Charles Sumner: his complete works, volume 16 (of 20)

by Charles Sumner

UNTECHNICAL FORM OF PROCEDURE.

The form of procedure has been noticed in considering the political character of impeachment; but it deserves further treatment by itself. Here we meet the same latitude. It is natural that the trial of political offences, before a political body, with a political judgment only, should have less of form than a trial at Common Law; and yet this obvious distinction is constantly disregarded. The authorities, whether English or American, do not leave the question open to doubt.

An impeachment is not a technical proceeding, as at Nisi Prius or in a county court, where the rigid rules of the Common Law prevail. On the contrary, it is a proceeding according to Parliamentary Law, with rules of its own, unknown in ordinary courts. The formal statement and reduplication of words, constituting the stock-in-trade of so many lawyers, are exchanged for a broader manner, more consistent with the transactions of actual life. The precision of history and of common sense is enough, without the technical precision of an indictment.

From time immemorial there has been a just distinction between proceedings in Parliament and proceedings in the ordinary courts of justice, which I insist shall not be abandoned. The distant reign of Richard the Second, beyond the misfortunes touching us so much in Shakespeare, supplies a presiding rule which has been a pole-star of Constitutional Law; nor is this in any vague, uncertain language, but in the most clear and explicit terms, illumined since by great lights of law.

On what was called an appeal in Parliament, or impeachment, it has solemnly declared that the Lords were not of right obliged to proceed according to the course or rules of the Roman law or according to the law or usage of any of the inferior courts of Westminster Hall, but by the law and usage of Parliament, which was itself a court.

“In this Parliament [in the 11th year of King Richard the Second, A. D. 1387-88] all the Lords then present, spiritual as well as temporal, claimed as their franchise that the weighty matters moved in this Parliament, and which shall be moved in other Parliaments in future times, touching the peers of the land, shall be managed, adjudged, and discussed by the course of Parliament, and in no sort by the Law Civil, or by the common law of the land, used in the other lower courts of the kingdom.”[165]

The Commons approved the proceedings, and it has been remarked, in an important official report, that “neither then nor ever since have they made any objection or protestation that the rule laid down by the Lords … ought not to be applied to the impeachments of commoners as well as peers.”[166] Accordingly Lord Coke declares, that “all weighty matters in any Parliament moved concerning the peers of the realm, or commoners in Parliament assembled, ought to be determined, and 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.” Then, founding on the precedent of 11th Richard the Second, he announces, 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 he adds, “So the judges in divers Parliaments have confessed.”[167]

But impeachment is “a matter of Parliament,” whether in England or in the United States. It was so at the beginning, and has been ever since.

Even anterior to Richard the Second the same conclusion was recognized, with illustrative particularity, as appears by the trial of those who murdered King Edward the Second, thus commented by an eminent writer on Criminal Law, who was also an experienced judge, Foster:—

“It is well known, that, in parliamentary proceedings of this kind, it is and ever was sufficient that matters appear with proper light and certainty to a common understanding, without that minute exactness which is required in criminal proceedings in Westminster Hall.”[168]

Thus early was the “minute exactness” of a criminal court discarded, while the proceedings were adapted to “a common understanding.” This becomes important, not only as a true rule of procedure, but as an answer to some of the apologists, especially the Senator from West Virginia [Mr. Van Winkle], who makes technicality a rule and essential condition.

Accordingly by law and custom of Parliament we are to move; and here we meet rules of pleading and principles of evidence entirely different from those of the Common Law, but established and fortified by a long line of precedents. This stands forth in the famous “Report from the Committee of the House of Commons appointed to inspect the Lords’ Journals in relation to their Proceedings on the Trial of Warren Hastings,” which, beyond its official character, is enhanced as the production of Edmund Burke.

“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.”[169]

This principle appears in the great trial of Strafford, 16th Charles the First, 1640-41, stated by no less a person than Pym, on delivering a message of the Commons reducing the charges to more particularity: “Not that they are bound by this way of special charge; and therefore, as they have taken care in their House, upon protestation, that this shall be no prejudice to bind them from proceeding upon generals in other cases, and that they are not to be ruled by proceedings in other courts, which protestation they have made for preservation of power of Parliaments, so they desire that the like care may be had in your Lordships’ House.”[170] In this broad language is a just rule applicable to the present case.

The question came to formal judgment on the memorable trial of the Tory preacher, Sacheverell, March 10, 1709-10, impeached for high crimes and misdemeanors, on account of two sermons in which he put forth the doctrines of Non-Resistance and denounced the Revolution of 1688, by which English liberty was saved. After argument on both sides, and questions propounded by the Lords, the judges delivered their opinion seriatim, that, by the law of England and the constant practice of Westminster Hall, “the particular words supposed to be criminal ought to be specified in indictments or informations.” And yet, in face of this familiar and indisputable rule of the Common Law, thus pointedly declared, the Lords solemnly resolved:—

“That, by the law and usage of Parliament, in prosecutions by impeachments 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 impeachments.”[171]

The respondent, being found guilty, moved in arrest of judgment:—

“That no entire clause, sentence, or expression, contained 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.”[172]

The Lord Chancellor, denying the motion, communicated to the respondent the resolution already adopted after full debate and consideration, and added:—

“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 the words should be expressly specified in impeachments, the answer of the judges, which related only to the course used in indictments and informations, does not in the least affect your case.”[173]

And so the judgment was allowed to stand.

The substantial justice of this proceeding is seen, when it is considered that the whole of the libel had been read at length, so that the respondent had the benefit of anything which could be alleged in extenuation or exculpation, as if the libellous sermons had been entered verbatim. The Report already cited presents the practical conclusion:—

“It was adjudged sufficient to state the crime generally in the impeachment. The libels were given in evidence; and it was not then thought of, that nothing should be given in evidence which was not specially charged in the impeachment.”[174]

The principle thus solemnly adjudged was ever afterwards asserted by the managers for the House of Commons in all its latitude, and with an energy, zeal, and earnestness proportioned to the magnitude of the interests involved,—as appeared conspicuously on the impeachment for high treason of the Lords who had taken part in the Rebellion of 1715 to bring back the Stuarts. Lord Wintoun, after conviction, moved in arrest of judgment, and excepted against the impeachment for error, on account of the treason not being described with sufficient certainty,—the day on which the treason was committed not having been alleged. The learned counsel, arguing that Parliamentary Law was part of Common Law, submitted “whether there is not the same certainty required in one method of proceeding at the Common Law as in another.”[175] To this ingenious presentment, by which proceedings in Parliament were brought within the grasp of the Common Law, the able and distinguished managers replied with resolution, asserting the supremacy of Parliamentary Law. Walpole, afterwards the famous Prime Minister, began:—

“Those learned gentlemen 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 seem to forget they are now in a court of Parliament and on an impeachment of the Commons of Great Britain.… I hope it will never 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 Great Britain.”[176]

The Attorney-General supported Walpole:—

“I would take notice that we are upon an impeachment, and 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.”[177]

Cowper, a brother of the Lord Chancellor of that name, said:—

“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.”[178]

Sir William Thomson followed:—

“The precedents in impeachments are not so nice and precise in form as in the inferior courts.”[179]

The judges, in answer to questions propounded, declared the necessity in indictments of mentioning “a certain day.” But the Lords, in conformity with ancient usage, set aside this technical objection, and announced:—

“That the impeachment is sufficiently certain in point of time, according to the forms of impeachments in Parliament.”[180]

Thus do authoritative precedents exhibit a usage of Parliament, or Parliamentary Law, unlike that of the Common Law, which on trials of impeachment seeks substantial justice, but is not “nice and precise in form.” If the proceedings are not absolutely according to the rule of reason, plainly the technicalities of the Common Law are out of place. It is enough, if they are clear to “a common understanding,” without the “minute exactness” of a criminal court. But this is according to reason. A mere technicality, much more a quibble, often efficacious on a demurrer, is a wretched anachronism, when we are considering a question of political duty. Especially must this be so under the genius of republican institutions. The latitude established in England cannot be curtailed in the United States, and it becomes more essential in proportion to the elevation of the proceedings. Ascending into the region of history, the laws of history cannot be neglected.

Even if the narrow rules and exclusions of the Common Law could be tolerated on the impeachment of an inferior functionary, they must be disclaimed on the trial of a chief magistrate, involving the public safety. The technicalities of law were invented for protection against power, not for the immunity of a usurper or tyrant. When set up for the safeguard of the weak, they are respectable, but on impeachments they are intolerable. Here again I cite Edmund Burke:—

“God forbid that those who cannot defend themselves upon their merits and their actions may defend themselves behind those fences and intrenchments that are made to secure the liberty of the people, that power and the abusers of power should cover themselves by those things which were made to secure liberty!”[181]

Never was there a case where this principle was more applicable than now.

The origin of impeachment in the National Constitution and contemporary authority vindicate this very latitude. In this light the proceeding was explained by the “Federalist,” in words which should be a guide now:—

“This can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.”[182]

This article was by Alexander Hamilton, writing in concert with James Madison and John Jay. Thus, by the highest authority, at the adoption of the National Constitution, it is declared that impeachment “can never be tied down by strict rules,” and that this latitude is applicable to “the delineation of the offence,” meaning thereby the procedure or pleading, and also to “the construction of the offence,” in both of which cases the “discretion” of the Senate is enlarged beyond that of ordinary courts, and so the ancient Parliamentary Law is vindicated, and the Senate is recognized within its sphere.