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

Wiles) bad already shown, the house, instead of fixing a
disacertain, had said "a convenient time ;" and it would
seed that. they dieeliazged Martin from the arrest because
*sr took it Le ill pert that Whim having arrested him once,
of !fm on finding be was a burgess returned to
serve ha had arrested biro a second time with
that knowlefse. very important question had been a
good deal dissionsi fa the case of " Butcher v. Stewart," and of
Cuadral. Stewart" (11 Meeson and Webby, p. 1167). No
desides kg Una pronounced by the court ; but that which
lisss rid by Mr. Gurney on the one side, and by Mr.
Media on the other, showed that the point was obscure and
surrounded by great difficulty. These were CAM of write of
espies ad satiajaeiendum, issued with a view to proceed to
the outlawry and not to the arrest of the defendant. The
i court set the writs *aide.
ss- tuanem : Thero arose no Points as to dates
in those cases.
Mr. Willes : No, my lord—the writs were set aside pend-
ing the defendant's privileges. In the course of the argu-
ment Mr. Serjeant Bonspu said, "Before the passing of the
statute of William 111. the privilege of a member of parlia-
ment was not mere personal freedom from arrest, but free-
dom from any preceding@ during the sitting of parliament."
To which Mr. Justice haskine added as an obiter dictum.
or for 40 days after the prorogation." This showed the
opinion of one learned judge, that the privilege extended to
that duration of time, but the cue decided nothing as to the
continuance of the privilege from arrest in the judgment of
the rest of the judges who were present at the argument.
Mr. Justice Williams inquired upon what day the next
parliament had been summoned td assemble?
Mr. Wiles replied that the writs of election were return-
able on the 21st September inst., and that the dissolution of
the last parliament took place en the 23rd July last, so that
Mr. Buncombe bad bees arrested more than forty days after
the dissolution, and within twenty days inclusive from the
21st September, the day on which parliament was to meet.
Mr. Justice Williams: Then he was arrested within twenty
days from the meeting of parliament.
Mr. Willes: Yes ; but in the case of Martin, before the
House of Commons, which is held to be the judge of its
own privileges, they expressly answer that they would not
limit the privilege to a tune certain, and no other court has
yet fixed or defined the limit.
Mr. Justice Williams: But then the defendant was ar-
rested twenty days before the meeting of parliament.
Mr. Willes: It is difficult to say. I believe, however, that
in Martin's case the first arrest took place above twenty days,
and the second about fourteen days before parliament met.
Mr. Justice Williams It would seem that the lords
claimed twenty days, and that the commons never consented
to have their forty days abridged so that each house should
have twenty days.
Mr. Wiles: That was not so, because in Martin's case
the commons, when the question was put as to whether there
should be a time certain, or a reasonable time, answered " a
convenient time."

Mr. Justice Williams: Therefore, I understan, them to
have said they would not be limited.
Mr. Willes observed that still they decided upon a " con-
venient time," end he apprehended that unless there was
some act of parliament or express decision as to what must
be held to be a convenient time, it was for the judgment of
the judges to decide what was a convenient time eundo
morando et redeundo.

Mr. Justice Williams remarked that in practice parliament
had during many years been prorogued for far longer periods
than twenty days, and that it had never been the practice
to arrest a member in the interval. If, however, there was
any blunder, it was one which he, sitting at chambers, ought
not to take upon himself to correct, especially in the absence
of any judicial decision to disturb the practice.
Mr. Wiles urged that in this case the defendant had been
arrested under a writ which the plaintiff had a perfect right
to issue, in order to recover her debt. The defendant
sought to avail himself of a privilege, which privilege
he ,was bound clearly to establish. It was no
matter that other plaintiffs, fearing the mat powers of the
lions. of Commons, had not dared to enforce the vayment of
debts due by member', and, therefore, he trusted his lord.
ship would not tie up a plaintiff who had taken advantage of
the law by now saying it was not that which it had been
ruppoeed to be. The debt, which in this case amounted to
3,4001., was nothing as compared with the general import-
ance of the question, but still, if the defendant were to be
now discharged, parliament would meet before any applica-
tion could be made to the court in the event of his lordship
taking a wrong course, and this would amount to the depri-
vation of the plaintiff of the only remedy she perhaps could
aver have, but certainly for seven years to come, to enforce
her debt. This, he apprehended, his lordship would not do,
unless the defendant clearly made out that he was entitled
to his privilege.
Mr. Justice Williams said that this was the point, whether
• member of the House of Commons was not only prix aeged
during the session, but for forty days before and forty days
after the session, which amounted, in fact, to an exemption
from arrest during the whole parliament, because, practically,
care was always taken—whether for purposes of state affairs
Or for other reasons it was not for him to say—that parlia-
ment was never prorogued for a longer period than forty
days. This operated as a protection to members, and was •
sort of public recognition by the voice of the state in favour
of the privilege.
Mr. Carlow remarked that the iperliament had been fur-
ther adjourned from the 21st September to the 12th October.
Mr. Willey Then Mr. Buncombe eau have so parliamen-
tary duties to attend to before the 12th October.—Mr.
Carlow: He is summoned to attend on the 21st September.—
Mr. Willes: But here is the proclamation of the 10th
August, further proroguing parliament from the 21st Sep-
tember to the 12th October. He was arrested on the tad
September, which is exactly forty days after the dissolution,
and forty days before the meeting of parliament.
Mr. Justice Williams concurred that it just raised the'
exact point of 40 days which Blackstone and the universal
opinion of the country had laid down as the period over
which the privilege extended. They had all so understood it
from their childhood.—Mr. Wiles reminded his lordship that
no statute spoke of 40 days, end cited the following passage
from " Tidd's Practice," vol. 2:—" By the law and custom
of parliament,members of the House of Commons are pri-
vileged from arrest, not only during the actual sitting of par-
liament, but for a convenient time, sufficient to enable them
to come from and return to any part of the kingdom, before
the first meeting of parliament, and after a final dissolu.
tion."—Mr. Justice Williams still thought the dictum
of Blackstone was undisturbed. It was not an opinion upon
an abstruse point of law, but on a matter famPiar to the
country, and in which it was interested. If Blackstone had
made any mistake, ho could not but think that it would
long ere this have been corrected by some one or other of
the many ingenious persons into whose hands his writings
had passed. After again looking at the proclamation of the
10th Aug., the learned judge said that it appeared to him he
was relieved of all difficulty, inasmuch as though that pro-
clamation prorogued the parliament to the 12th Oct., still,
according to practice, it would meet on the 21st Sept., then
to be adjourned by commission, so that the arrest had been
made within 20 days of the meeting of parliament. He
therefore thought the defendant must be discharged.
On the application of Mr. Willes, the order for the dis-
charge was ordered to be accompanied with • consent on the
part of the defendant not to bring an action for false impri-
sonment.—Mr. Carlow gave the consent, and thus the pro-
ceedings terminated.