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.

Whatever a jurist might have thought of these arguments, they had no effect on the Commons.  Indeed, violent as the spirit of party was in those times, it was less violent than the spirit of caste.  Whenever a dispute arose between the two Houses, many members of both forgot that they were Whigs or Tories, and remembered only that they were Patricians or Plebeians.  On this occasion nobody was louder in asserting the privileges of the representatives of the people in opposition to the encroachments of the nobility than Harley.  Duncombe was again arrested by the Serjeant at Arms, and remained in confinement till the end of the session.  Some eager men were for addressing the King to turn Lucas out of office.  This was not done; but during several days the ill humour of the Lower House showed itself by a studied discourtesy.  One of the members was wanted as a witness in a matter which the Lords were investigating.  They sent two judges with a message requesting the permission of the Commons to examine him.  At any other time the judges would have been called in immediately, and the permission would have been granted as of course.  But on this occasion the judges were kept waiting some hours at the door; and such difficulties were made about the permission that the Peers desisted from urging a request which seemed likely to be ungraciously refused.