The Statesman.
London, England, 1812-02-10 00:00:00

LAW IN7'ELIAGENCE.

COURT OF. KING'S BENCH, F. 8.

CO►JRT OF EXCIAQUER CTIAMBEILS, Ti. 9.

THE HOME OP COMMONS.

!~

Tn. KING O. TB BISHOP OP LONDON AND ARCH-
BISHOP OF CANTERBURY.
Lord ELLEISBOROUGII, after stating that he had
availed himself of the opportunity which the interval
since yesterday afforded, to read over the various
affidavits in this case, proceeded to &liter the opi-
Dion of the Court. It was to be observed, that the
duty of the Court to interfere in such a case as the
'present. was to be construed by reference to the Act
of the 13th and 1 ith of Charles 11. by which it' was
declared, that no person should be permitted to act
as a Lecturer or Preacher • unless he were first ap-
proved, and thereto licensed, by the Archbishop of
the province,' or Bishop of The diocese. /The %mi..
tion, thei, was, what was this approval required by
the Statute? It was clearly a condition precedent,
without which the Bishop or Archbishop could not
be called on to grant his licence. If the Court saw
that, in the present case, the Bishop had not laid
himself out to acquire the means of a deliberate ap-
proval of Dr. Poyab, if lie should find him to be a fit
person to be licensed a Friday Morning Lecturer of
the Church in question, that' might be sufficient
'cause for the Court to interfere. But it appeared,
on the contrary, that the Bishop had used all true,
reasonable, and prop.'r means to enable him to come
to a deliberate and fair decision on this point. The
affidavits of the Bishop himself bore, that, after
every due deliberation, belted come to a conscien-
tiolyi orinion-andtconsiction that he could not, con-
sistantly wi!h his duty, approve of Dr. POO as a
fit and pryer person to be the Frith', Morning Lec-
turer of the Church of St. Bartholomew' and that
from this, and from no other motive, had he refused
lint a Licence as such lapetus.... If the Bishop had
matte a return of kind to the mandamus, on the
idea that the Court had granted- it, would not such
return have been satisfactory 3 The Court had never
been desired to aet upon, nor bad they ever thought
of acting on, the conscience of the Bishop. • Unless,
therefore, the Court could repeal the law, and take,
from the Bishop the power of approval reposed in
him, they could not grant the present application.—
His Lordship agreed that there was a duty to be per-
formed both by the Archbishop tnd the Bishop. Of
what nature this duty was, he should not at present
consider. That the Rocords of the Archbishop's
Court furnished no instance of an_application to the
Archbi-hop. as within his province, but only within
his diocese, did not prove that no such application
lay, but only that none such had been made. If any
application, however, were here to be made to the
Archbishop, his Lordship hoped it would be a sub-
stan'ial application. The Rule must be discharged
KS to roth.

The ATTOIivET-GENERAL hoped that as to the
Bishop of London, the Rule might be discharged with
costs. _ _ _

Lord ELIANSOIIIeITGEI said, this was probably the
first case on this particular point, and therefore, the
Coert was of opinion, no costs ought to be given ;
but if any similar case should be tried, they would
then do what was right.

Pik -v. IIUILDETT (IN ERROR) V. VIZ 111P6AKER OF

Mr. CLITE,;it; thir day argued the case of the
I'lti',titl l'lrror, before the Judges of the Court of
Corammt Mess, and the Barons of Exchequer. The
'Le reed Gentloman dlivided his argutnents into four
parts. maintain fiist--That neither in point of '
authority, nee cf iserossity, was the Defendant right
in the eeorntian of•the warrant, because there was
no direct legal sanction or derision by the Courts of
DM?'to snerort it. Secondly, That the Resolu-
tion of the House, charging Sir F. Burdett with a
breach of its privilges, was not in conformity to the
power of the House—Thirdly; That the warrant was,
not in due execution of the order of the Rouse; in as
much as the warrant ought to hare been executed by
the- &dean at Arms, and by the Officers of the
House, without calling in the military : —And fourth-
ly, that those who executed the- warrant were not
justified in breaking into the Plaintiff's house, the
process they were to put In execution being only one
for contempt ; and on this point the Learned Coen-
sal contended there could be no right to break into
the house of any person, unless where the King was
a party. The Learned Counsel took a minute view
of the privileges claimed by the House of Commons
from the earliest periods, and in a particular man-
ner combated the law on this subject, as laid down
by Sir Edward Coke. This he did on two grounds—
Ist, luasmocit as the modus tenendi Parliamenti, on
which Sir Edward Coke built his chr.pter on the
66 Privilege of Parliament," was proved by Prynne
and by Selden to be a forgery; and 'My, that the
case on which he relied was that of Thorpe, in the
reign of Henry VI. when the Duke of York, who
was at the time at the head of the army, at the head
of the Parliament, and had usurped the power over
the King himself, had a complete controul over the
Judges, whose opinion he sought, and who dared
not act contrary to his wishes. This was appa.
rent from the whole tenor of the opinion giyen
by them—by which they declared the Privi-
leges of Parliament to be so great, that no
Court could interfere with them; 44 what was
not law, they could make law—and what was -
law, they could make no law." He also quoted the
°Pinion of Lord Clarendon, en the subject of die sup-
posed privilege of Parliament. That learned person
went the length- of denying that they at all existed,
unless for the public benefit, and declared that, in
the way in which they had been exercised, the Pre.
rogatives of the Crown, the Immunities of the Church,
and the Rights of the People, were all swallowed up
in the bottomless and insatiable gulph of the Privi-
leges of Parliament. These Privileges the same N 0.,.
ble. Author, in another part of his writings, declared
to have been.begotten in usurpation, and born and
nurtured in insurrection. From a review of the
Earl of Shaftesbury's case, on which so much reli-
ance had been placed on the other side, he contended
that it was to be regarded rather as a case in his fa-
your. There was,. no doubt, to be found, iu the
Reyerts of the cases in the Court of King's Bench, a'
decision affirming the validity of the imprisonment
of Lord Shaftesbury for a libel ; but the House of
Lords. themselves, who were the Court of dernier