such forms were observed, nor in
the opinion of this able judge ought they to have been observed.

PUBLICITY OF THE JUDGES' OPINIONS.

It appears to your Committee, that, from the 30th year of King Charles
II. until the trial of Warren Hastings, Esquire, in all trials in
Parliament, as well upon impeachments of the Commons as on indictments
brought up by _Certiorari_, when any matter of law hath been agitated at
the bar, or in the course of trial hath been stated by any lord in the
court, it hath been the prevalent custom to state the same in open
court. Your Committee has been able to find, since that period, no more
than one precedent (and that a precedent rather in form than in
substance) of the opinions of the Judges being taken privately, except
when the case on both sides has been closed, and the Lords have retired
to consider of their verdict or of their judgment thereon. Upon the
soundest and best precedents, the Lords have improved on the principles
of publicity and equality, and have called upon the parties severally to
argue the matter of law, previously to a reference to the Judges, who,
on their parts, have afterwards, _in open court_, delivered their
opinions, often by the mouth of one of the Judges, speaking for himself
and the rest, and in their presence: and sometimes all the Judges have
delivered their opinion _seriatim_, (even when they have been unanimous
in it,) together with their reasons upon which their opinion had been
founded. This, from the most early times, has been the course in all
judgments in the House of Peers. Formerly even the record contained the
reasons of the decision. "The reason wherefore," said Lord Coke, "the
records of Parliaments have been so highly extolled is, that therein is
set down, in cases of difficulty, not only the judgment and resolution,
but _the reasons and causes of the same_ by so great advice."[17]

In the 30th of Charles II., during the trial of Lord Cornwallis,[18] on
the suggestion of a question in law to the Judges, Lord Danby demanded
of the Lord High Steward, the Earl of Nottingham, "whether it would be
proper here [in open court] to ask the question of your Grace, or to
propose it to the Judges?" The Lord High Steward answered,--"If your
Lordships doubt of anything whereon a question in law ariseth, the
latter opinion, and the _better_ for the prisoner, is, _that it must be
stated in the presence of the prisoner, that he may know whether the
question