been practised otherwise, and the Peers have sent for the Judges, and have asked their opinion in private, and have come back, and have given their verdict according to that opinion; and there is scarcely a precedent of its being otherwise done.  There is a later authority in print that doth settle the point so as I tell you, and I do conceive it ought to be followed; and it being safer for the prisoner, my humble opinion to your Lordship is, that he ought to be present at the stating of the question.  Call the prisoner.”  The prisoner, who had withdrawn, again appearing, he said,—­“My Lord Cornwallis, my Lords the Peers, since they have withdrawn, have conceived a doubt in some matter [of law arising upon the matter] of fact in your case; and they have that tender regard of a prisoner at the bar, that they will not suffer a case to be put up in his absence, lest it should chance to prejudice him by being wrong stated.”  Accordingly the question was both put and the Judges’ answer given publicly and in his presence.

Very soon after the trial of Lord Cornwallis, the impeachment against Lord Stafford was brought to a hearing,—­that is, in the 32d of Charles II.  In that case the lord at the bar having stated a point of law, “touching the necessity of two witnesses to an overt act in case of treason,” the Lord High Steward told Lord Stafford, that “all the Judges that assist them, and are here in your Lordship’s presence and hearing, should deliver their opinions whether it be doubtful and disputable or not.”  Accordingly the Judges delivered their opinion, and each argued it (though they were all agreed) seriatim and in open court.  Another abstract point of law was also proposed from the bar, on the same trial, concerning the legal sentence in high treason; and in the same manner the Judges on reference delivered their opinion in open court; and no objection, was taken to it as anything new or irregular.[19]

In the 1st of James II. came on a remarkable trial of a peer,—­the trial of Lord Delamere.  On that occasion a question of law was stated.  There also, in conformity to the precedents and principles given on the trial of Lord Cornwallis, and the precedent in the impeachment of Lord Stafford, the then Lord High Steward took care that the opinion of the Judges should be given in open court.

Precedents grounded on principles so favorable to the fairness and equity of judicial proceedings, given in the reigns of Charles II. and James II., were not likely to be abandoned after the Revolution.  The first trial of a peer which we find after the Revolution was that of the Earl of Warwick.

In the case of the Earl of Warwick, 11 Will.  III., a question in law upon evidence was put to the Judges; the statement of the question was made in open court by the Lord High Steward, Lord Somers:—­“If there be six in company, and one of them is killed, the other five are afterwards indicted, and three are tried and found guilty of manslaughter, and upon their prayers have their clergy allowed, and the burning in the hand is respited, but not pardoned,—­whether any of the three can be a witness on the trial of the other two?”