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

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 Attalt
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"lolollllBerldrfitlga
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-
.