The Express.
London, England, 1847-09-08 00:00:00

fir J. B. Mills' Giantess (Donaldsol 1 i
Mr. Robittson's Morpoth mbilt3thuruout 23
Lord Wunicl's Yardley
Mr. Mellitam'a Best of Torte (Duncan 4
Mr. G. Atom's Woltdog
CASTLE PARK STAKES of 10 SOTS. each, and 50 added ;
for 2-yr.olds. T. Y. C. (9 subs.)
Lord Caledon's Blaylock Marlow) 1
Lord Warwick's Lahore (Crouch) 2
Qualm's PLATE of 100 guineas. Heats ; 2 miles.
Mr. John Day'4 The Hero walked on,.
MAtnEtt PLATE of 60 SOTS., was won in thee* heats by
Lady Malcom

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MEETING, 1847.
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on Monday afternoon.

tab) intelligence.

JUDGES' CHAMBERS.

Iletc;;el7.io;liC;7l4lllllinifaral.
ELIZABETH GOUGE v. T. S. DONCOMBE, ESQ., M.P.—
THE PRIVILEGE OF PARLIAMENT.—This was a summons
issued by Mr. Baron Platt, at the instance of the de-
fendant, calling upon the plaintiff to show cause
" why the defendant should not be discharged out of
the custody of the Sheriff of Yorkshire as to the execution
in this action, the defendant having been elected and re-
turned a member of parliament for the borough of Finsbury
previously to his being taken in execution as aforesaid." Mr.
Carlow, of the house of Carlow and Haynes, appeared on
the part of the defendant to support the application. Mr.
Willes, the beniater, with Mr. Rae the attorney, repre-
sented the plaintiff, and Mr. Coverdale was in attendance
to watch the proceedings on behalf of the sheriff.
Mr. Carlow stated to his lordship the nature snd object of
the summons as already set forth, and said he did not
think itnecessary to trouble his lordship with any matter be-
yond the dates of the transaction, as set forth in the affidavit
of the defendant. That affidavit stated that the defendant
had, on the 28th July last, been duly elected a member to
serve in pariiament for the borough of Finsbury, and that
the return of such election had thereupon been made to the
Crown-office; that pursuant to such election and return,
the deponent is, and at the time of the arrest hereafter men-
tioned was, a member of the Commons House of Parliament,
and, as such member, was entitled, at the last mentioned
time, to all the privileges belonging to a member of the
House of Commons ; " and the deponent further with that
he is at present on a visit at Copgrove near Boroughbridge,
in the west riding of the county of York, the residence of
Thomas Duncombe, the father of this deponent; and
that on the 2nd September instant he (the depo-
nent) was arrested and taken in execution by George
Acton, one of the officers of the sheriff of York-
shire, at the suit of the above-named plaintiff, by
virtue of a warrant bearing date the first day of September
itutent, and granted by. the said sheriff of Yorkshire in pur-
suance of a writ of capias ad eatinfaciendum issued in this
cause; and this deponent further saith that he loath been
since the arrest aforesaid, and still is, in the custody of the
said sheriff of Yorkshire, under and pursuant to such writ as
aforesaid." Mr Carlow observed that the last case in the
books bearing upon this subject was that of " Phillips o. Welles-
ley," reported on 1 Dowling's Practice Cases, and it had been
decided by Mr. Baron Parke, with the assent of the full
court. It was an application' on the part of the bail
of the defendant in the action ;to enter an exoneretur, in
consequence of the defendant having, in the progress of the
suit, been elected a member to serve in parliament. He re-
ferred to this case, because Mr. Barstow, who, as counsel,
opposed the application argued (and that argument seemed
to have been acquiesced in by the court) that if the defendant
at the time of the arrest had been a member of parliament,
the court would at once discharge him; and Mr. Baron
Parke observed that in his judgment the bail were entitled
to the same relict that their manila' would be entitled to ;
and the application was granted. He submitted that this
was a case on point, and though there were a variety of old
cases In the books, he would not trouble his lordship with
them.
Mr. Willes, contra, contended that the case of "Phillips
v. Wellesley " was only a good authority to this extent, viz.,
that if the- defendant was entitled to privilege, then the
court would discharge him on motion. But in the present
instance, he submitted the defendant had not become pos-
sessed of his privilege. The privileges of a member of the
House of Commons were unlike those of a peer. In the
latter instance the privileges; were propter dignitatens, and
from the date of his writ of summons a peer obtained a
perpetual privilege ; but the privileges which attached to a
member of the House of Commons had not that character. A
commoner obtained no privilege before the meeting of parlia-
ment, except for such reasonable time as would enable him to
come up when parliament assembled. On looking at the
case of " Phillips v. Wellesley," he fouled that the privilege
had accrued to Mr. Wellesley before the application was
made to the court, for parliament met in the October after
the death of George IV., and the motion was mot made
until the Michaelmas term following. In this ease, however;
parliament was not to meet until the 21st September instant,
and had since been prorogued to the 12th October next,
therefore Mr. Duncombe had been arrested before the meet-
ing of parliament, and before any privileges could accrue to
him. The real question in the case was subject, he adre;tted,
to a good deal of doubt ; it was what wss the limit of the
privilege ? A general notion prevailed, that members of par-
liament were entitled to the privilege of freedom from arrest
for 40 days before the meeting of parliament, and for 40
days after its dissolution. That notion was to be traced to
an act passed by the Irish parliament in the reign of
Edward IV., which, in express terms, so Fruited
the duration of the privilege, but it seemed to
him (Mr. Willes) that on this subject the House of Com-
mons of England had itself given an answer which would
dispose of the present case. In Bacon's Abridgement, title,
Pnvilege C, he found this paragraph—" As to the time for
the duration of the privilege (from arrest), it is unsettled to
this day, though it seems agreed to extend eundo morando
et redeundo.' An entry in the journals of the Lords fixed
the privilege of a peer to commence 20 days from the date of
the writ of summons; but it was added that the Commons
never assented to 20 days, but claimed 40 days before the
asserting, and 40 days after the termination of the session of '
parliament. Now, this was a mistake, for no such claim
was made, and this was shown by an en*ry in the journals of
the Commons of the 27th Feb., 1686, which stated that
"One William White having arrested one Martin,
a member of the house, the sergeant was directed
to warn White to attend to answer for his con-
tempt. He did so, and admitted that he had ar-
rested Martin 14 days before the beginning of paths-
ment. The hone appointed a committee to search for
precedents, and having received the report the house was
divided in opinion, whereupon the Speaker moved three
questions : first, whether the house would limit a time cer-
tain, or a reasonable time, for privilege to members to come
up to parliament ? to which the house answered, ' a cones
nient tame.' Secondly, whether Martin had been arrested
within a reasonable time ? to which the house answered,
' Yea.' And, lastly, whether White ought to be punished
for the arrest ? to which the house replied Nay.' " If
20 days was a " convenient time" in those day' to come up
from and return to all parts of the kingdom, it was clearly " •
conve.dent time" to do so in these days of improved
means of transit and conveyance. He submitted, there-
fore, on the authority of the case of Martin,
that Mr. Duncombe was not entitled to his discharge.
But he would further refer to a work on " the
privilege+, proceedings, and usages of parliament," pub-
lished by Mr. Erskine May, the present assistant libra-
rian of the House of Commons. That work, at chap. 6,
Mesta on the question of freedom from arrest, and states,
" that very great doubts existed as to the limit in point of
time put upon that privilege." It adds, that this was a
point which never had been decided as regarded com-
moners, though frequently mentioned in various statutes.
Blackstone, in his Commentaries, says that a commoner is
privileged for forty days after every prorogation, cad for
forty dive before the next appointed meeting of parliament,
which is now, in fact, as long as parliament subsists, it
seldom being prorogued for more than fourscore days at a
time. The Commons had
forty days, though they had never assented to the thirty
days, as shown in the case of " The Earl of Athol v. the Earl of
Derby," where Chief Baron Gilbert said they bad no right to
make the claim. In Prideaux' case, on the 6th Dec., 1656,
where it was sought to set aside recognissaue to appear
before the Star Chamber, the Commons sent a message to
the Lords complaining of the proceeding, but net usgestra
days' bat 12 days' privilege. In Martin's ease, as