Star. — London, England, 1811-02-09 00:00:00

. . . LAW INFELLIGAKCE. had cogniunct of it. But rem supOsing that it were --- a statute law, which superseded the Common Law, COURT OF KING'S 'BENCH, FEB. I. as the Admiralty Law did ; then, too, would • the Court be bound to judge of t he boundaries of BURDETT v. aattoer. that law, jest as it was now required to judge This demurrer was called oar for argument. what went beyond those of the Admiralty law. He Mr. HOLROYD stated, that this was an action at should make only one more quotation from Ltird Hale, law brought by Sir Francis Burdett, Bart. against p. 26, where it was said, that the Law could not t he Right Hon. the Speaker of the House of Corn- be altered but by Act of Parliament ; and that the mons ; and the declaration charged the defendant decisions of Judges were not to be looked upon as mak with a trespass and assault, by breaking into the ing out, as only expounding the laws. Just so, any plaintiff's house on the 6th day of April, 1810, and matter which had been decided by one house of Par obliging him to go to his Majesty's Tower of Lon- liament, would have the effect of great weight in ex. don. There were other formai counts for false im- pounding the law ; but like the decisions of Co prisonment. The defendant's first plea was not guilty, of Justice, could only throw fresh lights oh the his second stated, as to breaking the plaintiff's outer. jest to be taken into after consideration. No resolu door and window, and as to a ll t h e trespasses i n the first tions of either the Lords or the Commons could make count, that at the time thereof the Session of Parlia- that a legal privilege which was not one : that could silent was holding at Westminster of the Commons' be done only by an act of the whole Parliament, House, of which the defendant was a Member and and this was always considered, whenever any Speaker, the plaintiff being also a Member of that question came before Parliament, whether privilege House; that the plaintiff and the defendant so being were claimable or not. These authorities of MEd Members of the said H o u s e, t he H ous e res olved that Hale, unrequired as they, perhaps, were, the Learned a letter signed " Francis Burdett," and a paper en- Counsel had cited, because it had been said that their titled " Argument," published in Cobbett's Regis- Lordships could not keow what the privilege of Pat ter of the `24 111 of March preceding, which the plain- liament was. The Courts of Law had always disre. tiff admitted to be of his writing, were a libel on the garded the resolutions of either House of Parliament rights of the House, and a high breach of its privi- resolving that to be, privilege which the law said was ieges, and ordered that the plaintiff for that his great not. He next cited Harris's case in 1681, in which offence be committed to the Tower ; that thereupon it was resolved by the Lords and Commons, that his the defendant did, for the execution of the said order imprisonment was illegal, and - that for an inferior issue his warrant to the Serjeant at Arms of the said Court to proceed against him was a high breach of House, to whom such execution belonged, requi- privilege. His plea to the prosecution was impeach ring the said Serjeant to take the body of the plain. ment in Parliament, which plea was over-ruled after tiff and deliver hint to the Lieutenant of the Tower, argument; and he was ordered to answer over, and w ho should keep . him during the pleasure of the was afterwards convicted and executed. The Leap- House; that by virtue of this warrant, the Serjeant ed Counsel next cited an opinion of Lord Coke when went to the messuage of the plaintiff, and required Speaker of the House of Commons, which would be to be admitted; but the outer door of the said messuage found in a note of a judgment by Orlando Bridgman, being fastened against him, he broke the window- Chief Justice, in the case of Benyon v. Evelyn, printed shutters and the said door, and conveyed the plain- by Mr. Hargrave, but not yet published. In a ques. tiff to the Tower, where he was imprisoned actor- Lion whether one Fitzherbert, a Member of the House, dingle. There was another plea, containing a jus- was not entitled to privilege, Lord Coke desired t, tification to the assault and imprisonment mentioned be heard to inform the House, that - their first inquiry in the first count ; and to each of these pleas the plain- ought to be, whether their law be good ; for if they tiff had demurred—to which demurrer there was a made their writ. unwarrantably, the Lord Keeper rejoinder in demurrer. In support of this demurrer would and must refuse it. There was an earlier de. the Learned Counsel was to argue for the plaintiff. cision of the Lord Chancellor, touching the privileges As it was intimated by Lord Coke in his 4 Inst. 15. of the House of Commons, w hich would be found in and 50, that the High Court of Parliament subsistit Hatsell's Precedents, vol. i. p. 96. In 1584, a mo tentueudieeparliamenli, and that the privileges of Pita tion for privilege was made by a Member served with liament are indefinite, it became necessary, in this a subpana in chancery, upon which it was ordered, case, to ascertain whether the Court had power to that certain Members .should repair in the name of decide upon those privileges, and to what extent, the whole House, to the Court of Chancery, and re before there was any occasion to enquire what that quire the privilege of exemption from that process, decision ought to be. It would be very extraordi- and the discharge of their Member; upon which nary that these privileges should be thus indefinite, if the Lord Chancellor told them, that he thought the by the word indefinite was meant unascertained. It House had no such privilege ; neither would he allow might be said that this uncertainty was necessary ; of any precedents which the House might produce but the prerogatives of the King were all defined and in that behalf, unless they could also prove, that the known, and were not for that reason the less secure ; same had been ratified by the precedents in Chancery. so the rights and liberties of the people were all The mistake that the Judges could not meddle with defined and known : but, instead of being insecure the privileges of Parliament, had arisen from Lord on that account, their certainty was the very reason Coke's conclusion in Thorpe's case. Lord C. J. of their security. The same might be said of the Bridgman accounted for -this. Prior to that case, per et consuetude parliamenti. If they were indefinite, there was a record cited in Prynn's animadversions, they must be nothing—for it was one of the pro- p. 20, which was an original writ of attachment of 9 perties of law to be 'definite. Every subject was bound Edward 11. directed to the Prior of Mahon, cam to know the prerogative of the Crown, and the privi. plaining of a contempt in restraining the horses of lege of Parliament—for if he did not know them, he, Walter le Flemmyng, a Member of Parliament, as might commit a breach of them which would in- he was returning to York from his parliamentary duce punishment. Could it be said then, that the duty. Upon this Writ there was no judgment ; Judges had no cognizance of what every subject in but it served to shew the fact of an action in the the kingdom was bound to take cognizance ? With King's Bench for a trespass complained of as a breach respect to the question, whether a common law judge of privilege ; and this privilege claimed, not as be cotsid take cognizance of the privilege of Parliament, longing to one House, but to the whole Parliament, the Learned Counsel quoted 4 Inst. 50, where Lord di p its e e t es , Countes, Barones, et alios tam Clericos Coke observes, that "To say the truth, the laws and quam Laicos." 1 Hatsell, 12. This union of privi customs of Parliament arc better to he learned out of lege would be observed in other instances. It might the rolls of Parliament, and other records, and by be urged, that an action brought in the inferior Courts precedents and continual experience, than can be ex- touching a privilege of the Commons House, would pressed by any one man's pen." He tells us, that it be in danger of referring that privilege to the deci is of importance to all persons to know these laws, sion of the Lords' House, by writ of error; but this and a fortiori to the Judges. He tells us, moreover, was one joint privilege of the whole Parliament , so where they are to be learnt ; and to those sources , that the Commons could be in no such danger, as the Learned Counsel should go to collect these laws, long as the Lords were deciding on a common ante " ab omnibus querenda, a multis ignorata, a paucis rest. Besides, Lord Hale, in the last chapter of his cognita." He was glad the subject came to be dis- Treatise on the Jurisdiction of the Lords, considers cussed in this Court, because it was a matter of great their House as not entirely the dernier resort ;it is so, importance, and one upon which the public mind was as much as no further appeal can be made as a mat ,nterested. There had been many misconceptions, ter of right; but there were instances in which the too, on the subject, which he hoped would be set whole matter decided by the Lords had been reversed tight from the Bench, upon solid and satisfactory tea- by Act of Parliament, and this measure would espe sons. He had no hope of success in his case, except cially be resorted to, when a privilege had been wres trom addressing himself to the reason of the Court ; ted from the House of Commons, which the nation and he should, therefore, upon precedents and audio- I thought they ought to have. There was a statute of rities, argue it as a question of law. He begged to 111 Richard 11. (3 Rolls of Parl. 244) allowing to bring to the recollection of the Court, what Lord the whole parliament the liberty of debate and action, Hale in his History of the Common Law (p. 22), confined to what was done in Parliament. The Learn. bad said upon the subject of the lex et consuetu o parlia- ed Counsel then adverted to Larke's case, in the Bth menti ; he took that law, not to be a law opposed to Henry VI. (1 Hatsell, 18.) which was the case of a the common law, but a part of the common law in its servant to Sir Wm. Mildred, who was arrested by full and extended sense. The Parliamentary Law process of execution from the Court of Common was therefore a law knowable by the Court, who were Pleas, on the day before the summoning of Parlia the Judges of the law of the land. It was part of ment, for i 6208 6s. Bd. damages, and a fine to the the lex terra, and therefore sot only fit to be known King, for a trespass vi et armir. The House of Corn to the Court, but one which the Court was bound to mons, therefore, petitioned the King and Lords for know. This law had, it was true, been sometimes the release of Larke, upon the ground that he was contrasted with the common law ; but, then the latter the servant of a Member of that House, and as such term was used in its more narrow sense, as a law not entitled to the privilege of freedom from arrest, ex confined to one particular body, but applicable to the cept for treason, felony, or breach of the peace. Upon whole ; aid as such it might certainly be opposed to this Larke was ordered to be liberated till the end of the he prerogative, the lex mertatoria, tholaw of carriers, Parliament, when the execution was to be renewed ; &c. which were, because they were applied to parti. but as to the Commons' claim of privilege from ar eular persons, called laws and customs. This Petite- rest for themselves and servants, during Parliament, mentary Law was, therefore, that part of the common , except for treason, &c. the King refused it. It was law of the land, of the lex non scripts, which was ap. to be observed in this case, that the Commons did not plied to the rights and privileges of Parliament, and act of their own authority ; they laid the case before was not like the Civil or Admiralty Law, or the law the rest of the Parliament, as a matter of general Military, as it was anciently exhibited, a separate concern ; and, inasmuch as the execution would have I end distinct code, but a mere branch and part of the been gone, by the discharge of the . party t had he hem common law. As such part of the common law, wrongfully taken, the right of taking him, after the 1 therefore, the Court was in fact. as much bound to Parliament had ceased, was saved. he next case to take cognizance of it as of any other branch of that which the earned Counsel a nd dverted, was that of Jaw. The fi rst case which the Learne d Counsel cited, Thorpe, which would be fou in 1 Hatsell, 29. v:as that from 8 State Trials, 162, of a Member of This was the case of the imprisonment of th e S p eaker toe House ei Peers, being ind ic t ed for murder in the upon . a judgment in the Court of Exchequer, at the Court of King's Bench, who allowed him the privi- suit of the Duke of York, for a trespass, in taking lobe of peera g e which he claimed, although the House b away the Duke's goods from the palace of the Bishop of Peers had ordered that he should not be entitled to of Durham. The Commons appealed to the King and the Lords for the release of their Speaker, upon it- The Learned Counsel quoted Hale's Hist. of the Common Law, p. 59, 44 touching the styles of itl' and which it was represented to thembythe Duke ef York's the reasons o f its being called lex terra, le* "Inglis, and e . ounsel, that process having issuedagaiust the Speaker if he should be released, the Duly so on. If the lex et tour:dada parliameatiwerenotpanof m vacation time, would be without remedy. The Lords according' the common, law, it would militate directly alka 4 Z advised with the Judges, whether the Speaker oar' Harm aims, c. 29- ; and if it were part. for • to be releaied ; to which tire Chief lustiee replied, their ought not to answer that question, for it had waives& used afilretirne that the Justices should in any wise dt. terming the privilege of the High Court of Parliamesth for it was so high and Mighty in its nature, that it niat make law, and that that is law it may make no law I and the determination and knowledge of that priels lege belonged to the Lords of the Parliament, and not to the Justices. In Parliament, the Learned Counsel continued, the Judges determined nothing ; they only gave their opinion, and advised the Lords to deter: . mine. When the Lords sat as magnum concilium regin of which the great Officers of State and the Judges were also Members, then they had voices ; in this ms . stance the Lords were sitting in ordinary council, as a legislative power, and the Judges say, " We are not to determine this t we have no voices here r this is for you to determine." They go on to say, hows ever, " we will tell you what we do :" " But as for declaration of proceeding, in the lower Courts, in such cases as writs of suftersedeat of privilege of Patel liament, be brought and delivered, the said ChiefJnss tice said, there be many and divers supersedeas of privilege of Parliament brought into the Courts, but there is po general tulscrsceleas to surcease of all pros cesses ; and if any person that is a Member of this High Court of Parliament be arrested in such cases as be not of treason, &c. or for a condemnation had before the Parliament, it is used, that all such per- sons should he released of such arrests, and make an attorney, so that they may have their freedom and liberty freely to attend upon Parliament." Thorpe had only a general supersedeas, and, therefore, this was bad. Lord ELLENBOROUGH observed, that the word de- Aermine, in this opinion of the Judges, did not mean decide or ordain the privilege of Parliament ; but merely, " we can't define, we can't inform you what is that privilege." Mr. Hoenovn did not give the word this interpre tation as merely the result of his own conviction : Lord C. J. Bridgman had seen it in the same light. In this case, the Lords decided according to the opi nion of the Judges, " After which answer and de claration, it was thoroughly agreed, assented, and concluded, that the said Thomas (Thorpe), accord ing to the law, should remain still in prison fur the causes abovesaid, the privilege of the Parliament, or that, that the same Thomas was Speaker of the Par liament, _notwithstanding." This decision was com municated to the Commons by one of the King's Serjeants at Law, in the presence of the Bishop of Ely, and other Lords, who commanded them to choose another Speaker, which they did. In this case too, it was observable that the Commons stated the invasion of their privilege as a matter of general con cern to the whole Parliament : they made a claim of 'privilege, but the result was, they had it not. They assented to the negative, and chose another Speaker. The determination of tke Lords was according to what the Judges had told them they would do in their Courts. Mr. Hatsell seemed to consider that the Parliament had been only adjourned in this ease ; but the Learned Counsel found from 5 Roll. Parl. that it was prorogued. That the Judges could not take cog. nizance of the privilege of Parliament was a wrong conclusion ; and this case of Thorpe seemed to be its fountain-head. The next case would be found in 1 Hatsell, 35. It was that of Walter Clerke, in 39 Henry VI. on behalf of whom, as one of their Mem. bers, the House of Commons petitioned the King and the Lords. Clarke was arrested during the sitting of Parliament, and committed to the Compter of London ; since which committal, he was outlawed and retained in the Fleet. The Petition prayed. that the Chancellor might command his release during the sitting of Parliament, and save the executions against him till after its dissolution. Here, too, the Commons did not act of themselves ; and in this case the arrest was not legal, because, though the process issued in vacation time, the arrest was made while the Parliament was sitting. The next' case was that of Dodd v. Walsh, which was decided in the Exchequer by the advice of the rest of the judges in Michaelmas Term, 12 Edw. IV. Roll. 20. It was a bill of debt upon bond, to which the defendant pleaded his writ of privilege as the servant of an Earl reciting the entire privilege of the Lords and Com mons. The plaintiff replied there was no such cus tom, amounting in effect to a demurrer. The judg ment allowed the custom as to arrest, but denied it as to impleading. Here was a direct decision on a question of privilege, in a suit of which the Court had cognizance. So far as this privilege was law, the privilege was allowed ; farther, it was disallowed.— Sir Orlando Bridgman, in his judgment, said, that as this precedent was decided by the advice of all the Judges, it ought to have weight. It was not satis factory to the Commons House, who claimed greater privileges than the King himself.—The next case was that of John Attwyll, in 17 Edward IV. which was detailed in 1 Hatsell, 4.8. He pleaded privilege of Parliament not to be irnpleaded or arrested ; and alledged that he could net freely depart home from Parliament, as he was apprehensive of being arrested by process from the Court of Exchequer. The House therefore prayed the King and the Lords for Writs of Supersedeas, saving the process against their mem ber after the end of the Parliament ; which was orde red accordingly. Up to the time of Roo v. Sad cliffe, in 1 Hatsell, 51, the Commons never proceed ed on their own authority; when they had any doubt they laid it before the whole Parliament, by whom it was decided; and when it was decided against them, it was not law. The next was the case of George Fetters, servant to the King and Member for Plymouth, in 34 Hen. VIII. who was arrested in going to the House. See 1 Hatsell, 53. Upon his liberation, be ing ordered by the Speaker, the Serjeant went to the Counter where he was confined and demanded his delivery. This was refused and an affray followed, " so that the Serjeant was driven to defend himself with his mace of arms, and had the crown thereof broken by bearing [warding] off a stroke, and his man struckan down. During this brawl the Sheriffs of London came thither, to whom the Serjeant corn plained of this injury, and required of them the deli ' very of the said burgess, as afore ; but they bearing with their officers, made little account either of his complaint or of his message, rejecting the same con. temptuously, with much proud language ; so as the Serjeant was forced to return without the prisoner." —The House of Commons immediately complained to the Upper House of this conduct, " who judging the contempt to be very great, referred the punish Smut thereof to the order of the Commons Rouse." • ' I tempt. It was for this contempt, indeed, that the complaint here was made, rather than for the breech of privilege : " And forasmuch as the said Ferrer, being in execution upon a condemnation of debt, and. set at large by privilege of Parliament, was not try law to be brought again into executions and so the party without remedy for his debt, as well against him as his principal debtor, an Act of Parliament was made to revive the execution of the said debt against the principal debtor, and to discharge Ferrers. Here it would have been dangerous for the Sheriff to have discharged the Member ; for if the mace were not good authority, he would have been himself account. able for the debt. But it must be recollected, that in this case the Member was also the King's servant, and the King claimed as his prerogative the exemp tion from arrest of all his servants during the sitting of Parliament ; so that we had the Judges here giv ing their opinion both with respect to the privilege of the House of Commons and the prerogative of the King. In the same Parliament occurred the case of Trewynnard, which would be found in 1 Heise% p. 59, upon a judgment against Trewynnard, a writ of exigent in outlawry was awarded ; upon which he surrendered himself to the Sheriff, who let him go upon the King's writ of Privilege cf Parliament.— Upon arguing this case on a demurrer to the She riff's plea of the writ of Privilege, in an action brought against him for the escape, Dyer said that Ferrers ought to have had his privilege, andthat Tre wynnard was discharged from his execution only for a certain time. The Learned Counsel then quoted a casefrom Mr. Prvnn, 4th Register, which occurred -in the 16th of Charles 11. It originated in the will of the Earl, a! Essex, which was to be tried before the delegates,— The then Earl of Essex, as a Peer of the realm; / lel manded, as a privilege of Parliament,the suspension of the sentence for 40 days previous to the sitting of Parliament. The Judges did not agree to this, and they moreover came to a resolution not to proceed on the votes of either House i:i cases of privilege, but to defer to the known laws and customs of the realni —to aheir oaths and the trust reposed in them. They also delivered judgment, and decided it to be no breach of privilege. A denial of privilege also took place in the case of Evelyn, Where it was also decided that they should not be bound by the resolutions of either House ; and where a case was cited to shew; that if a cause went out of the Common Pleas to the Lords, and if the Lords decided so as to cause a doubt of the decision in the minds of the Court, it might go back again to be ruled by the Court. His . next case was that of the King v. Knowles, in 2d Chalkhill, where an indictment was drawn up at Hicks's Hall against Knowles for murder. Knowles pleaded that he was the Earl of Banbury by descent, and put in a replication, which replication was ruled to be bad. The Lords disallowed the title by descent. He quoted these causes to shew that recourse was had to law to confirm the privileges of Parliament—that those only were allowed to be privileges which were claimed by the whole body, and not by one House— that the usage of one House was to lay the matter complained of before the other, so that it became an Act of Parliament. Lord ELLEN BOROUGH —Mr. Holroyd, surely the deed of the two Houses, without the consent of the King, is not an Act of Parliament. Mr. HOLROYD—An application was always made to the King to make it an Act of Parliament. Lord ELLEseottocon—Then of course it became irrefragable authority. • I Mr. Houtoen--Always before the case of Ferndil the King was petitioned on the subject as a Attal t not of grace, but of right. The other conclusion: . tq be drawn from those cases was, that the Judges had a right to determine all cases which - came before then% as to the breach of privilege, except when they were assembled in Parliament, and of course, parties to tied act and determination. They might, when in Pattie. ment itself, deliver their opinion on the subject ; bui when they were in their own Courts, if it came before them, they might decide and adjudge. He had sou* cases to cite respecting false and double returns, ass as to the refusal of votes. All these cases wens ea thew the competency of the Courts of Law sothiel cognizance of these subjects, even though -they spettl cially appertained to the Houses of Parliament.- Thai result would shew that they might take cogeis of them in the way of action, and to an extent, ' Which would comprehend the present case. Theca .of Neville and Stroude was a case of false return, mil the Reporter said, had often been argued in theKing'i Bench, but was afterwards adjourned to Parliament. It was by Parliament itself referred to the Exchequer Chamber, so that this very act sheaved that Parlia , ment did not consider the discussion or the decision confined exclusively to themselves. It was argued in the Exchequer Chamber before all the Justices of England, and by their advice the Court of Common• Pleas gave a decision in favour of the action. He here quoted another case of a double return, where a judgment was given, which was, after the revolution; invalidated by the whole Parliament. In the case of Mddleton and Wynne, the Judges gave their opinion that an action for a false return should lie at common law : but that the action must be brought within two years of such false or double return. A pro test was also issued against the decision of the House of Commons being final in Wesrninster , Hall, because they had not the power to impose an' oath—and, of course. the evidence could not be con sidered either as complete or concluive. The case cf Ashby and White would shew of itself that an action would lie at common law. It was an action on the case against a returning officer. Chief Justice Holt Pheld that the action was maintainable, and he hell so against the supposed opinions of the other three judges' of his court. The case went up to the House ne Lords ; and after a long discussion, the judgmental the King's Bench, which had been given against Holt's opinion, was reversed by a division of 50 10 181 and' it was there decided; that the action lay..l— Comamus-vum it chit &tritium ,very much dig. • ag . iltell.. l446 " 4 " lolollllBer l dr fitlga again ieqs - i4 - 41 the Sheriff /VI thb -drl: , cry iSf Member without any writ'Or Avarrvq, .g albeit dite• Lord Chancellor offered to grant a writ which thet refused, being of a clear opinion that all commindis, mcnts and other acts proceeding from-the tfethif, Houle were to be done and esecufeli by their SL+4 , l' jeant, without writ, only by chew of his mate: which was his warrant." The Member *as delivef , ed upon this second application; and the Sheriffs were afterwards committed to the Tower for the con- . - J 1 .1 ~~ r