"sheriff, &c. shall, at the return of the said writ, and according "to the command thereof, on due and convenient notice thereof "given unto him, at the charge of the party who requires or procures such writ, and on security by his own bond given, to pay "the charges of carrying back the prisoner, if he shall be re"manded by the court, &c. which charges shall be ordered by "the court, bring or cause to be brought the body of the party "before the judges of the court, from whence the same writ "shall issue, in open court, and shall then likewise certify the "true cause of such his detainer or imprisonment; and there"upon the court, within three court-days after such return made " and delivered (a), in open court, shall proceed to examine and (a) See 1 Sid. "determine whether the cause of such commitment appearing 78. 66 upon the said return, be just and legal or not, and shall there- 1 Keble, 305. "upon do what to justice shall appertain, either by delivering, "bailing, or remanding the prisoner: And if any thing shall be "otherwise wilfully done, or omitted to be done by any judge, "justice, officer, or other person aforementioned, contrary to the "true meaning hereof, that then such person so offending shall "forfeit to the party grieved, his treble damages, &c." 66 Sect. 72. But it is provided, par. 9. "That the above-recited clause shall extend only to the warrants and directions of the council-board, and to the commitments, restraints, and impri"sonments of any person or persons, made, commanded or "awarded, by the king's majesty, his heirs or successors, in their own person, or by the lords and others of the privy council, " and every one of them." 66 As to the second particular, viz. Where bail is grantable by the court of King's Bench to a person imprisoned by either house of parliament. Chancey's case, Ld. Shaftes bury's case, Sect. 73. There can be no doubt but that the highest regard Regina v. Paty, is to be paid to all the proceedings of either of those houses, and Ld. Ray, 1105. that wherever the contrary does not plainly and expressly appear, 12 Rep. 83. it shall be presumed that they act within their jurisdiction, and Bushell's case, agreeably to the usages of parliament, and the rules of law and Ld. Vaugh, 135. justice: And therefore, wherever it stands indifferent upon the return of a habeas corpus, whether a commitment by either of 1 Mod. 144. those houses were strictly legal or not, and the parliament be Dr. Shebbear's still sitting, I can find no precedent that the prisoner hath been 460, and the bailed by the court of King's Bench. And it cannot but be cases cited in expected, that those houses would be apt to resent an attempt the following of this kind, which might seem to carry with it an implicit reflec- note. tion on their honour, as unjustly depriving a subject of his liberty, and putting him under a necessity of demanding justice from another court, by unreasonably refusing to restore him to it; which surely shall never be intended, where their proceedings case, 1 Burrow, 5,6. are capable of a more favourable construction. And, therefore, See the case of in Lord Shaftesbury's case, who, upon his habeas corpus in the Joy and TopKing's Bench, was returned to have been committed by the ham, 8 St. Tr. House of Lords for a high contempt committed against that house, the court would not take notice of any exceptions against the form of the commitment, as that it was too general, and did not Skinner, 56. 163.527. 1 Keb. 871. 1 Levinz, 165. 157. Shower, 100. Raym. 581. Skinner, 56. 162, 163. not express the nature of the contempt, or in what place it was committed, &c. for that it shall be presumed, that it was such for which the lords might lawfully make such an order, and no other court shall prescribe to them in what form they ought to make it. But if it be demanded, in case a subject should be committed, by either of those houses, for a matter manifestly out of their jurisdiction, what remedy can he have? I answer, that it cannot well be imagined that the law, which favours nothing more than the liberty of the subject, should give us a remedy against commitments by the king himself, appearing to be illegal, and yet give us no manner of redress against a commitment by our fellow-subjects, equally appearing to be unwarranted. But as this is a case which, I am persuaded, will never happen, it seems needless over nicely to examine it. (1) Sect. 74. However it seems agreed, that a person committed for a contempt, by the order of either house of parliament, may be discharged by the court of King's Bench after a dissolution or prorogation of the parliament, whether he were committed during the sessions or afterwards, for that all the orders of parliament are determined by a dissolution or prorogation; and all matters before either house must be commenced a-new at the next parliament, except only in the case of a writ of error: and if the subject should be deprived of his liberty till the next parliament, which perhaps may not meet again in many years, no one could say when his imprisonment would end. Sect. 75. But it is holden in Shower's Reports, that a lord committed by the House of Lords, on an impeachment of treason, and afterwards pardoned, cannot be discharged by the court of King's Bench, because the impeachment being in a superior court, the pardon must be pleaded there; and the commitment being by the lords, the King's Bench cannot take conusance of it. Yet it seems to have been taken for granted, in the Lord Stafford's case, that the court of King's Bench may, in their discretion, bail a lord upon an impeachment of high treason, which in that case they refused to do, not as a matter out of their power, but as a thing which they were not bound to do, and improper (1) The doctrine contained in this section has been confirmed in several memorable instances. In Easter Term, 24 Geo. 2. the Honourable Alexander Murray was committed to Newgate, by the house of commons for a contempt of privilege. A habeas corpus issued; and Wright, Denison, and Foster, were clear that the court of King's Bench had no jurisdiction in the case; for that both houses of parliament, in concurrence with every court of record, even the lowest, has an exclusive right to commit for a contempt. Lord Holt also thought the right existed for contempts committed in the face of the house, 1 Wilson, 299.-In Easter Term, 3 Geo. 3. C. B. on Mr. Wilkes's case (vide infra, c. 16.), Pratt, C. J. and the whole court, declared they bad no power to decide upon the privileges of parliament.-Lord Camden, in the case of Entick v. Carrington, Mich. 6 Geo. 3. 11 St. Tr. 317. says, the rights of that assembly (viz. house of commons) are original and self-created; they are paramount to our jurisdiction, and above the reach of injunction, prohibition, or error. And in Easter Term, 11 Geo. 3. Brass Crosby, Esq. Lord Mayor of London, and a member of parliament, was brought to the Common Pleas, on a habeas corpus at common law, to be released from a commitment by virtue of the speaker's warrant for a contempt. De Grey, C. J. delivered the unanimous opinion of the court, that the house of commons are the exclusive arbiters of their own peculiar privileges, 4 Inst. 47. Dyer, 59, that their power of committing is inherent from the very nature of their institution, 3 Jac. 1. c. 13. Ashby and White, 8 St. Tr. 90. Ld. Raymond, 938. that their adjudication is tantamount to a conviction, and their commitment equal to an execution; and that no court can discharge a prisoner committed in execution by another court, Cro. Car. 168. His Lordship was accordingly remanded, 2 Black. 755. 3 Wilson, 188. 1 W. and M. proper on consideration of the whole circumstances. And though Carthew, 132, the reasons above cited from Shower's Reports seem proper to 133. prove, that the court of King's Bench cannot discharge a prisoner Salkeld, 503 from any impeachment in parliament whatsoever; yet they seem Castlemain was by no means to prove, that they cannot bail him. But it is ob- committed by servable, that it doth not clearly appear, from either of the above- the Commons, mentioned reports, whether any parliament were sitting at the for high treason, times of the motion for such discharge and bailment, or not; but and bailed by it is certainly most likely to prevail in such a motion, when no King's Bench, 4 State Trials, parliament is sitting, nor likely soon to sit, and after the party 397. hath been long in prison; because, in such a case, if he should not be bailed, he might be perpetually imprisoned for a crime, without any opportunity of making his defence. As to the third particular, viz. Where bail is grantable by the King's Bench to a person committed by the court of Chancery. 1 Roll. 219. 219. like case. Sect. 76. Little is said in the books, except in the reign of King James the First, at the time when Sir Edward Coke was chief justice, when this matter was very much litigated, and occasioned great heats between the two courts, and several persons committed to the Fleet by the chancellor were bailed by the court of King's Bench, upon exceptions to the generality of the form of the commitments, as (a) not shewing the time of the (a) 1 Roll. 192. commitment, or setting (b) forth only the command of the lord 218. chancellor as the ground of the imprisonment, without mention- (6) Moor, 839. ing any crime at all, or mentioning the crime in (c) general terms, (e) 1 Roll. 192. as for a contempt to the court of Chancery, without shewing 218, 219. what the contempt was, or at what time committed: And one (d) 1 Roll. 111. (d) Glanvil, who was generally committed by the command of Moor, 838. the lord chancellor, without setting forth any cause of such com- 2 Bulst. 301. mand, seems to have been bailed upon examination of the merits C. Jac. 343. of the decree, for disobeying whereof he was in truth committed; 3 Bulst. 115. whereby it appeared that the decree related to a matter before 1 Roll. 277. adjudged at the common law, which was thought contrary to the purport of the (e) statutes of 27 Edw. 3. c. 1. and 4 Hen. 4. (e) Vide 1 Roll. c. 23. But this proceeding being resented by the lord chan3 Bulst. 115. cellor, the said Glanvil was afterwards recommitted by him for Dalison, 81. the same matter, and yet was afterwards, on another habeas cor- 3 Leonard, 18. pus, bailed the second time by the court of King's Bench: but I have not met with any precedent of this kind of late years; and how far the long disuse of such like proceedings may have lessened the authority of the cases above-mentioned, may deserve to be considered. However, it cannot but be expected, that the superior courts will pay the highest regard to one another's proceedings, and be ready to presume, that they are agreeable to law, unless the contrary appear, or the case be very Vaughan, 130. particular and extraordinary, which may perhaps reasonably in- 140. seems conduce them, in some circumstances, to make exceptions from trary. those general rules which in common cases usually govern their discretion. But what case in particular may be said to be of so extraordinary a nature, it would be needless and presumptuous for me to endeavour to examine. But as to the case abovementioned, which was formerly so much litigated, concerning the Chancery's giving relief against a judgment at law, since it seems to 277. " to be settled at this day, that the Chancery may, in some cases, give relief against the unequitable use of such a judgment, espeVide b. 1. c. 4. cially as to a point not relievable by law; whenever it stands s. 17. 1 Modern, 155. Moor, 840. Holt, 590. 3 Salk. 91. 284. Vaughan, 157. 6 Modern, 73. Raymond, 381. 2 Ld. Raym. 978. 12 Modern, 102. 155. 2 Hale, 112. See Bushell's case in Vaughan's Reports. indifferent whether the matter examined by Chancery, after a judgment at law, be of such a nature as is proper for relief in Chancery, or not, it is not probable that any other court of Westminster-hall will easily presume that it is not, when the chancellor, who is the proper judge, hath determined that it is: and agreeably hereto it hath been adjudged, that a commitment from Chancery for disobedience to a decree is good, without shewing what the decree was. As to the fourth particular, viz. Where bail is grantable by the court of King's Bench to one committed by an inferior court of record. Sect. 77. It seems, that this court, having the supreme controul of all inferior courts, may, in discretion, on consideration of the whole circumstances of any case whatsoever, bail any person who shall appear to have been unjustly or hardly deprived of his liberty by an inferior court. And therefore, wherever it shall clearly and expressly appear, that a person hath been committed by any such court, for a matter which either is in truth no crime at all, or if it be a crime, is not within the jurisdiction of such court, there can be no doubt but that it is a proper motion to the King's Bench to bail him. But in what other cases in particular one may hope for the like success in a motion of this kind, it seems difficult to determine (2); for that every such case depends upon its particular circumstances, which have great weight with the court in its determinations of this kind, in which it is in great measure left to its discretion. And therefore, though perhaps it may bail a man on a commitment by a mayor of a town, or justice of peace, or other inferior magistrate, for a contempt, without shewing the particular nature of it; yet it cannot be expected, that it will with the like readiness bail a man on such a general (a) See the pre- commitment by a court of higher (a) dignity, as a court of oyer cedent section, and terminer, or any other court of Westminster-hall; to the honour of whose proceedings the greatest regard is always to be given; and on this ground chiefly, as I suppose, where a person on a habeas corpus was returned to have been committed by an order of the Exchequer, for not paying a fine of fifty pounds by the ecclesiastical commissioners imposed upon him, the court of (b) C. Car. 579. King's Bench (b) refused to bail him, though it was not shewn wherefore the said fine was imposed. And as a great regard is always paid to the dignity of the court by which the party is committed, so is it likewise to the notoriety of the offence; and therefore, where a person convicted of buying and selling old money, before justices of oyer and terminer, was committed in execution for the fine, by an order of the court not strictly for(e) 1 Sid. 144. mal, yet the court of King's Bench refused (c) to bail him; for this reason chiefly, because he was in execution, and his commit and C. Jac. 219. 286. 320. (2) In the case of an impressed apprentice, the King's Bench may issue a warrant to bring him up, without putting him to the circuity of a habeas cor ment pus. Lord Mansfield, 3 May, 1779. 2 Bulst. 159, 140. &c. March, 52, 289.320. ment was defective only in point of form. Also where persons taken in execution for their fines to the king, set on them by a sessions of justices of peace, have not only brought their habeas corpus, but also their writ of error in the King's Bench, and Salkeld, 348. assigned errors, yet the court has refused to bail them. But I 5 Mod. 19, 20. take it for granted, in those cases, which are but briefly reported, 53. that appeared upon the whole record, that such fines were 1 Sid. 288, legally imposed. Also it seems, that the said court has sometimes been induced to deny persons committed by other courts by warrants not strictly formal, the benefit of bail, for the enormity, dangerous tendency, or obstinacy (a) of their offence, (a) 1 Bulst. 48 which if it had been attended with less aggravating circumstances to 54. might not have excluded them from it. Also the said court, in 337. 411. determining whether it be proper to bail a man committed by (b) 1 Roll. 218. another court, usually considers all the other circumstances of 337. the case, as the length (b) and hardship (c) of the imprisoment, (e) Latch. 12. and such like, in order to give such a determination upon the whole, as may be most agreeable to the honour and prerogative of the crown, and the liberty and safety of the subject. 1 Roll. 220. 2 Bulst. 140. Sect. 78. But it seems to be agreed, that no one can in any case controvert the truth of the return to a habeas corpus, or plead or suggest any matter repugnant to it. Yet it hath been holden, that a man may confess and avoid such a return, by admitting the truth of the matters contained in it, and suggesting others not repugnant, which take off the effect of them. And upon this ground, where one Swallow, a citizen of London, was committed 1 Sid. 287,288. for refusing to accept the office of an alderman of the said city to which he had been elected, and the custom of the city justifying a commitment for such a refusal, and the election and refusal were set forth in the return to the habeas corpus, he filed a suggestion in the crown office, that he was an officer of the king's mint, and that all such officers were exempted from all cityoffices, both by prescription and by the king's charter: and thereupon, the patent of the grant of his office, and also the patent of the exemption, being enrolled in the court, he was discharged. Sect. 79. Also the court will sometimes examine by affidavit the 5 Mod. S23. circumstances of a fact on which a prisoner brought before them 454, 455. by an 2 Jones, 222. habeas corpus hath been indicted, in order to inform themselves, on examination of the whole matter, whether it be reasonable to bail him or not. And agreeably hereto, where one Jackson, who had been indicted of piracy before the sessions of admiralty (d) on a malicious prosecution, brought his habeas (d) In Trinity corpus in the said court in order to be bailed, the court examined Term, 4 Geo. 1. the whole circumstances of the fact by affidavits; upon which it appeared, that the prosecutor himself, if any one, was guilty, and carried on the present prosecution to screen himself; and thereupon the court, in consideration of the unreasonableness of the prosecution, and the uncertainty of the time when another sessions of admiralty might be holden, admitted the said Jackson to bail, and committed the prosecutor till he should find bail to answer the facts contained in the affidavits. As to the fifth particular, viz. Where bail is grantable by the court |