the suggestion of a question in law to the Judges, Lord Danby demanded
of the Lord High Steward, the Earl of Nottingham, "whether it would be
proper here [in open court] to ask the question of your Grace, or to
propose it to the Judges?" The Lord High Steward answered,--"If your
Lordships doubt of anything whereon a question in law ariseth, the
latter opinion, and 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 The prisoner, who had withdrawn, again appearing, he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withdrawn, have conceived a doubt in some matter [of law arising upon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.[19]
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."[20]
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.[21]
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.[22]
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:[23] 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 the Judges of England resolved in Lord Morley's trial, in the
year 1666, (about twelve years before the observation of Lord
Nottingham,) _on a supposition that the trial should be actually
concluded, and the Lords retired to the Chamber of Parliament to consult
on their verdict_, that even in that case, (much stronger than the
observation of your Committee requires for its support,) if their
opinions should then be demanded by the Peers, for the information of
their private conscience, yet they determined that they should be given
in public. This resolution is in itself so solemn, and is so bottomed on
constitutional principle and legal policy, that your Committee have
thought fit to insert it _verbatim_ in their Report, as they relied upon
it at the bar of the Court, when they contended for the same publicity.
"It was resolved, that, in case the Peers who are triers, _after the
evidence given, and the prisoner withdrawn, and they gone to consult of
the verdict_, should desire to speak with any of the Judges, to have
their opinion upon any point of law, that, if the Lord Steward spoke to
us to go, we should go to them; but when the Lords asked us any
question, we should not deliver any private opinion, but let them know
_we were not to deliver any private opinion without conference with the
rest of the Judges, and that to be done openly in court; and this
(notwithstanding the precedent in the case of the Earl of Castlehaven)
was thought prudent in regard of ourselves, as well as for the avoiding
suspicion which might grow by private opinions: ALL resolutions of
Judges being ALWAYS done in public_."[24]
The Judges in this resolution overruled the authority of the precedent,
which militated against the whole spirit of their place and profession.
Their declaration was without reserve or exception, that "_all_
resolutions of the Judges are _always_ done in public." These Judges (as
should be remembered to their lasting honor) did not think it derogatory
from their dignity, nor from their duty to the House of Lords, to take
such measures concerning the publicity of their resolutions as should
secure them from suspicion. They knew that the mere circumstance of
privacy in a judicature, where any publicity is in use, tends to beget
suspicion and jealousy. Your Committee is of opinion that the honorable
policy of avoiding suspicion by avoiding privacy is not lessened by
anything which exists in the present time and in the present trial.
Your Committee has here to remark, that this learned Judge seemed to
think the case of Lord Audley (Castlehaven) to be more against him than
in truth it was. The precedents were as follow. The opinions of the
Judges were taken three times: the first time by the Attorney-General at
Serjeants' Inn, antecedent to the trial; the last time, after the Peers
had retired to consult on their verdict; the middle time _was during the
trial itself_: and here the opinion was taken in open court, agreeably
to what your Committee contends to have been the usage ever since this
resolution of the Judges.[25] What was done before seemed to have passed
_sub silentio_, and possibly through mere inadvertence.
Your Committee observes, that the precedents by them relied on were
furnished from times in which the judicial proceedings in Parliament,
and in all our courts, had obtained a very regular form. They were
furnished at a period in which Justice Blackstone remarks that more laws
were passed of importance to the rights and liberties of the subject
than in any other. These precedents lean all one way, and carry no marks
of accommodation to the variable spirit of the times and of political
occasions. They are the same before and after the Revolution. They are
the same through five reigns. The great men who presided in the
tribunals which furnished these examples were in opposite political
interests, but all distinguished for their ability, integrity, and
learning.
The Earl of Nottingham, who was the first on the bench to promulgate
this publicity as a rule, has not left us to seek the principle in the
case: that very learned man considers the publicity of the questions and
answers as a matter of justice, _and of justice favorable to the
prisoner_. In the case of Mr. Hastings, the prisoner's counsel did not
join your Committee in their endeavors to obtain the publicity we
demanded. Their reasons we can only conjecture. But your Managers,
acting for this House, were not the less bound to see that the due
Parliamentary course should be pursued, even when it is most favorable
to those whom they impeach. If it should answer the purposes of one
prisoner to waive the rights which belong to all prisoners, it was the
duty of your Managers to protect those general rights against that
particular prisoner. It was still more their duty to endeavor that their
_own_ questions should not be erroneously stated, or cases put which
varied from those which they argued, or opinions given in a manner not
supported by the spirit of our laws and institutions or by analogy with
the practice of all our courts.
Your Committee, much in the dark about a matter in which it was so
necessary that they should receive every light, have heard, that, in
debating this matter abroad, it has been objected, that many of the
precedents on which we most relied were furnished in the courts of the
Lord High Steward, and not in trials where the Peers were Judges,--and
that the Lord High Steward not having it in his power to retire with the
juror Peers, the Judges' opinions, from necessity, not from equity to
the parties, were given before that magistrate.
Your Committee thinks it scarcely possible that the Lords could be
influenced by such a feeble argument. For, admitting the fact to have
been as supposed, there is no sort of reason why so uniform a course of
precedents, in a legal court composed of a peer for judge and peers for
triers, a course so favorable to all parties and to equal justice, a
course in concurrence with the procedure of all our other courts, should
not have the greatest authority over their practice in every trial
before _the whole body_ of the peerage.
The Earl of Nottingham, who acted as High Steward in one of these
commissions, certainly knew what he was saying. He gave no such reason.
His argument for the publicity of the Judges' opinions did not turn at
all on the nature of his court, or of his office in that court. It
rested on the equity of the principle, and on the fair dealing due to
the prisoner.
Lord Somers was in no such court; yet his declaration is full as strong.
He does not, indeed, argue the point, as the Earl of Nottingham did,
when he considered it as a new case. Lord Somers considers it as a
point quite settled, and no longer standing in need of being supported
by reason or precedent.
But it is a mistake that the precedents stated in this Report are wholly
drawn from proceedings in that kind of court. Only two are cited which
are furnished from a court constituted in the manner supposed. The rest
were in trials by all the peers, and not by a jury of peers with an High
Steward.
After long discussions with the Peers on this subject, "the Lords'
committees in a conference told them (the committee of this House,
appointed to a conference on the matter) that the High Steward is but
Speaker _pro tempore_, and giveth his vote as well as the other lords:
this changeth not the nature of the court. And the Lords declared, that
they have power enough to proceed to trial, though the King should not
name an High Steward." On the same day, "it is declared and ordered by
the Lords Spiritual and Temporal in Parliament assembled, that the
office of High Steward on trials of peers upon impeachments is not
necessary to the House of Peers, but that the Lords may proceed in such
trials, if an High Steward is not appointed according to their humble
desire."[26]
To put the matter out of all doubt, and to remove all jealousy on the
part of the Commons, the commission of the Lord High Steward was then
altered.
These rights, contended for by the Commons in their impeachments, and
admitted by the Peers, were asserted in the proceedings preparatory to
the trial of Lord Stafford, in which that long chain of uniform
precedents with regard to the publicity of the Judges' opinions in
trials begins.
For these last citations, and some of the remarks, your Committee are
indebted to the learned and upright Justice Foster. They have compared
them with the Journals, and find them correct. The same excellent author
proceeds to demonstrate that whatever he says of trials by impeachment
is equally applicable to trials before the High Steward on indictment;
and consequently, that there is no ground for a distinction, with regard
to the public declaration of the Judges' opinions, founded on the
inapplicability of either of these cases to the other. The argument on
this whole matter is so satisfactory that your Committee has annexed it
at large to their Report.[27] As there is no difference in fact between
these trials, (especially since the act which provides that all the
peers shall be summoned to the trial of a peer,) so there is no
difference in the reason and principle of the publicity, let the matter
of the Steward's jurisdiction, be as it may.
PUBLICITY GENERAL.
Your Committee do not find any positive law which binds the judges of
the courts in Westminster Hall publicly to give a reasoned opinion from
the bench, in support of their judgment upon matters that are stated
before them. But the course hath prevailed from the oldest times. It
hath been so general and so uniform, that it must be considered as the
law of the land. It has prevailed, so far as we can discover, not only
in all the courts which now exist, whether of law or equity, but in
those which have been suppressed or disused, such as the Court of Wards
and the Star Chamber. An author quoted by Rushworth, speaking of the
constitution of that chamber, says,--"And so it was resolved _by the
Judges, on reference made to them; and their opinion, after deliberate
hearing, and view of former precedents, was published in open
court_."[28] It appears elsewhere in the same compiler that all their
proceedings were public, even in deliberating previous to judgment.
The Judges in their reasonings have always been used to observe on the
arguments employed by the counsel on either side, and on the authorities
cited by them,--assigning the grounds for rejecting the authorities
which they reject, or for adopting those to which they adhere, or for a
different construction of law, according to the occasion. This
publicity, not only of decision, but of deliberation, is not confined to
their several courts, whether of law or equity, whether above or at Nisi
Prius; but it prevails where they are assembled, in the Exchequer
Chamber, or at Serjeants' Inn, or wherever matters come before the
Judges collectively for consultation and revision. It seems to your
Committee to be moulded in the essential frame and constitution of
British judicature. Your Committee conceives that the English
jurisprudence has not any other sure foundation, nor, consequently, the
lives and properties of the subject any sure hold, but in the maxims,
rules, and principles, and juridical traditionary line of decisions
contained in the notes taken, and from time to time published, (mostly
under the sanction of the Judges,) called Reports.
In the early periods of the law it appears to your Committee that a
course still better had been pursued, but grounded on the same
principles; and that no other cause than the multiplicity of business
prevented its continuance. "Of ancient time," says Lord Coke, "in cases
of difficulties, either criminal or civil, _the reasons and causes_ of
the judgment were set down _upon the record_, and so continued in the
reigns of Ed. I. and Ed. II., and then there was no need of reports; but
in the reign of Ed. III. (when the law was in its height) the causes and
reasons of judgments, in respect of the multitude of them, are not set
down in the record, but then _the great casuists and reporters of cases_
(certain grave and sad men) published the cases, _and the reasons and
causes of the judgments or resolutions_, which, from the beginning of
the reign of Ed. III. and since, we have in print. But these also,
though of great credit and excellent use in their kind, _yet far
underneath the authority of the Parliament Rolls, reporting the acts,
judgments, and resolutions of that highest court_."[29]
Reports, though of a kind less authentic than the Year Books, to which
Coke alludes, have continued without interruption to the time in which
we live. It is well known that the elementary treatises of law, and the
dogmatical treatises of English jurisprudence, whether they appear under
the names of institutes, digests, or commentaries, do not rest on the
authority of the supreme power, like the books called the Institute,
Digest, Code, and authentic collations in the Roman law. With us
doctrinal books of that description have little or no authority, other
than as they are supported by the adjudged cases and reasons given at
one time or other from the bench; and to these they constantly refer.
This appears in Coke's Institutes, in Comyns's Digest, and in all books
of that nature. To give judgment privately is to put an end to reports;
and to put an end to reports is to put an end to the law of England. It
was fortunate for the Constitution of this kingdom, that, in the
judicial proceedings in the case of ship-money, the Judges did not then
venture to depart from the ancient course. They gave and they argued
their judgment in open court.[30] Their reasons were publicly given, and
the reasons assigned for their judgment took away all its authority. The
great historian, Lord Clarendon, at that period a young lawyer, has told
us that the Judges gave as law from the bench what every man in the hall
knew not to be law.
This publicity, and this mode of attending the decision with its
grounds, is observed not only in the tribunals where the Judges preside
in a judicial capacity, individually or collectively, but where they are
consulted by the Peers on the law in all _writs of error_ brought from
below. In the opinion they give of the matter assigned as error, one at
least of the Judges argues the questions at large. He argues them
publicly, though in the Chamber of Parliament,--and in such a manner,
that every professor, practitioner, or student of the law, as well as
the parties to the suit, may learn the opinions of all the Judges of all
the courts upon those points in which the Judges in one court might be
mistaken.
Your Committee is of opinion that nothing better could be devised by
human wisdom than argued judgments publicly delivered for preserving
unbroken the great traditionary body of the law, and for marking,
whilst that great body remained unaltered, every variation in the
application and the construction of particular parts, for pointing out
the ground of each variation, and for enabling the learned of the bar
and all intelligent laymen to distinguish those changes made for the
advancement of a more solid, equitable, and substantial justice,
according to the variable nature of human affairs, a progressive
experience, and the improvement of moral philosophy, from those
hazardous changes in any of the ancient opinions and decisions which may
arise from ignorance, from levity, from false refinement, from a spirit
of innovation, or from other motives, of a nature not more justifiable.