let the malice, on that occafion, be ever fo great, yet if there was a reafonable and probable caufe for the profecution, no action lies. The arrefting the judgment, in this cafe, doth not contradict the jury; they thought this a popular, ungentleman like reflection upon the plaintiff; but every popular reflection upon a gentleman, is not fuch a fcandal, for which the law will give him an action. The words do not relate to Mr. Onflow's past conduct in parliament; they do not charge him with breach of his duty, his oath, or any crime or misdemeanor, whereby he has fuffered any temporal lofs, in fortune, office, or in any way what foever. There is no occafion to fay any thing concerning any future prefumptive contingent damages, which Mr. Onflow may poffibly fuftain, at fome future time (no body knows when) by reafon of Mr. Horne's reflection upon him: I know of no cafe where ever an action for words was grounded upon eventual damages, which may poffibly happen to a man in a future fituation, notwithstanding what the Chief Juftice throws out in 2 Vent. 266. where he is made to say, That where a man had been in an "office of trust, to say that he behaved himself corruptly in it, "as it imported great fcandal, fo it might prevent his coming "into that, or the like office again, and therefore was action"able." I think the Chief Juftice went too far. And I think my Brother Leigh at the bar, went a little too far, when he faid, that the words in the laft count imported, that Mr. Onflow would betray his truft; would, as member for Surry, betray his conftituents; we think they mean no more, than that Mr. Horne was of opinion Mr. Onflow would break his word; but to fay," he has broke his word," is not actionable, a fortiori, the words in this count are not actionable: therefore, whether the words in the former count be actionable or not, the judgment must be arrested; and fo it was, per totam curiam. 2 Black. Rep. The cafe of Brafs Crofby, Efq. Lord Mayor of London. C. B. 754. S. C. not bail or [The Court THE lieutenant of the tower of London was commanded of C. P. will to have before the juftices of the bench here, the body discharge a of Brafs Crosby, Efq. lord-mayor of London, by him detained in prifoner,com- the King's prifon, in the tower of London, by whatfoever name mitted by he was called, together with the day, and caufe of his caption Warrant of and detention, on Monday next, after three weeks from Eafterthe Houfe of day; that the faid juftices feeing the caufe, might do that which Commons, for of right, and according to the law and cuftom of England, a breach of ought to be done; and further, to do and receive what the fame that Houfe, juftices here fhould then confider in that behalf. And now here, expreffed in the Warrant.] the Speaker of privilege of at 66 corpus, the re prifoner. April 22, at this day, (to wit) Monday* next, after three weeks from Eafter. The entry of day, in this term cometh the faid Brafs Crosby, in his proper perfon, the babeas under the cuftody of Charles Rainsford, Efq. deputy-lieutenant turn thereof, of the tower of London, brought to the bar here; and the faid and the redeputy-lieutenant then here returneth, that before the coming manding the of the faid writ, (to wit) on the 27th day of March laft, the faid Brass Crosby was committed to the tower of London, by 1771. virtue of a certain warrant under the hand of Sir Fletcher Norton, Knt. fpeaker of the house of commons, which follows in thefe words: "Whereas the House of Commons have this day ad"judged, that Brafs Crofby Efq. lord mayor of London, a member of this houfe, having figned a warrant for the commitment of the meffenger of the houfe, for having executed the warrant of the "Speaker, fued under the order of the house, and held the faid meffenger to bail, is guilty of a breach of privilege of the house; "and whereas the faid houfe hath this day ordered, that the faid "Brafs Crosby Efq. lord-mayor of London, and a member of this "houfe, be for his faid offence committed to the Tower of London: thefe are therefore to require you to receive into your cuftody the body of the faid Brafs Crosby Efq. and him fafely keep during the pleafure of the faid houfe, for which this fhall be your fufficient "warrant. Given under my hand, the twenty-fifth day of March, "one thousand feven hundred and feventy-one." And that this was the caufe of the caption and detention of the faid Brafs Crosby in the prifon aforefaid; the body of which faid Brass Crosby he hath here ready, as by the faid writ he was commanded, &c. Whereupon, the premifes being feen, and fully examined and understood by the juftices here, it feemeth to the faid juftices here, that the aforefaid caufe of commitment of the faid Brass Crofty Efq. to the King's prifon of the Tower of London aforefaid, in the return above fpecified, is good and fuf. ficient in law to detain the faid Brass Crosby Efq. in the prifon aforefaid; therefore the faid Brafs Crosby Efq. is by the court here remanded to the Tower of London, &c. Serjeants Glynn and Jephfon argued, that it appeared by the The argureturn of this habeas corpus, that the caufe of commitment of ment for the the lord-mayor to the Tower of London was infufficient in law discharge of for the detention of him there; and therefore this court ought the prifoner. to difcharge him out of the cuftody of the lieutenant of the Tower of London. Here follows the fubftance of Serjeant Glynn's argument, after the writ and return were filed. Serjeant Glynn-The queftion now before the court, is, whether it does not appear by the return of this writ, that the lord. lord-mayor ought to be difcharged? and is a very important and conftitutional question indeed. The return ftates, that the imprisonment of his lordship is by virtue of a certain warrant under the hand of Sir Fletcher Norton Knt. fpeaker of the Houfe of Commons, reciting, that whereas the house had adjudged, that his lordfhip having figned a warrant for the commitment of a meffenger of the house, for having executed the warrant of the speaker, issued under the order of the house, and held that meffenger to bail, is guilty of a breach of privilege of the house; and alfo reciting, that the house had ordered, that his lordship, a member of the house, should for his faid 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 muft look into, fee and confider the caufe of his detention, and are bound to do that which of right, and according to the law and cuftom of England, ought to be done. Acts done by the highest authority are fubject to the inquiry . of the courts in Westminster-Hall; whofe jurifdiction extends not only to inquire into, control and correct the acts of inferior, but alfo of co-ordinate and fuperior powers. A breach of privilege of the House of Commons is stated, and alfo in what manner, and by what fact their privilege was broken; therefore this court muft determine, whether the fact charged is by law a contempt or breach of privilege. When it is returned, that a perfon was committed by any other court in this Hall, for a contempt generally, without fpecifying the fact or nature of the contempt, this court cannot inquire into the matter, but muft remand the prifoner. Every court of juftice of record in the Hall, muft neceffarily have abfolute power to enforce obedience to their own orders, or juftice could not poffibly be adminiftered to the King's fubjects. The House of Commons is not a court of juftice of record, for it cannot adminifter an oath; it has a certain limited jurifdiction; and this court muft judge, whether it has not tranfgreffed, and gone beyond the bounds of it's jurifdiction, 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 fuperior court in civil caufes, fhould exceed it's jurifdiction, and interfere by by injunction in criminal cafes, the inferior court would determine against the Court of Chancery, and would difcharge any one from imprisonment whom that court fhould commit for difobedience to fuch injunction. This court must inquire, whether the House of Commons has not exceeded it's lawful jurifdiction. The lord-mayor is charged with a contempt: the queftion is, whether he is guilty of a contempt? that is to fay, whether the fact charged upon him, amounts by law to a contempt? The Houfe of Commons makes an order for committing a printer, and that order expreffes who fhall take him into cuftody, namely, the Serjeant, or deputy ferjeant at arms of the houfe: the printer is taken into cuftody by a meffenger, within the City of London; he complains to the lord-mayor; who examines into his complaint, proceeds judicially and according to law; and after fuch examination, according to the beft of his judgment, is of opinion, that the warrant of Sir Fletcher Norton does not juftify the taking the printer into cuftody by a meffenger of the houfe, in the city of London. How does this interfere with the lawful jurifdiction of the Houfe of Commons? And how does it exceed the lawful jurifdiction of the lord-mayor, within the city of London? The jurifdiction of the house must be limited to fome particular objects: the claim of an unlimited power in this country is abfurd, and deftroys itfelf. In the great queftion, 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 refolution of their own, affume or acquire any new jurifdiction or privilege. Here is a warrant under the hand of Sir Fletcher Norton, fpeaker. Sir Fletcher Norton has no perfonal authority to commit whom he pleases. The fpeaker, as fuch, has no official authority; whatever authority he can have, must be merely as the inftrument of the Houfe 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; confequently, the speaker having no authority of his own, and the warrant being contrary to the order, the fame is invalid. The meffenger executed the warrant in the city; the fpeaker had no authority to impower him to execute it in the city of London. The Houfe of Commons have not an unlimited jurifdiction; the lord-mayor was therefore obliged to examine, whether the act of power exerted by them within the city, was within their jurif diction. The printer had been charged with printing the fpeeches of fome members of the house, for which he was ordered to be taken into cuftody; the lord-mayor thought the Houfe of Commons had no right to order the printer to be taken into cuftody cuftody by their meffenger 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 Houfe of Commons, but their affumed tranfcendent power: now it would totally deftroy all the benefit, and the very end of the habeas corpus, if the tranfcendency of any power whatever could blind the eyes of a court of justice, and prevent their inquiry into it's acts; fuch a decifion by judges fworn to adminifter faithfully the laws, would be fatal to every thing that is worth preferving in our boafted conftitution, and would leave the unhappy fubjects of this country in a state much worse than a state of lavage nature. The great Chief Juftice 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 perfon committed for it must be discharged; that the privileges of the Houfe 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 fingle judge against three others, yet it was agreed to and fupported by the Houfe of Lords, who, in those days, remembered 2 Ld. Raym. that they were the hereditary guardians of the people. Again958. Holt held, that the order of the Houfe of Commons forbidding any one to feek or purfue a legal remedy against their orders, was illegal and naught; and boldly faid fo: and accordingly he was of opinion, that the perfons committed for contempt of that order 2 Ld. Raym. ought to have been difcharged; though the three other judges 3112. of were of a contrary opinion; and the perfons were remanded to |