Lords Sitting of 7 July 1817

SIR F. BURDETT V. THE SPEAKER AND SERJEANT OF THE HOUSE OF COMMONS.
This was a writ of error brought by sir F. Burdett, to reverse the judgment of the court of King's-bench, which was in favour of the Speaker. The case was argued last week by Mr. Brougham and Mr. Courtenay, for the Plaintiff in error, and it stood over till this day.
The Lord Chancellorsaid, that before their lordships proceeded farther, it would be proper to take the opinion of the Judges on the following question:—Whether, if the court of Common Pleas had adjudged that a person should be committed for a contempt, and the warrant stated that adjudication generally without setting forth the particular circumstances, and the case had been brought before the court of King's-bench by Habeas Corpus, and the return stated the warrant of commitment for contempt, whether, in such a case, the court of King's-bench would liberate the prisoner on the ground that the particular circumstances were not set forth in the warrant.
The question was accordingly put to the Judges, and they having consulted together for a few minutes, the lord chief baron delivered their unanimous opinion, that in such a case, the court of King's-bench would not liberate.
The Lord Chancellorthen observed, that this was an important but not a difficult case. If he had thought it difficult, or had any doubt about it, he would have been anxious to hear the counsel for the defendants: but being clearly of opinion that the House of Commons had the power of committing for contempt—that this was a commitment for contempt— that the contempt, if that was necessary, was sufficiently set forth in the warrant— and that the objections in point of form had not been sustained; unless any other noble lord stated it to be his wish to hear the council for the defendants, he would move that the Judgment of the Court below be affirmed.
Lord Erskinesaid, that as he concurred in the motion, it would have been quite unnecessary in almost any other case, to add any thing to the formal proposition of affirmance, by his noble friend who presided in the House; but from what had formerly passed when the imprisonment of the plaintiff in error took place, he felt it incumbent upon him to say a very few words. At that time, it was an opinion expressed by persons of great weight in the House of Commons, and it was generally thought to have been its settled intention, not to permit any action to be proceeded in so as to have its privileges at all questioned or canvassed in a court of law, and that imprisonment would attach upon all who should issue process, or countenance it in judgment. Having felt the utmost alarm at a proposition so dangerous to the liberty of the subject. He had expressed himself on that occasion with more warmth than was thought right by some whose opinions he valued most highly; but, for his own part, he repented of none of it, and under the same circumstances would repeat it again, and stand by every word of it. No man could respect or uphold more than he did the high privileges of that House, so essentially necessary for the security of public liberty, and whilst the Commons were advancing amidst many obstacles to its just station in the constitution, now so happily and securely attained, it was no wonder that they were jealous of their privileges which often led them into excesses unnecessary for their preservation, and inconsistent with the security of our legal constitution, as they had imprisoned persons for only appealing to the laws of their country for their deliverance. He could not, therefore, help expressing his heartfelt satisfaction at the course which, in the present instance, had been pursued. The speaker, though standing perhaps in a situation which might have differed in argument from that of inferior persons, (though upon that he should give no opinion), had put in his plea like the most private man. He had not objected to the jurisdiction of the court of King's-bench, but had put himself upon the country for the fact, and pleaded his justification to the judges of the law; so that if the court had decided against him, he must have been bound by the judgment, and the House of Commons also, which had authorized that proceeding. This was no waver of privilege, but an act which gave it double security and

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lustre; as the privileges of parliament were port of the law of the land, and would always be duly maintained in the courts of justice. The House of Lords, though possessing, as a branch of the legislature, the very same privileges as the House of Commons, thought it no derogation of them, to ask the assistance of the learned Judges now on the woolsacks, although their lordships were not at all bound to consult them even when deciding upon a writ of error in an ordinary case. The matter had been argued with equal ability and propriety, and every objection had been taken which could support the plaintiff's claim; but if, instead of its being a commitment by the House of Commons, it had only been that of one of the superior courts of law, he should have given the same opinion; as he could not agree that the Commons had any higher privileges of commitment for contempt than that which was necessarily possessed by the superior courts for their own protection, and that of the people whom they protected. It had been contended, that the plea did not contain a sufficient allegation that the plaintiff in error had authorized the printing of a libel upon the House of Commons as a paper might reflect upon it without its being an injurious reflection; but the record stated that it was "a libellous and scandalous paper reflecting upon the just privileges of the House;" No averment could be more distinct. It had also been contended that the plaintiff in error had only admitted this paper to have been printed by his authority, and not the publication; but the record stated, that it was printed in Cobbett's Weekly Register; and if I authorize what I send to such a paper to be printed, I, of course, consent that it shall be published. Taking it, then, to have been published by his authority, the learned judges had just given their unanimous opinion, that such a general statement of a contempt would be sufficient to support a commitment of the court of common pleas, and that the King's-bench, though a superior court would upon a Habeas Corpus, adjudge it to be sufficient, and would not discharge the party. Now, to apply this to the case before the House. It had been properly conceded in argument by the learned counsel at the bar, and admitted in their printed reasons, that the courts of law could not deliver a person committed by the House of Commons, whilst
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it continued sitting; but they contended, that the validity of the same warrant which would hold the party when returned to a Habeas Corpus, might nevertheless be declared to be illegal in an action; but such a proposition could in no way be supported. A Habeas Corpus was the highest writ in the law, and the cause of commitment must surely demand the same precision under a return to it, as could be required in any form of pleading by way of justification in an action; and, indeed, the process of contempt by the superior courts could never at all be executed unless it were held sufficient for all who carried it into execution to justify by their pleas in the language of the warrant since what other authority could they possibly produce in their defence. Though if this were so, and of that he entertained no doubt, it embraced the whole case, and concluded it, since the judgment of the House must have been precisely the same, if the record now before it had stated a commitment of the court of common pleas for a contempt instead of the House of Commons, for a breach of privilege. He only repeated this to assign clearly the reason of his opinion, as he never could agree that the Houses of parliament had any higher or larger privilege of commitment than that which necessarily belonged to the superior courts. He would trouble their lordships no farther. He always felt more than he could express when the legal jurisdictions of the country were in question, as he was sure that if they were overborne the sun of British freedom would set for ever.
The counsel were then called in, and informed, that the House did not think it necessary to hear the counsel for the defendants; and the judgment of the court below was, without farther proceedings, affirmed.