Star. — London, England, 1811-06-20 00:00:00

that a large military force, trot that they broke the door (for I care not how they entered the house). but that they did enter it in military array, and seiz ed and carried the plaintiff, not as the law of Eng land takes a man, but as a prisoner of war, taken by a foreign enemy. I should be sorry if I induced any man to suppose that 1 meant to excite in kim any limpression against that affection he ought to possess towards those brave men who fight our battles abroad, or to set up an opposition between the civil and military states. But in every civil state, there is an extreme jealousy of soldiers ; they have different du ties to perform from other citizens, and are under a different command ; they are altogether different creatures from civil citizens : I do not say they have not the same civil rights ; Gon forbid ! but there is a very wide distinction between the two classes of men ; and what I complain of is, that the former, and not the latter, were resorted to enforce this pro cess. As to the circumstance of the door, I do not complain of its being broken : it was shut ; and Sir Francis Burdett said (at least by his acts,) " I will not open it." He had a right to say so ; he was not punishable for doing so. '1 ken the Serjeant at Arms had an equal tight to break the door ; bet what right had he to enter with above 200 soldiers, and to seize my client, and convey him to the Tower by means of those soldiers ? It may be attempted by the other side to allude to certain persons out of doors ; and to pre tend that this force wAs necessary in the inflamed state of the pablic mind. Whether this was the case, I know not : with that Ihave nothing to do. Because the military is necessary to keep the public peace, it does not follow that it is necessary to make me a mi litary prisoner. I do not wonder that my client sup posed it right to keep his door shut, when the most industrious search could not find a precedent that the warrant had ever authorized the breaking open of a door in its execution ; when the highest officers of the State, and the most experienced Members of the House of C. morons, could not ascertain this ; and when the excellent advice of the Attorney-General himself, could only reason by analogy on the subject. Whether the warrant is illegal or legal, my house is my sanctuary ; acid if I am wrong in keeping my door shut, surey it is a venial error, and one merely in judgment. I agree that it was necessary to force Sir Francis Burdett's house ; but I deny the right to do it by the assistance of the military, and then to carry him to prison in the manner in which Sir F. Burdett was carried. Whether the other side will shew applications to this or the other peace-officers, I know not ; if so, I suppose they will be called. But this I know, that in the judgment of many of those persons no military force was necessary for the assistance of the Serjeant at Arms in the execution of his process. If, then, this military force was excessive and impro per (for you must always recollect, that when a power is so extremely great, so supreme, as that of the House of Commons, its acts are justifiable by nothing but necessity, and it becomes those who are charged LAW INTEL LICENCI. COURT OF KING'S BENCH, JUNE IS Trials et ler before the whole Court, Le rd Ztteissoitoolia, C. J.; Sirs Blass GROSZ Simon Lt BLANC, andlents Bairsay, Knights, Itt:does. TT V. COLMAN. The folloving=Etlemen appeared, and were sworn ors the Special lull summoned to try this cause : Samuel Abbott, Eng. Henry Searden, Esq. George Dance, Esq. George sikoe, Esq. James Smith, Esq. Samuel Bishop, Esq. James Walker, Esq. Edmund Peppy., En. Million Parkinson, Esq. William Riggs, Esq. Richard Chair, Esq. William-Inwood, Eaq. Mr. SHEPHERD opened the pleadings by stating, that this was an action brought against the Serjeant at Arms of the House of Commons for trespass, as sault, and false imprisonment, and for breaking open the plaintiff's house, to which the defendant pleaded ste t guilty, and also a special justification, in sub stance that there was a Parliament held at the time and previous to the commission of the supposed tres passes ; that the defendant was Serjeant at Arms of the House of Commons, and that the plaintiff was a Member o f that Parliament—that the House of Com mons resolved that a certain letter published was a libel upon the House; and that the plaintiff having admitted that he was the author of the publication, was guilty of a gross breach of the privileges of the House ; and that the House therefore ordered, that be should be committed to the Tower of London, and that the Speaker should make out his warrant accordingly—that the Speaker accordingly made out his warrant to the Serjeant at Arms, requiring him to take the plaintiff into custody, and to deliver him. over to the custody of the Lieutenant and Constable of the Tower to receive the plaintiff as prisoner— that the first warrant was delivered to the defendant, who went w the plaintiff's house, where the plaintiff was, for the purpose of arresting and delivering him into the custody of the Constable of the Tower—that the outer door of the house was shut ; that the defendant gave notice of the cause of his coming, and required the door to be opened—that the door was not opened --whereupon, with such force as was necessary for the occasion, he broke into the house, and took the plaintiff, and conveyed him to the Tower, and there delivered him to the Constable of the Tower—and that the defendant did all this under the warrant. To this justification the plaintiff replied, that the defendant wrongfully and injuriously, with force of arms, and with a large military force of the King, armed with dangerous and offensive weapons, which was used by the defendant in and for the execution of the Speaker's warrant, and which military force was improper, ex cessive, and unnecessary for the purpose, and in an unreasonable manner, and more violence than was necessary or proper in and for the execution of that warrant, to the great terror and alarm of the plain tiff, broke open and entered his messuage, &c. and assaulted and laid hands upon him, and forced him of Lon( issued their warrant to take Sir Francis Badett. —Whether they had a right to do so, is a questibw of law; how, and in what manner it was done, is a mixed question of law and fact ; involving in one respect a question of law again, whether they had a right to break open Sir Francis Burdett's door un der the Speaker's warrant ? That it is unnecessary to break open a door for the execution of a warrant, if the door is not refused to be opened, is beyond all' doubt ; but the present plea states, that the Officer demanded admittance, and could net get it. He had therefore a right to break open the door, provided the question of law was decided, that a door might be broken open for the service of the Speaker's war rant. But the mode in which the door in question was broken, (I do not mean uhether with a kitchen poker or with what other instrument), and the entry made into Sir Francis Burdett's house for the purpose of his caption, together with the manner of his being 'taken, involves a combined question of law and most important fact. Mr. Colman has stated, that having this warrant, he broke open the door and entered the House. The answer is, with a military force, impro per, unnecessary, and excessive. The rejoinder is, with a military force, neither improper, unnecessary, nor excessive : and that is the real and important point you have to try. I am raising no point of !awl whether the House of Commons have the right to ' commit—l am not discussing any resolution of theirs as to privilege; but I am only asking what is the ! nature of their process, and whether it was justly exe., crated ?—And firstly, as to the nature of the process, I scarcely know what is its nature ; for no such process spoken of in any ancient books : and from every thing' I have seen, no such process existed ; for when the privileges of the House of Commons were first netted and vindicated, the House scarcely knew by what process to do it. It was stated by them at one time that the Speaker's mace was sufficient ; and at another, that the verbal order of the Serjeant at Arms was enough to execute tke mighty power claimed by the House in those days. Such a thing as a Speaker's warrant was not then to be found. I am alike igno rant as to the nature of the office of Serjeant at Arms .to the House of Commons, nor do I find him any where spoken of. We know who are the executors of Common Law processes ; for, in our collections of Reports, we find their characters recognized by the Judges. The nature of their offices we can under stand ; but the nature of that of Serjeant at Arms to the House of Commons, we can no where find. We know that there is a Serjeant at Arms appointed by the Crown to attend the Lord Chancellor in his Court, and that if a man does not come into that Court on a commission of rebellion, the Serjeant at Arms is appointed to execute the process of the Court. But let us consider how, in the execution of the Speaker's warrant, the Serjeant at Arms of the House of Com; mons has a right to call upon his Majesty's subjects to assist him against any resistance which may be made to its execution. In the office of Sheriff, we collect that the question is, whether the Serjeant at 'Arms had a right to enter the plaintiff's house in the mode and array in which he did, and whether what he did was justifiable by law, and necessary? I entreat you not to be led away by what other people did, hut to confine your attention to what was done to Sir Francis Burdett. It will not be of weight in the scale against him that the m i nds of the people were irri tated. It is nothing to Sir Francis Burdett that others have done wrong. The question is, whether the Ser jeant at Arms exceeded the power of the law when he and the military broke into Sir F. Burdett's house r' The Speaker's warrant, dated the 6.h of April, 1810, was admitted on the face of the pleadings. John Bon was called, and examined by Mr. Ser jeant Runnington. He was porter to Sir Francis Bur dett in April, 1810; he recollected Mr. Calman's calling on Friday, the 6th of April, in the evening, at ten o'clock ; he was not admitted, for 3'r Francis Burdett was not at home. He called aga . n the next day, and was admitted ; he was then in the house half an hour, but the witness did not know whether he saw Sir Francis. He called again on Saturday even ing, between four and five o'clock, with another gen tleman. Sir Francis was not at home. On Sunday, the Bth, the door was fastened by a chain, and the witness did not recollect Mr. Colman's calling on that day. The door was barricad 'Jed the whole of Sunday. On Monday, the 9th, Mr. Colman was in the lionse ; the witness saw him about eleven coming down stairs; but did not see him get into the house—there were 150 soldiers with him, fifty on the stairs ; they were armed with muskets, but the witness could not say as to bayonets. Mr. Colman and another gentleman from the House of Commons, brought Sir Francis down stairs, each having hold of an arm. They him down stairs, and through the hall ; there were nearly 100 soldiers in the hall besides those on the stairs : there were very few constables in the house; but agood many men in plain clothes, with staves, outside of the house. The brother of Sir Francis was there the whole time. He was taken away in his own carriage. There was no resistance made except fastening the door. Upon cross-examination by the ATTORNEY-GENE. RAI., the witness knew Mr. Colman was at his mas ter's house on Friday morning at about nine or ten, but did not see Sir Francis; he came again at five, when he was handed over to the butler to be intro. diced to Sir Francis. The witness was mistaken in what he said before. He supposed the butler sheaved him in to Sir Francis. Mr. Colman came again at eight on the same evening, and staid a little while in the room, where the witness supposed Sir Francis to be. He did not know that Sir Francis was at home : the butler might have let him into the room, and then have gone to see. Late in the evening of Sa turday, Mr. Colman and his friend were refused ad mittance. This witness rather prevaricated on his cross-examination ; but it at last came out ;hat Mr. Jones Burdett gave the orders as to the chaining of the door. Sir Francis's presence. Mr. O'Connor came to proceed to the 'rower don, &c. ..n answer to this, and to a similar I Gplication to another similar plea, the defendant rejoined, that he did not commit the several supposed trespasses, or any of them, with such military force as was improper, excessive, or unnecessary for the execution of the execution of the warrant, nor in an unreasonable manner, and more violently than was necessary for the execution of that warrant; on which there were issues joined, which• the Jury were to try. Mr. Serjeant SHEPHERD...`" May it please your Lordship—Gentlemen -of the Jury—lt now becomes my duty to address you on behalf of the plaintiff. You have heard that this is an action of trespass brought by Sir Francis Burdett, Barr. who is, as you all know, a Member of the House of Commons, and a man of considerable fortune, against a gentleman of great respectability, who holds the situation of one of the King's Serjeants at Arms, attending that House, and who is, from that rank, entitled to great consideration. In this cause, Mr. Colman is to he considered as little more than the officer of that House, a considerable part of the question before you being un doubtedly between Sir Francis Burdett and the House of Commons. I beg I may not be misunderstood here; I do not mean to say, that Mr. Colman may not be guilty of improprieties in the execution of his office, for which he alone is responsible; but in this case, it is impossible not to see that the authorisers of Mr. Col man are the real parties in this cause. The cause, gentlemen, branches itself out into a great variety of questions, many of which are not proper for your consideration ; for the constitution of this country, much as it values, and highly as it ought to value, the province of Juries, has wisely made a distinction between certain questions of law, which are purely for the decision of Judges learned in that law, and questions of fact, which must and will receive the opi nion of Juries—at the same time there are certain Tees tions, in which the law and the fact are so mixed and blended, that it is impossible to separate them, and in these the Judges, as far as the law is concerned, have it in charge to state their opinion of that law to the Jury. In this record there are a great variety of questions, some of which (whether they had been de cided before or not) I should not have presented to your decision. Ido not withdraw them from your consideration because they have been discussed and decided in another cause, but simply because they are not questions which fall within the scope of your con .. ,11.. - s pa on Monday, through Mr. Coutts's house. There was no riot in the street till the soldiers came and hindered every body from passing ; boys and old women buz z ted before that; there might be old men : the mob was not very considerable; it was a vtry public street, and was frequently crowded ; there was nothing ex traordinary ; it was a customary thing to stop car riages, and would most likely happen to the Attcr ney-General now. The mob threw dirt at those s ho refused to take off their hats. The same thing oe• curred at elections, which the riot in question resem bled as much as could be. Sir Francis Burdett during the time never appeared at the window. The witness saw Mr. O'Connor accompany a gentleman down stairs, and shew him oat very politely on Saturday. That gentleman might have arrested Sir Francis Bur dett, if he had pleased.--Q. I.thought you said Mr. O'Connor was not in the house till Monday Not to sleep. The witness really believed Sir Fran cis Burdett might have been carried peaceably tolhe Tower then and at any other time. Upon his re-examination this witness said that the military first appeared on Friday, inostly horse-sol diers, riding over every body Lord ELLIMBOROUGH—" Did you see any body rode over I" Witness. it I saw several people knock ed down, my Lord." William Lancelle called, and examined by Mr. HOLROYD. He was French .cook to Mr. Coutts, Sir Francis Burdett's father-in-law. On Monday, the 9th, at half-past ten in the morning, he opened the area-door to let out a servant-maid, when he saw a great many men get over the iron railing in front of Sir Francis Burdett's house. A man in plain clothes was trying to break the door of the area ; he then pulled the window and broke the ircn bar of the window-shutter. and got in at that window, he then went to the passage-door, unbarred it, and let the sol diers in. There were a great many soldiers in the house, and many in plain clothes; both sorts went up stairs ; the majority of the soldiers remained in the porter's-hall, forming a row on each side, through which Sir Francis Burdett passed. He was so fright ed, he did not observe whether their bayonets were fixed. This witness was et oss-examined by Mr. GAR. now, but without much effect. Jones Burdett, Esq. called, and examined by Mr. CLIFFORD. He is the brother of Sir Francis Burdett, and was in the house from Friday till the arrest. He did • know where Mr. O'Conftor was now. On Fri. know that by Common as well as Statute Law, he has a right to call on all within his county to aid in the apprehension of felons and the suppression of riots, or to assist in the execution of any process to which resistance is made. There are also certain other officers (as constables and the like) who have the same right to call upon me or any one of you to assist them in the discharge of their duty. But the right of the Serjcant at Arms to call upon all persons to aid and assist him in executing the process of the House of Commons, I protest I have not yet found. If he has this right, in whose name does he claim it ? The House of Commons would reject the King's; but in what name soever it may be, if he has this right, see to what a situation we may be reduced. Every in dividual is placed in a predicament, in which he is pu nishable either for aiding the Houseof Commons orfor not aiding them. If he refuses, the House of Commons' may hold that refusal a breach of privilege, just asmany other things of the same nature have been held breach of privilege. They might just as well commit me for such refusal, as they have voted Judges guilty of breach of privilege : Judge Pemberton, for instance, for giving a sound judgment upon a legal record be fore him, and such as, I am convinced, would receive the same judgment from the present enlightened Judges of the Court. They might just as well com mit me for such refusal, as vote me guilty of breach of privilege because I had put my hand to a writ of error in the Lords, which they had declared I had no right to bring ; as they did commit Peck and Pem berton, Serjeants, for appealing to the Lords from the Chancellor. If a man assists the Serjeant at Arms, then he may render himself amenable at common law, and indictable in the King's Courts. That the House of Lords have jurisdiction in the Commons no man will maintain ; and yet in 1697, one Duncan, a Member of the latter House, being accused of forg ling indorsements on Exchequer Bills, and being com miued by, and ultimately expelled from, that House, a Bill of pains and penalties was brought against him, which the Lords threw out, or ' (in other words) ac quitted him, ordered his release, and sent an officer to release him. I would then put a case which did not follow this, but which very readily might have followed it : The House of Commons ordered the Serjeant at Arms to take him up again ; and suppose the officers of the two Houses had accosted me at the Member's door, and each had called upon me to aid the - of hi bich should I with their execution to take care that they do not step one tittle beyond that necessity), if this military force was not justified by absolute necessity, then is the plaintiff entitled to your verdict. The House of Commons are only one Parliament : I know that in the whole Parliament, that superior power, which must be vested some where, is wisely placed ; but I 'have shewn that, the claims of one House of Parlia ment upon the subject which gives rise to this case, are capable of being abused ; and therefore let those who claim their privilege take care how they proceed in the assertion of that privilege. .All power in the Lands of infirm man is liable to abuse; and looking through Parliamentary history, we find many resolu tions, of which we can neither justify the measure, nor the mode of carrying that measure into effect. In 1621, two officers of justice were, for arresting the servant of a Member of the House of Commons, commanded to ride back to back upon a bare horse to the 'rower, 13belled, for arresting the servant of a Member of Parliament." At another time, the House summoned a gentleman before them for preach ing doctrines, from which they dissented ; and part of the sentence they inflicted upon him was, that Tie should go back to his pulpit, and there make a pub lic recantation. Suppose the Serjeant at Arms had been entrusted to convey him thither, and had called upon the man's parishioners to assist him in forcing the order of the House, would they have been bound to obey him ? I mention all this to get rid of the observation, as to the supremity of the House of Commons, and to prove the abuses of its power. Sir Francis Burdett stands up to vindicate, not his own wrongs alone, but those to. which all subjects are equally liable. If the power of the House of Com mons is to be carried to the extent of the present case, then is not the mace, that impotent instrument, which Burke calls it, but a massive iron sceptre, calculated to crush the liberties of the people. If the Serjeant at Arms (whether acting legally or not) has, with an improper and_excessive force, as saulted and imprisoned my client, then is he a tres passer ab inigio ; and the plaintiff must have your verdict generally for the whole trespass. Ido not say, that in all cases of excess damages must be given : a distinction may be taken between him who trespasses with no colour of right, and him who only goes beyond his duty. It is for your consideration, whether the House of Commons (for Mr. Colman is merely the - tal defendant) h, 'it to exe- him in . _execution . As process—whin Jou sideration. Although I feel the greatest respect forly . nomin. .ietendant, save a right to ..., lid not 6. the decisions of this Court, yet I know that any sub. obey ? If not the officer of the Lords, I should have cute a power of this sort in this manner. It will be day evening by first saw Mr. Colman: the substance ;ect of this realm who is dissatisfied with the decision been committed by the Commons : so, what is to be- important to find a verdict for the plaintiff upon the of the conversation between him and Sir Francis was, come of me ? I should be placed in a most extraor- general issue, even if the defendant should be entitled 1 that he came to arrest his brother ; and the witness sion by a writ of error, and have it either confirmed of a question of law, has a right to revive that deci- dinary situation ; and like Mercuac, between the to the verdict upon the excess. If you shall be of ! thought he said he had been reprimanded by the or set aside elsewhere ; and I know I shall not be !louses of- the Montagues and the Capulets, should opinion that the justification is not sufficient it will Speaker for not doing it before—he hoped Sir Francis thought guilty of disrespect in supposing a judgment P robably have fallen a victim to their dissentions, ex- be competent to the plaintiff to ask for the judgment ' would now go ; Sir Francis asked whether he had of this Court not incontrovertible, till it has been call - claiming as I died, " a plague of both your houses." of the Court at last, even though a verdict should be i any body with him ? he replied, only another Gentle ed so by the decision of the highest Court of Judica - I shall new quote to you the words of a very consi- given for the defendant as to the excess. It will even ; man. Sir Francis said he thought the warrant illegal , tare in the nation. I was anxious to state this , that derable man, and a great politician certainly ; one, then be competent to me to apply to your Lordships, i and would not obey it. The witness did not recollect it might not be supposed I was pressed by the weight too, who was not apt to set his face against the power or, if that application should be refused, to rediscuss ' whether Sir Francis said he would go at a future time. of the House of Commons. I mean Mr. Burke.— the question by writ of error." Mr. Colman endeavoured to prevail on Sir Francis of any decision in any other cause than that immedi- Speaking of the nature of that House, he says they Lord ELLENBOROtIGII here interrupted the Learned ito go, without effect; and at last he went away much ately before us. Sir Francis Burdett, Gentlemen, in are constituted for the enforcement of order, with no Serjeant, to say that that was a matter of course. 1 dissatisfied. That very evening the witness carried a this cause, complains that Mr. Colman broke and entered his house with a militar force and assaulted other instrument but a mace, and no other officer but Mr. Serjeant SHEPHERD.—" My reason for men- i letter to the Speaker, as the Serjeant-at-Arms was in and took his persony , the Serjeant at Arms. I mention this as an opinion tinning it was, that it was material for the Jury's con- I formed. The door of communication between Sir al London. Mr. person, committed it to the Towerolman answers to this, that a Par of the powers of the House of Commons, which falls sideration. I did wish that I had not been the person 'Francis Burdett's house and Mr. Coutts's was accus li talent being held in the Commons' House , they in with mine, that they have no right to call upon selected to lead this cause ; not that I was oppressed ! the public to assist their process. I see the Speaker's by the weight -of the great power of the House of i toured to remain open. The witness could not speak to the appearan. e of the rioters, as neither he nor his came to a resolution that the plaintiff had been guilty warrant calls upon all Mayors, Bailiffs, Sheriffs, &c. Commons, but because the case being one of impor. : of publisking a libel reflecting on the privileges of to assist in the caption of Sir Francis Burdett. If, tance, I was anxious that it should be entrusted to a I and huzzaing : before the brother once went to the window. They heard shouting • military came, it was just as the House, of which he was a Member, and therefore I therefore, the Serjeant at Arms wants to execute the gentleman of greater ability and capacity than myself , ! at an election. When Sir Francis Burdett was taken, , ordered his committal to the Tower. Whether the warrant, and finds he cannot do it without, let him for though there is no man who would advocate his ' a b o dy of men came up stairs to the drawing room House of Commons had a right to order this corn call upon the known o ffi cers of the law to assist him, client'scause more honestly, there are many who would 1 where the Baronet was. Sir Francis asked Mr. Colman mina', is a question of law :—the question of fact for your consideration is, How was that order of the Sheriffs, the Mayors, and the Bailiffs, and let do it more ably. When the defendant's case has been for his authority. He she ll e d h im the warr an t f r om t h e them call out the pew contitatur, and then the process opened. I shall . have an opportunity to make some 1 Speaker; and said, he hoped Sir Francis would go, for the House of Commons executed ?—The House Will be legally executed. In this case I complain farther 0 ions. In the m ean ..............xbservat m of Commons, through the medium of their Speaker, wikl rf• be hada lar military force to take him in case he r ____------•