The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12)

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 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."25

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.26 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."27

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.28 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."29 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."30

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.31 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.

Your Committee, finding this course of proceeding to be concordant with the character and spirit of our judicial proceeding, continued from time immemorial, supported by arguments of sound theory, and confirmed by effects highly beneficial, could not see without uneasiness, in this great trial for Indian offences, a marked innovation. Against their reiterated requests, remonstrances, and protestations, the opinions of the Judges were always taken secretly. Not only the constitutional publicity for which we contend was refused to the request and entreaty of your Committee, but when a noble peer, on the 24th day of June, 1789, did in open court declare that he would then propose some questions to the Judges in that place, and hoped to receive their answer openly, according to the approved good customs of that and of other courts, the Lords instantly put a stop to the further proceeding by an immediate adjournment to the Chamber of Parliament. Upon this adjournment, we find by the Lords' Journals, that the House, on being resumed, ordered, that "it should resolve itself into a Committee of the whole House, on Monday next, to take into consideration what is the proper manner of putting questions by the Lords to the Judges, and of their answering the same, in judicial proceedings." The House did thereon resolve itself into a committee, from which the Earl of Galloway, on the 29th of the same month, reported as follows:—"That the House has, in the trial of Warren Hastings, Esquire, proceeded in a regular course, in the manner of propounding their questions to the Judges in the Chamber of Parliament, and in receiving their answers to them in the same place." The resolution was agreed to by the Lords; but the protest as below32 was entered thereupon, and supported by strong arguments.

Your Committee remark, that this resolution states only, that the House had proceeded, in this secret manner of propounding questions to the Judges and of receiving their answers, during the trial, and on matters of debate between the parties, "in a regular course." It does not assert that another course would not have been as regular. It does not state either judicial convenience, principle, or body of precedents for that regular course. No such body of precedents appear on the Journal, that we could discover. Seven-and-twenty, at least, in a regular series, are directly contrary to this regular course. Since the era of the 29th of June, 1789, no one question has been admitted to go publicly to the Judges.

This determined and systematic privacy was the more alarming to your Committee, because the questions did not (except in that case) originate from the Lords for the direction of their own conscience. These questions, in some material instances, were not made 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.