“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.