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.”

Lord High Steward (Lord Somers).—­“It must certainly be in the presence of the prisoner, if you ask the Judges’ opinions."[20]

In the same year, Lord Mohun was brought to trial upon an indictment for murder.  In this single trial a greater number of questions was put to the Judges in matter of law than probably was ever referred to the Judges in all the collective body of trials, before or since that period.  That trial, therefore, furnishes the largest body of authentic precedents in this point to be found in the records of Parliament.  The number of questions put to the Judges in this trial was twenty-three.  They all originated from the Peers themselves; yet the Court called upon the party’s counsel, as often as questions were proposed to be referred to the Judges, as well as on the counsel for the Crown, to argue every one of them before they went to those learned persons.  Many of the questions accordingly were argued at the bar at great length.  The opinions were given and argued in open court.  Peers frequently insisted that the Judges should give their opinions seriatim, which they did always publicly in the court, with great gravity and dignity, and greatly to the illustration of the law, as they held and acted upon it in their own courts.[21]

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?”