a denial of juftice, and a violation of the conftitution of parliament; an obstruction to the further discovery of the plot, and of great danger to his majesty's person, and the Proteftant religion: And that if any inferior court fhould proceed againft Edward Fitzharris, or any other perfon, lying under an impeachment of parlia ment, it would be a high breach of privilege: But the king

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diffolving the parliament the fame day, being the 28th of March, 1681, the miniftry directed Fitzharris to be tried at the king's bench bar.

[1] Wooddefon, 595.

It is certain that magiftrates and officers entrusted with the administration of public affairs may abufe their delegated powers to the extenfive detriment of the commuuity, and at the fame time in a manner not properly cognizable before the ordinary tribunals. The influence of fuch delinquents, and the nature of fuch offences, may not unfuitably engage the authority of the highest court, and the wifdom of the fageft affembly. The commons, therefore, as the grand inqueft of the nation, became fuitors for penal juftice; and they cannot confiftently either with their own dignity, or with fafety to the accufed, fue elfewhere but to thofe who fhare with them in the legiflature.

On this policy is founded the origin of impeachments. Wooddefon, 601-2.

All the king's fubjects are impeachable in parliament, but with this diftinction, that a peer may be fo accufed before his peers of any crime, a commoner (though perhaps it was formerly otherwife) can now be charged with misdemeanors only, not with any capital offence; for when Fitzharris, in the year 1681, was impeached of high treafon, the lords remitted the profecution to the inferior court, though it greatly exafperatad the accufers. Such kinds of mifdeeds as peculiarly injure the commonwealth by the abuse of high offices of trust, are the moft proper and have been the moft ufual grounds for this kind of profecution. Thus, if a lord chancellor be guilty of bribery, or of acting grofsly contrary to the duty of his of fice, if the judges mislead their fovereign by unconftitutional opinions, if any other magiftrate attempts to fubvert the fundamental laws, or introduce arbitrary power, these have been deemed cafes adapted to parliamentary enquiry and decifion. So where a lord chancellor has been thought to have put the feal to an ignominious treaty, a lord admiral to neglect the fafeguard of the fea, an ambaffador to betray his truft, a privy counsellor to propound or fupport pernicious and dishonorable measures, or a confidential adviser of his fovereign to obtain exorbitant grants or incompatible employments. Thefe imputations have properly occafioned impeachments, because it

is apparent how little the ordinary tribunals are calculated to take cognizance of fuch offences, or to inveftigate and reform the general policy of the state

[J.]

Com. Dig. tit. parl. let. L. 37.

Lord Bacon, chancellor, was impeached for bribery. The duke of Buckingham for the fale and purchase of offices.

The lord Finch for unlawful methods of enlarging the foreft when affistant to the justices in Eyre.

For threatening other judges to subscribe to his opinion: For delivering opinions which he knew to be contrary to law:

For drawing the bufinefs of the court to his chamber.

The fourth, fifth and fixth articles against lord keeper Finch, were as follow:

4. That being chief juftice of the common pleas, in the year 1635, he drew up the queftions and opinions concerning hip-money, and folicited and procured the judges to fign them.

5. That he fubfcribed an extra-judicial opinion relating to fhip-money himself, and preffed the juftices Crooke and Hutton to fign them against their confciences.

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6. That he delivered his opinion against Mr. Hampden in the exchequer chamber, in the case of ship-money, and threatened the faid judges, to induce them to deliver the like opinion, and urged baron Denham to retract the opinion he had given for Mr. Hampden.

[K.]

The report of the committee of the houfe of commons ap pointed to examine the proceedings of the judges, made December 23, 1680. 32. Car: 2.

This committee being informed, that in trinity term laft, the court of king's bench discharged the grand jury that served for the hundred of Offulton, in the county of Middlefex, in a very unusual manner; proceeded to enquire into the fame, and found by the information of Charles Umfreville, Efq. a foreman of the faid jury, Edward Proby, Henry Gerard and

John Smith, gentlemen, also of the faid jury; that on the 21ft of June laft the conftables attending the faid jury were found defective in not presenting the Papifts as they ought, and there-upon were ordered by the faid jury to make further prefentments of them on the 26th following, on which day the jury met for that purpose, when several peers of this realm, and other perfons of honor and quality, brought them a bill against James, duke of York, for not coming to church: But some exceptions being taken to that bill, in that it did not fet forth the faid duke to be a Papift. Some of the jury attended the faid perfons of quality, to receive fatisfaction therein; in the mean time, and about an hour after they had received the said bill, fome of the jury attended the court of king's bench with a petition, which they defired the court to prefent in their name unto his majefty for the fitting of this parliament. Upon which the lord chief juftice Scroggs raised many fcruples. And on pretence that they were not all in court, (though twenty of the jury had fubfcribed the petition) fent for them, faying they would difpatch them prefently. The jury being come, and their names called over, they renewed their defire that the court would prefent their petition: But the chief juftice asked, if they had any bills. They answered they had; but the clerks were drawing them into form. Upon which the chief justice faid they would not make two works of one business; and the petitlon being read, he said, This was no article of their charge, nor was there any act of parliament that required the court to deliver the grand jury's petition; that there was a 'proclamation about them, and that it was not reasonable the court should be obliged to run on their errands, and he thought it much, that they should come with a petition to alter the king's mind declared in the news book. The jury faid, they did it not to impofe on the court, (but as other juries had done) with all fubmiffion they defired it. But the court refufed bidding the crier return them their petition: And Mr. juice Jones told them, they had meddled with matters of state not given them in charge; but prefented no bills of the matters given in charge. They answered as before. They had many before them that would be ready in due time. Notwithstanding which, the faid juftice Jones told them, they were difcharged from further fervice.

But Philip Ward (the clerk that attended the faid jury) cried out, no, no; they have many bills before them, for which the court understanding (as it feems to this committee) a fecret reason which the clerk did not, reproved him, asking, if

he or they were to give the rule there. The crier then told the court they would not receive their petition; the chief juf tice bid him let it alone; fo it was left there, and the jury returned to the court-house, and there found feveral constables, with prefentments of Papists and other offenders, as the jury had directed them on the 21ft before; but could not now receive the faid prefentments, being discharged. Whereby much business was obftructed, though none of the faid informants ever knew the said jury discharged before the last day of the term, which was not till four days after. And it further ap peareth to the committee, by the evidence of Samuel Aftrey, Jasper Waterhouse, and Philip Ward, clerks that have long ferved in the faid court. That they were much furprized at the faid discharging of the jury, in that it was never done in their memory before. And the rather because the said Waterhoufe, ás fécondary, conftantly enters on that grand jury's paper that the last day of the term is given them to return their verdict on, as the last day but one is given to the other two grand juries, of that county: which entry is as followeth

Trinit. 32. Car. 2.

MIDDLESEX, OSSULSTON HUNDRED. Juratores habent diem ad Veredi&um fuum redendum ufque diem Mercurii proxime poft tres. Septimanas San&ta Trinitatis.

Being the last day of the term, and fo in all other terms the laft day is given; which makes it appear to this committee, that they were not in truth discharged for not having their prefentments ready, fince the court had given them a longer day, but only to obstruct their farther proceedings: And it appeareth by the evidence aforefaid, to this committee, that the four judges of that court were present at the discharging of the faid jury, and it did appear that any of them did not diffent therein; upon confideration whereof the committee, came to this refolution.

Refolved that it is the opinion of this committee, that the difcharging of the grand jury of the hundred of Offulfton in the county of Middlefex by the court of kings bench in trinity term laft, before the laft day of the term and before they had finished their prefentments, was illegal arbitrary and a high mifdemeanor.

The refolutions of the house of commons upon the faid re port.