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.  A conference 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.