"was at common law. I concur intirely "with my lord chief justice." 1771. Oliver's Case. And in Mr. Alderman Oliver's case, argued in the court of Exchequer on the 27th of April 1771, the four judges, Chief Baron Parker, Mr. Baron Smythe, Mr. Baron Adams, and Mr. Baron Perrot, unanimously acknowledged in like manner the right of the House of Commons to commit. 1779.-Durnford and East's Report, K. B. Book S. p. 314. Flower's Case. In the case of Flower, committed by the House of Lords, for a libel on the Bishop of Landaff, on his being brought up to the King's Bench upon Habeas Corpus, 66 Lord Kenyon, Chief Justice, said-" If "we entertained any doubts upon this "subject, it would be unbecoming in us "to rush to a speedy decision without looking through all the cases cited by "the defendant's counsel; but not having any doubts, I think it best to dispose of "the case at once. The cases that have "been referred to are all collected in lord "Hale's treatise on the jurisdiction of the "Lords' House of Parliament, and that valuable preface to it published by Mr. Hargrave; but in the whole of that publication the defendant's counsel has "not found one case applicable to the " present. This is one of the plainest "questions that ever was discussed in a "court of law. Some things, however, "have dropped from the learned counsel, that require an answer: First, it is said that the House of Lords is not a court of record. That the House of Lords when exercising a legislative capacity is not a court of record, is undoubtedly true; but when sitting in a judicial capacity, as in the present case, it is a court of record. Then it was objected, that the defendant was demned without being heard in his de"fence but the warrant of commitment furnishes an answer to that; by that it appears, that 'he was informed of the complaint made against him,' &c. and ' having been heard as to what he had to say in answer to the said complaint, &c. he was adjudged guilty of a high breach. of the privileges of the House,' &c. so that it clearly appears that he was heard in his defence, and had the same op'portunity of calling witnesses, that every other defendant has in a court of justice. Then insinuations are thrown out against con The ground of this proceeding is, that "the defendant has been guilty of a "breach of privileges of the House, and a " contempt of the House. This claim "of right to punish by fine and impri"sonment for such an offence, is not pe"culiar to the House of Lords; it is fre"quently exercised by this and other "courts of record, and that not merely "for contempts committed in the pre"sence of the court; one instance of "which was that of Mr. Beardmore* under "sheriff of Middlesex, for a contempt of "the court in not executing part of the W pronounced on Dr. Shebbeare. And "that case answers another objection, strongly insisted on by the defendant's "counsel here, that if the party accused "can be punished in any other manner, "this mode of trial cannot be resorted to; for there Mr. Beardmore might "have been indicted, but yet he was at"tached, examined upon interrogatories, "and fined and imprisoned. Again it is objected, that the House of Lords can"not impose a fine for such an offence: "but this and other courts of record have "the power of fining in this summary man ner; and why should not the House of "Lords have the same power of imposing a "fine for a contempt of their privileges? "Then several instances were alluded to, "where the House did not choose to exer"cise this privilege, but directed prose"cutions to be instituted in the courts of "law. The same observations might "equally be made on the proceedings of "this court, who have sometimes directed indictments to be preferred. We are "not therefore to conclude that the House "of Lords has not the power of inflicting "this punishment, from the circumstance "of its not exercising it on all occasions. "When lord Shaftesbury's case came on, "there were some persons who wished to abridge the privileges of the House of * Vide 2 Burr. 792. "Lords: but Mr. Serjeant Maynard was "one of those who argued in support of "their privileges; and he surely was not "capable of concurring in any attempt "to infringe the liberties of the people. "It has been said, however, that though "many instances are to be found in "which the House of Lords has in point "of fact exercised this power, whenever "that power has been resisted it has been "resisted with effect; from whence it is "inferred, that the House of Lords has "not the authority which it assumes: "but in this case I may avail myself of the "same argument in favour of its jurisdic❝tion, for no case has been found where "it has been holden to be illegal in the "House of Lords to fine and imprison a "person guilty of a breach of privilege. "We are bound to grant this Habeas Corpus; but having seen the return to "it, we are bound to remand the defen"dant to prison, because the subject belongs to aliud examen.' There is no"thing unconstitutional in the House of "Lords proceeding in this mode for a "breach of privilege; and unless we wish "to assist in the attempt that is made to "overset the law of parliament and the "constitution, we must remand the de "fendant." Grose, J.—" This question is not new; "it has frequently been considered in "courts of law; and the principles dis"cussed to-day, and the cases cited, were "examined not many years ago; and "the result is very ably stated by lord "chief justice De Grey, in 3 Wils. 199. "When the House of Commons (and the "same may be said of the House of Lords) "adjudge any thing 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 judgment " of any other court.' In another pas"sage he said Every court must be sole "judge of its own contempts.' And again "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 immediately before "them.' ་ Having stated this, I think I need "not add more in the present case." Per Curiam*. Let the defendant be remanded. APPENDIX (E.) CASES of Commitments for Contempt by ANALOGY. In Michaelmas Term 18 Edward 3. John De Northampton, an attorney of the court of King's Bench, confessing himself guilty of writing a letter respecting the judges and court of King's Bench, which letter was adjudged by the court to contain no truth in it, and to be calculated to excite the King's indignation against the court and the judges, to the scandal of the said court and judges, was committed to the marshal, and ordered to find securities for his good behaviour.3. Inst. 174. Hilary Term 11 Ann. A Writ of Attachment was issued against Thomas Lawson, for speaking disrespectful words of the Court of Queen's Bench, upon his being served with a rule of that court. Trinity Term 5 Geo. I A Writ of Attachment against Jones, for treating the process of the court of King's Bench contemptuously: and there being an intimation that he relied on the assistance of his fellow-workmen to rescue him, the Court sent for the sheriff of Middlesex into court, and ordered him to take a sufficient force.-1 Strange 185. Michaelmas Term 6 Geo.l. A Writ of Attachment was granted to Richard Lamb, for contemptuous words concerning a Warrant from a judge of the court of King's Bench. Easter Term 6 Geo. 1. -Wilkins having confessed himself guilty of publishing a libel upon the court of King's Bench, the court made a rule committing him to the marshal. The next Term Wilkin having made court, being indisposed; and Mr. Justice Le Blanc, having attended at the Guildhall sittings for lord Kenyon, and not returning till the argument was closed; gave no Mr. Justice Lawrence was not in opinion. an affidavit charging Doctor Colebatch with being the author of the libel, was sentenced to pay a fine of £.5. and to give security for his good behaviour for a year. Hilary Term 7 Geo. 1. An Attachment was granted against John Barber, esq. for contemptuous words of the court of King's Bench, in a speech to the common council of London.-l Strange. 443. Hilary Term, 9 Geo. 1. Doctor Colebatch having been examined upon interrogatories, for contempt in publishing a libel, the interrogatories and answer were referred to the King's coroner and attorney; and In Easter Term 9 Geo. 1. Dr. Colebatch, being in the custody of the marshal, was brought into court, and was sentenced to pay a fine of 50%. and to give security for his good behaviour for a year, and was committed to the marshal in execution. Michaelmas Term 9 Geo.1. Michaelmas Term 5 Geo. 2. The court granted a Writ of Attachment against lady Lawley, for a contempt in publishing a paper reflecting upon the proceedings of the court; and she having been examined upon interrogatories, was in Easter term following reported by the officer of the court to be in contempt, and was committed to the marshal. And in Trinity Term 6 Geo. 2 she was brought into court, and a rule made, stating that fecit submissionem suam petivit veniam de curâ;" and thereupon she was fined five marks and discharged. Mark Halpenn, the husband of lady Lawley, was also examined upon interrogatories, for publishing the same libel.— 2 Barnardiston, K.'s B. 43. A Writ of Attachment was granted against John Bolton, clerk, for contemptuous words respecting the warrants of the Lord Chief Justice of the court of King's Bench, at a meeting of his parish- Extract from Atkyns's Reports, Book 2, ioners in the church yard. page 469. First Seal after Michaelmas Term, December 3d. 1742. Easter Term 9 Geo. 1. John Wyatt, a bookseller in St. Paul's Church-yard, published a pamphlet, A motion against the printer of the written by Dr. Conyers Middleton, in Champion, and the printer of the the dedication of which to the vice-chan- Saint James's Evening Post; that the cellor of Cambridge, were some passages former, who is already in the Fleet, may reflecting upon a proceeding of the court be committed close prisoner, and that the of King's Bench; the court granted a other, who is at large, may be commit rule against Wyatt, to shew cause why a ted to the Fleet, for publishing a li Writ of Attachment should not issue bel against Mr. Hall and Mr. Garden, against him for his contempt; and Wyatt (executors of John Roach, esquire, late having made an affidavit that Cornelius major of the garrison of Fort St George Crownfield had employed him to sell the in the East Indies) and for reflecting likepamphlet, and he having charged Dr. wise upon governor Mackay, Governor Conyers Middleton with being the author Pitt, and others, taxing them with turning of it, Crownfield was discharged upon affidavit-men, &c. in the cause now depayment of the costs, and a Writ of At-pending in this court; and insisting that tachment was granted against Dr. Conyers Middleton, who, in the next term, gave bail to answer the contempt; he was afterwards examined upon interrogatories, Lord Hardwicke, Lord Chancellor. and upon the report of the King's coroner Nothing is more incumbent upon courts and attorney he was adjudged to be in of justice than to preserve their proceedcontempt, and was committed to the mar-ings from being misrepresented: nor is shal in execution quousque, &c. and it there any thing of more pernicious conwas referred to the master to tax the pro- sequence, than to prejudice the minds of secutor's costs. the publishing such a paper is a high contempt of this court, for which they ought to be committed. the public against persons concerned as parties in causes, before the cause is finally heard.* It has always been my opinion, as well as the opinion of those who have sat here before me, that such a proceeding ought to be discountenanced. But to be sure Mr. Solicitor-General has put it on the right footing, that notwithstanding this should be a libel, yet unless it is a contempt of the court, I have no cognizance of it; for whether it is a libel against the public, or private persons, the only method is to proceed at law. The defendants' counsel have endeavoured two things-1st, to shew this paper does not contain defamatory matter; 2dly, if it does, yet there is no abuse upon the proceedings of this court: And therefore there is no room for me to interpose. Now take the whole together, though the letter is artfully penned, there can remain no doubt in every common reader at a coffee-house but this is a defamatory libel. It is plain therefore who is meant; and as a jury, if this fact was before them, could make no doubt, so, as I'am a judge of facts as well as law, I can make none. I might mention several strong cases, where even feigned names have been construed a libel upon those persons who were really meant to be libelled. Upon the whole, as to the libellous part, if so far there should remain any doubt whether the executors are meant, it is clear beyond all contradiction upon the last paragraph, in which are these words: "This case ought to be a warning "to all fathers to take care with whom they trust their children and their for"tunes, lest their own characters, their "widows and their children be aspersed, "and their fortunes squandered away in "law-suits." And likewise, though not in so strong a degree, the words "turned affidavitmen," is a libel against those gentlemen who have made them. There are three different sorts of contempt: One kind of contempt is, scandalizing the court itself. There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may also be a contempt of this court, in prejudicing mankind against persons before the cause is heard. There cannot be any thing of greater consequence than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters. The case of Raikes, the Printer of the Gloucester Journal, who published a libel in one of the Journals against the Commissioners of Charitable Uses at Burford, calling his advertisement, A Hue and Cry after a Commission of Charitable Uses, was of the same kind as this; and the court in that case committed him. There are several other cases of this kind; one strong instance, where there was nothing reflecting upon the court, in the case of Captain Perry, who printed his brief before the cause came on; the offence did not consist in the printing, for any man may give a printed brief as well as a written one to counsel; but the contempt of this court was, prejudicing the world with regard to the merits of the cause before it was heard. Upon the whole, there is no doubt but this is a contempt of the court. With regard to Mrs. Read, the publisher of Saint James's Evening Post, by way of alleviation, it is said, that she did not know the nature of the paper; and that printing papers and pamphlets is a trade, and what she gets her livelihood by. But though it is true this is a trade, yet they must take care to do it with prudence and caution; for if they print any thing that is libellous, it is no excuse to say that the printer had no knowledge of the contents, and was entirely ignorant of its being libellous; and so is the rule of law, and I will always adhere to the strict rules of law in these cases. Therefore Mrs. Read must be committed to the Fleet, according to the common order of the court upon contempts. But as to Mr. Huggonson, who is already a prisoner in the Fleet, I do not think this any motive for compassion; because these persons generally take the advantage of their being prisoners, to print any libellous or defamatory matter which is brought to them, without scruple or hesitation. If these printers had disclosed the name of the person who brought this paper to them, there might have been something * Vide Baker v. Hart, post. 488. Mrs. said in mitigation of their offence; but as Farley's Case, 2 Ves. 520. VOL. XVIL-Appendix. they think proper to conceal it, I must (H) order Mrs. Read to be committed to the 13th Vesey, jun. page 237. The object of this petition was to remove the Committee of a lunatic, and to bring before the Lord Chancellor an alleged contempt by the Committee and his wife and other persons, as the authors printers and publishers of a pamphlet, with an address to the Lord Chancellor by way of dedication, reflecting upon the conduct of the petitioner and others acting in the management of the affairs of the lunatic under orders made in pursuance of the trusts of a will, the affidavit representing the conduct of the Committee and his wife intruding into the master's office, and interrupting him, not only in the business of this particular lunacy, but all other business. The wife of the Committee avowed herself to be the author of the pamphlet, alleging the innocence of her husband. could be published with no other intention than to obstruct the duties cast upon the petitioner, and to bring into contempt the orders that had been made. But upon the dedication this is not a constructive contempt. It is not left to inference. In this dedication the object is avowed, by defaming the proceedings of the court, standing upon its rules and orders, and interesting the public, prejudiced in favour of the author by her own partial representation, to procure a different species of judgment from that which would be admi. nistered in the ordinary course, and by flattering the judge to taint the source of justice. This pamphlet has been sent to me. As to the printers, lord Hardwicke observes, it is no excuse that the printer was ignorant of the contents. Their intention may have been innocent; but, as lord Mansfield has said, the fact whence the illegal motive is inferred must be traversed, and the party admitting the act cannot deny the motive. The maxim Actus non facit reum, nisi mens sit rea, cannot The solicitor-general (sir Samuel Romilly) and Mr. Hart, in support of the petition, were stopped by the Lord Chancel-be made applicable to this subject in the lor, who called on the counsel against it. ordinary administrations of justice, as the effect would be that the ends of justice would be defeated by contrivance.-But upon the satisfactory account given by three of these printers, though undoubt edly under a criminal proceeding, they would be in mercy in a case of contempt. Though I have the jurisdiction, I shall not use it. The other printer appears upon the affidavits under different circumstances. Having made the observation, that this pamphlet ought not to be printed, being totally uninteresting to the public, yet he does print it; and though the locus penitentice was afforded to him, and he was called upon not to print any more, he proceeded until he had notice of this petition. Lord Erskine, Lord Chancellor. As to remedy at law, the subject of this application is not the libel against the petitioner. The case of Roach v. Garvan (2 Atk. 469.) and another, there mentioned, were cases of constructive contempt, depending upon the inference of an intention to obstruct the course of justice. In this instance, that is not left to conjecture; and whatever may be said as to a constructive contempt through the medium of a libel against persons engaged in controversy in the court, it never has been nor can be denied, that a publication not only with an Let the Committee, and his wife, and obvious tendency but with the design to the printer to whom I have last alluded, obstruct the ordinary course of justice, is be committed to the Fleet prison. Dismiss a very high contempt.-Lord Hardwicke the Committee from that office; and diconsidered persons concerned in the busi-rect a reference to the master, as to the appointment of another Committee. Extracts from sir Eardley Wilmot's Opi nions and Judgments; p. 253, Hilary Term, 5 Geo. III.-1765. ness of the court as being under the protection of the court, and not to be driven to other remedies against libels upon them in that respect.-But without considering whether this is or is not a libel upon the petitioner, what excuse can be alleged for the whole tenor of this book, and introduced by this declaration of the purpose which the author intended it to answer? It might be sufficient to say of the book itself, stripped of the dedication, that it The KING against ALMON. "It has been argued that the mode of *This opinion was not delivered in court, the prosecution having been dropped, in consequence, it is supposed, of the |