because we have no knowledge of thofe laws and privileges; we cannot judge of the contempts thereof, we cannot judge of the punishment therefore.

I wish we had fome code of the law of parliament; but till we have fuch a code, it is impoffible we fhould be able to judge of it. Perhaps a contempt in the Houfe of Commons, in the Chancery, in this court, and in the court of Durham, may be very different; therefore we cannot judge of it, but every court must be fole judge of it's own contempts. Befides, as the court cannot go out of the return of this writ, how can we inquire into the truth of the fact, as to the nature of the contempt? We have no means of trying whether the lord-mayor did right or wrong: this court cannot fummon a jury to try the matter; we cannot examine into the fact; here are no parties in litigation before the court: we cannot call in any body; we cannot hear any witneffes, or depofitions of witneffes; we cannot iffue any procefs; we are even now hearing ex parte, and without any counfel on the contrary fide. Again, if we could determine upon the contempts of any other court, fo might the other courts of Westminster-hall; and what confufion would then enfue! none of us knowing the law by which perfons are committed by the House of Commons. If three perfons were committed for the fame breach of privilege, and applied feverally to different courts, one court perhaps would bail, another court discharge, a third re-commit.

Two objections have been made, which I own have great weight; because they hold forth, if purfued to all poffible cafes. confequences of molt important mifchief. 1, It is faid, that if the rights and privileges of parliament are legal rights, for that very reafon the court must take notice of them, because they are legal. And 2dly, If the law of parliament is part of the law of the land, the judges muft take cognizance of one part of the law of the land, as well as of the other. But thefe objections will not prevail. There are two forts of privileges which ought never to be confounded; perfonal privilege, and the privilege belonging to the whole collective body of that affembly. For inftance, it is the privilege of every individual member, not to be arrefted; if he was arrefted, before the flat. 12 & 13 W. 3. the method in Weftminster-hall was, to difcharge him by writ of privilege under the great feal, which was in the nature of a fuperJedeas to the proceedings; and as foon as it came into the court of B. R. and was pleaded there, then it became a record, and the pleading concluded, fi curia domini Regis placitum prædictum cognofcere velit aut debeat. The ftat. 11 & 12 W. 3. has altered this, and there is now no occafion to plead the privilege of a mem

ber

ber of parliament. 2 Stran. 985. Holiday & al. verfus Colonel Pitt. There is a great difference between matters of privilege coming incidently before the court, and being the point itself directly before the court; in the first cafe the court will take notice of them, becaufe it is neceffary, in order to prevent a failure of juftice; as in Lord Banbury's cafe, where the court of King's Bench determined against the determination of the House of Lord's; but in that cafe they confidered the legality and va lidity of the letters patent, without regarding the other right of a feat in the House of Lords, with which the court did not concern themselves. The counsel at the bar have not cited one cafe where any court of this Hall ever determined a matter of privi lege which did not come incidentally before them. If a queftion is to be determined in this court touching a defcent, whereby property is to be determined, and which depends upon legitimacy; that is, whether the father and mother were married lawfully; this court muft determine by the bifhop's certificate; but in fome cafes, where the legitimacy of marriage does not come in question, but cohabitation only for a great length of time, which is evidence of a marriage, comes in queftion, this court will determine according to the verdict of a jury, although the courts of Westminster-hall go by a different rule from the Spiritual Courts. But the prefent cafe differs much from thofe which the court will determine; because it does not come incidentally before us, but is brought before us directly, and is the whole point in queftion; and to determine it, we muft fuperfede the judgment and determination of the Houfe of Commons, and a commitment in execution of that judgment.

Another objection has been made, which likewife holds out to us, if purfued in all it's poffible cafes, fome dreadful confequences; and that is, the abufes which may be made by jurifdictions from which there is no appeal, and for which abufes there is no remedy: but this is unavoidable; and it is better to leave fome courts to the obligation of their oaths. In the cafe of a commitment by this court or the King's Bench, there is no appeal. Suppofe the court of B. R. fets an exceffive fine upon a man for a misdemeanor; there is no remedy, no appeal any other court. We must depend upon the difcretion of fome courts. A man not long ago was fentenced to stand in the pillory, by this court of Common Pleas, for a contempt. Some may think this very hard, to be done without a trial by jury; but it is neceflary. Suppofe the courts fhould abufe their jurifdi&tion, there can be no remedy for this: it would be a public grievance; and redrefs must be fought from the Legisla ture. The laws can never be a prohibition to the Houfes of Parliament; because, by law, there is nothing fuperior to them.

to

Suppofe

Suppofe they alfo, as well as the courts of law, fhould abuse the powers which the constitution has given them, there is no redrefs, it would be a public grievance. The conftitution has provided checks to prevent it's happening; it must be left at large; it was wife to leave it at large: fome perfons, fome courts, muft be trufted with difcretionary powers; and though it is poffible, it is in the highest degree improbable, that fuch abufes fhould ever happen, and the very fuppofal is answered by Serjeant Hawkins, in the place cited at the bar. As for the cafe of the Chancery committing for crimes, that is a different thing, because the Chancery has no criminal jurifdiction; but if that court commits for contempts, the perfons committed will not be difcharged by any other court. Many authorities may be drawn from the reign of Charles, but those were in times of conteft. At prefent, when the Houfe of Commons commits for contempt, it is very neceflary to ftate what is the particular breach of privilege; but it would be a fufficient return, to ftate the breach of privilege generally: this doctrine is fortified by the opinion of all the judges, in the cafe of Lord Shaftesbury, and I never heard this decifion complained of till 1704 though they were times of heat, the judges could have no motive in their decifion, but a regard to the laws: the houses difputed about jurifdiction, but the judges were not concerned in the difpute. As for the prefent cafe, I am perfectly fatisfied, that if Lord Holt himfelf were to have determined it, the lord-mayor would be remanded. In the cafe of Mr. Murray, the judges could not hesitate concerning the contempt by a man who refufed to receive his fentence in a proper pofture: all the judges agreed, that he must be remanded, because he was committed by a court having competent jurifdiction: courts of juftice have no cognizance of the acts of the Houses of Parliament, because they belong ad aliud examen. I have the moft perfect fatisfaction in my own mind in that determination. Sir Martin Wright, who felt a generous and diftinguished warmth for the liberty of the fubject; Mr. Juftice Denifon, who was fo free from connections and ambition of every kind; and Mr. Juftice Fofter, who may be truly called the magna charta of liberty of perfons, as well as fortunes; all thefe revered judges concurred in this point: I am therefore clearly and with full fatisfaction of opinion, that the lord-mayor muft be remanded.

Gould Juftice-I entirely concur in opinion with my Lord Chief Juice, that this court hath no cognizance of contempts or breach of privilege of the Houfe of Commons: they are the only judges of their own privileges; and that they, may be properly called judges, appears in 4 Inft. 47. where my Lord Coke fays, an alien cannot be elected of the parliament, because fuch a perfon can hold no place of judicature. Much ftress has been

2 Wilion 151.

laid upon an objection, that the warrant of the speaker is not conformable to the order of the houfe, and yet no fuch thing appears upon the return, as has been pretended. The order fays that the lord-mayor fhall be taken into the cuftody of the ferjeant or his deputy; it does not fay, by the ferjeant or his deputy. This court cannot know the nature and power of the proceedings of the Houfe of Commons; it is founded on a different law; the lex et confuetudo parliamenti, is known to parliament-men only. Trewynnard's cafe, Dier 59, 60. When matWilkes's cafe, ters of privilege come incidentally before the court, it is obliged to determine them to prevent a failure of juftice. It is true this court did, in the inftance alluded to by the counsel at the bar, determine upon the privilege of parliament in the cafe of a libel; but then that privilege was promulged and known; it exifted in records and law-books, and was allowed by parliament itself; but even in that cafe, we now know that we were miflaken, for the Houfe of Commons have fince determined, that privilege does not extend to matters of libel. The cases produced refpecting the High Commiffion Court, &c. are not to the prefent purpose, because those courts had not a legal authority; the refolution of the Houfe of Commons is an adjudication, and every court muft judge of its own contempts.

The

Blackflone Juftice-I concur in opinion, that we cannot dif charge the lord-mayor; the prefent cafe is of great importance, because the liberty of the fubject is materially concerned. Houfe of Commons is a fupreme court, and they are judges of their own privileges and contempts, more efpecially with respect to their own members: here is a member committed in execution by the judgment of his own houfe. All courts, by which I mean to include the two houfes of parliament, and the courts of Westminfter-hall, can have no controul in matters of contempt, The fole adjudication of contempts, and the punishment thereof, in any manner, belongs exclufively, and without interfering, to each refpective court. Infinite confufion and diforder would follow, if courts could by writ of habeas corpus, examine and determine the contempts of others. This power to commit refults from the firft principles of juftice; for if they have power to decide; they ought to have power to punish: no other court fhall fean the judgment of a fuperior court, or the principal feat of juftice; as I faid before, it would occafion the utmost confufion, if every court of this Hall fhould have power to examine the commitments of the other courts of the Hall, for contempts; fo that the judgment and commitment of each refpective court, as to contempts, must be final, and without controul. It is a confidence, that may, with perfect fafety and security, be repofed in the judges, and the houfes of parliament. The Le

3.

giflature

giflature fince the revolution (fee 9 & 10 W. 3. c. 15.) have created many new contempts. The objections which are brought of abufive confequences prove too much, because they are applicable to all courts of dernier refort: et ab abufu ad ufum non valent confequentia, is a maxim of law as well as of logic. General convenience muft always outweigh partial inconvenience; even fuppofing (which, in my confcience, I am far from fuppofing) that in the prefent cafe the houfe has abufed its power. I know, and am fure, that the Houfe of Commons are both able and well inclined to do juftice. How prepofterous is the prefent murmur and complaint! the Houfe of Commons have this power only in common with all the courts of Westminster-hall: and if any perfons may be fafely trufted with this power, they muft furely be the commons, who are chofen by the people; for their privileges and powers are the privileges and powers of the people. There is a great fallacy in my brother Glynn's whole argument, when he makes the queftion to be, whether the houfe have acted according to their rights or not? Can any good man think of involving the judges in a contest with either houfe of parliament, or with one another? and yet this manner of putting the queftion would produce fuch a conteft. The Houfe of Commons is the only judge of its own proceedings: Holt differed from the other judges in this point, but we must be governed by the eleven, and not by the fingle

It is a right inherent in all fupreme courts: the House of Commons have always exercifed it. Little nice objections of particular words and forms, and ceremonies of execution, are not to be regarded in the acts of the Houfe of Commons; it is our duty to prefume the orders of that houfe, and their execution, are according to law. The habeas corpus in Murray's cafe was at common law. I concur intirely with my Lord Chief Justice.

Nares Juftice-I fhall ever entertain a most anxious concern for whatever regards the liberty of the fubject; I have not the vanity to think I can add any thing to the weight of the arguments ufed by my Lord Chief Juftice and my Brothers: I have attended with the utmoft induftry, to every cafe and argument that has been produced, and moft heartily and readily concur with my Lord Chief Juftice and my Brothers.

The Lord-Mayor was remanded to the Tower.

Blaney, Affignce of Bradney a bankrupt, verfus Hen- 2 Black, Rep. drick and others. C. B.

761. S. C.

INDEBITATUS affumpfit for money lent by the bank. In an assumpfit rupt to the defendants, and upon an account flated between upon an acthem; judgment by nit dicit; and upon executing the writ of between merchant and merchant, the jury may give interest from the day the account was fated.

inquiry,

count, ftated