of the courts for refusing them what they could not by law grant them; instead of that, hey sought redress by petition to the throne. In chief justice Wilmot's time, a person was rought by Habeas Corpus before this court, vho had been committed by the court of Chanery of Durham. That court being competent, nd having jurisdiction, the man was not disharged, but recommitted. How then can we o any thing in the present case, when the law y which the lord-mayor is committed, is diffeent from the law by which he seeks to be reeved? He is committed by the law of parliaent, and yet he would have redress from the mmon law. The law of parliament is only own to parliament-men, by experience in the ouse. Lord Coke says, every man looks for but few can find it. The House of Comons only know how to act within their own nits. We are not a court of appeal. We do t know certainly the jurisdiction of the ouse of Commons. We cannot judge of the ws and privileges of the House, because we ve no knowledge of those laws and priviges. We cannot judge of the contempts ereof: we cannot judge of the punishment ereof. e I wish we had some code of the law of parment; but till we have such a code, it is imssible we should be able to judge of it. Perps a contempt in the House of Commons, in Chancery, in this court, and in the court of irham, may be very different; therefore we anot judge of it, but every court must be e judge of its own contempts. Besides, as court cannot go out of the return of this it, how can we inquire into the truth of the t, as to the nature of the contempt? We ve no means of trying whether the lordyor did right or wrong. This court cannot mmon a jury to try the matter. We cannot amine into the fact. Here are no parties in gation before the court. We cannot call in y body. We cannot hear any witnesses, or positions of witnesses. We cannot issue any ocess. We are even now hearing ex parte, ed without any counsel on the contrary side. rain, if we could determine upon the conmpts of any other court, so might the other urts of Westminster-hall; and what confun would then ensue! none of us knowing >e law by which persons are committed by the Couse of Commons. If three persons were mmitted for the same breach of privilege, ad applied severally to different courts, one urt perhaps would bail, another court disskarge, a third re-commit.' Two objections have been made, which I vn have great weight; because they hold rth, if pursued to all possible cases, consetences of most important mischief. 1st, It said, that if the rights and privileges of parament are legal rights, for that very reason e Court must take notice of them, because ey are legal. And 2dly, If the law of parament is part of the law of the land, the judges Just take cognizance of one part of the law of the land, as well as of the other. But these objections will not prevail. There are two sorts of privileges which ought never to be confounded; personal privilege, and the privilege belonging to the whole collective body of that assembly. For instance, it is the privilege of every individual member, not to be arrested. If he was arrested, before the stat. 12 & 13 W. 3, the method in Westminster-ball was, to discharge him by writ of privilege under the great seal, which was in the nature of a Supersedeas to the proceedings; and as soon as it came into the court of B. R. and was pleaded there, then it became a record, and the pleading concluded, si curia domini regis placitum prædictum cognoscere velit aut debeat.' The stat. 11 & 12 W. 3, has altered this, and there is now no occasion to plead the privilege of a member of parliament. 2 Stran. 985. Holiday et al' versus colonel Pitt. There is a great difference between matters of privilege coming incidentally before the Court, and being the point itself directly before the Court. In the first case, the Court will take notice of them, because it is necessary, in order to prevent a failure of justice. As in lord Banbury's case, where the court of King's-bench determined against the determination of the House of Lords: but in that case they considered the legality and validity of the letters patent, without regarding the other right of a seat in the House of Lords, with which the Court did not concern themselves, The counsel at the bar have not cited one case where any court of this hall ever determined a matter of privilege which did not come incidentally before them. If a question is to be determined in this court touching a descent, whereby property is to be determined, and which depends upon legitimacy; that is, whether the father and mother were married lawfully; this court must determine by the bishop's certificate. But in some cases, where 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 question, 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 present case differs much from those 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 question; and to determine it, we must supersede the judgment and determination of the House of Commons, and a commitment in execution of that judgment. Another objection has been made, which likewise holds out to us, if pursued in all its possible cases, some dreadful consequences; and that is, the abuses which may be made by jurisdictions from which there is no appeal, and for which abuses there is no remedy: but this is unavoidable; and it is better to leave some courts to the obligation of their oaths. In the case of a commitment by this Court or the King's-bench, there is no appeal. Suppose the Court of B. R. sets an excessive fine upon a man for a misdemeanor, there is no remedy, determined it, the lord-mayor would be reno appeal to any other court. We must de- | manded. In the case of Mr. Murray, the pend upon the discretion of some courts. A judges could not hesitate concerning the conman not long ago was sentenced to stand in tempt by a man who refused to receive bis senthe pillory, by this court of Common Pleas, for tence in a proper posture. All the judges a contempt. Some may think this very hard, agreed, that he must be remanded, because he to be done without a trial by jury; but it is was committed by a court having competent necessary. Suppose the courts should abuse jurisdiction. Courts of justice have no cognitheir jurisdiction, there can be no remedy for zance of the acts of the houses of parliament, this: it would be a public grievance; and re- because they belong ' ad aliud examen.' I have dress must be sought from the legislature. The the most perfect satisfaction in my own mind laws can never be a prohibition to the houses in that determination. Sir Martin Wright, who of parliament; because, by law, there is nothing felt a generous and distinguished warmth for superior to them. Suppose they also, as well the liberty of the subject; Mr. Justice Denias the courts of law, should abuse the powers son, who was so free from connexions and amwhich the constitution has given them, there bition of every kind; and Mr. Justice Foster, is no redress; it would be a public grievance. who may be truly called the Magna Charta of The constitution has provided checks to pre-liberty of persons, as well as fortunes; all these vent its happening; it must be left at large; revered judges concurred in this point: I am it was wise to leave it at large: some per- therefore clearly and with full satisfaction of sons, some courts, must be trusted with dis- | opinion, that the lord-mayor must be re cretionary powers; and though it is possible, it manded. is in the bighest degree improbable, that such abuses should ever happen; and the very supposal is answered by serjeant Hawkins, in the place cited at the bar. As for the case of the Chancery committing for crimes, that is a different thing, because the Chancery has no criminal jurisdiction; but if that court commits for contempts, the persons committed will not be discharged by any other court. Many authorities may be drawn from the reign of Charles, but those were in times of contest. At present, when the House of Commons commits for contempt, it is very necessary to state what is the particular breach of privilege; but it would be a sufficient return, to state the breach of privilege generally. This doctrine is fortified by the opinion of all the judges, in the case of lord Shaftesbury, and I never heard this decision complained of till 1704. Though they were times of heat, the judges could have no motive in their decision, but a regard to the Laws. The houses disputed about jurisdiction, but the judges were not concerned in the dispute. As for the present case, I am perfectly satisfied, that if lord Holt himself were to have Just. Nares. * I shall ever entertain a most anxious concern for whatever regards the liberty of the subject. I have not the vanity think I can add any thing to the weight of the arguments used by my Lord Chief Justice and my brothers. I have attended with the utmost been produced, and most heartily and readily industry to every case and argument that has concur with my Lord Chief Justice and my brothers. The Lord-Mayor was remanded to the Tower. *The Judgments of Mr. Justice Gould and Mr. Justice Blackstone being inserted at large in vol. 8, pp. 33 et seq. are not here repeated. Note, in p. 38, 1. 54, by an accident of the press, was omitted the following clause, viz. that lord chief justice Scroggs thought he might be safely entrusted with the power of prohibiting and suppressing such publications as might give him offence." See the Case of Henry Carr, vol. 7, p. 1111; and also vol. 8, p. 187. 544. The Case of JOHN WILKES, esq. against ROBERT WOOD, esq. in an Action of Trespass. Before Lord Chief Justice Pratt, in the Court of Common Pleas, Michaelmas Term: 3 GEORGE III. A. D. 1763. [Lofft's Reports.] JOHN WILKES, esq. against Wood. Middlesex to wit, Dec. 6, 1763. AT the court of Common-Pleas, at Westinster. Sittings after Michaelmas term, bere lord chief justice Pratt: John Wilkes, esq. laintiff; Robert Wood, esq. defendant. In an action of trespass, for entering the plainff's house, breaking his locks, and seizing his apers, &c. The plaintiff's counsel were, serjeant Glynn, Ir. Recorder Eyre, Mr. Stow, Mr. Wallace, r. Dunning, Mr. Gardiner. The defendant's counsel were, solicitor-gene1 Norton, serjeant Nares, serjeant Davy, serant Yeates. Attorney for the plaintiff, Mr. Phillips of ecil-street. For the defendant, Philip Carteret Webb, q. solicitor to the treasury, and Mr. SeconFry Barnes. any frivolous or no pretence at all, by a secretary of state. Mr. Wilkes, unconvicted of any offence, has undergone the punishment. That of all offences that of a seizure of papers was the least capable of reparation; that, for other offences, an acknowledgment might make amends; but that for the promulgation of our most private concerns, affairs of the most secret personal nature, no reparation whatsoever could be made. That the law never admits of a general search-warrant. That in France, or Spain, even in the Inquisition itself, they never delegate an infinite [qu. indefinite] power to search, and that no magistrate is capable of delegating any such power. That some papers, quite innocent in themselves, might, by the slightest alteration, be converted to criminal action. Mr. Wilkes, as a member of parliament, demanded the more caution to be used, with regard to the seizure of his papers, as it might have been naturally supposed, that one of the legislative body might have papers of a national concern, not proper to be exposed to every eye. When we consider the persons concerned in this affair, it ceases to be an outrage to Mr. Wilkes perPlukenet Woodroffe, esq. of Chiswick; sonally, it is an outrage to the constitution itWilliam Baker, esq. of Isleworth ; self. That Mr. Wood had talked highly of the William Clarke, esq. of Edmonton ; power of a secretary of state; but he hoped by James Gould, esq. of Edmonton; the verdict he would be brought to think more Stephen Pitt, esq. of Kensington; meanly of it. That if the warrants were once Nathaniel Turner, esq. of Hainpstead; found to be legal, it would fling our liberties Jonathan Richardson, esq. of Queen-Square; into a very unequal balance. That the conJohn Weston, esq. of Hatton-Garden; stitution of our country had been so fatally Harry Blunt, esq. of Hatton-Garden; wounded, that it called aloud for the redress of Henry Bostock, esq. of Hatton-Garden ; a jury of Englishmen. That their resentment John Boldero, esq. of Hatton-Garden; against such proceedings was to be expressed John Egerton, esq. of St. John's-street. by large and exemplary damages; that Mr. Gardener opened the case, with de-trifling damages would put no stop at all to such aring the foundation, that on the 30th of ril last, Mr. Wood, with several of the king's essengers, and a constable, entered Mr. ilkes's house; that Mr. Wood was aiding d assisting to the messengers, and gave direcns concerning breaking open Mr. Wilkes's ks, and seizing his papers, &c. for which r. Wilkes laid his damages at five thousand unds. The SPECIAL JURY. proceedings: which would plainly appear, when the present prosecution, persons, who by their they would consider the persons concerned in of the constitution, instead of the violaters of it. duty and office should have been the protectors Mr. Eyre, the Recorder of London, then stood up: he apologized to the bench for apoffice he bore, but that he thought it was a pearing in the present cause, considering the cause which affected the liberty of every indiSerjeant Glynn then enlarged fully, on the vidual. [Lord Chief Justice desired he would rticular circumstances of the case, but re- make no apology.] He then observed, that arked that the case extended far beyond Mr. the present cause chiefly turned upon the ge'ilkes personally, that it touched the liberty of neral question, whether a secretary of state has ery subject of this country, and, if found to a power to force persons houses, break open legal, would shake that most precious inhe- their locks, seize their papers, &c. upon a bare tance of Englishmen. In vain has our house suspicion of a libel by a general warrant, withen declared, by the law, our asylum and de-out name of the person charged. A strange nce, if it is capable of being entered, upon question, to be agitated in these days, when VOL. XIX. 4 E the constitution is so well fixed, when we have a prince upon the throne, whose virtues are so great and amiable, and whose regard for the subject is such, that he must frown at every incroachment upon their liberty. Nothing can be more unjust in itself, than that the proof of a man's guilt shall be extracted from his own bosom. No legal authority, in the present case, to justify the action. No precedents, no legal determinations, not an act of parliament itself, is sufficient to warrant any proceeding contrary to the spirit of the constitution. Secretary Williamson, in Charles the 2d's time, for backing an illegal warrant, was sent to the Tower by the House of Commons. The jury, he observed, had no such power to com. mit; he knew it well; but, for his part, he wished they had, as he was persuaded they would exercise it, in the present case, as it ought to be. On the famous certificate in queen Elizabeth's time, how far a man might be detained by a warrant of a privy counsellor, the answer of the judges, even in those days, confined it to high treason only, and the power to arrest to be derived from the personal command of the king, or a privy counsellor. He then congratulated the jury, that they had now in their power the present cause, which had been by so much art and chicanery so long postponed. Seventy years had now elapsed, since the Revolution, without any occasion to enquire into this power of the secretary of state, and he made no doubt but the jury would effectually prevent the question from being ever revived again. He therefore recommends it to them to embrace this opportunity (least another should not offer, in haste) of instructing those great officers in their duty, and that they (the jury) would now erect a great sea mark, by which our state pilots might avoid, for the future, those rocks upon which they now lay shipwrecked.* The first witness on the prosecution was Matthew Brown --Says, that he is butler to Mr. Wilkes. That on the 30th of April last, about nine o'clock in the morning, Watson, Blackmore, Money, and Mann, king's messengers, and Chisholm, a constable, came to Mr. Wilkes's house. That Watson followed Mr. Wilkes into the house, and Money came next; Blackmore and Mann followed after. That this witness never heard them, or either of them, declare their business, or the purpose of their coming. That as soon as Mr. Wilkes was carried away, which was about noon, Bir. Wood and Mr. Star.hope came: that Mr. Wood asked Mr. Watson, "Have you locked up all the rooms where Mr. Wilkes's papers are?" He answered, “Yes; I bave got the key of the study.” That Mr. Wood and Mr. Stanhope then went into the parlour; the messen gers continued waiting in the passage. That * “N. B. The Recorder shone extremely." Lofft. soon after Mr. Webb knocked at the door; upon its being opened this witness attempted to stop him, but he rushed in. That Mr. Wood staid that time about half an hour; that when he went away he gave orders to the messengers, that no one should come in or go out till be returned, but bade them lock up all the doors. That he came back again in about an hour. That in the mean time several of Mr. Wilkes's friends came, viz. Humphry Cotes, Gardiner, Phillips, Hopkins, &c. and were denied admittance by the constable : that Watson, the messenger, upon being called upon by these gen tlemen to produce his orders for refusing them admittance, said he had only a verbal order from Mr. Wood. That the messengers, however, did at last permit the gentlemen to come in. That soon after lord Temple came; that in a short time after Mr. Wood returned, and appeared to be very angry that the gentleme had been admitted, "Who let these men in That the messengers answered, "They wond come in." Mr. Wood then asked, would come in ?" Mr. Gardiner answered, "l was 1, Sir." That soon after that Mr. Wilkes's friends went away; that Mr. Wood then calle for a candle, which was brought him, and te and Mr. Stanhope then went up stairs, wi Money and Blackmore, the messengers, whe appeared to take their orders from Mr. Wood and Mr. Stanhope. That they rummaged a the papers together they could find, in an about the room; that they (the messengers fetched a sack, and filled it with papers. That Blackmore then went down stairs, and fetched a smith to open the locks. That Mann, a messenger, then came, and would whisper Mr. Wood, who bade him speak out; he then s he brought orders from lord Halifax to seiz all manuscripts. That the smith then came, and, by the direction of Blackmore, the mes senger, opened four locks of the lower drawers of a bureau; that they took out all the paper in those drawers, and a pocket-book of Mr. Wilkes's, and put them all into the sack toge ther, and then sealed up the sack. That this witness was present during all this time; that the messengers were obedient, and paid an entire regard to the directions of Mr. Wood and Mr. Stanhope. That when Mr. Wood wel away it was near two o'clock in the afternoon; that Mr. Wood, upon the whole, might be near two hours and a half in Mr. Wilkes's house, That no kind of inventory was made of the papers which were put into the sack. That Mr. Stanhope appeared all along to be favour able, and frequently bade the messengers l cautious and careful. Upon his being cross examined, he said, That Mr. Wilkes was carried away about noon That Mr. Wilkes went out in the morning about six, and returned home about nine o'clock. That Mr. Hopkins had been ther that morning before. That Mr. Wood did ab solutely and positively (this witness avers it) order, upon his going out, that all the doors should be locked up, particularly the street door: that Mr. Wood told the messengers they knew their orders, and bade them execute them. That he remembers Mr. Stanhope bid them be careful in rummaging, but don't recollect Mr. Wood said so. That Chisholm, the constable, held the sack, whilst the messengers filled it with papers. That Mr. Wood was not there when the locks were opened he now says, that Mr. Wood had before declared that the locks must be opened. That Mr. Stanhope said, to be sure, the locks must be opened. That Mr. Wood he now says, was at one time above an hour in Mr. Wilkes's study. That Mr. Stanhope was there with Mr. Wood at the time the papers were carried away. That Mr. Webb was gone away some time before. as Mr. Cotes did not declare the man's name.] But Cotes then said, that the door-keeper called Watson, the messenger, to him; who said he had the secretary's verbal order only, but not a written one. That this witness did then insist upon being admitted, and did accordingly enter the house. That Mr. Wood presently after came in, and said with anger, "What do these men do here?" That this witness then said, "What business have you here, Sir?" Mr. Wood answered, that he was the secretary of state's secretary. That this witness then said, he had nothing to do with the secretary of state, nor his secretary neither; that his name was Humphry Cotes, and was to be spoken with at any time. That he (this witness) staid at Mr. Wilkes's house till past two o'clock. That he was desired by Mr. Wood to be present when Mr. Wilkes's papers were sealed up, which he refused to do. The Solicitor-General did not cross-examine him. Richard Hopkins, esq. says, that he went to Mr. Wilkes on the 30th of April last, at half an hour past nine o'clock in the morning, and staid two hours; found then no kind of obstruction. That Mr. Wood was not there at this time, as this witness verily believes; but that, when he returned, Mr. Wood had been there. Confirms the last witness's account, of the obstructions to his entering the house, at this his last coming. That he was desired to be present at the sealing up Mr. Wilkes's papers, which he declined doing. Richard Schofield says, that he is a livery servant to Mr. Wilkes: that he let Mr. Wood in at the door on the 30th of April, about eleven o'clock in the morning, as he thinks, to the best of his remembrance; that Mr. Wood staid the first time about a quarter of an hour. He confirms in general the last witness. That Wood went away, and returned in about an hour. That the messenger, upon being asked by Mr. Gardiner for his orders, said he had only verbal ones, from Mr. Wood. That he can give no account of what passed up stairs, as he retained all that time in the passage below. He confirms the last witness on that circumstance of the messenger, Mann's, coming es from lord Halifax, with fresh orders. That a qe post-letter came, in the mean time, directed to Mr. Wilkes, which the messenger, Watson, re. Arthur Beardmore says, that he was in ceived, and would not deliver till Mr. Wood Westminster-hall on the 30th of April last, W returned, who immediately delivered it, un- and, hearing of Mr. Wilkes's arrest, he went diopened, into this witness's hands. That Mr.rectly to his house, and, with some difficulty, Wood, when he went away, ordered the doors gained admittance. That when he gained adto be kept fast locked, particularly the street-mittance, and came into the parlour, Mr. Wood *t door. That Blackmore came down stairs, and we asked this witness where Mr. Wilkes's smith I lived, and he answered him he believed in Cheapside. ་ Upon his being cross-examined, he said, That Mr. Wood came about a quarter of an hour after Mr. Wilkes was carried away to lord Halifax. That Mr. Wood, Mr. Stanhope, the four messengers, with the constable, together with another gentleman, whom he did not know, were the persons who came into the house. Humphry Cotes says, that he was at Mr. Wilkes's the 30th of April last, in the morning, about eleven o'clock, being sent for by Mr. Wilkes. That Mr. Wood came in between twelve and one: that he (this witness) had been down to the court of Common Pleas, to apply for a Habeas Corpus, and, upon his return to Mr. Wilkes's house, was told that Mr. Wilkes was not at home, and that be, Cotes, must not come in; this was between twelve and one o'clock. He demanded the reason why he must not come in, and by whose authority the door was locked. The man at the door answered, by the secretary of state's. [The Solicitor General disputed this evidence, was there, altercating with the last witness, Mr. Hopkins. That Mr. Gardiner and Mr. Cotes were then there. That lord Temple was likewise there. That he (this witness) observing much confusion, demanded of Mr. Wood to shew his authority, and that much wrangling then ensued. That Mr. Wood and Mr. Webb were both there at this time. That Mr. Wood intreated the company to believe, that the secretaries had acted entirely pursuant to the advice and direction of the attorney and solicitor generals; to which this witness answered, that he very much doubted it. That this witness, coming into the parlour again through the passage, saw Mr. Webb standing at the foot of the stairs, with some keys in his hand, which this witness did presume, and verily did believe, to be some of Mr. Wilkes's keys to his private escrutoires and drawers. That Mr. Wood did desire bim (this witness) to be present at the sealing up Mr. Wilkes's papers, which he utterly refused to do. The counsel for the prosecution declined examining Mr. Gardiner and Mr. Phillips, (who had both been present) on account of their being employed in the cause; and therefore rest here. The Solicitor General then stood up to make |