age only, and conceived that _the
Judges are not concerned to make any determination in that matter; and
being such a point of privilege, certainly the inferior courts have no
right to determine it_." It was insisted, therefore, that the Lords
triers should retire with the Judges. The Lord High Steward thought
differently, and opposed this motion; but finding the other opinion
generally prevalent, he gave way, and the Lords triers retired, taking
the Judges to their consult. When the Judges returned, they delivered
their opinion in _open court_. Lord Chief-Justice Herbert spoke for
himself and the rest of the Judges. After observing on the novelty of
the case, with a temperate and becoming reserve with regard to the
rights of Parliaments, he marked out the limits of the office of the
inferior Judges on such occasions, and declared,--"_All that we, the
Judges, can do is to acquaint your Grace and the noble Lords what the
law is in the inferior courts in cases of the like nature_, and the
reason of the law in those points, and _then leave the jurisdiction of
the court to its proper judgment_." The Chief-Justice concluded his
statement of the usage below, and his observations on the difference of
the cases of a peer tried in full Parliament and by a special
commission, in this manner:--"Upon the whole matter, my Lords, whether
the Peers being judges in the one and not in the other instance alters
the case, or whether the reason of the law in inferior courts why the
jury are not permitted to separate until they have discharged
themselves of their verdict may have any influence on this case, _where
that reason seems to fail_, the prisoner being to be tried by men of
unquestionable honor, _we cannot presume so far as to make any
determination, in a case which is both new to us and of great
consequence in itself_; but think it the proper way for _us_, having
laid matters as we conceive them before your Grace and my Lords, _to
submit the jurisdiction of your own court to your own determination_."

It appears to your Committee, that the Lords, who stood against
submitting the course of their high court to the inferior Judges, and
that the Judges, who, with a legal and constitutional discretion,
declined giving any opinion in this matter, acted as became them; and
your Committee sees no reason why the Peers at this day should be less
attentive to the rights of their court with regard to an exclusive
judgment on their own proceedi