The Earl of Nottingham, who was the first on the bench to promulgate this publicity as a rule, has not left us to seek the principle in the case:  that very learned man considers the publicity of the questions and answers as a matter of justice, and of justice favorable to the prisoner.  In the case of Mr. Hastings, the prisoner’s counsel did not join your Committee in their endeavors to obtain the publicity we demanded.  Their reasons we can only conjecture.  But your Managers, acting for this House, were not the less bound to see that the due Parliamentary course should be pursued, even when it is most favorable to those whom they impeach.  If it should answer the purposes of one prisoner to waive the rights which belong to all prisoners, it was the duty of your Managers to protect those general rights against that particular prisoner.  It was still more their duty to endeavor that their own questions should not be erroneously stated, or cases put which varied from those which they argued, or opinions given in a manner not supported by the spirit of our laws and institutions or by analogy with the practice of all our courts.

Your Committee, much in the dark about a matter in which it was so necessary that they should receive every light, have heard, that, in debating this matter abroad, it has been objected, that many of the precedents on which we most relied were furnished in the courts of the Lord High Steward, and not in trials where the Peers were Judges,—­and that the Lord High Steward not having it in his power to retire with the juror Peers, the Judges’ opinions, from necessity, not from equity to the parties, were given before that magistrate.

Your Committee thinks it scarcely possible that the Lords could be influenced by such a feeble argument.  For, admitting the fact to have been as supposed, there is no sort of reason why so uniform a course of precedents, in a legal court composed of a peer for judge and peers for triers, a course so favorable to all parties and to equal justice, a course in concurrence with the procedure of all our other courts, should not have the greatest authority over their practice in every trial before the whole body of the peerage.

The Earl of Nottingham, who acted as High Steward in one of these commissions, certainly knew what he was saying.  He gave no such reason.  His argument for the publicity of the Judges’ opinions did not turn at all on the nature of his court, or of his office in that court.  It rested on the equity of the principle, and on the fair dealing due to the prisoner.

Lord Somers was in no such court; yet his declaration is full as strong.  He does not, indeed, argue the point, as the Earl of Nottingham did, when he considered it as a new case.  Lord Somers considers it as a point quite settled, and no longer standing in need of being supported by reason or precedent.

But it is a mistake that the precedents stated in this Report are wholly drawn from proceedings in that kind of court.  Only two are cited which are furnished from a court constituted in the manner supposed.  The rest were in trials by all the peers, and not by a jury of peers with an High Steward.