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Sir Francis Burdett, Bart. against Francis John Colman, Esq

Nominate Series English Reports Cited authorities 1 Cited in 6 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date19 June 1811
Date19 June 1811
CourtCourt of the King's Bench

English Reports Citation: 104 E.R. 563

IN THE COURT OF KING'S BENCH

Sir Francis Burdett, Bart. against Francis John Colman
Esq.

See note to Burdett v. Abbot, 14 East, 1; 104 E. R. 501.

[See note to Surdett v. Abbot, 14 East, 1; 104 E. E. 501.] This case, which was a sequeHo the preceding, was tried at the Bar of the Court on Wednesday the 19th of June 1811, the Court being then full. The declaration was in trespass for an assault and false imprisonment of the plaintiff by the defendant, the serjeant at arms of the House of Commons, acting in execution of the Speaker's warrant, and the form of the counts was in terms the same as in the action against the Speaker, reddendo singula singulis. The pleas also in this action were like those in the former; namely, the general issue of not guilty, and two special pleas of justification; the one justifying the arrest and imprisonment of the plaintiff under the Speaker's warrant, and the breaking of the house, the outer door being shut and [164] fastened against the officer, for the purpose of executing such warrant, and the execution of it by the assistance of soldiers and armed men; the other similar to. it, 564 . BURDETT V. COLMAN H EAST, 165. only omitting to justify the breaking of the house. The only difference in the justification pleaded by this defendant from those pleaded by the Speaker being, that these justificatory pleas contained in addition a distinct allegation that the defendant, at the time of the several trespasses complained of, was Serjeant at arms of the House; and omitted so much of the former pleas as related, to the other warrant of the Speaker addressed to the lieutenant of the Tower; only alleging (after stating the delivery of the plaintiff into the custody of the lieutenant of the Tower of London by the defendant, to be kept and detained in prison there, in obedience to the resolutions and order of the House) "as it was lawful for him to do for the cause aforesaid:" and then concluding as in the former pleas pleaded by the Speaker. But in this ease the plaintiff, instead of demurring as in the former action to the justificatory pleas, replied specially, as follows, after joining issue to the country upon the plea of not guilty. Replication.-And the said Sir Francis, as to the plea of the said Francis John Colman by him secondly above pleaded, as to the said several trespasses in the introductory part of that plea mentioned and therein attempted to be justified, saith that he the said Sir Francis, by reason of any thing by the said Francis John in that plea alleged, ought not to be barred from having and maintaining his aforesaid action thereof against him the said Francis John, because, protesting that the said plea is wholly insufficient in law to bar or preclude the said Sir Francis from having and maintaining his aforesaid action against him the said Francis John, for replication nevertheless in this behalf [165] the said Sir Francis saith, that the said Francis John, at the said time when, &c. in the same plea mentioned, at the parish aforesaid, in the county aforesaid, wrongfully and injuriously with force and arms, and with a large military force of our said lord the King, then and there armed with dangerous and offensive weapons, to wit, with muskets, bayonets, swords, &e., the same military force being then and there used by him the said Francis John against the said Sir Francis in and for the execution of the said first-mentioned warrant in the same plea mentioned, and with such military force, so armed and used as aforesaid, as was improper, excessive, and unnecessary for that purpose; the~same military force being the said soldiers and men armed in the said first count mentioned; aad in an unreasonable manner, and more violently than was necessary or proper in or for the execution of the same warrant, to the great terror and alarm of the said Sir Francis, broke and entered the said messuage of the said Sir Francis, (the outer door of the said messuage then and there being shut and fastened,) and broke open the said windows and window-shutters, and through the same broke into and entered the said messuage, and made a great noise and disturbance therein, and made the said assault in the said first count mentioned on the said Sir Francis, and laid hands upon him, and forced and compelled him to go from and out of his said messuage into the said public street there, and also forced him to go in the said coach in, through, and along the said streets and highways in the said first count mentioned to the said prison called the Tower of London, and there imprisoned the said Sir Francis in manner and form as the said Sir Francis hath in his said declaration above thereof complained against him the said Francis John: and this he the said Sir Francis is ready to verify: wherefore since the said Francis [166] John hath above, in his said second plea, acknowledged the committing of the trespasses above the said Francis John in his said second plea attempted to be justified, he the said Sir Francis prays judgment and his damages by reason of the committing thereof to be adjudged to him, &c. There was a similar replication to the third plea, omitting the breaking of the house. The defendant rejoined, as to the replication to the second plea, that by reason of any thing therein alleged the said Sir Francis ought not to have or maintain his aforesaid action against him as to the several supposed trespasses in the introductory part of that plea mentioned, and therein justified, because he says that he the said Francis John did not commit the said several supposed trespasses, or any of them, with such military force as was improper, excessive, or unnecessary for the execution of the said first-mentioned warrant, in the same plea mentioned, nor in an unreasonable manner and more violently than was necessary or proper in or for the execution of the said warrant, in manner and form as the said Sir Francis hath in his said replication above alleged: and of this he the said Francis John puts himself upon the country, &c. There was the like rejoinder to the third plea. The plaintiff joined issues on these facts. Shepherd, Serjt. led the cause on the part of the plaintiff, who was assisted also U EAST, 167- BURDETT V. COLMAN 565 by Runnington, Serjt., Holroyd, Clifford, Courtenay Jun., and H. Shepherd. In the course of addressing the jury, Serjt. Shepherd (a) said, that as to a great part of this cause, the defendant, the serjeant at arms of the House of Commons, was to be considered merely as a nominal defendant, [167] being no more than an instrument for executing the Speaker's warrant; the question as to the legality of that warrant being in truth in controversy between the plaintiff and the House of Commons. But an officer might exceed his authority, and however valid the warrant might be in itself, he would at all events be answerable for any excess or misconduct of his own in the execution of it. It was evident however in this case that the same power, which directed the defendant to execute the warrant, upheld him also in the mode which he had adopted for that purpose. He observed, that though the record presented many questions for discussion and decision, yet he did not mean to state that all those questions, which must be decided somewhere, were fit or proper for the consideration and decision of the jury ; for the law of this country, much as it valued, and highly as it ought to value, the province and functions of a jury, had wisely made a distinction in this respect; referring mere questions of law to "the decision of the Judges learned in the law; and questions of mere fact to the determination of the jury : and when questions of law and fact are so mixed that they cannot be separated, the learned Judges who preside at the trials of causes so circumstanced state their opinions upon the law to the jury who'are to decide the facts. That as to those questions of law which had been decided by the Judges in the former cause of Burdett against Abbot, he should withdraw them from the decision of the jury, not as having been decided in another cause, but because he did not consider them as fit subjects for their decision. But if any of the same questions were to arise in this cause, which he thought were fit for the decision of the Court, he should, with all reverence to the high authority by whom those questions had been before decided, again bring them into judgment. [168] The substance of the plaintiff's complaint is, that the defendant broke and entered his house with a military force, and arrested and took him as a prisoner to the Tower of London. The defendant answers, that there being a Parliament assembled, the House of Commons iad resolved that the plaintiff, a member of that House, had been guilty of publishing a libel reflecting upon their privileges, and had thereupon ordered him to be committed to the Tower. Now whether the House of Commons have by law the power to come to such a resolution is a question of law and of law only: the question of fact, which could alone upon that have been introduced to the consideration of the jury, would have been whether the House had so resolved or not: but as to the question of law, it was not necessary then to discuss it, as the jury had no jurisdiction to decide it. The defendant further answers, that the House in consequence of that resolution, through the medium of their Speaker, issued their warrant to the defendant, as serjeant at arms, directing him to arrest the plaintiff, and deliver him to the custody of th lieutenant of the Tower. Whether or not that warrant so issued was a legal warrant to the defendant to arrest the plaintiff must also be a question of law. But how, or in what mode, or with what degree of force the defendant might execute that warrant under the circumstances involves matter both of law and fact: whether he had a right to break open the house, in order to arrest the...

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