the second must be twelve months: aud, proceeding progressively, the twentieth must be ten years: and thus six months and ten years will be the punishment for offences which ought to have been punished exactly alike. Or, if it be an offence where whipping or pillory might be inflicted, the alternative of a moderate imprisonment will not be in the power of the Court to inflict; but they will be under the necessity of laying a large fine, or directing one of the other severe corporal punishments. In Dr. Bonham's case, 8 Co. 107. The charter granted by king Henry 8, confirmed by an act of 14 Hen. 8, c. 5, gives the censors of the College of Physicians a power to punish physicians for a mal and insufficient administration of physic, by amercement, imprisonment, &c.

6

Dr. Bonham was convened, examined, and found insufficient by the censors. He was amerced 57. to be paid at their next meeting: and deinceps abstineret, etc. quousque in❝ventus fuerit sufficiens sub pœna conjiciendi in carcerem, si in premissis delinqueret.' He persevered to practise, and they summoned him again. He made default. The censors ordered him to be arrested, and afterwards he came before them, and being asked to submit to their authority, he refused: and they committed him, and awarded that he should continue in gaol till they released him.

It appears from this case, 1st, That he was under no prior sentence of imprisonment, as here.

2dly, That after the judgment of his insufficiency, he was dismissed, with a threat of imprisonment only; and was afterwards committed to prison for not submitting to their authority.

Whereas the delinquent here was never dismissed, nor out of custody, for a moment.

3dly, It was a special power and authority of a very singular and despotic nature, committed to private persons, and therefore to be executed strictly: and when they are empowered to imprison, if they find a person insufficient, the punishment must immediately follow the judgment; because, if suspended a day, it might be suspended a year. If totally dismissed, and the party is at liberty, the power over him is determined.

So in the case of the 27th of Henry 7, Y. B. on the statute of Westminster 2d, 13 Edward 1, c. 11.; if bailiffs, &c. are found in arrear, arrestentur corpora eorum, et per❘ ⚫ testimonium auditorum ejusdem compoti, mit'tantur et liberentur proximæ Goalæ Domini 'Regis in partibus illis.'

ment was brought against auditors, they must shew that they pursued their power. And the same answer applies to the other cases upon the statutes of forcible entries.

[He then cited various other precedents, particularly the case of the King and Dalton, 3 Geo. 1, 1716, in which the first judgment was given in July preceding, upon an indictment for seditious words against the king: and the punishment was a fine of twenty-five marks and commitment for one year, and to find sureties for three years. There was a second conviction, in July, of a like offence, and judgment of a fine of twenty-five marks and comwitment pro spacio unius anni integri post expirationem prior. Judic. imprisonament. versus eum nuper adjudicatum."]

In Answer to the Questions therefore proposed by your lordships, our unanimous Opinion is:

solicitor general, during the vacancy of the 1st, That an information filed by the king's office of attorney general, is good in law.

2dly, That in such a case, it is not necessary, in point of law, to aver upon the record that the attorney general's office was vacant.

3dly, That a judgment of imprisonment against a defendant, to commence from and after the determination of an imprisonment to which he was before sentenced for another offence, is good in law.*

Whereupon it was ordered and adjudged, That the Judgments of the Court of King'sbench be affirmed.+

On Wednesday the 7th of February, 1770,

Mr. Davenport moved that the defendant might be brought up, either into court within this term, or before a judge at chambers after the end of it, to enter into the recognizance required of him by the abovementioned rule of court: for, his imprisonment will end upon a day which does not_fall within any term; namely, upon Easter Tuesday next.

The Court told him, they had thought of this already; and they conceived the best method would be, to make a rule for his entering into the recognizance before the marshal, or some other justice of the peace for the county of Surrey.

And accordingly, they ordered such a rule to be drawn up: which was done, in these words:

Ordered, That at the expiration of the imprisonment of the defendant, by virtue of the judgment of this Court pronounced against him in this cause on Saturday next after fifteen days from the day of the Holy Trinity in the eighth

Serj. Glynn. The question now before the Court, is, whether it does not appear by the return of this writ, that the lord-mayor ought to be discharged; and it is a very important and constitutional question indeed.

The return states, that the imprisonment of his lordship is by virtue of a certain warrant under the hand of sir Fletcher Norton, knight, Speaker of the House of Commons, reciting, that whereas the House had adjudged, that his lordship having signed a warrant for the commitment of a messenger of the House, for having executed the warrant of the Speaker, issued under the order of the House; and held that messenger to bail, is guilty of a breach of privilege of the House; and also reciting, that the House had ordered, that his lordship, a member of the House, should for his said offence be committed. So that it appears what that breach of privilege is.

When any person is brought to this bar by the king's writ of Habeas Corpus, the judges must look into, see and consider the cause of his detention, and are bound to do that which of right, and according to the law and custom of England, ought to be done.

Acts done by the highest authority are subject to the inquiry of the courts in Westminster-hall; whose jurisdiction extends not only to inquire into, controul and correct the acts of inferior, but also of co-ordinate and superior powers.

A breach of privilege of the House of Commons is stated, and also in what manner, and by what fact their privilege was broken; therefore this Court must determine, whether the fact charged is by law a contempt or breach of privilege. When it is returned, that a person was committed by any other court in this hall, for a contempt generally, without specifying the fact or nature of the contempt, this Court cannot inquire in the matter, but must remand the prisoner. Every court of justice of record in the Hall, must necessarily have absolute power to enforce obedience to their own orders, or justice could not possibly be admi. pistered to the king's subjects. The House of Commons is not a court of justice of record, for it cannot administer an oath: it has a certain limited jurisdiction; and this Court must judge, whether it has not transgressed, and gone beyond the bounds of its jurisdiction, and must pronounce upon it. If the king doth exercise any power which is not conformable to law, this Court will remedy it. The old writ De Homine Replegiando did not comprehend the mandates of the king; but the Habeas Corpus extends to them, and to all acts of power not conformable to law. If the Court of Chancery, which is a superior court in civil causes, should exceed its jurisdiction, and interfere by injunction in criminal cases, the inferior court would determine against the Court of Chancery, and would discharge any one from imprisonment whom that Court should commit for disobedience to such injunction.

This Court must enquire, whether the House of Commons has not exceeded its lawful jurisdiction. The lord mayor is charged with a contempt. The question is, whether he is guilty of a contempt; that is to say, whether the fact charged upon him amounts by law to a contempt. The House of Commons makes an order for committing a printer, and that order expresses who shall take him into custody, namely, the serjeant, or deputy serjeant at arms of the House. The printer is taken into custody by a messenger, within the city of London; he complains to the lord mayor; who examines into his complaint, proceeds judicially, and according to law; and after such examination, according to the best of his judgment, is of opinion, that the warrant of sir Fletcher Norton does not justify the taking the printer into custody by a messenger of the House, in the city of London. How does this interfere with the lawful jurisdiction of the House of Commons; and how does it exceed the lawful jurisdiction of the lord-mayor, within the city of London? The jurisdiction of the House must be limited to some particular objects: the claim of an unlimited power in this country is absurd, and destroys itself. In the great question, in Ashby and White, about the Aylesbury men, we find, that in a conference between the Lords and Commons, it was agreed, that the Commons cannot, by any vote or resolution of their own, assume or acquire any new jurisdiction or privilege. Here is a warrant under the hand of sir Fletcher Norton, speaker. Sir Fletcher Norton has no personal authority to commit whom he pleases. The Speaker, as such, has no official authority. Whatever authority he can have, must be merely as the instrument of the House of Commons: his act can be valid only by the order of the House. But that the warrant is made contrary to the order of the House, appears to this Court by the return of the Habeas Corpus; consequently, the Speaker having no authority of his own, and the warrant being contrary to the order, the same is invalid. The messenger executed the warrant in the city: the Speaker had no authority to empower him to execute it in the city of London. The House of Commons have not an unlimited jurisdiction; the lord mayor was therefore obliged to examine, whether the act of power exerted by them within the city, was within their jurisdiction. The printer had been charged with printing the speeches of some members of the House, for which he was ordered to be taken into custody. The lord-mayor thought the House of Commons had no right to order the printer to be taken into custody by their messenger in the city of London, and that the printer ought not to be committed for the act with which he was charged. There is nothing to be pretended in favour of this proceeding of the House of Commons, but their assumed transcendent power. Now it would totally destroy all the

See the Case, vol. 14, p. 695.

writ of error, you mention, was never brought before the Lords.

Serjeant Glynn. It is true, my lord, it was because doubts were started, whether it was a never brought directly in question before them; writ of right or of favour, which might be refused by the particular officer. This occasioned a petition to the queen, who in answer to to grant a writ of error, because she was dethe petition said, she was come to a resolution sirous to have the matter of law settled, for the particular circumstances of those times the good of her subjects: but unhappily for us, prevented it; and the parliament was dis

solved.

L. C. J. De Grey. In all cases, except treason and felony, I think a writ of error is grantable of right. The two Houses addressed the queen for different purposes. The Lords said, it was time enough to decide upon the writ of error, when it came before them.

Serjeant Glynn. My lord, it is for that reason I said, I collect it from other arguments which make it very reasonable to suppose, that the subject would have had satisfaction and redress from the decision of the House of Lords.

benefit, and the very end of the Habeas Corpus, if the transcendency of any power whatever could blind the eyes of a court of justice, and prevent their enquiry into its acts. Such a decision by judges sworn to administer faith fully the laws, would be fatal to every thing that is worth preserving in our boasted constitution, and would leave the unhappy subjects of this country in a state much worse than a state of savage nature. The great chief justice Holt was clearly of opinion, and held it for good law, that if it appeared upon the face of the return of a Habeas Corpus, that what the House of Commons called a contempt, was not by law a contempt, the person committed for it must be discharged that the privileges of the House of Commons are part of the law of the land, and therefore the courts here must take notice of them incidentally and though this was the opinion of a single judge against three others, yet it was agreed to and supported by the House of Lords, who, in those days, remembered that they were the hereditary guardians of the people. Again-Holt held, that the order of the House of Commons forbidding any one to seek or pursue a legal remedy against their orders, was illegal and naught; and boldly said so: and accordingly he was of opinion, that the persons committed for contempt of that order ought to have been discharged; though the three other judges were of a contrary opinion; and the persons were remanded to Newgate. Upon petition to the queen, a writ of error was allowed, and brought; and before it was argued, the parliament for good reasons was dissolved: but I will venture to say, if it had been argued, there would have been judgment given by the House of Lords according to Holt's opinion. If the lex et consuetudo parliamenti, of which we hear so much and know so little, be indeed a part of the law of the land, the judges are bound to take notice of it, and to decide upon it, as they do upon every other part of the law. It has been said, that lord chief justice Holt was single in his opinion; nevertheless, I may venture to say, that his opinion, in the judgment of every honest and unprejudiced mind, will not be found light in the scale, against that of the three other judges. He was single: but he had truth and integrity with him, as well as the strongest arguments on his side, which the conference with the Lords demonstrated; arguments which have never yet been, and which cannot now be answered. The other three judges differing in opinion from him, there was a writ of error (as I said before) granted, returnable in parliament; and if the temper of the times would have permitted it to have been proceeded in, and the parliament had not been then dissolved, it may easily be collected, from the arguments above referred to, that it would have had from the Lords a most solemu and just decision.

The question at present is, whether this Court has not power to examine into the jurisdiction of the House of Commons? I submit it, with deference to the Court, that you have lawful power to enquire, whether the House of Commons had any jurisdiction in this case, and that their privileges are not to be supposed so transcendent and mystical, as to exclude all enquiry. My lord, I deny that the mayor's act is a breach of privilege of the House of Commons. The lord-mayor was in full possession of jurisdiction in the case; he was obliged to decide upon the question before him ; he was obliged to form an opinion upon a case within his jurisdiction. Shall his opinion be adjudged a contempt? Is this the law of the land; that when different courts, having jurisdiction of the same nature, differ in their decisions, they are guilty of contempts one against the other, and may be punished for such 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 case before him; he was bound by his oath to act pursuant to that opinion; it was his bounden duty to act accordingly: he would have been perjured, if, out of respect for any persons, he had not obeyed the call of his conscience. 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 consequence of it. The conscientious act of a magistrate, within the limits of his jurisdiction, can never be a con→ tempt, or punishable. Unless a magistrate acts wrong from corrupt motives, he cannot be punished. But suppose for a moment, the lordmayor did not act from his opinion, but from some corrupt motive, it is not the House of

Commons, but a jury, that must judge of it. The duty of a magistrate 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 whose officer and minister he is; and such orders, rightly pursued and executed by him, are bis sufficient justification but the magistrate is bound by his oath, and has an opinion and judgment of his own which he must follow; and he is answerable to the law, and cannot be justified for the breach of his oath and the law, by any order or resolution of the greatest authority.

Your lordships are now called upon to say, whether the lord-mayor of London, in a case where he had indisputable jurisdiction, acting by his opinion, and according to his oath, is guilty of a contempt of the House of Commons, and can by law be imprisoned.

Serjeant Jephson. My lords, as I shall not have an opportunity of answering any argu ment from the bench, nor can possibly know the objections your lordships may have to discharging the lord-mayor out of custody, I shall endeavour to anticipate and answer such objections against discharging him, as occur to me, and may possibly be made by the Court.

The question is, whether sufficient cause appears to the Court upon the return of this writ, to imprison the lord-mayor? If no legal cause appears for detaining him in custody, he must be discharged.

I shall consider the nature, the return, and the consequence 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 subjects. If a legal cause of detention doth not appear upon the return of the writ, the subject must be discharged, and set at liberty therefore, if a legal cause does not appear upon the return of this writ, the lordmayor must be discharged out of custody. This position cannot be denied.

It appears from the cases of sir William Thicknesse, 4 Inst. 434. Sir William Chauncey, 12 Rep. 83, and from Bushel's case, Vaugh. 135, &c. that the cause of imprisonment ought to be as specifically returned to those who judge upon the writ of Habeas Corpus, as it did to those who first committed the party. Again, Bethell's case, 1 Salk. 348, where the commitment is not to the legal and immediate officer, it is naught.

Again, Search's case, 1 Leon. 70, where the queen bad taken a person into her protection, who, notwithstanding, was arrested, and the person arresting committed, and on a Habeas Corpus was discharged. See again Doctor Alphonso's case, Bulst. 259, where the return was bad, no cause being therein shewed; also Thomas Barkham's case, Cro. Car. 507. the like case, ibid. 579. 1 Roll. Rep. 192, 218, Apsley's case, and Ruswell's case, ibid. 245, Codde's case. The determination in all the cases the same: if the legal charge is not returned, the person must be discharged.

The Court must judge of the cause of commitment returned: if not, why should the writ command the return of the cause? The cause is returned, that the Court may judge, whether the person is intitled to his liberty, or not. It is no objection in this case, to say, that the House of Commons having a power to commit, therefore this Court must not judge of the cause of commitment returned; for this would prove too much; because it would go to every other court having jurisdiction to commit. Suppose the Court of King's-bench, which is equal, and perhaps superior in some respect to this court, should commit a person; and the person committed should be brought here by Habeas Corpus; this Court would certainly take notice, and inquire into the cause returned; and if this Court thought it not a sufficient cause, would discharge the person; otherwise, how would the end of bringing the writ of Habeas Corpus be answered?

It is no objection in this case, to say, that the Court cannot examine the cause as stated in the return, because the Court would then determine upon the privileges of the House of Commons: the Court must, and doth frequently determine upon the privileges of parliament, when they come incidentally before them. See the earl of Banbury's case, 2 ld. Raym. 1247. Salk. 512. 2 Stra. 987-8. This Court made no sort of hesitation to determine in Wilkes's case, upon the privilege of parlia ment. 2 Wilson 151. Why then should they not now enter into this question, touching the privilege of parliament? Io lord Shaftesbury's and Mr. Murray's cases, the returns were general, for contempts of the House, without stating the particular facts; but the facts of the supposed contempt in this case appear, which we contend cannot by any legal construction amount to a contempt, and therefore that the lord mayor must be discharged. The House of Commons having determined it to be a contempt, does not alter the case: a fact does not become a contempt by being recited to be such. The Court must consider, whether the warrant for my lord mayor's commitment is the warrant of the Speaker as speaker of the House of Commons, as sir Fletcher Norton may act in a double capacity. (Here it seems there was laughter.)

L. C. J. De Grey.-Sir Fletcher Norton signs himself Speaker.

Serj Jephson.-His signing himself Speaker will not help the warrant, if the cause is not sufficient; and the Court may rather suppose the mistake committed by sir Fletcher Norton in his private capacity, than by the House of Commons. Suppose some future speaker, of some future House of Commons, should recite in his warrant, that the House of Commons had adjudged it a breach of privilege, and contempt, to sue out a statute of bankrupt against one of their members, which by act of parlia ment any one is permitted to do; and should in consequence commit a person for such legal