Page:History of England (Macaulay) Vol 5.djvu/295



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.

Whatever a jurist might have thought of these arguments, they had no effect on the Commons. Indeed, violent