The departure from the common forms in the first case alluded to by Foster (viz., the trial of Berkeley, Maltravers, &c., for treason, in the murder of Edward II.[16]) might be more plausibly attacked, because they were tried, though in Parliament, by a jury of freeholders:  which circumstance might have given occasion to justify a nearer approach to the forms of indictments below.  But no 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 be truly put.  It hath sometimes