In Sacheverell's case (just cited for another purpose) the Earl of Nottingham demanded whether he might not propose a question of law to the Judges in open court. It was agreed to; and the Judges gave their answer in open court, though this was after verdict given: and in consequence of the advantage afforded to the prisoner in hearing the opinion of the Judges, he was thereupon enabled to move in arrest of judgment.
The next precedent which your Committee finds of a question put by the Lords, sitting as a court of judicature, to the Judges, pending the trial, was in the 20th of George II., when Lord Balmerino, who was tried on an indictment for high treason, having raised a doubt whether the evidence proved him to be at the place assigned for the overt act of treason on the day laid in the indictment, the point was argued at the bar by the counsel for the Crown in the prisoner's presence, and for his satisfaction. The prisoner, on hearing the argument, waived his objection; but the then Lord President moving their Lordships to adjourn to the Chamber of Parliament, the Lords adjourned accordingly, and after some time returning into Westminster Hall, the Lord High Steward (Lord Hardwicke) said,—
"Your Lordships were pleased, in the Chamber of Parliament, to come to a resolution that the opinion of the learned and reverend Judges should be taken on the following question, namely, Whether it is necessary that an overt act of high treason should be proved to have been committed on the particular day laid in the indictment? Is it your Lordships' pleasure that the Judges do now give their opinion on that question?"
Lords.—"Ay, ay."
Lord High Steward.—"My Lord Chief-Justice!"
Lord Chief-Justice (Lord Chief-Justice Lee).—"The question proposed by your Lordships is, Whether it be necessary that an overt act of high treason should be proved to be committed on the particular day laid in the indictment? We are all of opinion that it is not necessary to prove the overt act to be committed on the particular day laid in the indictment; but as evidence may be given of an overt act before the day, so it may be after the day specified in the indictment; for the day laid is circumstance and form only, and not material in point of proof: this is the known constant course of proceeding in trials."
Here the case was made for the Judges, for the satisfaction of one of the Peers, after the prisoner had waived his objection. Yet it was thought proper, as a matter of course and of right, that the Judges should state the question put to them in the open court, and in presence of the prisoner,—and that in the same open manner, and in the same presence, their answer should be delivered.[22]
Your Committee concludes their precedents begun under Lord Nottingham, and ended under Lord Hardwicke. They are of opinion that a body of precedents so uniform, so accordant with principle, made in such times, and under the authority of a succession of such great men, ought not to have been departed from. The single precedent to the contrary, to which your Committee has alluded above, was on the trial of the Duchess of Kingston, in the reign of his present Majesty. But in that instance the reasons of the Judges were, by order of the House, delivered in writing, and entered at length on the Journals:[23] so that the legal principle of the decision is equally to be found: which is not the case in any one instance of the present impeachment.
The Earl of Nottingham, in Lord Cornwallis's case, conceived, though it was proper and agreeable to justice, that this mode of putting questions to the Judges and receiving their answer in public was not supported by former precedents; but he thought a book of authority had declared in favor of this course. Your Committee is very sensible, that, antecedent to the great period to which they refer, there are instances of questions having been put to the Judges privately. But we find the principle of publicity (whatever variations from it there might be in practice) to have been so clearly established at a more early period, that all the Judges of England resolved in Lord Morley's trial, in the year 1666, (about twelve years before the observation of Lord Nottingham,) on a supposition that the trial should be actually concluded, and the Lords retired to the Chamber of Parliament to consult on their verdict, that even in that case, (much stronger than the observation of your Committee requires for its support,) if their opinions should then be demanded by the Peers, for the information of their private conscience, yet they determined that they should be given in public. This resolution is in itself so solemn, and is so bottomed on constitutional principle and legal policy, that your Committee have thought fit to insert it verbatim in their Report, as they relied upon it at the bar of the Court, when they contended for the same publicity.
"It was resolved, that, in case the Peers who are triers, after the evidence given, and the prisoner withdrawn, and they gone to consult of the verdict, should desire to speak with any of the Judges, to have their opinion upon any point of law, that, if the Lord Steward spoke to us to go, we should go to them; but when the Lords asked us any question, we should not deliver any private opinion, but let them know we were not to deliver any private opinion without conference with the rest of the Judges, and that to be done openly in court; and this (notwithstanding the precedent in the case of the Earl of Castlehaven) was thought prudent in regard of ourselves, as well as for the avoiding suspicion which might grow by private opinions: ALL resolutions of Judges being ALWAYS done in public."[24]