“That no entire clause, sentence, or expression, contained 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.”[172]
The Lord Chancellor, denying the motion, communicated to the respondent
the resolution already adopted after full debate and consideration, and
added:--
“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 the words should be
_expressly specified_ in impeachments, the answer of the
judges, which related only to the course used in indictments
and informations, does not in the least affect your case.”[173]
And so the judgment was allowed to stand.
The substantial justice of this proceeding is seen, when it is
considered that the whole of the libel had been read at length, so
that the respondent had the benefit of anything which could be alleged
in extenuation or exculpation, as if the libellous sermons had been
entered _verbatim_. The Report already cited presents the practical
conclusion:--
“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.”[174]
The principle thus solemnly adjudged was ever afterwards asserted by
the managers for the House of Commons in all its latitude, and with
an energy, zeal, and earnestness proportioned to the magnitude of the
interests involved,--as appeared conspicuously on the impeachment
for high treason of the Lords who had taken part in the Rebellion
of 1715 to bring back the Stuarts. Lord Wintoun, after conviction,
moved in arrest of judgment, and excepted against the impeachment for
error, on account of the treason not being described with sufficient
certainty,--the day on which the treason was committed not having
been alleged. The learned counsel, arguing that Parliamentary Law
was part of Common Law, submitted “whether there is not the same
certainty required in one method of proceeding at the Common Law as
in another.”[175] To this ingenious presentment, by which proceedings
in Parliament were brought within the grasp of the Common Law, the
able and distinguished managers replied with resolution, asserting the
supremacy of Parliamentary Law. Walpole, afterwards the famous Prime
Minister, began:--
“Those learned gentlemen 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 seem to forget they are now in a court of Parliament
and on an impeachment of the Commons of Great Britain.… I hope
it will never 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.”[176]