The National Register.
London, England, 1812-02-09 00:00:00

TIIE NATIONAL REGISTER.

LAW REPORT'S.

EXCHEQUER CHAMBER, SATURDAY. Fics.B.
WRIT OF ERROR.

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SIR FRANCIS BURDETT V. THE SPEAKER or Tut HOUSE 07 COMMONS.
The Judges met yesterday at the Exchequer Chambers to hear the
arguments of Counsel in support of a Writ of Error, brought against
a judgment of the King's Bench in the case of Sir Francis Btu sett v.
the Speaker of the House of Commons.
Mr. Cligiird spoke at considerable length in support of the Writ. He
argued, first, that the arrest of Sir Francis, and the proceedings against
him were not necessary, nor was there sufficient authority in the House
to justify them in any Court of Law. Secondly, That the Resolution
of the House of Commons, declaring Sir Francis Burdett guilty of a
breach of the privileges of that House, was exceeding the powers vested
in the House of Commons. Thirdly, That the Warrant was not exe-
cuted in strict conformity to the order of the Speaker, which directed
the Serjeant at Arms to arrest Sir Francis, and, in consequence, the ar-
r• it should have been effected by the Serjeant and his Messengers only,
the Serjeant at Arms having no power to call in the assistance of the
military. Fourthly, That the breaking of Sir Francis's house door was
illegal, this
.being a simple process for contempt, in which the King was
et) pal te.
Mr. Richardson on the other side supported the judgment of the
King's Bench also at considerable length. He adduced ionumerable
Tree( dente to prove that the right of committing persons for contempt,
ohstruction, end libe', which last WPS considered as having a tendency
to create obstruction, was exercised from time immemorial, by the
House of Commons, and the Courts of Law and Equity. He also
quoted authorities, to prove that the Serjeant at Arms, when execnting
an Order of the House of Common., was considered as the King's Of-
ficer, and as such authorised to call fur the assistance of any of his Ma-
jesty's liege subjects. He went back as far as the reign of Henry IV.
and from that period deduced a line of authorities to prove
that the breaking, of a door was perfectly legal, when the interest
of the public required the apprehension of the culprit, and this was the
strict line of demarkation between private and public actions. There
remained but one argument more, if it could be so called; his friend,
Yr. Clifford, had argued, that the execution of the \Varraut ha I been
vitiated by Ile interferrence of the militar, but he was sure that objec-
tion would Uwe' nu weight with their I.ordskips.
Sir JAmes MAN S:'IELD—" Certainly not, soldiers are citizens also,
and as such, they • owe their assistance to a ',abbe officer having legal
authority.'
On account of the hour (it being half past three o'clock), the Judges
adjourned the further cuffsideration of the case to the first Error day in
nest Wan.

COURT OF KING'S BENCH, FEB. 7.

THE KING V. THE A RCHBISoOT Of CANTERBURY, ON THE ABDICAI lON

or 111 E RYV. DR. PUVAH.

This cause came on, and lastcd the whole day. It was argued on
behalf of tl:e Archbishop, by the Attorno,-Gencral, Mr. Dampier,
and Mr. Abbott; a:ld for Dr. Pov;:h, by Mr. Garrow, Mr. Warren.
Mr. Cornyn, and Mr. Broul,hum, the latter of whom made a most
elaborate speech.
On behalf of the Archbishop, it way contended, that it lay with
hint alone to license or not to license any lectureship, and that he
was the only Judge to decide upon the fitness of the candidate; and by
the affidavits it appeared, that Dr. Pervah had appealed to the Bishop,
who had refused to license him.

On the other hand it was argued, that the Bishop was not the sole
judge in matters of temporal concern, such as the right of precentation,
&c. ; that Dr. Povalt had never been heard by the Bishop in his own
defence ; that the Bishop had entertained vague charges aaiiirea him ;
first, that he had preached aaainst the neceity of infant baptism; that
Dr. Povah had offered. in refutation of this cliprge, the manuscript
sermon, supposed to contain the obnoxious doctrines : next, that he
had read the absolution, not being in Priest's Orders ; this he also
futed : and las!ly, that he had not produced the necessary testimonials.
To obviate this, he produced many testimonials—and it was insisted,
that the itia,‘:!(7llis ought to go, that the Bishop might make a distinct
return of the ground of objection, in order that it might be questioned
in a Temporal Court.
'1 he Court said, they should take time to consider of it.
SATURDAY, FEL 9.
THE KING V. 't HE BISHOP OT aoNnota.
At the Sitting of the Court this morning, Lord Et.x.r. amtonon pro-
ceeded to pronounce the jtalgment of the Court in this en.ic. His Lord-
ship stated, that latan,g oa,turely considered the irovi,ions of the Sta-
tute, and the several cas' :teti upon the occasion, the rest of the Court
c incurred with his La. :Irat the rule for a mandamus should not
• be made absolute.—Tivre was no applicai. m of thi> nature ever t:efor_
made to the Court, and the case itself entire ly depended upon the con-
it taac ion of the Act of Cnaformity, at a time whet: the Legislature was
extremely jealous or and attentive to the affect of the !. aflicting onfai-
cts on religious subjects. By this Act, the Legislature :tad riven a taa
minion to the Mithops a e'er tha right of granting licences, and to ap-
prove or disapprove of the appliaatiun fur wail Lattice) no other power

FEB. 9.

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bad dominion over the Bishop in this respect than his own conssiencs,
which alone was to be the object of his guide.—The Act did not re.
quire that he should examine witnesses, and if it did, it would be p(r_
fectly nugatory in that respect, as he had not the power by law to con:.
pel their attendance, or to administer a., oath.—He was therefore to sa.
tisfy his conscience, and he bad a right to make use of whatever know.
ledge he might possess. The Court could not therefore require of Oie
Bishop to act as the mandamus would direct, as that would be requiring
to do that which his conscience disposed.—The Bishop had declared he
had received the application of Dr. Povah, that he had heard him and
examined into the merits of his application, and u;. )n full enquiry and
deliberate consideration, he was conscientiously of opinion, that that
Rev. Gentlemen was unlit for the office, that he was :Ictuated by no
motive but a conscious discharge of his duty, and the-r, :ore had refusd
the licence. And were the Court to grant this mandamus, it would be
no more nor less than an absolute repeal of the Act, by which this case
was governed.—Rule refused without Costs.