This present case is a proceeding in full Parliament,
and not like the case under the commission in the time of James II., and
still more evidently out of the province of Judges in the inferior
courts.
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.
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