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

the Judges, seriatim, and
in open court, delivered their opinion: the substance of which was,
"That, by the laws of England, and the constant practice in Westminster
Hall, the words ought to be expressly specified in the indictment or
information." Then the Lords adjourned, and did not come into the Hall
until the 20th. In the intermediate time they came to resolutions on 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