THE RIGHT HONOURABLE
IN TWELVE VOLUMES
VOLUME THE ELEVENTH
LONDON JOHN C. NIMMO 14, KING WILLIAM STREET, STRAND, W.C. MDCCCLXXXVII
CONTENTS OF VOL. XI.
PAGE REPORT FROM THE COMMITTEE OF THE HOUSE OF COMMONS, APPOINTED TO INSPECT THE LORDS' JOURNALS IN RELATION TO THEIR PROCEEDINGS ON THE TRIAL OF WARREN HASTINGS, ESQUIRE. WITH AN APPENDIX. ALSO, REMARKS IN VINDICATION OF THE SAME FROM THE ANIMADVERSIONS OF LORD THURLOW. 1794. 1
SPEECHES IN THE IMPEACHMENT OF WARREN HASTINGS, ESQUIRE, LATE GOVERNOR-GENERAL OF BENGAL. (CONTINUED.)
SPEECH IN GENERAL REPLY. FIRST DAY: WEDNESDAY, MAY 28, 1794 157 SECOND DAY: FRIDAY, MAY 30 227 THIRD DAY: TUESDAY, JUNE 3 300 FOURTH DAY: THURSDAY, JUNE 5 372
COMMITTEE OF THE HOUSE OF COMMONS,
TO INSPECT THE LORDS' JOURNALS
IN RELATION TO THEIR PROCEEDINGS
ON THE TRIAL OF
WARREN HASTINGS, ESQUIRE.
WITH AN APPENDIX.
REMARKS IN VINDICATION OF THE SAME FROM THE ANIMADVERSIONS OF LORD THURLOW.
In the sixth article Mr. Burke was supported, on the 16th of February, 1790, by Mr. Anstruther, who opened the remaining part of this article and part of the seventh article, and the evidence was summed up and enforced by him. The rest of the evidence upon the sixth, and on part of the seventh, eighth, and fourteenth articles, were respectively opened and enforced by Mr. Fox and other of the Managers, on the 7th and 9th of June, in the same session. On the 23d May, 1791, Mr. St. John opened the fourth article of charge; and evidence was heard in support of the same. In the following sessions of 1792, Mr. Hastings's counsel were heard in his defence, which was continued through the whole of the sessions of 1793.
On the 5th of March, 1794, a select committee was appointed by the House of Commons to inspect the Lords' Journals, in relation to their proceeding on the trial of Warren Hastings, Esquire, and to report what they found therein to the House, (which committee were the managers appointed to make good the articles of impeachment against the said Warren Hastings, Esquire,) and who were afterwards instructed to report the several matters which had occurred since the commencement of the prosecution, and which had, in their opinion, contributed to the duration thereof to that time, with their observations thereupon. On the 30th of April, the following Report, written by Mr. Burke, and adopted by the Committee, was presented to the House of Commons, and ordered by the House to be printed.
Made on the 30th April, 1794, from the Committee of the House of Commons, appointed to inspect the Lords' Journals, in relation to their proceeding on the trial of Warren Hastings, Esquire, and to report what they find therein to the House (which committee were the managers appointed to make good the articles of impeachment against the said Warren Hastings, Esquire); and who were afterwards instructed to report the several matters which have occurred since the commencement of the said prosecution, and which have, in their opinion, contributed to the duration thereof to the present time, with their observations thereupon.
Your Committee has received two powers from the House:—The first, on the 5th of March, 1794, to inspect the Lords' Journals, in relation to their proceedings on the trial of Warren Hastings, Esquire, and to report what they find therein to the House. The second is an instruction, given on the 17th day of the same month of March, to this effect: That your Committee do report to this House the several matters which have occurred since the commencement of the said prosecution, and which have, in their opinion, contributed to the duration thereof to the present time, with their observations thereupon.
Your Committee is sensible that the duration of the said trial, and the causes of that duration, as well as the matters which have therein occurred, do well merit the attentive consideration of this House. We have therefore endeavored with all diligence to employ the powers that have been granted and to execute the orders that have been given to us, and to report thereon as speedily as possible, and as fully as the time would admit.
Your Committee has considered, first, the mere fact of the duration of the trial, which they find to have commenced on the 13th day of February, 1788, and to have continued, by various adjournments, to the said 17th of March. During that period the sittings of the Court have occupied one hundred and eighteen days, or about one third of a year. The distribution of the sitting days in each year is as follows.
Days. In the year 1788, the Court sat 35 1789, 17 1790, 14 1791, 5 1792, 22 1793, 22 1794, to the 1st of March, inclusive 3 —— Total 118
Your Committee then proceeded to consider the causes of this duration, with regard to time as measured by the calendar, and also as measured by the number of days occupied in actual sitting. They find, on examining the duration of the trial with reference to the number of years which it has lasted, that it has been owing to several prorogations and to one dissolution of Parliament; to discussions which are supposed to have arisen in the House of Peers on the legality of the continuance of impeachments from Parliament to Parliament; that it has been owing to the number and length of the adjournments of the Court, particularly the adjournments on account of the Circuit, which adjournments were interposed in the middle of the session, and the most proper time for business; that it has been owing to one adjournment made in consequence of a complaint of the prisoner against one of your Managers, which took up a space of ten days; that two days' adjournments were made on account of the illness of certain of the Managers; and, as far as your Committee can judge, two sitting days were prevented by the sudden and unexpected dereliction of the defence of the prisoner at the close of the last session, your Managers not having been then ready to produce their evidence in reply, nor to make their observations on the evidence produced by the prisoner's counsel, as they expected the whole to have been gone through before they were called on for their reply. In this session your Committee computes that the trial was delayed about a week or ten days. The Lords waited for the recovery of the Marquis Cornwallis, the prisoner wishing to avail himself of the testimony of that noble person.
With regard to the one hundred and eighteen days employed in actual sitting, the distribution of the business was in the manner following.
There were spent,—
Days In reading the articles of impeachment, and the defendant's answer, and in debate on the mode of proceeding 3
Opening speeches, and summing up by the Managers 19
Documentary and oral evidence by the Managers 51
Opening speeches and summing up by the defendant's counsel, and defendant's addresses to the Court 22
Documentary and oral evidence on the part of the defendant 23 —— 118
The other head, namely, that the trial has occupied one hundred and eighteen days, or nearly one third of a year. This your Committee conceives to have arisen from the following immediate causes. First, the nature and extent of the matter to be tried. Secondly, the general nature and quality of the evidence produced: it was principally documentary evidence, contained in papers of great length, the whole of which was often required to be read when brought to prove a single short fact. Under the head of evidence must be taken into consideration the number and description of the witnesses examined and cross-examined. Thirdly, and principally, the duration of the trial is to be attributed to objections taken by the prisoner's counsel to the admissibility of several documents and persons offered as evidence on the part of the prosecution. These objections amounted to sixty-two: they gave rise to several debates, and to twelve references from the Court to the Judges. On the part of the Managers, the number of objections was small; the debates upon them were short; there was not upon them any reference to the Judges; and the Lords did not even retire upon any of them to the Chamber of Parliament.
This last cause of the number of sitting days your Committee considers as far more important than all the rest. The questions upon the admissibility of evidence, the manner in which these questions were stated and were decided, the modes of proceeding, the great uncertainty of the principle upon which evidence in that court is to be admitted or rejected,—all these appear to your Committee materially to affect the constitution of the House of Peers as a court of judicature, as well as its powers, and the purposes it was intended to answer in the state. The Peers have a valuable interest in the conservation of their own lawful privileges. But this interest is not confined to the Lords. The Commons ought to partake in the advantage of the judicial rights and privileges of that high court. Courts are made for the suitors, and not the suitors for the court. The conservation of all other parts of the law, the whole indeed of the rights and liberties of the subject, ultimately depends upon the preservation of the Law of Parliament in its original force and authority.
Your Committee had reason to entertain apprehensions that certain proceedings in this trial may possibly limit and weaken the means of carrying on any future impeachment of the Commons. As your Committee felt these apprehensions strongly, they thought it their duty to begin with humbly submitting facts and observations on the proceedings concerning evidence to the consideration of this House, before they proceed to state the other matters which come within the scope of the directions which they have received.
To enable your Committee the better to execute the task imposed upon them in carrying on the impeachment of this House, and to find some principle on which they were to order and regulate their conduct therein, they found it necessary to look attentively to the jurisdiction of the court in which they were to act for this House, and into its laws and rules of proceeding, as well as into the rights and powers of the House of Commons in their impeachments.
RELATION OF THE JUDGES, ETC., TO THE COURT OF PARLIAMENT.
Upon examining into the course of proceeding in the House of Lords, and into the relation which exists between the Peers, on the one hand, and their attendants and assistants, the Judges of the Realm, Barons of the Exchequer of the Coif, the King's learned counsel, and the Civilians Masters of the Chancery, on the other, it appears to your Committee that these Judges, and other persons learned in the Common and Civil Laws, are no integrant and necessary part of that court. Their writs of summons are essentially different; and it does not appear that they or any of them have, or of right ought to have, a deliberative voice, either actually or virtually, in the judgments given in the High Court of Parliament. Their attendance in that court is solely ministerial; and their answers to questions put to them are not to be regarded as declaratory of the Law of Parliament, but are merely consultory responses, in order to furnish such matter (to be submitted to the judgment of the Peers) as may be useful in reasoning by analogy, so far as the nature of the rules in the respective courts of the learned persons consulted shall appear to the House to be applicable to the nature and circumstances of the case before them, and no otherwise.
JURISDICTION OF THE LORDS.
Your Committee finds, that, in all impeachments of the Commons of Great Britain for high crimes and misdemeanors before the Peers in the High Court of Parliament, the Peers are not triers or jurors only, but, by the ancient laws and constitution of this kingdom, known by constant usage, are judges both of law and fact; and we conceive that the Lords are bound not to act in such a manner as to give rise to an opinion that they have virtually submitted to a division of their legal powers, or that, putting themselves into the situation of mere triers or jurors, they may suffer the evidence in the cause to be produced or not produced before them, according to the discretion of the judges of the inferior courts.
LAW OF PARLIAMENT.
Your Committee finds that the Lords, in matter of appeal or impeachment in Parliament, are not of right obliged to proceed according to the course or rules of the Roman Civil Law, or by those of the law or usage of any of the inferior courts in Westminster Hall, but by the law and usage of Parliament. And your Committee finds that this has been declared in the most clear and explicit manner by the House of Lords, in the year of our Lord 1387 and 1388, in the 11th year of King Richard II.
Upon an appeal in Parliament then depending against certain great persons, peers and commoners, the said appeal was referred to the Justices, and other learned persons of the law. "At which time," it is said in the record, that "the Justices and Serjeants, and others the learned in the Law Civil, were charged, by order of the King our sovereign aforesaid, to give their faithful counsel to the Lords of the Parliament concerning the due proceedings in the cause of the appeal aforesaid. The which Justices, Serjeants, and the learned in the law of the kingdom, and also the learned in the Law Civil, have taken the same into deliberation, and have answered to the said Lords of Parliament, that they had seen and well considered the tenor of the said appeal; and they say that the same appeal was neither made nor pleaded according to the order which the one law or the other requires. Upon which the said Lords of Parliament have taken the same into deliberation and consultation, and by the assent of our said Lord the King, and of their common agreement, it was declared, that, in so high a crime as that which is charged in this appeal, which touches the person of our lord the King, and the state of the whole kingdom, perpetrated by persons who are peers of the kingdom, along with others, the cause shall not be tried in any other place but in Parliament, nor by any other law than the law and course of Parliament; and that it belongeth to the Lords of Parliament, and to their franchise and liberty by the ancient custom of the Parliament, to be judges in such cases, and in these cases to judge by the assent of the King; and thus it shall be done in this case, by the award of Parliament: because the realm of England has not been heretofore, nor is it the intention of our said lord the King and the Lords of Parliament that it ever should be governed by the Law Civil; and also, it is their resolution not to rule or govern so high a cause as this appeal is, which cannot be tried anywhere but in Parliament, as hath been said before, by the course, process, and order used in any courts or place inferior in the same kingdom; which courts and places are not more than the executors of the ancient laws and customs of the kingdom, and of the ordinances and establishments of Parliament. It was determined by the said Lords of Parliament, by the assent of our said lord the King, that this appeal was made and pleaded well and sufficiently, and that the process upon it is good and effectual, according to the law and course of Parliament; and for such they decree and adjudge it."
And your Committee finds, that toward the close of the same Parliament the same right was again claimed and admitted as the special privilege of the Peers, in the following manner:—"In this Parliament, all the Lords then present, Spiritual as well as Temporal, claimed as their franchise, that the weighty matters moved in this Parliament, and which shall be moved in other Parliaments in future times, touching the peers of the land, shall be managed, adjudged, and discussed by the course of Parliament, and in no sort by the Law Civil, or by the common law of the land, used in the other lower courts of the kingdom; which claim, liberty, and franchise the King graciously allowed and granted to them in full Parliament."
Your Committee finds that the Commons, having at that time considered the appeal above mentioned, approved the proceedings in it, and, as far as in them lay, added the sanction of their accusation against the persons who were the objects of the appeal. They also, immediately afterwards, impeached all the Judges of the Common Pleas, the Chief Baron of the Exchequer, and other learned and eminent persons, both peers and commoners; upon the conclusion of which impeachments it was that the second claim was entered. In all the transactions aforesaid the Commons were acting parties; yet neither then nor ever since have they made any objection or protestation, that the rule laid down by the Lords in the beginning of the session of 1388 ought not to be applied to the impeachments of commoners as well as peers. In many cases they have claimed the benefit of this rule; and in all cases they have acted, and the Peers have determined, upon the same general principles. The Peers have always supported the same franchises; nor are there any precedents upon the records of Parliament subverting either the general rule or the particular privilege, so far as the same relates either to the course of proceeding or to the rule of law by which the Lords are to judge.
Your Committee observes also, that, in the commissions to the several Lords High Stewards who have been appointed on the trials of peers impeached by the Commons, the proceedings are directed to be had according to the law and custom of the kingdom, and the custom of Parliament: which words are not to be found in the commissions for trying upon indictments.
"As every court of justice," says Lord Coke, "hath laws and customs for its direction, some by the Common Law, some by the Civil and Canon Law, some by peculiar laws and customs, &c., so the High Court of Parliament suis propriis legibus et consuetudinibus subsistit. It is by the Lex et Consuetudo Parliamenti, that all weighty matters in any Parliament moved, concerning the peers of the realm, or Commons in Parliament assembled, ought to be determined, adjudged, and discussed, by the course of the Parliament, and not by the Civil Law, nor yet by the common laws of this realm used in more inferior courts." And after founding himself on this very precedent of the 11th of Richard II., he adds, "This is the reason that Judges ought not to give any opinion of a matter of Parliament, because it is not to be decided by the common laws, but secundum Legem et Consuetudinem Parliamenti: and so the Judges in divers Parliaments have confessed!"
RULE OF PLEADING.
Your Committee do not find that any rules of pleading, as observed in the inferior courts, have ever obtained in the proceedings of the High Court of Parliament, in a cause or matter in which the whole procedure has been within their original jurisdiction. Nor does your Committee find that any demurrer or exception, as of false or erroneous pleading, hath been ever admitted to any impeachment in Parliament, as not coming within the form of the pleading; and although a reservation or protest is made by the defendant (matter of form, as we conceive) "to the generality, uncertainty, and insufficiency of the articles of impeachment," yet no objections have in fact been ever made in any part of the record; and when verbally they have been made, (until this trial,) they have constantly been overruled.
The trial of Lord Strafford is one of the most important eras in the history of Parliamentary judicature. In that trial, and in the dispositions made preparatory to it, the process on impeachments was, on great consideration, research, and selection of precedents, brought very nearly to the form which it retains at this day; and great and important parts of Parliamentary Law were then laid down. The Commons at that time made new charges or amended the old as they saw occasion. Upon an application from the Commons to the Lords, that the examinations taken by their Lordships, at their request, might be delivered to them, for the purpose of a more exact specification of the charge they had made, on delivering the message of the Commons, Mr. Pym, amongst other things, said, as it is entered in the Lords' Journals, "According to the clause of reservation in the conclusion of their charge, they [the Commons] will add to the charges, not to the matter in respect of comprehension, extent, or kind, but only to reduce them to more particularities, that the Earl of Strafford might answer with the more clearness and expedition: not that they are bound by this way of SPECIAL charge; and therefore they have taken care in their House, upon protestation, that this shall be no prejudice to bind them from proceeding in GENERAL in other cases, and that they are not to be ruled by proceedings in other courts, which protestation they have made for the preservation of the power of Parliament; and they desire that the like care may be had in your Lordships' House." This protestation is entered on the Lords' Journals. Thus careful were the Commons that no exactness used by them for a temporary accommodation, should become an example derogatory to the larger rights of Parliamentary process.
At length the question of their being obliged to conform to any of the rules below came to a formal judgment. In the trial of Dr. Sacheverell, March 10th, 1709, the Lord Nottingham "desired their Lordships' opinion, whether he might propose a question to the Judges here [in Westminster Hall]. Thereupon the Lords, being moved to adjourn, adjourned to the House of Lords, and on debate," as appears by a note, "it was agreed that the question should be proposed in Westminster Hall." Accordingly, when the Lords returned the same day into the Hall, the question was put by Lord Nottingham, and stated to the Judges by the Lord Chancellor: "Whether, by the law of England, and constant practice in all prosecutions by indictment and information for crimes and misdemeanors by writing or speaking, the particular words supposed to be written or spoken must not be expressly specified in the indictment or information?" On this question the Judges, seriatim, and in open court, delivered their opinion: the substance of which was, "That, by the laws of England, and the constant practice in Westminster Hall, the words ought to be expressly specified in the indictment or information." Then the Lords adjourned, and did not come into the Hall until the 20th. In the intermediate time they came to resolutions on the matter of the question put to the Judges. Dr. Sacheverell, being found guilty, moved in arrest of judgment upon two points. The first, which he grounded on the opinion of the Judges, and which your Committee thinks most to the present purpose, was, "That no entire clause, or sentence, or expression, in either of his sermons or dedications, is particularly set forth in his impeachment, which he has already heard the Judges declare to be necessary in all cases of indictments or informations." On this head of objection, the Lord Chancellor, on the 23d of March, agreeably to the resolutions of the Lords of the 14th and 16th of March, acquainted Dr. Sacheverell, "That, on occasion of the question before put to the Judges in Westminster Hall, and their answer thereto, their Lordships had fully debated and considered of that matter, and had come to the following resolution: 'That this House will proceed to the determination of the impeachment of Dr. Henry Sacheverell, according to the law of the land, and the law and usage of Parliament.' And afterwards to this resolution: 'That, by the law and usage of Parliament in prosecutions for high crimes and misdemeanors by writing or speaking, the particular words supposed to be criminal are not necessary to be expressly specified in such impeachment.' So that, in their Lordships' opinion, the law and usage of the High Court of Parliament being a part of the law of the land, and that usage not requiring that words should be exactly specified in impeachments, the answer of the Judges, which related only to the course of indictments and informations, does not in the least affect your case."
On this solemn judgment concerning the law and usage of Parliament, it is to be remarked: First, that the impeachment itself is not to be presumed inartificially drawn. It appears to have been the work of some of the greatest lawyers of the time, who were perfectly versed in the manner of pleading in the courts below, and would naturally have imitated their course, if they had not been justly fearful of setting an example which might hereafter subject the plainness and simplicity of a Parliamentary proceeding to the technical subtilties of the inferior courts. Secondly, that the question put to the Judges, and their answer, were strictly confined to the law and practice below; and that nothing in either had a tendency to their delivering an opinion concerning Parliament, its laws, its usages, its course of proceeding, or its powers. Thirdly, that the motion in arrest of judgment, grounded on the opinion of the Judges, was made only by Dr. Sacheverell himself, and not by his counsel, men of great skill and learning, who, if they thought the objections had any weight, would undoubtedly have made and argued them.
Here, as in the case of the 11th King Richard II., the Judges declared unanimously, that such an objection would be fatal to such a pleading in any indictment or information; but the Lords, as on the former occasion, overruled this objection, and held the article to be good and valid, notwithstanding the report of the Judges concerning the mode of proceeding in the courts below.
Your Committee finds that a protest, with reasons at large, was entered by several lords against this determination of their court. It is always an advantage to those who protest, that their reasons appear upon record; whilst the reasons of the majority, who determine the question, do not appear. This would be a disadvantage of such importance as greatly to impair, if not totally to destroy, the effect of precedent as authority, if the reasons which prevailed were not justly presumed to be more valid than those which have been obliged to give way: the former having governed the final and conclusive decision of a competent court. But your Committee, combining the fact of this decision with the early decision just quoted, and with the total absence of any precedent of an objection, before that time or since, allowed to pleading, or what has any relation to the rules and principles of pleading, as used in Westminster Hall, has no doubt that the House of Lords was governed in the 9th of Anne by the very same principles which it had solemnly declared in the 11th of Richard II.
But besides the presumption in favor of the reasons which must be supposed to have produced this solemn judgment of the Peers, contrary to the practice of the courts below, as declared by all the Judges, it is probable that the Lords were unwilling to take a step which might admit that anything in that practice should be received as their rule. It must be observed, however, that the reasons against the article alleged in the protest were by no means solely bottomed in the practice of the courts below, as if the main reliance of the protesters was upon that usage. The protesting minority maintained that it was not agreeable to several precedents in Parliament; of which they cited many in favor of their opinion. It appears by the Journals, that the clerks were ordered to search for precedents, and a committee of peers was appointed to inspect the said precedents, and to report upon them,—and that they did inspect and report accordingly. But the report is not entered on the Journals. It is, however, to be presumed that the greater number and the better precedents supported the judgment. Allowing, however, their utmost force to the precedents there cited, they could serve only to prove, that, in the case of words, (to which alone, and not the case of a written libel, the precedents extended,) such a special averment, according to the tenor of the words, had been used; but not that it was necessary, or that ever any plea had been rejected upon such an objection. As to the course of Parliament, resorted to for authority in this part of the protest, the argument seems rather to affirm than to deny the general proposition, that its own course, and not that of the inferior courts, had been the rule and law of Parliament.
As to the objection, taken in the protest, drawn from natural right, the Lords knew, and it appears in the course of the proceeding, that the whole of the libel had been read at length, as appears from p. 655 to p. 666. So that Dr. Sacheverell had substantially the same benefit of anything which could be alleged in the extenuation or exculpation as if his libellous sermons had been entered verbatim upon the recorded impeachment. It was adjudged sufficient to state the crime generally in the impeachment. The libels were given in evidence; and it was not then thought of, that nothing should be given in evidence which was not specially charged in the impeachment.
But whatever their reasons were, (great and grave they were, no doubt,) such as your Committee has stated it is the judgment of the Peers on the Law of Parliament, as a part of the law of the land. It is the more forcible as concurring with the judgment in the 11th of Richard II., and with the total silence of the Rolls and Journals concerning any objection to pleading ever being suffered to vitiate an impeachment, or to prevent evidence being given upon it, on account of its generality, or any other failure.
Your Committee do not think it probable, that, even before this adjudication, the rules of pleading below could ever have been adopted in a Parliamentary proceeding, when it is considered that the several statutes of Jeofails, not less than twelve in number, have been made for the correction of an over-strictness in pleading, to the prejudice of substantial justice: yet in no one of these is to be discovered the least mention of any proceeding in Parliament. There is no doubt that the legislature would have applied its remedy to that grievance in Parliamentary proceedings, if it had found those proceedings embarrassed with what Lord Mansfield, from the bench, and speaking of the matter of these statutes, very justly calls "disgraceful subtilties."
What is still more strong to the point, your Committee finds that in the 7th of William III. an act was made for the regulating of trials for treason and misprision of treason, containing several regulations for reformation of proceedings at law, both as to matters of form and substance, as well as relative to evidence. It is an act thought most essential to the liberty of the subject; yet in this high and critical matter, so deeply affecting the lives, properties, honors, and even the inheritable blood of the subject, the legislature was so tender of the high powers of this high court, deemed so necessary for the attainment of the great objects of its justice, so fearful of enervating any of its means or circumscribing any of its capacities, even by rules and restraints the most necessary for the inferior courts, that they guarded against it by an express proviso, "that neither this act, nor anything therein contained, shall any ways extend to any impeachment or other proceedings in Parliament, in any land whatsoever."
CONDUCT OF THE COMMONS IN PLEADING.
This point being thus solemnly adjudged in the case of Dr. Sacheverell, and the principles of the judgment being in agreement with the whole course of Parliamentary proceedings, the Managers for this House have ever since considered it as an indispensable duty to assert the same principle, in all its latitude, upon all occasions on which it could come in question,—and to assert it with an energy, zeal, and earnestness proportioned to the magnitude and importance of the interest of the Commons of Great Britain in the religious observation of the rule, that the Law of Parliament, and the Law of Parliament only, should prevail in the trial of their impeachments.
In the year 1715 (1 Geo. I.) the Commons thought proper to impeach of high treason the lords who had entered into the rebellion of that period. This was about six years after the decision in the case of Sacheverell. On the trial of one of these lords, (the Lord Wintoun,) after verdict, the prisoner moved in arrest of judgment, and excepted against the impeachment for error, on account of the treason therein laid "not being described with sufficient certainty,—the day on which the treason was committed not having been alleged." His counsel was heard to this point. They contended, "that the forfeitures in cases of treason are very great, and therefore they humbly conceived that the accusation ought to contain all the certainty it is capable of, that the prisoner may not by general allegations be rendered incapable to defend himself in a case which may prove fatal to him: that they would not trouble their Lordships with citing authorities; for they believed there is not one gentleman of the long robe but will agree that an indictment for any capital offence to be erroneous, if the offence be not alleged to be committed on a certain day: that this impeachment set forth only that in or about the months of September, October, or November, 1715, the offence charged in the impeachment had been committed." The counsel argued, "that a proceeding by impeachment is a proceeding at the Common Law, for Lex Parliamentaria is a part of Common Law, and they submitted whether there is not the same certainty required in one method of proceeding at Common Law as in another."
The matter was argued elaborately and learnedly, not only on the general principles of the proceedings below, but on the inconvenience and possible hardships attending this uncertainty. They quoted Sacheverell's case, in whose impeachment "the precise days were laid when the Doctor preached each of these two sermons; and that by a like reason a certain day ought to be laid in the impeachment when this treason was committed; and that the authority of Dr. Sacheverell's case seemed so much stronger than the case in question as the crime of treason is higher than that of a misdemeanor."
Here the Managers for the Commons brought the point a second time to an issue, and that on the highest of capital cases: an issue, the event of which was to determine forever whether their impeachments were to be regulated by the law as understood and observed in the inferior courts. Upon the usage below there was no doubt; the indictment would unquestionably have been quashed. But the Managers for the Commons stood forth upon this occasion with a determined resolution, and no less than four of them seriatim rejected the doctrine contended for by Lord Wintoun's counsel. They were all eminent members of Parliament, and three of them great and eminent lawyers, namely, the then Attorney-General, Sir William Thomson, and Mr. Cowper.
Mr. Walpole said,—"Those learned gentlemen [Lord Wintoun's counsel] 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 seemed to forget they are now in a Court of Parliament, and on an impeachment of the Commons of Great Britain. For, should the Commons admit all that they have offered, it will not follow that the impeachment of the Commons is insufficient; and I must observe to your Lordships, that neither of the learned gentlemen have offered to produce one instance relative to an impeachment. I mean to show that the sufficiency of an impeachment was never called in question for the generality of the charge, or that any instance of that nature was offered at before. The Commons don't conceive, that, if this exception would quash an indictment, it would therefore make the impeachment insufficient. I hope it never will 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."
The Attorney-General supported Mr. Walpole in affirmance of this principle. He said,—"I would follow the steps of the learned gentleman who spoke before me, and I think he has given a good answer to these objections. I would take notice that we are upon an impeachment, 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. In Richard II.'s time, it is said in the records of Parliament, that proceedings in Parliament are not to be governed by the forms of Westminster Hall. We are in the case of an impeachment, and in the Court of Parliament. Your Lordships have already given judgment against six upon this impeachment, and it is warranted by the precedents in Parliament; therefore we insist that the articles are good in substance."
Mr. Cowper.—"They [the counsel] cannot but know that the usages of Parliaments are part of the laws of the land, although they differ in many instances from the Common Law, as practised in the inferior courts, in point of form. My Lords, 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. It is well known that the form of an impeachment has very little resemblance to that of an indictment; and I believe the Commons will endeavor to preserve the difference, by adhering to their own precedents."
Sir William Thomson.—"We must refer to the forms and proceedings in the Court of Parliament, and which must be owned to be part of the law of the land. It has been mentioned already to your Lordships, that the precedents in impeachments are not so nice and precise in form as in the inferior courts; and we presume your Lordships will be governed by the forms of your own court, (especially forms that are not essential to justice,) as the courts below are by theirs: which courts differ one from the other in many respects as to their forms of proceedings, and the practice of each court is esteemed as the law of that court."
The Attorney-General in reply maintained his first doctrine. "There is no uncertainty; in it that can be to the prejudice of the prisoner: we insist, it is according to the forms of Parliament: he has pleaded to it, and your Lordships have found him guilty."
The opinions of the Judges were taken in the House of Lords, on the 19th of March, 1715, upon two questions which had been argued in arrest of judgment, grounded chiefly on the practice of the courts below. To the first the Judges answered,—"It is necessary that there be a certain day laid in such indictments, on which the fact is alleged to be committed; and that alleging in such indictments that the fact was committed at or about a certain day would not be sufficient." To the second they answered, "that, although a day certain, when the fact is supposed to be done, be alleged in such indictments, yet it is not necessary upon the trial to prove the fact to be committed upon that day; but it is sufficient, if proved to be done on any other day before the indictment found."
Then it was "agreed by the House, and ordered, that the Lord High Steward be directed to acquaint the prisoner at the bar in Westminster Hall, 'that the Lords have considered of the matters moved in arrest of judgment, and are of opinion that they are not sufficient to arrest the same, but that the impeachment is sufficiently certain in point of time according to the form of impeachments in Parliament.'"
On this final adjudication, (given after solemn argument, and after taking the opinion of the Judges,) in affirmance of the Law of Parliament against the undisputed usage of the courts below, your Committee has to remark,—1st, The preference of the custom of Parliament to the usage below. By the very latitude of the charge, the Parliamentary accusation gives the prisoner fair notice to prepare himself upon all points: whereas there seems something insnaring in the proceedings upon indictment, which, fixing the specification of a day certain for the treason or felony as absolutely necessary in the charge, gives notice for preparation only on that day, whilst the prosecutor has the whole range of time antecedent to the indictment to allege and give evidence of facts against the prisoner. It has been usual, particularly in later indictments, to add, "at several other times"; but the strictness of naming one day is still necessary, and the want of the larger words would not quash the indictment. 2dly, A comparison of the extreme rigor and exactness required in the more formal part of the proceeding (the indictment) with the extreme laxity used in the substantial part (that is to say, the evidence received to prove the fact) fully demonstrates that the partisans of those forms would put shackles on the High Court of Parliament, with which they are not willing, or find it wholly impracticable, to bind themselves. 3dly, That the latitude of departure from the letter of the indictment (which holds in other matters besides this) is in appearance much more contrary to natural justice than anything which has been objected against the evidence offered by your Managers, under a pretence that it exceeded the limits of pleading. For, in the case of indictments below, it must be admitted that the prisoner may be unprovided with proof of an alibi, and other material means of defence, or may find some matters unlooked-for produced against him, by witnesses utterly unknown to him: whereas nothing was offered to be given in evidence, under any of the articles of this impeachment, except such as the prisoner must have had perfect knowledge of; the whole consisting of matters sent over by himself to the Court of Directors, and authenticated under his own hand. No substantial injustice or hardship of any kind could arise from our evidence under our pleading: whereas in theirs very great and serious inconveniencies might happen.
Your Committee has further to observe, that, in the case of Lord Wintoun, as in the case of Dr. Sacheverell, the Commons had in their Managers persons abundantly practised in the law, as used in the inferior jurisdictions, who could easily have followed the precedents of indictments, if they had not purposely, and for the best reasons, avoided such precedents.
A great writer on the criminal law, Justice Foster, in one of his Discourses, fully recognizes those principles for which your Managers have contended, and which have to this time been uniformly observed in Parliament. In a very elaborate reasoning on the case of a trial in Parliament, (the trial of those who had murdered Edward II.,) he observes thus:—"It is well known, that, in Parliamentary proceedings of this kind, it is, and ever was, sufficient that matters appear with proper light and certainty to a common understanding, without that minute exactness which is required in criminal proceedings in Westminster Hall. In these cases the rule has always been, Loquendum ut vulgus." And in a note he says,—"In the proceeding against Mortimer, in this Parliament, so little regard was had to the forms used in legal proceedings, that he who had been frequently summoned to Parliament as a baron, and had lately been created Earl of March, is styled through the whole record merely Roger de Mortimer."
The departure from the common forms in the first case alluded to by Foster (viz., the trial of Berkeley, Maltravers, &c., for treason, in the murder of Edward II.) might be more plausibly attacked, because they were tried, though in Parliament, by a jury of freeholders: which circumstance might have given occasion to justify a nearer approach to the forms of indictments below. But no such forms were observed, nor in the opinion of this able judge ought they to have been observed.
PUBLICITY OF THE JUDGES' OPINIONS.
It appears to your Committee, that, from the 30th year of King Charles II. until the trial of Warren Hastings, Esquire, in all trials in Parliament, as well upon impeachments of the Commons as on indictments brought up by Certiorari, when any matter of law hath been agitated at the bar, or in the course of trial hath been stated by any lord in the court, it hath been the prevalent custom to state the same in open court. Your Committee has been able to find, since that period, no more than one precedent (and that a precedent rather in form than in substance) of the opinions of the Judges being taken privately, except when the case on both sides has been closed, and the Lords have retired to consider of their verdict or of their judgment thereon. Upon the soundest and best precedents, the Lords have improved on the principles of publicity and equality, and have called upon the parties severally to argue the matter of law, previously to a reference to the Judges, who, on their parts, have afterwards, in open court, delivered their opinions, often by the mouth of one of the Judges, speaking for himself and the rest, and in their presence: and sometimes all the Judges have delivered their opinion seriatim, (even when they have been unanimous in it,) together with their reasons upon which their opinion had been founded. This, from the most early times, has been the course in all judgments in the House of Peers. Formerly even the record contained the reasons of the decision. "The reason wherefore," said Lord Coke, "the records of Parliaments have been so highly extolled is, that therein is set down, in cases of difficulty, not only the judgment and resolution, but the reasons and causes of the same by so great advice."
In the 30th of Charles II., during the trial of Lord Cornwallis, on 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.
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."
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.
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?"
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.
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: 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."
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. 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."
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. 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.
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." 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."
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. 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 below 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.
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. 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."