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
England which are not Written but Deputed upon Usage to make a change in them especially if they may justifie themselves by such a Rule as my Brother lays down to support this Case sc That the Common Law complies with the Genius of a Nation but when that Genius changes the Parliament is only intrusted to judge of it and by changing the Law to make it suitable to it But if Judges will say it is Common Law because it suits with the Genius of the Nation they may take upon them to change the whole as well as any part of it the Consequence whereof may easily be seen I wish we had not found it by sad Experience If the Case at Bar be a change of the Law it is happy that it comes to be Questioned in the first Instance for if this Cause had been any way Agreed or Quitted and a second Case of this nature had been Questioned there would have been President urged which cannot be spoke of it for this Case hath no fellow there never having been the like Judgment before The Method I shall take in what I have to say shall be 1. To remove some Prejudice the Case is under 2. Give my Reasons against the Action 3. Weigh what hath been said to maintain the Action The Case is under this Prejudice that an Action of the Case lies for false Retorns of Sheriffs and why should it not lie in this Case as well as any other To remove this Prejudice I shall shew some material difference betwixt the nature of Ordinary Retorns and this Retorn In Ordinary Retorns the Party is concluded and absolutely without remedy for the Court must take the Retorn as the Sheriff makes it In Ordinary Cases the Sheriff may and frequently does take Security of the Plaintiff or the Sheriff hath means by Law to be secure as if he doubts the property of the Goods he may return a Fieri facias Nullus benit ad monstrandum bona In some Cases he may for his Safety Impannel a Jury as upon an Elegit or he may resort the Court and pray a reasonable time to prepare his Retorn if the matter be difficult and hath other shelters that if he be away he may save himself from Danger But in this Case the Party is not concluded for upon a Petition to the Parliament if they see it just they will cause the Retorn to be altered by the Clerk of the Crown if the Sheriff be not in the way In this Case the Sheriff may not take Security it were Criminal in him to make such a Retorn by Compact Nor can the Sheriff make a fruitless Retorn or obtain delay to consult his Safety These differences are of that nature that they change the Case in the reason of it as I shall hereafter make appear and no Man can infer because an Action lies for false Retorns in Ordinary Cases therefore it lies in a Case of a Retorn to Parliament where the Sheriff is clearly upon other terms My Reasons against this Action are all applicable to this Case and make it different from all the Cases that have been put by my Brothers that Argued for the Action I observe that they Argued only upon Generals without any other application to this Case and then by a Topick of concluding a Minori ad majus because Actions lie in Cases of inferior nature therefore it will lie in this which Rule holds not in divers Cases where there are particular Reasons to the contrary as I shall by and by shew to be in this My First Reason is this because the Sheriff as to the declaring the Majority is a Judge and no Action will lie against a Judge for what he does Judicially though it should be laid falso malitiose scienter as appears 1 Co. Rep. fol. 24. They that are intrusted to judge ought to be free from Vexation that they may determine without Fear the Law requires Courage in a Judge and therefore provides Security for the support of that Courage But First Is the Sheriff a Judge in this Case Secondly Is there the same Reason he should be free from all Action As to the First it is of necessity that as to the declaring of the Majority he should be the Judge upon the Place In other Cases in the County Courts the Freeholders are the Judges and he is the Minister When we say the Freeholders are Judges we mean the Major part of them is to judge but when the Question is which is the Major part they cannot determine that Question but of necessity the Sheriff must determine that the nature of the thing speaks it Therefore it was held rightly in Letchmere's Case Hugh's Abr 13 14 Car. 2. That as to the Election of Knights to Parliament the Court is properly the Sheriffs Court and the Writ is in the nature of a Special Common Elegi facias I know a Judge may have many Ministerial Actions incumbent upon him as the Chief Justice have to certifie Records upon Writs of Error therefore it is necessary for me to observe that the Suit is here for what he does as a Judge and not for any thing Ministerial which appears by the Averment that the Sheriff annexed an other Indenture specifying to be made by the Major part of the Freeholders and containing that the Lord Huntingtowr was chosen Vbi revera the Lord Huntingtowr was not chosen by the Major part of the Freeholders If it had been said Vbi revera the Freeholders supposed to Seal the same never did Seal the same there had been a falsity in the Ministerial part of sending in the Indenture But his sending Two Indentures which were really Sealed by the Freeholders as they import wherein the Freeholders of each Indenture and not the Sheriff say they are the major part is no falsity in his Ministerial part but only deferring to judge between them which is the Major part or more properly judging that they are both equal in number They Object that the matter in Question is not matter of Judgment it is but counting the Poll which requires Arithmetique but not Judgment But certainly if it be righty considered it will be thought that this Question of Majority is not barely a Question of Fact but a Question of Judgment a Question of difficult Judgment there are so many Qualifications of Electors First They must have 40 s. per Annum there the Value must be judged Secondly It must be Freehold there the Title Thirdly It must be their Own there colourable and fraudulent Gifts made many times on purpose to get Voices must be judged Fourthly The Electors must be Resident there the Settlement of the Party must be determined Fifthly There are many things that incapacitate Voices as Bribery Force c. And many other Questions arise that are of such difficulty that in debate of them much time is spent in Parliament and sometimes a Committee determines one way and the House another Is not
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