Volume XI Part 2 (1/2)
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 const.i.tuted 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 a.s.sembled, that the office of High Steward on trials of peers upon impeachments is not necessary to the House of Peers, but that the Lords may proceed in such trials, if an High Steward is not appointed according to their humble desire.”[26]
To put the matter out of all doubt, and to remove all jealousy on the part of the Commons, the commission of the Lord High Steward was then altered.
These rights, contended for by the Commons in their impeachments, and admitted by the Peers, were a.s.serted in the proceedings preparatory to the trial of Lord Stafford, in which that long chain of uniform precedents with regard to the publicity of the Judges' opinions in trials begins.
For these last citations, and some of the remarks, your Committee are indebted to the learned and upright Justice Foster. They have compared them with the Journals, and find them correct. The same excellent author proceeds to demonstrate that whatever he says of trials by impeachment is equally applicable to trials before the High Steward on indictment; and consequently, that there is no ground for a distinction, with regard to the public declaration of the Judges' opinions, founded on the inapplicability of either of these cases to the other. The argument on this whole matter is so satisfactory that your Committee has annexed it at large to their Report.[27] As there is no difference in fact between these trials, (especially since the act which provides that all the peers shall be summoned to the trial of a peer,) so there is no difference in the reason and principle of the publicity, let the matter of the Steward's jurisdiction, be as it may.
PUBLICITY GENERAL.
Your Committee do not find any positive law which binds the judges of the courts in Westminster Hall publicly to give a reasoned opinion from the bench, in support of their judgment upon matters that are stated before them. But the course hath prevailed from the oldest times. It hath been so general and so uniform, that it must be considered as the law of the land. It has prevailed, so far as we can discover, not only in all the courts which now exist, whether of law or equity, but in those which have been suppressed or disused, such as the Court of Wards and the Star Chamber. An author quoted by Rushworth, speaking of the const.i.tution of that chamber, says,--”And so it was resolved _by the Judges, on reference made to them; and their opinion, after deliberate hearing, and view of former precedents, was published in open court_.”[28] It appears elsewhere in the same compiler that all their proceedings were public, even in deliberating previous to judgment.
The Judges in their reasonings have always been used to observe on the arguments employed by the counsel on either side, and on the authorities cited by them,--a.s.signing 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 a.s.sembled, 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 const.i.tution 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 c.o.ke, ”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 mult.i.tude of them, are not set down in the record, but then _the great casuists and reporters of cases_ (certain grave and sad men) published the cases, _and the reasons and causes of the judgments or resolutions_, which, from the beginning of the reign of Ed. III. and since, we have in print. But these also, though of great credit and excellent use in their kind, _yet far underneath the authority of the Parliament Rolls, reporting the acts, judgments, and resolutions of that highest court_.”[29]
Reports, though of a kind less authentic than the Year Books, to which c.o.ke 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 inst.i.tutes, digests, or commentaries, do not rest on the authority of the supreme power, like the books called the Inst.i.tute, 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 c.o.ke's Inst.i.tutes, 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 Const.i.tution of this kingdom, that, in the judicial proceedings in the case of s.h.i.+p-money, the Judges did not then venture to depart from the ancient course. They gave and they argued their judgment in open court.[30] Their reasons were publicly given, and the reasons a.s.signed 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 a.s.signed 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, pract.i.tioner, 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 const.i.tutional publicity for which we contend was refused to the request and entreaty of your Committee, but when a n.o.ble 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[31]
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 a.s.sert 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 apt.i.tude juridically to prove or to ill.u.s.trate 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 a.s.sumption of power. It is contrary to what has been declared by Lord c.o.ke himself, in a pa.s.sage 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 Lords.h.i.+p 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.”