The Works of the Right Honourable Edmund Burke, Vol. XI. | Page 6

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