The Works of the Right Honourable Edmund Burke, Vol. XI. | Page 8

COMMONS IN PLEADING.
This point being thus solemnly adjudged in the case of Dr. Sacheverell,
and the principles of the judgment being in agreement with the whole
course of Parliamentary proceedings, the Managers for this House have
ever since considered it as an indispensable duty to assert the same
principle, in all its latitude, upon all occasions on which it could come
in question,--and to assert it with an energy, zeal, and earnestness
proportioned to the magnitude and importance of the interest of the
Commons of Great Britain in the religious observation of the rule, _that
the Law of Parliament, and the Law of Parliament only, should prevail
in the trial of their impeachments_.
In the year 1715 (1 Geo. I.) the Commons thought proper to impeach of
high treason the lords who had entered into the rebellion of that period.
This was about six years after the decision in the case of Sacheverell.
On the trial of one of these lords, (the Lord Wintoun,[13]) after verdict,
the prisoner moved in arrest of judgment, and excepted against the
impeachment for error, on account of the treason therein laid "not being
described with sufficient certainty,--the day on which the treason was
committed not having been alleged." His counsel was heard to this
point. They contended, "that the forfeitures in cases of treason are very
great, and therefore they humbly conceived that the accusation ought to
contain all the certainty it is capable of, that the prisoner may not by
general allegations be rendered incapable to defend himself in a case
which may prove fatal to him: that they would not trouble their

Lordships with citing authorities; for they believed there is not one
gentleman of the long robe but will agree that an indictment for any
capital offence to be erroneous, if the offence be not alleged to be
committed on a certain day: that this impeachment set forth only that in
or about the months of September, October, or November, 1715, the
offence charged in the impeachment had been committed." The counsel
argued, "that a proceeding by impeachment is a proceeding at the
Common Law, for Lex Parliamentaria is a part of Common Law, and
they submitted whether there is not the same certainty required in one
method of proceeding at Common Law as in another."
The matter was argued elaborately and learnedly, not only on the
general principles of the proceedings below, but on the inconvenience
and possible hardships attending this uncertainty. They quoted
Sacheverell's case, in whose impeachment "the precise days were laid
when the Doctor preached each of these two sermons; and that by a like
reason a certain day ought to be laid in the impeachment when this
treason was committed; and that the authority of Dr. Sacheverell's case
seemed so much stronger than the case in question as the crime of
treason is higher than that of a misdemeanor."
Here the Managers for the Commons brought the point a second time to
an issue, and that on the highest of capital cases: an issue, the event of
which was to determine forever whether their impeachments were to be
regulated by the law as understood and observed in the inferior courts.
Upon the usage below there was no doubt; the indictment would
unquestionably have been quashed. But the Managers for the Commons
stood forth upon this occasion with a determined resolution, and no less
than four of them seriatim rejected the doctrine contended for by Lord
Wintoun's counsel. They were all eminent members of Parliament, and
three of them great and eminent lawyers, namely, the then
Attorney-General, Sir William Thomson, and Mr. Cowper.
Mr. Walpole said,--"Those learned gentlemen [Lord Wintoun's counsel]
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 seemed to forget they are now in a Court of Parliament,
and on an impeachment of the Commons of Great Britain_. For, should
the Commons admit all that they have offered, it will not follow that
the impeachment of the Commons is insufficient; and I must observe to
your Lordships, that neither of the learned gentlemen have offered to
produce one instance relative to an impeachment. I mean to show that
the sufficiency of an impeachment was never called in question for the
generality of the charge, or that any instance of that nature was offered
at before. The Commons don't conceive, that, if this exception would
quash an indictment, it would therefore make the impeachment
insufficient. I hope it never will 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