All the precedents previous to the trial of Warren Hastings, Esquire, seem to your Committee to be uniform.  The Judges had constantly refused to give an opinion on any of the powers, privileges, or competencies of either House.  But in the present instance your Committee has found, with great concern, a further matter of innovation.  Hitherto the constant practice has been to put questions to the Judges but in the three following ways:  as, 1st, A question of pure abstract law, without reference to any case, or merely upon an A.B. case stated to them; 2dly, To the legal construction of some act of Parliament; 3dly, To report the course of proceeding in the courts below upon an abstract case.  Besides these three, your Committee knows not of a single example of any sort, during the course of any judicial proceeding at the bar of the House of Lords, whether the prosecution has been by indictment, by information from the Attorney-General, or by impeachment of the House of Commons.

In the present trial, the Judges appear to your Committee not to have given their judgment on points of law, stated as such, but to have in effect tried the cause, in the whole course of it,—­with one instance to the contrary.

The Lords have stated no question of general law, no question on the construction of an act of Parliament, no question concerning the practice of the courts below. They put the whole gross case and matter in question, with all its circumstances, to the Judges. They have, for the first time, demanded of them what particular person, paper, or document ought or ought not to be produced before them by the Managers for the Commons of Great Britain:  for instance, whether, under such an article, the Bengal Consultations of such a day, the examination of Rajah Nundcomar, and the like.  The operation of this method is in substance not only to make the Judges masters of the whole process and conduct of the trial, but through that medium to transfer to them the ultimate judgment on the cause itself and its merits.

The Judges attendant on the Court of Peers hitherto have not been supposed to know the particulars and minute circumstances of the cause, and must therefore be incompetent to determine upon those circumstances.  The evidence taken, is not, of course, that we can find, delivered to them; nor do we find that in fact any order has been made for that purpose, even supposing that the evidence could at all regularly be put before them.  They are present in court, not to hear the trial, but solely to advise in matter of law; they cannot take upon themselves to say anything about the Bengal Consultations, or to know anything of Rajah Nundcomar, of Kelleram, or of Mr. Francis, or Sir John Clavering.