1812. BURDETT v. Аввот. print: Sir Gilbert Elliot, now Lord Minto, had moved an impeachment against Sir Elijah Impey, and the motion occafioned numerous libels to be published: a motion was made that the authors be brought up and imprifoned; but the House left the matter to the common courts of law, and a perfon now in high authority, who foon after that time was made Speaker of the House of Commons, faid, now that the Judges had commiffions for life, and not durante bene placito of the Crown, the courts of law are the proper conftitutional tribunal for judging offences against the privilege of parliament. Power is a sword, and privilege a shield; there is now no fear that in any question between the subject and the Crown the Judges of the land are susceptible of any bias. Privilege was lent to the House to shield the people from the power of the Crown, but the danger being removed which was the cause of that jealousy which the parliament entertained of the common law courts, the effect ought alfo to ceafe. He concluded by recapitulating the three questions which arose on the cafe, and inferred, 1ft, That no fuch power was fhewn to be given by the ftatute law: 2dly, That none fuch existed by prescription : 3dly, That it did not exist of neceffity. That there was no inftance in any book that the outer door can be broken by any party, unless in the name of the Crown; that it is not enough to say it is for the common weal to execute the Speaker's warrant, in order to justify the breaking the door; for it is conducive to the common weal that debts fhould be paid, yet it is not law that an outer door can be broken to enforce the payment of a debt; that the refolution of the House, and the vote made thereon, was therefore not in execution of the power they poffeffed; and that the warrant was not duly executed, because a warrant to the Serjeant at Arms ought to be executed by the Serjeant at Arms and his affiftants only, and not by calling in the military military to his affiftance, and that this circumstance constituted a most important ingredient in the cafe. If he had not shewn the judgment of the Court below to be clearly wrong, at least he had shaken the authorities on which it was founded, and if the grounds of the judgment were not clearly established, the Court would decide in favour of the liberty of the subject. Richardfon, for the Defendant, purfued, as the natural order of the argument, the course which had been adopted by the Court below. He complained that he was chiefly embarraffed by the conceffions of the counfel for the Plaintiff, who admitted the right of the House to commit for breach of privilege in general, yet controverted it in cafes of libel. If the House of Commons have the right to commit for breach of privilege, which is admitted, the queftion merely is, whether a libel can be a breach of privilege; for if it can, it is unquestioned that the Houfe of Commons are to judge whether a particular libel be a breach of privilege or not. If perfons were to come into the lobby, and obstruct the members of the House by pofitive force, it would be an unquestionable contempt. If they were to cover the walls of the House with placards calling on the people to obftruct the members, would not that be a breach of privilege? What if the libel be not prospective, but calling on the mob to take vengeance on the authors of particular votes fince paffed, is that no obftruction to their future proceedings? A libel, therefore, may be an immediate obftruction, or may tend to an obstruction, and the 'House must have the fame protecting power to punish in the last cafe as in the firft, and the House must judge of the degree in which the libel has this tendency. The argument of the counfel for the Plaintiff has been in great part directed to difprove his own conceffions; for what other end are the inftances cited wherein 1812. BURDETT V. Аввот. 1812. BURDETT V. ABBOT. wherein the Houfe of Commons has called on the Houfe of Lords to aid or concur with them? Thofe, however, are not cafes of libel, but cafes in an early period of history, when the rights of parliament were much less clearly defined than now, and when it was neceffary for all the branches of the legislature to concur to establish those rights, which tended to the general good. What else makes it neceffary to revert to the supposed divifion of the two Houses in the 49th Hen. 3. It is unneceffary to go back into an antiqua rian research as to the origin of the present form of the Houfe of Commons. Selden fuppofes that the introduction of the Commons to the fhare in the legislature which they have fince obtained, was conferred on them by an act of parliament which is now loft. Titles of Honour, 737- 741. If it be fuppofed that the Houses separated within time of memory, it must be argued that the House of Commons hath no power to commit without producing an act of parliament; but it is admitted that they have the power to commit for a clear breach of privilege. There is no weight in the argument drawn from thofe cafes where the House has not chosen to interfere in a fummary mode; it is only an exercise of their difcretion. The language of some members cited in Lord Minto's cafe, acknowledging the fafety with which it may now be left to the Judges now independent of the Crown, to decide queftions of privilege, is the strongest proof of the right of the House to commit. That right is exercised by the House of Commons, and recognized by them during the whole period which intervened between the reign of Queen Elizabeth and the prefent time. The committee, inftructed by the House of Commons to enquire into this point, have found not less than forty inftances. The judicial recognitions of the power are to be found mostfully stated in 2 State Tr. 616. to 632., Lord Shaftesbury's cafe. S. C. Mod. Queen Queen v. Paty. 2 Lord Raymond 1105. Murray's cafe, (a) Lord Shaftesbury abftained from retracting his opinion on the point of law. VOL. IV.. Hh autho 1814. BURDETT V. Аввот. 1812. BURDETT บ. Аввот. authority to fhew that when one branch of the legislature has adjudged a cafe which lies within their own jurisdiction, a court of law cannot review it; and the fubfequent proceedings of the House of Lords confirm this doctrine, for they fhew that there is a constitutional tribunal to reverse any thing which is adjudged wrong by that body. To fay otherwife, would be to argue that because a judgment is erroneous, and may be reversed on appeal, therefore a Court does wrong which notices the subsistence of the judgment while unrepealed. And it would be monftrous to fay, an officer is liable to an action for carrying into execution the judgment of a competent court while it is in force; it even protects him after the judgment is reversed. I Mod. 119. and 184., Bufbell's cafe. S. C. Vaug. 735. The Court declared (184.) their opinion against the action; viz. that no action will lie against a Judge for wrongful commit ment, any more than for an erroneous judgment. If any redrefs were given in the prefent cafe, a habeas corpus would be the means of that redrefs; for it appears by Bufhel's cafe a man may be liberated by habeas corpus, if improperly committed, though he cannot bring an action. In the cafe of Jay v. Topham, 8 St. Tr. 1., Pemberton C. J. and T. Jones J. at the bar of the House of Commons agreed that if the order of that House had been pleaded in bar, and not in abatement to the juris diction, it would have been good; and the judgment, it is conceived, was right, that it was no plea in abatement. On Murray's cafe it does not appear, either upon the report or on the warrant, what the contempt was; and the Court held that it need not appear; for if it did, they could not judge thereof. Denison J. fays, the House needs not tell us what the contempt was, because we cannot judge of it; and Fefter J. notices, that even Holt C. J., who differed with the other Judges in Abby ▼. White, held the House might commit for a contempt "in the face of the House;" thefe words feem impro perly |