Messenger) and having signed a Warrant against the said Messenger, for having executed the said Warrant of the Speaker, and having held the said Messenger to Bail for the same, is guilty of a Breach of the Privileges of this House. A motion was made, and the Question being proposed, That Brass Crosby, Esquire, Lord Mayor of the City of London, and a Member of this House, be, for his said Offence, committed to the custody of the Serjeant at Arms attending this House. The Lord Mayor was heard in his Place. And then he again withdrew. Then an Amendment was proposed to be made to the Question, by leaving out the Words, "Custody of the Serjeant at Arms attending this House," and inserting the Words "Tower of London" instead thereof; And the Question being put, That the Words "Custody of the Serjeant at Arms attending this House," stand Part of the Question; It passed in the Negative. And the Question being put, That the Words "Tower of London" be inserted instead thereof; It was resolved in the Affirmative. Then the main Question, so amended, being put, That Brass Crosby, Esquire, Lord Mayor of the City of London, and a Member of this House, be, for his said Offence, committed to the Tower of London; The House divided. The Yeas went forth. Tellers for the Yeas,{ Lord Burgersh, 202. } 39. Colonel Jennings, Tellers for the Noes, {Mr. Whitworth: So it was resolved in the Affirmative. Ordered, That Mr. Speaker do issue his Warrants accordingly. (C.J. xxxiii. 289.) II L. C. J. De Grey.-If either myself or any of my brothers on the bench, had any doubt in this case, we should certainly have taken some time to consider, before we had given our opinions; but the case seems so very clear to us all, that we have no reason for delay. The writ by which the lord mayor is now brought before us, is a Habeas Corpus at common law, for it is not signed per statutum. It is called a prerogative writ for the king; or a remedial writ: and this writ was properly advised by the counsel for his lordship, because all the judges (including Holt) agreed that such a writ as the present case required, is not within the statute. This is a writ by which the subject has a right of remedy to be discharged out of custody, if he hath been committed and is detained contrary to the law; therefore the Court must consider, whether the authority committing is a legal authority. If the commitment is made by those having authority to commit, this Court cannot discharge or bail the party committed; nor can this Court admit to bail, one charged or committed in execution. Whether the authority committing the lord mayor, is a legal authority or not, must be adjudged by the return of the writ now before the Court. The return states the commitment to be made by the House of Commons, for a breach of privilege, which is also stated in the return; and this breach of privilege or contempt is, as the counsel has truly described it, threefold; discharging a printer in custody of a messenger by order of the House of Commons; signing a warrant for the commitment of the messenger, and holding him to bail; that is, treating a messenger of the House of Commons as acting criminally in the execution of the orders of that House. In order to see whether that House has authority to commit, see Co. 4. Inst. 23. Such an assembly must certainly have such authority; and it is legal, because necessary. Lord Coke says they have a judicial power; each member has a judicial seat in the House: he speaks of matters of judicature of the House of Commons, 4 Inst. 23. The House of Commons, without doubt, have power to commit persons examined at their bar touching elections, when they prevaricate or speak falsely; so they have for breaches of privilege; so they have in many other cases. Thomas Long gave the mayor of Westbury £4 to be elected a burgess: he was elected, and the mayor was fined and imprisoned, and Long removed. Arthur Hall, a member, was sent to the Tower, for publishing the conferences of the House, 4 Inst. 23. This power of committing must be inherent in the House of Commons, from the very nature of its institution, and therefore is part of the law of the land. They certainly always could commit in many cases. In matters of elections, they can commit sheriffs, mayors, officers, witnesses, etc. and it is now agreed that they can commit generally for all contempts. All contempts are either punishable in the Court contemned, or in some higher Court. Now the parliament has no superior court; therefore the contempts against either house can only be punished by themselves. The stat. 1 Jac. 1, cap. 13. sect. 3, sufficiently proves that they have power to punish: it is in these words: viz. 'Provided always, that this Act, or anything therein contained, shall not extend to the diminishing of any punishment to be hereafter by censure in parliament inflicted upon any person which hereafter shall make, or procure to be made, any such arrest as is aforesaid.' So that it is most clear the legislature have recognized this power of the House of Commons. In the case of the Aylesbury men, the counsel admitted, lord chief justice Holt owned, and the House of Lords acknowledged, that the House of Commons had power to commit for contempt and breach of privilege. Indeed, it seems, they must have power to commit for any crime, because they have power to impeach for any crime. When the House of Commons adjudge anything to be a contempt, or a breach of privilege, their adjudication is a conviction, and their commitment in consequence, is execution; and no court can discharge or bail a person that is in execution by the judgement 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 person is in execution by the judgement of a court having a competent jurisdiction in such case, this court is not a court of appeal. It is objected, 1. That the House of Commons are mistaken, for they have not this power, this authority; 2. That supposing they have, yet in this case they have not used it rightly and properly; and, 3. That the execution of their orders was irregular. In order to judge, I will consider the practice of the courts in common and ordinary cases. I do not find any case where the courts have taken cognisance of such execution, or of commitments of this kind: there is no precedent of Westminster Hall interfering in such a case. ... How then can we do anything in the present case, when the law by which the lord mayor is committed, is different from the law by which he seeks to be relieved? He is committed by the law of parliament, and yet he would have redress from the common law. The law of parliament is only known to parliament men, by experience in the House. Lord Cope says, 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 jurisdiction of the House of Commons. We cannot judge of the laws and privileges of the House, because we have no knowledge of those laws and privileges. We cannot judge of the contempts thereof: we cannot judge of the punishment thereof. I wish we had some code of the law of parliament; but till we have such a code, it is impossible we should be able to judge of it. Perhaps a contempt in the House 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 sole judge of its own contempts. Besides, as the court cannot go out of the return of this writ, how can we inquire as to 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 summon 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 witnesses, or depositions of witnesses. We cannot issue any process. We are even now hearing ex parte, and without any counsel on the contrary side. Again, if we could determine upon the contempts of any other court, so might the other courts of Westminster-hall; and what confusion would then ensue! none of us knowing the law by which persons are committed by the House of Commons. If three persons are committed for the same breach of privilege, and applied severally 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 pursued to all possible cases, consequences of most important mischief. 1st, It is said, that if the rights and privileges of parliament are legal rights, for that very reason the Court must take notice of them, because they are legal. And 2ndly, If the law of parliament is part of the law of the land, the judges must 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. ... 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 determined it, the lord-mayor would be remanded. In the case of Mr. Murray, the judges could not hesitate concerning the contempt by a man who refused to receive his sentence in a proper posture. All the judges agreed, that he must be remanded, because he was committed by a court having competent jurisdiction. Courts of justice have no cognizance of the acts of the houses of parliament, because they belong 'ad aliud examen.' I have the most perfect satisfaction in my own mind in that determination. Sir Martin Wright, who felt a generous and distinguished warmth for the liberty of the subject; Mr. Justice Denison, who was so free from connexions and ambition of every kind; and Mr. Justice Foster, who may truly be called the Magna Charta of liberty of persons, as well as fortunes; all these reverend judges concurred in this point: I am therefore clearly and with full satisfaction of opinion, that the lord-mayor must be remanded. (S.T. xix. 1146–1152.) XIX SOMERSETT'S CASE 12 Geo. III., 1771-1772. [The facts in this case are stated with sufficient clearness in the excerpt from Lord Mansfield's remarkable judgment, June 22, 1772. It affirmed the doctrine laid down in Stanley v. Harvey by Lord Northington. It is noticeable that Lord Mansfield delayed judgment for three terms, having failed to effect a compromise between the parties. On the question see Broom, C.L. 59-114; May, C.H.E. iii. 36. The whole of the lengthy argument of Mr. Hargrave for the negro (S.T. xx. 23–67) is full of valuable and historical matter, well worthy of study, but too long for quotation.] I shall recite the return to the writ of Habeas Corpus, as the ground of our determination; omitting only words of form. The captain of the ship on board of which the negro was taken, makes his return to the writ in terms signifying that there have been, and still are, slaves to a great number in Africa; and that the trade in them is authorized by the laws and opinions of Virginia and Jamaica; that they are goods and chattels; and, as such, saleable and sold. That James Somersett is a negro of Africa, and long before the return of the writ was brought to be sold, and was sold to Charles Steuart, Esq., then in Jamaica, and has not been manumitted since: that Mr. Steuart, having occasion to transact business, came over hither, with an intention to return; and brought Somersett to attend and abide with him, and to carry him back as soon as the business should be transacted. That such intention has been, and still con |