The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12). Edmund Burke
the better for the prisoner, is, that it must be stated in the presence of the prisoner, that he may know whether the question be truly put. It hath sometimes been practised otherwise, and the Peers have sent for the Judges, and have asked their opinion in private, and have come back, and have given their verdict according to that opinion; and there is scarcely a precedent of its being otherwise done. There is a later authority in print that doth settle the point so as I tell you, and I do conceive it ought to be followed; and it being safer for the prisoner, my humble opinion to your Lordship is, that he ought to be present at the stating of the question. Call the prisoner." The prisoner, who had withdrawn, again appearing, he said,—"My Lord Cornwallis, my Lords the Peers, since they have withdrawn, have conceived a doubt in some matter [of law arising upon the matter] of fact in your case; and they have that tender regard of a prisoner at the bar, that they will not suffer a case to be put up in his absence, lest it should chance to prejudice him by being wrong stated." Accordingly the question was both put and the Judges' answer given publicly and in his presence.
Very soon after the trial of Lord Cornwallis, the impeachment against Lord Stafford was brought to a hearing,—that is, in the 32d of Charles II. In that case the lord at the bar having stated a point of law, "touching the necessity of two witnesses to an overt act in case of treason," the Lord High Steward told Lord Stafford, that "all the Judges that assist them, and are here in your Lordship's presence and hearing, should deliver their opinions whether it be doubtful and disputable or not." Accordingly the Judges delivered their opinion, and each argued it (though they were all agreed) seriatim and in open court. Another abstract point of law was also proposed from the bar, on the same trial, concerning the legal sentence in high treason; and in the same manner the Judges on reference delivered their opinion in open court; and no objection, was taken to it as anything new or irregular.20
In the 1st of James II. came on a remarkable trial of a peer,—the trial of Lord Delamere. On that occasion a question of law was stated. There also, in conformity to the precedents and principles given on the trial of Lord Cornwallis, and the precedent in the impeachment of Lord Stafford, the then Lord High Steward took care that the opinion of the Judges should be given in open court.
Precedents grounded on principles so favorable to the fairness and equity of judicial proceedings, given in the reigns of Charles II. and James II., were not likely to be abandoned after the Revolution. The first trial of a peer which we find after the Revolution was that of the Earl of Warwick.
In the case of the Earl of Warwick, 11 Will. III., a question in law upon evidence was put to the Judges; the statement of the question was made in open court by the Lord High Steward, Lord Somers:—"If there be six in company, and one of them is killed, the other five are afterwards indicted, and three are tried and found guilty of manslaughter, and upon their prayers have their clergy allowed, and the burning in the hand is respited, but not pardoned,—whether any of the three can be a witness on the trial of the other two?"
Lord Halifax.—"I suppose your Lordships will have the opinion of the Judges upon this point: and that must be in the presence of the prisoner."
Lord High Steward (Lord Somers).—"It must certainly be in the presence of the prisoner, if you ask the Judges' opinions."21
In the same year, Lord Mohun was brought to trial upon an indictment for murder. In this single trial a greater number of questions was put to the Judges in matter of law than probably was ever referred to the Judges in all the collective body of trials, before or since that period. That trial, therefore, furnishes the largest body of authentic precedents in this point to be found in the records of Parliament. The number of questions put to the Judges in this trial was twenty-three. They all originated from the Peers themselves; yet the Court called upon the party's counsel, as often as questions were proposed to be referred to the Judges, as well as on the counsel for the Crown, to argue every one of them before they went to those learned persons. Many of the questions accordingly were argued at the bar at great length. The opinions were given and argued in open court. Peers frequently insisted that the Judges should give their opinions seriatim, which they did always publicly in the court, with great gravity and dignity, and greatly to the illustration of the law, as they held and acted upon it in their own courts.22
In Sacheverell's case (just cited for another purpose) the Earl of Nottingham demanded whether he might not propose a question of law to the Judges in open court. It was agreed to; and the Judges gave their answer in open court, though this was after verdict given: and in consequence of the advantage afforded to the prisoner in hearing the opinion of the Judges, he was thereupon enabled to move in arrest of judgment.
The next precedent which your Committee finds of a question put by the Lords, sitting as a court of judicature, to the Judges, pending the trial, was in the 20th of George II., when Lord Balmerino, who was tried on an indictment for high treason, having raised a doubt whether the evidence proved him to be at the place assigned for the overt act of treason on the day laid in the indictment, the point was argued at the bar by the counsel for the Crown in the prisoner's presence, and for his satisfaction. The prisoner, on hearing the argument, waived his objection; but the then Lord President moving their Lordships to adjourn to the Chamber of Parliament, the Lords adjourned accordingly, and after some time returning into Westminster Hall, the Lord High Steward (Lord Hardwicke) said,—
"Your Lordships were pleased, in the Chamber of Parliament, to come to a resolution that the opinion of the learned and reverend Judges should be taken on the following question, namely, Whether it is necessary that an overt act of high treason should be proved to have been committed on the particular day laid in the indictment? Is it your Lordships' pleasure that the Judges do now give their opinion on that question?"
Lords.—"Ay, ay."
Lord High Steward.—"My Lord Chief-Justice!"
Lord Chief-Justice (Lord Chief-Justice Lee).—"The question proposed by your Lordships is, Whether it be necessary that an overt act of high treason should be proved to be committed on the particular day laid in the indictment? We are all of opinion that it is not necessary to prove the overt act to be committed on the particular day laid in the indictment; but as evidence may be given of an overt act before the day, so it may be after the day specified in the indictment; for the day laid is circumstance and form only, and not material in point of proof: this is the known constant course of proceeding in trials."
Here the case was made for the Judges, for the satisfaction of one of the Peers, after the prisoner had waived his objection. Yet it was thought proper, as a matter of course and of right, that the Judges should state the question put to them in the open court, and in presence of the prisoner,—and that in the same open manner, and in the same presence, their answer should be delivered.23
Your Committee concludes their precedents begun under Lord Nottingham, and ended under Lord Hardwicke. They are of opinion that a body of precedents so uniform, so accordant with principle, made in such times, and under the authority of a succession of such great men, ought not to have been departed from. The single precedent to the contrary, to which your Committee has alluded above, was on the trial of the Duchess of Kingston, in the reign of his present Majesty. But in that instance the reasons of the Judges were, by order of the House, delivered in writing, and entered at length on the Journals:24 so that the legal principle of the decision is equally to be found: which is not the case in any one instance of the present impeachment.
The Earl of Nottingham, in Lord Cornwallis's case, conceived, though it was proper and agreeable to justice, that this mode of putting questions to the Judges and receiving their answer in public was not supported by former precedents; but he thought a book of authority had declared in favor of this course. Your Committee is very sensible, that, antecedent to the great period to which they refer, there are instances of questions having been put to the Judges privately. But we find the principle of publicity (whatever variations from it there might be in practice) to have been so clearly established at a more early period, that all
State Trials, Vol. III. p. 212.
State Trials, Vol. V. p. 169.
State Trials, Vol. IV. from p. 538 to 552.
State Trials, Vol. IX. p. 606*. Die Lunæ, 28º Julii 1746
Id., Vol. XI. p. 262.