In 1848, Parliament created the Court for Crown Cases Reserved, in which all of the common law judges heard and decided questions reserved by trial judges in criminal cases.Footnote ¹ As Sir John Baker explains, this was “a court of record, which would now sit in public and give reasons for its decisions,” even though “the reservation of cases was still at the discretion of the trial judge and the court did not have the powers of the court en banc in civil cases.”Footnote ²

The Court for Crown Cases Reserved formalized an off-the-record procedure that had been followed for centuries. When a question of law or procedure arose during the conduct of a jury trial, the question could be reserved for collective deliberation by the twelve common law judges. As will be explained, the reasons for reserving a question were varied; the deliberations by the judges were both informal and private, although at times, arguments of counsel were permitted or invited; and until the late eighteenth century, the results of the deliberations were not regularly made public.

From at least the sixteenth century, it was not uncommon for a doubtful legal question to be reserved in a case being tried on the assizes, and this was true in both civil and criminal cases.Footnote ³ Initially, the method was to take a special verdict,Footnote ⁴ with the final outcome of the case to be determined after deliberation by the judges. The special verdict procedure, however, was expensive and time-consuming, and during the eighteenth century the much simpler expedient emerged of taking a general verdict but reserving the legal question for the full common law court in a civil case, or for the twelve judges in a criminal case.Footnote ⁵ If the judges in a criminal case thought the conviction wrong, they would recommend to the Crown that the prisoner be pardoned.Footnote ⁶

Prior to the late eighteenth century, there was no regular printed record of the twelve-judge procedure. Occasional twelve-judge cases turned up in the nominative reports, and trial records in a few notorious cases were printed in pamphlet form. The practice of reserving cases for twelve-judge deliberation began to be noted in the Old Bailey Sessions Papers (“OBSP”) in the eighteenth century, but only a handful of such cases appeared before the 1770s. In 1789, the first edition of Leach's Reports was published, titled Cases in Crown Law, Determined by the Twelve Judges; by the Court of King's Bench; and by Commissioners of Oyer and Terminer, and General Gaol Delivery.Footnote ⁷ After Leach, the reporting of Crown cases reserved was continued by Russell and Ryan, Moody, and Lewin.Footnote ⁸Leach's Reports were significantly augmented by Edward East in his Pleas of the Crown, published in 1803. Although the book was in treatise form, East incorporated accounts of numerous twelve-judge cases that were not in print elsewhere. He itemized in the prefatory pages of his book eleven manuscript sources that he relied upon.Footnote ⁹

Neither East's Pleas of the Crown nor any of the numerous practice books that were published in the late eighteenth and early nineteenth centuries provides a significant explanation of the procedure followed in the twelve-judge deliberations. The first and only extensive treatment of the procedure in print is D. R. Bentley's Introduction in his Select Cases from the Twelve Judges' Notebooks, published in 1997.Footnote ¹⁰ Bentley explains that for the period from 1757 to 1828, notebooks (eventually six in number) were kept of reserved Crown cases. The custodian of the notebooks was the Chief Justice of the Court of King's Bench. Bentley quotes Chief Justice Tenterden's explanation for discontinuing the notebooks in 1828 – that it was “unnecessary to go on transcribing them after the regular practice was established of placing them in the reporter's hands.”Footnote ¹¹ Eighty-four of the cases in the judges' notebooks were unreported, and these are the cases that were transcribed and published by Bentley following his Introduction. The notebooks themselves were not a public record, but they were evidently shared to some extent with the practicing bar.Footnote ¹²

Bentley's Introduction and the cases he transcribed supply important information about a venerable but elusive procedure that was performed largely outside public view. Yet the judges' notebooks are themselves an imperfect record of the legal history of the procedure. Their principal shortcoming is the fact that in most of the cases, the judges' reasoning is not given. Also, the notebooks contain only Crown cases, even though the twelve-judge procedure was invoked in numerous civil cases and in other contexts, as will be later elaborated.

This article explores how the informal twelve-judge procedure contributed to the business of lawmaking. In the discussion to follow, I address the following:

• • In what contexts, by whom, and for what purposes was the twelve-judge procedure invoked?

• • To what extent were the twelve judges making law by rendering opinions that would be regarded as binding precedents?

• • What was the effect of a resolution that was not unanimous?

• • How and to what extent did the decisions by the judges and their reasoning become known?

• • Apart from the fact that it was discretionary, how did the twelve-judge procedure differ from what would have been achieved by a formal appeal?

In What Contexts, by Whom, and for What Purposes Was the Twelve Judge-Procedure Invoked?

Cases were referred to the twelve judges for a variety of reasons.Footnote ¹³ The twelve judges resembled a select club of gentlemen, and ordinarily they respected and consulted each other in a collegial manner.Footnote ¹⁴ At the Old Bailey, the common law judges sat in rotation, but never predictably in company with the same colleagues. Ordinarily two judges attended; frequently one of the judges was from the City of London, most often the Recorder (the chief legal officer of the City), also the Common Serjeant, and at times even the Lord Mayor.Footnote ¹⁵ When a legal question arose about which the trial judges were doubtful, the most sensible course was to reserve the question for discussion with brother judges at the next opportunity, perhaps at the gathering of all of the judges on the first day of the following term.Footnote ¹⁶ The result of the deliberations could then be reported back to the Old Bailey by one of the judges sitting in rotation at the next Old Bailey sessions.Footnote ¹⁷

On the civil side, assize judges could follow the well-established method of taking the verdict subject to a case stated and then report the reserved question and the circumstances of the case to the full court during the sittings the next term.Footnote ¹⁸ If the question that arose at trial was not specific to the court in which the case had been filed but was one of substance or of broad procedural scope, it might make more sense to put it to all twelve judges rather than only the four judges of the originating court. This was occasionally done.

Most of the cases put to the twelve judges, however, were criminal, from the trial dockets at the Old Bailey or from the gaol delivery and oyer and terminer commissions on assize. This is unsurprising, because for these criminal cases there was no criminal court of record to which the cases could be referred.Footnote ¹⁹ There was also a sentiment among the judges that in felony cases, fair opportunity should be given to criminal defendants to prove their innocence, and this was occasionally the stated reason for sending questions raised by the prisoner's counsel to the twelve judges.Footnote ²⁰ Further, as noted previously, referring a case to the twelve judges would save time and expense, as compared to the special verdict procedure.Footnote ²¹

Another category of cases that came to the twelve judges was when issues arose that were important, novel, or difficult.Footnote ²² A famous early example was Calvin's Case Footnote ²³ establishing that Scotsmen born after James VI became King in 1603 were not to be classified as aliens. Well-known examples during Mansfield's time were the forgery prosecution of Margaret Rudd,Footnote ²⁴ and the common law copyright case of Tonson v. Collins.Footnote ²⁵ In Tonson, Lord Mansfield refused to “make a case” to take the question back to the Court of King's Bench; instead, he directed a special verdict, because, “I was determined it should be argued and judged in the most solemn manner,” and, anticipating that the parties might acquiesce under the decision of the Court of King's Bench, Mansfield was “desirous to have it argued before all the judges.”Footnote ²⁶ Accordingly, the case stood over to be argued before the judges, but as Justice Willes explained in the later, equally-famous case of Millar v. Taylor, the judges suspected that the action in Tonson had been collusive to set up a nominal defendant in order to get a judgment that might serve as a precedent, and for this reason, the judges refused to proceed in the cause.Footnote ²⁷

Although most cases sent to the twelve judges were at the initiative of the trial judge, some cases went forward at the request of counsel for the defendant.Footnote ²⁸ It was even possible for “gentleman of the bar” in attendance at the trial to suggest to the judge that a case go forward to the twelve judges.Footnote ²⁹ On one remarkable occasion, the suggestion to refer the case to the twelve judges was made by counsel for the prosecution after having won a guilty verdict. In R. v. Dixon [Dickson],Footnote ³⁰ the defendants were found guilty on three counts of stealing calico from a building on the prosecutors' bleaching grounds. The felony statute specified that the theft be from a building that was used either for printing or drying the calico.Footnote ³¹ After the trial, counsel for the prosecution realized that no proof had been put in about what the building was used for and asked counsel for the defendants whether he wished “that this might be considered.” Unsurprisingly, counsel for the defendants did wish this to be considered, and the trial judge (Baron Graham) referred the case to the twelve judges, even though “the objection, if taken at the trial, would probably have led to evidence that the building was frequently used for the purpose of giving the finishing print to calicoes of the description of those stolen.”Footnote ³² The judges concluded that the felony conviction was wrong, but as a fourth count was for simple larceny only, they recommended that the prisoners be pardoned conditional on transportation for seven years.

There were, finally, times when questions were put to the twelve judges from outside the regular procedures of the common law courts and the regular criminal dockets at the Old Bailey. Occasionally questions calling for twelve-judge deliberation came up during the Admiralty sessions at the Old Bailey.Footnote ³³ Also, court martial cases were sometimes sent to the twelve judges by the Privy Council. An unreported example is R. v. Dixon (1797).Footnote ³⁴ Eleven seamen on board the ship Saturn had been convicted of mutiny and sentenced to death. The members of the Court Martial ordered that the bodies of the two of the prisoners, James Dixon and John Evans, were to be afterwards hung in chains, but doubts arose about whether the Court Martial had authority to issue such an order. On the advice of the Privy Council, the King sent an order to the twelve judges to consider the question. In Michaelmas Term 1797, the judges issued their opinion, finding no authority by which Courts Martial were “authorized to make it a part of the sentence that the bodies of offenders ordered to suffer death shall after execution be hung in chains.”Footnote ³⁵

On rare occasions the twelve judges gathered at the request of the Crown to take up a question of statutory construction or policy. An early example is found in Dyer's Reports – a memorandum that on the last day of Michaelmas Term 1565, “all the Judges were assembled by command of the Queen to devise how the nine penal statutes, s. tillage, servants and labourers, apparel in the time of P. and M., armour and horses, artillery and unlawful games, relief of the poor and vagabonds, woods, highways and bridges, and forestallers and regrators, should be best put in execution.”Footnote ³⁶

It was not invariably true that the judges were compliant when requested by the Crown to assemble, as is shown by an incident in 1748-49, described by Attorney General Dudley Ryder in his diary.Footnote ³⁷ The incident was too complex to be related in full here, but in brief, George II commanded the Attorney General and the Solicitor General (then William Murray, later Lord Mansfield) to meet with all the judges to assess the validity of a commission that had issued on July 11, 1748 to the Privy Council and the judges to hear prize cases jointly by way of appeal – a commission to which some of the judges had objected because they thought that legally the appeals ought to go exclusively to the Privy Council. According to Ryder, some of the judges reacted to the King's request “in a passionate way, as if they had nothing to do [but] to meet on such occasion,” and “they would hear nothing as to the expediency or fitness of their acting under the commission, but only as to the legality of it.” Ryder noted the individual views of some of the judges, for example, Foster's, who “did not seem so much against the legality but thought it not fit that the judges should be employed in a matter of state as he looked upon this to be.”Footnote ³⁸ Foster explained to Ryder his opinion that some of the special commissions that had been created in the past had been illegal, that the treaty requiring an appeal to the Privy Council could not be superseded by the King's commission, and that “he looked upon this as a state commission and it would be unbecoming the twelve judges of England to act as judges of affairs of state.”Footnote ³⁹

Eventually the judges did meet with Ryder and Murray, but they divided six for and six against the legality of the commission. Later, Lord Chancellor Hardwicke told Ryder that he could not think of putting the six judges who thought the commission legal on the commission because of the danger that the other six (all of whom were on King's Bench or Common Pleas) would grant a writ of prohibition, “which would be a total suspension of the case for too long a time.” In the end, the matter was resolved by a statute. As noted in Blackstone's Commentaries, after doubts were conceived concerning the validity of the commission to which the judges, though not privy counselors, would be added, “the same was confirmed by statute 22 Geo. II. c.3 with a proviso, that no sentence given under it should be valid, unless a majority of the commissioners present were actually privy counsellors.”Footnote ⁴⁰

To What Extent Were the Informal Deliberations of the Twelve Judges “Lawmaking”?

The classic common law method of lawmaking was to set a precedent by articulating, extending, or limiting a principle with the expectation that the decision would control like cases subsequently. If, however, an opinion of the twelve judges was merely advisory, how could it be said to have controlling effect in future cases? We can explore this question by considering how the judges themselves regarded the decisions that were reached through the informal twelve-judge procedure. As will be demonstrated, the judges clearly considered these decisions – those that reached a clear conclusion at least – to be binding.

The horizontal structure of the English central courts, with three common law courts operating largely independently of each other, would seem to have inhibited the development of the notion of binding precedent. Sir William Holdsworth argued that, nevertheless, by the second half of the eighteenth century, precedent had become a stronger force for the central court judges than was commonly believed. He said that, “A decided case makes law for future cases, and will bind all inferior courts, and generally courts of co-ordinate jurisdiction.”Footnote ⁴¹ Further, he quoted Sir Frederick Pollock for the proposition that, “The decisions of a Court of Appeal are binding on all courts of co-ordinate rank with the court below, and generally, according to English practice, on the Appellate Court itself.”Footnote ⁴²

During the time period covered in the present article, there was no court of appeal, although cases could go forward to the Court of Exchequer Chamber and the House of Lords by writ of error. John Langbein describes the procedure of submitting a case to the twelve judges, however, as one “that functioned as a species of appellate review,” so that the judges' decision would “resolve the case and the precedent would clarify future practice.”Footnote ⁴³ Similarly, Sir John Baker observes that, although “the judges were not acting as a court of record but merely as an advisory assembly,” their opinion nevertheless “was always acted on, and–if reported–would serve as a precedent for the future.”Footnote ⁴⁴ He also states that the judges' “collective declarations were law not just because of their judicial office but because they conformed to the established wisdom of the little intellectual world of Westminster Hall and the Inns of Court.”Footnote ⁴⁵

The expression “lawmaking” can have a variety of meanings.Footnote ⁴⁶ In the English common law system from the time period under discussion, as has been stated, judicial opinions regularly established precedents that would govern like cases subsequently, although the views of historians differ on when the notion of precedent became firmly fixed while the three common law courts operated independently.Footnote ⁴⁷ The decisions of the twelve judges, however, support and strengthen Holdsworth's view that the system of precedent was well established by the second half of the eighteenth century. The twelve-judge decisions constituted lawmaking in two additional important ways. They settled the meaning and limits of statutory language as applied to specific fact situations, and they established controlling rules of procedure and evidence.

Precedent Setting

The evidence that the judges regarded the twelve-judge decisions as binding precedents is plentiful, and there is almost nothing that suggests that the decisions did not need to be followed because they were merely advisory. What the judges did recognize was that they, as an informal group of twelve, had limited remedial authority. In criminal cases, they could confirm the conviction or conclude that it was wrong. If wrong, their recourse was to recommend a pardon to the Crown, which was sure to be granted. But if a different remedy were to be requested, they would be unable to supply it. This is demonstrated in R. v. Parry, Rea and Wright.Footnote ⁴⁸ The case involved four defendants who had been tried and acquitted for rape, after which three of the four were indicted again for another alleged rape of the same person. In the second case, the jury again acquitted the defendants, finding that there was only one incident and not two. The trial judge, Baron Bolland, said that he saw no evidence that the alleged rape in the second indictment was the same as that in the first, but, “I cannot take upon myself to withdraw the case entirely from the jury.” Instead, he reserved the case for consideration of the judges, posing the question of whether there was any evidence to justify the verdict, and if not, whether the verdict was final and conclusive. In the proceeding before all of the judges, Baron Alderson asked counsel for the prosecution what the result would be if he succeeded in establishing the points for which he contended. Greaves, counsel for the prosecution, responded that “your Lordships will order the prisoners to plead over, or will order a new trial.”Footnote ⁴⁹ Justice Park responded, “We cannot grant a venire de novo because we are not a Court of Justice, we are merely advising the learned Judge who tried the case.”Footnote ⁵⁰ In the end, the judges concluded that the verdict was final.Footnote ⁵¹

Baron Alderson made a further observation in R. v. Parry, that “when a civil case was argued before the twelve judges, the eight sat as assessors to the four judges of the court in which the record was, and the four gave judgment.”Footnote ⁵² In criminal cases from the assizes and the Old Bailey, there was no fixed bench of judges to whom the case could be returned. Instead, the case would be returned to the Old Bailey or to the assize from which the case had been referred, so that the judges' opinion, reasoning, and resolution could be reported at the next Old Bailey or assize sessions (though this was not always done).

Apart from the limited remedial power of the twelve judges, however, the twelve-judge decisions were treated as binding precedents. Indeed, these decisions were at times considered to be weightier than decisions by only one of the common law courts, as all or most of the twelve judges would have participated.

Examples in Leach's Reports of decisions that relied upon previous twelve-judge cases as binding precedents are numerous. Thus in R. v. Williams Footnote ⁵³ the twelve judges said that “The case of Mary Mitchell, in Mr. Justice Foster's Reports, … had been decided upon serious argument by a great majority of the judges, and therefore the principles there laid down could not now be departed from.”Footnote ⁵⁴ In R. v. Moore,Footnote ⁵⁵ the judges “could not distinguish this case from The King v. Patch in this Court in February 1782, and The King v. Pear, in September sessions 1779.”Footnote ⁵⁶ John Patch had been tried at the Old Bailey by Justice Gould, accompanied by Baron Perryn and Justice Buller, and the court relied “upon the authority of the Pear case.”Footnote ⁵⁷The King v. Pear, in turn, had been sent to the twelve judges by Justice Ashhurst in 1779, and the judges' opinions were delivered by Baron Perryn at the Old Bailey sessions in February 1780, even though they “differed greatly.”Footnote ⁵⁸ Despite the difference of opinion, it was said in R. v. Semple Footnote ⁵⁹ that, “The case of The King v. Pear was very solemnly debated at Lord Chief Justice De Grey's house.” The court said that Semple's actions (hiring a post chaise with felonious intent to convert it) fell “precisely within the principle of Pear's Case and the other decisions which the Judges have made upon the subject of constructive felony.”Footnote ⁶⁰ Indeed, “the most ingenious subtlety cannot distinguish this case from that of The King v. Pear.”Footnote ⁶¹

One count of the indictment in R. v. Hutchinson Footnote ⁶² was founded on a clause in a statute that “would reach any individual who shall forcibly hinder or obstruct a Revenue Officer in the execution of his duty.”Footnote ⁶³ This offense, however, had been reduced to a misdemeanor by a later statute,Footnote ⁶⁴ and the judges ruled that the felony had been “virtually repealed,”Footnote ⁶⁵ as had been “settled by the twelve judges, in the case of The King v. Davies, reserved by Mr. Justice Gould from the Home Circuit.”Footnote ⁶⁶ And in R. v. Owen,Footnote ⁶⁷ the court held that the defendant had not been deprived of benefit of clergy, founding its decision “on the authority of the case of Rex v. Campbell,” a twelve-judge decision issued in January 1792.Footnote ⁶⁸

Even after the Court for Crown Cases Reserved was created in 1848, prior twelve-judge opinions continued to have full precedential force. In R. v. Clarke,Footnote ⁶⁹ counsel for the Crown referred to the prior twelve-judge case of R. v. Jackson Footnote ⁷⁰ in which a majority of the judges ruled that having carnal knowledge of a woman under circumstances that induced her to suppose she was with her husband did not amount to rape. Counsel acknowledged that R. v. Jackson had been followed in subsequent cases but he claimed that “the matter is still, I apprehend, open for argument,” despite counsel's recognition that the facts of his case were not distinguishable from the facts in Jackson. Chief Justice Jervis gave counsel's argument short shrift, stating that the five judges had conferred with several of the other judges, “and we think we cannot permit this question to be opened now, but are bound by the decision in R. v. Jackson.”Footnote ⁷¹

Occasional cases were sent to the twelve judges specifically in order to establish a rule to govern future cases. In R. v. Baxter,Footnote ⁷² a question was sent forward, “not so much on any doubt we [the two judges at the Old Bailey] entertained ourselves, as because it was a point likely to arise on the circuits.” And in Wetherell's Case,Footnote ⁷³ a question of whether assize judges had authority to try an indictment that had been transmitted to the assizes from the sessions was sent to the twelve judges “for a rule in similar cases.”

A final example of precedent setting by the twelve judges is extreme – a case that developed precedential force even though it was never finally decided and was never made public. The case, Foster v. Thackary, arose in 1779 and required the judges to address the persistent, vexing question of the enforceability of wagering contracts.Footnote ⁷⁴

A year earlier, the wager puzzle had been before the Court of King's Bench in Jones v. Randall,Footnote ⁷⁵ in which the plaintiff sued to recover money allegedly won upon a wager on whether a decree of the Court of Chancery would be reversed or not on appeal to the House of Lords. The Court of King's Bench said that such a wager was enforceable “unless the motive be fraud or other turpis causa.” Arguing against the validity of the wager, Dunning, counsel for the defendant, said that the agreement was contrary to common decency; moreover, since all the judges knew the law and administered justice with uprightness and integrity, it could not be supposed that the judges were so ignorant of the laws as not to know them. Lord Mansfield disagreed. He found nothing in the wager that was either immoral or contrary to justice, and as to Dunning's second argument, “it would be very hard upon the profession, if the law was so certain, that everybody knew it: the misfortune is that it is so uncertain, that it costs much money to know what it is, even in the last resort.”Footnote ⁷⁶

Then in Trinity Term 1779, the case of Foster v. Thackary came on at the sittings before Lord Mansfield, and after counsel for the plaintiff opened the case, Lord Mansfield immediately nonsuited the plaintiff and directed that a motion be made by the plaintiff for a new trial in order to take the opinion of the court on whether the wagering policy involved in the case was void under the 1774 statute because the plaintiff had no interest.Footnote ⁷⁷ The written wager read as follows: “London May 2, 1778. Mr. Robert T lays Mr. Thomas Foster £100 that war is declared against France or France declares war against England within three months from the date of these presents.” Dunning again argued against the validity of the wager, claiming that, as had been established in Da Costa v. Jones,Footnote ⁷⁸ wagers were illegal when upon subjects on which public discussions were improper. Representing the plaintiff, the Attorney General (James Wallace) asked, “What law in this country prevents persons from making bets in which they have no interest, if there be nothing illegal or immoral in them?” King's Counsel John Lee, also for plaintiff, declared that, “it would be very extraordinary to pretend that wagers are unlawful in a country where the most material questions are judicially decided under this form as feigned issues.”Footnote ⁷⁹ He added, bluntly: “If this is an insurance there is no wager which is not.” Lord Mansfield responded that, “Wagers upon public events are very mischievous; but wagers in general are allowed at common law, and it may be very difficult to draw the line as to events which may or may not sustain a wager.” He said that if the wager fell under the 1774 statute, that would be the end of it, but discussion would be useful. He said that he would not give any opinion without consulting all the judges, but he would “throw out how the question struck and strikes me.” He reflected on what is a “policy,” a French word for a promise. He noted that the 1774 statute was titled “policies” but the enacting part was against wagers, whereas the reverse was true of an earlier statute from the time of Queen Anne.

The case was taken under advisement and was brought forward again on June 22, 1781, when Lord Mansfield said, “this case has been before the twelve judges and there is a difference of opinion among them.” He declined to say which way the majority was inclined, “because we will now, if desired, put it in the way of a more solemn decision.”

Evidently the parties did not seek “a more solemn decision,” and the opinions of the twelve judges were never publicly announced. Yet Foster v. Thackary continued to be referred to as an important precedent.Footnote ⁸⁰ In Good v. Elliott, plaintiff and defendant placed a bet of five guineas on the question of whether a wagon lately belonging to one David Coleman had or had not been sold to one Susannah Tye before a certain day.Footnote ⁸¹ This innocuous wager led the court into an extensive discussion of the general question of the validity of wagering contracts. After reviewing many past cases, the wagering contract was upheld, even though the judges lamented the fact that Parliament had not legislated more effectively upon the subject. Justice Buller, however, dissented, discoursing upon the subject in a lengthy opinion. He concluded his opinion by citing the case of Foster v. Thackary, noting that it “was not finally determined; but still I think it is a case of considerable authority.” He quoted Lord Mansfield as saying, “What is a policy? It is derived from a French word, which means a promise.” Buller then asked, “Is a particular form necessary? Must it begin ‘in the name of God, amen,’ or refer to Lombard Street?” He said that, “If the form were essential under the Act, it may be evaded immediately; for it may begin, ‘I, we promise, if war be declared, we will pay, &c.’” – or, as applied to mercantile events, “I, we promise to pay if the ship sails and does not arrive, &c.” Returning then to Foster, he said that even though the case was never finally decided, “it is well known that a great majority of the Judges were of opinion against the action.”Footnote ⁸²

Statutory Interpretation

Because common law crimes were few, most criminal cases at the Old Bailey or on assize involved indictments for violations of statutes. Most of these cases reached a jury verdict without any question of statutory interpretation having been raised, and the jury verdicts were conclusive. When the criminal defense lawyers came on stage in the second half of the eighteenth century, however, questions of statutory interpretation began to be raised, and as is shown in the printed reports, many of these were referred to the twelve judges. Three representative types of twelve-judge cases involving statutory interpretation are the following: (1) those calling for applications of statutes to new situations not anticipated by Parliament; (2) those requiring the judges to reconcile two statutes with similar content; and (3) those demanding close interpretation of specific words of the statute under which the defendant had been indicted.

Establishing and Applying Rules of Evidence or Procedure

Not infrequently the twelve judges were called upon to articulate or apply a rule of evidence or procedure. An example is R. v. Steel,Footnote ¹²³ in which the twelve judges determined that a presumption of “ideotism” created by a jury verdict that the defendant was “mute by the visitation of God” was to be regarded as rebuttable. And in R. v. Brasier,Footnote ¹²⁴ the twelve judges decided that no testimony whatever could be offered in court unless under oath, and that a child could take an oath if possessed of sufficient knowledge of the nature and consequences of the act.

A more fundamental evidentiary question with which the twelve judges struggled was whether an indictment could be upheld solely on the basis of the unconfirmed testimony of an accomplice. In R. v. Atwood and Robbins,Footnote ¹²⁵ the judges unanimously determined “that an accomplice alone is a competent witness; and that, if the jury, weighing the probability of his testimony, think him worthy of belief, a conviction supported by such testimony alone is perfectly legal.”Footnote ¹²⁶ The judges explained that the distinction between competence and credit of a witness had been long settled, and as the jury in the case before the judges had found the accomplice to be worthy of credit, the guilty verdict was legal, even though founded solely on the testimony of the accomplice. In a footnote, Leach referred to other cases involving the rule of evidence established in Atwood and Robbins, among them R. v. Jones, decided in 1809,Footnote ¹²⁷ where Lord Ellenborough declared that, “No one can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice only.”Footnote ¹²⁸ Ellenborough remarked that, “Strange notions upon this subject have lately got abroad; and I thought it necessary to say so much for the purpose of correcting them.”Footnote ¹²⁹

Among Ellenborough's comments in R. v. Jones intended to correct the “strange notions” upon the subject were the following: “Within a few years, a case was referred to the twelve judges where four men were convicted of a burglary upon the evidence of an accomplice, who received no confirmation concerning any of the facts which proved the criminality of one of the prisoners; but the judges were unanimously of opinion that the conviction as to all the four was legal, and upon that opinion they all suffered the sentence of the law.”Footnote ¹³⁰ The case to which Ellenborough referred was R. v. Fordham, Harvey, Hartford, and Bridge, decided in 1807. The phase of the case before the twelve judges was unreported, but it was included in the notebooks kept by the Chief Justice of King's Bench, and that version of the case is printed in Bentley's Select Cases from the Twelve Judges' Notebooks. Footnote ¹³¹ The trial judge at the Old Bailey in this case was Justice Lawrence, and his manuscript notes of the case are much fuller than the report in the twelve judges' notebooks. Lawrence's notes show that Lord Ellenborough in R. v. Jones was taking some liberty in describing the Fordham case as one in which the judges unanimously upheld the view that a conviction could be based solely on the evidence of an accomplice whose testimony received no confirmation. The issue before the judges in Fordham was what might be called a question of “transferred confirmation.” Lawrence described the issue in his headnote as follows: “What confirmation is sufficient to support the evidence of an accomplice. Confirmation as to one of several offenders is confirmation as [to] the others.”Footnote ¹³²

Justice Lawrence had examined a copy of the report of the Fordham trial in the Old Bailey Sessions Papers, and in his manuscript note of the case, he corrected a mistake in the OBSP. He said that the statement on page 64 that the witness (Elizabeth Spencer) had pointed to the defendant Hartford was wrong and that the witness actually pointed to the defendant Bridge.Footnote ¹³³ The evidence against all four defendants – Fordham, Harvey, Hartford, and Bridge – was principally the testimony of an accomplice, one Enoch Roberts. In his account of the deliberations of the twelve judges, Lawrence said that he “directed their [the jury's] attention to the circumstances under which he [Roberts] stood as rendering him undeserving of credit, unless confirmed by other witnesses.”Footnote ¹³⁴ The only significant confirmation of accomplice Roberts's testimony by another witness was Elizabeth Spencer's pointed identification of Bridge as one of the culprits.  The jury nevertheless found all four defendants guilty, and Lawrence put the question to the twelve judges “whether the Case of the first three Prisoners ought not to have been left to the Jury with strong advice to acquit for want of Roberts' evidence being sufficiently corroborated by the testimony of other witnesses.”Footnote ¹³⁵ The evidence recounted by Lawrence showed the essential lack of confirmation or corroboration as to the first three defendants.

No opinions of the judges are given in the report of the case in the twelve judges' notebook transcribed by Bentley, only the decision: “Conviction right April 7th 1807.”Footnote ¹³⁶ Lawrence's notes, however, tell much more. They reflect an extended discussion of the case by the judges on April 25, 1807, a discussion missing entirely from the report of the case in the twelve judges' notebooks, and missing as well from the OBSP. Also revealed in Lawrence's notes is the fact that he relied on Atwood and Robbins (of which he had a copy from Justice Buller's manuscripts) as the reason why he did not tell the jury that they should acquit the first three prisoners because there was no confirmation of accomplice Roberts' testimony.Footnote ¹³⁷ In the deliberations of the twelve judges, Lawrence wondered whether he had been wrong in relying on Atwood and Robbins and whether convictions of the first three prisoners should not stand when the accomplice's testimony was confirmed only as to the fourth prisoner.

Justice Heath said “that he perfectly well remembered the case of Atwood, and the judges then thought slight circumstances would be sufficient to corroborate an accomplice, and that he had never understood that a moral certainty made any ingredient in that which was necessary to corroborate.” This position “seemed very extraordinary to Lawrence, J.” and contrary to sound reasoning, “on the grounds of which the Rules of Evidence were established.”

There was evidence that a pistol had been found on Fordham. Lawrence thought this was no confirmation of Enoch Roberts's story, although it seemed to have weight with Heath and with other judges. But “the question principally discussed was … whether in the case of several offenders, whose conviction depended upon the testimony of an accomplice, a confirmation of his story as to one of them was sufficient to leave his credit to the jury without strong directions to acquit.” The judges then discussed some of the logical and practical difficulties presented by this question, especially since prisoners involved in a single alleged crime often were not tried together.

Chief Baron McDonald and Justice Chambré proposed the following rule: “That unless the witness was confirmed as to each, that the prisoner with respect to whom there was no confirmation should be acquitted, although the jury believed the story as to him, in conformity to the law in cases of high treason requiring two witnesses.” This rule would have overturned the Atwood rule that a conviction could be based solely on the uncorroborated testimony of a single accomplice. But eventually, “the majority of the judges agreed that as an accomplice was a competent witness, if he received confirmation of his story as to anyone, it was for the jury to determine whether they gave credit to his story as to all; that it was with the judge to point out to the attention of the jury the extent of the confirmation, and it was for them to decide whether they gave him perfect credit.” They added that the rule as to confirmation was not “a rule of law similar to the law in cases of treason, but a rule of discretion.”

Baron Thomson and Justice Chambré said they had understood that the jury could not safely rely on an accomplice's evidence unless he was confirmed, and that “as a matter of discretion they [the jury] ought to acquit those as to whom there was no confirmation,” and they wished to be told what the rule should be. Justice Heath said that “when he was first a judge the practice was very unsettled; at first it was expected there should be confirmatory evidence given before the accomplice was called, afterwards the practice was established, either to call the accomplice first or the confirmatory evidence, as made best for the understanding of the case.”

Ultimately, the judges accepted the proposition that confirmation of the accomplice as to one of the defendants could be sufficient for all the defendants, and all four defendants were afterwards executed. The tenor of the judges' opinions does seem to have been inconsistent with the rule established in Atwood and Robbins, that the uncorroborated testimony of an accomplice was sufficient to justify conviction of a defendant. Even though confirmation as to each witness might not be necessary, the judges in Fordham appear to have insisted that some confirmation be present, the strength or weakness of which would be determined by the jury.Footnote ¹³⁸

Resolving Conflicts of Opinions

On occasion, the judges would decide that the time had come to try to resolve divisions of opinion between or within the common law courts, or to try to reconcile conflicting precedents.Footnote ¹³⁹ An early case that was sent by the Court of Common Pleas to the twelve judges because it was a new case upon a statute and one of the Common Pleas justices differed from the other three was Bainbridge v. Gardiner. Footnote ¹⁴⁰ In Biddleson v. Whitel,Footnote ¹⁴¹ a question of whether bail ought to be required on a writ of error was taken to the twelve judges because previously the Court of King's Bench and the Court of Common Pleas had decided the question differently.

Examples of cases sent to the twelve judges because of contradictory opinions in a variety of authorities and in order to settle an issue once and for all are Parker v. Asline Footnote ¹⁴² and Owen v. Warburton. Footnote ¹⁴³ In Parker, the procedural question was whether an action in ejectment could be legally maintained in the name of a nominal plaintiff when the judgment against the casual ejector had been by default.Footnote ¹⁴⁴ Lord Mansfield said that the precedents were contradictory, and “for the sake of settling the practice,” he chose to put the case before the twelve judges. He said that the judges “looked into the books, and produced many manuscript cases of opinions both ways,” but the judges reached the unanimous conclusion that because the nominal plaintiff and the casual ejector were fictitious characters, the lessor and the tenant being the real parties, it made no material difference whether the judgment was by default or after a verdict.Footnote ¹⁴⁵ And in Owen, the question was whether the court would entertain a motion to set aside a verdict based upon affidavits from jurors about misbehavior during jury deliberations, as in drawing lots to determine the verdict. The principal case against receiving such affidavits was Vaise v. Delavel,Footnote ¹⁴⁶ but there were contrary authorities. After the argument, Sir James Mansfield, Chief Justice of Common Pleas, “observed that the authorities upon the subject being contradictory, it was fit that the point should be settled one way or the other,” and after conferring with all the judges, they were of the unanimous opinion “that the affidavit of a juryman cannot be received.”Footnote ¹⁴⁷ The judges reasoned that a contrary rule could lead to abuse, such as that “a juryman, being a friend to one of the parties, and not being able to bring over his companions to his opinion, might propose a decision by lot, with a view afterwards to set aside the verdict by his own affidavit, if the decision should happen to be against him.”Footnote ¹⁴⁸

Unanimous Versus Divided Opinions

Speaking of the development in the 16^th century of the importance of precedent, Baker writes:

In theory, the results of twelve-judge deliberations would not seem to constitute the formal, deliberate judicial opinions of which Professor Baker speaks. Yet we have seen that the twelve-judge opinions, by the eighteenth century at least, had come to be regarded as weighty and serious precedents. A question not yet squarely addressed is whether these opinions had such an effect if they were not unanimous.

In 1838, a pamphlet was published in Dublin by an Irish barrister named John Alcock concerning practices followed in the Irish courts. Alcock's pamphlet was entitled “Observations Concerning the Nature and Origin of the Meetings of the Twelve Judges, For the Consideration of Cases Reserved from the Circuits.” Alcock began his essay as follows: “The refusal of Baron Richards to be governed by the resolutions agreed to by the majority of the Judges, upon the questions reserved for their consideration in Glennon's Case, and the controversy to which that refusal has given rise, invite an inquiry into the nature and origin of such meetings of the Judges; and into the authority which has been ascribed to such resolutions, at the different periods of our legal history.”Footnote ¹⁵⁰ Provoked by two decisions in which a dissenting justice refused to follow a rule laid down by a majority of the Irish judges, one of the judges suggested consulting the English judges about their practice. Accordingly, on February 8, 1838, the Chief Justice of Ireland, Charles Bushe, wrote to Lord Chief Justice Denman to ask about the English practice. Alcock quotes Lord Denman's responsive letter as follows:

Whether Lord Denman's unequivocal view had always been true in England is uncertain, but a strong indicator that the view was longstanding can be seen in a 1743 case involving election bribery, Mead v. Robinson.Footnote ¹⁵² The Court of Common Pleas thought there was insufficient evidence to support the jury verdict for the plaintiff on one of the counts, but the question was referred to the twelve judges. The outcome of the deliberations was reported in a footnote as follows:

Then, according to the report, “the next day the Chief Justice (Willes) declared that the Court of Common Pleas were bound by the opinion of the majority of the Judges, and against the opinion of this Court, [and] gave the rule that the verdict as to the question above stated should not be set aside, but should stand.”Footnote ¹⁵⁴

In many twelve-judge cases, no opinion of the judges was ever announced, as we have seen in the case of Foster v. Thackary, discussed previously. Perhaps in some of the cases this was because the judges were so badly split that there was no discernable majority opinion. An unreported example is R. v. Dempsey, tried before Baron Thomson of the Court of Exchequer in April 1807. There, the defendant was convicted of having falsely claimed to be a deceased shipmate's brother in order to collect prize money. The defendant had been apprehended in Liverpool by one John Dorrington, an agent of the Bow Street Court in London. Both the defendant and Dorrington signed sworn affidavits in Liverpool, but Dorrington died before the trial came on at the Old Bailey. Baron Thomson admitted both affidavits into evidence, but later had second thoughts about their admissibility and referred the matter to the twelve judges. The judges met twice, and at the second meeting, Justice Lawrence took careful notes of their disparate views. In their opinions, the judges invoked past decisions, statutes, and treatises by Hale and Dalton. No decision was reached, but the debate evidently saved the prisoner's life. Lawrence noted that, “as the judges, who then met, differed in their opinions it was agreed that the prisoner should be recommended to the King's mercy for a conditional pardon.”Footnote ¹⁵⁵

How, If At All, Were the Deliberations and Resolutions of the Twelve Judges Made Public?

A typical procedure for twelve-judge cases from the assizes and the Old Bailey was to withhold the judgment of the trial court until the twelve judges had conferred, then report the decision of the judges at the next assizes or the next Old Bailey sessions. Copies of the question or questions to be considered were written out and delivered to each of the twelve judges.Footnote ¹⁵⁶ Prior to the first edition of Leach's Reports (1789), the chief means of keeping abreast of the twelve-judge decisions was through manuscript reports. These reports were frequently cited by both the judges and the barristers.Footnote ¹⁵⁷ Even in Leach's Reports, the reasoning of the judges was not always given, but for cases decided in the 1780s and thereafter, it became increasingly common to print the judges' reasons as delivered at the assizes or at the Old Bailey.Footnote ¹⁵⁸ Often Leach quoted the judges' decision verbatim from the judges' own notes.Footnote ¹⁵⁹

Another potential printed source for decisions by the twelve judges was the OBSP.Footnote ¹⁶⁰ Perhaps the close reasoning of the twelve judges would not have been of as much interest to the readers as the testimony of the witnesses and the sentences imposed, but for whatever reason, OBSP reporting of the twelve-judge resolutions and reasoning was sporadic. There might be no indication at all that a question had come up that was referred to the twelve judges. Even if the referral of the question to the twelve judges was noted, the result of the judges' deliberations might or might not be reported subsequently in the sessions papers.

Two Old Bailey case discussed previously (R. v. Dempsey and R. v. Fordham) are illustrative.Footnote ¹⁶¹ Another example is the case of R. v. Bulkley, or Buckley. The case is fully reported in the OBSP for June 28, 1780, recounting Buckley's involvement with about forty other persons during the Gordon Riots in efforts to demolish the home of one Cornelius Murphy.Footnote ¹⁶² Buckley was found guilty and sentenced to death, although he was recommended by the jury to His Majesty's mercy. Nothing is indicated in the OBSP report to show that a question arose that was forwarded to the twelve judges, and the case is otherwise unreported. Justice Lawrence's manuscripts, however, contain full notes of the deliberations by the twelve judges in the case, notes taken by Justice William Ashhurst.Footnote ¹⁶³

One of the witnesses against Buckley was a man named Edward Bevan who was described by counsel for the Crown as “the discoverer,” that is, the informer. As an informer, he was in line to receive a reward if the defendant was convicted, and therefore he was an interested witness. As a general rule, interested witnesses were considered incompetent to testify under oath. Apparently (although not reflected in the OBSP) a question was raised about whether Bevan's testimony should have been received. The reward to which he might be entitled had been offered by the government on conviction of persons guilty of taking part in the Gordon Riots of 1780. The courts had previously allowed informers to testify when the informers were acting under a statutory reward scheme. The rationalization was that Parliament, by enacting the reward, intended that the informer would testify; otherwise, the statutory scheme could not work. What had not been decided was whether a like result should be achieved for rewards established by a government department or by proclamation. All of the judges' remarks are of interest, but especially those by Lord Mansfield, whose comments included the following:

Mansfield added that rewards had been offered by the Crown as far back as the time of Charles I and II, and in the statutes passed since the Revolution, there was nothing in them to make the witnesses competent if they were not so.

Following his notes of the views of the judges, Ashhurst quoted the opinion of the judges as he delivered it at the Old Bailey on July 10, 1780. This opinion is missing entirely from the OBSP. It provides an interesting contrast to what Ashhurst wrote of what the judges said in conference. His July 10, 1780 description of the judges' opinion was designed for the parties and the public, as shown, for example, by his exaggerated claim that there were precedents on point in many different circuits by many eminent and learned judges.

As several of the cases that have been discussed demonstrate, some twelve-judge decisions were altogether unreported. At times they were not even entered in the notebooks kept by the Chief Justice of the Court of King's Bench. Other decisions, although unreported, were in the twelve judges' notebooks and have now been transcribed by Bentley.Footnote ¹⁶⁴

Even after Crown cases reserved were regularly published by Leach and his successors, the printed reports of the cases sometimes ended inconclusively,Footnote ¹⁶⁵ or indicated that no opinion of the twelve judges was ever publicly announced. The number of “no opinion” cases was significant; in Leach's Reports alone, there are more than twenty such cases. Although no opinion of the judges is given, Leach was able to report what happened to the prisoners in most of the cases.Footnote ¹⁶⁶

The twelve-judge procedure could work to the prisoner's advantage,Footnote ¹⁶⁷ but the procedure inevitably extended the time spent in jail, and occasionally a prisoner did not survive.Footnote ¹⁶⁸ An example is R. v. Alexander, a case decided at the Old Bailey in 1767.Footnote ¹⁶⁹ The defendant was a negro servant who was convicted of perjury for falsely swearing in Doctors' Commons that his fiancée was 21 when she was only 16. The evidence showed that the defendant, Joseph Alexander, had been left in England by his master, the Duke de Nivernois, and had been accepted in the house of Mr. Nesbit as an instructor for Mr. Nesbit's daughter, Charlotte. Joseph was to teach Charlotte the French language, and, as Leach's report states, “other fashionable accomplishments, of which the prisoner was perfect master.”Footnote ¹⁷⁰ In time, Joseph obtained Charlotte's consent to marry, and this led to the license and his false oath. After being found guilty, the case was referred to the twelve judges, and according to Leach: “The question was agitated several times; but the prisoner dying in Newgate, the result of their Lordships's deliberations was never publicly communicated.”Footnote ¹⁷¹