to have been proceeded in, and the parliament had not been then diffolved, it may eafily be collected, from the arguments above referred to, that it would have had from the lords a moft folemn and juft decision.

Lord Chief Juftice De Grey-Brother Glynn! that writ of error you mention, "was never brought before the lords.

Serjeant Glynn-It is true, my lord! it was never brought directly in queftion before them; because doubts were started, whether it was a writ of right, or of favour, which might be refufed by the particular officer. This occafioned a petition to the Queen, who in anfwer to the petition faid, fhe was come to a refolution to grant a writ of error, becaufe fhe was defirous to have the matter of law fettled for the good of her fubjects; but unhappily for us, the particular circumftances of thofe times prevented it; and the parliament was diffolved.

Lord Chief Juflice De Grey-In all cafes, except treafon and felony, I think a writ of error is grantable of right; the two houfes addreffed the Queen for different purpofes, the lords faid, it was time enough to decide upon the writ of error, when it came before them.

Serjeant Glynn-My lord! it is for that reafon I faid, I collect it from other arguments, which make it very reasonable to fuppofe, that the fubject would have had fatisfaction and redress from the decifion of the House of Lords.

The queftion at prefent is, Whether this court has not power to examine into the jurifdiction of the Houfe of Commons? I submit it, with deference to the court, that you have lawful power to inquire, whether the House of Commons had any jurif diction in this cafe, and that their privileges are not to be fuppofed fo tranfcendent and myftical, as to exclude all inquiry. My lord! I deny that the mayor's act is a breach of privilege of the Houfe of Commons, the lord-mayor was in full poffeffion of jurifdiction in the cafe; he was obliged to decide upon the queftion before him; he was obliged to form an opinion upon a cafe within his jurifdiction: fhall his opinion be adjudged a contempt? Is this the law of the land; that when different courts, having jurifdiction of the fame nature, differ in their decifions, they are guilty of contempts one against the other, and may be punished for fuch contempts? It is no contempt in me, a private man, to have an opinion different from the greatest authorities in this kingdom; it was the lord-mayor's opinion upon the cafe before him, he was bound by his oath to act pursuant to that opinion, it was his bounden duty to act accordingly: he Vol. III. would

would have been perjured, if, out of respect for any perfons, he had not obeyed the call of his confcience. It was no crime for him to entertain the opinion; entertaining it, he was bound to declare it, and it was his duty to act in confequence of it. The confcientious act of a magiftrate, within the limits of his jurifdiction, can never be a contempt, or punishable; unless a magiftrate acts wrong from corrupt motives, he cannot be punished. But fuppofe for a moment, the lord-mayor did not act from his opinion, but from fome corrupt motive, it is not the House of Commons, but a jury, that muft judge of it. The duty of a magiftrate differs widely from that of an officer; from the latter, a full and ready obedience is required to be paid to the orders of the court, whofe officer and minifter he is, and fuch orders, rightly purfued and executed by him, are his fufficient juftification; but the magiftrate is bound by his oath, and has an opinion and judgment of his own which he must follow; and , he is anfwerable to the law, and cannot be justified for the breach of his oath and the law, by any order or refolution of the greatest authority.

Your lordships are now called upon to fay, whether the lordmayor of London, in a cafe where he had indifputable jurifdiction, acting by his opinion, and according to his oath, is guilty of a contempt of the Houfe of Commons, and can by law be imprifoned.

Serjeant Tephfon-My lords! as I fhall not have an opportunity of aniwering any argument from the bench, nor can poffibly know the objections your lordships may have, to discharging the lord-mayor out of cuftody, I fhall endeavour to anticipate and anfwer fuch objections againft difcharging him, as occur to me, and may poffibly be made by the court.

The queftion is, whether fufficient caufe appears to the court upon the return of this writ, to imprifon the lord-mayor? if no legal caufe appears for detaining him in cuftody, he must be difcharged.

I fhall confider the nature, the return, and the confequence of the writ of habeas corpus. It is a prerogative writ of right, to inquire into the cause of the imprisonment of any of the King's fubjects; if a legal caufe of detention doth not appear upon the return of the writ, the fubject must be difcharged, and fet at liberty: therefore, if a legal caufe does not appear upon the return of this writ, the lord-mayor must be discharged out of cuftody; this pofition cannot be denied.

It appears from the cafes of Sir William Thickneffe, 4 Inft. 434. Sir William Chancey, 12 Rep. 83. and from Bufhel's cafe, Vaugh. 135, &c. that the caufe of imprifonment ought to be as fpecifically returned to thofe who judge upon the writ of habeas corpus, as it did to thofe who first committed the party. Again, Bethell's cafe, 1 Salk. 348. where the commitment is not to the legal and immediate officer, it is naught. Again, Search's cafe, 1 Leon. 70. where the Queen had taken a perfon into her protection, who, notwithstanding, was arrefted, and the perfon arrefting committed, and on a habeas corpus was difcharged. See again Doctor Alponfo's cafe, 2 Bulft. 259. where the return was bad, no caufe being therein fhewed; alfo, Thomas Barkham's cafe, Cro. Car. 507. the like cafe, ibid. 579. 1 Rol. Rep 192, 218. Apfley's cafe, and Rufwell's cafe, ibid. 245. Codde's cafe. The determination in all the cafes the fame; if the legal charge is not returned, the perfon must be difcharged: the court muft judge of the cause of commitment returned; if not, why fhould the writ command the return of the caufe? the caufe is returned, that the court may judge, whether the perfon is intitled to his liberty, or not. It is no objection in this cafe, to fay, that the Houfe of Commons having a power to commit, therefore this court muft not judge of the caufe of commitment returned; for this would prove too much; because it would go to every other court having jurifdiction to commit. Suppofe the court of King's Bench, which is equal, and perhaps fuperior in fome respect to this court, fhould commit a perfon; and the perfon committed fhould be brought here by habeas corpus; this court would certainly take notice, and inquire into the caufe returned; and if this court thought it not a fufficient caufe, would difcharge the perfon; otherwife how would the end of bringing the writ of habeas corpus be anfwered?

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It is no objection in this cafe, to fay, that the court cannot examine the cause as ftated in the return, because the court would then determine upon the privileges of the Houfe of Commons: the court muft, and doth frequently determine upon the pri vileges of parliament, when they come incidentally before them. See the Earl of Banbury's cafe, 2 Ld. Raym. 1247. Salk. 512. Stra. 987. 8. This court made no fort of hefitation to determine in Wilkes's cafe, upon the privilege of parliament. 2 Wilfon 151. Why then fhould they not now enter into this queftion, touching the privilege of parliament? In Lord Shaftesbury's and Mr. Murray's cafes, the returns were general, for contempts of the house, without ftating the particular facts; but the facts of the supposed contempt in this cafe appear, which we contend cannot by any

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legal

legal conftruction amount to a contempt, and therefore that the lord-mayor must be difcharged. The Houfe of Commons having determined it to be a contempt does not alter the cafe: a fact does not become a contempt by being recited to be fuch. The court must confider, whether the warrant for my lord-mayor's commitment is the warrant of the fpeaker as speaker of the House of Commons, as Sir Fletcher Norton may act in a double capacity; (whereupon a loud laugh.)

Lord Chief Juftice De Grey-Sir Fletcher Norton figns himself Speaker.

Serjeant Jephfon-His figning himself speaker will not help the warrant, if the caufe is not fufficient; and the court may rather fuppofe, the mistake committed by Sir Fletcher Norton, in his private capacity, than by the Houfe of Commons. Suppofe fome future fpeaker, of fome future Houfe of Commons, fhould recite in his warrant, that the House of Commons had adjudged it a breach of privilege, and contempt, to fue out a statute of bankrupt against one of their members, which by act of parlia ment any one is permitted to do; and fhould, in confequence, commit a perfon for fuch legal act; if the perfon was brought by writ of habeas corpus before this court, would not the court take cognizance of the commitment? Would they not determine it no breach of privilege? Are acts of parliament of lefs force than fuch a recital in a fpeaker's warrant? Suppose a perfon is committed by a fimilar warrant, for proceeding according to act of parliament against a member of the house in an action of debt; fhall he have no remedy from the law, which led him into the fuppofed tranfgreffion? Suppofe a juftice of peace fhould commit a member of the Houfe of Commons, for treafon, felony, or breach of the peace, and the speaker's warrant fhould recite it to be a contempt, will this court fay, they can take no cognizance of fuch a commitment by the Houfe of Commons? Suppofe all the officers of this court fhould be recited in the fpeaker's warrant, to be in contempt, for executing the procefs of this court, will this court give no remedy? and muft this and every other court of juftice be annihilated, whenever the speaker's warrant declares all it's officers in contempt? How is it poffible to diftinguifh the prefent cafe from thofe I have mentioned, if you must not examine the caufe returned, but fay it is fufficient, if a contempt is charged? Serjeant Hawkins, in his 2 vol. 110. gives us clearly enough his thoughts upon this fubject; he fays there, (among other things) that if a fubject thould be committed by either of the Houfes of parliament, it cannot be imagined that the law, which favours nothing more

than

than the liberty of the fubject, fhould give us a remedy against commitments by the King himself, appearing to be illegal, and g ve us no manner of redrefs against a commitment by our fellow-fubjects, equally appearing to be unwarranted.

I think I have now fufficiently cleared this cafe from all the objections that can be brought against it's being inquired into. The queftion therefore is, Whether on the return there appears fufficient cause of detention? Three caufes are mentioned, and all urged as breaches of privilege. 1. For difcharging a printer; 2. For having figned a warrant for the commitment of the meffenger; and 3. For holding him to bail.

To make the lord-mayor guilty of the firft fuppofed contempt, it ought furely to appear to the court, that Miller the printer was in the legal cuftody of the meffenger: now, Miller never was in the legal cuftody of the meffenger; for the warrant to take up Miller was directed to the ferjeant at arms of the House of Commons, or his deputy, and not to the meffenger, so that Miller was in the illegal cuftody of the meflenger, therefore the lord-mayor did right.-Miller was ordered into the cuftody of the ferjeant at arms, or his deputy, but the contrary appears upon the return, in the recital of the order; for that intimates, that he was taken into cuflody by the meffenger, by virtue of the warrant of the fpeaker of the houfe, iffued under the order of the houfe. Miller was taken into cuftody by the meffenger in the city of London, neither the ferjeant at arms or his deputy being prefent; the meffenger, I fay, was guilty of falfe imprifonment, having no warrant directed to himself, nor acting in aid and affiftance of the ferjeant at arms, or his deputy, to whom the warrant to take up Miller was directed, for neither of them were prefent; fo that if an action of falfe imprisonment was to be brought against the meffenger, he could not juftify what he has done; and if he cannot juftify in an action of falfe imprisonment, how could he juftify before the lord-mayor? As for the other fuppofed contempt, of figning a warrant against the mesfenger and holding him to bail; the meffenger had been guilty of an affault and falfe imprisonment, in taking Miller the printer into cuftody, in the city of London, without any legal warrant or authority; what contempt is it to fign a warrant against the meffenger?

Gould Juftice-The meffenger was committed for having exe cuted a warrant of the speaker.

it is a warrant

Serjeant phfon-That does not appear; your lordships cannot know that, for the return only fays, for figning a warrant against for the com

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the mitmentofthe meffenger.