These considerations had more weight with the Lords than with the Commons. Indeed one of the principal uses of the Upper House is to defend the vested rights of property in cases in which those rights are unpopular, and are attacked on grounds which to shortsighted politicians seem valid. An assembly composed of men almost all of whom have inherited opulence, and who are not under the necessity of paying court to constituent bodies, will not easily be hurried by passion or seduced by sophistry into robbery. As soon as the bill for punishing Duncombe had been read at the table of the Peers, it became clear that there would be a sharp contest. Three great Tory noblemen, Rochester, Nottingham and Leeds, headed the opposition; and they were joined by some who did not ordinarily act with them. At an early stage of the proceedings a new and perplexing question was raised. How did it appear that the facts set forth in the preamble were true, that Duncombe had committed the frauds for which it was proposed to punish him in so extraordinary a manner? In the House of Commons, he had been taken by surprise; he had made admissions of which he had not foreseen the consequences; and he had then been so much disconcerted by the severe manner in which he had been interrogated that he had at length avowed everything. But he had now had time to prepare himself; he had been furnished with advice by counsel; and, when he was placed at the bar of the Peers, he refused to criminate himself and defied his persecutors to prove him guilty. He was sent back to the Tower. The Lords acquainted the Commons with the difficulty which had arisen. Aconference was held in the Painted Chamber; and there Hartington, who appeared for the Commons, declared that he was authorized, by those who had sent him, to assure the Lords that Duncombe had, in his place in Parliament, owned the misdeeds which he now challenged his accusers to bring home to him. The Lords, however, rightly thought that it would be a strange and a dangerous thing to receive a declaration of the House of Commons in its collective character as conclusive evidence of the fact that a man had committed a crime. The House of Commons was under none of those restraints which were thought necessary in ordinary cases to protect innocent defendants against false witnesses. The House of Commons could not be sworn, could not be cross-examined, could not be indicted, imprisoned, pilloried, mutilated, for perjury.
Indeed the testimony of the House of Commons in its collective character was of less value than the uncontradicted testimony of a single member. For it was only the testimony of the majority of the House. There might be a large respectable minority whose recollections might materially differ from the recollections of the majority. This indeed was actually the case. For there had been a dispute among those who had heard Duncombe's confession as to the precise extent of what he had confessed; and there had been a division; and the statement which the Upper House was expected to receive as decisive on the point of fact had been at last carried only by ninety votes to sixty-eight. It should seem therefore that, whatever moral conviction the Lords might feel of Duncombe's guilt, they were bound, as righteous judges, to absolve him.
After much animated debate, they divided; and the bill was lost by forty-eight votes to forty-seven. It was proposed by some of the minority that proxies should be called; but this scandalous proposition was strenuously resisted; and the House, to its great honour, resolved that on questions which were substantially judicial, though they might be in form legislative, no peer who was absent should be allowed to have a voice.
Many of the Whig Lords protested. Among them were Orford and Wharton. It is to be lamented that Burnet, and the excellent Hough, who was now Bishop of Oxford, should have been impelled by party spirit to record their dissent from a decision which all sensible and candid men will now pronounce to have been just and salutary. Somers was present; but his name is not attached to the protest which was subscribed by his brethren of the junto. We may therefore not unreasonably infer that, on this as on many other occasions, that wise and virtuous statesman disapproved of the violence of his friends.
In rejecting the bill, the Lords had only exercised their indisputable right. But they immediately proceeded to take a step of which the legality was not equally clear. Rochester moved that Duncombe should be set at liberty. The motion was carried; a warrant for the discharge of the prisoner was sent to the Tower, and was obeyed without hesitation by Lord Lucas, who was Lieutenant of that fortress. As soon as this was known, the anger of the Commons broke forth with violence. It was by their order that the upstart Duncombe had been put in ward. He was their prisoner; and it was monstrous insolence in the Peers to release him. The Peers defended what they had done by arguments which must be allowed to have been ingenious, if not satisfactory. It was quite true that Duncombe had originally been committed to the Tower by the Commons. But, it was said, the Commons, by sending a penal bill against him to the Lords, did, by necessary implication, send him also to the Lords. For it was plainly impossible for the Lords to pass the bill without hearing what he had to say against it. The Commons had felt this, and had not complained when he had, without their consent, been brought from his place of confinement, and set at the bar of the Peers. From that moment he was the prisoner of the Peers. He had been taken back from the bar to the Tower, not by virtue of the Speaker's warrant, of which the force was spent, but by virtue of their order which had remanded him. They, therefore, might with perfect propriety discharge him.