The National Register.
London, England, 1811-05-19 00:00:00

TUE NATIONAL REGI

• i

must be incorrigible. Had Masia Louisa known this its time
it might havecaused her to break off the. match.
I have assumed this article to be from the pen of Mr. Cot.-
MAN from seeing it so
,stated in the papers. FrOni the strostg
resemblance the four last lines bear to certain passages in the
Prologue to 64 Ourselves," I suspected it to be from the pen of
Mr. EYRE. This idea, of course, can be no longer entertained,
and all that can be said on the subject is, Mr. COLMAN appears
indebted to that piece for the best lines In his address.
I wonder Mr. Et.i.is.roN could bring himself to speak it be-
fore a London audience. I know not what the real cause of his
doing so might be, and iti common with others can only ascribe
it to overgrown vanity. Mr. ELusToN is an actor of more than
common powers, and his acting ensures him from me a ready
tribute of sincere admiration. The town naturally take sonic
inz.. rest in his welfare, but it was not necessary to go into the
silly detail of his adventures which is found in the address. The
public think highly of him, but he need not take such pains to
let us know he thinks highly of himself.
" The Honey Moon" was the play with which the Theatre
opened, and certainly, as far as good acting could atone for that
e;,:oti,m of which I have complained, Mr. Ei.t.is roN made the
amende honorable. In every part he gave the greatest possible
effect to the speeches of the Dicke, and left the audience nothing
to desire.
The new performers I have not room to notice at present.
Mr. MA 1.i.: NSO N promises to crove a valuable acquisition; and
2str. and Mrs. BAR N Ls seem to merit encouragement.

LAW REPORTS.

COURT OF KING'S BENCH,

k-::.IDAY, MAY 17.

BURDETT V. THE SPEAKER.
The further argument on the demurrer in this cause came on
to be heard to-day.
Mr. ATTORN EY-GEN TA AL, in reply to Mr. HOLROYD, began
by stating, that all thr• hemline, deep research, and ingenuity
could do, had been done by his Learned Friend Mr. Holroyd;
end one very considerable advantage which he derived from the
delay which had taken place since that argument, was, that it
would enable him to compress into a very small compass indeed,
those topics which he had to urge in rely. In his apprehension,
the snit( meat of the ouse alone put the whole question out of
Court. It was admitted that this was an action of tresspass
against the Rigt.t Hon. Charles Ahhot, as Speaker of the House
of Commons, for issuing the warrant under which the defendant
v► as imprisce.ed ; which warrant he was directed to issue by the
House, who had found tie defendant had been guilty of a con-
tempt in publishing a defamatory libel on the H, use. This was,
therefore, an. ection of trespass against an Officer of a Court of
Competent Jurisdiction, for obeying the orders of that Court.
How it could ever be considert d that such a person was liable to
aft action of trespass, he could never conceive. It was a clear
principle of law, that an officer obeying the orders of a Court of
competent jurisdiction, could never be guilty of a trespass. if it
could be doubted, Bushel's case, I Modern, 110, and 184, was an
anthority in point. Lord Hale had said there expressly, that no
ection would lie against any such Officer; and this was so,
whether the judgment of the Court was correct or erroneons.
Was it ever heard that any action of tresapass was ever brought
against an Officer, even when the party had been charged upon
Minas Corpus ? And where a party was so discharge d, was not
that in effect reversing the judgne.nt of the Court's committing
the party? It was in . tact sayi••g they had done wrung ; and in
reversing their judereent, by dismissit,,the party committed, it
was in fact saying that their judgment had been erroneous; hut
it did not follow that the Officer who•ac ed in command of this
erroneous judgment was liable to an action of tresspass. And
he &tied any Lawyer to produce authority to ~hew that where a
party was entitled to his discharge I-y Habcas Corpus, that there
he was-also enabled to maintain an action of trespass. Decisive
toethis, answer was, he -should, perhaps, not satisfy e Court,
and stop • short here. But he wouel go into an examination of
the d.etttritu,s of hietelrued Friend, and show that they did not.
apply to the qn..stion. lie should just shortly advert to thoeu•.
proposi.-.ious which he had established, and chew that they da
fiut rui/itete against the side Whit-1111e supported. As for those!
i)ropositfous which his Learned kiiond left in airthe also should

leave them there._ That the House of Commons has a right to
commit for a contempt, is admitted universally ; and it is equally
true that they are sole judges of their privileges, and their judg-
ment cannot be impeached in any other Court. But it may be
said, that they may as t cariciously—they may chose to consider
matters, indifferent in themselves, as breaches of privelege—they
may commit a man for wearing a green coat, or because they do
•no tlike his face. In anaverriao this, he had to say, it was not
decent' so to argue the question. It was not to be pr. somed,
that those to whpm the Constitution ha-1 trusted this power
would so abuse it.—Put the case of a Court of Caw :—it the
question were, whether a certain party had an estate for lite, or
an .estate in fee, and all the facts proved an. estate fel life, the
Court might determine against the law, that it was an estate in
fee. Nothing could prevent doe Court from so determining, if
they were determined to do so against all law ; but it was not to
he supposed in this case, any more than in case of the.Heusieof
Commons, that they would so abuse the power entrusted into
their hands for good and salutary purposes. He stated this,
right unquestionably to exist in the House of Commons—eyes
there the man breathing, who had even picked up all his know-
ledge from Newspapers and Coffee houses, who would deny that
the House of Commons bad a right to commit fur au iioult upon
itself or its proceedings ? The thing was not to be dotilyed, be-
cause it was denied by some ; since there were those melignant
spirits in existence, who would deny the plainest truths, if the
denial could produce any serious mischief. The prepositions
which he had stated were so clear, that they were universally
admito d by all those who had advanced far enough in life to
enter themselves as the students of the !aW. If he had to supeort
them he would only cite the case of the King versus Almon,
where the Judges most distinctly laid them duwn :—lf the
power did not exist of punishing immediately for contempt, but
the remedy was what, on this occasion, he wOuld call the tardy
operation of the law, all the mischiefs would follow, tesulting
from a want of po\ver to command respect in Courts, and they
and their decrees would fall into neglect and contempt. And
if this power existed in the common and ordinary Courts of
Judicature, would any one deny that it did not belong to the
House of Cenim ens, which wits a Court of paramount dignity ?
Was that Court less liable to insult than the Courts of Law, SO
that it should be less protected, or nut have the same guard
thrown round it ? Had the policy of cur ancestors left them so
unprotected ? There was not a text-wi iter, not an historian, not a
lawyer, who had not all distinctly h hewn chat they possessed thie
power. Lord Coke had stated th& in to be a House ofJudicatere.
The Reports and the Journals fureiahed a series of instances
where they had exerci,ed this right.—Having thus shewn their
right to eXist froth principles, from authority, and practice,
what next remained for him to do ? He would examine briefly
wha' was established by his Learned Friend, who certainly with
great learning and ingenuity, had contrived to give his argu-
ment •1 most imposing appearance, as if it really affected the
subject. He cited a great number of cases to slim that the
Courts of Law took cognizance of the privileges of Parliaments
True, they did so; he admitted that they did so, and in many
cases they must of necessity do so. But the propositionswas not
general. In some cases they had jurisdiction, but not in
Whenever the privilege of Parliament occurred incidentally or
collaterally, then..they of necessity took cognizance of it. And
here he would cite Benyon's case, which 7.:elbeen relied upon as
an authority against him : there it was expressly side, that the
(.'nurt :mit incidentally only cognizance era the privilege of Par-
liament. It had also been argued, that the Court granting a
1 la beas Corpus must see the cause of commitment, as the com-
mitting Ceurt saw. This certainly was not so ; and it was not
possible that dictum in Bushel's case could Le supported, In
answer to this he would cite Allineham's case, who was COM-.
mitted, as appeared
.by the return to the Habeas Corpus, by.
Chancellor EfiestrereS fur a contempt in not obeying a decree of
the Court ef Chancery; and the Court held the ground of de-
tamer aufalciele, though certainly they did net see all the cir-
cumstances which were seen by the Court of Chancery when
it made tfie order of committal. The Learnt d Gentleman then
teed a series of cases Sir Neholas Throckmorton's, the-first
vol. State Trials; Brass Crosby's case; Murray's case. Wire
Rep. ; the King ts Flower; and read the judgment of the Court
in all these cases, in which it was held that the committal by the
House of Commons for a contempt, was sufficient ground of
detainer aeamst the parties praying to be released. He apple-,
herded he had now adverted to so much of his l .earned Friend s
argetneres as bore us on the question. What remained was oily
as to the nestle of executing the warrant in breaking open the
outer door. It was found that the Serjeant proclaimed aloud
for what purpose he came. But, said his Learned Friend, thrill
hparean outer door, except where the
is no instance of breaking
King is a party. but the true way of putting- the proposieon
lyass wll.•:ther it was the assertion of a public or of a erleatai
elght. Though many of the taste iliac the woiels " Where th*
Lein is a party," yet in fact it is a question of public ear private

THE N.

wrongs.—The law in case of private wrongs will not suffer the
• outer door to be broken open ; but in the vindication of a public
wrong it does. It was so held by Justice Coke, in 13 Ed. 4 fol. 8.
It is so stated by Dyer, by Foster; and it it *0 held in Semaine'a
case, as reported by Coke, who says, the door cannot be broken
open unless in the nut en's case, or for a contempt. If therefore
it can be done in the case of a coo = committed against a
Court oa Law, surely the House mons, which is a su-
perior Court, will not be degraded in its right blow a Court of
ordinary jurisdiction. There seas also anothemalte, 13rigs's case,
of which only a short note appeared in the Ildeks, in which it is
stated, that in an attachment for a contempt, the Sheriff may
break the outer door. It had been suggested, that this might be
founded on a breac Is of the peace ; bait ha had caused diligent in-
quiry to be made at the offices, and he found that this attachment
issued in a civil case. He had thus referred to the opinions of
• the Judges ofthe law, confirmed by a stream of authorities; and
the result he trusted was, that the Court would think there
ought to he judgment for the defendai t.
Mr. HOLROYD briefly replied to the several observations
made by the Attornev-General, still maintaining the principle
which he had originally supported for the plaintiff.
Lord Eeerae BOROUGH said, that it was certainly a matter
altogether of great import ; but great as the import was, it was
not necessary to consume any snore time beyond this day upon
it. If a doubt of any kind remained on his mind upon the sub-
ject, a furthei• day would be allowed for the discussion • but; in
truth, his mind was completely and clearly made up thereon.—
This, said hts Lordship,' is an action of trespass (here his Lord-
ship repeated the whole of the proceedings as they appear In the
pleadings), and to the plea of justification the plaintiff demurs;
and the points that arise for discussion upon this demurrer are
these :-,-First, Whether the House of Commons has authority
in cases of breach of privilege to commit. Secondly; whether
having that authority, it id well executed. And, Thirdly, whe-
. titer the means used to exercise that authority art justifiable by
law. On these three several points his Lordship argued with
his natal precision and comprehension, and in a most eloquent
and argumentative style. He observed, that all that was urged
ie respect to Sir Olando Bridgman in a former argument, and
all that was advanced concerning '1 horpe's case, did not apply
to this. The 49th of Henry the set, gives the Parliament dis-
tinct privileges, and before that time evert, and down to the
esent day, this right had been exercised. Their privileges are
inherent In the Legislature, and cannot be taken from them.—
. He observed, that Ferrar's case, Compton Dyer's civic, Went-
worth's case, and Hall's case, all justified tie power in the
Commons. But that which, his Lordship contended, put it
beyond the reach of controversy, was the Statute of the Ist of
James I. chap. 13, which, he maintained, expressly gave Par-
liament the power of committing for breach of their privilege.
Even Lord Holt laid it down in the case of Ashley and White,
as it was also laid down by him in the case of the Oue(n and
Paley. In Shaftesbury's case the like doctrine was held, and
was not by Lawyers doubted:
a His Lordship noticed the several rases from the earliest turtles
down to the case of the King and Flower, where, although the
Courts had refused the writ of Habeas Corpus to persons so
committed, yet abase persons were never told by the Court so
committing theritiligthottgh they were refused their writ, yet
that they might bring their action for the refusal; no one would
ever expact aach an absurdity. in this part of his observations,
he noticed the case of Brass Crosby, who, although committed
by the Commons, and being refused his rit ofaHabeas Corpus,
never thought of bringing an action against any of the Judges
who refused him ; and he was refused it in all the Courts. The
next point then was, if the House has the power, has it in this
case been well executed ? He thoualit it had. The warrant
against Sir Francis was in the nature of an attachment for con-
tempt; and in all rases of attachment, the 011icer' executing it,
has a power to break the outer door, if refused admittance. in
short, in every point, and every way which he had considered
the subject, he was or opinion that the artinn could not
be sustained, and that the plea of the defendant was a good
plea.
Mr. Justice Gamin and Mr. Justice BA If L F.Y concurred, Mr.
Justice Ba v Lear add;ng, that in the cage of the King P. Paton, in
which Lord Hotar differed from the rest of the Judges, he did
not deny the right of the House of Commons to commit for a
contempt ; but they haring stated a fact on the face of their war-
rant, which. he thought did not amount to a. colnenv,
htr
therefore thought the pers'n committed entitled to he dis-
charged. •
Judgment for the Di fendant.

THE KING V. JAMES PHILItS, JOHN BARFORD, AND
JOSEPH ESTON.

These t!of,m(lants were br•ffight tip for jittlgrnent, baying
!wet: convictil.; at thr last Maiditoil.• A3slzes, (Alarging, that Phi-
lip, a revenue offteur, and the two other. his assistaats.

RECI STrit.

319

had made a seizure of run-goods and released the same fur
money, contrary to the jaw, anAkelefraud of the Revell".
Frain the minutes of the Lea J kftige's notes who tried Use--
cause, it appeared, that Joseph Finn, a servant behitoug
tq-
Captain i.e Blanc, of the Marquis of Ely East Indianian, w.
coming up from Deal in a post-chaise to London, alai at t
bottom of Shooter's 1 Lill, the carriage was stopped by the d
fendants, one of whom burst open the door, ji!mped in, an
seizing a •bundle, containAsatne silk East India bundanils
calling out to his comrades er eta prize." That they insisted
upon seizing Qie carriage and horses as well as the smugg!ed
goods,- but in travelling along, one of them in the carriage along
with Finn, the other following, they demanded of Finn whether
he had any money ; he produced thirty-live dollArs and four
guineas, which they agreed to take, and to release him and the
seized goods, &c.
Mr* Justice GROSE proceeded to pass sentence upon the three
defendants.—Phlllvs and Esinn were sentenced to two years
imprisimmentin the jail of Xlaidstone, and Barford to foul teen
months' imprisonment in the same jail, in consequence u:
having been already in conFnement nine months.