The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12). Edmund Burke
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.'"15
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,16 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.17) 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
It appears to your Committee, that, from the 30th year of King Charles II. until the trial of Warren Hastings, Esquire, in all trials in Parliament, as well upon impeachments of the Commons as on indictments brought up by Certiorari, when any matter of law hath been agitated at the bar, or in the course of trial hath been stated by any lord in the court, it hath been the prevalent custom to state the same in open court. Your Committee has been able to find, since that period, no more than one precedent (and that a precedent rather in form than in substance) of the opinions of the Judges being taken privately, except when the case on both sides has been closed, and the Lords have retired to consider of their verdict or of their judgment thereon. Upon the soundest and best precedents, the Lords have improved on the principles of publicity and equality, and have called upon the parties severally to argue the matter of law, previously to a reference to the Judges, who, on their parts, have afterwards, in open court, delivered their opinions, often by the mouth of one of the Judges, speaking for himself and the rest, and in their presence: and sometimes all the Judges have delivered their opinion seriatim, (even when they have been unanimous in it,) together with their reasons upon which their opinion had been founded. This, from the most early times, has been the course in all judgments in the House of Peers. Formerly even the record contained the reasons of the decision. "The reason wherefore," said Lord Coke, "the records of Parliaments have been so highly extolled is, that therein is set down, in cases of difficulty, not only the judgment and resolution, but the reasons and causes of the same by so great advice."18
In the 30th of Charles II., during the trial of Lord Cornwallis,19 on the suggestion of a question in law to the Judges, Lord Danby demanded of the Lord High Steward, the Earl of Nottingham, "whether it would be proper here [in open court] to ask the question of your Grace, or to propose it to the Judges?" The Lord High Steward answered,—"If your Lordships doubt of anything whereon a question in law ariseth,
Lords' Journals, Vol. XX. p. 316.
Discourse IV. p. 389.
Parl. Rolls, Vol. II. p. 57. 4 Ed. III. A.D. 1330.
Coke, 4 Inst. p. 3.
State Trials, Vol. II. p. 725. A.D. 1678.