which the serjeant did to the officers of the Compter, who notwithstanding refused to do it, and beat and hurt some of the serjeant's officers, and broke his mace; and during the brawl, the sheriffs of London came in, who countenanced the officers of the Compter, and refused to deliver Mr. Ferrers, and gave the serjeant proud language, and contemptuously rejected his message: Hereupon the Commons commanded the serjeant to require the sheriffs of London to deliver Mr. Ferrers by shewing them his mace, which was his warrant for so doing. Whereupon the sheriffs delivered him accordingly; but then the serjeant having further command from the Commons, charged the sheriffs to appear personally on the morrow by eight of the clock, before the Speaker, in the nether House, to bring thither the Clerks of the Compter, and such other of their officers as were parties in the fray, and to take into custody one White, who had wittingly procured the said arrest in contempt of the privilege of parliament. "Next day the two sheriffs, with one of the elerks and White, appeared in the Commons House; where the Speaker charging them with their contempt and misdemeanor, they were compelled to make immediate answer, without being admitted to council [qu. to have counsel]; and in conclusion the sheriffs and White were committed to the Tower, and the clerk (which was the occasion of the fray) to a place called Little Ease, and the officer which did the arrest, called Taylor, with four other officers, to Newgate, where they remained from the 28th to the 31st March, and then were delivered at the humble suit of the mayor and their other friends. pear before them, to answer for themselves before the House passed any censure upon them. 3. That in none of these censures they enjoined the delinquent to pay their fees to their serjeant, for the serjeant is the king's officer; and by the 26th West. 1, no officer of the king's shall take any fee or reward for doing his office, but what he receives from the king, upon penalty of rendering double to the plaintiff, and be further punished at the will of the king. And sir Edward Coke in his first Inst. lib. 3. sect. 701, tit. Extortioners, says, this was the antient common law, and the penalties added by the statutes; and that, though some statutes since have allowed the king's officers in some cases to take fees for executing their offices, yet none other can be taken but what such statutes allow; and that all officers of the king, who take fees otherwise, are guilty of perjury. I would know by what law the Commons' serjeant takes his fees, and how the Commons can absolve him from perjury for taking such fees. "Whereas in this parliament rarely a day passed wherein men upon bare suggestions, and absent, were not judged, and execution ordered for high and notorious breaches of the Commons' privileges, yet most of these not foreknown, and ordered to be taken into custody, though in Northumberland and Yorkshire: and rarely I think any of them were discharged without paying their fees; nay, they outrun all that was ever thought of before: for on the 14th of December, having voted one Mr. Herbert Herring to be taken into custody, and Herring absconding, the House resolved, That if he did not render himself by a cer tain day they would proceed against him by bill in parliament for endeavouring by his absconding to avoid the justice of the 'House.' "The next breach of privilege reported by Petit, is eight years after, viz. the 4th of Edward 6, by one Withrington, who made an assault upon the person of one Brandling, Bur- "It was strange methought that the Comgess of Newcastle; but the parliament drawing mons should be so zealous against any arbitowards an end, the Commons sent Withring-trary power in the king, and take such a latiton to the privy council, but the council would not meddle in it, and sent the bill of Mr. Brandling's complaint back again to the Commons according to the antient custom of the House; whereupon the bill was sent to the Lords from the Commons, when Withrington confessed he began the fray upon Dr. Brandling, upon which he was committed to the Tower. This was in the year 1550. "Mr. Petit finds not another breach of privilege till the 14th of Elizabeth which was done by one Arthur Hall, for sundry lewd speeches used as well in the Commons House, as abroad; who was warned by the serjeant to appear before the bar of the Commons to answer for the same, and upon bis knees, upon the humble confession of his folly, he was remitted with a good exhortation given him by the Speaker. Here I observe these three particulars: 1. The rarity of these breaches of privileges of parliament in former times. 2. The justice of the Commons in their proceedings of breach of privilege, to cite the person or persons to ap tude to themselves, which puts me in mind of a story I have heard of an old usurer, who had a nephew who had got a licence to preach, and the uncle having never done any thing for his nephew, he resolved to be revenged upon his uncle in a sermon which he would preach before his uncle in the parish where he lived: he made a most invective sermon against usury and usurers; but after the sermon was done, the uncle thanks his nephew for his good sermon, and gave him two 20s. pieces: the nephew was confounded at this, and begged his uncle's pardon for what he had done, for he thought he had given him great offence: 'No,' said the uncle, Nephew, go on and preach other fools out of the conceit of usury, and I shall have the better opportunity of putting out my money.'" 2 Coke's Detection, p. 255. "Afterwards he" [Kennett] "comes to the great work of mortifying these Abhorrers, and there he is full as copious and honest; for he tells only of nine or ten, in a naked list of gen tlemen, sent for by the serjeant at arms, and presented to the judge of assize the grand jury's committed by the House of Commons, without Address to his majesty in the tenor of an Abhorany distinction of cases or circumstances, but rence. Upon naming him in the House of only for detesting and abhorring petitioning for Commons, for the leader of this Abhorrence, he the sitting of the parliament. That is his tune was ordered to be taken into custody of the upon all occasions. And here he is forced to serjeant at arms. And the serjeant sent down croud in by the by, that it was a breach of the his deputy to bring the gentleman up; but he privilege of parliament; which vote did indeed would not submit to the arrest, the officer come forth at last, otherwise this committing might take his course. For which he alledged folks had gone with less colour. But, withal, that he knew no law for the taking away his that the proceeding raised a great clamour in liberty on account of what he did as a grand the country; for it had not been usual to send jury man, in a court of justice, sworn, or to for gentlemen in custody for what they did some such effect; whereupon the officer reupon grand juries, and in way of duty, as well turned without his prey. This was a dash of in giving testimony of their loyalty to the king, cold water, and took down the ferment of the as in resisting a tumultuous trade of hand whole business. And the matter was hushed gathering in the country, to the very great dis-up, some saying that he was indisposed, others turbance of the neighbourhood and the public that he could not be found; and so nothing peace, only because they happened to be mis- was farther done against him. And no more understood in the House of Commons. It men of any sort were sent for into custody certainly was prejudicial to the authority of the upon this account; for the wisest of the facHouse of Commons, and added to the dispo- tion began to perceive there had been too sition in the kingdom of relying upon the king's many sent for already. I remember well that good government; and many said, Shall the name of this Mr. Stowell was famous, and they take away the liberties of the king's peo- cried up in and about London, and all over ple, who are entrusted to defend them against England, and celebrated in healths of course, all arbitrary powers whatsoever? And it gave as of a general after victory, or rather a solemn occasion to the king to justify the dissolving, assertor of the people's liberty. I never knew saying, as in his declaration, That they re- the like in the case of a private person, except turned arbitrary orders for taking our subjects that of Dr. Sacheverel; the latter run higher, into custody for matters that had no relation but the difference was only in majus et minus.' to privileges of parliament.-Strange illegal It was impossible a faction (without doors) votes!-declaring divers persons to be ene- should rage and tyrannise, as the party did mies to the king and kingdom, without any about the beginning of this parliament, and order or process of law, any hearing of their not lose the hold they had of the people, whom offence, or any proof so much as offered they had led into a tolerable opinion of them. against them.' There was scarce a day past, but they were gratified with hearing some person was sent for in custody for abhorring. Sir George Treby said, they (meaning the House of Commons) kept an hawk, (which was their serjeant at arms) and they must every day provide flesh for their hawk. I can better relate this for truth, because it was spoke to myself. The serjeant's name was Topham, and the much work he had upon his hands, at this time, ad terrorem populi Regis,' had made it proverbial, on all discourse of peremptory commitments, to say take him Topham;' which, for ought I know to the contrary, may, from that authentic original, continue a proverb at this day. Whatever the commitments were, the dread was almost universal; for after the vote, that traducing petitioning should be punished as a Breach of Privilege, who could say his liberty was his own? For, being named in the House for an Abhorrer, take him Topham.' But the consequence of this proceeding, as I have hinted it, may be a lesson to all powers, on whatsoever foot they are erected, that they take care to perform their duty according to the intent of their institution, thereby making themselves useful, and not a terror to the peo ple under them; for if, instead of that, out of private regards, they grow intemperate, irregular, and injurious, they will lose ground, and The effect of these harsh proceedings appeared in the case of one Mr. Stavel, or Stowel, a gentleman of a good family in Devonshire. He was foreman of a grand jury at Exeter, and Commons Journal, "Sabbati, 4to die Decembris, 1680, p. m. The House being informed that Mr. William Stawell, in custody of the Serjeant at Arms attending this House is sick, and not able to appear before this House, Ordered, That Mr. Stawell have a month's time given him for such his appearance." It seems probable that this entry relates to the person mentioned by North. Mr. Hume, indeed, 8 Hist. 131. Ed. of 1807. tells us, that "the vigour and courage of one Stowel, of Exeter, an Abhorrer, put an end to the practice" [of arbitary and capricious commitments]. "He refused to obey the serjeant at arms, stood upon his defence, and said, that he knew of no law by which they pretended to commit him. The House finding it equally dangerous to proceed or to recede, got off by an evasion; they inserted in their votes that Stowel was indisposed, and that a month time was allowed him for the recovery of his health." He quotes no authority; so that he "stood upon his defence," and "got clear off by an evasion," (no very dignified historical phraseology), may perhaps be mere inventive decoration. These Reports are as follows: So, too, Burnet, 1 Own Times, 484, fol. ed. REPORTS from the SELECT COMMITTEE apof 1724: "The House did likewise send their serjeant to many parts of England, to bring up abhorrers as delinquents: upon which the right that they had to imprison any besides their own members came to be much questioned, since they could not receive an information upon oath, nor proceed against such as refused to appear before them. In many places, those for whom they sent their serjeant refused to come up. It was found that such practices were grounded on no law, and were no elder than queen Elizabeth's time. While the House of Commons used that power gently it was submitted to in respect to it; but now it grew to be so much extended, that many resolved not to submit to it." [Query, as to what Burnet says of the House of Commons not proceeding against such as refused to appear before them, see the Proceedings in the Case of Jay and Topham, A. D. 1689, infra.] See, too, Ralph, 516, 517. Much attention has been lately (I write in the month of June 1810) directed to the topic of commitment by the House of Commons, in consequence of the publication of a Letter, from "Sir Francis Burdett to his Constituents denying the power of the House of Commons to imprison the people of England." And in addition to the copious discussion of the subject in parliament, it has been ventilated from the press with much erudition. Mr. Williams Wynn has published a learned "Argument upon the jurisdiction of the House of Commons to commit in cases of Breach of Privilege," and a powerful writer, (Mr. Evans) under the signature of Publicola' has published "Six Letters on the Liberty of the Subject and the Privileges of the House of Commons." So likewise have been published, "The Speech of Mr. Ponsonby on the question relative to the Privileges of the House of Commons as connected with the committal of Sir Francis Burdett and Gale Jones;""Speech of William Adam, esq. &c. ;" "A Concise Account of the Origin of the two Houses of Parliament, with an impartial Statement of the Privileges of the House of Commons, and of the Liberty of the Subject, by Edward Christian, esq. &c."; "The Law and Usage of Parliament in cases of Privileges and Contempt, &c. by Francis Ludlow Holt, esq.;" "A Vindication of the Privileges of the House of Commons, &c. by Henry Madock, jun. esq.;" "The Question considered: Has the House of Commons a right of committal to prison, &c. by E. A. Burnaby, esq. ;" and an anonymous "Short Examination into the power of the House of Commons to commit, in a Letter to Sir Francis Burdett, bart." The House of Commons also has, by Votes of 11th and 23d May, 1810, caused to be printed the following documents: pointed to consider of the Proceedings had, and to be had, with reference to the several Papers signed "FRANCIS BURDETT;" the Contents of which relate to his being apprehended, and committed to the Tower of London. Together with an APPENDIX. [As amended on Recommitment.] FIRST REPORT, It appears to your Committee, after referring to the Order of the House of the 5th day of April last, for the commitment of sir Francis Burdett to the Tower; the Warrants of the Speaker for that purpose; the Letter of sir Francis Burdett to the Speaker, dated the 17th day of April last; the Report and Examination of the Serjeant at Arms, touching his proceedings in the execution of such warrants; the notices to the Speaker referred to your Committee; the demand made upon the Serjeant at Arms of a copy of the warrant under which he arrested sir Francis Burdett; the writ served upon the Serjeant, and the summons served upon the Speaker, and the notice of Declaration filed against the Serjeant; which said notices, demand, writ and summons, are all at the suit or on behalf of the said sir Francis Burdett, and all bear the name of the same solicitor, John Ellis; That the said proceedings have been brought against the Speaker, and the Serjeant, on account of what was done by them respectively in obedience to the Order of the House; and for the purpose of bringing into question, before a court of law, the legality of the proceedings of the House in ordering the commitment of sir Francis Burdett, and of the conduct of the Speaker, and the Serjeant, in obedience to that Order. 1. Your Committee, not in consequence of any doubt upon the question so intended to be raised, but for the purpose of collecting into one view such Precedents of the proceedings of the House upon cases of Breach of Privilege as might afford light upon this important subject, have in the first place examined the Journals, with relation to the practice of the House. in commitment of persons, whether members or others, for Breaches of Privilege, by offensive words or writings derogatory to the honour and character of the House, or of any of its members; and they have found numerous instances, in the history of Parliament, so far as the Journals extend, of the frequent, uniform, and uninterrupted practice of the House of Commons to commit to different custodies, persons whom they have adjudged guilty of a Breach of their Privileges by so offending. The statement of these Precedents, which establish the Law of Parliament upon this point by the usage of Parliament: the utility of such law, and the necessity which exists for its continuance, in order to maintain the dignity and independence of the House of Commons; its | Analogy to the acknowledged powers of courts of justice, and the recognition of such right in various instances, by legal authorities, by judicial decisions, and by the other branch of the legislature; as well as the invariable assertion and maintenance of it by the House of Commons, are topics which may be reserved for a further Report. And although there are some instances in which the House as thought proper to direct prosecutions for such offences, yet the Committee confidently state that the more frequent practice of the House, at all times, has been to vindicate its own Privileges by its own authority. 2. The subject which appears to your Committee to press most urgently for an immediate report, is, The state of the law and the practice of the House in cases either of criminal prosecution or civil action against any of its members, for any thing spoken or done in the House of Commons; or for any proceeding against any of its officers or other persons acting under its authority. The principal instances to be found under this head arose out of those proceedings, which, in the time of Charles the 1st, Charles the 2nd, and James the 2nd, were instituted by the officers of the crown, in derogation of the Rights and Privileges of the Commons of England. Those proceedings were resisted, and resented by the House of Commons; were condemned by the whole legislature, as utterly and directly contrary to the known laws and statutes and freedom of this realm; and led directly to the Declaration of the Bill of Rights, "That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament;" and your Committee have no hesitation in stating, that this article in the Bill of Rights extends as clearly to Actions or Indictments brought, or prosecutions by individuals, as to Informations or other proceedings directly instituted by the authority of the crown. The Law of Parliament on this subject, so far as relates to words spoken in Parliament, was legislatively declared in a statute to be -found in the Parliament Roll of the 4th of H. 8: By that act, the rights and privileges of free speech in Parliament are established, and a special action is given in favour of the party injured by any action brought against him for words spoken in Parliament. And, from this statute, it appears that Parliament at that time, when the case occurred which seemed to shew the expediency of legislative provision to give fuller force and protection to its privileges, made it the subject of such provision. 1640, the House of Commons, after a Report made of the state of the cases of Mr. Holles and the rest of the imprisoned members, in the In the reign of Charles 2, these proceedings were again taken into consideration; and the House of Commons came to several Resolutions. On the 12th of November, 1607, they resolved, That the act of Parliament in the 4th year of the reign of Henry 8, above referred to, is a declaratory law of the ancient and necessary rights and privileges of Parliament. On the 23rd of November, 1667, they resolved, That the Judgment above referred to against sir J. Elliot, D. Holles, and B. Valentine, esquires, in the King's-Bench, was an illegal Judgment; and on the 7th of December, 1667, they desired the concurrence of the Lords. The Lords on the 12th of December agreed with the Commons in these Votes. Your Committee next refer to the case of sir William Williams; the detail of which they proceed to insert from the Report of a former Committee of this House. [27 Mar. 1771. iii. Com. Rep. p. 11.] 6 The Case of sir William Williams, against 'whom after the dissolution of the Parliament 'held at Oxford, an Information was brought by the Attorney General, in the King'sBench, in Trin. Term 36 Car. 2, for a mis' demeanor, for having printed the Information against Thomas Dangerfield, which he had ordered to be printed when he was Speaker, by Order of the House. Judgment passed ' against him on this Information, in the 2nd year of king James the 2nd. This proceeding the Convention Parliament deemed so great a grievance, and so high an infringe'ment of the rights of Parliament, that it appears to your Committee to be the principal, if not the sole object of the first part of the eighth head of the means used by king James to subvert the laws and liberties of, this kingdom, as set forth in the Declaration of the 'two Houses; which will appear evident from "the account given in the Journal, 8th of Feb. 1688, of the forming of that Declaration, the eighth head of which was at first conceived in these words; viz. "By causing In"formations to be brought and prosecuted in "the Court of King's-Bench, for matters and "causes cognizable only in Parliament, and by "divers other arbitrary and illegal courses." 6 6 11th February 1688. "To this Article the "Lords disagreed; and gave for a reason, Be"cause they do not fully apprehend what is "meant by it, nor what instances there have been of it; which therefore they desire may "be explained, if the House shall think fit to "insist further on it." In the 5th of Charles 1, an Information was filed against sir J. Elliot, Denzel Holles, esq. and Benjamin Valentine, for their speeches and conduct in the House of Commons; Judgment was given against them in the King's-Bench," they were sentenced to imprisonment, and were fined: In the Parliament which met in 12th February 1688. "The House disagree "with the Lords in their amendment of leaving " out the eighth Article. But in respect of the "liberty given by the Lords in explaining that "matter; resolved, That the words do stand "in this manner; By prosecutions in the "Court of King's-bench for matters and "causes cognizable only in parliament, and by "divers other arbitrary and illegal courses." By which Amendment, your Committee ob'serves, that the House adapted the Article more correctly to the case they had in view; for the Information was filed in king Charles 'the Second's time; but the prosecution was 'carried on, and judgment obtained, in the ⚫ second year of king James.' the following session ordered to be brought in; and a third Bill passed the Commons in 1695, and was sent up to the House of Lords, but did not proceed there to a second reading. It appears further, that on the 4th June 1689, "A Petition of John Topham, esq. was read ; "setting forth, That he, being a Serjeant at "Arms, and attending the House in the years "1679 and 1680, when several orders were "made, and directed to the petitioner, for the "taking into his custody the several persons of "sir Charles Neal, &c. &c. and others, for "several misdemeanors by them committed in "breach of the privilege of the House; and "after that the Commons were dissolved, the "said persons being resolved to ruin the petiThat the meaning of the House should be "tioner, did, in Hilary term, the 33d or 34th ⚫ made more evident to the Lords, the House "of king Charles, sue the petitioner in the ordered, "That sir William Williams be "King's-bench in several actions of trespass, "added to the managers of the Conference;" "battery and false imprisonment, for taking ⚫ and sir William Williams the same day re- "and detaining them as aforesaid: to which 'ports the Conference with the Lords; and, "actions the petitioner pleaded to the juris"That their lordships had adopted the Article "diction of the Court, the said several orders; "in the words as amended by the Commons.” "but such his plea was over-ruled; the then And corresponding to this Article of Griev-"judges ruling the petitioner to plead in chief, ⚫ance, is the assertion of the Right of the Sub'ject in the ninth Article of the Declaratory 'part of the Bill of Rights; viz. "That the "freedom and debates or proceedings in par"liament, ought not to be impeached or ques❝tioned in any court or place out of parlia*ment." To which may be added, the latter part of 'the sixth Resolution of the Exceptions to be ⚫ made in the Bill of Indemnity, Journal, vol. x. p. 146, wherein, after reciting the surrender of Charters, and the violating the rights and 'freedoms of elections, &c. it proceeds in these words: "And the questioning the proceed"ings of parliament, out of parliament, by "Declarations, Informations or otherwise, are "crimes for which some persons may be justly "excepted out of the Bill of Indemnity." 66 "and thereupon he pleaded the orders in bar to "the actions: notwithstanding which plea and "orders, the then judges gave judgment "against him, &c." [x Com. Journ. p. 164.] "Upon the Report from the Committee of Privileges and Elections, to whom this peti"tion of J. Topham was referred, the House "Resolved, That this House doth agree with "the Committee, That the Judgment given by "the Court of King's-bench, Easter term “34 Car. 2, Regis, upon the plea of John Top"ham, at the suit of John Jay, to the juris"diction of that Court; and also the judg"ments given against the said Mr. Topham, at "the suit of Samuel Verdon, &c. are illegal, "and a violation of the privileges of parliament, "and pernicious to the rights of parliament." Whereupon it was ordered, "That sir Francis "Pemberton, sir Thomas Jones, and sir Fran"cis Wythens, do attend this House on "Wednesday morning next." [x. Com. Jourp. 209. On the 11th of June 1689, the House ordered, "That the Records of the Court of "King's-bench, relating to the proceedings "against William Williams, esq. now sir Wil"liam Williams, knight and baronet, late "Speaker of this House, be brought into this "House, by the Custos Brevium of the said "Court, on Thursday morning next." [x Com." Jour. p. 177.] On the 12th of July, “The Record was "read; and the House thereupon resolved, "That the Judgment given in the Court of "King's-bench, in Easter term 2 Jac. 2d, "against William Williams, esq. Speaker of "the House of Commons in the parliament "held at Westminster 25th October 32 Car. * 2d, for matter done by Order of the House of "Commons, and as Speaker thereof, is an ille"gal judgment, and against the freedom of "parliament. Resolved, That a bill he brought in to re"verse the said Judgment." [Ibid. p. 215.] This Bill was twice read, but went no further in that session :'---A similar Bill was in VOL. VIII. "In consequence of this order, sir Francis "Pemberton and sir Thomas Jones, who had "been two of the judges of the Court of King's-bench at the time when the judgment "was passed, were heard in their defence; "and afterwards committed to the Serjeant at "Arms, for their breach of the privileges of "this House, by giving judgment to over-rule "the plea to the jurisdiction of the Court of "King's-bench." [x. Com. Jour. p. 227.] Your Committee think it proper to state, That sir Francis Pemberton and sir Thomas Jones, in defending themselves at the bar of this House for their conduct in over-ruling the plea to their jurisdiction in the actions of Jay . Topham, &c. defended the Judgment they had given, by resting upon the nature of the pleading, and not by denying the jurisdiction or authority of this House; and sir Francis Pemberton expressly admitted, that for any C |