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

objections every possible presumption ought to be made which ingenuity can suggest. How disgraceful would it be to the administration of justice to allow chicane to obstruct right!"76 This observation of Lord Mansfield applies equally to every means by which, indirectly as well as directly, the cause may fail upon any other principles than those of its merits. He thinks that all the resources of ingenuity ought to be employed to baffle chicane, not to support it. The case in which Lord Mansfield has delivered this sentiment is merely a civil one. In civil causes of meum et tuum, it imports little to the commonwealth, whether Titus or Mævius profits of a legacy, or whether John à Nokes or John à Stiles is seized of the manor of Dale. For which reason, in many cases, the private interests of men are left by courts to suffer by their own neglects and their own want of vigilance, as their fortunes are permitted to suffer from the same causes in all the concerns of common life. But in crimes, where the prosecution is on the part of the public, (as all criminal prosecutions are, except appeals,) the public prosecutor ought not to be considered as a plaintiff in a cause of meum et tuum; nor the prisoner, in such a cause, as a common defendant. In such a cause the state itself is highly concerned in the event: on the other hand, the prisoner may lose life, which all the wealth and power of all the states in the world cannot restore to him. Undoubtedly the state ought not to be weighed against justice; but it would be dreadful indeed, if causes of such importance should be sacrificed to petty regulations, of mere secondary convenience, not at all adapted to such concerns, nor even made with a view to their existence. Your Committee readily adopts the opinion of the learned Ryder, that it would be better, if there were no such rules, than that there should be no exceptions to them. Lord Hardwicke declared very properly, in the case of the Earl of Chesterfield against Sir Abraham Janssen, "that political arguments, in the fullest sense of the word, as they concerned the government of a nation, must be, and always have been, of great weight in the consideration of this court. Though there be no dolus malus in contracts, with regard to other persons, yet, if the rest of mankind are concerned as well as the parties, it may be properly said, it regards the public utility."77 Lord Hardwicke laid this down in a cause of meum et tuum, between party and party, where the public was concerned only remotely and in the example,—not, as in this prosecution, when the political arguments are infinitely stronger, the crime relating, and in the most eminent degree relating, to the public.

      1

      4 Inst. p. 4.

      2

      Rol. Parl. Vol. III. p. 244, § 7.

      3

      Rol. Parl. Vol. III. p. 244, § 7.

      4

      4 Inst. p. 15.

      5

      16 Ch. I. 1640.

      6

      Lords' Journals, Vol. IV.

1

4 Inst. p. 4.

2

Rol. Parl. Vol. III. p. 244, § 7.

3

Rol. Parl. Vol. III. p. 244, § 7.

4

4 Inst. p. 15.

5

16 Ch. I. 1640.

6

Lords' Journals, Vol. IV. p. 133.

7

Id. Vol. XIX. p. 98.

8

Lords' Journals, Vol. XIX. p. 116.

9

Lords' Journals, Vol. XIX. p. 121.

10

Lords' Journals, Vol. XIX. p. 108.

11

State Trials, Vol. V.

12

Statutes at Large, from 12 Ed. I. to 16 and 17 Ch. II.

13

7 W. III. ch. 3, sect. 12.

14

State Trials, Vol. VI. p. 17.

15

Lords' Journals, Vol. XX. p. 316.

16

Discourse IV. p. 389.

17

Parl. Rolls, Vol. II. p. 57. 4 Ed. III. A.D. 1330.

18

Coke, 4 Inst. p. 3.

19

State Trials, Vol. II. p. 725. A.D. 1678.

20

State Trials, Vol. III. p. 212.

21

State Trials, Vol. V. p. 169.

22

State Trials, Vol. IV. from p. 538 to 552.

23

State Trials, Vol. IX. p. 606*. Die Lunæ, 28º Julii 1746

24

Id., Vol. XI. p. 262.

25

Kelyng's Reports, p. 54.

26

Rushworth, Vol. II. pp. 93, 94, 95, 100.

27

Foster's Crown Law, p. 145.

28

See the Appendix, No. 1.

29

Rushworth, Vol. II. p. 475, et passim.

30

Coke, 4 Inst. p. 5.

31

This is confined to the judicial opinions in Hampden's case. It does not take in all the extra-judicial opinions.

32

"Dissentient.

"1st. Because, by consulting the Judges out of court, in the absence of the parties, and with shut doors, we have deviated from the most approved and almost uninterrupted practice of above a century and a half, and established a precedent not only destructive of the justice due to the parties at our bar, but materially injurious to the rights of the community at large, who in cases of impeachments are more peculiarly interested that all proceedings of this High Court of Parliament should be open and exposed, like all other courts of justice, to public observation and comment, in order that no covert and private practices should defeat the great ends of public justice.

"2dly. Because, from private opinions of the Judges, upon private statements, which the parties have neither heard nor seen, grounds of a decision will be obtained which must inevitably affect the cause at issue at our bar; this mode of proceeding seems to be a violation of the first principle of justice, inasmuch as we thereby force and confine the opinions of the Judges to our private statement; and through the medium of our subsequent decision we transfer the effect of those opinions to the parties, who have been deprived of the right and advantage of being heard by such, private, though unintended, transmutation of the point at issue.

"3dly. Because the prisoners who may hereafter have the misfortune to stand at our bar will be deprived of that consolation which the Lord High Steward Nottingham conveyed to the prisoner,

76

Morris v. Pugh, Burrow, Vol. III. p. 1243. See also Vol. II. Alder v. Chip; Vol. IV. Dickson v. Fisher; Grey v. Smythyes.—N.B. All from the same judge, and proceeding on the same principles.

77

Chesterfield v. Janssen, Atkyns's Reports, Vol. II.