The
case was evidently new, and his Grace proposed to have the opinion of
the Judges upon it. The Judges in consequence offering to withdraw into
the Exchequer Chamber, Lord Falconberg "insisted that the question
concerned the privilege of the Peerage 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_.
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