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 fpeaker 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 signs 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 miftake 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 Houfe 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? Suppofe a perfon is committed by a fimilar warrant, for proceeding according to a&t 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 treason, 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 cog. nizance of such 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 mult 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 diftinguish 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 fhould 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 gve 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 caufe 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 mesfenger; 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 meffenger, 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 house. 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 justify what he has done; and if he cannot juftify in an action of falfe imprifonment, how could he juftify before the lord-mayor? As for the other fuppofed contempt, of figning a warrant against the meffenger and holding him to bail; the meffenger had been guilty of an affault and falfe imprifonment, 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.

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

03

the return, the com

it is a warrant

the mitmentofth meffenger.

Opinion of the court.

the meffenger. For thefe reafons, I pray the lord-mayor may be difcharged out of the cuftody of the lieutenant of the Tower of London.

Lord Chief Juftice De Grey-If either myfelf, or any of my brothers on the bench, had any doubt in this cafe, we should certainly have taken fome time to confider, before we had given our opinions; but the cafe feems so very clear to us all, that we have no reafon for delay.

The writ by which the lord-mayor is now brought before us, ist a habeas corpus at common law, for it is not figned per ftatutum; it is called a prerogative writ for the King; or a remedial writ; and this writ was properly advised by the counfel for his lordfhip, because all the judges (including Holt) agreed, that fuch a writ as the prefent cafe required, is not within the ftatute: this is a writ by which the fubject has a right of remedy to be difcharged out of cuftody, if he hath been committed, and is detained contrary to law; therefore the court must confider, whether the authority committing, is a legal authority; if the commitment is made by thofe who have authority to commit, this court cannot difcharge or bail the party committed, nor can this court adinit to bail, one charged or committed in execution. Whether the authority committing the lord-mayor, is a legal authority or not, muft be adjudged by the return of the writ now before the court; the return flates the commitment to be by the House of Commons, for a breach of privilege, which is alfo ftated in the return; and this breach of privilege or contempt is, as the counfel has truly defcribed it, threefold; difcharging a printer in cuftody of a meffenger by order of the Houfe of Commons; figning a warrant for the commitment of the meffenger, and holding him to bail; that is, treating a meffenger of the Houfe of Commons as ating criminally, in the execution of the orders of that houfe. In order to fee whether that house has authority to commit, fee Co. 4 Inft. 23. Such an aflembly muft certainly have fuch authority, and it is legal becaufe neceffary: Lord Coke fays they have a judicial power; each member has a judicial feat in the houfe, he fpeaks of matters of judicature of the Houfe of Commons. 4 Inft. 23. The House of Commons, without doubt, have power to commit perfons examined at their bar touching elections, when they prevaricate or fpeak falfly; fo they have for breaches of privilege, fo they have in many other cafes. Thomas Long gave the mayor of Westbury 4. to be elected a burgefs; he was elected, and the mayor was fined and imprisoned, and Long removed. Arthur Hall, a member, was fent to the Tower, for publifhing the conferences of the house. 4 Inft. 23. This power of committing must be in

herent

herent in the House of Commons, from the very nature of its inftitution, and therefore is part of the law of the land; they certainly always could commit in many cafes: in matters of elections, they can commit fheriffs, mayors, officers, witneffes, &c. and it is now agreed that they can commit generally for all contempts. All contempts are either punishable in the court contemned, or in fome higher court; now the parliament has no fuperior court; therefore the contempts againft either houfe can only be punished by themselves. The ftat 1 Jac. 1. cap. 13. fect. 3. fufficiently proves, that they have power to punish, it is in these words, viz. "Provided always, that this act, or "any thing therein contained, fhall not extend to the diminishing of any punishment to be hereafter by cenfure in parliament. "inflicted upon any perfon which hereafter fhall make, or pro"cure to be made, any fuch arreft as is aforefaid." So that it is moft clear, the Legislature have recognized this power of the Houfe of Commons. In the cafe of the Aylesbury men, the counfel admitted, Lord Chief Juftice Holt owned, and the House of Lords acknoweldged, that the Houfe of Commons had power to commit for contempt and breach of privilege. Indeed, it feems, they must have power to commit for any crime, because they have power to impeach for any crime. When the Houfe of Commons adjudge any thing to be a contempt, or a breach of privilige, their adjudication is a conviction, and their commitment in confequence, is execution; and no court can difcharge or bail a perfon that is in execution by the judgment of any other court. The House of Commons therefore having an authority to commit, and that commitment being an execution, the question is, what can this court do? It can do nothing when a perfon is in execution, by the judgment of a court having a competent jurifdiction; in fuch cafe, this court is not a court of appeal.

It is objected; 1. That the Houfe of Commons are mistaken, for that they have not this power, this authority; 2. That fuppofing they have, yet in this cafe they have not ufed it rightly and properly; and 3. That the execution of their orders was irregular. In order to judge, I will confider the practice of the courts in common and ordinary cafes. I do not find any cafe where the courts have taken cognizance of fuch execution, or of commitments of this kind; there is no precedent of Westminflerhall interfering in fuch a cafe. In Sir J. Pafton's cafe, 13 Rep. there is a cafe recited from the year-book, where it is held that every court shall determine of the privilege of that court; befides, the rule is, that the court of remedy muft judge by, the fame [law] as the court which commits: now this court cannot take cognizance of a commitment by the House of Commons, because it

cannot judge by the fame law; for the law by which the commons judge of their privileges is unknown to us. If the court of Common Pleas thould commit a perfon for a contempt, the court of King's Bench would not inquire into the legality or particular caufe of commitment, if a contempt was returned; yet in fome cafes the court of King's Bench is a court of inquiry, but in this cafe is only co-ordinate with this court. In the cafe of Chambers, Cro. Car. 168. Chambers was brought up by habeas corpus out of the Fleet; and it was returned, that he was committed by virtue of a decree in the Star-chamber, by reason of certain words he used at the Council-table, &c. for which he was cenfured to be committed to the Fleet, till he made his fubmiflion at the Council-table, an' paid a fine of 2000l. and at the bar he prayed to be delivered, because the fentence was not warranted by any law or ftatute: for the ftatute 3 Hen. 7. which is the foundation of the court of Star-chamber, doth not give them any authority to punifh for words only. But all the court informed him, that the court of Star-chamber was not erected by the ftat. 3 Hen. 7. but was a court many years before, and one of the most high and honourable courts of justice; and to deliver one who was committed by the decree of one of the courts of juftice, was not the ufage of this court, and therefore he was remanded. The courts of B. R. or C. B. never discharged any perfon committed for contempt, in not answering in the court of Chancery, if the return was for a contempt; if the Admiralty Court commits for a contempt, or one be taken up and committed on an excommunicato capiendo, this court never difcharges the perfons committed. Formerly, when many abufes were committed, and the people could not obtain a remedy, the fubject was not contented with the ancient habeas corpus, but did not complain of the courts for refusing them what they could not by law grant them; inftead of that, they fought redress by petition to the throne. In Chief Justice Wilmot's time, a perfon was brought by habeas corpus before this court, who had been committed by the court of Chancery of Durham; that court being competent, and having jurifdiction, the man was not difcharged, but recommitted. How then can we do any thing in the prefent cafe, when the law by which the lordmayor is committed, is different from the law by which he feeks to be relieved? He is committed by the law of parliament, and yet he would have redrefs from the common law; the law of parliament is only known to parliament-men, by experience in the houfe. Lord Coke fays, every man looks for it, but few can find it. The House of Commons only know how to act within their own limits; we are not a court of appeal; we do not know certainly the jurifdiction of the Houfe of Commons; we cannot judge of the laws and privileges of the house,

because