The great thing about the original intent school of constitutional interpretation is that it relieves Supreme Court justices from any responsibility for feeling shame. They can indulge their every whim with the all-purpose justification that they're only doing what the Framers would have done, if only they'd gotten around to it. (See post 201.)
Justice Scalia has assured us that "[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation." Thus they enacted the sixth amendment's confrontation clause, based on the practice in English courts of the era ("the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions").
But as evidence of the practice in English courts, Scalia cites opinions from English and American appellate courts, and the views of commentators, who by a process of self-selection are almost guaranteed to have been opinionated cranks, the pre-Web equivalent of bloggers. This might be a reasonable avenue of historical research if trial court records were unavailable, but they're not. In fact, it's easy to read transcripts of English criminal trials from the years before the American Revolution.
In 1750, for instance, John Stevens - no indication whether his middle name was Paul - was charged with stealing a silver tankard from a man who ran a public house in his home. Here's the pub owner's testimony:
The other witness (Warwick) staid, who told me he could not go away, for that man, meaning the Prisoner, has took away something with him, either pewter or silver, like a tankard; and likewise said, he told Judith Dyke, that he and she should come into trouble about it; adding, she made a pish at it: I sent my young man one way, and I went another, but we could not find the prisoner, or the woman. Warwick still abode in the house, nor did he endeavour to get away; saying, he would stay with all his heart: then I sent for the constable of the night, and Warwick was taken into custody. I had seen the woman before, and a person gave me intelligence where she lived; I went to her house, and there was a man made answer and said, she was not at home; (we could hear her whisper ) I went back again, and we carried Warwick to New-prison; my lodger said when we came back, if I would go down to the woman, she would open the door to me; he was drinking with them that night in my house, but he has hid himself, and I cannot find him; I fear the woman has sent him out of the way; we went again, and he knocked, and she immediately let him in, and the constable took charge of her; the justice thought proper to admit her to bail. I never saw the tankard since. We searched Warwick to see if he had any knife, or such instruments about him, and I am sure he could not have the tankard about him: the justice admitted Warwick to bail, and upon Thursday evening he took the Prisoner, and sent for me, and he was secured; they went away between 8 or 9 o'clock.
Mr. Warwick also testified:
On the 11th of Dec. last as I was going along Cheapside. I met the Prisoner, I had not seen him for 4 or 5 Years; he said to me, shall we not drink together ? I said with all my heart. Said I, I'll go to the Hercules and Pillars, in Bow-lane. No, said he, I'll go to a friend at the bottom of Bread-street. We went there, and Mrs. Dyke rapp'd at the sash window, at the Bull's-head: We went in, and drank 7 or 8 Tankards of beer. Said she, I have money to receive of a man who is to meet me at the Hampshire-hog, in Goswell-street. I went with the prisoner and her there, and they staid till about 8 or 9 o'clock; ... When the beer came about, he said, he did not care to drink; by and bye I heard liquor spill, I turn'd and saw something like a tankard in his hand, and he cover'd it under the right hand flap of his coat; it was about half cover'd: Presently I heard liquor spill again. I went betwixt the woman, and the man of whom she was to receive money, and whisper'd them, saying, I feared we should come into trouble, for, I thought, he was going to steel away a tankard. She said, pshaw, pshaw. The man made no answer. At going away the woman went first out at the door, and I second, the prisoner after me; he had his left hand under his coat, with something like a pot or a tankard in that hand: I turn'd back at the door, and said, I must speak with this man, meaning Hosier ; but the prisoner laid hold of the skirt of my coat, and said, come along, you have no business with that man I am sure. I told Hosier the prisoner had got a tankard under his coat, or something like it. Said Hosier to the Girl, see if there be any thing missing ? Said I, it will be the best way to go, in the first place, after the man. The Constable was sent for, and I desired he would be so good as to go and take the woman, thinking she would not deny what I whisper'd to her, of my suspicion about the prisoner. The Friday following I took the prisoner in Bedford-court, coming down to Covent-garden: I did not charge him with the thing then, because I had heard of his Character; so I took him to a public house, sent for a constable, charg'd him, and sent for the Prosecutor.
By "the Prosecutor," Warwick meant the publican.
Mr. Stevens was acquitted, which certainly seems just on evidence as thin as that. Nonetheless, a reader might be forgiven for thinking that English courts of 1750 were somewhat less than fanatical about preventing witnesses from repeating things they had heard outside the courtroom. What if - just supposing, now - what if Justice Scalia is right, and the confrontation clause really did codify existing English practice?