The Works of the Right Honourable Edmund Burke, Vol. XI. | Page 5

Commons, the proceedings are directed to be had
according to the law and custom of the kingdom, _and the custom of
Parliament_: which words are not to be found in the commissions for
trying upon indictments.
"As every court of justice," says Lord Coke, "hath laws and customs for
its direction, some by the Common Law, some by the Civil and Canon
Law, some by peculiar laws and customs, &c., so the High Court of
Parliament suis propriis legibus et consuetudinibus subsistit. It is by the
_Lex et Consuetudo Parliamenti_, that all weighty matters in any
Parliament moved, concerning the peers of the realm, or Commons in
Parliament assembled, ought to be determined, 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." And after
founding himself on this very precedent of the 11th of Richard II., he
adds, _"This is the reason 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 so the
Judges in divers Parliaments have confessed!"_[3]
RULE OF PLEADING.
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; and although a reservation or
protest is made by the defendant (matter of form, as we conceive) "to
the generality, uncertainty, and insufficiency of the articles of
impeachment," yet no objections have in fact been ever made in any
part of the record; and when verbally they have been made, (until this
trial,) they have constantly been overruled.
The trial of Lord Strafford[4] is one of the most important eras in the
history of Parliamentary judicature. In that trial, and in the dispositions
made preparatory to it, the process on impeachments was, on great
consideration, research, and selection of precedents, brought very
nearly to the form which it retains at this day; and great and important
parts of Parliamentary Law were then laid down. The Commons at that
time made new charges or amended the old as they saw occasion. Upon
an application from the Commons to the Lords, that the examinations
taken by their Lordships, at their request, might be delivered to them,
for the purpose of a more exact specification of the charge they had
made, on delivering the message of the Commons, Mr. Pym, amongst
other things, said, as it is entered in the Lords' Journals, "According to
the clause of reservation in the conclusion of their charge, they [the
Commons] will add to the charges, not to the matter in respect of
comprehension, extent, or kind, but only to reduce them to more
particularities, that the Earl of Strafford might answer with the more
clearness and expedition: _not that they are bound by this way of
SPECIAL charge; and therefore they have taken care in their House,
upon protestation, that this shall be no prejudice to bind them from
proceeding in GENERAL in other cases, and that they are not to be
ruled by proceedings in other courts, which protestation they have
made for the preservation of the power of Parliament; and they desire
that the like care may be had in your Lordships' House_."[5] This
protestation is entered on the Lords' Journals. Thus careful were the
Commons that no exactness used by them for a temporary
accommodation, should become an example derogatory to the larger
rights of Parliamentary process.
At length the question of their being obliged to conform to any of the
rules below came to a formal judgment. In the trial of Dr. Sacheverell,

March 10th, 1709, the Lord Nottingham "desired their Lordships'
opinion, whether he might propose a question to the Judges here [in
Westminster Hall]. Thereupon the Lords, being moved to adjourn,
adjourned to the House of Lords, and on debate," as appears by a note,
"it was agreed that the question should be proposed in Westminster
Hall."[6] Accordingly, when the Lords returned the same day into the
Hall, the question was put by Lord Nottingham, and stated to the
Judges by the Lord Chancellor: "Whether, by the law of England, and
constant practice in all prosecutions by indictment and information for
crimes and misdemeanors by writing or speaking, the particular words
supposed to be written or spoken must not be expressly specified in the
indictment or information?" On this question