“The precedents in impeachments are not so _nice and precise in
form_ as in the inferior courts.”[179]
The judges, in answer to questions propounded, declared the necessity
in indictments of mentioning “a certain day.” But the Lords, in
conformity with ancient usage, set aside this technical objection, and
announced:--
“That the impeachment is sufficiently certain in point of time,
according to the forms of impeachments in Parliament.”[180]
Thus do authoritative precedents exhibit a usage of Parliament, or
Parliamentary Law, unlike that of the Common Law, which on trials of
impeachment seeks substantial justice, but is not “nice and precise in
form.” If the proceedings are not absolutely according to the rule of
reason, plainly the technicalities of the Common Law are out of place.
It is enough, if they are clear to “a common understanding,” without
the “minute exactness” of a criminal court. But this is according to
reason. A mere technicality, much more a quibble, often efficacious
on a demurrer, is a wretched anachronism, when we are considering a
question of political duty. Especially must this be so under the genius
of republican institutions. The latitude established in England cannot
be curtailed in the United States, and it becomes more essential in
proportion to the elevation of the proceedings. Ascending into the
region of history, the laws of history cannot be neglected.
Even if the narrow rules and exclusions of the Common Law could be
tolerated on the impeachment of an inferior functionary, they must be
disclaimed on the trial of a chief magistrate, involving the public
safety. The technicalities of law were invented for protection against
power, not for the immunity of a usurper or tyrant. When set up for the
safeguard of the weak, they are respectable, but on impeachments they
are intolerable. Here again I cite Edmund Burke:--
“God forbid that those who cannot defend themselves upon their
merits and their actions may defend themselves behind those
fences and intrenchments that are made to secure the liberty
of the people, that power and the abusers of power should
cover themselves by those things which were made to secure
liberty!”[181]
Never was there a case where this principle was more applicable than
now.
The origin of impeachment in the National Constitution and contemporary
authority vindicate this very latitude. In this light the proceeding
was explained by the “Federalist,” in words which should be a guide
now:--
“_This can never be tied down by such strict rules_, either
in the delineation of the offence by the prosecutors or in
the construction of it by the judges, as in common cases
serve to limit the discretion of courts in favor of personal
security.”[182]
This article was by Alexander Hamilton, writing in concert with
James Madison and John Jay. Thus, by the highest authority, at the
adoption of the National Constitution, it is declared that impeachment
“can never be tied down by strict rules,” and that this latitude is
applicable to “the delineation of the offence,” meaning thereby the
procedure or pleading, and also to “the construction of the offence,”
in both of which cases the “discretion” of the Senate is enlarged
beyond that of ordinary courts, and so the ancient Parliamentary Law is
vindicated, and the Senate is recognized within its sphere.