fubject against another: I had no doubt at all myfelf; however,

I have looked into the books, to fee what is therein faid touching this matter.

P.C. 144

145.

The firft inftance of this kind is upon the ftatute of magna 2 Hale, H. charta, 2 Inft. 55. a. where Lord Coke in his comment fays, "If a man be taken or committed to prison against the law of the land, what remedy hath the party grieved?" It is there anfwered, that " he may have an action, or he may cause the party to be indicted at the King's fuit; or he may have an habeas corpus out of the King's Bench or Chancery, though there be no privilege; or in the court of Common Pleas or Exchequer, for any officer or privileged perfon there; and if it appears upon the return of the writ, that his imprifonment be just and lawful, he fhall be remanded; but if it fhall appear to the court that he was imprifoned against the law of the land, they ought by the force of this ftatute to deliver him: if it be doubtful, he may be bailed.

So in 4 Inft. 290. if a man be imprifoned by a judge of the foreft for killing or chafing deer, and afterwards offers fufficient pledges, it may be demanded, what remedy is there for the party? The anfwer is, he may have a habeas corpus out of the King's Bench; or if he have privilege, out of the Common Pleas, or of the Exchequer, or out of the Chancery without any privilege, either in the term or vacation, and may be bailed to appear at the next Eyre.

vacancy

In Dier 175. Scroggs verfus Colfehill, the office of exigenter of London and other counties, became vacant by the death of Hennings, in the year 1558; and afterwards Sir R. Brooke, the Chief Juftice of the Common Bench died; and in the time of the of the office, Queen Mary granted the office of exigenter to one Colfehill, by letters patent; and afterwards, by letters patent of the fame date, granted the office of chief justice to Anthony Brown, who was admitted juftice, and fworn the first day of Michaelmas term in the year abovefaid; who refufed Colfehill, and admitted his nephew Scroggs to it. And now in this term, (Mich. 1&2 Eliz.) maxima lis mota fuit inter ipfos pro officio pradicto, et domina Regina nunc mandavit Nicholao Bacon militi cuftodi magni figilli, ad examinandum jus et titulum dicti Colfehill, et inde relationem faciendum eidem Regina. Qui quidem cuftos poft finem hujus termini, convocatis omnibus jufticiaris Banci Regina: videlicet, Catlyn, Whyddon, Rafall et Corbet, ac Saunders Capitale Barone, ac Gerrard Attornato Generali, ac etiam J. Caril Attornato Ducatus (exclufis omnibus jufticiaris de Communi Banco)accepit refolutionem planam poft longam deceptationem et hæfitationem

omnium prædictorum, quod titulus Colfehill nullus fuit, et quod ad dominam Reginam donatio offici prædicti, nullo modo et nullo tempore pertinet, aut pertineat, fed tantummodò ad difpofitionem capitalis jufticiari pro tempore exiftentis, ut incidens infeperabile ad perfonam dicli capitalis fpectans: et hoc, ratione prefcriptions et ufus. Ex quo fequitur quod Regina ipfamet non poteft effe capitalis jufticiarius in banco prædicto. And notwithstanding the faid refolution of the juftices aforefaid, the Queen, upon importunate fuit directed her commiffion to the Earl of Bedford, and nine others, of whom were Juftice Corbet, Juftice Wefton, Sir Roger Cholmeley Sir W. Cordel Mafter of the Rolls, and Richard Goodrike; giving to them full authority to hear and determine the intereft and title of the faid office, between the parties aforefaid, and to place Colfehill in the office, if, &c. and that if Scroggs refused to make answer before them, that they might commit him to prifon, &c. And afterwards, in Michaelmas term following, Colfehill exhibited a bill of complaint to the faid commiffioners against Scroggs, comprehending all his title as above, and that he was diffeifed and deforced of it by Scroggs; and Scroggs came and demurred upon the bill and jurisdiction of the court by the faid commiflion, and would not make other answer; and for this contempt he was committed by them to the prison of the Fleet, and there remained for two weeks; and then the court of Common Bench was moved by three ferjeants to grant a habeas corpus cum caufa to be directed to the warden of the Fleet. And upon good deliberation of the court, viz. Ja. Dier, A. Browne and R. Wefton, the motion was held reasonable, and was granted, because he was a perfon in the court, and a necessary member thereof.

In 2 Hale's Hift. Pl. Coron. (before the habeas corpus a&t) it is laid down that this writ of habeas corpus is a writ of a high nature; for if perfons be wrongfully committed, they are to be discharged upon this writ returned; or, if bailable, they are to be bailed, if not bailable, they are to be com mitted.

This writ [fays that book] iffues out of the great courts of Weftminster, but hath different ufes and effects. It may iffue out of the court of Common Pleas or Exchequer, but that is or ought to be always where a perfon is privileged, or to charge him with an action. But by the ftat. 16 Car. 1. cap. 10. they have an original jurifdiction to bail, difcharge or commit upon an habeas corpus, one committed by the Council Table, as well as the King's Bench, although there be no privilege for the perfon committed.

I do not find that this matter hath come much in question until a few years before the habeas corpus act. Bufhel's cafe, Sir Thomas Jones 13. 22 Car. 2. anno 1670. The cafe was, that Bufhel, amongst others, jurors in London, upon the trial of a traverse, upon an indictment against divers perfons for conventicling against the form of the ftatute lately made, were fined and imprisoned at the feffions of the Old Bailey, because they gave their verdict contra plenam evidentiam et directionem curiæ in materia legis, and fo acquitted the prifoners. In this cafe it was debated at the bar and the bench, whether the Common Bench could award a habeas corpus in this cafe. Wild, Archer and Tyrel, Juftices-This court may well award it and for this purpofe they cited 1 Anderfon 297, 298. 2 Inft. 615. Moor 839, 1132. Brownl. 33. Vaughan Chief Juftice, to the contrary: and he faid, that fome habeas corpufes are granted of course, others not without motion; that this court had not power of granting the writ in general, but only in cafes of privilege, or excefs of jurifdiction by an inferior court; in which cafe every one had privilege to be difcharged by the courts of Westminster. This court does not grant it because they have conu fance of the caufe, but becaufe that there is a probable fuggeftion that this court may deliver the party. If, upon the return, the cause be exprefsly juf, the party ought to be remanded; if exprefsly unjult, difcharged; if doubtful, bailed. The writ is, ad fubjiciendum et recipiendum quod curia confideraverit, et ut curia noftra vifa caufa illa, or quod de jure & confuetudine regni noftri fuerit faciendum, &c. Now this court, in caufes criminal, cannot iffue this writ. He urged that the want of precedents in this court is a Arong argument that fuch writs are not grantable here. The writ alfo requires that the body una cum die captionis habeat, whereby the court may be certified how long the party hath been in cuftody; because, if for a long time, and no proceeding against him, the court ought to bail the prifoner, although he was committed for felony or treafon; which is improper for this court, which hath not conufance of crimes; for this court is for common pleas between fubject and fubject; but in the cafe of a crime, the plea is between the King and his prifoner. He cited 2 Inft. 53. in margine, & 55. Weftm. 1. cap. 15. And to the authority cited on the other fide from Anderfon, he faid, that all the four caufes there mentioned are of perfons under the protection of this court; and concluded, that the court ought not to grant the writ in this cafe. But, upon the opinion of the three other judges, the writ was granted. And at a future day, the fheriffs of London, to whom the writ was directed, returned it with the caufe fupra. And upon argument of the fufficiency or infufficiency of the return, the prifoner was discharged.

In Vaughan 154, 155. there are feveral cafes upon habeas cor pus, where the court of Common Pleas hath difcharged perfons imprifoned by other courts upon the infufficiency of the return only, and not for privilege; whether the prifoner is privileged as an officer of this court, or is a ftranger, it is all one, in my opinion, and if the return be bad he fhall never be remanded, because contrary to magna charta.

66

66

The next cafe is in Eafter term, 23 Car. 2. C. B. Carter 221. J. S.. parfon, libels for tithes against J. D. he is certified contumax; the bishop, according to 27 Hen. 8. cap. 20. certifies to two juftices to imprison him, without bail or mainprife: they do fo. Baldwin Serjeant moved for an habeas corpus in the Common Bench; and it was granted by three judges, but the chief juftice was against it: Wild, one of the judges, fays—“ In Queen Elizabeth's time there was no diftinction, but an ha"beas corpus was to be allowed in the Common Bench or King's Bench; and I cannot fee, [fays he] how we can deny this "habeas corpus falvo juramento. Thefe writs have gone beyond "fea. Doctor Prujean was to cure a madman; (Sir Robert Carr's brother) this court fent a habeas corpus for him beyond fea." And fee 2 Vent. 22. Thomas Rudyard's cafe in C. B. 1 Mod. 235. and 2 Mod. 198. Jones's cafe in C. B. touching the granting habeas corpus by this court in various cafes, a little before the habeas corpus act. Practice, of late years, has carried this matter of fuing for habeas corpus into the King's Bench; but now the writ being indorfed to iffue by the ftatute, may be granted in any case of imprisonment, by any court in the Hall.

46

By the ftatute of 16 Car. 1. cap. 10. it feems to me that the legislature then thought that this court had the very fame jurifdiction with respect to granting writs of habeas corpus, that the court of King's Bench had; for the words of the statute are, "that the judges of the court of King's Bench, or Common Pleas fhall, for the ordinary fees ufually paid for the fame, grant an "habeas corpus;" fo they took it to be the courfe and practice of the Common Pleas as well as the King's Bench, to grant writs of habeas corpus, in order to be certified whether a subject imprifoned was imprisoned contrary to magna charta, or not.

This is a matter between subject and subject, and I cannot fee [as was faid by Wild Juftice] how we can deny this habeas corpus, falvo juramento; as at prefent advised, I think we are bound by law to grant it, and that it ought to iffue accordingly.

Gould

Gould Juftice-I am of the fame opinion with my Lord Chief Juftice. I have heard Lord Apfley fay, when he fat in this court, that he had fome doubt touching this matter; but for my own part, I have no doubt at all, and think that this court has a general jurifdiction to grant writs of habeas corpus in all cafes; but when the prifoner is brought here, it then becomes another queftion, what we fhall do.

Blackstone Juftice-I am of the fame opinion with my Lord and my brother Gould.

Nares Juftice-I am of the fame opinion. I have well confidered this matter, and have no doubt, but that we are bound to grant the writ.

The writ was granted accordingly per totam curiam.

EASTER TERM

11 GEO. III. 1771.

Onflow Efq. verfus Horne, Clerk. C. B.

2 Black. Rep. 750. S. C.

ACTION upon the cafe, wherein fix counts are laid in Slander. the declaration; the firft four counts are upon feveral Two counts, libels, fuppofed to be written and published by the defendant, intire daof and concerning the plaintiff; the fifth and fixth counts are mages. Judgment for certain, falfe, fcandalous, and defamatory words, fuppofed to arrested, bebe maliciously spoken by the defendant at Epfom, in Surry, of caufe the and concerning the plaintiff. The defendant pleaded Not words in the guilty; whereupon iffue was joined, and tried before Lord are not actionMansfield, at the laft affizes for the county of Surry, when a able. verdict was found for the plaintiff on the last counts for the words, What

latter count

' words are actionable when spoken of a Member of Parliament.] and