f 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]

The Judges in this resolution overruled the authority of the precedent,
which militated against the whole spirit of their place and profession.
Their declaration was without reserve or exception, that "_all_
resolutions of the Judges are _always_ done in public." These Judges (as
should be remembered to their lasting honor) did not think it derogatory
from their dignity, nor from their duty to the House of Lords, to take
such measures concerning the publicity of their resolutions as should
secure them from suspicion. They knew that the mere circumstance of
privacy in a judicature, where any publicity is in use, tends to beget
suspicion and jealousy. Your Committee is of opinion that the honorable
policy of avoiding suspicion by avoiding privacy is not lessened by
anything which exists in the present time and in the present trial.

Your Committee has here to remark, that this learned Judge seemed to
think the case of Lord Audley (Castlehaven) to be more against him than
in truth it was. The precedents were as follow. The opinions of the
Judges were taken three times: the first time by the Attorney-General at
Serjeants' Inn, antecedent to the trial; the last time, after the Peers
had retired to consult on their verdict; the middle time _was during the
trial itself_: and here the opinion was taken in open court, agreeably
to what your Committee contends to have been the usage ever since this
resolution of the Judges.[25] What was done before seemed to have passed
_sub silentio_, and possibly through mere inadvertence.

Your Committee observes, that the precedents by them relied on were
furnished from times in which the judicial proceedings in Parliament,
and in all our courts, had obtained a very regular form. They were
furnished at a period in which Justice Blackstone remarks that more laws
were passed of importance to the rights and liberties of the subject
than in any other.