The form of procedure has been noticed in considering the political
character of impeachment; but it deserves further treatment by itself.
Here we meet the same latitude. It is natural that the trial of
political offences, before a political body, with a political judgment
only, should have less of form than a trial at Common Law; and yet this
obvious distinction is constantly disregarded. The authorities, whether
English or American, do not leave the question open to doubt.
An impeachment is not a technical proceeding, as at _Nisi Prius_ or in
a county court, where the rigid rules of the Common Law prevail. On
the contrary, it is a proceeding according to Parliamentary Law, with
rules of its own, unknown in ordinary courts. The formal statement and
reduplication of words, constituting the stock-in-trade of so many
lawyers, are exchanged for a broader manner, more consistent with the
transactions of actual life. The precision of history and of common
sense is enough, without the technical precision of an indictment.
From time immemorial there has been a just distinction between
proceedings in Parliament and proceedings in the ordinary courts of
justice, which I insist shall not be abandoned. The distant reign of
Richard the Second, beyond the misfortunes touching us so much in
Shakespeare, supplies a presiding rule which has been a pole-star of
Constitutional Law; nor is this in any vague, uncertain language, but
in the most clear and explicit terms, illumined since by great lights
of law.
On what was called an appeal in Parliament, or impeachment, it has
solemnly declared that the Lords were not of right obliged to proceed
according to the course or rules of the Roman law or according to the
law or usage of any of the inferior courts of Westminster Hall, but by
the law and usage of Parliament, which was itself a court.
“In this Parliament [in the 11th year of King Richard the
Second, A. D. 1387-88] all the Lords then present, spiritual as
well as temporal, claimed as their franchise that the weighty
matters moved in this Parliament, and which shall be moved in
other Parliaments in future times, touching the peers of the
land, shall be managed, adjudged, and discussed by the course
of Parliament, and in no sort by the Law Civil, or by the
common law of the land, used in the other lower courts of the
kingdom.”[165]
The Commons approved the proceedings, and it has been remarked, in an
important official report, that “neither then nor ever since have they
made any objection or protestation that the rule laid down by the Lords
… ought not to be applied to the impeachments of commoners as well as
peers.”[166] Accordingly Lord Coke declares, that “all weighty matters
in any Parliament moved concerning the peers of the realm, or commoners
in Parliament assembled, ought to be determined, and adjudged, and
discussed by the course of the Parliament, and not by the Civil
Law, nor yet by the common laws of this realm used in more inferior
courts.” Then, founding on the precedent of 11th Richard the Second, he
announces, that “judges ought not to give any opinion of _a matter of
Parliament_, because it is not to be decided by the common laws, but
_secundum legem et consuetudinem Parliamenti_”; and he adds, “So the
judges in divers Parliaments have confessed.”[167]
But impeachment is “a matter of Parliament,” whether in England or in
the United States. It was so at the beginning, and has been ever since.
Even anterior to Richard the Second the same conclusion was recognized,
with illustrative particularity, as appears by the trial of those who
murdered King Edward the Second, thus commented by an eminent writer on
Criminal Law, who was also an experienced judge, Foster:--
“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.”[168]
Thus early was the “minute exactness” of a criminal court discarded,
while the proceedings were adapted to “a common understanding.” This
becomes important, not only as a true rule of procedure, but as an
answer to some of the apologists, especially the Senator from West
Virginia [Mr. VAN WINKLE], who makes technicality a rule and essential
condition.
Accordingly by law and custom of Parliament we are to move; and here we
meet rules of pleading and principles of evidence entirely different
from those of the Common Law, but established and fortified by a long
line of precedents. This stands forth in the famous “Report from the
Committee of the House of Commons appointed to inspect the Lords’
Journals in relation to their Proceedings on the Trial of Warren
Hastings,” which, beyond its official character, is enhanced as the
production of Edmund Burke.
“Your Committee do not find that any rules of pleading, as
observed in the inferior courts, have ever obtained in the
proceedings of the High Court of Parliament, in a cause or
matter in which the whole procedure has been within their
original jurisdiction. Nor does your Committee find that any
demurrer or exception, as of false or erroneous pleading, hath
been ever admitted to any impeachment in Parliament, as not
coming within the form of the pleading.”[169]
This principle appears in the great trial of Strafford, 16th Charles
the First, 1640-41, stated by no less a person than Pym, on delivering
a message of the Commons reducing the charges to more particularity:
“Not that they are bound by this way of _special_ charge; and
therefore, as they have taken care in their House, upon protestation,
that this shall be no prejudice to bind them from proceeding _upon
generals_ in other cases, and that they are not to be ruled by
proceedings in other courts, which protestation they have made for
preservation of power of Parliaments, so they desire that the like care
may be had in your Lordships’ House.”[170] In this broad language is a
just rule applicable to the present case.
The question came to formal judgment on the memorable trial of the Tory
preacher, Sacheverell, March 10, 1709-10, impeached for high crimes
and misdemeanors, on account of two sermons in which he put forth the
doctrines of Non-Resistance and denounced the Revolution of 1688, by
which English liberty was saved. After argument on both sides, and
questions propounded by the Lords, the judges delivered their opinion
_seriatim_, that, by the law of England and the constant practice of
Westminster Hall, “the particular words supposed to be criminal ought
to be specified in indictments or informations.” And yet, in face of
this familiar and indisputable rule of the Common Law, thus pointedly
declared, the Lords solemnly resolved:--
“That, by the law and usage of Parliament, in prosecutions by
impeachments 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 impeachments.”[171]