The Works of the Right Honourable Edmund Burke, Vol. XI. | Page 9

Great Britain."
The Attorney-General supported Mr. Walpole in affirmance of this
principle. He said,--"I would follow the steps of the learned gentleman
who spoke before me, and I think he has given a good answer to these
objections. I would take notice that we are upon an impeachment, not
upon an indictment. The courts below have set forms to themselves,
which have prevailed for a long course of time, and thereby are become
the forms by which those courts are to govern themselves; but it never
was thought that the forms of those courts had any influence on the
proceedings of Parliament. In Richard II.'s time, it is said in the records
of Parliament, that proceedings in Parliament are not to be governed by
the forms of Westminster Hall. We are in the case of an impeachment,
and in the Court of Parliament. Your Lordships have already given
judgment against six upon this impeachment, and it is warranted by the
precedents in Parliament; therefore we insist that the articles are good
in substance."
Mr. Cowper.--"They [the counsel] cannot but know that the usages of
Parliaments are part of the laws of the land, although they differ in
many instances from the Common Law, as practised in the inferior
courts, in point of form. My Lords, if the Commons, in preparing
articles of impeachment, should govern themselves by precedents of
indictments, in my humble opinion they would depart from the ancient,
nay, the constant, usage and practice of Parliament. It is well known

that the form of an impeachment has very little resemblance to that of
an indictment; and I believe the Commons will endeavor to preserve
the difference, by adhering to their own precedents."
Sir William Thomson.--"We must refer to the forms and proceedings in
the Court of Parliament, and which must be owned to be part of the law
of the land. It has been mentioned already to your Lordships, that the
precedents in impeachments are not so nice and precise in form as in
the inferior courts; and we presume your Lordships will be governed by
the forms of your own court, (especially forms that are not essential to
justice,) as the courts below are by theirs: which courts differ one from
the other in many respects as to their forms of proceedings, and the
practice of each court is esteemed as the law of that court."
The Attorney-General in reply maintained his first doctrine. "There is
no uncertainty; in it that can be to the prejudice of the prisoner: we
insist, it is according to the forms of Parliament: he has pleaded to it,
and your Lordships have found him guilty."
The opinions of the Judges were taken in the House of Lords, on the
19th of March, 1715, upon two questions which had been argued in
arrest of judgment, grounded chiefly on the practice of the courts below.
To the first the Judges answered,--"It is necessary that there be a
certain day laid in such indictments, on which the fact is alleged to be
committed; and that alleging in such indictments that the fact was
committed at or about a certain day would not be sufficient." To the
second they answered, "that, although a day certain, when the fact is
supposed to be done, be alleged in such indictments, yet it is not
necessary upon the trial to prove the fact to be committed upon _that
day; but it is sufficient, if proved to be done on any other day before_
the indictment found."
Then it was "agreed by the House, and ordered, that the Lord High
Steward be directed to acquaint the prisoner at the bar in Westminster
Hall, 'that the Lords have considered of the matters moved in arrest of
judgment, and are of opinion that they are not sufficient to arrest the
same, but that the impeachment is sufficiently certain in point of time
according to the form of impeachments in Parliament.'"[14]

On this final adjudication, (given after solemn argument, and after
taking the opinion of the Judges,) in affirmance of the Law of
Parliament against the undisputed usage of the courts below, your
Committee has to remark,--1st, The preference of the custom of
Parliament to the usage below. By the very latitude of the charge, the
Parliamentary accusation gives the prisoner fair notice to prepare
himself upon all points: whereas there seems something insnaring in
the proceedings upon indictment, which, fixing the specification of a
day certain for the treason or felony as absolutely necessary in the
charge, gives notice for preparation only on that day, whilst the
prosecutor has the whole range of time antecedent to the indictment to
allege and give evidence of facts against the prisoner. It has been usual,
particularly in later indictments, to add, "at several other times"; but