The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12). Edmund Burke
or allowed by the parties at the bar, nor settled in open court, but differed materially from what your Managers contended was the true state of the question, as put and argued by them. They were such as the Lords thought proper to state for them. Strong remonstrances produced some alteration in this particular; but even after these remonstrances, several questions were made on statements which the Managers never made nor admitted.
Your Committee does not know of any precedent before this, in which the Peers, on a proposal of the Commons, or of a less weighty person before their court, to have the cases publicly referred to the Judges, and their arguments and resolutions delivered in their presence, absolutely refused. The very few precedents of such private reference on trials have been made, as we have observed already, sub silentio, and without any observation from the parties. In the precedents we produce, the determination is accompanied with its reasons, and the publicity is considered as the clear, undoubted right of the parties.
Your Committee, using their best diligence, have never been able to form a clear opinion upon the ground and principle of these decisions. The mere result, upon each case decided by the Lords, furnished them with no light, from any principle, precedent, or foregone authority of law or reason, to guide them with regard to the next matter of evidence which they had to offer, or to discriminate what matter ought to be urged or to be set aside: your Committee not being able to divine whether the particular evidence, which, upon a conjectural principle, they might choose to abandon, would not appear to this House, and to the judging world at large, to be admissible, and possibly decisive proof. In these straits, they had and have no choice, but either wholly to abandon the prosecution, and of consequence to betray the trust reposed in them by this House, or to bring forward such matter of evidence as they are furnished with from sure sources of authenticity, and which in their judgment, aided by the best advice they could obtain, is possessed of a moral aptitude juridically to prove or to illustrate the case which the House had given them, in charge.
MODE OF PUTTING THE QUESTIONS
When your Committee came to examine into those private opinions of the Judges, they found, to their no small concern, that the mode both of putting the questions to the Judges, and their answers, was still more unusual and unprecedented than the privacy with which those questions were given and resolved.
This mode strikes, as we apprehend, at the vital privileges of the House. For, with the single exception of the first question put to the Judges in 1788, the case being stated, the questions are raised directly, specifically, and by name, on those privileges: that is, What evidence is it competent for the Managers of the House of Commons to produce? We conceive that it was not proper, nor justified by a single precedent, to refer to the Judges of the inferior courts any question, and still less for them to decide in their answer, of what is or is not competent for the House of Commons, or for any committee acting under their authority, to do or not to do, in any instance or respect whatsoever. This new and unheard-of course can have no other effect than to subject to the discretion of the Judges the Law of Parliament and the privileges of the House of Commons, and in a great measure the judicial privileges of the Peers themselves: any intermeddling in which on their part we conceive to be a dangerous and unwarrantable assumption of power. It is contrary to what has been declared by Lord Coke himself, in a passage before quoted, to be the duty of the Judges,—and to what the Judges of former times have confessed to be their duty, on occasions to which he refers in the time of Henry VI. And we are of opinion that the conduct of those sages of the law, and others their successors, who have been thus diffident and cautious in giving their opinions upon matters concerning Parliament, and particularly on the privileges of the House of Commons, was laudable in the example, and ought to be followed: particularly the principles upon which the Judges declined to give their opinions in the year 1614. It appears by the Journals of the Lords, that a question concerning the law relative to impositions having been put to the Judges, the proceeding was as follows. "Whether the Lords the Judges shall be heard deliver their opinion touching the point of impositions, before further consideration be had of answer to be returned to the lower House concerning the message from them lately received. Whereupon the number of the Lords requiring to hear the Judges' opinions by saying 'Content' exceeding the others which said 'Non Content,' the Lords the Judges, so desiring, were permitted to withdraw themselves into the Lord Chancellor's private rooms, where having remained awhile and advised together, they returned into the House, and, having taken their places, and standing discovered, did, by the mouth of the Lord Chief-Justice of the King's Bench, humbly desire to be forborne at this time, in this place, to deliver any opinion in this case, for many weighty and important reasons, which his Lordship delivered with great gravity and eloquence; concluding that himself and his brethren are upon particulars in judicial course to speak and judge between the King's Majesty and his people, and likewise between his Highness's subjects, and in no case to be disputants on any side."
Your Committee do not find anything which, through inadvertence or design, had a tendency to subject the law and course of Parliament to the opinions of the Judges of the inferior courts, from that period until the 1st of James II. The trial of Lord Delamere for high treason was had by special commission before the Lord High Steward: it was before the act which directs that all peers should be summoned to such trials. This was not a trial in full Parliament, in which case it was then contended for that the Lord High Steward was the judge of the law, presiding in the Court, but had no vote in the verdict, and that the Lords were triers only, and had no vote in the judgment of law. This was looked on as the course, where the trial was not in full Parliament, in which latter case there was no doubt but that the Lord High Steward made a part of the body of the triers, and that the whole House was the judge.33 In this cause, after the evidence for the Crown had been closed, the prisoner prayed the Court to adjourn. The Lord High Steward doubted his power to take that step in that stage of the trial; and the question was, "Whether, the trial not being in full Parliament, when the prisoner is upon his trial, and evidence for the King is given, the Lords being (as it may be termed) charged with the prisoner, the Peers may separate for a time, which is the consequence of an adjournment?" The Lord High Steward doubted of his power to adjourn the Court. The case was evidently new, and his Grace proposed to have the opinion of the Judges upon it. The Judges in consequence offering to withdraw into the Exchequer Chamber, Lord Falconberg "insisted that the question concerned the privilege of the Peerage only, and conceived that the Judges are not concerned to make any determination in that matter; and being such a point of privilege, certainly the inferior courts have no right to determine it." It was insisted, therefore, that the Lords triers should retire with the Judges. The Lord High Steward thought differently, and opposed this motion; but finding the other opinion generally prevalent, he gave way, and the Lords triers retired, taking the Judges to their consult. When the Judges returned, they delivered their opinion in open court. Lord Chief-Justice Herbert spoke for himself and the rest of the Judges. After observing on the novelty of the case, with a temperate and becoming reserve with regard to the rights of Parliaments, he marked out the limits of the office of the inferior Judges on such occasions, and declared,—"All that we, the Judges, can do is to acquaint your Grace and the noble Lords what the law is in the inferior courts in cases of the like nature, and the reason of the law in those points, and then leave the jurisdiction of the court to its proper judgment." The Chief-Justice concluded his statement of the usage below, and his observations on the difference of the cases of a peer tried in full Parliament and by a special commission, in this manner:—"Upon the whole matter, my Lords, whether the Peers being judges in the one and not in the other instance alters the case, or whether the reason of the law in inferior courts why the jury are not permitted to separate until they have discharged themselves of their verdict may have any influence on this case, where that reason seems to fail, the prisoner being to be tried by men of unquestionable honor, we cannot presume so far as to make any determination, in a case which is both new to us and of great consequence in itself; but think it the proper way for us, having laid matters as we conceive them before your Grace and my Lords, to submit the jurisdiction of your own court to your own determination."
It appears to your Committee, that the Lords, who stood against submitting the course of their high court to the inferior Judges, and that the Judges, who, with a legal and constitutional discretion, declined giving any opinion
See the Lord High Steward's speech on that head, 1st James II.