TO THE KING, TOUCHING MY LORD CHANCELLOR'S AMENDMENT, AND THE PUTTING OFF ST JOHN'S CAUSE. It may please your excellent Majesty, FEB. 7, 1614.1 My Lord Chancellor sent for me to speak with me this morning,2 about eight of the clock. I perceive he hath now that signum sanitatis, as to feel better his former weakness: for it is true, I did a little mistrust that it was but a boutade of desire and good spirit, when he promised himself strength for Friday, though I was won and carried with it. But now I find him well inclined to use, should I say your liberty or rather your interdict, signified by Mr. Secretary from your Majesty. His Lordship shewed me also your own letter, whereof he had told me before, but had not shewed it me. What shall I say? I do much admire your goodness for writing such a letter at such a time. He had sent also to my Lord Treasurer, to desire him to come to him about that time. His Lordship came; and, not to trouble your Majesty with circumstances, both their Lordships con cluded (myself present and concurring) that it could be no prejudice to your Majesty's service to put off the day for St. John1 till the next term: the rather, because there are seven of your5 privy-council (who are at the least numerus and part of the court) who are by infirmity like to be absent; that is, my Lord Chancellor, my Lord Admiral, my Lord of Shrewsbury, my Lord of Exeter, my Lord Zouch, my Lord Stanhope, and Mr. Chancellor of the Duchy; wherefore they agreed to hold a council to-morrow in the afternoon for that purpose.7 It is true, I was always of opinion that it was no time lost; and I do think so the rather, because I could be content that the matter of Peacham were first settled and put to a point, For there be perchance that would make the example upon St. John to stand for all. For Peacham, I expect some account from my fellows this day; if it should fall out otherwise than I Add. MSS. 5503. Resuscitatio, p. 54. 2 The 7th of February was a Tuesday. 3 Friday was the day, when the trial of St. John should have come on. 4 J. S.: R. And so throughout. the: A. 7 The Council was held accordingly, and wrote a letter to the the postponement. See S. P. Dom. James I., 8 Feb. 1614. VOL. V. 6 which: R. King suggesting 8 that I: R. I hope,1 it may not be left so. Your Majesty, in your last2 letter, very wisely put in a disjunctive, that the Judges should deliver an opinion privately, either to my Lord Chancellor or to ourselves distributed his sickness made the latter way to be taken : but the other may be reserved with some accommodating, when we see the success of the former. I am appointed this day to attend my Lord Treasurer for a proposition of raising profit and revenue by infranchising copyholders. I am right glad to see the patrimonial part of your revenue well looked into, as well as the fiscal: and I hope it will be so in other parts as well as this. God preserve your Majesty. Your Majesty's most humble and devoted subject and servant. 6. We have seen that the preparations for the case against Owen were complete more than a week ago, and Bacon was only waiting for the King's direction to acquaint the Judges with it; a form without which (as I should infer from the terms) the proceeding would hardly have been considered regular. In sending the required directions the King left it to Bacon's choice whether their opinions should be taken severally and apart (as "prescribed" in the case of Peacham) or in conference with all together. Bacon, who does not appear to have been ever personally in favour of the "auricular" plan, being now left to his discretion, chose the other. The four Judges of the King's Bench met the members of the King's learned counsel in Coke's chambers, heard the charge and the proofs, and desired that the examinations and papers should be left with them for a while to be considered: Coke making no objection at all, but offering an opinion of his own upon the case of Owen at once, and when the conference was over, promising that his private opinion upon the case of Peacham should be ready very soon. It is impossible, I think, to read the next letter, in which all this is related, and believe that an extrajudicial consultation of this kind with the assembled Judges was considered to be at all out of order. But since Coke himself has the credit of having first laid down the doctrine that "The Judges ought not to deliver their opinions beforehand of any criminal case which may come before them judicially,” 4 upon some accommodation: A. 1 otherwise then I hope, it, etc.: A. otherwise, then, I hope, it, etc. : R. 1614–15.] COKE'S DOCTRINE AS TO EXTRAJUDICIAL OPINIONS. 115 I may be called on to reconcile that fact with his acquiescence in the practice at this time. The thing is not difficult, if it be remembered that his opinions, though not to be shaken by argument, were apt to vary considerably with his point of view. As soon as he was made a Judge, he became aware of limitations to the Royal Prerogative which he would never have found out while he was Attorney-General. As soon as he ceased to be a Judge and became a popular leader in the House of Commons, he began to see that the impartiality of the Bench needed for its protection cautions and restraints of which he never felt the want while he sat on it himself. The doctrine in question was a growth of this later stage in his career. He thought of it while he was writing his Institutes, and I believe we may see the very passage where it came into his head. It is a passage worth examining carefully; for it contains in itself a history of the changes through which his mind passed on the way to that important conclusion. He was explaining the process of trial for petty treason; and coming to the rule which prohibits the prisoner from the aid of counsel to conduct his defence and answer the prosecutor, it occurred to him that the reader might wish to know by what reason such a rule could be justified: for the reason was not self-evident, and yet a reason there must be, or how could it be law? And the first reason he hits upon, after noticing one or two other explanations only to put them aside, is this. "The true reason (he says) "is that the testimonies and proofs of the offence ought to be so clear and manifest, as there can be no defence to it :" an idea very characteristic of the man, which I can well fancy him to have entertained and acted upon, so long as he was himself either prosecutor or judge, with perfect satisfaction; the notion that anything to the purpose could be said against the side which he was on, being one that his mind could never take. But now that he was considering the question in general,-not as in a proceeding which he had any part in himself, but regarding it as a jurist, and imagining the case of a prisoner charged by an Attorney-General who might be wrong before a Judge who might be precipitate,—when he saw the rule and the reason of the rule lying side by side on his paper, he seems to have felt that it was not quite satisfactory. And well he might. The prisoner has heard for the first time the charge and the evidence against him. It has been got up by practised lawyers, with every advantage of skill, time, scope, and money. He, an unlearned, possibly an uneducated man, who has all the time been shut up in ignorance and without advice, must make his defence for himself ex tempore. He may not even have the aid of a practised lawyer to answer the practised lawyer who has set forth the evidence against him: Is not that unfair? No, says Coke, because the proofs against him ought to be so clear that he can have no defence to make! In other words, no man ought to be prosecuted except upon proof so absolute, that the prosecutor, without hearing what he has to say in answer, may be sure that nothing he can say will shake it. It was a doctrine which could only be defended from the prosecutor's point of view, from which Coke was no longer looking. Casting about therefore for a better justification of the rule of law, he falls upon the notion that "the Court ought to be instead of counsel to the prisoner,-to see that nothing be urged against him contrary to law and right;" or, as he expresses it rather more fully in another place, "the Court ought to see that the indictment, trial, and other proceedings be good and sufficient in law, otherwise they should by their erroneous judgment attaint the prisoner unjustly." With his own former practice in his mind, he could not go so far as to say that the Court ought to act as the prisoner's advocate, without which the justification of the rule is obviously imperfect: for in the case of an innocent man, the question of guilty or not guilty turns not upon the legality of the proceedings, but upon the evidence of the fact; and the hardship for the prisoner is, that he must contend under every disadvantage, and without any help, to remove the impression produced upon his triers by an array of evidence collected, arranged, and set forth against him with every advantage. But having come to the conclusion that the Judge ought to see that the prisoner has fair play as far as the law is concerned (which was a great step in advance), it further occurred to him as a corollary that the Judge ought to be in an impartial frame of mind; therefore not to come with a judgment forestalled. "And to the end that the trial may be more indifferent, seeing that the safety of the prisoner consisteth in the indifferency of the Court, the Judges ought not to deliver their opinions beforehand of any criminal case which may come before them judicially." And thus he arrives at last, much to his honour, at that just conclusion, which to suppose that he had arrived at in 1615 would not be to his honour at all: as we shall hereafter see. That it was a new doctrine and not according to the customs of the realm is the very merit of it; and the very next sentence, though intended to prove that it was not new, proves to me that it was. In law, reason is nothing without precedent. If the doctrine just laid down was true, there must, according to Coke's habits of thinking, have been precedents to establish it; and for a precedent he looks about. Now, had the attempt to forestall a Judge's opinion" upon a case put and proofs urged on one side in the absence of the party accused" been an innovation in the year 1615, a thing " of new and dangerous tendency, and not according to the customs of the realm," surely Coke, who had been Attorney-General from 1594 to 1606, Chief Justice of the King's Bench from 1613 to 1616, and an active Privy Councillor with only a year's intermission from 1613 to 1620,-whose whole life had been spent in the search and study of records, authorities, and year books, -could not have been much at a loss for a precedent. If it had not been the custom to consult Judges out of Court, he must have known it if Judges when so consulted had ever upon that or any other ground refused to answer, he must have known that; if any judicial decision had been pronounced, or any eminent author had given an opinion to that effect, Coke was the man to quote it. Yet he is obliged to go back as far as the year 1486 before he can find a case which even seems fit for his purpose. "We read (he proceeds) that in the case of Humphrey Stafford, that arch-traitor, Hussey, Chief Justice, besought King Henry VII. that he would not desire to know their opinions beforehand for Humphrey Stafford, for they thought it would come before them in the King's Bench judicially, and then they would do that which of right they ought; and the King accepted of it." Unless he could have added that since that time the Judges had never been asked for their opinions beforehand, he had better have rested upon his reason and gone without his precedent. For otherwise we may more probably infer that for the last 150 years no judge had refused to give an opinion beforehand, than that none had been asked. Occasions must have been occurring continually and if in such a case any practice is to be held constitutional of which a solitary precedent can be produced within the century and half last past, what practice can be proved unconstitutional? But in this case that solitary precedent is itself wanting. For though the case here cited by Coke sounds like an instance in point (as far as it goes), it is not really so. In the case of Humphrey Stafford, it was not a private opinion that was asked, but a public one in Court, the prisoner being absent. The occasion was very peculiar. Humphrey Stafford had been formerly attainted by Parliament, but had taken sanctuary at Colchester, where he could not be touched. Afterwards he left that sanctuary to join Lord Lovel's rebellion, and upon its dispersion again took sanctuary at Colnham, a village near Abingdon. Upon this a question arose as to the privileges of this new sanctuary, and whether it was a sufficient protection for traitors; a point of law which the King wished to have settled before he meddled with it. For this purpose,—that is, to decide upon the privileges of the sanctuary, the Judges were assembled in the Court of Exchequer. But as it was precisely the : |