hich you knew to be illegal. Against this assumption of
arbitrary power the Commons protest; and they hope that you will now
redeem what you must feel to be an error. Your Lordships intimate a
suspicion that Oates is mad. That a man is mad may be a very good reason
for not punishing him at all. But how it can be a reason for inflicting
on him a punishment which would be illegal even if he were sane, the
Commons do not comprehend. Your Lordships think that you should not be
justified in calling a verdict corrupt which has not been legally proved
to be so. Suffer us to remind you that you have two distinct functions
to perform. You are judges; and you are legislators. When you judge,
your duty is strictly to follow the law. When you legislate, you may
properly take facts from common fame. You invert this rule. You are lax
in the wrong place, and scrupulous in the wrong place. As judges,
you break through the law for the sake of a supposed convenience. As
legislators, you will not admit any fact without such technical proof as
it is rarely possible for legislators to obtain." [401]

This reasoning was not and could not be answered. The Commons were
evidently flushed with their victory in the argument, and proud of
the appearance which Somers had made in the Painted Chamber. They
particularly charged him to see that the report which he had made of the
conference was accurately entered in the journals. The Lords very wisely
abstained from inserting in their records an account of a debate in
which they had been so signally discomfited. But, though conscious of
their fault and ashamed of it, they could not be brought to do public
penance by owning, in the preamble of the Act, that they had been guilty
of injustice. The minority was, however, strong. The resolution to
adhere was carried by only twelve votes, of which ten were proxies,
[402]

Twenty-one Peers protested. The bill dropped. Two Masters in Chancery
were sent to announce to the Commons the final resolution of the Peers.
The Commons thought this proceeding unjustifiable in substance and
uncourteous in form. They determined to remonstrate; and Somers drew
up an excellent manifesto, in which the vile name of Oates was scarcely
mentioned, and in which the Upper House was with great earnestness and
gravity exhorted to treat judicial questions judicially, and not, under
pretence of administering law, to make law, [403] The wretched man,
who had now a second time thrown th