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Article 3, Section 2, Clause 1



Document 2

Lord Sackville's Case

28 Eng. Rep. 940 Ch. 1760

Certificate of the Judges respecting the Court-Martial proposed to be held upon

Lord George Sackville.

To the King's most excellent Majesty.

May it please your Majesty,

In obedience to your Majesty's commands, signified to us by a letter from the Right Honourable the Lord Keeper, referring to us the following question, "Whether an officer of the army having been dismissed from his Majesty's service, and having no military employment, is triable by a Court-Martial for a military offence lately committed by him while in actual service and pay as an officer?"

We have taken the same into consideration, and see no ground to doubt of the legality of the jurisdiction of a Court-Martial in the case put by the above question.

But as the matter may several ways be brought, in due course of law, judicially before some of us by any party affected by that method of trial, if he thinks the court has no jurisdiction; or if the court should refuse to proceed, in case the party thinks they have jurisdiction; we shall be ready, without difficulty, to change our opinion, if we see cause, upon objections that may be then laid before us, though none have occurred to us at present which we think sufficient.

All which is humbly submitted to your Majesty's royal wisdom.

Mansfield; J. Willes; T. Parker; T. Denison; M. Foster; S. S. Smythe; Rich. Adams; H. Bathurst; J. E. Wilmot; W. Noel; Rich. Lloyd.

3d of March 1760.--Mr. Justice Clive was absent at York on the circuit.

Note: A similar consultation took place a few years prior to it in the case of Admiral Byng, and another in the reign of George 1st, as to the right of the sovereign to the education and marriage of the children of the Prince of Wales. The proceedings upon the latter of these are in Lord Fortescue's Reports, 401: and more fully in 15 Howell's St. Tr. 1195. The former of these works also contains several early precedents, in which this mode of proceeding has been resorted to, and authorities by which it is justified, p. 386 et seq.

Mr. Hargrave, however, in a note to his edition of Co. Lit. 110 a, n. 129, has, on the great authority of Lord Coke, expressed serious doubts as to the propriety of these extrajudicial consultations: and, indeed, many of the precedents given in the books are extremely objectionable. As in the instances mentioned by Kelynge, 9 & 10, preparatory to the trial of the regicides, the judges met at the request of the Attorney-General, to advise the king not only as to framing the indictments, but in relation to overt acts and evidence, Fortesc. 390. So in the case of Francis Francia, in 1717, a conference was held among the judges, three of whom who were to try the prisoner, at which the Attorney and Solicitor-General, who were to conduct the prosecution next day, lent their assistance, Foster, 241; Fortescue, 390.

Lord Bacon, in a letter to James 1st, gives a curious account of his management in endeavouring, according to the king's direction, to obtain the opinion of the Judges of the King's Bench separately and privately, previous to the trial of Mr. Peachman, a minister, indicted for certain treasonable passages in an unpublished sermon, and of Lord Coke's honourable reluctance to give the desired answer. Bacon's Works, vol. 4, 595; Kippis, Bio. Brit. vol. 3, 682.

It appears also not only from the guarded manner in which the present answer is expressed, but, from Lord Mansfield's letter to the Lord Keeper, in which it was inclosed, and which is here subjoined from the original amongst Lord Northington's papers, that the judges felt considerable disinclination to have their opinions called for in this mode. A similar degree of caution was exhibited in a great case which occurred in the reign of Queen Anne, in the year 1711. Upon the revival of the Arian heresy by Whiston, doubts were entertained whether the convocation could in the first instance proceed against a person for heresy; and the queen, in consequence of an address from the Upper House, took the opinion of the judges. Four of the judges thought that the convocation had no jurisdiction. The remaining eight (who, together with the Attorney and Solicitor-General, gave their opinions in favour of the jurisdiction, &c.) expressly reserved to themselves a power to change their mind, in case, upon an argument that might be made for a prohibition, they might see cause for it. Burnet's Own Times, vol. III. 325, oct. ed.

Letter of Lord Mansfield to the Lord Keeper, enclosing the above Certificate.

3d March 1760.

My Lord,

I laid his Majesty's commands before the judges. They are exceedingly thankful to his Majesty for his tenderness in not sending any question to them till the necessity of such reference became manifest and urgent. They have considered the point, and they all agree. In general, they are very averse to giving extra-judicial opinions, especially where they affect a particular case; but the circumstances of the trial now depending ease us of difficulties upon this occasion, and we have laid in our claim not to be bound by this answer. Mr. J. Clive is now at York upon the circuit, so that there was no opportunity to have his concurrence.

I have the honour to be, &c.     Mansfield.


The Founders' Constitution
Volume 4, Article 3, Section 2, Clause 1, Document 2
http://press-pubs.uchicago.edu/founders/documents/a3_2_1s2.html
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