favor of this course. Your Committee is very sensible, that, antecedent
to the great period to which they refer, there are instances of
questions having been put to the Judges privately. But we find the
_principle_ of publicity (whatever variations from it there might be in
practice) to have been so clearly established at a more early period,
that all the Judges of England resolved in Lord Morley's trial, in the
year 1666, (about twelve years before the observation of Lord
Nottingham,) _on a supposition that the trial should be actually
concluded, and the Lords retired to the Chamber of Parliament to consult
on their verdict_, that even in that case, (much stronger than the
observation of your Committee requires for its support,) if their
opinions should then be demanded by the Peers, for the information of
their private conscience, yet they determined that they should be given
in public. This resolution is in itself so solemn, and is so bottomed on
constitutional principle and legal policy, that your Committee have
thought fit to insert it _verbatim_ in their Report, as they relied upon
it at the bar of the Court, when they contended for the same publicity.

"It was resolved, that, in case the Peers who are triers, _after the
evidence given, and the prisoner withdrawn, and they gone to consult of
the verdict_, should desire to speak with any of the Judges, to have
their opinion upon any point of law, that, if the Lord Steward spoke to
us to go, we should go to them; but when the Lords asked us any
question, we should not deliver any private opinion, but let them know
_we were not to deliver any private opinion without conference with the
rest of the Judges, and that to be done openly in court; and this
(notwithstanding the precedent in the case of the Earl of Castlehaven)
was thought prudent in regard of ourselves, as well as for the avoiding
suspicion which might grow by private opinions: ALL resolutions of
Judges being ALWAYS done in public_."[24]