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

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, 16 16 Discourse IV. p. 389. 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. 17 17 Parl. Rolls, Vol. II. p. 57. 4 Ed. III. A.D. 1330. ) 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.

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." 18 18 Coke, 4 Inst. p. 3.

In the 30th of Charles II., during the trial of Lord Cornwallis, 19 19 State Trials, Vol. II. p. 725. A.D. 1678. 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. 20 20 State Trials, Vol. III. p. 212.

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 ."