The late Lord Chief Justice NORTH'S ARGUMENT In the CASE Between Sir WILLIAM SOAMES SHERIFF of SVFFOLK And Sir SAM BARNADISTON Bar. Adjudged in the COURT of Exchequer Chamber UPON A WRIT of ERROR CONTAINING The REASONS of that JUDGMENT LONDON Printed and are to be sold by Randal Taylor 1689. The late Lord Chief Justice North's Argument c. SIR Samuel Barnardiston brings an Action upon the Case in B. R. against Sir William Soame late Sheriff of Suffolk setting forth that a Writ issued for the chusing of a Knight for that County to serve in this Parliament instead of Sir Henry North deceased that at the next County Court the Freeholders proceeded to Election and although the Plaintiff was duly chosen per majorem numerum gentium tunc resident infra dict Comitat. quorum tunc quilibet expendere potuit 40 s. libri ten'ti ultra per annum infra Comitat. illud ac licet praedictus Willielmus praemissa satis sciens postea brevem praed in Cur. Cancellar returnavit simul cum quadam Indentura inter ipsum Vicecomitem praedict Electores ipsius Samuelis de praedicta Electione ipsius Samuelis fact secund Exigentiam brevis praedict praedictus tamen Willielmus ad tunc Vicecomes Officii sui debitum minime ponderans sed machinans maliriose intendens ipsum Samuelem in hac parte minus rite praegravare ac eundem Samuelem de fiducia officio unius Mil. Comitat. praedict in dict Parliamento exercend omnino frustrare deprivare Et praedict Samuelem ad diversas magnas grandes pecuniarum summas expend causare contra debitum officii sui praed falso malitiose scienter deceptive ad tunc in ead Cancellar apud Westmonast praedict retornavit una cum Indentura praedict quandam aliam Indenturam eidem brevi similiter annex specificant ' illam fore fact inter prefat Willielmum c. ex una parte diversas alias personas dict Comitat. in Indentura illa specificat continent quod dictae al. personae ut major pars totius Comitat. praedict in praedicto pleno Comitat. elegerunt quend Lionellum Talmash Bar. alias dict Lionell Dom. Huntingtowr in Regno Scotiae in loco praedicti Henrici North un Mil. Com. Suffolk praedict pro Parliamento praedicto adveniend eidem Parliamento pro Com. il Vbi revera praedictus Lionellus non fuit electus per majorem partem prout per ult Indent falso supponitur Ratione cujus quidem falsi retorn de praedicta al. Indent c. idem Samuel in Domum inferiorem pro Comitat. hujus Regni Angliae c. assemblat admitti non potuit quousque idem Samuel per petitionem suam Comitat. dicti Parliamenti pro remedio congruo exhibit post diversas ingentes denar summas in circa manifestationem verificationem dictae Electionis coram dict Comitat. expendit diversos labores in ea parte sustent postea scil c. per Comitat. in Domum Comitat. praedict admissus fuit electio ipsius Samuelis per Comitat declarat fuit fore bond unde deteriat est damnum habet ad Valenc ' 3000 l. There is a Verdict given for the Plaintiff and Damages found to the value of 800 l. and Judgment thereupon and a Writ of Error is brought to reverse that Judgment I have but little time left me to say what I have to offer it being very late and yet I must desire leave to produce these Reasons I have in maintenance of my Opinion I will be careful to detain you no longer then will be necessary And therefore I will not trouble you to State the Case again nor will I speak of any Exceptions that have been made to the Declaration for I love not the Niceties of the Law in Cases where they do prevail and in this Case I have only considered the foundations of the Action which if I had found well established upon Reason or the Grounds of Law I would have Examined what has been Objected to the Forms of the Declaration which must have brought great weight to have overturn'd those Proceedings But as to the point of the Action upon the most serious Consideration I could have of it and weighing what hath been before now and also at this time said in Support of it I am of Opinion that the Judgment ought to be reversed for that no such Action as this at Bar does lye by the Common Law. Because this is a Cause of considerable value great Damages being recovered because it is a Judgment of great Authority being upon a Cause tried at the King's Bench Bar and given upon deliberation there because it is a Case of extraordinary nature and of great import each Party pretending benefit to the Parliament by it because it is an Action primae impressionis that never was before adjudged the report of which will be listned after I have taken pains to collect and set down the Reasons that I must go upon in determining this Case That as the Judgment had the Countenance of some deliberation in the Court where it was given so the Reversal being with greater deliberation may appear grounded upon Reasons that ought to prevail I can say with my Brother Wyndham that I love rather to affirm Judgments than to reverse them but I can attribute nothing of Authority to the Judgment though it were given in a Superior Court and upon deliberation I must judge upon it as if the Case came to be Originally judged by me The Argument to support a Judgment from the Authority of its self is Exceptio ejusdem rei cujus petitur dissolutio which must not be admitted in Case of Writs of Error We are instructed to Examine and Correct the Errors of that Court and for that purpose we are made Superior to it We must proceed according to our own Knowledge and Discretion else we do not perform the Trust reposed in us I must needs say this is a Cause that imports it more than any Cause I have known come before us for it is a Cause primae impressionis and the Question is whether by this Judgment a change of the Common Law be introduced It is the principal use of Writs of Error and Appeals to hinder the change of the Law and therefore Writs of Error in our Law and Appeals in the Civil Law do carry Judgments and Decrees to be Examined by Superior Courts until they come to the highest who are intrusted that they will not change the Law. Therefore do Writs of Error lie from Ireland which is a Subordinate Kingdom to England by whose Laws it is Governed that they might not be able to change the Law by their Judgments and not so much for the particular right of the Party For otherwise it would be very easie for Judges by Construction and Interpretation to change even a Written Law and it would be most easie for the Judges of the Common Laws of
practice hath been hitherto to receive double Retorns which therefore in some Cases must be Lawfull and in this very Case the double Retorn was accepted and the Sheriff no way punished for it which he ought to have been if he had been blameable If double Retorns are accepted by the Parliament they are allowed and we must say they are Lawfull which is the ground of my third Reason for which I hold this Action not maintainable My Fourth Reason is that there is no legal Damage occasioned by the Sheriff The Damages laid in the Declaration are First Being kept from Sitting in the House Secondly The Pains and Charges he was put unto to get into the House First That of his being kept from Sitting in the House is as much every Man's Damage in the whole County nay in the whole Kingdom and any Man else might as well have an Action for it as the Member chosen To sit in Parliament is a Service in the Member for the benefit of the King and Kingdom and not for the particular profit of the Member It is a Rule in Law that no particular Man may bring an Action for a Nusance to the King's High-way because all Men in England might as well have Actions which would be infinite and therefore such an Offence is punishable only by Indictment except there be a special Loss occasioned by that Nusance For the same Reason the exclusion of a Member from the House being as much Damage to all Men in England as to himself he nor any Man else in England can have an Action for it but is punishable upon the publick Score and no otherwise For this Reason was the Stat. 23 H. 6. wisely considered By that Statute the Action is not given to the Party for his particular Damage but the Action given is a popular Action only the Party grieved hath a preference for Six months but if he do not Sue for that time every Man else is at Liberty to recover the same Sum. The other point of Damage is the Pains and Charges he was put unto and that is not occasioned by the Sheriff but by the deliberation of the House Why should the Sheriff pay for that It may be if the Parliament had sent for the Sheriff the first day and blamed the double Retorn he would have ventured to determine the matter speedily and there should have been no cause of Complaint for delay But the Parliament saw so much Cause of doubt that they think it not fit to put the Sheriff to determine but resolve to examine the matter and give him directions that may guide him in amending his Retorn thereupon they give day to the Parties on both sides and finding the matter of long Examination and Difficult they deliberate upon it It seems very unreasonable the Sheriff should be made pay for this which he did not occasion but was a course taken by the Parliament for their own Satisfaction who found no fault in the Sheriff for putting them to all that trouble Suppose Sir Samuel Barnardiston had been retorned alone and the Lord Huntingtowr had petitioned against that Retorn there had been the same Charge to have defended the Retorn So it was the contest of the opposite Party that occasioned the Charge the deliberation of the Parliament that occasioned the Delay but neither of them can be imputed to the Sheriff I cannot difference this Case from the Case of bringing an Action against a Jury for malitiously and knowingly and on purpose to put the Party to Charges finding a matter Specially whereby great Delay and great Expences were before the Party could obtain Judgment and yet I think no Man will affirm that an Action will lye in that Case In this Case the Damages are found entire So that if both parts sc the not Sitting in the House and the Pains and Charges are not Actionable causes of Damage it will be intended the Jury gave for both and so the Judgment is for that Cause erronious I suppose the Wages of Parliament will not be mentioned for Damage for in most places they are only Imaginary being not demanded but if there were to be any Consideration of them it will not alter this Case for upon this Retorn they are due as from the first day and so no Damage can be pretended upon that score My Fifth Reason is drawn from the Stat. 23 H. 6. which has been so often mentioned that Statute is a great Evidence to me that no Action lay by the Common Law against a Sheriff for a false Retorn of a Writ of Election to the Parliament and this Evidence is much strengthened by the Observation that hath been made that never any Action was brought otherwise than upon that Statute I must admit that if an Action lay by the Common Law this Statute doth not take it away for there are no negative Words in the Statute but it is not likely that the Parliament would have made that Law if there had been any Remedy for the Party before The Statute observes that some Laws had been made before for preventing false Retorns but there was not convenient Remedy provided for the Party grieved and therefore gives him an Action for 100 l. If the Courts of Justice had by the Common Laws Jurisdiction to examine Misdemeanors concerning the Retorns of Sheriffs to the Parliament what needed the Parliament to be so elaborate to provide Law after Law to give them Power therein and at last to give the Party grieved an Action can any Man imagaine but that the Parliament took the Law to be that the Party was without Remedy I know preambles of Acts of Parliament are not always Gospel but it becomes us I am sure to have respect to them and not to impute any falsity or failing to them especially where constant usage speaks for them It has been Objected that in these times it was reckoned a Damage to be Retorned to serve in Parliament which is the reason that no Man then did bring his Action against the Sheriff for Retorning another in his stead This cannot be true for the Statute calls him the Party grieved and is carefull to provide convenient Remedy for him and we see by the many Statutes about those Times that it was a mischief very frequent and there wanted not occasion for those Actions which doth extreamly strengthen the Argument of the Non user of this pretended Common Law. An Action upon the Case where it may be brought is a Plaister that fits it self for all Times and for all Sores and if such an Action might then have been brought there was no need for the Parliament to provide a convenient Remedy By Littletons Rule often mentioned by my Brothers we may conclude this Action will not lye for if such an Action had lain it would have been brought before this Time. In the Case of Buckley against Rice Thomas in Plowdens Commentaries 118. which appears to have been elaborately Argued at Bar and
Bench if this Common Law had been thought upon they might have prevented the Question Whether the Sheriffs of Wales were bound by the Statute of 23 H. 6. It seems plain to me that the Makers of the 23 H. 6. were ignorant of this Common Law and yet as my Brother Thurland Observes the Judges in those Times usually assisted in the Pening of the Laws The Judges and Councel in the time of Buckleyes Case were ignorant of this Common Law else it would have been mentioned in the Argument of that Case This Common Law was never revealed that I find untill a Time that there were divers other new lights I mean those Times when Nevill brought an Action for a false Retorn against Stroud during the late troubles but in these Times it could never obtain Judgment I have heard that the Court of Common Pleas sent the Record to the Parliament as a Case too difficult for the Courts of Common Law to determine This Statute of 23 H. 6. is not only Evidence that no such Action lay at the Common Law but in my Opinion is not consistent with any Remedy at the Common Law unless it be allowed that the Party shall be doubly punished If the Party grieved has brought his Action upon the Statute and recovered it was admitted by the Councel that no Action can be brought at the Common Law nor e contra can he recover by the Statute after he has recovered by the Common Law because Nemo bis punitur pro eodem delicto So far it stands well but suppose the Party grieved has let slip his Time for Three Months and then a third Person brings a popular Action and recovers 100 l. upon the Statute there is nothing can bar the Party grieved from his Action at the Common Law for his sitting still will not conclude him No Statute of Limittations extending to this Case and if it be so then the Party must besides his Fine and Imprisonment be doubly punished by this Statute which was made as the Letter of it imports because there wanted convenient Remedy And now I am Discoursing of this Statute I must observe the great Wisdom of the course of Parliament in these Cases which hath in great measure prevented the bringing of Actions against the Sheriffs even upon this Statute Where the Sheriff mistakes the Person in his Retorn he incurs the Penalty of 23 H. 6. though it be without any Malice and it may happen that where there are 21 Electors of one side and 20 of the other and the Sheriff Retorns him that hath 21 and the Parliament by adjudging an incapacity in two of the 21 may determine that he that had the 20 voices was duly chosen In such Case the Sheriff has made a false Retorn within the Penalty of the Statute 23 H. 6. and no Evidence shall be given against the Determination of the Parliament This were a very hard Case for the Sheriff and if he were liable to such Mischief many a past Sheriff might be awakened that takes himself to be Secure But the Course of Parliament prevents this as it is Reason for immediately upon their Determination they send for the Sheriff and cause him to amend his Retorn and thence forward the amended Retorn is the Sheriffs Retorn and there is no Record that can warrant any Action to be brought for a false Retorn As when the Marshal of the Kings-Bench or Warden of the Fleet have made an improvident Retorn omitting some Causes wherewith the Prisoner stood charged in their Custody whereby they become liable to Action they frequently move the Court to amend the Retorn and when the Retorn is amended all is set Right for there is no avering against a Record In like manner when the Sheriff hath amended his Retorn he is secure from any Action upon that occasion By this means there has of late years been no Recovery upon the Statute because all Persons chose rather to compel the Sheriff to amend his Retorn that they might be admitted to sit in the House then to take their Remedy upon the Statute and no Man can recover upon the Statute first and afterwards have the Retorn amended for I have been told that by the course of Parliament unless the Petition be lodged some few Days after the Retorn it cannot be received afterwards so that a Man cannot upon that Statute have Remedy at Law and also in Parliament which seems to be wisely provided to prevent any contrariety of Determinations This Statute of 23 H. 6. furnished those that argued for this occasion with one Argument which doth now vanish they said that all the inconveniencies that could be Objected to this Action were the same upon the Statute 23 H. 6. sc that upon that Statute the right of Election must be examined upon a Tryal where there might be contrariety of Determinations for it appears by what I have said that there can be no contrariety of Determinations And there are other Inconveniences in this Remedy by the Common Law which are not in the Remedy given by the Statute for by the Statute the Sum to be recovered is limitted the Informer has a time prefixed So that there are bounds set which cannot be exceeded But the Remedy by the Common Law is without limittation of time which is considerable for all Sheriffs that ever made any Retorn otherwise then the Parliament determined will be liable during their whole lives to them that will call them to Account for it I say this Case is without limittation of Time without measure of Damages or any Rules contained in a written Law it depends upon a general Notion of Remedy which may be enlarged by constructions as it is now introduced without President To finish my Observations upon this Statute I say it is great Wisdom in the Parliament to call the Sheriff to amend the Return and so prevent any Remedy against him upon the Statute of 23 H. 6. For I do not see that the Rules of Law concerning Elections are so manifestly clear and known that it is sit that the Sheriff should upon all Returns that are corrected by the Parliament pay the reckoning of the contest I have a Sixth Reason against this Action which is because the Sheriff is not admitted to take security to save him harmless in such Cases I take this reason to be instar omnium and there needs no other in the Case It were the most unreasonable and grievous thing in the World that the Sheriff should be bound to act without any deliberation and not be allowed to take any security and yet be liable to an Action which way soever he take there is no course can avoid it but this of a double Return as I have before shewn It has not been said by any that argued the other way that the Sheriff may take security and I suppose will not be said for that will be a dangerous course for Parliaments for then the most litigious man
the Parliament have already taken care of and prescribed Remedies by the several Statutes that have been made concerning them I say in such a Case there is little need to strain the Law. The Judges in all times have been very tender of medling with matters relating to the Parliament I do not find that ever they tried Elections but where Statutes give them express power or that they ever examined the behaviour of a Sheriff or any Officer of the Parliament in relation to any service performed to the Parliament but upon the Statutes and in Brouncker's Case Dyer 168. The Statute was their Rule in the Star-Chamber and they inflicted the same Punishment that is appointed by the Statute If we shall allow general Remedies as an Action upon the Case is to be applied to Cases relating to the Parliament we shall at last invade Priviledge of Parliament and that great Priviledge of Judging of their own Priviledges Suppose an Action should be brought in time of Prorogation against a Member of Parliament for that he falsly and maliciously did exhibit a Complaint of Breach of Priviledge to the Parliament whereby the party was sent for in custody and lost his liberty and was put to great charges to acquit himself and was acquitted by Parliament If upon such a Case the Jury should find the Defendant guilty why should not that Action be maintained as well as this at Bar It may be said for that Action that the Judgment of the Parliament is followed and the Priviledge is not tried at Law but determined first in the House 2. It may be said that the party hath no other way to recover his Charges It would be dangerous to admit such an Action for then there would be peril in claiming Priviledge if the party complained of had the fortune to be acquitted by the House the Member that made the complaint will be at the mercy of the Jury as to the point of Malice and quantity of Damages Such a Precedent I suppose would not please the Parliament and yet it may with more justice be the second Case than this Case at Bar the first Actions may be brought for giving Parliament-Protections wrongfully Actions may be brought against the Clark of the Parliament Serjeant at Arms and Speaker for ought I know for executing their Offices amiss with Averments of Malice and Damage and then must Judges and Juries determine what they ought to do by their Offices and in effect give Rules to them It cannot be seen whither we shall be drawn if we meddle with Matters of Parliament in Actions at Law therefore in my judgment the only safety is in those bounds that are warranted by Acts of Parliament or constant Practice Suppose this Action had been brought before the Election decided in the House and the Jury had found one way and the Parliament had determined contrary how inconsistent has this been But it was said in the Kings-Bench that the Court would not try it before the Parliament had determined the Election and then that cannot be contested but the Judgment of the Parliament must be followed and my Brother but now said Sure no Man will be so indiscreet as to bring such an Action before the Parliament have determined it and the Court will not try it before such time as the Election be decided in a proper way In my opinion this was not rightly consider'd for how can the Court stay any Suit to expect the Determination of the Parliament And what reason or justice is there that the Sheriff who is no party called to answer in the Parliament should be concluded in any thing by a Judgment between other parties to defend himself from a demand of Damages in a Course of Law where Witnesses are examined upon Oath which they cannot be in the Commons House There is no reason the Suit at Law should stay till the House have determined if the determination of the House be not conclusive in that Suit. And for the discretion of the persons that are like to bring such Actions I cannot depend upon it for I see in this Age some Men will insist upon their Private Rights to the hindrance of Publick Affairs of higher consequence than any that can come before the Courts in Westminster-hall It may be there will not want men that will press us to judge in such cases not only before the Parliament have determined but against what the Parliament have determined and will tell us that the Sheriff was no party that Witnesses were not there examined upon Oath and produce Arguments from Antiquity which we shall be very loth to judge of I can see no other way to avoid consequences derogatory to the Honour of Parliament but to reject the Action and all others that shall relate either to the Proceedings or Priviledge of Parliament as our Predecessors have done For if we shall admit general Remedies in Matters relating to the Parliament we must set bounds how far they shall go which is a dangerous province for if we err Priviledge of Parliament will be invaded which we ought not any way to endamage This I speak for general Remedies Now I will consider this particular Case which in my opinion would bring danger and dishonour to the Parliament It is dishonourable to the Parliament that there should be no protection in their Service I have shewn that the Sheriff can be safe in no case if he shall be sued in such a case as this and can there be a greater reproach than that there is no safety in their Service no body can serve them cheerfully or willingly at that rate It has been objected that the Sheriff is not their Officer but is the Officer of the Court of Chancery which sends forth the Writs and receives the Returns The Argument is plausible but will not pass in the Parliament for there they say the Court of Chancery is the Repository of their Writs and will not allow them to issue without Warrant from the House they will not suffer the Court of Chancery to meddle with the Returns or the Sheriff the Parliament sends immediate Orders to the Sheriff if the Return be too slow they direct the Sheriff to amend his Return they punish the Sheriff where they find him faulty so that it appear they exercise an immediate Jurisdiction over the Sheriff and I suppose they would judge it very false Doctrine to say that the Court of Chancery can any way meddle with the Returns or the Officer Admitting the Sheriff to act in Returns as the Officer of the Parliament it concerns them that he should be liable to no other punishment but what they inflict otherwise they cannot expect to be obeyed To have others Judge when their Servants do well will be to have others give Rules to their Servants and Service which they will think inconvenient Let it be considered how hard a Task Sheriffs have in Elections of Knights to the Parliament the Appearance is commonly
as we call it of Declarations in Actions of the Case if they be skilful in their Art will be sure to put in the words falso malitiose let the Case be what it will they are like Pepper and Vinegar in a Cook 's hand that help to make Sauce for any Meat but will not make a Dish of themselves Falso malitiose will not enable an Action against a Judge nor against a Indictor or Witness nor where words are not actionable though the Plaintiff have a Verdict and Damages found nor for a breach of a Trust which is alieni fori The reason of every one of these Cases holds in the Case at Bar and therefore it ought to have the same Resolution As to the word scienter it hath weight sometimes as if an Action be brought for keeping a Dog that worried another's Sheep Sciens Canem ad mordendum oves esse consuetum or for detaining the Servant or Wife of another scienter In these Cases if the Defendant have been told that the Dog did worry Sheep or that it was the Servant or Wife of another though it may be he did not believe it yet it was scienter for the word implies no more than having notice And in those Actions he must inform himself at his peril and may if he doubts avoid danger by putting away those things which give offence But in this Case he could receive Information by none and is not to believe or disbelieve any body but is bound to judge of the thing himself and to act according to his judgment So that no proof could be made of the scienter for one side tells him the Election is one way the other side tells him it is the other way but he being present to the whole Action must follow the dictates of his own judgment Hence it appears scienter in this Case is an empty word not referring to Notice of a Fact but to Matter of Judgment which cannot any way be proved It has been often urged that this Case is stronger being after a Verdict and Damages found by the Jury and it has been said that perhaps upon Demurrer it might have been more doubtful The Case is the same to me upon a Verdict that it would have been upon a general Demurrer and no stronger for a Demurrer is the Confession of the Party of all that can be proved or can possibly be found upon that Declaration It is my Lord Cooke's advice in Cromwell's Case 4 Part 14. a. never to Demur to a Declaration if there be any hopes of the Matter of Fact for the Matter in Law will as well serve after Verdict as upon Demurrer It had been a very odious Case if the Sheriff should have admitted all this Fact to be true by a Demurrer The finding the Plaintiffs Damages adds no strength to the Case for we see every day upon Actions for Words though the Jury find the Defendant guilty of speaking words falso malitiose and find it to be to the Plaintiffs great damages yet if the words are not such as will bear an Action the Court stays Judgment and if Judgment happen to be given it is reversable for Error which shews that the finding of Damages by the Jury cannot make an Action better than if it were to be adjudged upon Demurrer I shall now consider what has been said to maintain this Action upon the main substance and foundation of it They say this is a Case within the general reason of the Common Law for here is Malice Falsity and Damage and where they concur there ought to be remedy and although this be a new Case yet it ought not to be rejected for other kind of Actions have been newly introduced and this is as sit to be entertained as any My Brothers that argued even now for the Action shewed great Learning and great Pains and certainly have said all that can be invented in support of this Case but as far as I could perceive they have spoken only upon general Notions to that purpose I just now mentioned but nothing that I could observe applicable to the reasons and differences I go upon As for the Rule they go upon that where Malice Falsity and Damage do concur there must be remedy I confess it is true generally but not universally for it holds not in the Case of a Judge nor an Indicator nor a Witness nor of words that import not legal slanders through they are found to bring damage as I have shewn before and the reasons that exempt these Cases from the general Rule have the same force in the Case at Bar. I must confess the Judges have sometimes entertained new kinds of Actions but it was upon great deliberation and with discretion where a general inconvenience required it If Slade's Case were new for my Brother Thâ— land observes truly it was said in that Case that there were infinite number Precedents that Case imported the common course of Justice Actions for words that are said to be new though they have been used some hundreds of Years are a necessary means to preserve the Peace of the Kingdom The Case of Smith and Crasshaw Cro. Car. 15. was a Case of general concern being that Prosecutions for Treason may be against any man and at any time But in the case at Bar neither the Peace of the Kingdom nor the Course of Justice is concerned in general but only the Administration of Officers of the Parliament in the Execution of Parliamentary Writs and can never happen but in time of Parliament and must of necessity fall under notice of the Parliament so that if the Law were deficient it is presumed the Parliament would take care to supply it discretion requires us rather to attend that than to introduce new Precedents upon such general Notions that cannot govern the course of Parliaments My Brother said the Common Law complied with the Genius of the Nation I do not understand the Argument Does the Common Law Are we to judge of the changes of the Genius of the Nation whether may general Notions carry us at that rate for my part I think though the Common Law be not written yet it is certain and not arbitrary we are sworn to observe the Laws as they are and I see not how we change them by our Judgments and as for the Genius of the Nation it will be best considered by the Parliament who have Power of the Laws In the Case at Bar I look upon the Sheriff as a particular Officer of the Parliaments for the managing Elections and if he were not Sheriff I look upon the Writ as if it were an Order of Parliament and had not the Name of a Writ I look upon the Course of Parliament which we pretend not to know to be incident to the Consideration of it so that it stands not upon the general Notion of Remedy in the common course of Justice The Arguments of the Falling of the Value of Money whereby the Penalty of 100 l. provided by the 23 H. 6. is become inconsiderable and the encrease of the estimation of being a Member of Parliament if they were true are Arguments to the Parliament to change the Law by encreasing the Penalty but we cannot do it My Brother in his Argument at the Bar would embolden us telling us we are not to think the Case too hard for us because of the Name or Course of Parliament for Judges have punished Absentees they may determine what is a Parliament what is an Act of Parliament how long an Ordinance of Parliament shall continue and may punish Trespasses done in the very Parliament I will not dispute the truth of what hath been said in this but if his Arguments were artificial he might have spared them for they have no manner of effect to draw me beyond my sphear I will not be afraid to determine any thing that I think proper for me to judge but seeing I cannot find the Courts of Justice have at any time medled with Cases of this nature but upon power expresly given them by Acts of Parliament I cannot consent to this Precedent I am confident when there is need the Parliament will discern it and make Laws to enlarge our Power so far as they shall think convenient I see no harm that Sheriffs in the mean time should be safe from this new devised Action which they call the Common Law if they misdemean themselves they are answerable to the Parliament whose Officers they be or may be punished by the Statutes made for the regulating Elections It is time for me to conclude which I shall do by repeating the Opinion I at first delivered viz. That this Judgment is not warranted by the Rules of Law that it introduceth Novelty of dangerous consequence and therefore ought to be reversed Saepe Viatorem nova non vetus orbita fallit FINIS
this a Question that refers to Judgment They Object again that the Sheriff may give an Oath concerning all the Qualifications and he is to look no further I Answer the Statute hath given the Sheriff power to give an Oath in assistance of him but the Statute doth not say that whosoever takes that Oath shall have a Voice Neither does the Stat. 23 Hen. 6. say that the Sheriff shall not be charged with a false Retorn that pursues that way So that although he may use those means for his Direction yet he must consider his own Safety not to make a false Retorn If a Man upon taking such Oath give a special Answer or it should be known to the Sheriff that he swears false the Sheriff must determine according to his own Judgment and not by what is sworn It may be hence concluded that the Sheriff as to the declaring the Majority is a Judge And if so my next Assertion is That there is the same Reason he should be free from Action as any Judge in Westminster-hall or any other Judge Does it not import the Publick that the Sheriff should deal Uprightly and Impartially Ought he not to have Courage and for that end should not the Laws provide him Security Consider his Disadvantages What a Noise and Croud accompany such Elections What Importunity Nay what Violence there is upon him from the contesting Parties We may say no other Judge has more need of Courage and Resolution to manage himself and determine uprightly than he No other Judge determines in a Case of greater Consequence to the Publick or Difficulty than he Expose him to such Actions and in most Elections he must have trouble for commonly each Party is confident of his Strength and his Conduct and his Friends that let the Sheriff return never so uprightly the Party that is rejected will revenge it by a Suit especially if he may Sue at Common Law to have boundless Damages without running any hazard himself but of the loss of his Costs If we Judges that find our selves secure from Actions should not be tender of others that are in the same Circumstances it may be well said Wo unto you for you impose heavy Burthens upon others that will not bear the least of them your selves My second Reason is because it is alieni fori either to examine the right of Election or behaviour of the Sheriff both which are incident and indeed the only Considerations that can guide in the Tryal of such Causes if they be allowed It is admitted that the Parliament is the only proper Judicature to determine the right of Election and to censure the behaviour of the Sheriff How can the Common Law try a Cause that cannot determine of those things without which the Cause cannot be tryed No Action upon the Case will lye for breach of a Trust because the determination of the Principal thing the Trust does not belong to the Common Law but to the Court of Chancery certainly the Reason of the Case at Bar is stronger as the Parliament ought to have more Reverence than the Court of Chancery They Object that it may be tryed after the Parliament hath decided the Election for then that which the Common Law could not try is determined and the Parliament cannot give the Party the Costs he is put unto Then I perceive they would have the determination of the Parliament binding to the Sheriff in the Action which it cannot be for that it is between other Parties to which the Sheriff is not called It is against the course of Law that any Judgment Decree or Proceeding betwixt other Parties should bind the Interest of or any way conclude a Third Person No more ought it to do here It may be easie for Parties combining to represent a Case so to the Parliament that the Right of Election may appear either way as the Parties please Is is fit that the Sheriff who is not admitted to controvert such Determination should be concluded by it in an Action brought against him to make him pay the Reckoning Did the Parliament believe when they determined this Election that they passed Sentence against the Sheriff upon which he must pay 800 l. Sure if they had imagined so they would nay in Justice they ought to have heard his Defence before they determine it And yet that was the measure of this Case the Sheriff was not heard in Parliament indeed he was not blamed there and yet upon the Tryal which concerned him so deeply he was not allowed to defend himself by shewing any Majority or Equality of Voices the Parliament having determined the Election I do not by these Reflections tax the Law of injustice or the Course of Parliament of inconveniency I am an Admirer of the Methods of both it is from the Excellency of them I conclude this proceeding in this new-fangled Action being absurd unjust and unreasonable cannot be Legal To answer the other Branch of this Objection I say it does not follow that because the Parliament cannot give Costs therefore this new devised Action must lye to help the Party to them For then such an Action might lye in all Cases where there is a Wrong to be remedied by course of Law and no Costs are given for it At the Common Law no Costs were given in any Case and many Cases remain at this day where the Statutes have given no Costs as in a Prohibition Scire facias and Quare impedit and divers other Cases and yet no Action will lye to recover those Costs And why should it lye in the Case at Bar In this Case the Parliament have already had it under their Consideration in the Statute 23 Hen. 6. and have appointed what shall be paid by the Sheriff that offends sc 100 l. to the King and Imprisonment The Parliament have Stated what shall be paid for Compensation and what for Punishment and would have provided for Costs it they had thought fit My third Reason is because a double Retorn is a lawfull Means for the Sheriff to perform his Duty in doubtfull Cases If this be so then all Aggravations of falso malitiose scienter will not make the thing Actionable for whatever a Man may do for his Safety cannot be the Ground of an Action There is sometimes Dam ' absque injuria though the thing be done on purpose to bring a loss upon another without any design of benefit to himself As if a New house be erected contiguous to my Ground I may build any thing on purpose to blind the Lights of the New house and no Action will accrue though the Malice were never so great much less will an Action lye where a Man acts for his own Safety If a Jury will find a Special Verdict If a Judge will advise and take time to consider If a Bishop will delay a Patron and impannel a Jury to Enquire of the Right of Patronage you cannot bring an Action for these Delays though you
very numerous the Parties contesting very violent the Proceedings tumultuous the Polling is sometimes in several Places at once so that the Sheriff can hardly be a Witness of the action and if a dispute be in the House of Commons he is no party to it If after all this the Sheriff who cannot indempnifie himself by security shall be liable to an Action the Service of the Parliament may be reckoned a miserable slavery which is not for their honour As this is dishonourable so it is dangerous to Parliaments It concerns the Kingdom that Returns to Parliament should be upright and impartial that they may be so the Sheriffs should be secure from all fears Judges are not liable to Actions that they may proceed uprightly and impartially if they were subject to Suits for their judgments there is that earnestness and confidence on both sides that one side would be dissatisfied and trouble them and they could not discharge their duty without apprehensions of disquiet If the Sheriffs be exposed to Actions thus let us consider what and whom he is to fear he may fear the Suit of the Party and he may fear the Suit of the King and it follows necessarily that if an Action lies an Information for the King will also lie for the misdemeanour in his Office If it be not a Case priviledged by the Complexion of it as Parliamentary from being examined in Westminster-hall but that he may be punished at the Suit of the Party he may certainly be as well punished at the King's Suit if so where is the Sheriff's security will his own innocency secure him that must be tried by a Jury of the Country where the Parliament sits who are it may be strangers to him as well as to the matter or by a Jury of the Country where the Election was where it may be they will be of an opposite party the Plaintiff may wait his opportunity and question him twenty Years after if he be condemned his punishment is unlimited a Fine may be set to any height for the King the Damages may be given to any value for the party where is his security upon such proceedings will he not be more afraid of such punishment out of Parliament than of any punishment in Parliament will not or may not his terror make them desire to please them that can punish them out of Parliament rather than do right will not that be dangerous to the Constitution of Parliaments As the punishment out of the Parliament may be a terror to those which mean well so colourable punishments may be as mischievous on the other side for they may prevent any punishment in Parliament for Nemo bis punitur pro eodem delicto they may serve for protection of men that do ill when it is seriously weighed of what Consequence this may be the Case at Bar will not be thought a Case fit to be received by the Judges without the countenance of a new Law. They object here is Malice found by the Verdict and there can be no danger or inconveniency that Malice should be punished This Objection fortifies my Opinion for Malice upon which they would have the Scales turn'd in this Case is not a thing demonstrative but interpretative and lies in opinion so that it may give a handle to any man to punish another by The instance of this very Case shews that a good man may reasonably be afraid of the event of his defence in such a Case For although the matter was of great examination in Parliament and at last decided but by few Voices and no observation of the Sheriffs miscarriage there though it appeared upon the Tryal which I may say being present that the Sheriff was guided by the advice of his Friends of Councel and of Parliament-men that told him the only safe course was to make a double Return yet the Jury condemned him to pay 800 l. against the expectation of the Court for the Judges that were present at the Tryal did all declare publickly that they would not have given that Verdict The Judges heard all the Evidence the jury could go upon for being of a remote County to the place of Election the Jury could know nothing of their own knowledge and yet the Judges concurred not with the Jury in opinion I know we are not to examine the truth of the Verdict we must take it for Gospel neither does any partiality in this particular lead me in judgment but I shew it as an instance that Malice is not demonstrative mens minds may be mistaken and innocent men have therefore reason to be afraid especially in ill times and may use such means for their safety as may not be convenient for Parliaments But there can be no danger or inconveniency in the Censure of the Parliament that represents the whole Kingdom who hitherto have alone exercised this Power and who may at any time reform the Law if the present practice be any way inconvenient Upon the Reasons which I have produced I ground my Opinion Now it will be necessary to weigh what has been said in opposition to it The Arguments urged on the other part related either to the Ingredients or Circumstances of the Action or to the Foundation and Substance of it I call the Ingredients and Circumstances of the Action that it is laid with the words falso malitiose deceptive scienter and that here is a Verdict in this Case and Damages are found The words falso malitiose deceptive will sometimes make a thing actionable which is not so in it self without Malice proved though there be the same damage to the party As where a man causeth another to be falsly indicted yet if it be not maliciously no Action lies though there be the same trouble charge and damage in one Case as in the other But it is only where a man is a voluntary Agent for if a man be compellable to act you cannot molest him upon any Averment of Malice as if a Grand Jury-man causeth another to be indicted though you aver Malice you cannot have an Action against him so for a Witness that doth testifie or a Judge that judgeth In the Case at Bar the Sheriff is compellable to act and not barely as a Minister to send the Indenture but as a Judge to say which is the major part of the due Electors and if he mistakes there is no reason it should subject him to an Action upon an artificial Averment of Malice I remember in Shepheard and Wakeman's Case in the Kings-Bench Mr. Justice Wyndham said well that the words falso malitiose were grown words of course and put into every Action and that to his knowledge Juries had many times not regarded them that he looked upon them as words of form If we should make the words falso malitiose support an Action without a fit Subject-matter all the actions of Mankind would be liable to Suit and Vexation they that have the Cooking