“It was resolved, that, in case the Peers who are triers, after the evidence given, and the prisoner withdrawn, and they gone to consult of the verdict, should desire to speak with any of the Judges, to have their opinion upon any point of law, that, if the Lord Steward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]

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.  These precedents lean all one way, and carry no marks of accommodation to the variable spirit of the times and of political occasions.  They are the same before and after the Revolution.  They are the same through five reigns.  The great men who presided in the tribunals which furnished these examples were in opposite political interests, but all distinguished for their ability, integrity, and learning.