Chapter 2

At length the question of their being obliged to conform to any of the rules below came to a formal judgment. In the trial of Dr. Sacheverell, March 10th, 1709, the Lord Nottingham "desired their Lordships' opinion, whether he might propose a question to the Judges _here_ [in Westminster Hall]. Thereupon the Lords, being moved to adjourn, adjourned to the House of Lords, and on debate," as appears by a note, "it was agreed that the question should be proposed in Westminster Hall."[6] Accordingly, when the Lords returned the same day into the Hall, the question was put by Lord Nottingham, and stated to the Judges by the Lord Chancellor: "Whether, by the _law of England_, and constant practice in all prosecutions by _indictment and information_ for crimes and misdemeanors by writing or speaking, the particular words supposed to be written or spoken must not be expressly specified in the indictment or information?" On this question the Judges, _seriatim_, and in open court, delivered their opinion: the substance of which was, "That, by the laws of England, and the constant practice in Westminster Hall, the words ought to be expressly specified in the indictment or information." Then the Lords adjourned, and did not come into the Hall until the 20th. In the intermediate time they came to resolutions on the matter of the question put to the Judges. Dr. Sacheverell, being found guilty, moved in arrest of judgment upon two points. The first, which he grounded on the opinion of the Judges, and which your Committee thinks most to the present purpose, was, "That no entire clause, or sentence, or expression, in either of his sermons or dedications, is particularly set forth in his impeachment, which he has already heard the Judges declare to be necessary in all cases of indictments or informations."[7] On this head of objection, the Lord Chancellor, on the 23d of March, agreeably to the resolutions of the Lords of the 14th and 16th of March, acquainted Dr. Sacheverell, "That, on occasion of the question before put to the Judges _in Westminster Hall_, and their answer thereto, their Lordships had fully debated and considered of that matter, and had come to the following resolution: 'That this House will proceed to the determination of the impeachment of Dr. Henry Sacheverell, according to the _law of the land, and the law and usage of Parliament_.' And afterwards to this resolution: 'That, by _the law and usage of Parliament_ in prosecutions for high crimes and misdemeanors by writing or speaking, the particular words supposed to be criminal are _not necessary_ to be expressly specified in such impeachment.' So that, in their Lordships' opinion, the law and usage of the High Court of Parliament being _a part of the law of the land_, and that usage not requiring that words should be exactly specified in impeachments, the answer of the Judges, which related only to the course of _indictments and informations_, does not in the least affect your case."[8]

On this solemn judgment concerning the law and usage of Parliament, it is to be remarked: First, that the impeachment itself is not to be presumed inartificially drawn. It appears to have been the work of some of the greatest lawyers of the time, who were perfectly versed in the manner of pleading in the courts below, and would naturally have imitated their course, if they had not been justly fearful of setting an example which might hereafter subject the plainness and simplicity of a Parliamentary proceeding to the technical subtilties of the inferior courts. Secondly, that the question put to the Judges, and their answer, were strictly confined to the law and practice below; and that nothing in either had a tendency to their delivering an opinion concerning Parliament, its laws, its usages, its course of proceeding, or its powers. Thirdly, that the motion in arrest of judgment, grounded on the opinion of the Judges, was made only by Dr. Sacheverell himself, and not by his counsel, men of great skill and learning, who, if they thought the objections had any weight, would undoubtedly have made and argued them.

Here, as in the case of the 11th King Richard II., the Judges declared unanimously, that such an objection would be fatal to such a pleading in any indictment or information; but the Lords, as on the former occasion, overruled this objection, and held the article to be good and valid, notwithstanding the report of the Judges concerning the mode of proceeding in the courts below.

Your Committee finds that a protest, with reasons at large, was entered by several lords against this determination of their court.[9] It is always an advantage to those who protest, that their reasons appear upon record; whilst the reasons of the majority, who determine the question, do not appear. This would be a disadvantage of such importance as greatly to impair, if not totally to destroy, the effect of precedent as authority, if the reasons which prevailed were not justly presumed to be more valid than those which have been obliged to give way: the former having governed the final and conclusive decision of a competent court. But your Committee, combining the fact of this decision with the early decision just quoted, and with the total absence of any precedent of an objection, before that time or since, allowed to pleading, or what has any relation to the rules and principles of pleading, as used in Westminster Hall, has no doubt that the House of Lords was governed in the 9th of Anne by the very same principles which it had solemnly declared in the 11th of Richard II.

But besides the presumption in favor of the reasons which must be supposed to have produced this solemn judgment of the Peers, contrary to the practice of the courts below, as declared by all the Judges, it is probable that the Lords were unwilling to take a step which might admit that anything in that practice should be received as their rule. It must be observed, however, that the reasons against the article alleged in the protest were by no means solely bottomed in the practice of the courts below, as if the main reliance of the protesters was upon that usage. The protesting minority maintained that it was not agreeable to _several precedents in Parliament_; of which they cited many in favor of their opinion. It appears by the Journals, that the clerks were ordered to search for precedents, and a committee of peers was appointed to inspect the said precedents, and to report upon them,--and that they did inspect and report accordingly. But the report is not entered on the Journals. It is, however, to be presumed that the greater number and the better precedents supported the judgment. Allowing, however, their utmost force to the precedents there cited, they could serve only to prove, that, in the case of _words_, (to which alone, and not the case of a _written_ libel, the precedents extended,) such a special averment, according to the tenor of the words, had been used; but not that it was necessary, or that ever any plea had been rejected upon such an objection. As to the course of Parliament, resorted to for authority in this part of the protest, the argument seems rather to affirm than to deny the general proposition, that its own course, and not that of the inferior courts, had been the rule and law of Parliament.

As to the objection, taken in the protest, drawn from natural right, the Lords knew, and it appears in the course of the proceeding, that the whole of the libel had been read at length, as appears from p. 655 to p. 666.[10] So that Dr. Sacheverell had _substantially_ the same benefit of anything which could be alleged in the extenuation or exculpation as if his libellous sermons had been entered _verbatim_ upon the recorded impeachment. It was adjudged sufficient to state the crime _generally_ in the impeachment. The libels were given _in evidence_; and it was not then thought of, that nothing should be given in evidence which was not specially charged in the impeachment.

But whatever their reasons were, (great and grave they were, no doubt,) such as your Committee has stated it is the _judgment_ of the Peers on the Law of Parliament, as a part of the law of the land. It is the more forcible as concurring with the judgment in the 11th of Richard II., and with the total silence of the Rolls and Journals concerning any objection to pleading ever being suffered to vitiate an impeachment, or to prevent evidence being given upon it, on account of its generality, or any other failure.

Your Committee do not think it probable, that, even before this adjudication, the rules of pleading below could ever have been adopted in a Parliamentary proceeding, when it is considered that the several statutes of Jeofails, not less than twelve in number,[11] have been made for the correction of an over-strictness in pleading, to the prejudice of substantial justice: yet in no one of these is to be discovered the least mention of any proceeding in Parliament. There is no doubt that the legislature would have applied its remedy to that grievance in Parliamentary proceedings, if it had found those proceedings embarrassed with what Lord Mansfield, from the bench, and speaking of the matter of these statutes, very justly calls "disgraceful subtilties."

What is still more strong to the point, your Committee finds that in the 7th of William III. an act was made for the regulating of trials for treason and misprision of treason, containing several regulations for reformation of proceedings at law, both as to matters of form and substance, as well as relative to evidence. It is an act thought most essential to the liberty of the subject; yet in this high and critical matter, so deeply affecting the lives, properties, honors, and even the inheritable blood of the subject, the legislature was so tender of the high powers of this high court, deemed so necessary for the attainment of the great objects of its justice, so fearful of enervating any of its means or circumscribing any of its capacities, even by rules and restraints the most necessary for the inferior courts, that they guarded against it by an express proviso, "that neither this act, nor anything therein contained, shall any ways extend to _any impeachment or other proceedings in Parliament, in any land whatsoever_."[12]

CONDUCT OF THE COMMONS IN PLEADING.

This point being thus solemnly adjudged in the case of Dr. Sacheverell, and the principles of the judgment being in agreement with the whole course of Parliamentary proceedings, the Managers for this House have ever since considered it as an indispensable duty to assert the same principle, in all its latitude, upon all occasions on which it could come in question,--and to assert it with an energy, zeal, and earnestness proportioned to the magnitude and importance of the interest of the Commons of Great Britain in the religious observation of the rule, _that the Law of Parliament, and the Law of Parliament only, should prevail in the trial of their impeachments_.

In the year 1715 (1 Geo. I.) the Commons thought proper to impeach of high treason the lords who had entered into the rebellion of that period. This was about six years after the decision in the case of Sacheverell. On the trial of one of these lords, (the Lord Wintoun,[13]) after verdict, the prisoner moved in arrest of judgment, and excepted against the impeachment for error, on account of the treason therein laid "not being described with sufficient certainty,--the day on which the treason was committed not having been alleged." His counsel was heard to this point. They contended, "that the forfeitures in cases of treason are very great, and therefore they humbly conceived that the accusation ought to contain all the certainty it is capable of, that the prisoner may not by _general allegations_ be rendered incapable to defend himself in a case which may prove fatal to him: that they would not trouble their Lordships with citing authorities; for they believed there is not one gentleman of the long robe but will agree that an indictment for any capital offence to be erroneous, if the offence be not alleged to be committed on a certain day: that this impeachment set forth only that in or about the months of September, October, or November, 1715, the offence charged in the impeachment had been committed." The counsel argued, "that a proceeding by impeachment is a proceeding at the Common Law, for _Lex Parliamentaria_ is a part of Common Law, and they submitted whether there is not the same certainty required in one method of proceeding at Common Law as in another."

The matter was argued elaborately and learnedly, not only on the general principles of the proceedings below, but on the inconvenience and possible hardships attending this uncertainty. They quoted Sacheverell's case, in whose impeachment "the precise days were laid when the Doctor preached each of these two sermons; and that by a like reason a certain day ought to be laid in the impeachment when this treason was committed; and that the authority of Dr. Sacheverell's case seemed so much stronger than the case in question as the crime of treason is higher than that of a misdemeanor."

Here the Managers for the Commons brought the point a second time to an issue, and that on the highest of capital cases: an issue, the event of which was to determine forever whether their impeachments were to be regulated by the law as understood and observed in the inferior courts. Upon the usage below there was no doubt; the indictment would unquestionably have been quashed. But the Managers for the Commons stood forth upon this occasion with a determined resolution, and no less than four of them _seriatim_ rejected the doctrine contended for by Lord Wintoun's counsel. They were all eminent members of Parliament, and three of them great and eminent lawyers, namely, the then Attorney-General, Sir William Thomson, and Mr. Cowper.

Mr. Walpole said,--"Those learned gentlemen [Lord Wintoun's counsel] _seem to forget in what court they are_. They have taken up so much of your Lordships' time in quoting of authorities, and using arguments to show your Lordships what would quash an indictment in _the courts below_, that they seemed to forget they are now in _a Court of Parliament, and on an impeachment of the Commons of Great Britain_. For, should the Commons admit all that they have offered, it will not follow that the impeachment of the Commons is insufficient; and I must observe to your Lordships, that neither of the learned gentlemen have offered to produce one instance relative to an impeachment. I mean to show that the sufficiency of an impeachment was never called in question for the generality of the charge, or that any instance of that nature was offered at before. The Commons don't conceive, that, if this exception would quash an indictment, it would therefore make the impeachment insufficient. I hope it never will be allowed here as a reason, that what quashes an indictment in the courts below will make insufficient an impeachment brought by the Commons of Great Britain."

The Attorney-General supported Mr. Walpole in affirmance of this principle. He said,--"I would follow the steps of the learned gentleman who spoke before me, and I think he has given a good answer to these objections. I would take notice that we are upon an impeachment, not upon an indictment. The courts below have set forms to themselves, which have prevailed for a long course of time, and thereby are become the forms by which those courts are to govern themselves; but it never was thought that the forms of those courts had any influence on the proceedings of Parliament. In Richard II.'s time, it is said in the records of Parliament, that proceedings in Parliament are not to be governed by the forms of Westminster Hall. We are in the case of an impeachment, and in the Court of Parliament. Your Lordships have already given judgment against six upon this impeachment, and it is warranted by the precedents in Parliament; therefore we insist that the articles are good in substance."

Mr. Cowper.--"They [the counsel] cannot but know that the usages of Parliaments are part of the laws of the land, although they differ in many instances from the Common Law, as practised in the inferior courts, in point of form. My Lords, if the Commons, in preparing articles of impeachment, should govern themselves by precedents of indictments, in my humble opinion they would depart from the ancient, nay, the constant, usage and practice of Parliament. It is well known that the form of an impeachment has very little resemblance to that of an indictment; and I believe the Commons will endeavor to preserve the difference, by adhering to their own precedents."

Sir William Thomson.--"We must refer to the forms and proceedings in the Court of Parliament, and which must be owned to be part of the law of the land. It has been mentioned already to your Lordships, that the precedents in impeachments are not so nice and precise in form as in the inferior courts; and we presume your Lordships will be governed by the forms of your own court, (especially forms that are not essential to justice,) as the courts below are by theirs: which courts differ one from the other in many respects as to their forms of proceedings, and the practice of each court is esteemed as the law of that court."

The Attorney-General in reply maintained his first doctrine. "There is no uncertainty; in it _that can be to the prejudice of the prisoner_: we insist, it is according to _the forms of Parliament_: he has pleaded to it, and your Lordships have found him guilty."

The opinions of the Judges were taken in the House of Lords, on the 19th of March, 1715, upon two questions which had been argued in arrest of judgment, grounded chiefly on the practice of the courts below. To the first the Judges answered,--"_It is necessary_ that there be a _certain_ day laid in such indictments, on which the fact is alleged to be committed; and that alleging in such indictments that the fact was committed at or about a certain day would not be sufficient." To the second they answered, "that, although a day certain, when the fact is supposed to be done, be alleged in such indictments, yet it is not necessary upon the trial to prove the fact to be committed upon _that day_; but it is sufficient, if proved to be done _on any other day before_ the indictment found."

Then it was "agreed by the House, and ordered, that the Lord High Steward be directed to acquaint the prisoner at the bar in Westminster Hall, 'that the Lords have considered of the matters moved in arrest of judgment, and are of opinion that they are not sufficient to arrest the same, but that the _impeachment_ is sufficiently certain in point of time _according to the form of impeachments in Parliament_.'"[14]

On this final adjudication, (given after solemn argument, and after taking the opinion of the Judges,) in affirmance of the Law of Parliament against the undisputed usage of the courts below, your Committee has to remark,--1st, The preference of the custom of Parliament to the usage below. By the very latitude of the charge, the Parliamentary accusation gives the prisoner fair notice to prepare himself upon all points: whereas there seems something insnaring in the proceedings upon indictment, which, fixing the specification of a day certain for the treason or felony as absolutely necessary in the charge, gives notice for preparation only on _that day_, whilst the prosecutor has the whole range of time antecedent to the indictment to allege and give evidence of facts against the prisoner. It has been usual, particularly in later indictments, to add, "at several other times"; but the strictness of naming one day is still necessary, and the want of the larger words would not quash the indictment. 2dly, A comparison of the extreme rigor and exactness required in the more _formal_ part of the proceeding (the indictment) with the extreme laxity used in the _substantial_ part (that is to say, the evidence received to prove the fact) fully demonstrates that the partisans of those forms would put shackles on the High Court of Parliament, with which they are not willing, or find it wholly impracticable, to bind themselves. 3dly, That the latitude of departure from the letter of the indictment (which holds in other matters besides this) is in appearance much more contrary to natural justice than anything which has been objected against the evidence offered by your Managers, under a pretence that it exceeded the limits of pleading. For, in the case of indictments below, it must be admitted that the prisoner may be unprovided with proof of an alibi, and other material means of defence, or may find some matters unlooked-for produced against him, by witnesses utterly unknown to him: whereas nothing was offered to be given in evidence, under any of the articles of this impeachment, except such as the prisoner must have had perfect knowledge of; the whole consisting of matters sent over by himself to the Court of Directors, and authenticated under his own hand. No substantial injustice or hardship of any kind could arise from our evidence under our pleading: whereas in theirs very great and serious inconveniencies might happen.

Your Committee has further to observe, that, in the case of Lord Wintoun, as in the case of Dr. Sacheverell, the Commons had in their Managers persons abundantly practised in the law, as used in the inferior jurisdictions, who could easily have followed the precedents of indictments, if they had not purposely, and for the best reasons, avoided such precedents.

A great writer on the criminal law, Justice Foster, in one of his Discourses,[15] fully recognizes those principles for which your Managers have contended, and which have to this time been uniformly observed in Parliament. In a very elaborate reasoning on the case of a trial in Parliament, (the trial of those who had murdered Edward II.,) he observes thus:--"It is _well known_, that, in _Parliamentary_ proceedings of this kind, _it is, and ever was_, sufficient that matters appear with proper light and certainty to _a common understanding_, without that minute exactness which is required in criminal proceedings in Westminster Hall. In these cases the rule has always been, _Loquendum ut vulgus_." And in a note he says,--"In the proceeding against Mortimer, in this Parliament, _so little regard was had to the forms used in legal proceedings_, that he who had been frequently summoned to Parliament as a baron, and had lately been created Earl of March, is styled through the whole record merely Roger de Mortimer."

The departure from the common forms in the first case alluded to by Foster (viz., the trial of Berkeley, Maltravers, &c., for treason, in the murder of Edward II.[16]) might be more plausibly attacked, because they were tried, though in Parliament, by a jury of freeholders: which circumstance might have given occasion to justify a nearer approach to the forms of indictments below. But no such forms were observed, nor in the opinion of this able judge ought they to have been observed.

PUBLICITY OF THE JUDGES' OPINIONS.