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

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LAW INFELLIGAKCE. had cogniunct of it. But rem supOsing that it were
--- a statute law, which superseded the Common Law,
COURT OF KING'S 'BENCH, FEB. I. as the Admiralty Law did ; then, too, would • the
Court be bound to judge of the boundaries of
BURDETT v. aattoer. that law, jest as it was now required to judge
This demurrer was called oar for argument. what went beyond those of the Admiralty law. He
Mr. HOLROYD stated, that this was an action at should make only one more quotation from Ltird Hale,
law brought by Sir Francis Burdett, Bart. against p. 26, where it was said, that the Law could not
the Right Hon. the Speaker of the House of Corn- be altered but by Act of Parliament ; and that the
mons ; and the declaration charged the defendant decisions of Judges were not to be looked upon as mak-
with a trespass and assault, by breaking into the ing out, as only expounding the laws. Just so, any
plaintiff's house on the 6th day of April, 1810, and matter which had been decided by one house of Par-
obliging him to go to his Majesty's Tower of Lon- liament, would have the effect of great weight in ex.
don. There were other formai counts for false im- pounding the law ; but like the decisions of Co
prisonment. The defendant's first plea was not guilty, of Justice, could only throw fresh lights oh the
his second stated, as to breaking the plaintiff's outer. jest to be taken into after consideration. No resolu-
door and window, and as to all the trespasses in the first tions of either the Lords or the Commons could make
count, that at the time thereof the Session of Parlia- that a legal privilege which was not one : that could
silent was holding at Westminster of the Commons' be done only by an act of the whole Parliament,
House, of which the defendant was a Member and and this was always considered, whenever any
Speaker, the plaintiff being also a Member of that question came before Parliament, whether privilege
House; that the plaintiff and the defendant so being were claimable or not. These authorities of MEd
Members of the said House, the House resolved that Hale, unrequired as they, perhaps, were, the Learned
a letter signed " Francis Burdett," and a paper en- Counsel had cited, because it had been said that their
titled " Argument," published in Cobbett's Regis- Lordships could not keow what the privilege of Pat-
ter of the `24111 of March preceding, which the plain- liament was. The Courts of Law had always disre.
tiff admitted to be of his writing, were a libel on the garded the resolutions of either House of Parliament
rights of the House, and a high breach of its privi- resolving that to be, privilege which the law said was
ieges, and ordered that the plaintiff for that his great not. He next cited Harris's case in 1681, in which
offence be committed to the Tower ; that thereupon it was resolved by the Lords and Commons, that his
the defendant did, for the execution of the said order imprisonment was illegal, and - that for an inferior
issue his warrant to the Serjeant at Arms of the said Court to proceed against him was a high breach of
House, to whom such execution belonged, requi- privilege. His plea to the prosecution was impeach-
ring the said Serjeant to take the body of the plain. ment in Parliament, which plea was over-ruled after
tiff and deliver hint to the Lieutenant of the Tower, argument; and he was ordered to answer over, and
who should keep . him during the pleasure of the was afterwards convicted and executed. The Leap-
House; that by virtue of this warrant, the Serjeant ed Counsel next cited an opinion of Lord Coke when
went to the messuage of the plaintiff, and required Speaker of the House of Commons, which would be
to be admitted; but the outer door of the said messuage found in a note of a judgment by Orlando Bridgman,
being fastened against him, he broke the window- Chief Justice, in the case of Benyon v. Evelyn, printed
shutters and the said door, and conveyed the plain- by Mr. Hargrave, but not yet published. In a ques.
tiff to the Tower, where he was imprisoned actor- Lion whether one Fitzherbert, a Member of the House,
dingle. There was another plea, containing a jus- was not entitled to privilege, Lord Coke desired t,
tification to the assault and imprisonment mentioned be heard to inform the House, that-their first inquiry
in the first count ; and to each of these pleas the plain- ought to be, whether their law be good ; for if they
tiff had demurred—to which demurrer there was a made their writ. unwarrantably, the Lord Keeper
rejoinder in demurrer. In support of this demurrer would and must refuse it. There was an earlier de.
the Learned Counsel was to argue for the plaintiff. cision of the Lord Chancellor, touching the privileges
As it was intimated by Lord Coke in his 4 Inst. 15. of the House of Commons, which would be found in
and 50, that the High Court of Parliament subsistit Hatsell's Precedents, vol. i. p. 96. In 1584, a mo-
tentueudieeparliamenli, and that the privileges of Pita tion for privilege was made by a Member served with
liament are indefinite, it became necessary, in this a subpana in chancery, upon which it was ordered,
case, to ascertain whether the Court had power to that certain Members .should repair in the name of
decide upon those privileges, and to what extent, the whole House, to the Court of Chancery, and re-
before there was any occasion to enquire what that quire the privilege of exemption from that process,
decision ought to be. It would be very extraordi- and the discharge of their Member; upon which
nary that these privileges should be thus indefinite, if the Lord Chancellor told them, that he thought the
by the word indefinite was meant unascertained. It House had no such privilege ; neither would he allow
might be said that this uncertainty was necessary ; of any precedents which the House might produce
but the prerogatives of the King were all defined and in that behalf, unless they could also prove, that the
known, and were not for that reason the less secure ; same had been ratified by the precedents in Chancery.
so the rights and liberties of the people were all The mistake that the Judges could not meddle with
defined and known : but, instead of being insecure the privileges of Parliament, had arisen from Lord
on that account, their certainty was the very reason Coke's conclusion in Thorpe's case. Lord C. J.
of their security. The same might be said of the Bridgman accounted for -this. Prior to that case,
per et consuetude parliamenti. If they were indefinite, there was a record cited in Prynn's animadversions,
they must be nothing—for it was one of the pro- p. 20, which was an original writ of attachment of 9
perties of law to be 'definite. Every subject was bound Edward 11. directed to the Prior of Mahon, cam-
to know the prerogative of the Crown, and the privi. plaining of a contempt in restraining the horses of
lege of Parliament—for if he did not know them, he, Walter le Flemmyng, a Member of Parliament, as
might commit a breach of them which would in- he was returning to York from his parliamentary
duce punishment. Could it be said then, that the duty. Upon this Writ there was no judgment ;
Judges had no cognizance of what every subject in but it served to shew the fact of an action in the
the kingdom was bound to take cognizance ? With King's Bench for a trespass complained of as a breach
respect to the question, whether a common law judge of privilege ; and this privilege claimed, not as be-
cotsid take cognizance of the privilege of Parliament, longing to one House, but to the whole Parliament,
the Learned Counsel quoted 4 Inst. 50, where Lord di pitseetes, Countes, Barones, et alios tam Clericos
Coke observes, that "To say the truth, the laws and quam Laicos." 1 Hatsell, 12. This union of privi-
customs of Parliament arc better to he learned out of lege would be observed in other instances. It might
the rolls of Parliament, and other records, and by be urged, that an action brought in the inferior Courts
precedents and continual experience, than can be ex- touching a privilege of the Commons House, would
pressed by any one man's pen." He tells us, that it be in danger of referring that privilege to the deci-
is of importance to all persons to know these laws, sion of the Lords' House, by writ of error; but this
and a fortiori to the Judges. He tells us, moreover, was one joint privilege of the whole Parliament, so
where they are to be learnt ; and to those sources, that the Commons could be in no such danger, as
the Learned Counsel should go to collect these laws, long as the Lords were deciding on a common ante-
" ab omnibus querenda, a multis ignorata, a paucis rest. Besides, Lord Hale, in the last chapter of his
cognita." He was glad the subject came to be dis- Treatise on the Jurisdiction of the Lords, considers
cussed in this Court, because it was a matter of great their House as not entirely the dernier resort ;it is so,
importance, and one upon which the public mind was as much as no further appeal can be made as a mat-
,nterested. There had been many misconceptions, ter of right; but there were instances in which the
too, on the subject, which he hoped would be set whole matter decided by the Lords had been reversed
tight from the Bench, upon solid and satisfactory tea- by Act of Parliament, and this measure would espe-
sons. He had no hope of success in his case, except cially be resorted to, when a privilege had been wres-
trom addressing himself to the reason of the Court ; ted from the House of Commons, which the nation
and he should, therefore, upon precedents and audio- I thought they ought to have. There was a statute of
rities, argue it as a question of law. He begged to 111 Richard 11. (3 Rolls of Parl. 244) allowing to
bring to the recollection of the Court, what Lord the whole parliament the liberty of debate and action,
Hale in his History of the Common Law (p. 22), confined to what was done in Parliament. The Learn.
bad said upon the subject of the lex et consuetu o parlia- ed Counsel then adverted to Larke's case, in the Bth
menti ; he took that law, not to be a law opposed to Henry VI. (1 Hatsell, 18.) which was the case of a
the common law, but a part of the common law in its servant to Sir Wm. Mildred, who was arrested by
full and extended sense. The Parliamentary Law process of execution from the Court of Common
was therefore a law knowable by the Court, who were Pleas, on the day before the summoning of Parlia-
the Judges of the law of the land. It was part of ment, for i 6208 6s. Bd. damages, and a fine to the
the lex terra, and therefore sot only fit to be known King, for a trespass vi et armir. The House of Corn-
to the Court, but one which the Court was bound to mons, therefore, petitioned the King and Lords for
know. This law had, it was true, been sometimes the release of Larke, upon the ground that he was
contrasted with the common law ; but, then the latter the servant of a Member of that House, and as such
term was used in its more narrow sense, as a law not entitled to the privilege of freedom from arrest, ex-
confined to one particular body, but applicable to the cept for treason, felony, or breach of the peace. Upon
whole ; aid as such it might certainly be opposed to this Larke was ordered to be liberated till the end of
the he prerogative, the lex mertatoria, tholaw of carriers, Parliament, when the execution was to be renewed ;
&c. which were, because they were applied to parti. but as to the Commons' claim of privilege from ar-
eular persons, called laws and customs. This Petite- rest for themselves and servants, during Parliament,
mentary Law was, therefore, that part of the common , except for treason, &c. the King refused it. It was
law of the land, of the lex non scripts, which was ap. to be observed in this case, that the Commons did not
plied to the rights and privileges of Parliament, and act of their own authority ; they laid the case before
was not like the Civil or Admiralty Law, or the law the rest of the Parliament, as a matter of general
Military, as it was anciently exhibited, a separate concern ; and, inasmuch as the execution would have I
end distinct code, but a mere branch and part of the been gone, by the discharge of the.partyt had he hem
common law. As such part of the common law, wrongfully taken, the right of taking him, after the 1
therefore, the Court was in fact. as much bound to Parliament had ceased, was saved. he next case to
take cognizance of it as of any other branch of that which the earned Counsel a
nddverted, was that of
Jaw. The first case which the Learned Counsel cited, Thorpe, which would be fou in 1 Hatsell, 29.
v:as that from 8 State Trials, 162, of a Member of This was the case of the imprisonment of the Speaker
toe House ei Peers, being indicted for murder in the upon . a judgment in the Court of Exchequer, at the
Court of King's Bench, who allowed him the privi- suit of the Duke of York, for a trespass, in taking
lobe of peerage which he claimed, although the House
b away the Duke's goods from the palace of the Bishop
of Peers had ordered that he should not be entitled to of Durham. The Commons appealed to the King
and the Lords for the release of their Speaker, upon
it- The Learned Counsel quoted Hale's Hist. of the
Common Law, p. 59, 44 touching the styles of itl' and which it was represented to thembythe Duke ef York's
the reasons of its being called lex terra, le* "Inglis, and e. ounsel, that process having issuedagaiust the Speaker
if he should be released, the Duly
so on. If the lex et tour:dada parliameatiwerenotpanof m vacation time,
would be without remedy. The Lords according'
the common, law, it would militate directly alka4Z
advised with the Judges, whether the Speaker oar'
Harm aims, c. 29- ; and if it were part. for


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