did in open court declare that he would then propose some questions to the Judges in that place, and hoped to receive their answer openly, according to the approved good customs of that and of other courts, the Lords instantly put a stop to the further proceeding by an immediate adjournment to the Chamber of Parliament.  Upon this adjournment, we find by the Lords’ Journals, that the House, on being resumed, ordered, that “it should resolve itself into a Committee of the whole House, on Monday next, to take into consideration what is the proper manner of putting questions by the Lords to the Judges, and of their answering the same, in judicial proceedings.”  The House did thereon resolve itself into a committee, from which the Earl of Galloway, on the 29th of the same month, reported as follows:—­“That the House has, in the trial of Warren Hastings, Esquire, proceeded in a regular course, in the manner of propounding their questions to the Judges in the Chamber of Parliament, and in receiving their answers to them in the same place.”  The resolution was agreed to by the Lords; but the protest as below[31] was entered thereupon, and supported by strong arguments.

Your Committee remark, that this resolution states only, that the House had proceeded, in this secret manner of propounding questions to the Judges and of receiving their answers, during the trial, and on matters of debate between the parties, “in a regular course.”  It does not assert that another course would not have been as regular.  It does not state either judicial convenience, principle, or body of precedents for that regular course.  No such body of precedents appear on the Journal, that we could discover.  Seven-and-twenty, at least, in a regular series, are directly contrary to this regular course.  Since the era of the 29th of June, 1789, no one question has been admitted to go publicly to the Judges.

This determined and systematic privacy was the more alarming to your Committee, because the questions did not (except in that case) originate from the Lords for the direction of their own conscience.  These questions, in some material instances, were not made or allowed by the parties at the bar, nor settled in open court, but differed materially from what your Managers contended was the true state of the question, as put and argued by them.  They were such as the Lords thought proper to state for them.  Strong remonstrances produced some alteration in this particular; but even after these remonstrances, several questions were made on statements which the Managers never made nor admitted.

Your Committee does not know of any precedent before this, in which the Peers, on a proposal of the Commons, or of a less weighty person before their court, to have the cases publicly referred to the Judges, and their arguments and resolutions delivered in their presence, absolutely refused.  The very few precedents of such private reference on trials have been made, as we have observed already, sub silentio, and without any observation from the parties.  In the precedents we produce, the determination is accompanied with its reasons, and the publicity is considered as the clear, undoubted right of the parties.