After long discussions with the Peers on this subject, “the Lords’ committees in a conference told them (the committee of this House, appointed to a conference on the matter) that the High Steward is but Speaker pro tempore, and giveth his vote as well as the other lords:  this changeth not the nature of the court.  And the Lords declared, that they have power enough to proceed to trial, though the King should not name an High Steward.”  On the same day, “it is declared and ordered by the Lords Spiritual and Temporal in Parliament assembled, that the office of High Steward on trials of peers upon impeachments is not necessary to the House of Peers, but that the Lords may proceed in such trials, if an High Steward is not appointed according to their humble desire."[26]

To put the matter out of all doubt, and to remove all jealousy on the part of the Commons, the commission of the Lord High Steward was then altered.

These rights, contended for by the Commons in their impeachments, and admitted by the Peers, were asserted in the proceedings preparatory to the trial of Lord Stafford, in which that long chain of uniform precedents with regard to the publicity of the Judges’ opinions in trials begins.

For these last citations, and some of the remarks, your Committee are indebted to the learned and upright Justice Foster.  They have compared them with the Journals, and find them correct.  The same excellent author proceeds to demonstrate that whatever he says of trials by impeachment is equally applicable to trials before the High Steward on indictment; and consequently, that there is no ground for a distinction, with regard to the public declaration of the Judges’ opinions, founded on the inapplicability of either of these cases to the other.  The argument on this whole matter is so satisfactory that your Committee has annexed it at large to their Report.[27] As there is no difference in fact between these trials, (especially since the act which provides that all the peers shall be summoned to the trial of a peer,) so there is no difference in the reason and principle of the publicity, let the matter of the Steward’s jurisdiction, be as it may.

PUBLICITY GENERAL.

Your Committee do not find any positive law which binds the judges of the courts in Westminster Hall publicly to give a reasoned opinion from the bench, in support of their judgment upon matters that are stated before them.  But the course hath prevailed from the oldest times.  It hath been so general and so uniform, that it must be considered as the law of the land.  It has prevailed, so far as we can discover, not only in all the courts which now exist, whether of law or equity, but in those which have been suppressed or disused, such as the Court of Wards and the Star Chamber.  An author quoted by Rushworth, speaking of the constitution of that chamber, says,—­“And so it was resolved by the Judges, on reference made to them; and their opinion, after deliberate hearing, and view of former precedents, was published in open court."[28] It appears elsewhere in the same compiler that all their proceedings were public, even in deliberating previous to judgment.