sequence 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?"

Lords.--"Ay, ay."

Lord High Steward.--"My Lord Chief-Justice!"

Lord Chief-Justice (Lord Chief-Justice Lee).--"The question proposed by
your Lordships is, Whether it be necessary that an overt act of high
treason should be proved to be committed on the particular day laid in
the indictment? We are all of opinion that it is not necessary to prove
the overt act to be committed on the particular day laid in the
indictment; but as evidence may be given of an overt act before the day,
so it may be after the day specified in the indictment; for the day laid
is circumstance and form only, and not material in point of proof: this
is the known constant course of proceeding in trials."

Here the case was made for the Judges, for the satisfaction of one of
the Peers, after the prisoner had waived his objection. Yet it was
thought proper, as a matter of course and of right, that the Judges
should state the question put to them in the open court, and in presence
of the prisoner,--and that in the same open manner, and in the same
presence, their answer should be delivered.[22]

Your C